Opinion
May 26, 1998
Appeal from the Supreme Court, Nassau County (Adams, J.)
Ordered that the order is reversed, on the law, with costs, the defendants motion is granted, and the complaint is dismissed.
The plaintiff Gerard Hand was allegedly injured when he tripped and fell on a broken sign post protruding from a sidewalk. He and his wife subsequently commenced this action against the defendant, the owner of the property abutting the sidewalk.
In the absence of evidence that an abutting landowner made special use of a public sidewalk or created or caused an allegedly defective condition, the property owner is not liable for injuries sustained by an individual who falls on the sidewalk ( see, Gabotiv City of New York, 197 A.D.2d 560; Belmonte v. City of New York, 180 A.D.2d 617). There is no evidence in this case that the defendant made special use of the sidewalk. On a prior appeal, this Court concluded that the plaintiff's had failed to come forward with sufficient, probative evidence that the defendant had created the defective condition, but determined that the defendants motion for summary judgment was premature as the plaintiff's had not yet had the opportunity to depose certain witnesses ( see, Hand v. Stanper Food Corp., 224 A.D.2d 584).
Those nonparty witnesses have now been deposed and their testimony does not support the plaintiff's contention that the defendant created the alleged defective condition. The plaintiff's current opposition to the defendants motion for summary judgment, like their opposition to the defendants prior motion, is insufficient to raise a triable issue of fact as to whether the defendant created the condition. Consequently, the Supreme Court erred in denying the motion.
O'Brien, J.P., Sullivan, Pizzuto and Krausman, JJ., concur.