Morales v. Sinmar Development Corp. , 748 N.Y.S.2d 151 ( 2002 )

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 4, 2000, which, in an action for personal injuries sustained in a trip and fall caused by a sidewalk defect, denied defendant-appellant property owner’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff claims that the sidewalk crack in question was caused by cars driving on the sidewalk in the course of entering and exiting the vacant lot owned by defendant and used as a parking lot. Defendant claims that plaintiffs deposition testimony, to the effect that he tripped some 10 to 15 feet from the entrance to the lot, which is surrounded by a high iron fence, demonstrates that plaintiff did not trip over the portion of the sidewalk it uses as a driveway to the lot, and that it therefore cannot be liable since, as to the rest of the sidewalk, it is simply an adjacent landowner not responsible for sidewalk maintenance. However, as codefendant City argues, the existence of a curb cut where plaintiff tripped, although some distance away from the parking lot gate, on this spare record raises several possibilities of defendant’s special use of the portion of the sidewalk where plaintiff tripped, including whether such portion was used as an alternative path into and out of the parking lot, or as additional parking space for overflow vehicles. Concur — Nardelli, J.P., Mazzarelli, Buckley, Sullivan and Ellerin, JJ.