ZEKTSER v. Elliot L. Bass, et al., appellants.

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

Boris ZEKTSER, etc., et al., respondents, v. CITY OF NEW YORK, defendant, Elliot L. Bass, et al., appellants.

Decided: May 31, 2005

ANITA R. FLORIO, J.P., FRED T. SANTUCCI, WILLIAM F. MASTRO, and ROBERT A. SPOLZINO, JJ. Calabrese & Calabrese, LLP, White Plains, N.Y. (Salvatore J. Calabrese and Joseph Minasi of counsel), for appellants. Eric H. Green, New York, N.Y. (Marc Gertler and Paul Carpenter of counsel), for respondents. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Janet L. Zaleon of counsel;  Jason Ward Friedman on the brief), for the defendant City of New York.

In an action to recover damages for personal injuries, etc., the defendants Elliot L. Bass and Marilyn Bass appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated November 24, 2004, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the plaintiffs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.

 Absent the existence of a statute or ordinance imposing liability (see e.g. Administrative Code City of N.Y. § 7-210), an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in that public sidewalk unless the landowner either caused the defect to occur because of some special use by the landowner or the landowner created the defect.   Here, the infant plaintiff's fall was caused by a defect in the public sidewalk directly adjacent to the area of the sidewalk that was used as part of the driveway of the premises owned by the appellants, Elliot L. Bass and Marilyn Bass, the abutting landowners.   The appellants' proof was sufficient to make out their prima facie case that they did not initially create the defective condition nor did they improperly repair the defective condition, or cause the defective condition to occur through their special use of the adjacent portion of that public sidewalk as a driveway.   Furthermore, at the time of the incident, no statute or ordinance conferred liability upon them (see Administrative Code City of N.Y. § 7-210). In response, the plaintiffs failed to demonstrate the existence of a triable factual issue of fact.   Accordingly, the appellants' motion should have been granted and the complaint dismissed insofar as asserted against them (see Jeanty v. Benin, 1 A.D.3d 566, 767 N.Y.S.2d 447;  Ivanyushkina v. City of New York, 300 A.D.2d 544, 752 N.Y.S.2d 693;  see also Moscato v. City of New York, 16 A.D.3d 470, 792 N.Y.S.2d 104;  cf. Dos Santos v. Peixoto, 293 A.D.2d 566, 742 N.Y.S.2d 66).

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