| Campos v Midway Cabinets, Inc. |
| 2008 NY Slip Op 04640 [51 AD3d 843] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Maria Del Carmen Campos, Respondent, v MidwayCabinets, Inc., Appellant. |
—[*1] Bader, Yakaitis & Nonnenmacher, LLP, New York, N.Y. (Darlene S. Miloski of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Queens County (Elliot, J.), datedDecember 21, 2006, as, upon renewal, adhered to its prior determination in an order dated July13, 2006, denying the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly sustained injuries when she slipped and fell on a patch of ice on apublic sidewalk in front of a warehouse in which the defendant was a tenant. The accidentoccurred prior to the effective date of Administrative Code of the City of New York §7-210, which places upon certain landowners the obligation to maintain sidewalks in a safecondition and imposes liability upon such landowners for injuries caused by their failure to do so(see Torres v City of New York, 32AD3d 347, 348 n 2 [2006]). Thus, the defendant may be held liable for the alleged defect inthe sidewalk only if it "either created the defective condition or caused the defect to occurbecause of a special use" (Breger v City of New York, 297 AD2d 770, 771 [2002]; see Nunez v City of New York, 41AD3d 677 [2007]; Dos Santos v Peixoto, 293 AD2d 566 [2002]).
The use of a sidewalk as a driveway "constitutes a special use" (Katz v City of New York, 18 AD3d818, 819 [2005]; see Nunez v City of New York, 41 AD3d at 678; Breger v Cityof New York, 297 AD2d at 771). Where a defect that causes an accident "occurs in a part ofthe sidewalk which is used as a driveway, the abutting landowner, on a motion for summaryjudgment, bears the burden of [*2]establishing that he or she did'nothing to either create the defective condition or cause the condition through' the special use ofthe property as a driveway" (Katz v City of New York, 18 AD3d at 819, quotingBreger v City of New York, 297 AD2d at 771; see Adorno v Carty, 23 AD3d 590, 591 [2005]).
In support of its renewed motion for summary judgment in this case, the defendant failed toestablish that the allegedly defective condition that caused the plaintiff's accident was not locatedon the portion of the sidewalk which it used as a driveway, and failed to establish that it didnothing to cause that condition through its special use of the property as a driveway (seeNunez v City of New York, 41 AD3d at 678; Adorno v Carty, 23 AD3d at 591).Thus, the defendant did not make a prima facie showing of its entitlement to judgment as amatter of law, and, upon renewal, its motion for summary judgment was properly denied.Prudenti, P.J., Miller, Carni and Chambers, JJ., concur.