Opinion
No. 2019-14158 Index No. 501619/15
06-29-2022
Sterna Ivry, respondent, v. City of New York, et al., defendants, Board of Managers of 866 Eastern Parkway, et al., appellants.
Milber, Makris, Plousadis & Seiden, LLP, White Plains, NY (Danielle L. Rizzo of counsel), for appellants.
Milber, Makris, Plousadis & Seiden, LLP, White Plains, NY (Danielle L. Rizzo of counsel), for appellants.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Board of Managers of 866 Eastern Parkway and 866 Eastern Parkway Corp. appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated November 8, 2019. The order denied the motion of the defendants Board of Managers of 866 Eastern Parkway and 866 Eastern Parkway Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Board of Managers of 866 Eastern Parkway and 866 Eastern Parkway Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.
On November 19, 2013, the plaintiff allegedly was injured when she tripped and fell on a raised Belgian block in a tree well which abutted a building owned by the defendant 866 Eastern Parkway Corp. and managed by the defendant Board of Managers of 866 Eastern Parkway (hereinafter together the defendants). The plaintiff subsequently commenced this action to recover damages for personal injuries against the defendants, among others. After discovery, the defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied the motion, and the defendants appeal.
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 (see Vucetovic v Epsom Downs, Inc., 10 N.Y.3d 517, 521; Iskhakbayev v Casol Realty, LLC, 183 A.D.3d 706, 707). However, "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; see Powroznik v City of New York, 181 A.D.3d 735, 735-736; Barrios v City of New York, 172 A.D.3d 668, 669; Newkirk v City of New York, 129 A.D.3d 685, 686). Thus, "liability may be imposed on the abutting landowner in such instances only where she or he has 'affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area'" (Farrell v 225 Parkside, LLC, 173 A.D.3d 1138, 1139, quoting Grier v 35-63 Realty, Inc., 70 A.D.3d 772, 773).
Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them by demonstrating that they had no duty to maintain the City-owned tree well where the accident occurred, did not create the allegedly dangerous condition that caused the plaintiff to fall, and did not cause the condition to occur through any special use of the tree well (see Powroznik v City of New York, 181 A.D.3d at 736; Farrell v 225 Parkside, LLC, 173 A.D.3d at 1139; Chulpayeva v 109-01 Realty Co., LLC, 170 A.D.3d 798, 799; Gibbons v City of New York, 139 A.D.3d 1004, 1005). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
CONNOLLY, J.P., CHRISTOPHER, GENOVESI and DOWLING, JJ., concur.