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HENRY LANGAN, ET AL., RESPONDENTS, v. MALOLA CABELA, ET AL., APPELLANTS (AND A THIRD-PARTY ACTION).

DECISION ORDER

ORDERED that the appeal by the defendant Malola Cabela is dismissed, as that defendant is not aggrieved by the portions of the order appealed from (see, CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Eden Orloff is granted, the cross motion is denied, and the complaint insofar as asserted against the defendant Eden Orloff is dismissed; and it is further,

ORDERED that the defendant Eden Orloff is awarded one bill of costs.

The Supreme Court properly concluded that pursuant to a declaration of easement, both the plaintiffs and the defendant Eden Orloff were responsible for the maintenance of the common driveway where the plaintiff Henry Langan allegedly tripped and fell. The court erred, however, in denying that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Orloff. Since the plaintiffs and Orloff had the same duty to maintain the driveway, the plaintiffs cannot recover damages from her for breach of that duty (see, Zimmerman v. Pokart, 242 A.D.2d 202).

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LANGAN v. CABELA
(Feb 5, 2001)