Opinion
2014-11-19
David AVEZBAKIYEV, appellant, v. CHAMPION COMMONS, LLC, et al., respondents.
Law Firm of Albert Cohen, P.C., Forest Hills, N.Y. (Charles Haviv of counsel), for appellant. Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for respondents.
Law Firm of Albert Cohen, P.C., Forest Hills, N.Y. (Charles Haviv of counsel), for appellant. Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for respondents.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Markey, J.), entered November 29, 2012, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On February 6, 2008, at 7:00 p.m., the plaintiff allegedly was injured when he tripped over a tree stump in a tree well in an area of a sidewalk on 64th Road in Queens. In his complaint, the plaintiff alleged that the defendants owned a parcel of land abutting the sidewalk on 64th Road, and therefore were responsible for the allegedly dangerous condition. In the order appealed from, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint on the grounds that the City of New York was responsible for maintaining the tree well, and that the defendants did not cause or create the alleged condition on the public sidewalk or maintain a special use of the area.
“Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk is placed on the municipality, and not on the owner of the abutting land” (James v. Blackmon, 58 A.D.3d 808, 808, 872 N.Y.S.2d 179; see Crawford v. City of New York, 98 A.D.3d 935, 936, 950 N.Y.S.2d 743; Smirnova v. City of New York, 64 A.D.3d 641, 641, 882 N.Y.S.2d 513). “Administrative Code of the City of New York § 7–210, which became effective on September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner; however, a tree well is not part of the ‘sidewalk’ for purposes of that section of Administrative Code of the City of New York” (Grier v. 35–63 Realty, Inc., 70 A.D.3d 772, 773, 895 N.Y.S.2d 149; see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 520–521, 860 N.Y.S.2d 429, 890 N.E.2d 191; Vigil v. City of New York, 110 A.D.3d 986, 987, 973 N.Y.S.2d 750). Accordingly, the defendants were not responsible for maintenance of the tree well.
To the extent that a construction fence that narrowed the sidewalk may be considered a dangerous condition, the defendants established, prima facie, that they did not build or maintain the construction fence, and that the construction fence did not constitute a special use benefitting the defendants. In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that defendants' motion for summary judgment dismissing the complaint.