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The Rogak Report: 01 Dec 2005 *Sidewalks - Driveways - Special Use*

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  • Lawrence Rogak
    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.
    Message 1 of 1 , Dec 1, 2005
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      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
      2005)

      This was an appeal from a denial of summary judgment to the
      defendants.

      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."

      Larry Rogak
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