| Fusco v City of New York |
| 2010 NY Slip Op 02745 [71 AD3d 1083] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Carmela Fusco, Respondent, v City of New York,Respondent-Appellant, and Santo Arena, Appellant-Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and SusanPaulson of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, the defendant Santo Arena appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Velasquez,J.), dated January 26, 2009, as denied his motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against him, and the defendant City of NewYork cross-appeals, as limited by its brief, from so much of the same order as denied its crossmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it.
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff alleges that on January 24, 2006, she was injured in Bay Ridge, Brooklyn,when she tripped and fell while walking over a portion of elevated sidewalk which was raised bya nearby tree root that emanated from an adjacent tree well. She commenced this action againstSanto Arena, a co-owner of the premises abutting the sidewalk at the site of her accident, and theCity of New York. In their respective answers, Arena and the City asserted cross claims againsteach other. Following discovery, Arena moved, and the City cross-moved, for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them. TheSupreme Court denied the motion and cross motion. We affirm.
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 to the abutting property owner (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517[2008]). For purposes of the Administrative Code, "a tree well is not part of the 'sidewalk' "(id. at 518-519). Consequently, "section 7-210 does not impose civil liability on propertyowners for injuries that occur in city-owned tree wells" (id. at 521).
Here, the defendants each failed to demonstrate the absence of any triable issues of fact as towhether the plaintiff tripped and fell over a defective sidewalk, or a tree well, or a [*2]combination of the two. As a result, the sufficiency of the plaintiff'sopposition papers need not be addressed (see Bowers v Northwestern Realty L.P., 69AD3d 892 [2010]).
We decline to reach the City's contention, raised for the first time on appeal, that it did notreceive prior written notice of any alleged defect at the site of the plaintiff's accident as requiredby Administrative Code of the City of New York § 7-210 (c) (ii). The City did not pleadthe lack of prior written notice in its answer, and the plaintiff, who has not submitted a brief, hasnot had an opportunity to respond to that contention, and we therefore do not reach it (cf.Flanagan v Board of Educ., Commack Union Free School Dist., 47 NY2d 613, 617 [1979];Agress v Clarkstown Cent. School Dist., 69 AD3d 769 [2010]). Fisher, J.P., Leventhal,Belen and Sgroi, JJ., concur.