Administrative Code of the City of New York § 7–210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, absent certain exceptions not relevant to this case (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 ). However, a tree well does not fall within the applicable Administrative Code definition of "sidewalk" and, thus, " section 7–210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells" (Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d at 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 ; see Alexander v. City of New York, 118 A.D.3d at 647, 986 N.Y.S.2d 852 ; Vigil v. City of New York, 110 A.D.3d 986, 987, 973 N.Y.S.2d 750 ; Fusco v. City of New York, 71 A.D.3d 1083, 1083, 900 N.Y.S.2d 81 ). Here, the City failed to demonstrate the absence of any triable issues of fact as to whether the plaintiff tripped and fell over a defective sidewalk, or a tree well, or a combination of the two (see Alexander v. City of New York, 118 A.D.3d at 647, 986 N.Y.S.2d 852 ; Vigil v. City of New York, 110 A.D.3d at 986, 973 N.Y.S.2d 750 ; Fusco v. City of New York, 71 A.D.3d at 1084, 900 N.Y.S.2d 81 ).
However, liability may be imposed on the abutting landowner when the abutting landowner affirmatively created the dangerous condition, made negligent repairs that caused the condition, created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk (see Crawford v City of New York, 98 AD3d 935, 936; Romano v Leger, 72 AD3d 1059; Farrell v City of New York, 67 AD3d 859, 860-861). "Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner" (Pevzner v 1397 E. 2nd, LLC, 96 AD3d 921, 922; see Vucetovic v Epsom Downs, Inc., 10 NY3d 517; Stoloyvitskaya v Dennis Boardwalk, LLC, 101 AD3d 1106; Fusco v City of New York, 71 AD3d 1083, 1084). "[T]he language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123" (Vucetovic v Epsom Downs, Inc., 10 NY3d at 521 [internal quotation marks omitted]; see Stoloyvitskaya v Dennis Boardwalk, LLC, 101 AD3d at 1107; Harakidas v City of New York, 86 AD3d 624, 626).
The definition of the term “street” includes the “sidewalk” (34 RCNY § 2–01; see Flynn v. City of New York, 84 A.D.3d 1018, 1019, 923 N.Y.S.2d 635;Storper v. Kobe Club, 76 A.D.3d 426, 906 N.Y.S.2d 543;Hurley v. Related Mgt. Co., 74 A.D.3d 648, 904 N.Y.S.2d 41). Here, the defendants each failed to demonstrate the absence of any triable issues of fact as to whether the plaintiff fell over a defective sidewalk, in a tree well, or a combination of the two ( see Vigil v. City of New York, 110 A.D.3d 986, 973 N.Y.S.2d 750;Fusco v. City of New York, 71 A.D.3d 1083, 900 N.Y.S.2d 81). Additionally, the defendants failed to establish whether the plaintiff fell within or outside of 12 inches of the cable box cover, therefore failing to establish as a matter of law that the accident occurred within the cable box owner's zone of responsibility ( see Flynn v. City of New York, 84 A.D.3d at 1019, 923 N.Y.S.2d 635). Thus, the sufficiency of the plaintiff's opposition papers need not be addressed ( see Fusco v. City of New York, 71 A.D.3d at 1084, 900 N.Y.S.2d 81).
The Supreme Court granted that branch of B.D. Holding's motion. “Administrative Code of the City of New York § 7–210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” ( Pevzner v. 1397 E. 2nd, LLC, 96 A.D.3d 921, 922, 947 N.Y.S.2d 543;see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191;Fusco v. City of New York, 71 A.D.3d 1083, 1084, 900 N.Y.S.2d 81). A tree well is not part of the “sidewalk” for purposes of Administrative Code of the City of New York § 7–210, and an abutting property owner has no duty to maintain a City-owned tree well ( see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d at 521–522, 860 N.Y.S.2d 429, 890 N.E.2d 191;Vellios v. Green Apple, 84 A.D.3d 1356, 1356, 923 N.Y.S.2d 895;Teitelbaum v. Crown Hgts. Assn. for the Betterment, 84 A.D.3d 935, 936, 922 N.Y.S.2d 544;Grier v. 35–63 Realty, Inc., 70 A.D.3d 772, 773, 895 N.Y.S.2d 149). Here, B.D. Holding failed to establish, prima facie, its entitlement to judgment as a matter of law, since its moving papers did not eliminate triable issues of fact as to whether the plaintiff was caused to fall due to an alleged defect in the tree well, the sidewalk, or a combination of the two ( see Fusco v. City of New York, 71 A.D.3d at 1084, 900 N.Y.S.2d 81). Additionally, B.D. Holding failed to establish, prima facie, that the height differential between the metal grating and the a
In further support, the City has annexed the affidavit of Borough Forester John Kilcullen, who conducted a search in the Forestry Management System for the period of five years up to and including the date of plaintiff's accident, and found that no complaints, work orders, or other activity on file pertaining to the tree well in question (see Defendant's Exhibit I). As a result, the City argues that plaintiff's failure to comply with the above ordinance dictates that her cause of action against the City be dismissed. In opposition to the motion, plaintiff asserts that since the City failed to plead plaintiff's non-compliance with the prior written notice provision as an affirmative defense, it is precluded from asserting same now or on appeal (see Fusco v City of New York, 71 AD3d 1083). Otherwise, plaintiff claims that she will be prejudiced by the loss of an opportunity to present evidence rebutting the City's allegation on a factual basis (cf. Shepardson v Town of Schodak, 83 NY2d 894, 895-896). Plaintiff further asserts that the motion should be denied because the Court of Appeals has specifically held that tree wells are not part of the sidewalk for purposes of section 7-210 of the City's Administrative Code and, therefore, the prior written notice requirement, even if properly pleaded, is inapplicable to this case (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517).
In further support, the City has annexed the affidavit of Borough Forester John Kilcullen, who conducted a search in the Forestry Management System for the period of five years up to and including the date of plaintiff's accident, and found that no complaints, work orders, or other activity on file pertaining to the tree well in question ( see Defendant's Exhibit I). As a result, the City argues that plaintiff's failure to comply with the above ordinance dictates that her cause of action against the City be dismissed. In opposition to the motion, plaintiff asserts that since the City failed to plead plaintiff's non-compliance with the prior written notice provision as an affirmative defense, it is precluded from asserting same now or on appeal ( see Fusco v City of New York, 71 AD3d 1083). Otherwise, plaintiff claims that she will be prejudiced by the loss of an opportunity to present evidence rebutting the City's allegation on a factual basis ( cf. Shepardson v Town of Schodak, 83 NY2d 894, 895-896). Plaintiff further asserts that the motion should be denied because the Court of Appeals has specifically held that tree wells are not part of the sidewalk for purposes of section 7-210 of the City's Administrative Code and, therefore, the prior written notice requirement, even if properly pleaded, is inapplicable to this case ( see Vucetovic v Epsom Downs, Inc., 10 NY3d 517).
Contrary to landlord's arguments regarding the applicability of the ERAP statute to this holdover proceeding, the statute plainly prohibited the commencement of this proceeding while tenant's ERAP application was pending. Landlord's remaining arguments were raised for the first time on appeal and are not properly before this court (see Fusco v City of New York, 71 A.D.3d 1083 [2010]). Accordingly, the final judgment is affirmed.
The Supreme Court granted the motion, and the plaintiff appeals."Administrative Code of the City of New York § 7–210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner" ( Pevzner v. 1397 E. 2nd, LLC, 96 A.D.3d 921, 922, 947 N.Y.S.2d 543 ; seeVucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 520, 860 N.Y.S.2d 429, 890 N.E.2d 191 ; Williams v. Castronovo, 146 A.D.3d 923, 44 N.Y.S.3d 769 ; Stoloyvitskaya v. Dennis Boardwalk, LLC, 101 A.D.3d 1106, 956 N.Y.S.2d 525 ; Fusco v. City of New York, 71 A.D.3d 1083, 1084, 900 N.Y.S.2d 81 ). Administrative Code § 7–210(a) "imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition" ( Sangaray v. West Riv. Assoc., LLC , 26 N.Y.3d 793, 797, 28 N.Y.S.3d 652, 48 N.E.3d 933 ).
To the extent the defendant claims that he was never served with a copy of the correspondence dated July 22, 2014, this contention is raised for the first time on appeal and is not properly before this Court (seeFusco v. City of New York, 71 A.D.3d 1083, 900 N.Y.S.2d 81 ). The defendant further maintains that he was not treated fairly because he was a pro se litigant.
The Supreme Court properly denied that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the owners. Administrative Code of the City of New York § 7–210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 860 N.Y.S.2d 429, 890 N.E.2d 191 ; Metzker v. City of New York, 139 A.D.3d 828, 830, 31 N.Y.S.3d 175 ; Stoloyvitskaya v. Dennis Boardwalk, LLC, 101 A.D.3d 1106, 956 N.Y.S.2d 525 ; Pevzner v. 1397 E. 2nd, LLC, 96 A.D.3d 921, 922, 947 N.Y.S.2d 543 ; Fusco v. City of New York, 71 A.D.3d 1083, 1084, 900 N.Y.S.2d 81 ). That section imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property (see Zorin v. City of New York, 137 A.D.3d 1116, 28 N.Y.S.3d 116 ).