Opinion
Argued April 29, 1999
June 14, 1999
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Golia, J.), dated April 14, 1998, which denied their motion for summary judgment dismissing the complaint.
Tomao and Marangas, Garden City, N.Y. (Joseph L. Tomao, Jr., and Peter Tomao of counsel), for appellants.
Alan S. Ripka, P.C. (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondents.
DAVID S. RITTER, FRED T. SANTUCCI, DANIEL F. LUCIANO, JJ., HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed.
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] abutting 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, Elias v. City of New York, 257 A.D.2d 532 [2d Dept., Feb. 1, 1999]; Nicholson v. City of New York, 258 A.D.2d 435 [1st Dept., Jan. 28, 1999]; Lopez v. Town Fair Supermarket, 256 A.D.2d 387 [2d Dept., Dec. 14, 1998]; Bachman v. Town of N. Hempstead, 245 A.D.2d 327; Lobel v. Rodco Petroleus Corp., 233 A.D.2d 369).
Here, there is no evidence that the defendants created or exacerbated the condition of the sidewalk, and there are no issues of fact with respect to whether the defendants' special use of the sidewalk as a driveway was a proximate cause of the alleged defect ( see, Winberry v. City of New York, 257 A.D.2d 618 [2d Dept., Jan. 19, 1999]; Castro v. Village of Dobbs Ferry, 256 A.D.2d 534 [2d Dept., Dec. 28, 1998]; Lopez v. Alexander, 251 A.D.2d 297; Rubenstein v. DeGeorgio, 236 A.D.2d 383).