In an Order issued on August 12, 2014 in the matter of Gaifman v. City of New York, Index No. 155965-2014 – a sidewalk trip-and-fall case – the Supreme Court, New York County (Judge Freed) denied plaintiff’s application to file a late notice of claim.
According to the supporting memorandum of law in the Gaifman case, plaintiff tripped and fell on a sidewalk defect caused by tree roots. She claimed that the City was liable because it “negligently owned and/or maintained the tree and/or tree well at the premises where [plaintiff] was caused to trip and fall.”
In denying plaintiff’s motion to file a late notice of claim, the court held (inter alia) that “sidewalk defects caused by tree roots do not abrogate [section] 7-210 of the Administrative Code of the City of NY, which requires adjoining landowners to maintain the sidewalk in front of their property.”
In support of its decision, the court cited Seplow v. Solil Management Co., 2007 NY Slip Op 51033(U), which held:
Here, where the sidewalk may have damaged by the tree roots of the curbside tree, it is clear that under the law, the owners are responsible for remedying the condition and are liable for damages that may occur because of the defect. The City assumes no duty by the mere fact of planting the tree, and does not acquire a duty of care when the tree’s roots cause the sidewalk flags to break or become uneven. No discovery undertaken by the third-party plaintiffs will determine otherwise. Accordingly, the City has established its entitlement to dismissal of the third-party complaint as a matter of law.