Opinion
March 28, 1995
Appeal from the Supreme Court, New York County (Salvador Collazo, J.).
The Supreme Court erred in denying the defendant's motion for summary judgment since the plaintiff failed to establish the existence of any triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557). It is well settled that the owner or lessee of land abutting a public sidewalk owes no duty to the public to keep the sidewalk in a safe condition unless the landowner or lessee creates a defective condition in the sidewalk or uses it for a special purpose (see, D'Ambrosio v. City of New York, 55 N.Y.2d 454; Roark v. Hunting, 24 N.Y.2d 470; Nevins v Great Atl. Pac. Tea Co., 164 A.D.2d 807). Here the defendant cannot be held liable for the defect alleged in the complaint, because there is nothing in the record to suggest that he created the defective condition by filling in the center of the tree well with blacktop or cobblestones, by constructing, repairing or replacing any portion of the tree well, or by using the area for a purpose different from the general populace such to impute liability based upon a theory of "special use" (Tortora v. Pearl Foods, 200 A.D.2d 471, 472; Nuesi v. City of New York, 205 A.D.2d 370).
Concur — Rosenberger, J.P., Wallach, Kupferman, Asch and Tom, JJ.