Defendant Construction for Commerce, Inc.(Construction for Commerce) moves for an order, pursuant to CPLR 3212, dismissing the complaint of plaintiff Maria Gonzalez, on the ground that it has no liability for the alleged defect which plaintiff claims caused her to fall and sustain injuries. Defendant Certified Lumber Corporation, individually and doing business as I & A Contracting Co. (Certified Lumber) also cross-moves for an order, pursuant to CPLR 3212, dismissing plaintiff's claims and all cross claims against it on the ground that because it is a company that only sells lumber, it was not liable for creating the subject alleged defective sidewalk condition. In addition, United Talmudical Academy Torah V'Yirah Rabbinical, Inc., (the Academy) moves for an order, pursuant to CPLR 3212, dismissing the complaint and all cross claims as against it on the ground that it did not own the property under construction adjacent to the sidewalk upon which plaintiff's accident allegedly occurred and was not involved in any construction at that site. Finally, Congregation Yetev Lev D'Satmar (the Congregation) cross-moves for an order, pursuant to CPLR 3212, granting them summary judgment dismissing plaintiff's complaint and all cross claims against it on the ground that it did not have notice of the alleged defective condition, did not create such condition and did not derive a special use from that portion of the sidewalk where plaintiff allegedly fell. Plaintiff opposes the aforesaid motions and cross motions for summary judgment on the ground that triable issues of fact exist with respect to the defendants' creation of the subject defect or their special use of the sidewalk at the site of plaintiff's accident

In the instant action, plaintiff seeks damages for personal injuries she allegedly sustained as the result of a slip and fall accident which occurred on June 28, 2001 when "she was caused to fall due to an unsafe, defective and dangerous condition existing" on [*2]the sidewalk near the southwest corner of the intersection of Wilson Avenue and Bedford Avenue in Brooklyn, New York.

At her deposition, plaintiff stated that her accident occurred "[i]n a building that they're making, on the sidewalk" which was "outside." She did not see any construction companies or their equipment at the site of her accident when it occurred. She "didn't notice very much" with respect to the subject sidewalk when she fell. She testified that she fell on "something that was raised" on the sidewalk. She also described the allegedly defective portion of the sidewalk as being "lifted, that it was broken." She did not notice this until after her accident when she returned to the site of her accident later in the day. She further testified that prior to the accident she would walk by the accident site two or three times a day and "continues walking there even now." She noted that she never noticed the allegedly raised portion of the sidewalk where she fell at any time prior to her accident.

Isaac Rosenberg, the president of defendant Certified Lumber, testified at a deposition on its behalf. He stated that the only business his company engaged in was selling lumber and he believed that his company may have sold lumber to the Congregation with respect to its construction of a synagogue, which was never completed, at Bedford Avenue, Wilson Avenue and Rose Avenue.

David Shlomovich, the president of defendant Construction for Commerce, also testified on behalf of his company at a deposition. He stated that his company had no connection with construction of the subject synagogue after 1999. He stated that his position with respect to the construction of the synagogue was to act as "a liaison between the subcontractors, architects, engineers and owners, the committees." He utilized a trailer on the construction site as an office and would "do what I was told by the committee, different day different things, different situations, different scenarios." At the time the construction at the synagogue ceased, the steel frame of the building's foundation had been constructed. He stated that during his time on the project the sidewalk was not excavated and no work was done to the sidewalk. He recalled that Con Edison excavated an area of the sidewalk near the construction site in order to install a transformer but that such excavation did not occur on Bedford Avenue. He could not recall if any black tar was placed on the premises. He stated that a gate surrounded the premises during the construction.

Isaac Chajmovicz testified at his deposition on behalf of the Academy. He stated that he was a messenger and bus driver for the Academy which is a school for boys and girls. He stated that the Congregation was separate from the Academy, although the two entities were affiliated. He further testified that the Academy did not own any property on Bedford Avenue, was not involved in any construction related to the Congregation and did not hire a contractor or subcontractor to perform any construction work on Bedford Avenue and Wilson Street. He did state that the Academy used a portion of the premises at Bedford Avenue and Wilson Street for activities such as dinners. [*3]

Jeno Kahan testified on behalf of the Congregation. He identified himself as the president of the Congregation. He stated that the Congregation owned the construction site in question. He did not recall if there was a fence around the construction site at the time that construction was ongoing. When he was shown a photograph at his deposition, he identified it as the "entrance" to the construction site located on Bedford Avenue. He did not know if any sidewalks adjacent to the site were excavated during the construction or if any black tar was used at the site.

Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 AD2d 757, 759 [1993]; Zarr v Piccio, 180 AD2d 734, 735 [1992]). Once the movant has established his or her prima facie case, the party opposing the motion bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Romano v St. Vincent's Medical Center of Richmond, 178 626 [1991]). Stated differently, "the plaintiff must establish the existence of material facts of sufficient import to create a triable issue" (Shaw v Time-Life Records, 38 NY2d 201, 207 [1975]). In addition, the evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Since summary judgment deprives a party of his or her day in court (Henderson v City of New York, 178 AD2d 129 [1991]), it is a drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law (Barclay v Denckla, 182 AD2d 658 [1992]). Moreover, "[i]t is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law" (Chahales v Garber, 195 AD2d 585, 586 [1993]). Summary judgment is appropriate, however, even in negligence cases, where the movant satisfies his or her initial burden of proof and the nonmovant's opposition to the motion for summary judgment is "entirely conjectural and there is no genuine issue [of fact] to be resolved" (Cassidy v Valenti, 211 AD2d 876, 877 [1995]). This comports with the general rule that where a party has established his or her prima facie case, a motion for summary judgment based thereupon "may not be defeated merely by surmise, conjecture or suspicion" (Shaw, 28 NY2d at 207).

"It is beyond cavil that the duty to keep public sidewalks in reasonably safe condition and to repair any defects falls upon the municipality" (Rubin v City of New York, 211 AD2d 417, 418 [1995]; see also New York City Charter § 383 [establishing City of New York's duty to maintain public streets and sidewalks]; Belmonte v Metropolitan Life Ins. Co., 304 AD2d 471, 474 [2003] ["The City . . . is responsible for [*4]maintaining city sidewalks"]; accord Brown v City of New York, 250 AD2d 638, 639 [1998]; Gall v City of New York, 223 AD2d 622, 623 [1996]; Coppersmith v City of New York, 194 AD2d 586 [1993]).^[FN1] "This principle flows from the fact that it is the municipality, not the abutting owner, that has control of the sidewalks" (Montalvo v Western Estates, Ltd., 240 AD2d 45, 47 [1998]).

Accordingly, it is also well established "that the owner or lessee of land abutting a public sidewalk owes no duty to the public to keep the sidewalk in a safe condition unless the landowner or lessee creates a defective condition in the sidewalk or uses it for a special purpose" (Otero v City of New York, 213 AD2d 339, 339 [1995]; or if the owner or lessee "negligently constructed or repaired the sidewalk" (Bullard v Hitchcock Plaza, Inc., 211 AD2d 511, 511 [1995]; see also Grossman v Amalgamated Housing Corp., 298 AD2d 224, 335 [2002])[noting that a landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's property "unless the landowner caused the defective condition through negligent construction or repair, or as a result of some special use, or if a statute imposes the obligation to maintain the sidewalk on the abutting property"]; Kiett v New York City Housing Authority, 255 AD2d 422, 423 [1998][landowner may be liable to pedestrian injured on a public sidewalk where it created a hazardous condition by failing to properly clean the sidewalk of rocks, concrete and debris after repairing same]; Warren v Wilmorite, Inc., 211 AD2d 904, 906 [1995][liability may be imposed on an adjoining landowner or lessee where such individual creates a dangerous condition by performing demolition work and leaving the resulting debris on the subject sidewalk]). However, the defendant landowner is entitled to summary judgment where plaintiff fails to submit any evidentiary proof that the defendant actually performed the complained-of repair (Ritts v Teslenko, 276 AD2d 768, 769 [2000]). Summary judgment is appropriately granted to a defendant where the plaintiff fails "to raise any questions of fact as to any connection between the defendants and the accident" (Tsamos v Volmar Construction Co., 231 AD2d 709, 709 [1996]).

With respect to contractors, "a contractor may be [also] liable under the common law for affirmative acts of negligence which result in the creation of a dangerous condition upon a public street or sidewalk'" (Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679 [2006], quoting Ingles v City of New York, 309 AD2d 835, 835 [2003]).

Concerning an abutting landowner's "special" use of the sidewalk, it is axiomatic that said doctrine imposes liability on an abutting landowner where he or she derives a [*5]special benefit from the property unrelated to its public use (see Melamed v Rosefsky, 291 AD2d 602, 603 [2002]). Generally, special use cases involve either the installation of some object in the sidewalk or street or a variance in the construction of same (Spangel v City of New York, 285 AD2d 425, 425 [2001]; accord Tyree v Seneca Center-Home Attendant Program, Inc., 260 AD2d 297, 297 [1999]).

It is also well settled that the use of a portion of a public sidewalk as a driveway or entranceway to property may create a triable issue with respect to special use (see Adorno v Carty, 23 AD3d 590, 591 [2005]; Katz v City of New York, 18 AD3d 818, 819 [2005]; Morales v Sinmar Development Corp., 298 AD2d 236, 237 [2002]; Breger v City of New York, 297 AD2d 770, 771 [2002]; Melamed, 291 AD2d at 603; Rosario v City of New York, 289 AD2d 133, 134 [2001]; Schwartzberg v Eisenson, 260 AD2d 854, 855 [1999], lv denied 93 NY2d 815 [1999]) or the movement of heavy machinery or equipment over a specific area of sidewalk may raise a question of fact concerning whether the party responsible for same created the subject defect (see Stockdale v City of New York, 294 AD2d 195, 196 [2002]; Peretich v City of New York, 263 AD2d 410, 411 [1999]; Caturano v City of New York, 224 AD2d 202, 202 [1996]). However, 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 actually contributed to the complained-of defect (see Adorno, 23 AD3d at 591); accord Ivanyushka v City of New York, 300 AD2d 544, 544-545 [2002][finding that defendants were entitled to summary judgement where there was no evidence that the alleged sidewalk defect that caused plaintiff to trip and fall on a public sidewalk directly adjacent to the driveway of the premises owned by the abutting landlords was caused by the special use of the sidewalk as a driveway or that the driveway in any way contributed to the allegedly defective condition]; see also Billera v Paolangeli, 20 AD3d 743, 745 [2005] [contractor's summary judgment motion seeking dismissal of complaint as against him should have been granted where trip and fall accident occurred upon concrete slabs near the subject premises and the only defects caused by contractor's heavy machinery were located close to the street and not in the specific area of plaintiff's fall]); but see cf. Mincey v Mensch, 253 AD2d 656, 656 [1998][finding that issue of fact existed as to whether defect in curb was caused by cars driving over the curb in the course of entering and exiting a parking lot that lay between the curb and defendants' buildings, even though plaintiff did not trip over the part of the curb that was cut to provide entrance to the lot, but rather over the part located at the corner some distance away, given that discovery was incomplete and the possibility existed, "at this early stage of the action, that the individual defendants' alleged special use of the sidewalk produced a proximate cause of the fall"]).

Here, the defendants are entitled to summary judgment dismissing plaintiff's complaint as against them. Certified Lumber has established, prima facie, that it, at most, only supplied lumber to the Congregation during its never-completed construction of the [*6]synagogue in question. The Academy has established, prima facie, that it did not own the property at Bedford Avenue and Wilson Street where the construction site for the synagogue was located and did not retain any contractors or subcontractors to perform any work at that site. Construction for Commerce has established, through the testimony of its president, who acted as a liaison between the Congregation and various entities and individuals performing work at the site and also acted as, the reasonable inference is, a de facto construction manager for same, that no sidewalk excavation or repair was performed in tandem with the subject construction other than excavation work performed by Con Edison related to the placement of a transformer near the site, but not actually on Bedford Avenue. Moreover, such testimony also supports the Congregation's prima facie case that it did not create the subject defect.

In opposition, plaintiff has failed to raise a triable question of fact. Plaintiff's deposition testimony merely states that she tripped on a raised portion of sidewalk on Bedford Avenue in front of the construction site. Although there was lengthy colloquy between counsel during plaintiff's deposition as to the location and nature of the alleged sidewalk defect, including attempts to have the plaintiff identify the area in which she fell from several photographs, the court notes that it has no admissible evidence before it from a person with knowledge as to the exact, or even approximate location, of the plaintiff's accident. Nor have any of the photographs which plaintiff allegedly marked at her deposition been produced. Instead, plaintiff's attorney, in an affirmation submitted in opposition to the Congregation's motion for summary judgment, states that plaintiff testified that she fell over a defective portion of the sidewalk located at or near the entranceway of the subject premises and further avers that the defect which caused plaintiff's injuries "was located on the sidewalk in the driveway entrance abutting the construction site of the premises owned by [the Congregation][which] had been excavated and patched with asphalt." Plaintiff's counsel fails to identify the deposition testimony which supports such statements, however, and the court notes that counsel's descriptions of the location and nature of the alleged defect appear to be gleaned more directly from the speculation and debate concerning such issues found in the colloquy between the attorneys present at plaintiff's deposition than from the actual testimony of the plaintiff herself. Moreover, it is well settled that an attorney affirmation is insufficient,, without additional support, to defeat summary judgment., particularly where, as here, alleged facts central to the plaintiff's case and cited to in said affirmation are not substantiated by the actual deposition testimony of plaintiff, the individual with personal knowledge of the location and nature of the alleged defect (see generally 9394, LLC v Farris, 10 AD3d 708 [2004]). Accordingly, although some testimony was proffered by defendants that an entranceway existed on Bedford Avenue leading into the property, there is no testimony or other evidence from plaintiff as to the relation of the area of her fall to such entranceway.

Moreover, even if such entranceway could be considered a "special use" of the [*7]subject sidewalk, plaintiff has not demonstrated that the alleged defect which caused her accident was in the vicinity of said entranceway, or in any way related to any such alleged special use. This is especially true where, as here, there is no evidence that the entranceway was used as a driveway or that heavy machinery, equipment or, in fact, any kind of vehicle ever traversed same or that the entranceway was created or ever utilized for such purpose. Moreover, mere speculation as to the existence of black tar or some other black substance at or near the construction site or the entranceway to same and/or impliedly near the accident site, both by counsel at plaintiff's deposition and even by some of the defendants (who clearly had no personal knowledge with respect to same) at their depositions is of no moment given that plaintiff never described a black or tar-like substance with respect to either the nature of the defect or the causation of her accident but instead merely described the allegedly defective portion of the sidewalk as "raised" or "broken." In addition, any questions regarding the ownership of the construction site as between the Academy and the Congregation do not serve to raise a triable issue of fact with respect to either entities' causation of the alleged defect or special use of the sidewalk in the vicinity of the areas of plaintiff's accident. Accordingly, as the plaintiff has failed "to raise any questions of fact as to any connection between the defendant[ ] and the accident" (Tsamos, 231 AD2d at 709), the moving defendants are entitled to summary judgment dismissing her complaint as against them.

As a result, the moving defendants' motions and cross motions dismissing plaintiff's complaint and all cross claims against them are granted in their entireties. The action is severed accordingly and continued as against the remaining defendants.

The foregoing constitutes the decision, order and judgment of the court.E N T E R,

__________________________

YVONNE LEWIS,

J. S. C.