A New York trial court recently held, in Weason v. Permanent Mission of Romania to the UN and Romania, that defendants were not immune under the Foreign Sovereign Immunities Act for injuries allegedly sustained by a plaintiff who tripped on a hole in the sidewalk in front of the Romanian Mission on Third Avenue in Manhattan.
Plaintiff initially sued the City of New York, but in another opinion the court dismissed those claims on the basis of New York City Administrative Code § 7-210, reasoning that the City “has not made special use of the sidewalk nor caused or created the condition complained of.” This determination, held the court, was now the law of the case, and therefore plaintiff “may recover against the Romania defendants or not recover at all.”
Plaintiff claimed “that defendants, as the owners of the abutting building, are liable to her because under New York City Administrative Code § 7-210 they bore a non-delegable duty to maintain the sidewalk adjoining the Mission in a reasonably safe condition and negligently failed to do so.”
Defendants did not deny the hole in the sidewalk or that the condition was unsafe, but rather denied any duty to repair the hole under the federal Foreign Sovereign Immunities Act, codified at 28 U.S.C. §§ 1602-1611.
New York City Administrative Code § 7-210 provides, in relevant part:
a. It shall be the duty of the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.
b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . 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. Failure 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. …
c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks . . . in a reasonably safe condition.
The court began by noting that
The Administrative Code, on its face, does not make any exception or otherwise address these provisions’ effect on real property owners entitled to diplomatic immunity from their enforcement, despite the United Nations Headquarters’ longstanding presence in New York City that has led and is likely to lead to foreign governments’ ownership of real estate in the City. This ownership in turn has led and is likely to lead to issues regarding the viability of claims against these real property owners for injury to persons or other property.
Before plaintiff’s fall, the NYC Department of Buildings served a Notice of Violation on the Mission, per § 7-210, requiring the Mission (as the abutting property owner) to repair the sidewalk. The Mission consulted with the Romanian government, which advised the Mission that, based on diplomatic immunity, the Mission was exempt from any obligation to repair a New York City sidewalk.
The Mission did not advise the City of Romania’s position, however, “leaving the need and the responsibility for repair of the sidewalk abutting the Mission unaddressed.”
Turning to the issue of diplomatic immunity, the court noted that the parties agreed that the Second Circuit’s decision in USSA Cas. Ins. Co. v. Permanent Mission of the Republic of Namibia was controlling. That decision addressed the liability of a foreign diplomatic mission, as a City landowner, “for property damage caused by the defendant mission’s failure to comply with a duty imposed by the New York City Building Code.”
The Foreign Sovereign Immunities Act’s tortious activity exception, codified at 28 U.S.C. § 1605(a), provides, in relevant part:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case. . . (5) . . . in which money damages are sought for personal injury or death, or damage to or loss of property, occurring in the United States and caused by damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to . . . (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretionary function be abused.
The court held that the defendants fell squarely within this exception:
Here, the undisputed evidence defendant Mission presents, that Mission officials reached the decision that the Mission not … assume responsibility for the sidewalk repair through the officials’ consultation with the Romanian government in Romania, leaves no question that the officials reached the decision while acting in the scope of their employment. This decision, not to undertake repair of the sidewalk hole, despite DOB’s notice to do so, that breached defendants’ non-discretionary duty required by New York City Administrative Code § 7-210, tortiously caused the injury Weason alleges. … Based on this evidence, under 28 U.S.C. § 1605(a), defendant “foreign state shall not be immune” from Weason’s suit.
The court therefore denied defendants’ motion for summary judgment.