In May, the Supreme Court Appellate Division, Second Department, reversed a finding of summary judgment for the defendants in a Yonkers premises liability case. The claim arose after an incident in which the plaintiff tripped over a cracked sidewalk that adjoined the defendant’s property.
The Supreme Court, in its ruling in favor of the defendants’ summary judgment motion, found that the deposition testimony of one of the defendants established that neither he nor his fellow landowners created or caused the defect in the sidewalk. Plaintiff’s opposition papers included photographs of the scene depicting more than one crack in the sidewalk adjacent to the area that defendants had been using as a driveway.
The Second Department agreed with the defendants that a landowner is not expressly liable for third party injuries sustained as a result of failure to maintain the sidewalk. Thus the Department’s ruling hinged on whether or not the defendants created the defect in the sidewalk. It is not up to the Appellate Division to determine if the defendants caused the defect in the sidewalk. Rather, it must determine only if the plaintiff raised a triable issue of fact as to if the defendants may have caused the defect. Here, relying on testimony provided by the plaintiff’s expert. the Second Department ruled that an issue of fact was raised by the plaintiff. As such, the Supreme Court’s finding of summary judgment for the defendants was reversed.