Opinion
Submitted August 17, 1999
October 18, 1999
In an action to recover damages for personal injuries, the defendants Linda Cohen and Scordio Construction, Inc., separately appeal from so much of an order of the Supreme Court, Kings County (Schneier, J.).
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents, the cross motions are granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.
The plaintiff commenced this action to recover damages for injuries she allegedly sustained on February 21, 1994, when she tripped and fell as a result of a hole on a public sidewalk adjacent to premises owned by the defendant Linda Cohen. At the time of the accident Cohen had a contract with the defendant Scordio Construction, Inc. (hereinafter Scordio), to perform renovation work in and around the premises.
It is well settled that "liability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property * * * Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 957; see, Minott v. City of New York, 230 A.D.2d 719; see also, Poirier v. City of Schenectady, 85 N.Y.2d 310, 315). In support of her cross motion for summary judgment, Cohen demonstrated that she neither created the defect nor exercised any control or supervision over the public sidewalk abutting her private property, nor did she make a special use of the sidewalk (see, Soto v. City of New York, 2 44 A.D.2d 544; Minott v. City of New York, supra, at 720; Rosales v. City of New York, supra; Holz v. Rinacente Props., 197 A.D.2d 669; Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298; Kiernan v. Thompson, 137 A.D.2d 957, 958). Furthermore, in support of its cross motion for summary judgment Scordio submitted proof in admissible form that it did not perform any work on the public sidewalk prior to the plaintiff's accident. Thus, Scordio established a prima facie right to judgment as a matter of law (see, Soto v. City of New York, 244 A.D.2d 544, 545; Lopez v. HM Mech. Contrs., 236 A.D.2d 448; Abbenante v. Tyree, Co., 228 A.D.2d 529; Hovi v. City of New York, 226 A.D.2d 430; Rosales v. City of New York, 221 A.D.2d 329; Morgan v. New York Tel., 220 A.D.2d 728). Since the appellants each established a prima facie case of entitlement to summary judgment, and the plaintiff failed to proffer evidence demonstrating a triable issue of fact, summary judgment dismissing the complaint and all cross claims insofar as asserted against the appellants should have been granted (see, Zuckerman v. City of New York, 49 N.Y.2d 557; Soto v. City of New York, 244 A.D.2d 544).
BRACKEN, J.P., THOMPSON, GOLDSTEIN, McGINITY, and SCHMIDT, JJ., concur.