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DiGregorio v City of New York
2008 NY Slip Op 51013(U) [19 Misc 3d 1135(A)]
Decided on May 21, 2008
Supreme Court, Kings County
Miller, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 21, 2008
Supreme Court, Kings County


Marie DiGregorio, Plaintiff

against

The City of New York, Sclafani & Vitale M.D., P.C., Michael Sclafani, Gregory Sclafani and Steven Andrew Sclafani, Defendants.




21081/06



The plaintiff is represented by Sean H. Rooney, Esq., the defendant the City of New York is represented by Michael A. Cardozo, Corporation Counsel of the City of New York by Dana Wiczyk, Esq., of counsel, the defendants Michael Sclafani, Gregory Sclafani and Andrew Sclafani are represented by the law firm of John P. Humphreys, Esq., by Allen H. Gueldenzopf, Esq., of counsel.

Robert J. Miller, J.



In this action, plaintiff Marie DiGregoria allegedly was injured when she tripped over a growth from a tree that had spilled out of the tree well onto the sidewalk in front of a multi-use residence owned by the defendants Michael, Gregory and Steven Andrew Sclafani ( collectively Sclafani). Sclafani now moves for summary judgment as the defendants "do not own or maintain the subject tree, and in

fact would have been in violation of the City Code had they taken upon themselves to do so."

The Sclafani defendants fail to recognize their obligation under law to maintain the sidewalk "in a reasonably safe condition" as required by § 7210(c) of the Administrative Code of the City of New York. There are triable issues of fact as to whether the Sclafani defendants fulfilled their duty under the law. While it's the City's primary obligation to maintain the trees, if a tree creates a dangerous condition on a property owner's sidewalk, the property owner can't hide behind the City's possible negligence to shield it's own negligence. The property owner has the right to seek a permit from the City to correct any sidewalk defect caused by a City tree. (Administrative Code of the City of New York § 18-129 (a)).

Scalfani's reliance on the First Department case of Vucetovic v Epsom Downs, Inc., 45 AD3d 28 (1st Dept. 2007) is misplaced. Vucetovic involved a fall in a tree well not from a defect [*2]in the sidewalk. Here it is undisputed that plaintiff fell over a tree growth on the sidewalk in front of a multi- use residence which falls within the ambit of the New Sidewalk law of 2003, § 7-210 of the Administrative Code Pursuant to § 7-210, liability for injuries sustained as a result of a defective sidewalk was shifted from the City to the owner of the real property abutting the defective sidewalk . Liability does not shift back to the City when the accident occurred due to growth of tree roots ( Seplow v Solil Management Corp, 2007 NY Slip Op 51033 (U), [Sup. Court, NY Co. 2007]; Falco v Jennings Hall Senior House Development Fund Inc., 2008 NY Slip Op 50595 (U), 19 Misc 3d 1107 (a), [Sup. Court King Co. 2008] ).

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Accordingly, the motion of the Sclafani defendants for summary judgment is denied.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

May 21, 2008

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