Hall v. Gaston

255 A.D.2d 1009, 680 N.Y.S.2d 333, 1998 N.Y. App. Div. LEXIS 12326

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. Plaintiff alleges that she sustained injuries when she slipped and fell on an icy public sidewalk at a point where it crossed defendants’ driveway. Defendants, as the abutting landowners, met their initial burden of establishing that they are not liable “for the allegedly defective condition of the [sidewalk] in the absence of proof that defendant [s] created the condition or used the [sidewalk] for a special purpose that resulted in plaintiffs injury” (O’Shea v Ilion Main St. Corp., 227 AD2d 989, lv denied 88 NY2d 814; see, Reid v Auto Tune Ctrs., 202 AD2d 1047; Giotto v Gaetano, 178 AD2d 978, 979). Plaintiff submitted no evidence that defendants used the sidewalk for a special purpose, and her allegation that defendants created the dangerous condition by driving over the snow with their vehicles is based on mere speculation and thus is insufficient to raise an issue of fact (see, Eddy v Tops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.