Joseph Ades,                                                                                   Dated: March 24, 2000
                                              Plaintiff,

                  -against-                                                                          Index Number..............28391/97

The City of New York, Mary Ann Lee, Lai-                                   Motion Date................1/4/00
Shun Lee, Ha-Fei Lee and Garden Towns
Mart, Inc.,                                                                                         Motion Cal. Number..12

This is a motion by the defendants Mary Ann, Lai-Shun and Ha-Fei Lee, and Garden Towns Mart., Inc., for summary judgment. For the reasons that follow, the motion is denied.

This is a sidewalk trip-and-fall case, in which the plaintiff alleges that he fell due to a cracked and defective condition in the sidewalk immediately adjoining cellar doors built into the sidewalk, which allow the movants access from the sidewalk to the cellar of their storefront premises.

The law is well settled that an abutting landowner will not be liable to a pedestrian passing by on a public sidewalk unless the landowner negligently repaired the sidewalk or created the defect in the sidewalk that caused the accident (D'Ambrosia v City of New York, 55 NY2d 454; Belmonte v City of New York, 180 AD2d 617; Kobet v Consolidated Edison Company of New York, 176 AD2d 785; Surowiec v City of New York, 139 AD2d 729), or caused the defect to occur because of some special use (Lopez v Alexander, 251 AD2d 297; Rubenstein v DeGeorgio, 236 AD2d 383), or unless a statute or ordinance obligates the landowner to maintain the sidewalk and expressly places tort liability on the landowner for a failure to do so (Rosales v City of New York, 221 AD2d 329).

The law is equally well settled that liability for the condition of real property can be placed on an abutting landowner or tenant where he has created the unsafe condition or has put a part of a public way or sidewalk to a special use for his own benefit (Balsam v Delma Engineering Corp., 139 A.D.2d 292; Minott v City of New York, 230 A.D.2d 719; Turrisi v. Ponderosa, Inc., 179 A.D.2d 956). Where the abutting landowner or tenant has put a portion of the public way to his special use, so that it is in fact under his control, he then comes under an obligation to maintain it in a reasonably safe condition in consideration of the private advantage he has derived from the special use (Nickelsburg v. City of New York, 263 App.Div. 625; Balsam v Delma Engineering Corp., supra; Minott v City of New York, supra). Here, the installation of metal cellar doors in the sidewalk is indisputably a special use, and the affidavit of the plaintiff's expert is ample proof that the defect was not only related to the special use, but was likely caused by it.

A short-form order embodying this decision has been signed herewith.

                                                                                       ________________________
                                                                                                                            J.S.C.