Opinion
2003-02633.
Decided March 29, 2004.
In an action to recover damages for personal injuries, etc., the defendant Jonathan Bryan Kay, s/h/a Bryan Jonathan Kay appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated February 4, 2003, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.
James P. Nunemaker, Jr. Associates, Uniondale, N.Y. (Linda Meisler of counsel), for appellant.
Weitz Luxenberg, New York, N.Y. (Stuart R. Friedman of counsel), for respondent.
Before: NANCY E. SMITH, J.P., DANIEL F. LUCIANO, THOMAS A. ADAMS, and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.
On July 10, 1998, the plaintiff allegedly sustained injuries when she tripped over a raised sidewalk slab adjacent to a residence owned by the appellant. After the plaintiff commenced this action, the appellant moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court denied the motion. We reverse.
The law is well settled that an abutting landowner may be liable to a pedestrian passing by on a public sidewalk if the landowner negligently repaired the sidewalk, thereby creating a dangerous condition ( see Hausser v. Giunta, 88 N.Y.2d 449, 453), or "uses it for a special purpose" ( Otero v. City of New York, 213 A.D.2d 339, 340).
Kay established his prima facie entitlement to summary judgment by submitting evidence that he did not repair the subject sidewalk or use it for a special purpose ( see Diaz v. Vieni, 303 A.D.2d 713). In opposition, the plaintiff failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Leggio v. Gearhart, 294 A.D.2d 543, 544).
Although the plaintiff argues that certain photographs depicted repairs that were made to the sidewalk, she did not establish when the repairs were made or that the appellant made them ( see Ritts v. Teslenko, 276 A.D.2d 768, 769; Ribacoff v. City of Mount Vernon, 251 A.D.2d 482, 483; Palazzo v. City of New Rochelle, 236 A.D.2d 528, 529). Thus, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him.
The plaintiff's contention that a prior owner of the property repaired the sidewalk is improperly raised for the first time on appeal ( see Mourounas v. City of New York, 291 A.D.2d 537), and in any event, is without merit.