IN THIS SIDEWALK-CRACK SLIP AND FALL CASE, THE CRACK LED TO THE COMMERICAL DEFENDANT’S CELLAR DOOR; DEFENDANT DEMONSTRATED IT DID NOT HAVE ANY RESPONSIBILITY FOR MAINTENANCE OF THE SIDEWALK; DEFENDANT NEED NOT PRESENT AFFIRMATIVE EVIDENCE IT DID NOT MAKE SPECIAL USE OF THE SIDEWALK TO BE ENTITLED TO SUMMARY JUDGMENT; PLAINTIFF FAILED TO PRESENT ANY EVIDENCE OF DEFENDANT’S SPECIAL USE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT)..

The First Department, in a full-fledged opinion by Justice Friedman, over an extensive dissenting opinion, determined the commercial tenant, which had no responsibility to maintain the adjacent sidewalk, was entitled to summary judgment in this sidewalk slip and fall. The sidewalk crack which caused plaintiff to trip extended to the commercial tenant’s cellar door. Supreme Court and the dissent argued that the commercial tenant needed to present affirmative proof its use of the sidewalk did not cause the crack. The majority disagreed, holding that the plaintiff must come forward with proof of the commercial tenant’s special use of the sidewalk, which plaintiff failed to do.

… [N]o expert evidence has been presented to draw a causal connection between the cellar door and the crack, nor has evidence been presented that the commercial tenant made any “special use” … of the portion of the sidewalk where the injuries were incurred. Nonetheless, on this record, the dissent would deny the commercial tenant summary judgment on the ground that the tenant could not affirmatively prove a negative proposition — namely, that none of its activities was a cause of the sidewalk defect on which plaintiff tripped five years before the summary judgment motion was made. We disagree with this approach.

In our view, as more fully described below, in this context, the commercial tenant — which moved for summary judgment after the close of discovery — carried its burden of establishing its prima facie entitlement to judgment by showing that it had no legal or contractual duty to keep the sidewalk in good repair. It then became plaintiff’s burden to come forward with evidence tending to show that some affirmative act of the commercial tenant at least contributed to the causation of the crack in the sidewalk. Plaintiff failed to come forward with any such evidence, instead relying on speculation about the crack’s causation based solely on the crack’s proximity to the commercial tenant’s cellar door, as shown in a photograph. Nor did plaintiff come forward with any evidence showing that the commercial tenant made any special use of the portion of the sidewalk on which she was injured. We hold that this was not sufficient to raise a triable issue of fact. Accordingly, we reverse the order appealed from and grant the commercial tenant summary judgment dismissing the complaint as against it. Fuentes v Parkchester S. Condominium, Inc., 2026 NY Slip Op 03920, First Dept 6-23-26

Practice Point: In a sidewalk-crack slip and fall, once a defendant demonstrates it has no responsibility for maintaining the sidewalk it need not go on to present evidence it did not make special use of the sidewalk. It is the plaintiff which must present evidence of defendant’s special use to defeat defendant’s summary judgment motion.

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