CAPOBIANCO v. Town of North Hempstead, defendant-respondent. (1999)

In an action to recover damages for personal injuries, etc., the defendants Frank Mari, Jr., and Mildred Contino Mari appeal from an order of the Supreme Court, Nassau County (Davis, J.), entered December 16, 1998, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.

 Generally, liability for injuries sustained as a result of negligent maintenance of, or dangerous and defective conditions on, a public sidewalk is placed on the municipality and not the abutting landowner (see, Hausser v. Giunta, 88 N.Y.2d 449, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Roark v. Hunting, 24 N.Y.2d 470, 475, 301 N.Y.S.2d 59, 248 N.E.2d 896).  However, the abutting landowner may be held liable where it used the sidewalk in a special manner for its benefit, where the landowner affirmatively caused the defect or negligently constructed or repaired the sidewalk, or where a local statute or ordinance expressly obligates the landowner to maintain and repair the sidewalk and imposes liability for injuries resulting from the breach of that duty (see, Hausser v. Giunta, supra, at 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470;   O'Hanlon v. Weinbach, 234 A.D.2d 436, 651 N.Y.S.2d 161;  Hinkley v. City of New York, 225 A.D.2d 665, 639 N.Y.S.2d 479;  Rosales v. City of New York, 221 A.D.2d 329, 633 N.Y.S.2d 213).

 Here, there is no evidence in the record that the appellants, the abutting landowners, repaired the allegedly defective sidewalk.   The appellants submitted affidavits denying that they made any repairs to the sidewalk.   The plaintiffs' mere speculation and conjecture that the appellants may have made a repair to the sidewalk before the accident is insufficient to defeat the motion for summary judgment (see, Verdes v. Brooklyn Union Gas Co., 253 A.D.2d 552, 677 N.Y.S.2d 168;  Palazzo v. City of New Rochelle, 236 A.D.2d 528, 654 N.Y.S.2d 612).   Furthermore, the plaintiffs' evidence that a portion of the sidewalk was contiguous to a private walk owned by the appellants is insufficient to establish that the sidewalk was constructed in a special manner for the appellants' benefit (see, Verdes v. Brooklyn Union Gas Co., supra;  Hand v. Stanper Food Corp., 250 A.D.2d 812, 672 N.Y.S.2d 789;  Kobet v. Consolidated Edison Co., 176 A.D.2d 785, 575 N.Y.S.2d 114).

MEMORANDUM BY THE COURT.