Opinion
01-11-2024
Christian JONES et at, Plaintiffs–Appellants–Respondents, v. VORNADO NEW YORK RR ONE L.L.C., et al., Defendants, Consolidated Edison Company of New York, Inc., Defendant–Respondent–Appellant, Board of Managers of the Tower 53 Condominium et al., Defendants–Respondents. [And a Third-Party Action]
Rosenberg Mine Falkoff & Wolff, LLP, New York (Steven C. Falkoff of counsel), for appellants-respondents. Heidell, Pittoiri, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondent-appellant. Sjoquist Law Offices, New York (Kiel M. Doran of counsel), for respondents.
Rosenberg Mine Falkoff & Wolff, LLP, New York (Steven C. Falkoff of counsel), for appellants-respondents.
Heidell, Pittoiri, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondent-appellant.
Sjoquist Law Offices, New York (Kiel M. Doran of counsel), for respondents.
Kern, J.P., Oing, Singh, Kapnick, O’Neill Levy, JJ.
Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about December 6, 2022, which, to the extent appealed from, granted the motion of defendants Board of Managers of the Tower 53 Condominium and Pride Property Management, Corp. for summary judgment dismissing all claims and cross-claims against them, unanimously modified, on the law, the motion denied except as to the cross-claim by defendant Consolidated Edison Company of New York, Inc. (Con Ed) for indemnification, and otherwise affirmed, without costs.
Plaintiffs commenced this action to recover for personal injuries and loss of consortium sustained when plaintiff Christian Jones tripped over a manhole cover that had been removed from its mount and placed on the sidewalk abutting the building owned and managed by the Board of Managers of the Tower 53 Condominium (Tower) and Pride Property Management, Corp. (Pride). Tower and Pride moved for summary judgment, arguing that Con Ed was exclusively responsible for maintaining and removing its manhole cover under 34 RCNY 2–07(b)(1), and Tower and Pride were prohibited by law from moving the cover by Administrative Code of City of N. Y. § 10–118.1. Supreme Court granted Tower and Pride’s motion, holding that a plain reading of the statute indicated that 34 RCNY 2–07(b) encompassed manhole covers that had been placed oh the street or sidewalk.
[1, 2] Pursuant to Administrative Code § 7–210(a) and (b), a landowner has a duty to maintain and repair sidewalks abutting its premises in a reasonably safe condition (see also Storper v. Kobe Club, 76 A.D.3d 426, 427, 906 N.Y.S.2d 543 [1st Dept. 2010]). Although 34 RCNY 2–07(b) provides an exception to the landowner’s liability with respect to covers and their surrounding street areas, imposing the duty of maintenance on the owner of the cover, we conclude that the statute does not expressly shift liability for accidents involving removed or unmounted manhole covers (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008]). The statutory language contemplates the inspection and maintenance of covers and gratings set into the street or sidewalk surface, covering underground equipment or facilities (see also Hurley v. Related Mgt. Co., 74 A.D.3d 648, 649, 904 N.Y.S.2d 41 [1st Dept. 2010]). Administrative Code § 10–118.1, which criminalizes the theft and transportation of manhole covers, did not prevent Tower and Pride from exercising control over the sidewalk and taking steps to remedy the potential danger presented by the presence of the manhole cover on the sidewalk (see Doyley v. Steiner, 107 A.D.3d 517, 519, 967 N.Y.S.2d 704 [1st Dept. 2013]).
[3, 4] Because 34 RCNY 2–07(b) does not apply, the court erred in dismissing the claims against Tower and Pride. Tower and Pride did not meet their prima facie burden on summary judgment by establishing that they lacked actual or constructive knowledge of the dangerous condition presented by the errant manhole cover (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]; Ferguson v. City of New York, 210 A.D.3d 527, 528, 178 N.Y.S.3d 46 [1st Dept. 2022]). In addition, issues of fact exist as to whether Pride, as the building managing agent, could be held liable for failing to remedy the potentially hazardous situation posed by the manhole cover (see Stevanovic v. T.U.C. Mgt. Co., 305 A.D.2d 183, 134, 758 N.Y.S.2d 59 [1st Dept. 2003]). The contract between Tower and Pride afforded Pride broad authority to ensure the common areas of the interior and exterior of the building were properly cleaned and maintained, without requiring prior authorization or permission from Tower (see Clark v. Kaplan, 47 A.D.3d 462, 463, 851 N.Y.S.2d 10 [1st Dept. 2008]).
Because Con Ed did not oppose Tower and Pride’s motion for summary judgment dismissing its cross-claim for indemnification, the cross-claim was properly dismissed (see Bonventre v. Soho Mews Condominium, 173 A.D.3d 411, 412, 99 N.Y.S.3d 629 [1st Dept. 2019]).