WHEN INJURY IS CAUSED BY SIDEWALK PORTION OF DRIVEWAY, BURDEN IS ON
LANDOWNER TO PROVE LACK OF NEGLIGENCE
Adorno v. Carty and City of New York (Index No. 15755/02) (2d Dept
This was an appeal from a denial of summary judgment to the
The infant plaintiff was injured when the front wheel of the scooter
he was riding struck an alleged defect in the sidewalk, causing him
to fall. The alleged defect was located in a portion of the sidewalk
which provides access to the appellants' common driveway.
"The appellants' use of the sidewalk constituted a special use," held
the Appellate Division. "Where a sidewalk is adjacent to but not part
of the area used as a driveway, the plaintiff bears the burden of
proof on a motion for summary judgment of showing that the special
use of the sidewalk contributed to the defect. However, if the defect
is in the portion of the sidewalk used as a driveway, the abutting
landowner, on a motion for summary judgment, bears the burden of
establishing that he or she did 'nothing to either create the
defective condition or cause the condition through' the special use
of the property as a driveway.' If the weight of traffic on the
driveway could have been a concurrent cause of the defect, the motion
for summary judgment should be denied."
"In this case, the appellants failed to meet their burden of
establishing that their special use of the sidewalk did not
contribute to the allegedly defective condition. Accordingly, summary
judgment was properly denied."