Opinion
2019–03453 Index No. 13855/11
03-11-2020
Rebore Thorpe & Pisarello, Farmingdale, N.Y. (Michelle S. Russo of counsel), for appellant. Melcer Newman PLLC, New York, N.Y. (Jeffrey B. Melcer of counsel), for respondent.
Rebore Thorpe & Pisarello, Farmingdale, N.Y. (Michelle S. Russo of counsel), for appellant.
Melcer Newman PLLC, New York, N.Y. (Jeffrey B. Melcer of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant G & J Realty, LLC, for summary judgment dismissing the complaint insofar as asserted against it is granted.
On December 5, 2010, the plaintiff, while walking in Brooklyn, allegedly sustained personal injuries when he stepped into a tree well and fell. Subsequently, the plaintiff commenced this action against the abutting landowner, the defendant G & J Realty, LLC (hereinafter G & J), and another defendant. G & J moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion, and G & J appeals.
Administrative Code of the City of New York § 7–210 places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. However, the statute does not extend that duty of maintenance to City-owned tree wells or provide for civil liability for injuries occurring in City-owned tree wells (see Vucetovic v. Epsom Downs, Inc. , 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 ; Farrell v. 225 Parkside, LLC , 173 A.D.3d 1138, 1139, 102 N.Y.S.3d 683 ; Gibbons v. City of New York , 139 A.D.3d 1004, 1004–1005, 30 N.Y.S.3d 843 ). Thus, liability may be imposed on the abutting landowner for injuries caused by a dangerous condition in a tree well only where the landowner 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" ( Grier v. 35–63 Realty, Inc. , 70 A.D.3d 772, 773, 895 N.Y.S.2d 149 ; see Farrell v. 225 Parkside, LLC , 173 A.D.3d at 1139, 102 N.Y.S.3d 683 ; Gibbons v. City of New York , 139 A.D.3d at 1004–1005, 30 N.Y.S.3d 843 ).
Here, G & J established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no duty to maintain the City-owned tree well, did not create the allegedly dangerous condition, did not negligently repair the sidewalk abutting the tree well, and did not cause the condition to occur through any special use of the tree well. In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
Accordingly, the Supreme Court should have granted G & J's motion for summary judgment dismissing the complaint insofar as asserted against it.
MASTRO, J.P., CHAMBERS, MALTESE and CHRISTOPHER, JJ., concur.