Alessi v. Zapolsky

228 A.D.2d 531, 644 N.Y.2d 549, 644 N.Y.S.2d 549, 1996 N.Y. App. Div. LEXIS 7166

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1996
• Status: Published

Opinion

The plaintiffs alleged in their pleadings that the infant-plaintiff was caused to fall from his skateboard and thereby sustain serious injuries as a result of a defect in the sidewalk abutting the defendants’ home. The law is well settled that an abutting landowner will not be liable to a person passing by on a public sidewalk unless the landowner created the defective condition or caused the defect to occur because of some special use, or unless a statute or ordinance placed the obligation to maintain the sidewalk upon him or her and imposed tort liability for failure to do so (see, Lodato v Town of Oyster Bay, 68 AD2d 904).

The plaintiffs have failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether the defendants created the defect, whether the defect arose because of the defendants’ special use of the sidewalk as a driveway, or whether the defendant breached a statutory duty to maintain the sidewalk. Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.