Sidewalk/Hydrant Trip-and-Fall Case Dismissed Against City, Remains Against Abutting Property Owners

In Arzeno v. City of New York, the Bronx Supreme Court discussed the application of the New York City Sidewalk Law – codified as New York City Administrative Code (NYCAC) § 7-210 – which generally shifts liability for sidewalk accidents from the City to abutting property owners. 

The court dismissed the action against the City, but denied dismissal against the abutting property owners.

The facts:

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 court initially noted that NYCAC § 7-210, rather than NYCAC § 7-201 (the so-called “Pothole Law”) was the operative provision. If section 7-201 applied, “the result would have been unconscionable and inequitable because it would have resulted in the grant of summary judgment to all defendants.”

The court held that the City was entitled to summary judgment under NYCAC § 7-210:

[T]o 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, the City’s evidence establishes prima facie entitlement to summary judgment. … [P]laintiff testified that she tripped and fell at or near the fire hydrant located on the sidewalk in front of 219 [Echo Place, Bronx, NY]. 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. … 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 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.

Thus, since the City established that before plaintiff’s accident it “appropriately repaired the defect that purportedly caused her accident”, and since “[n]othing submitted by the City evinces that its repairs were negligently performed so as to indicate that it caused or created the condition alleged”, the City established its initial burden on summary judgment burden.

In response, neither the plaintiff nor the abutting property owners raised a triable issue of fact, since they failed to provide specific details about why the sidewalk was negligently repaired. Rather, they merely invited the court to “speculatively 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.”

Although it dismissed plaintiff’s claims against the City, the court denied the abutting property owners’ motion for summary judgment:

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. 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.

Finally, the court permitted the abutting property owners’ cross-claim against the City to remain intact, and noted that at trial they may argue “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.”

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