Opinion
Argued January 3, 2000
February 24, 2000
In an action to recover damages for personal injuries, the defendant Kively Christakos appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated March 12, 1999, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.
Paul Sommer, New York, N.Y., for appellant.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and Kathleen J. Cahill of counsel), for defendant City of New York.
GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, DANIEL W. JOY, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the defendant Kively Christakos.
"It is well settled that the owner or lessee of land abutting a public sidewalk owes no duty to the public to keep the sidewalk in a safe condition unless the landowner or lessee creates a defective condition in the sidewalk or uses it for a special purpose" (Otero v. City of New York, 213 A.D.2d 339, 339-340 ; see,Miller v. City of New York, 253 A.D.2d 394, 395 ; see also, Paula v. City of New York, 249 A.D.2d 100 ). In the present case, the appellant established her right to judgment as a matter of law by submitting an affidavit in which she asserted, among other things, "[n]either I, nor anyone on my behalf, created the alleged defective condition on the public sidewalk, performed any repair upon the public sidewalk prior to the alleged occurrence, [or] made any `special use' of the subject sidewalk". This assertion is consistent with the appellant's deposition testimony. In opposition, the plaintiff failed to establish the existence of a triable issue of fact (cf., Rufino v. Colella, 215 A.D.2d 223 ;Morrissey v. City of New York, 248 A.D.2d 294 ).