Boomer, J. P., and Lawton, J. (dissenting in part). We respectfully dissent in part. Supreme Court properly granted summary judgment in favor of defendant Thomas, the abut*1016ting landowner. In her motion for summary judgment, the abutting landowner presented the transcript of the examination before trial of plaintiff wife. Plaintiff wife identified a photograph showing the sidewalk in the area where she fell and indicated, by marking the photograph, that she fell at a location where one flag of the sidewalk was raised above the adjoining flag. She testified that she hit her foot on the raised flag and fell.
The majority erroneously assumes that the driveway crossed the sidewalk at the location of the fall. As the photographs show, that is not so. The location of the fall was beyond the area where the driveway is located, and it would have been impossible for a car using the driveway to cross over the sidewalk at the point of the fall because of a fence that ran along the sidewalk to the edge of the driveway.
Plaintiff wife’s affidavit in opposition to the motion does not dispute her testimony at the examination before trial concerning the location of her fall. Attached to her affidavit are photographs showing the spot, marked with an X, where she fell. These photographs clearly show that the location of the fall was not in the driveway but in an area beyond the driveway and adjacent to the fence. (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J.— Summary Judgment.) Present — Boomer, J. P., Pine, Lawton, Davis and Doerr, JJ.