Opinion
104231-08.
Decided on October 13, 2009.
Law Offices of Alan M. Greenberg, P.C., New York, New York, Plaintiff's Attorney.
Michael A. Cardozo, Esq., by Vanessa Campagna, Esq., Corporation Counsel of NYC, Jeffrey Samel Partners, by Christopher Cornish, New York, NY, New York City's Attorney.
This is an action by Micah Salevesen for damages for personal injuries sustained by him in connection with a fall on a sidewalk adjacent to the building located at 184 West 10th Street (building") which is owned by defendant 184 West 10th Street Corp. (owner"). The claims against the City of New York by the plaintiff and between the defendants were discontinued as per the stipulation of discontinuation dated April 7, 2009. Issue has been joined by the owner and the plaintiff filed his note of issue on May 14, 2009, certifying all discovery was complete. Since this motion is timely, it will be decided on the merits. CPLR § 3212; Brill v. City of New York , 2 NY3d 648 (2004). The court's decision is as follows:
Arguments presented
The owner seeks summary judgment dismissing the complaint on the basis that plaintiff does not know what caused him to fall down, and regardless of what caused him to fall down, he does not know, and cannot prove, that his face struck the jagged cobblestones lining a tree well on the sidewalk abutting the owner's building. Alternatively, the owner argues that even if the cobblestones surrounding the tree well were in disrepair, their condition was not the reason plaintiff fell, and his facial injuries were not a foreseeable consequence of any negligence on their part.
Plaintiff opposes the motion, raising a number of legal arguments, including that the owner was negligent because it assumed a duty of care by for the tree well, by first placing bricks between two jagged cement cobblestones, but then not replacing them when they went missing. Plaintiff argues that the jagged cobblestones are the proximate cause of his severe facial injuries, including a broken orbital socket, and he would not have been hurt as badly had there been something (bricks) between them. Thus, plaintiff argues it is for the jury to decide whether his accident was forseeable.
Plaintiff testified at a 50 H hearing before this action was commenced and he was deposed. At his deposition (MS EBT p. ___"), plaintiff testified that he and a friend Steven Richter (Richter"), met for dinner on the evening of November 16, 2007 (day of the accident"). Plaintiff ate and drank 2-5 beers at the restaurant . The pair then went to a nearby bar where they met friends and shared pitchers of beer. Plaintiff and Richter left the bar at approximately 1:30 a.m. As they walked on the south side of 10th Street, on the sidewalk adjacent to the building, plaintiff fell and struck his face, on something, shattering his left orbital socket.
When asked at his deposition where he was walking on the sidewalk when he fell, testified it was to the right, center" of the sidewalk. MS EBT p. 24. When asked if something caused him to fall plaintiff responded I'm not sure." MS EBT p. 25. Plaintiff also testified that he lost consciousness when he hit the object and did not regain consciousness until he was at the hospital . MS EBT p. 28. When asked what caused his injury, referring to the blow to his face, he answered the jagged edge of the brick." MS EBT p. 47.
At his EBT, plaintiff was also shown photographs of the sidewalk and asked questions about them. These photos were provided by him in his Notice of Claim. Although plaintiff was unsure about who took some of them, he testified that the photograph marked as Exhibit E" at the deposition was taken by a colleague (Cohen"). Cohen was not with him on the day of the accident but took the photo after the accident and sent it to plaintiff via email.
That photograph depicts an area of the tree well that is missing some cobblestone. The area is in an L" shape and the cobblestone on either side of the gap is rough. The area with the missing stones is close to the curb, on the lower right quadrant of the photo, furthest away from the building. Also visible in the photograph is a blue rubber glove and a white piece of material with a red stain on it. When asked questions about the photograph at his EBT, plaintiff also described the photo as showing (his) fresh blood on the cobblestones. When asked which of the stones he hit his face on, plaintiff answered: I'm not positive. It was one of the two. Both are stained with blood, so I'm not sure which one I hit. Both [are] jagged, though." MS EBT p. 31-2.
Richter has provided his sworn affidavit in support of plaintiff's opposition to defendants' motion. He states that he is familiar with the area where the tree well is located (because he works nearby). He states that he witnessed plaintiff's accident and saw plaintiff hit his head on a jagged edge of a cobblestone." He also concludes in his affidavit that [it] is plainly obvious that the jagged edge of the cobblestone is what caused [plaintiff's] scarring to be so bad, as the cobblestone's sharp edge literally ripped his face apart due its jaggedness and sharpness."
The superintendent (Garcia") was deposed on behalf of the owner. He testified that prior to the day of the accident, he noticed that some cement cobblestones around the perimeter of tree well were missing. For reasons he could not recall, he decided to repair" this problem by finding some discarded brick. He put the two bricks down in the gapped area. He described the cement cobblestones as being nicked" and he testified that the cobblestones were there before I took over . . ." EBT AG p. 26. Eventually the bricks that he put down went missing," presumably (according to Garcia) because a car had backed up into them or they had been swept away. After that Garcia did not replace the bricks. Thus, according to Garcia, the cobblestoned area remained as it had been before he put the bricks down/
After the accident, the owner was fined by Department of Sanitation for having rat apparently crawling or gnawing the area around the tree. On November 20, 2007, four days after the accident, Garcia put down soil, pebbles, wire and some bricks into the well to cover the holes and prevent the rats from coming up through the soil.
Applicable Law
A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Discussion
A landowner is under a duty to maintain its property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party. Perez v. Bronx Park South, 285 AD2d 402 (1st Dept 2001). It is black letter law, however, the New York City code provision imposing tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition does not impose civil liability on property owners for injuries that occur in city-owned tree wells or due to the surrounding . New York City Administrative Code, §§ 7-210, 19-101(d); Vucetovic v. Epsom Downs, Inc, 2006 WL 4804734, 2006 NY Slip Op. 30210(U) (N.Y.Sup. Sep 18, 2006)aff'd Vucetovic v. Epsom Downs, Inc. , 45 AD3d 28 aff'd Vucetovic v. Epsom Downs, Inc. , 10 NY3d 517 (2008).
On this motion, the owner has proved (and it is unrefuted) that plaintiff does not know what caused him to fall as he was walking down the sidewalk. Plaintiff, however, has never claimed, and does not now claim, that he tripped on any part of the tree well or the surrounding cobblestones. His sole claim is that the jagged edges of the cement cobblestones were the proximate cause of his injuries and, therefore, the owner breached a duty of care to maintain them in a reasonably safe condition.
Although it is for the jury to determine whether and to what extent a particular duty was breached, it is for the court to first determine whether any duty to the plaintiff exists in the first place, and in so doing identify what people may reasonably expect of one another. Darby v. Compagnie National Air France, 96 NY2d 343, 347 (2001). The duty of care varies with the foreseeability of the possible harm. Tagle v. Jakob, 97 NY2d 165, 168 (2001).
Defendants have proved that they had no legal duty to maintain the tree well or the surrounding cobblestones. Vucetovic v. Epsom Downs, Inc, 2006 WL 4804734, 2006 NY Slip Op. 30210(U) (N.Y.Sup. Sep 18, 2006) aff'd Vucetovic v. Epsom Downs, Inc. , 45 AD3d 28 aff'd Vucetovic v. Epsom Downs, Inc. , 10 NY3d 517 (2008). The defendants have also proved that the cobblestones were inside the tree well and were not placed there by them. In opposition to the motion, plaintiff argues that there are triable issues of fact whether the superintendent's tending" to the tree well constituted a special use" of it. This argument, however, fails and the court finds that the owner did not owe a duty of care to plaintiff.
Generally, a special use" involves the installation by the owner of some object in the sidewalk or street or some variance in the construction thereof. Kaminer v. Dan's Supreme Supermarket/Key Food, 253 AD2d 657 (1st Dept 1998). This alteration usually results in the defendant deriving a special benefit from the property unrelated to its public use. see Melamed v. Rosefsky, 291 AD2d 602, 603 (2nd Dept 2002). This argument, however, fails on two points. The cobblestones were inside the tree well and they were not placed by the owner and the owner had no legal responsibility for maintaining the tree well or the cobblestones that surround its perimeter. Vucetovic v. Epsom Downs, Inc, 2006 WL 4804734, 2006 NY Slip Op. 30210(U) (N.Y.Sup. Sep 18, 2006) aff'd Vucetovic v. Epsom Downs, Inc. , 45 AD3d 28 aff'd Vucetovic v. Epsom Downs, Inc. , 10 NY3d 517 (2008). Furthermore, not only were the bricks missing on the day of the accident, even if they had been in place, their incorporation into the perimeter of the tree well (in the manner plaintiff argues they should have been) would not have materially altered the tree well, thereby changing its public use to a private use. Since the court finds, as a matter of law, that the owner had no duty to maintain the tree well, and it did not make a special use of it, the owner did not have, nor did it breach, a duty of care to plaintiff. Pulka v. Edelman, 40 NY2d 781 rearg den 41 NY2d 901 (1977).
Alternatively, plaintiff argues that the facts of this case are analogous to situations where a contractor is hired by an owner to perform maintenance services. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002). Although contractually, the contractor owes a duty to the owner, but not third parties, liability will be imposed where the contractor so completely displaces and absorb the landowner's responsibility to maintain the premises safely, that the contractor is deemed to have assumed a duty of care, or the contractor acts in such a way that it launches a force of harm. That analogy fails and is ineffective against defendant's motion.
Here, the owner has no contract (whether written or express) with the City of New York to maintain the tree well and any argument that this responsibility can be informally assumed by an owner is offered without any legal authority to support it. Thus, the placement of bricks in the tree well prior to the day of the accident by the owner's superintendent not make the owner (or the superintendent) a de facto contractor for the City. Cases discussing forces or instrument of harm" are wholly inapplicable.
A different argument by the plaintiff is that the owner voluntarily assumed a duty of care that it otherwise did not have when it installed bricks into the tree well to fill in the damaged and/or missing cobblestones in the perimeter. It is well established law that where a defendant assumes a duty, it must then exercise reasonable care in discharging it. Ferrer v. Riverbay Corp., 214 AD2d 312 (1st Dept 1995) ( citing H.R. Moch Co v. Rensselaer Water Co., 247 NY 160, 167). This principle of law, however, does not apply to situations where the defendant has taken some act or done something to protect or promote its own interest. Jansen v. Fidelity and Cas. Co. of New York, 79 NY2d 867 (1992). The superintendent put the brick down for no particular reason, other than to make area appear more uniform or he felt the area needed it. Regardless of why he did this, he did not do anything to the cobblestones on either side. Thus, not only were the bricks placed in the perimeter for the owner's own interest (there was no obligation to do so in the first place), plaintiff has failed to raise triable issues of fact that the absence of the bricks made the cobblestones flanking the open area any more dangerous than if the bricks had not been placed there to begin with.
Even were the court persuaded by plaintiff's argument, that the trier of fact should decide whether it was foreseeable that the jagged edges of the cement cobblestones could have injured plaintiff in the manner they did, there is no evidence (or triable issue of fact) that the dangerous condition alleged (jagged edges) was a condition created or exacerbated through defendant's negligence. It is pure speculation on the part of the plaintiff that his injury would have been less serious had the owner replaced the bricks after they went missing. Even were the plaintiff to prove his facts at trial, no reasonable jury could find that plaintiff's injuries were a foreseeable consequence of the owner's failure to replace the bricks that it had no duty to install in the first place. Derdiarian v. Felix Contracting Corp., 51 NY2d 308 (1980); Betancourt v. Manhattan Ford Lincoln Mercury, Inc., 195 AD2d 246 (1st Dept 1994) app dism Betancourt v. Manhattan Ford Lincoln Mercury, Inc., 84 NY2d 932 (1994).
Since the defendant has proved its defenses, and plaintiff has not come forward with disputed issues that require a trial of this action, defendant's motion for summary judgment is granted; the complaint is dismissed.
Conclusion
Defendant has proved it entitlement to summary judgment for the reasons stated in the foregoing decision and order. There being no triable issues of fact, the complaint is hereby dismissed.
Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.
This constitutes the decision and order of the court.