| Grier v 35-63 Realty, Inc. |
| 2010 NY Slip Op 00925 [70 AD3d 772] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Doreen Grier, Appellant, v 35-63 Realty, Inc., Respondent.(And a Third-Party Action.) |
—[*1] Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Kerrigan, J.), entered April 24, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleges that on February 17, 2006, she was injured in Jackson Heights, Queenswhen she tripped and fell as she walked over an unpaved patch of ground and onto the concreteslab of the adjoining sidewalk flag. The plaintiff testified at her deposition that the unpavedpatch was on the same general level as the sidewalk, but that her right foot became caught on theconcrete slab of the adjoining sidewalk flag since the edge of the slab was slightly higher thanthe unpaved patch.
The plaintiff commenced this action against 35-63 Realty, Inc. (hereinafter Realty), as ownerof the premises abutting the sidewalk upon which she fell. Realty then commenced a third-partyaction against the City of New York and its own commercial tenant, which leased the storelocated at the corner of the first floor of its building.
A representative of the Forestry Division of the New York City Department of Parks andRecreation for the borough of Queens testified, at an examination before trial, that the areawhere the plaintiff fell was actually a tree well, which had once contained a tree. Therepresentative testified that the tree had been removed more than four years prior to the subjectaccident, and that its stump was removed approximately nine months after the removal of thetree.
Realty moved for summary judgment dismissing the complaint on the ground that it had noduty to maintain the area where the plaintiff fell. The Supreme Court granted Realty's motion.We affirm.
"Generally, liability for injuries sustained as a result of negligent maintenance of or theexistence of dangerous and defective conditions to public sidewalks is placed on themunicipality and not the abutting landowner" (Hausser v Giunta, 88 NY2d 449, 452-453[1996]; see Farrell v City of NewYork, 67 AD3d 859 [2009]; Falchook v J & M Kingsley, Ltd., 67 AD3d 632 [2009];Smirnova v City of New York, 64 [*2]AD3d 641 [2009]).Liability may be imposed on abutting property owner only where he or she has affirmativelycreated the dangerous condition, negligently made repairs to the area, caused the dangerouscondition to occur through a special use of that area or violated a statute which expresslyimposes liability on the property owner for failure to maintain the abutting sidewalk (see Farrell v City of New York, 67AD3d 859 [2009]; Falchook v J &M Kingsley, Ltd., 67 AD3d 632 [2009]; Smirnova v City of New York, 64 AD3d 641 [2009]).
Administrative Code of the City of New York § 7-210, which became effectiveSeptember 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from theCity 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 (see Vucetovic v Epsom Downs, Inc.,10 NY3d 517 [2008]; Hartofil vMcCourt & Trudden Funeral Home, Inc., 57 AD3d 943, 946 [2008]).
Moreover, the plaintiff did not refute Realty's contention, amply supported by the evidence,that it did not create the defective condition, did not negligently repair it, and did not cause thecondition to occur through its special use of the tree well (see Smirnova v City of New York, 64 AD3d 641, 642 [2009]).Thus, Realty established its prima facie entitlement to judgment as a matter of law (see Farrell v City of New York, 67AD3d 859 [2009]; Smirnova v Cityof New York, 64 AD3d 641 [2009]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Smirnova v City of New York, 64AD3d 641 [2009]; Williams vAzeem, 62 AD3d 988 [2009]). Accordingly, the Supreme Court properly grantedRealty's motion for summary judgment dismissing the complaint.
The plaintiff's remaining contention is without merit. Covello, J.P., Santucci, Miller and Eng,JJ., concur.