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Two homeowners of Elmont, New York made a motion in Court

Two homeowners of Elmont, New York made a motion in Court for an Order, granting summary judgment in their favor on the grounds that they did not owe an obligation to the plaintiff with respect to the condition of the public sidewalk adjacent to their property, nor did they create the alleged defective and dangerous condition, or make special use of the sidewalk. The Defendants Homeowners also request dismissal of plaintiff’s complaint and all cross claims. The Plaintiff naturally opposes the requested relief.

The defendant homeowners and the plaintiff reside near each other in New York. The incident occurred in front of the defendants’ sidewalk. After the plaintiff exited the front passenger side of her car, which was parked in front of the defendant homeowners’ residence. As the plaintiff began to walk to her residence, she tripped and fell on a piece of concrete located at the upper right-hand corner of a small grassy and mulched area where a tree had once stood. The Plaintiff claims that the concrete chunk that allegedly caused plaintiff to fall is attached to, and is part of, the concrete sidewalk area adjacent to defendant homeowners’ property.

Records revealed that prior to the incident, the Town removed a tree from the grassy area and removed its stump based on the defendant homeowners’ complaint that the tree was dead and posed a danger to passersby. Aside from the removal of the tree and its stump, no sidewalk inspection was performed by the Town until after plaintiff filed her notice of claim following this incident. Additionally, neither the homeowners, nor the plaintiff, made any complaints to the Town about the sidewalk area prior to plaintiff’s fall. The homeowners testified at their respective depositions that they did not know when the defect in question first appeared, but that they used their driveway and walked on the sidewalk on a regular basis and never encountered a problem. The homeowners also did not place the red mulch on the grassy area, which plaintiff alleges made it extremely difficult to see the protruding chunk of concrete.
The plaintiff initiated the action for personal injuriesallegedly sustained in an area where a tree had previously been removed by the Town of Hempstead. The Plaintiff contends that the defendant homeowners owed a duty to the plaintiff, and to the general public, to maintain the sidewalk abutting their property in a safe and proper manner, and that they failed to do so by creating, or permitting to exist, a defective and dangerous condition. An obligation is imposed on the adjacent landowner to repair sidewalks when directed to do so by the Town, at the landowner’s expense. The ordinance does not, however, impose unlawful act liability upon the adjacent to landowner for injuries caused by a breach of that obligation.

It is well recognized that the summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no issues capable of trial. Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, the plaintiff.

The Town’s Code defines the term sidewalk as including all land lying between the curb line of the public highway and the building line of the premises abutting thereon which has been surfaced or improved with concrete or other paving material. The Plaintiff’s reliance on the testimony of a sidewalk inspector for the Town, that the area where the plaintiff tripped and fell is not part of the sidewalk, is unavailing and inadmissible. He testified that he based his determination that the area between the sidewalk and the curb is not part of the public thoroughfare on the way he was trained. Aside from his training, he did not provide any factual basis for his determination. The Plaintiff has also failed to offer any other evidence establishing that the area where she fell is not part of the sidewalk.

Specifically, in cases where a pedestrian trips and falls because of an alleged defect in a public sidewalk, the adjacent to landowner will be liable to the pedestrian only when the landowner created the defective condition, or caused the defect to occur because of some special use of the sidewalk, or when a statute or ordinance placing the obligation to maintain the sidewalk on the landowner expressly makes the landowner liable for damages caused by failure to perform that duty. The ordinance does not, however, impose tort liability upon the abutting landowner for damages caused by a breach of that obligation plus the fact that the plaintiff has herself established that the area where she fell is part of the sidewalk within the meaning of the Town’s Code.

The defendants having established their entitlement to summary judgment as a matter of law, the burden now shifts to Plaintiff to raise issues capable of trial with respect to special use of the sidewalk and/or the creation of a dangerous condition by the defendant homeowners. The Plaintiff has failed to meet her burden. There is no evidence that the homeowner defendants created the alleged defective and dangerous condition, or that they engaged in a special use of the sidewalk.

The Plaintiff’s allegation that the homeowners created the dangerous and defective condition by having a dead tree removed from their sidewalk area, which is in and of itself a dangerous condition, is unsupported and is speculative. The Plaintiff’s reliance on the testimony of the engineer, who determined that the tree should be removed, is inadmissible.

There is also no evidence submitted by plaintiff that the defendant homeowners made a special use of, or derived a special benefit from, the sidewalk in front of their home. Where a sidewalk is adjacent to but not part of the area used as a driveway, the plaintiff bears the burden of proof on a motion for summary judgment of showing that the special use of the sidewalk contributed to the defect. The area where plaintiff tripped and fell on the chunk of concrete is adjacent to, but not part of the area of the sidewalk used as a driveway.
The Plaintiff confirms in her affidavit that the location of the extended piece of concrete is adjacent to the homeowners’ driveway, not part of the area used by the defendants as a driveway. Thus, the fact that the defendants used their driveway on a regular basis has no bearing on this issue, and plaintiff has not sustained her burden of proof.

The Plaintiff’s remaining contention that the defendants were negligent in failing to discover, warn or remedy the alleged defective condition at their premises is dismissed in light of the foregoing determination of the Court that plaintiff’s trip and fall occurred on the sidewalk in front of defendants’ home, in conjunction with the fact that the Town’s Code does not impose unlawful act of liability on homeowners regarding the sidewalks adjacent to their property.
The defendants’ motion for summary judgment is granted in its entirety and the complaint and all cross claims as against them are dismissed.

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