| Storper v Kobe Club |
| 2010 NY Slip Op 06353 [76 AD3d 426] |
| August 10, 2010 |
| Appellate Division, First Department |
| Vivian Storper, Appellant, v Kobe Club et al.,Respondents, et al., Defendants. |
—[*1] Cartafalsa, Slattery Turpin & Lenoff, New York (David R. Beyda of counsel), for KobeClub, Red Square (NY) LLC and Mix in New York, respondents. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Angela Lurie Milchof counsel), for 1414 APF LLC and APF Properties LLC, respondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 26, 2009,which, to the extent appealed from as limited by the briefs, granted the APF defendants' motionfor summary judgment dismissing the complaint as against them, unanimously affirmed, withoutcosts.
At issue on this appeal is whether a sidewalk metal grating owned by the MetropolitanTransit Authority (MTA) is part of the "sidewalk" for purposes of Administrative Code of theCity of New York § 7-210, which requires owners of real property to maintain abuttingsidewalks in a reasonably safe condition.
Plaintiff's testimony establishes that she tripped and fell on a raised and broken portion of thepublic sidewalk surrounding a vault cover owned by the MTA. The vault was adjacent to thepremises owned by defendants 1414 APF LLC and APF Properties LLC.
Rules of City of New York Department of Transportation (34 RCNY) § 2-07 (b) (1)provides that "[t]he owners of covers or gratings on a street are responsible for monitoring thecondition of the covers and gratings and the area extending twelve inches outward from theperimeter of the hardware" (see Cruz vNew York City Tr. Auth., 19 AD3d 130, 130-31 [2005]). 34 RCNY 2-07 (b) (2)requires that "[t]he owners of covers or gratings shall replace or repair any cover or gratingfound to be defective and shall repair any defective street condition found within an areaextending twelve inches outward from the perimeter of the cover or grating."
Administrative Code § 7-210 generally imposes liability for injuries resulting fromnegligent sidewalk maintenance on the abutting property owners. 34 RCNY 2-07, however,imposes the duty of maintenance and repair of a sidewalk grate on the owner of the grate, whichin this case is the MTA. There is no doubt that the defective area of the sidewalk where plaintiff[*2]fell was inside the 12-inch zone that the MTA was requiredto repair pursuant to 34 RCNY 2-07.
We do not agree that the MTA and the abutting property owner could be concurrently liablein this case. There is nothing in Administrative Code § 7-210 to show that the CityCouncil intended to supplant the provisions of 34 RCNY 2-07 and to allow a plaintiff to shift thestatutory obligation of the MTA to the abutting property owner. "In reaching this result, we areguided by the principle that 'legislative enactments in derogation of common law, and especiallythose creating liability where none previously existed,' must be strictly construed" (Vucetovic v Epsom Downs, Inc., 10NY3d 517, 521 [2008], quoting Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3NY3d 200, 206 [2004]). Concur—Mazzarelli, J.P., Renwick, Freedman, Richter andAbdus-Salaam, JJ. [Prior Case History: 2009 NY Slip Op 31397(U).]