Gaboff v. City of New York

197 A.D.2d 560, 602 N.Y.S.2d 659

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 12, 1993
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant 129/82 Owners Corp. appeals from so much of an order of the Supreme Court, Kings County (Greenstein, J.), dated June 24, 1991, as denied its cross motion for summary judgment dismissing the complaint insofar as it is asserted against it and all cross claims against it.

Ordered that the order is reversed insofar as appealed from, on the law, with costs payable by the plaintiffs, the cross motion of the defendant 129/82 Owners Corp. to dismiss the complaint insofar as it is asserted against it and all cross claims against it is granted, and the action against the remaining defendant is severed.

The plaintiff Scott Gaboff was injured when he fell on a public sidewalk in front of the building of the appellant 129/ 82 Owners Corp. There is no evidence that the appellant made any special use of the sidewalk on which Mr. Gaboff fell, or otherwise caused or created the alleged sidewalk defect. Accordingly, summary judgment is granted to the appellant (see, Belmonte v City of New York, 180 AD2d 617; Little v City of Albany, 169 AD2d 1013; Giammarino v Angelo’s Royal Pastry Shop, 168 AD2d 423). Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.