Ordered that the order is modified, on the law, by deleting the provisions thereof which granted the motion of the defendants Diedrich Monsees and Elfriede Monsees for summary judgment and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with costs to the defendants Mario Perron and Guiseppe Perron, payable by the plaintiff.
The instant action to recover damages is based on the fall of the plaintiff on a sidewalk in front of 74-17 Metropolitan Avenue, which was the storefront of a building owned by Diedrich Monsees and Elfriede Monsees and leased to Mario Perron and Guiseppe Perron, d/b/a AJ Fruit Market.
It is now well settled that absent a finding of any special use or control, an owner or occupier of abutting property owes no duty of care to others to warn them of a defective or dangerous condition (see, e.g., Pensabene v. Incorporated Vil. of Val. Stream, 202 A.D.2d 486; De Rico v. Duncan, 200 A.D.2d 823; Gibson v. Veley, 192 A.D.2d 826; Conlon v. Village of Pleasantville, 146 A.D.2d 736). However, by repairing the abutting sidewalk, an owner or occupier may create a dangerous condition (see, Botfield v City of New York, 162 A.D.2d 652; Tambaro v. City of New York, 140 A.D.2d 331; City of New York v. Kalikow Realty Co., 132 A.D.2d 481), which would militate against granting summary judgment (see, Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 A.D.2d 572).
Based on the evidence before the Supreme Court, which includes deposition testimony and photographic evidence, it is clear that neither the defendants Mario Perron or Guiseppe Perron nor AJ Fruit Market exercised any control over the abutting sidewalk. However, there is evidence in the record that the sidewalk in question was being repaired at the time of the accident by a contractor hired by the defendants Diedrich Monsees and Elfriede Monsees, the owners of the abutting premises, and there is a question of fact as to whether the repair work caused a defect in the sidewalk. Depending on the circumstances of the case, the Monsees could be held vicariously liable for such a defect. O'Brien, J.P., Pizzuto, Joy and Krausman, JJ., concur.