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ALTHOUGH THE ABUTTING PROPERTY OWNER CAN BE LIABLE FOR A SLIP AND FALL CAUSED BY A SIDEWALK DEFECT CREATED BY THE PROPERTY OWNER’S SPECIAL USE, HERE A CURB CUT FOR A DRIVEWAY, A SUBSEQUENT PURCHASER OF THE PROPERTY WHO DOES NOT CONTINUE THE SPECIAL USE WILL NOT BE HELD LIABLE FOR THE DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant property owner was not liable for any sidewalk defects created by the prior owner’s special use (a driveway) because defendant did not continue with that special use:

… [T]he defendants established, prima facie, that the property was a one-family residence that was owner occupied, and used exclusively for residential purposes. Therefore, pursuant to section 7-210(b) of the Administrative Code of the City of New York, the defendants established, prima facie, that they were not liable for dangerous conditions on the sidewalk abutting the property, which they did not affirmatively create, voluntarily but negligently repair, or create through a special use of the sidewalk … . The defendants also met their burden of demonstrating, prima facie, that they did not affirmatively create, voluntarily but negligently repair, or create through a special use of the sidewalk, the alleged hole in curb cut which caused the plaintiff to fall.

In opposition, the plaintiff failed to raise a triable issue of fact. Even assuming, arguendo, that the plaintiff provided competent evidence that a prior owner of the property made a special use of the sidewalk as a driveway, the defendants had no obligation to repair damage to the sidewalk because they did not continue to derive any special benefit from the use of the sidewalk after they purchased the property … . Byrams v Hamilton, 2025 NY Slip Op 00419, Second Dept 1-29-25

Practice Point: In order for a property owner to be liable for a sidewalk defect created by a prior owner’s special use, the current owner must have continued that special use, not the case here.

 

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