Question of Fact About Property Owner’s Liability for Condition of Sidewalk Raised

The Second Department determined a question of fact had been raised about whether a property owner was liable to a pedestrian who allegedly fell because of the condition of the sidewalk.  Because the sidewalk was essentially part of the defendant landowner’s driveway, the sidewalk was subject to “special use” by the landowner which may impose liability for the condition of the sidewalk:

A landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner’s premises unless the landowner either created the defective condition or caused it to occur because of some special use, or unless a statute or ordinance places the obligation to maintain the sidewalk upon the landowner and expressly makes the landowner liable for injuries occasioned by the failure to perform that duty …. It is undisputed that the ordinance at issue in this case does not expressly make the landowner liable for injuries occasioned by a failure to perform the duty of maintaining sidewalks in good repair. Accordingly, the question to be determined is whether the plaintiff raised a triable issue of fact as to whether the individual defendants created the alleged defective condition or caused it to occur because of some special use.  A driveway can constitute a special use of a sidewalk …. Rodriguez v City of Yonkers, 2013 NY Slip Op 03315, 2nd Dept, 5-8-13

SLIP AND FALL