Opinion
June 17, 1996
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the appeal from the order entered January 30, 1995, is dismissed, as that order was superseded by the order dated September 25, 1995, made upon reargument; and it is further,
Ordered that the order dated September 25, 1995, is affirmed insofar as appealed from; and it is further,
Ordered that the defendants are awarded one bill of costs.
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 A.D.2d 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.