MURNAN v. Kathleen S. Konitsch, as Administrator of the Estate of Helen L. Peters, Deceased, Defendant-Appellant.

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

Beverly MURNAN and John Murnan, Plaintiffs-Respondents, v. TOWN OF TONAWANDA, Defendant, Kathleen S. Konitsch, as Administrator of the Estate of Helen L. Peters, Deceased, Defendant-Appellant.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., KEHOE, SMITH, AND GREEN, JJ. Law Office of Epstein & Hartford, Cheektowaga (Jennifer V. Schiffmacher of Counsel), for Defendant-Appellant. Law Offices of Eugene C. Tenney, Buffalo (Laura C. Doolittle of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this action alleging that plaintiff Beverly Murnan was injured after tripping and falling on a crack in a sidewalk that was used as part of the driveway of Helen L. Peters (decedent).   Supreme Court properly denied that part of the cross motion of Kathleen S. Konitsch (defendant), the administrator of decedent's estate, for summary judgment dismissing the complaint and all cross claims against her on the ground that decedent was not negligent.   In support of that part of her cross motion, defendant failed to meet her burden of establishing that decedent, the abutting landowner, “did nothing to either create the [allegedly] defective condition or cause the condition through the special use of [that part of the public sidewalk] as a driveway” (Adorno v. Carty, 23 A.D.3d 590, 591, 804 N.Y.S.2d 798 [internal quotation marks omitted];  see Katz v. City of New York, 18 A.D.3d 818, 819, 796 N.Y.S.2d 639;  cf. Torres v. City of New York, 32 A.D.3d 347, 820 N.Y.S.2d 268).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: