Opinion
March 13, 1995
Appeal from the Supreme Court, Nassau County (McCarty, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the appellant's cross motion and substituting therefor a provision granting the cross motion, dismissing the complaint insofar as it is asserted against the appellant, and dismissing all of the cross claims against him; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant payable by the plaintiff.
The evidence, viewed in the light most favorable to the plaintiff, establishes that she tripped on a raised slab of sidewalk in front of the premises owned by the defendants Charles and Anne Kaiser at 54 Olsen Street, Valley Stream, New York. Although there is evidence in the record that the appellant repaved his driveway and the sidewalk adjoining the raised slab a few years before the accident, there is no evidence that the repaving was done in a negligent manner or that it created or exacerbated the defect (see, Davi v. Alhamidy, 207 A.D.2d 859; Yass v. Deepdale Gardens, 187 A.D.2d 506, 507). Accordingly, there is no issue of fact regarding the appellant's liability.
Since the appellant cannot be held liable for the plaintiff's injuries, the issue of the validity of his cross claim against the Town of Hempstead is academic. In any event, the appellant's contentions with respect to the cross claim are without merit (see, Misek-Falkoff v. Village of Pleasantville, 207 A.D.2d 332; Ferris v. County of Suffolk, 174 A.D.2d 70). Thompson, J.P., Lawrence, Hart and Goldstein, JJ., concur.