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ROSARIO ROMERO, plaintiff-respondent, v. CITY OF NEW YORK, defendant-respondent, RONG CHEN MO, ET AL., appellants.

DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is 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 tripped and fell on a sidewalk abutting the property of the appellants, Rong Shen Mo and Cui Juan He. An abutting landowner will not be held liable to a pedestrian passing by on a public sidewalk unless the landowner created the defective condition or caused the defect to occur because of some special use ( see Kaufman v. Silver, 90 N.Y.2d 204; Dos Santos v. Peixoto, 293 A.D.2d 566; Gaynor v. City of New York, 259 A.D.2d 733).

Here, the appellants established their entitlement to judgment as a matter of law by demonstrating that they neither created the alleged defective condition nor caused the defect to occur because of some special use ( see Ivanyushkina v. City of New York, 300 A.D.2d 544; Winberry v. City of New York, 257 A.D.2d 618). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether the defect was caused by the appellants' special use of the sidewalk as a driveway ( see Ivanyushkina v. City of New York, supra; Winberry v. City of New York, supra). Accordingly, the Supreme Court should have granted the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

SANTUCCI, J.P., KRAUSMAN, LUCIANO and TOWNES, JJ., concur.

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ROMERO v. CITY OF NEW YORK
(Mar 22, 2004)