IVANYUSHKINA v. CITY OF NEW YORK

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

Victoria IVANYUSHKINA, Appellant, v. CITY OF NEW YORK, et al., Respondents.

Decided: December 23, 2002

GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, ROBERT W. SCHMIDT and WILLIAM F. MASTRO, JJ. Wohlberg & Wohlberg, P.C., Brooklyn, NY, (Alan J. Wohlberg of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, NY, (Pamela Seider Dolgow and Linda H. Young of counsel), for respondent City of New York. James P. Nunemaker, Jr. & Associates, Uniondale, NY, (Linda Meisler of counsel), for respondents Bashar Dumar and Ilham P. Dumar. Ahmuty, Demers & McManus, Albertson, NY, (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for respondents Rae Scotto and Leonard Frances Scotto.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated September 28, 2001, as granted those branches of the separate motions of the defendants Bashar Dumar and Ilham P. Dumar and the defendants Rae Scotto and Leonard Frances Scotto for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill costs to the respondents appearing separately and filing separate briefs.

 An abutting landowner will not be liable to a pedestrian passing by on a public sidewalk unless the landowner, inter alia, caused the defect to occur because of some special use of the sidewalk (see Kaufman v. Silver, 90 N.Y.2d 204, 659 N.Y.S.2d 250, 681 N.E.2d 417;  Hausser v. Giunta, 88 N.Y.2d 449, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Ritts v. Teslenko, 276 A.D.2d 768, 715 N.Y.S.2d 418).   Here, the plaintiff tripped and fell on a public sidewalk directly adjacent to the driveway of the premises owned and used by the abutting landowners.   The evidence fails to support the plaintiff's allegation that the defect was caused by the special use of the sidewalk as a driveway or that the driveway in any way contributed to the allegedly defective condition (see Moschillo v. City of New York, 290 A.D.2d 260, 736 N.Y.S.2d 26;  Benenati v. City of New York, 282 A.D.2d 418, 723 N.Y.S.2d 69;  Waldron v. City of New York, 260 A.D.2d 471, 688 N.Y.S.2d 219;  Winberry v. City of New York, 257 A.D.2d 618, 684 N.Y.S.2d 290).   Accordingly, the Supreme Court properly granted the separate motions of the defendants Bashar Dumar and Ilham P. Dumar and the defendants Rae Scotto and Leonard Frances Scotto for summary judgment.

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