RENDON v. CASTLE REALTY (2006)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Elliot, J.), dated August 17, 2004, as granted the motion of the defendants Castle Realty and New Atlantis Management Corp. for summary judgment dismissing the complaint insofar as asserted against them.

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

 The plaintiff allegedly tripped on a crack in a public sidewalk abutting property owned by the defendant Castle Realty and managed by the defendant New Atlantis Management Corp. (hereinafter the defendants).   Under the law in effect at the time of the accident, the “owner or lessee of land abutting a public sidewalk owe[d] no duty to the public to keep the sidewalk in a safe condition” (Ritts v. Teslenko, 276 A.D.2d 768, 715 N.Y.S.2d 418, citing Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470).   As a general rule, a landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting its premises, unless the sidewalk was constructed in a special manner for the landowner, or the landowner affirmatively caused the defect or negligently constructed or repaired the sidewalk (see Hausser v. Giunta, supra;  Cordova v. Vinueza, 20 A.D.3d 445, 798 N.Y.S.2d 519;  Sammarco v. City of New York, 16 A.D.3d 657, 658, 794 N.Y.S.2d 54).

The defendants met their initial burden on their motion for summary judgment.   The affidavit of the building superintendent established that the defendants did not create the defect or make any repairs to the sidewalk and that there were no records of any repairs having been made (see Capobianco v. Mari, 267 A.D.2d 191, 192, 699 N.Y.S.2d 487;  Rosales v. City of New York, 221 A.D.2d 329, 633 N.Y.S.2d 213).

 In opposition to the motion, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Gaines v. Shell-Mar Foods, 21 A.D.3d 986, 987, 801 N.Y.S.2d 376).   The plaintiff's speculation that other documentation of repairs might exist did not satisfy her burden, since a motion for summary judgment may not be defeated by a response based on “surmise, conjecture and suspicion” (Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 63, 194 N.Y.S.2d 509, 163 N.E.2d 333;  see Cordova v. Vinueza, supra at 446, 798 N.Y.S.2d 519).   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment.