Opinion
2003-07255.
Decided June 7, 2004.
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, Suffolk County (Klein, J.), dated June 23, 2003, as granted the motion of the defendant Dellafranca and Hesse Realty Corporation for summary judgment dismissing the complaint insofar as asserted against it.
Phillips, Weiner Quinn, Lindenhurst, N.Y. (James A. McDonaugh of counsel), for appellant.
Clausen Miller, P.C., New York, N.Y. (Steven J. Fried, Melissa A. Murphy-Petros, and Mary Lisa Sullivan of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P. HOWARD MILLER, GLORIA GOLDSTEIN, PETER B. SKELOS, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
On April 1, 2000, the plaintiff tripped and fell over the irregular, mud-covered surface of the public sidewalk adjacent to 317 South Wellwood Avenue in the Incorporated Village of Lindenhurst. The plaintiff brought this action against, inter alia, the defendant Dellafranca and Hesse Realty Corporation (hereinafter the defendant), the owner of the abutting property. The plaintiff alleged that as a result of the negligence of the defendant in the maintenance, care, and management of the property, the sidewalk was in a defective condition which caused her to trip, fall, and sustain personal injuries.
A landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting its premises unless the landowner (1) affirmatively created the defective condition, (2) negligently made repairs thereto, (3) created the defect through special use, or (4) violated a statute or ordinance which expressly imposes liability on it for failure to maintain and repair the sidewalk ( see Hausser v. Giunta, 88 N.Y.2d 449, 452-453; Devine v. City of New York, 300 A.D.2d 532).
The defendant demonstrated its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it based upon the affidavit of its president, Vincent Dellafranca, who averred, inter alia, that he did not observe any defects or conditions that he "believed required repairing" and that the defendant did not make special use of the sidewalk or change its condition ( see Devine v. City of New York, supra; Tiano v. Nick's Lobster Seafood Rest. Clam Bar, 300 A.D.2d 469). The burden then shifted to the plaintiff to produce sufficient evidentiary proof in admissible form to raise a triable issue of fact ( see Palone v. City of New York, 5 A.D.3d 750.
Viewing the photographs submitted by the plaintiff together with the deposition testimony of the parties in the light most favorable to the plaintiff and resolving all reasonable inferences in her favor, as we must ( see Mitchell v. Fiorini Landscape, 253 A.D.2d 860), we cannot say that it would be unreasonable for a jury to infer, from a comparison of the condition of the sidewalk at the scene of the incident to the condition of the remainder of sidewalk, and to the pre-construction condition described by Mr. Dellafranca as mere stress fractures, that the defendant's construction vehicles created the defect ( see Batton v. Elghanayan, 43 N.Y.2d 898, 899; Taylor v. New York City Tr. Auth., 48 N.Y.2d 903, 904; DeGiacomo v. Westchester County Healthcare Corp., 295 A.D.2d 395; Zavaro v. Westbury Prop. Inv. Co., 244 A.D.2d 547; Farrar v. Teicholz, 173 A.D.2d 674; see also Degnan v. City of New York, 224 A.D. 357) . These factual issues are for the trier of fact to resolve. Accordingly, the motion for summary judgment should have been denied.
The defendant's remaining contentions addressing the size and nature of the defect ( see Trincere v. County of Suffolk, 90 N.Y.2d 976; Corrado v. City of New York, A.D.3d [2d Dept, Apr. 5, 2004]), and the plaintiff's observation of the defect immediately before her accident ( see Cupo v. Karfunkel, 1 A.D.3d 48; Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923), are similarly unavailing.
ALTMAN, J.P., H. MILLER, GOLDSTEIN and SKELOS, JJ., concur.