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Hinkley v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Mar 18, 1996
225 A.D.2d 665 (N.Y. App. Div. 1996)

Opinion

March 18, 1996

Appeal from the Supreme Court, Kings County (Greenstein, J.).


Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendants is severed.

The plaintiff allegedly fell and sustained personal injuries as a result of a defective sidewalk near the boundary adjoining the properties of the appellant and the defendant Tennes I. Erstad. Upon the appellant's motion for summary judgment, the Supreme Court held that there were issues of fact concerning the precise location of the allegedly defective condition in relation to the property line. We disagree.

The law is well settled that an abutting landowner will not be liable for injuries sustained by a pedestrian passing on a public sidewalk unless a statute or ordinance expressly obligates the landowner to maintain the sidewalk and imposes tort liability, or the landowner has created the defective condition or has caused it to arise as a result of his putting the sidewalk to a special use (see, Landau v Town of Ramapo, 207 A.D.2d 384; Mendoza v City of New York, 205 A.D.2d 741; Bloch v Potter, 204 A.D.2d 672). In the instant case, the appellant offered evidence that he had not done anything to create the alleged defective condition of the sidewalk which, according to the plaintiff's bill of particulars and deposition, was the result of pressures exerted by the roots of a curbside tree (see, Gaboff v City of New York, 197 A.D.2d 560; Surowiec v City of New York, 139 A.D.2d 727). Accordingly, the appellant has demonstrated his entitlement to judgment as a matter of law. Mangano, P.J., Miller, Altman and Friedmann, JJ., concur.


Summaries of

Hinkley v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Mar 18, 1996
225 A.D.2d 665 (N.Y. App. Div. 1996)
Case details for

Hinkley v. City of New York

Case Details

Full title:JOSEPH HINKLEY et al., Respondents, v. CITY OF NEW YORK, Defendant, TENNES…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 18, 1996

Citations

225 A.D.2d 665 (N.Y. App. Div. 1996)
639 N.Y.S.2d 479

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