MORAN v. James Grant, et al., Defendants-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

Mercedes MORAN, Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants, James Grant, et al., Defendants-Appellants.

Decided: May 25, 2000

NARDELLI, J.P., TOM, RUBIN, ANDRIAS and BUCKLEY, JJ. Lawrence D. Dicker, for Plaintiff-Respondent. Marie R. Hodukavich, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered July 6, 1999, which, insofar as appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

An issue of fact exists as to whether the alleged defect in the sidewalk where plaintiff fell was caused by cars driving over the sidewalk in the course of entering and exiting the driveway that lay between defendants-appellants' and the individual codefendants' properties.   Appellants' expert's opinion that the concrete driveway apron that sloped down from the sidewalk was raised by tree roots on the sidewalk adjacent to the apron, which in turn caused the concrete to crack and deteriorate over time, does not eliminate the possibility that cracks and holes in the sidewalk were produced, or exacerbated, by the many years of defendants' cars driving over it (cf., Mincey v. Mensch, 253 A.D.2d 656, 677 N.Y.S.2d 362).   However, no issue of fact exists as to whether the alleged defects in the sidewalk were caused by repairs done by appellants, whose denial of having done any repairs was not countered (see, Morrissey v. City of New York, 248 A.D.2d 294, 670 N.Y.S.2d 465;  Cobo v. City of New York,, 266 A.D.2d 121, 698 N.Y.S.2d 672), and, to that extent, we limit the issues of fact for trial.