Castro v. Village of Dobbs Ferry

256 A.D.2d 534, 682 N.Y.S.2d 874, 1998 N.Y. App. Div. LEXIS 14038

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants Anthony Tisi, Angelo Tisi, and Rose Gemma appeal from an order of the Supreme Court, Westchester County (Silverman, J.), entered February 24, 1998, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.

On February 11, 1995, the plaintiff was injured when she slipped and fell on a patch of ice located on the sidewalk directly adjacent to the driveway of the premises occupied by the appellants.

Upon the appellants’ prima facie showing of entitlement to judgment as a matter of law, the plaintiff was required to tender sufficient evidence to create a triable issue of fact (see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320). In the present case, the plaintiff failed to raise a triable issue of fact as to whether the appellants created or exacerbated the icy condition of the sidewalk, or whether their use of the sidewalk as a driveway created the defect which was a proximate cause of the plaintiff’s injuries (see, D'Ambrosio v City of New York, 55 NY2d 454, 468; see also, Alessi v Zapolsky, 228 AD2d 531; cf., Lopez v Alexander, 251 AD2d 297). Accordingly, the defendants’ motion for summary judgment is granted. Pizzuto, J. P., Joy, Goldstein and Luciano, JJ., concur.