GAYNOR v. CITY OF NEW YORK

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

Gloria GAYNOR, Appellant, v. CITY OF NEW YORK, Defendant, Ronald Sexton, Respondent.

Decided: March 29, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Marvin Friedman, Richmond Hill, N.Y. (Andrew M. Friedman of counsel), for appellant. Steven G. Fauth, New York, N.Y. (Martin J. Moskowitz of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated March 16, 1998, which granted that branch of the motion of the defendant Ronald Sexton which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

 The plaintiff allegedly tripped and fell on a hole in the sidewalk which was adjacent to a building owned by the respondent.   The law is well established that an abutting landowner will not be liable to a pedestrian passing by on a public sidewalk unless, insofar as is relevant here, the landowner created the defective condition or caused the defect to occur because of some special use (see, Vallejo v. Yorkshire Apts., 236 A.D.2d 464, 654 N.Y.S.2d 596;  Surowiec v. City of New York, 139 A.D.2d 727, 527 N.Y.S.2d 478).   The respondent's papers in support of his motion for summary judgment established that he did not create the defective condition or cause the hole because of some special use.   Since the plaintiff failed to raise a triable issue of fact (see, CPLR 3212[b] ) on either issue, the Supreme Court properly granted the respondent's motion.

MEMORANDUM BY THE COURT.

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