BREGER v. Marvin Hellman, et al., Appellants.

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

Lance BREGER, Plaintiff-Respondent, v. CITY OF NEW YORK, Defendant-Respondent, Marvin Hellman, et al., Appellants.

Decided: September 30, 2002

MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, CORNELIUS J. O'BRIEN and HOWARD MILLER, JJ. Squires, Cordrey & Noble, New York, N.Y. (Mark E. Dwyer of counsel), for appellants Marvin Hellman and Rozi Hellman. D'Amato & Lynch, New York, N.Y. (Arturo M. Boutin and Kevin P. Carroll of counsel), for appellant MMJ Contracting. Fuchsberg & Fuchsberg, New York, N.Y. (Ronald Yang of counsel), for plaintiff-respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Kathleen Alberton of counsel), for defendant-respondent.

In an action to recover damages for personal injuries, the defendants Marvin Hellman and Rozi Hellman appeal, and the defendant MMJ Contracting separately appeals, from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 4, 2001, which denied their respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff tripped and fell on a piece of concrete on the sidewalk abutting property owned by the defendants Marvin Hellman and Rozi Hellman (hereinafter the Hellmans).   The defendant MMJ Contracting (hereinafter MMJ) was performing construction on the Hellmans' property.

 It is well settled that abutting landowners are liable for a defect in a public sidewalk only when the owners either created the defective condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation on them to maintain the sidewalk and expressly makes them liable for injuries caused by breach of that duty (see Meyer v. Guinta, 262 A.D.2d 463, 692 N.Y.S.2d 159).   Furthermore, use of the sidewalk as a driveway may constitute a special use (see Cela v. Goodyear Tire & Rubber Co., 286 A.D.2d 640, 730 N.Y.S.2d 323;  Waldron v. City of New York, 260 A.D.2d 471, 688 N.Y.S.2d 219).   The evidence indicates that MMJ may have been using the area of the sidewalk where the plaintiff tripped as a driveway into the construction site.   The Hellmans and MMJ did not meet their burden of establishing that they did nothing to either create the defective condition or cause the condition through a special use of the sidewalk (see Packer v. City of New York, 282 A.D.2d 587, 723 N.Y.S.2d 378;  Caturano v. City of New York, 224 A.D.2d 202, 637 N.Y.S.2d 140;  cf.  Aversano v. City of New York, 265 A.D.2d 437, 696 N.Y.S.2d 233).   Thus, summary judgment was not warranted.

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