Kent v. City of New York , 725 N.Y.S.2d 896 ( 2001 )

—In an action to recover damages for personal injuries, etc., the defendant Margot Ganger appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated November 29, 2000, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

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 appellant, and the action against the remaining defendant is severed.

In the absence of evidence that an abutting landowner made special use of a sidewalk or created or caused an alleged defective condition, the property owner is not liable for injuries sustained by an individual who falls on the sidewalk (see, Muhlon v Surf Operating Co., 255 AD2d 370; Surowiec v City of New York, 139 AD2d 727). The evidence submitted by the appellant, including photographs of the accident scene, established a prima facie case (see, CPLR 3212 [b]) that she did nothing to create or cause the alleged defective condition of the sidewalk, and that she made no special use thereof. The evidence submitted by the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212 [b]). Therefore, the appellant’s motion should have been granted. Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.