Murnan v Town of Tonawanda

Murnan v Town of Tonawanda 2006 NY Slip Op 08483 [34 AD3d 1296] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Beverly Murnan et al., Respondents, v Town of Tonawanda, Defendant, and Kathleen S. Konitsch, as Administrator of the Estate of Helen L. Peters, Deceased, Appellant.

—[*1]

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered September 6, 2005 in a personal injury action. The order, insofar as appealed from, denied that part of the cross motion of defendant Kathleen S. Konitsch, as administrator of the estate of Helen L. Peters, deceased, for summary judgment dismissing the complaint and cross claims against her on the ground that decedent was not negligent.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action alleging that plaintiff Beverly Murnan was injured after tripping and falling on a crack in a sidewalk that was used as part of the driveway of Helen L. Peters (decedent). Supreme Court properly denied that part of the cross motion of Kathleen S. Konitsch (defendant), the administrator of decedent's estate, for summary judgment dismissing the complaint and all cross claims against her on the ground that decedent was not negligent. In support of that part of her cross motion, defendant failed to meet her burden of establishing that decedent, the abutting landowner, "did nothing to either create the [allegedly] defective condition or cause the condition through the special use of [that part of the public sidewalk] as a driveway" (Adorno v Carty, 23 AD3d 590, 591 [2005] [internal quotation marks omitted]; see Katz v City of New York, 18 AD3d 818, 819 [2005]; cf. Torres v City of New York, 32 AD3d 347). Present—Hurlbutt, A.P.J., Kehoe, Smith and Green, JJ.