Plaintiffs, Defendants. The following papers having been read on this motion:

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: ANTONIO I. BRANBVFEN J. S. C. MARJORIE PRESTYLY and VINCENT PRESTYLY, - against - Plaintiffs, THE INCORPORATED VILLAGE OF GARDEN CITY, JOHN EGGERS and ADELE EGGERS, TRIAL/IASPART NASSAU COUNTY Index No /98 Motion Sequence Nos. 01 and 02 Defendants. The following papers having been read on this motion: Notice of Motion, Affidavits, & Exhibits Notice of Cross Motion , Answering Affidavits Replying Affidavits Briefs: Plaintiffs / Petitioner s Defendant s / Respondent s The defendants move for orders granting summary judgment pursuant to CPLR 3212, dismissing the plaintiffs complaint because it fails to state a cause of action. The plaintiff opposes these defense motions. On September 14, 1997, the plaintiff Marjorie Prestyly took an evening stroll with her spouse from their home to a spot in front of the defendant private property owners home at 20 St. Paul s Place, Garden City, New York where the plaintiff allegedly caught her shoe on an uneven portion of the sidewalk slabs. The plaintiff allegedly fell causing injuries. It appeared that tree growth caused the plaintiff to trip and fall. Incorporated Village of Garden City planted the trees there and the defendant Page 1 of 6 Pages

2 private property owners never repaired that sidewalk nor maintained the trees. The only complaint for this sidewalk location filed with the defendant Incorporated Village of Garden City was registered by the plaintiffs after the plaintiff Marjorie Prestyly s alleged accident. The defendant private property owners first became aware of the Marjorie Prestyly s accident when someone from the Incorporated Village of Garden City came to their home in December 1997 to inspect the sidewalk defect. On December 16, 1997, the Incorporated Village of Garden City mailed a notice of the inspection findings and repair the condition to the defendant private property owners. That notice also informed the defendant private property owners for the first time that the Incorporated Village of Garden City would perform the repair work if the defendant private property owners and seek reimbursement from them. On December 12, 1997, the plaintiffs filed a notice of claim against The Incorporated Village of Garden City. On July 27, 1998, the plaintiffs commenced the instant action seeking damages. The defendant Incorporated Village of Garden City and the private property owners subsequently served their answers to the plaintiffs complaint. The plaintiff Majorie Prestyly claims injuries from the trip and fall while walking on the sidewalk abutting the defendant private property owners home as a result of the defendant property owners negligence. The plaintiffs claim defendants were aware of the cracked sidewalk and its uneven slabs caused by tree roots. Summary judgment must be awarded if it is clear that there is no bona fide issue of fact and a defense can be shown which requires the Court to direct judgment as a matter of law (CPLR 3212 [b]; Andre v. Pomeroy, 35 NY2d 361). Such a judgment is a potent remedy and the motion Court should carefully review the parties submissions before granting such relief (Rotuba Extruders v. Ceppos, 46 NY2d 223,23 1). It is now manifest statutory law in this jurisdiction that without a showing that a village government affirmatively created a defective sidewalk condition, it is incumbent upon the plaintiff here to establish as a condition precedent to this lawsuit that the Page 2 of 6 Pages

3 defendant Incorporated Village of Garden City received prior written notice of that defective condition and was given reasonable time to cure it (Village Law $ 6-628; Poirer v. City of Schenectady, 85 NY2d 3 10,3 13; Monteleone v. Incorporated Village of Floral Park, 74 NY2d 917,918); Kitchen v. Incorporated Village of Freeport, 223 AD2d 53 1). The defendant Incorporated Village of Garden City came forth with proof that it had not received such notice. On April 12,2000, Andrzej Kempisty, a construction inspector employed in the Incorporated Village of Garden City, Department of Public Works since 1974, testified at an examination before trial in this matter. When questioned by the plaintiffs attorney, Kempisty testified that particular agency s responsibility is to deal with sanitation, street and water which includes the sidewalks within the Incorporated Village of Garden City. Kempisty, who is familiar with the subject area, remembered receiving notice after the date of this alleged accident from an insurance carrier about someone tripping and falling on the sidewalk there. Kempisty checked the complaint records of the Department of Public Works regarding this particular sidewalk and found no complaints. Kempisty went to 20 St. Paul s Place on December 16, 1997, some time after the alleged incident, to inspect the sidewalk condition. These circumstances coupled with the plaintiffs notice of claim were the only notice that the defendant Incorporated Village of Garden City received about the sidewalk condition. Since the defendant Incorporated Village of Garden City met its burden of going forward, it is the plaintiffs obligation to prove notice was received by the local government (see, Lazzari v. Village of Bronxville, 228 AD2d 652,653; Giganti v. Town of Hempstead, 186 AD2d 627, 628. The plaintiffs have not met their burden on this summary judgment motion. Moreover, the mere assertion within plaintiffs counsel s affirmation that the defendant Incorporated Village of Garden City received notice does not create a triable issue of fact and is insufficient to defeat a summary judgment motion (Amarante v. Village of Tarrytown, 226 AD2d 448; Sloan v. Village of Hempstead, 223 Page 3 of 6 Pages

4 AD2d 632,633; Tyschak v. Incorporated Village of Westbury, 193 AD2d 670,671). A careful review by this Court reveals there are no triable issues of fact as to the defendant Incorporated Village of Garden City. CSX Corp., 115 A.D.2d 3 10) It is well-settled law that: A landowner will not be liable to a pedestrian injured by defect in a public sidewalk abutting the landowner s premises unless the landowner either created the defective condition or caused it to occur because of some special use or unless a statute or ordinance places the obligation to maintain the sidewalk upon the landowner and expressly makes the landowner liable for injuries occasioned by the failure to perform that duty [citations omitted] Brun v. City of Yonkers, 269 AD2d 346 In Brun, which is analogous to the present circumstances, a pedestrian brought an action against the City Yonkers and an adjacent home owner seeking recovery for injuries sustained when the pedestrian tripped and fell on a public sidewalk in front of the private residence. This Court reviewed the parties papers here on the defendant private property owners cross motion for summary judgment. The plaintiffs fail to show they met any of the Brun prerequisites. The plaintiffs have not shown that the defendant homeowners created this sidewalk condition (see, A.D.2d 385). A landowner has no common-law duty to control the property vegetation for the benefit of users of a public sidewalk (see, Rosen, 187 An owner of property abutting a public sidewalk does not, only by being an abutting owner, have a duty to maintain that sidewalk in a safe condition (see, Cadillac Fairview Shopping Ctrs., U.S., 235 Zawacki v. Town of N. Hempstead, 184 A.D.2d 697; see also, Claudio v. Incorporated Vii of Patchogue, 235 A.D.2d 487,488; see also, McSweeney v. Rogan, 209 Picone v. Schlaich, 245 AD2d 555). The plaintiffs have not shown that the defendant homeowners caused this sidewalk Page 4 of 6 Pages A.D.2d 399, 88 ALR.2d 331, $3; 65 NY Jur. 2d $447). Moreover, even if the defendant private land owners planted the tree in question, the mere planting of a curbside tree does not by itself constitute negligence (see, Ingenito v. A.D.2d 386; Loforese v. Krotz v.

5 condition to occur because of some special use (see, Parros v. Assad, 212 AD2d 520). Nor is there anything to show the defendant private property owners exacerbated the condition of the sidewalk (see, Solarte v. DiPalmero, 262 A.D.2d 477; Picone v. Schlaich, 245 AD2d 555). The plaintiffs have not shown that the defendant homeowners caused this sidewalk condition to occur because of some special use (see, Parros v. Assad, 2 12 AD2d 520). The legal precept of special use is set aside for circumstances where landowner s property abuts public sidewalk and the landowner derives special benefit from that property unrelated to public use. Generally, such special use involves sidewalk installation of some object or construction variance, such as elevated restaurant doorway where the sidewalk concrete step is mounted immediately beneath it, theaters marquee has of terrazzo tile placed underneath it, rails are installed in a sidewalk to ease refuse removal, heating oil pipe location for a driveway cut-out (see, Margulies v. Frank, 228 A.D.2d 965). Here, the plaintiffs theory of the case is not that the alleged accident was caused by the defendant private owners failure to properly maintain the public sidewalk which provided the defendant private owners with a special benefit, such a vault underneath the sidewalk. There are no issues of fact which exist as to whether the defendant private owners negligently failed to maintain some special use in good repair, and to correct any structural defect in that special use which might have caused the portion of the sidewalk to become uneven (c$, McKinney s Uncons Laws of NY [3] [a]; see also, Pouso v. City of New York, 177 AD2d 560,562; O Brien v Christy, 142 Mist 2d 1069). Under the Code of the Town of Hempstead, NY 6 18 l- 10,184-6, it is the duty of every Village of Garden City home owner to repair the sidewalk in front of or adjacent to such premises damaged by tree roots there, whether or not within the property line or sidewalk area. While the Town of Hempstead and the Incorporated Village of Garden place an obligation to maintain the sidewalk upon the defendant homeowners, the Town of Hempstead and the Incorporated Village of Garden do not expressly make the Page 5 of 6 Pages

6 homeowners liable for injuries occasioned by the failure to perform that duty (see, Picone v. Schlaich, supra; Bachman v. Town of North Hempstead, 245 AD2d 327). In addition, the Incorporated Village of Garden City can only bill adjacent homeowners to such public sidewalks for the cost of sidewalk repairs. The Incorporated Village of Garden City has no power to impose civil liability for this condition upon the defendant private property owners. It is settled law that in the absence of statutory law imposing liability on the homeowner, the abutting private property holder can only be held liable if that homeowner created the public sidewalk condition or caused that defect to occur because of some special use (Carbone v. Pathrose, 236 AD2d 352; Gianna v. Town of Islip, 230 AD2d 824; Figueroa v. City of New York, 227 AD2d 373). The plaintiffs have not met their burden here. There are no triable issues of fact as to the defendant private property owners. Accordingly, the defense motions for summary judgment are granted in all respects. The complaint is dismissed. Order filed. Dated: January 29,200l Page 6 of 6 Pages