PRATT v. (and a third-party action). (2000)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated October 14, 1999, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The defendant, Villa Roma Country Club, Inc., demonstrated its entitlement to judgment as a matter of law (see, Minott v. City of New York, 230 A.D.2d 719, 645 N.Y.S.2d 879).   It is uncontroverted that the injured plaintiff's fall occurred on property owned and maintained by the third-party defendant, Town of Delaware (hereinafter the Town).   As an abutting landowner, the defendant could be liable only if it created the defective condition or caused the defect to occur because of some special use, or if “a local ordinance or statute specifically charges [the] * * * landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty” (Hausser v. Giunta, 88 N.Y.2d 449, 453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  accord, Elias v. City of New York, 258 A.D.2d 435, 683 N.Y.S.2d 878).   No ordinance or statute is alleged here.   Thus, it was incumbent upon the plaintiffs to raise a triable issue of fact that the defendant either created or caused the defective condition, or derived a special benefit from the abutting property unrelated to the public use, and was therefore required to maintain a portion of that property (see, Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;  Thomas v. Triangle Realty Co., 255 A.D.2d 153, 679 N.Y.S.2d 394).   Since the plaintiffs failed to come forward with any opposing evidence demonstrating that the defendant created or caused the defective condition, or made a special use of that portion of the Town's property on which the injured plaintiff fell, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

MEMORANDUM BY THE COURT.