        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1021
CA 12-01793
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


PATRICIA J. SCHROECK AND GARY SCHROECK,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

DARRYL C. GIES AND DAWN M. GIES,
DEFENDANTS-RESPONDENTS.


GRECO TRAPP, PLLC, BUFFALO (DUANE D. SCHOONMAKER OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

LAW OFFICES OF EPSTEIN, GIALLEONARDO & HARTFORD, GETZVILLE (JENNIFER
V. SCHIFFMACHER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered May 31, 2012. The order granted the motion of
defendants for summary judgment dismissing the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries that plaintiff Patricia J. Schroeck sustained when she
tripped and fell on an allegedly uneven sidewalk that crossed the
driveway of defendants, the abutting landowners. Supreme Court
properly granted defendants’ motion for summary judgment dismissing
the amended complaint.

     “Generally, liability for injuries sustained as a result of
negligent maintenance of or the existence of dangerous and defective
conditions [on a] public sidewalk[] is placed on the municipality and
not the abutting landowner” (Hausser v Giunta, 88 NY2d 449, 452-453;
see Davison v City of Buffalo, 96 AD3d 1516, 1517). That rule does
not apply, however, if there is an ordinance or municipal charter that
specifically imposes a duty on the abutting landowner to maintain and
repair the public sidewalk and provides that a breach of that duty
will result in liability for injuries to the users of the sidewalk;
the sidewalk was constructed in a special manner for the use of the
abutting landowner; the abutting landowner affirmatively created the
defect; or the abutting landowner negligently constructed or repaired
the sidewalk (see Hausser, 88 NY2d at 453; Oswald v City of Niagara
Falls, 13 AD3d 1155, 1156; Schiavone v Palumbo, 177 AD2d 1045, 1045-
1046).
                                 -2-                          1021
                                                         CA 12-01793

     We conclude that defendants met their initial burden on their
motion by establishing their entitlement to judgment as a matter of
law (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
It is undisputed that the applicable town code does not impose
liability on defendants for injuries to users of the public sidewalk
abutting their property. Furthermore, the testimony and affidavits
submitted by defendants in support of their motion established that
the sidewalk was not constructed in a special manner for their
benefit, that they did not affirmatively create the defect, and that
they did not negligently construct or repair the sidewalk. Notably,
defendants’ submissions established that the sidewalk was constructed
by the builder of defendants’ development, who laid it in continuation
of the sidewalk on the properties neighboring defendants’ property in
both directions, and that defendants did not request that the sidewalk
be constructed and had no input into its construction. Contrary to
plaintiffs’ further contention, defendants established that they did
not affirmatively create the defect by any alleged special use of the
sidewalk as a driveway (see Guadagno v City of Niagara Falls, 38 AD3d
1310, 1311; see also Campos v Midway Cabinets, Inc., 51 AD3d 843, 844;
Katz v City of New York, 18 AD3d 818, 819; Dufrane v Robideau, 214
AD2d 913, 914). In opposition, plaintiffs failed to raise an issue of
fact sufficient to defeat the motion (see Zuckerman, 49 NY2d at 562).




Entered:   October 4, 2013                     Frances E. Cafarell
                                               Clerk of the Court
