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Santos v. Peixoto

Appellate Division of the Supreme Court of New York, Second Department
Apr 15, 2002
293 A.D.2d 566 (N.Y. App. Div. 2002)

Opinion

2001-07233

Submitted March 6, 2002.

April 15, 2002.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Zambelli, J.), entered July 2, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.

Trolman, Glaser Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), for appellant.

Robert P. Tusa, Yonkers, N.Y. (David Holmes of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.


ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff was injured when she tripped and fell on broken pavement in the sidewalk/driveway area in front of the residence owned by the defendant. The Supreme Court granted the defendant's motion for summary judgment. We reverse.

"Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner" (Hausser v. Giunta, 88 N.Y.2d 449, 452-453). However, an abutting landowner will be held liable where the landowner "created the defective condition or caused the defect to occur because of some special use" (Winberry v. City of New York, 257 A.D.2d 618, 619). There are triable questions of fact on the issue of whether the defect was caused by the defendant's special use of the sidewalk as a driveway and/or whether the driveway contributed to the allegedly defective condition (see Rosario v. City of New York, 289 A.D.2d 133; Cela v. Goodyear Tire Rubber Co., 286 A.D.2d 640, 641; cf., Benenati v. City of New York, 282 A.D.2d 418, 419; McGee v. City of New York, 252 A.D.2d 483, 484). Accordingly, the Supreme Court improperly granted the defendant's motion for summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557).

SANTUCCI, J.P., GOLDSTEIN, LUCIANO, SCHMIDT and CRANE, JJ., concur.


Summaries of

Santos v. Peixoto

Appellate Division of the Supreme Court of New York, Second Department
Apr 15, 2002
293 A.D.2d 566 (N.Y. App. Div. 2002)
Case details for

Santos v. Peixoto

Case Details

Full title:MARIA DOS SANTOS, appellant, v. CELESTE PEIXOTO, respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 15, 2002

Citations

293 A.D.2d 566 (N.Y. App. Div. 2002)
742 N.Y.S.2d 66

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