Nicholas Peshniak et al., Appellants, v. Marvin Kuritzky et al., Respondents

Nicholas Peshniak et al., Appellants, v Marvin Kuritzky et al., Respondents. [698 NYS2d 510] [MAJORITY] —In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (DiBlasi, J.), dated July 21,1998, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff Nicholas Peshniak allegedly sustained injuries when he tripped and fell on a public sidewalk abutting the defendants’ property. The defendants’ papers, including the transcript of the deposition testimony of the defendant L. M. Steinhart, made out a prima facie case that the defendants did not create the condition or use the sidewalk for a special use (see, Oquendo v City of New York, 238 AD2d 391). In opposition, the plaintiffs submitted only an attorney’s affirmation which failed to raise a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 563). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.