Opinion
January 27, 1998
Appeal from the Supreme Court, New York County (Phyllis Gangel-Jacob, J.).
It is of no moment that the prior owners, and not defendants, the present owners of the building abutting the sidewalk where the fuel oil intake valve over which plaintiff tripped is located, installed the valve in the sidewalk and that defendants have never made use of it. It is the capability of use rather than the actual use that creates liability on the basis of the abutting owner's special use ( Lombardozzi v. City of New York, 71 Misc.2d 271, 272-273). Issues of fact exist as to whether the valve, which protruded two inches above the sidewalk and was filled with cement at the time of the accident, constituted a dangerous condition on the sidewalk.
Concur — Sullivan, J.P., Ellerin, Tom and Andrias, JJ.