Opinion
February 1, 1999
Appeal from the Supreme Court, Queens County (Price, J.).
Ordered that the order is affirmed insofar as appealed from by the defendant City of New York; and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant Bayberry Greens Associates, on the law, that defendant's motion is granted, the complaint and all cross claims are dismissed insofar as asserted against it, and the action against the remaining defendant is severed; and it is further,
Ordered that the defendant Bayberry Greens Associates is awarded one bill of costs payable by the plaintiff and the defendant City of New York.
Triable issues of fact exist with respect to the liability of the City of New York, and accordingly, summary judgment as to it was properly denied ( see, Zuckerman v. City of New York, 49 N.Y.2d 557).
The court erred, however, in denying the motion of the codefendant Bayberry Greens Associates (hereinafter Bayberry), whose property abuts the public sidewalk where the plaintiff fell. As a general rule, an abutting landowner will not be liable to a pedestrian passing by on a public sidewalk unless (1) that landowner has created the defective condition or caused the defect to occur because of some special use, or (2) "a local ordinance or statute specifically charges [the] landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty" ( Hausser v. Giunta, 88 N.Y.2d 449, 453; see, Rubenstein v. DeGeorgio, 236 A.D.2d 383; O'Hanlon v. Weinbach, 234 A.D.2d 436; Lobel v. Rodco Petroleum Corp., 233 A.D.2d 369; Alessi v. Zapolsky, 228 A.D.2d 531; see also, Muhlon v. Surf Operating Co., 255 A.D.2d 370).
Here, the plaintiff's opposing submissions failed to generate any triable issues of fact with respect to the above-noted exceptions ( see, Oquendo v. City of New York, 238 A.D.2d 391), and accordingly, Bayberry's motion for summary judgment should have been granted ( see, Rubenstein v. DeGeorgio, supra; Alessi v. Zapolsky, supra).
Miller, J. P., Thompson, McGinity and Luciano, JJ., concur.