Hinkley v. City of New York

—In an action to recover damages for personal injuries, etc., the defendant Tennes I. Erstad appeals from an order of the Supreme Court, Kings County (Greenstein, J.), dated September 28, 1995, which denied his motion for summary judgment dismissing the complaint insofar as it is asserted against him. Justice Florio has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]). Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed. The plaintiff Joseph Hinkley allegedly fell and sustained personal injuries as a result of a defective sidewalk near the boundary adjoining the properties of the appellant and the defendant Raymond McKaba. Upon McKaba’s prior appeal from an order denying his motion for summary judgment, this Ctiurt reversed the order and granted McKaba’s motion, finding that the injured plaintiff tripped on an uneven section of sidewalk which was the result of pressures exerted by the roots of a curbside tree (Hinkley v City of New York, 225 AD2d 665; see, Gaboff v City of New York, 197 AD2d 560; Surowiec v City of New York, 139 AD2d 727). Upon the instant appeal, the appellant Tennes I. Erstad has established to our satisfaction that he likewise did nothing to create the condition which allegedly caused the injured plaintiff’s fall, and the plaintiffs have failed to adduce any persuasive evidence to the contrary. Therefore, we find that the appellant has demonstrated his entitlement to judgment as a matter of law dismissing the complaint as against him (see, Hinkley v City of New York, supra). Miller, J. P., Altman, Krausman and Florio, JJ., concur.