Moscato v. City of New York

Mar 14, 2005
Versions:16 A.D.3d 470
792 N.Y.S.2d 104
2005 N.Y. App. Div. LEXIS 2584

In an action to recover damages for personal injuries, etc., the defendants Antonio Urgese and Maria Urgese appeal from so much of an order of the Supreme Court, Queens County (Flug, J.), dated December 8, 2003, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellants, homeowners whose property abutted a public sidewalk, failed to make a prima facie showing that they did not create the allegedly defective condition through an affirmative act of negligence or through a special use of the sidewalk (see Hausser v Giunta, 88 NY2d 449 [1996]; Rene v Union Gardens Coop., Section 1, 299 AD2d 471, 472 [2002]; Dos Santos v Peixoto, 293 AD2d 566 [2002]; cf. Kaufman v Silver, 90 NY2d 204, 207 [1997]; Romero v City of New York, 5 AD3d 657 [2004]; Jeanty v Benin, 1 AD3d 566, 567 [2003]; Ivanyushkina v City of New York, 300 AD2d 544 [2002]; Benenati v City of New York, 282 AD2d 418, 419 [2001]). Accordingly, their motion was properly denied, regardless of the sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The appellants’ remaining contentions are without merit.

H. Miller, J.P., Crane, Spolzino and Fisher, JJ., concur.