Cellar doors are a ubiquitous aspect of New York City life. As illustrated by a recent tragedy in which a man who apparently fell to his death through a cellar grate at 1281 Bedford Avenue in Brooklyn, they can be dangerous – even deadly.
Property owners are required to maintain their property in a reasonably safe condition. This rule extends to sidewalks and to cellar doors embedded in them. A pedestrian can be injured due to defective cellar doors (including hardware) by, for example: tripping and falling on a raised door; slipping and falling on a slippery cellar door surface; falling down the steps when the doors give way; and contacting a sharp edge of a raised door, resulting in a laceration.
Section 19-152(a)(6) of the Administrative Code of the City of New York provides:
The commissioner shall direct the owner to install, reinstall, construct, reconstruct, repave or repair only those sidewalk flags which contain a substantial defect. For the purposes of this subdivision, a substantial defect shall include any of the following: … hardware defects which shall mean (i) hardware or other appurtenances not flush within 1/2″ of the sidewalk surface or (ii) cellar doors that deflect greater than one inch when walked on, are not skid resistant or are otherwise in a dangerous or unsafe condition[.]
In Brooks v. Employees Only LLC, 2013 NY Slip Op 30911(U) (Sup Ct NY Cty 115654/10 April 23, 2013), plaintiff alleged that she was injured when she tripped and fell on a cellar door on the sidewalk next to defendants’ premises. Specifically, she claimed that she was injured when her foot “got caught in the cellar door of the grate that was ajar a couple of inches.’‘
In Brooks, the court denied defendant Employees Only’s motion for summary judgment. It rejected its argument that the gap between the cellar doors was an “open and obvious condition”, finding “issues of fact as to whether defendant Employees Only breached its duty to maintain the property in a reasonably safe condition with respect to the cellar doors on the sidewalk by improperly closing the doors or leaving them partially opened.”
It also interpreted Administrative Code of the City of New York sections 7-201 and 19-152(a)(6) for the proposition that a property owner’s “obligation to repair is … not limited to defects in the actual masonry material of the sidewalk flag but includes the hardware or other items installed in the sidewalk.” The court concluded that
an issue of fact exists as to whether the elevated cellar doors on which plaintiff fell constituted a substantial defect in violation of 19-152(a)(6). Accordingly, based on such alleged statutory violation and the right to re-enter and repair reserved for the Adams defendants under the Lease, the Adams may be deemed to have constructive notice of the statutory violation related to the purportedly elevated cellar doors, and thus are potentially liable to plaintiff.
The court also found that there were “triable issues of fact as to whether the cellar doors were dangerous as a result of a defect in the mechanism used to keep the doors closed, as opposed to the method used by the tenant’s employees to close the doors.” It pointed to plaintiff’s expert affidavit which in its view was “sufficiently detailed and based on facts in the record to support plaintiffs position that the hooking mechanism was defective.”
Finally, it held that “such a defective condition, as opposed to the tenant’s use of negligent use of the cellar door, may give rise to potential liability on the part of an out-of-possession owner, like the Adams defendants, based on a theory that the owner caused or created the condition.” It highlighted the facts that Christopher Adams, one of the owners of the property, did “not specifically deny in his affidavit that the Adams defendants installed the mechanism to close the cellar doors, or caused the mechanism to be installed, while they were in possession of the premises.”
As another example, in Colon v. 78-14 Roosevelt LLC, 2014 NY Slip Op 33139(U) (Sup. Ct. Qns. Cty. Sept. 17, 2014), the plaintiff alleged that he was injured when he was walking along the sidewalk outside the defendant-tenant’s property, when he tripped on a metal cellar door. In denying defendant owner’s and defendant tenant’s motions for summary judgment, the court held that “it is clear that liability under [NYC Administrative Code] Section 7–210 encompasses substantial defects to sidewalk hardware such as cellar doors.”
If you have sustained an injury as a result of a New York City cellar door, contact us today for a free consultation.