Arzeno v City of New York |
2014 NY Slip Op 50333(U) [42 Misc 3d 1234(A)] |
Decided on March 11, 2014 |
Supreme Court, Bronx County |
Danziger, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
This opinion is uncorrected and will not be published in the printed Official Reports. |
Lissette Arzeno,
Plaintiff(s),
against The City of New York, Anvernic, LLC AND GDA, LLC, Defendant(s). |
In this action for the negligent maintenance of the public sidewalk, defendant THE CITY OF NEW YORK (the City) moves for an order, inter alia, granting it summary judgment thereby dismissing the complaint [FN1]. The City avers that it had no prior written notice of the defect alleged to have caused plaintiff's accident and, therefore, it cannot be liable. Plaintiff opposes the instant motion averring that by failing to properly make repairs, the City caused and created the dangerous and defective condition which caused her fall. Defendants ANVERNIC, LLC (Anvernic) and GDA, LLC (GDA) oppose the City's motion for the very same reasons proffered by plaintiff.
Anvernic and GDA separately move for an order granting them summary judgment thereby dismissing the complaint and all cross-claims asserted against them. Anvernic and GDA aver that because [*2]they were not required to maintain the fire hydrant and the sidewalk surrounding it - upon which sidewalk plaintiff alleges to have tripped and fallen - they bear no liability. Plaintiff opposes the instant motion, averring that questions of fact exist as to whether Anvernic and GDA were responsible for the maintenance of the sidewalk at issue and that, therefore, the instant motion ought to be denied.
To the extent that the motions are closely related, they are decided together. For the reasons that follow hereinafter, the City's motion is granted and Anveric and GDA's motion is denied.
The instant action is for personal injuries allegedly sustained by plaintiff on August 20, 2009 while traversing the sidewalk located in front of 219 Echo Place, Bronx, NY (219). Specifically, plaintiff's notice of claim alleges that plaintiff tripped and fell on a dangerous condition adjacent a fire hydrant located in front of 219. In her complaint, plaintiff alleges that the City - as owner of the sidewalk - and both Avernic and GDA as owners of 219 - the premises abutting the sidewalk - were responsible for the maintenance of the sidewalk. Plaintiff further alleges that defendants were negligent with respect to the maintenance of the sidewalk and that said negligence caused her accident.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005] Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets the initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).
On September 14, 2003, with the passage of § 7-210 of the New York City
Administrative Code, maintenance and repair of public sidewalks and any liability for a
failure to perform the same, was shifted, with certain exceptions, to owners whose
property abutted the sidewalk (Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept
2009], revd on other grounds 14 NY3d 779 [2009] Klotz v City of New York, 9
AD3d 392, 393 [1st Dept 2004]); Wu v Korea Shuttle [*3]Express
Corporation, 23 AD3d 376, 377 [2d Dept 2005]). Specifically, §7-210
states, in pertinent part, that
[i]t shall be the duty of the owner of real property abutting any sidewalk,
including, but not limited to, the intersection quadrant for corner property, to maintain
such sidewalk in a reasonably safe condition. . . [, that] the owner of real property
abutting any sidewalk, including, but not limited to, the intersection quadrant for corner
property, shall be liable for any injury to property or personal injury, including death,
proximately caused by the failure of such owner to maintain such sidewalk in a
reasonably safe condition. . . [, that][f]ailure to maintain such sidewalk in a reasonably
safe condition shall include, but not be limited to, the negligent failure to install,
construct, reconstruct, repave, repair or replace defective sidewalk flags and the
negligent failure to remove snow, ice, dirt or other material from the sidewalk. . . [,and
that ] [t]his subdivision shall not apply to one-, two- or three-family residential real
property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for
residential purposes.
Prior to the passage of § 7-210, the duty to repair and maintain the public sidewalks in a reasonably safe condition rested with the municipality within which the sidewalks were located (Ortiz at 24; Weiskopf v City of New York, 5 AD3d 202, 203 [1st Dept 2004] Belmonte v Metropolitan Life Insurance Company, 304 AD2d 471, 474 [1st Dept 2003]). Accordingly, before § 7-210, an abutting landowner had no duty to maintain the public sidewalk and was not liable for an accident occurring thereon unless he/she created the dangerous condition alleged or derived a special use from the sidewalk (Weiskopf at 203; Belmonte at 474). Accordingly, whereas tort liability for non-municipal defendants arising from an accident involving a defective condition on a public sidewalk was once premised only upon the abutting property owner's affirmative acts of negligence in making the sidewalk more hazardous, i.e., causing or creating a dangerous condition (Ortiz at 24), with the enactment of § 7-210, it is now well settled that an owner of property abutting a public sidewalk is liable for a dangerous condition upon the sidewalk even in the absence of affirmative acts of negligence (id. at 25; Martinez v City of New York, 20 AD3d 513, 515 [2d Dept 2005]).
Thus, as is the case with any action sounding in premises liability, an owner of real property abutting a public sidewalk is now liable if it is proven that he or she created the dangerous condition, had prior actual or constructive notice of its existence (Weinberg v 2345 Ocean Associates, LLC, 108 AD3d 524, 525 [2d Dept 2013] Anastasio v Berry Complex, LLC, 82 AD3d 808, 809 [2d Dept [*4]2011]), or enjoyed a special use of the public sidewalk (Terilli v Peluso, 2014 NY Slip Op 01120 [ 1st Dept 2014] Rodriguez v City of Yonkers, 106 AD3d 802, 803 [2d Dept 2013]). Under § 7-201, however, the City will nevertheless be held liable for any defect on any public sidewalk if it is established that it caused or created the dangerous condition alleged (Harakidas v City of New York, 86 AD3d 624, 627 [2d Dept 2011] ["Thus, under a strict construction of Section 7—210, it expressly shifts tort liability to the abutting property owner for injuries proximately caused by the owner's failure to maintain the sidewalk in a reasonably safe condition, but it does not shift tort liability for injuries proximately caused by the City's affirmative acts of negligence."]).
Preliminarily, it bears noting that while this accident purportedly occurred in 2009, well after the passage of § 7-210 of the New York City Administrative Code, the parties here proceed on a theory that this case falls outside the ambit of § 7-210 and instead, within the penumbra of § 7-201 of the New York City Administrative Code [FN2]. It is true that at his deposition, Russel [*5]Giardina (Giardina), a District Supervisor with the New York City Department of Environmental Protection (DEP) testified that because DEP had repaired the sidewalk around the hydrant in connection with work to the hydrant, the responsibility for the repair of the sinkhole at or near the fire hydrant was DEP's. However, this cannot serve as a basis for rendering § 7-210 inapplicable because "legislative enactments in derogation of common law. . . creating liability where none previously existed," such as § 7-210, must be strictly construed (Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521 [2008]). Here, nothing in the record demonstrates that 219 was an exempt property under § 7-210 of the New York City Administrative Code, namely a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes." Accordingly, the Court decides the instant motions under § 7-210, rather than § 7-201 of the New York City Administrative Code.
As noted above, to the extent that under § 7-210 of the New York City Administrative Code the City had no obligation to maintain the sidewalk at issue and is thus only liable to the plaintiff if it caused or created the defective condition alleged (Harakidas at 627), the City's evidence establishes prima facie entitlement to summary judgment. At her 50-h hearing, the transcript of which is submitted by the City, plaintiff testified that she tripped and fell at or near the fire hydrant located on the sidewalk in front of 219. As plaintiff was attempting to retrieve a pair of pants that her son had thrown out the window, her foot became lodged in a deep hole immediately adjacent to the fire hydrant, which was obscured by water. As per this Court's order, the City performed a search for, inter alia, complaints and repair records for the hydrant and the sidewalk upon which it sat. A search of DEP records for a period of two years prior to plaintiff's accident revealed that the instant hydrant and the surrounding sidewalk were the subject of complaints and repairs beginning on October 7, 2007. Moreover, the records reveal that while on May 4, 2008 the sidewalk was dug out to remove and replace [*6]the hydrant, it was thereafter backfilled and tampered. Thereafter, on May 28, and June 5, 2008, DEP received complaints that the sidewalk around the hydrant was collapsing. DEP confirmed that the sidewalk around the hydrant was indeed collapsing, and on June 11, 2008, DEP repaired it by laying down a skid of blacktop. Thereafter, and before plaintiff's accident, the City did not receive any complaints, nor are there any repair records evincing any defect with regard to the sidewalk around the hydrant.
Based on the foregoing, the City establishes that prior to plaintiff's accident it appropriately repaired the defect that purportedly caused her accident. Nothing submitted by the City evinces that its repairs were negligently performed so as to indicate that it caused or created the condition alleged. Accordingly, the City establishes prima facie entitlement to summary judgment.
Nothing submitted by plaintiff, Anvernic, or GDA raises a triable issue of fact sufficient to preclude summary judgment in the City's favor. In an attempt to establish that the City's liability flows from the improper repair of the hydrant and the abutting sidewalk, plaintiff, Anvernic and GDA submit affidavits establishing that after the City repaired the hydrant and the sidewalk, the hydrant, and more specifically, the sidewalk, quickly became defective. However, while it is true that the City can be held liable if, through the negligent or improper installation of the sidewalk, it created the condition alleged to have caused an accident, a plaintiff seeking to proceed on that theory must establish that the defective condition was defectively installed so as to bring the defect out of the ambit of ordinary wear and tear (Yarborough v City of New York, 10 NY3d 726, 728 [2008] Oboler v City of New York, 8 NY3d 888, 890 [2007]). Thus, the proponent of such a theory bears the burden of establishing that the municipal defendant was negligent in that it performed work that "immediately result[ed] in the existence of [the] dangerous condition" alleged (Yarborough at 728 [internal quotation marks omitted]). Here, absent expert evidence and indeed absent any specific details about why - meaning acts and/or omissions - the sidewalk was negligently repaired, the arguments proffered by the plaintiff and the other defendants are nothing short of speculation (Zuckerman at 552 ["mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment] Cattani v Incorporated Vil. of Ocean Beach, 252 AD2d 533, 534 [2d Dept 1998] ["plaintiffs' speculative and conclusory allegations were insufficient to raise a triable issue of fact with respect to whether the Village may have created the alleged defect through negligent repair"]). These arguments , absent competent evidence, do nothing more than invite the Court to speculatively [*7]find that the failing sidewalk failed solely as the result of the City's negligence in its repair of the sidewalk and/or the hydrant, rather than the myriad of other reasons which could cause the defect alleged. In fact, the assertions asserted by plaintiff and the other defendants are no less speculative than the assertions of Giardina, who at his deposition testified that "[h]ydrants don't just flood a basement and asphalt just doesn't disappear from underneath the hydrant unless it's being abused." Accordingly, the City's motion for summary judgment solely as to the complaint is hereby granted, and only Anvernic and GDA's cross claims remain.
Anvernic and GDA's motion seeking summary judgment is denied since the very evidence submitted in support of their motion establishes that they had actual notice of the defective condition alleged on the sidewalk abutting their property and they failed to ameliorate the same. After the passage of § 7-210 of the Administrative Code, an owner of real property abutting a public sidewalk is liable for a defective condition on the public sidewalk abutting his or her property if it is proven that he or she created the dangerous condition, had prior actual or constructive notice of its existence (Weinberg at 525; Anastasio at 809), or enjoyed a special use of the public sidewalk (Terilli, 2014 NY Slip Op 01120; Rodriguez at 803). Here, Anvernic and GDA submit an affidavit from George Zagredas (Zagredas), owner of 219, who states that while GDA made no repairs to the sidewalk alleged herein after May 4, 2008, when the City first repaired the hydrant and the surrounding sidewalk by laying down blacktop and after which plaintiff alleges a defective condition arose, Zagredas had been fully aware of the existence of the defective condition since the summer of 2008. While Zagredas did nothing to repair the same because he alleges that the City cautioned him not to, he nevertheless had a statutory duty under § 7-210 of the Administrative Code to make repairs. Moreover, on this record, Zagredas and, thus, Anvernic and GDA are charged with actual notice of the defective condition alleged for at least one year prior to plaintiff's accident. Accordingly, Anvernic and GDA fail to establish prima facie entitlement to summary judgment and their motion must be denied.
The Court notes that notwithstanding the foregoing, Anvernic and GDA's cross-claim against the City remains intact and at trial, nothing precludes them from arguing that if they are liable to the plaintiff, the City, by preventing them from repairing the defect alleged, contributed in whole or in part, to plaintiff's injuries. It is hereby
ORDERED that the complaint against the City be dismissed, with prejudice. It is further [*8]
ORDERED that the City serve a copy
of this Decision and Order with Notice of Entry upon all parties within thirty (30) days
hereof.
Dated : March 11, 2014
Bronx, New York
_________________________
Mitchell J. Danziger, ASCJ