MOSCATO v. Antonio Urgese, et al., appellants. (2005)

In an action to recover damages for personal injuries, etc., the defendants Antonio Urgese and Maria Urgese appeal from so much of an order of the Supreme Court, Queens County (Flug, J.), dated December 8, 2003, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellants, homeowners whose property abutted a public sidewalk, failed to make a prima facie showing that they did not create the allegedly defective condition through an affirmative act of negligence or through a special use of the sidewalk (see Hausser v. Giunta, 88 N.Y.2d 449, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Rene v. Union Gardens Coop., Section 1, 299 A.D.2d 471, 472, 749 N.Y.S.2d 743;  Dos Santos v. Peixoto, 293 A.D.2d 566, 742 N.Y.S.2d 66;  cf. Kaufman v. Silver, 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417;  Romero v. City of New York, 5 A.D.3d 657, 774 N.Y.S.2d 735;  Jeanty v. Benin, 1 A.D.3d 566, 567, 767 N.Y.S.2d 447;  Ivanyushkina v. City of New York, 300 A.D.2d 544, 752 N.Y.S.2d 693;  Benenati v. City of New York, 282 A.D.2d 418, 419, 723 N.Y.S.2d 69).   Accordingly, their motion was properly denied, regardless of the sufficiency of the opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The appellants' remaining contentions are without merit.