| Romano v Leger |
| 2010 NY Slip Op 03427 [72 AD3d 1059] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Michael Romano, Jr., Respondent, v Stanley Leger et al.,Defendants, and Dorothy Siniscalchi, Appellant. |
—[*1] Gruenberg & Kelly, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Dorothy Siniscalchiappeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered June 15, 2009,which denied her motion for summary judgment dismissing the complaint insofar as assertedagainst her.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantDorothy Siniscalchi for summary judgment dismissing the complaint insofar as asserted againsther is granted.
The plaintiff allegedly was injured when he tripped and fell on an alleged defect in asidewalk located on land owned by the Village of Lynbrook. The section of the sidewalk wherethe plaintiff allegedly tripped and fell abutted property owned by the defendant DorothySiniscalchi, and the parties do not dispute that the alleged defect was created by the growth ofthe roots of a tree located on Siniscalchi's property.
An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalkonly when the owner either created the condition or caused the defect to occur because of aspecial use, or when a statute or ordinance places an obligation to maintain the sidewalk on theowner and expressly makes the owner liable for injuries caused by a breach of that duty (seeSimmons v Guthrie, 304 AD2d 819 [2003]; Meyer v Guinta, 262 AD2d 463 [1999];Winberry v City of New York, 257 AD2d 618 [1999]).
In support of her motion for summary judgment, Siniscalchi established that she did notbreach a statutory duty to maintain the sidewalk, she did not affirmatively create the conditionwhich allegedly caused the plaintiff to fall, and she made no special use of the sidewalk wherethe plaintiff allegedly fell (see Picone v Schlaich, 245 AD2d 555 [1997]). Even if thegrowth of the underground roots of the tree on her property undermined the sidewalk on the landabutting her property, under these circumstances, she is not liable for the plaintiff's injury(see Simmons v Guthrie, 304 AD2d 819 [2003]; Gomez v City of New York,238 AD2d 472 [1997]). Additionally, although the applicable provisions of the Village ofLynbrook Code require a property owner to pay for repairs to the abutting sidewalk, it isundisputed that those provisions [*2]do not shift tort liability tothe property owner. Therefore, the Supreme Court should have granted Siniscalchi's motion forsummary judgment dismissing the complaint insofar as asserted against her (see Jackson v Thomas, 35 AD3d666 [2006]). Skelos, J.P., Santucci, Lott and Sgroi, JJ., concur.