Ordered that the appeal by the plaintiff is dismissed, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,
Ordered that on the appeal by the defendant City of White Plains, the judgment is affirmed; and it is further,
Ordered that the defendant Donald Furtsch is awarded one bill of costs payable by the defendant City of White Plains.
The plaintiff allegedly sustained injuries when she tripped and fell on a raised portion of a public sidewalk adjacent to an apartment building located at 240 Martine Avenue in the City of White Plains. The plaintiff brought the present action against Donald Furtsch (hereinafter the respondent) who owned the apartment building abutting the sidewalk, and the City of White Plains.
The respondent's motion for summary judgment was properly granted. "It is well settled that a landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's premises unless `the landowner created the defective condition or caused the defect to occur because of some special use, or unless a statute or ordinance placed the obligation to maintain the sidewalk upon him'" (Bloch v Potter, 204 A.D.2d 672, 673, quoting Surowiec v City of New York, 139 A.D.2d 727, 728; see, Yass v Deepdale Gardens, 187 A.D.2d 506; Giammarino v Angelo's Royal Pastry Shop, 168 A.D.2d 423, 424; Conlon v Village of Pleasantville, 146 A.D.2d 736, 737). While the placement of a receptacle in the public sidewalk to enable the respondent's apartment building to receive deliveries of heating oil constituted a special use (see, Schechtman v Lappin, 161 A.D.2d 118, 120-121; Santorelli v City of New York, 77 A.D.2d 825), there was no evidence that the receptacle created the condition which caused the plaintiff's fall. Rather, the plaintiff testified that the condition which caused her fall was created by a tree whose roots had apparently raised the concrete flags of the sidewalk. Thus, there was no triable issue of fact as to whether the respondent's "special use" of the sidewalk created the condition which allegedly caused the plaintiff's fall (see, Yass v Deepdale Gardens, supra; Surowiec v City of New York, supra; cf., Schechtman v Lappin, supra; Santorelli v City of New York, supra). Mangano, P.J., Thompson, Friedmann, Florio and McGinity, JJ., concur.