| Flynn v City of New York |
| 2011 NY Slip Op 04199 [84 AD3d 1018] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Patrick J. Flynn et al., Appellants, v City of New York,Defendant, and Hanus Simone, as Executor of Radu Neagoe,Respondent. |
—[*1] Gannon, Lawrence & Rosenfarb, New York, N.Y. (Lisa L. Gokhulsingh of counsel) forrespondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and PamelaSeider Dolgow of counsel), for defendant City of New York.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.),entered April 12, 2010, as granted that branch of the motion of the defendant Hanus Simone, asexecutor of the estate of Radu Neagoe, which was for summary judgment dismissing thecomplaint insofar as asserted against that defendant.
Ordered that the order is affirmed insofar as appealed from, with costs to the respondent.
The plaintiff Patrick Flynn, a firefighter, while responding to a call, located a fire hydrant inthe sidewalk abutting the premises owned by the estate of Radu Neagoe (hereinafter the Estate).As he was testing the hydrant, Flynn stepped into a three-to-four-inch deep indentation in thesidewalk. Inside the indentation was a gate box containing the fire hydrant's valve. Theindentation caused Flynn to lose his balance and fall to the ground. Flynn and his wife, suingderivatively, commenced this action to recover damages for personal injuries against the Estateand the City of New York, which owned the fire hydrant and the valve gate box. The SupremeCourt granted the Estate's motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it. The plaintiffs appeal from so much of the order as grantedthat branch of the Estate's motion which was for summary judgment dismissing the complaintinsofar as asserted against it.
Section 7-210 of the Administrative Code of the City of New York generally imposesliability for injuries resulting from negligent sidewalk maintenance on the abutting propertyowners. [*2]However, Rules of City of New York Department ofTransportation (34 RCNY) § 2-07 (b) provide that owners of covers or gratings on a streetare responsible for monitoring the condition of the covers and gratings and the area extending 12inches outward from the perimeter of the hardware, and for ensuring that the hardware is flushwith the surrounding street surface. 34 RCNY 2-01 includes a "sidewalk" within the definition of"street." Accordingly, the responsibility for maintaining the condition of the area where Flynn felllies with the City, and not the Estate. We agree with the Appellate Division, First Department,that there is nothing in section 7-210 of the Administrative Code of the City of New Yorkindicating that the City Council intended to supplant the provisions of 34 RCNY 2-07 (b) and toallow a plaintiff to shift the statutory obligation of the owner of the cover or grating to theabutting property owner (see Storper vKobe Club, 76 AD3d 426, 427 [2010]). Accordingly, the Estate established, prima facie,that it did not violate a statute that expressly imposes liability on it for failure to maintain theabutting sidewalk. The Estate also made a prima facie showing that it did not create the allegeddangerous condition, negligently maintain the area, or use the sidewalk in a special manner for itsown benefit (see Vucetovic v EpsomDowns, Inc., 10 NY3d 517, 520 [2008]; Grier v 35-63 Realty, Inc., 70 AD3d 772, 773 [2010]; Farrell v City of New York, 67 AD3d859, 860-861 [2009]). In opposition, the plaintiffs failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted that branch of the Estate's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Mastro, J.P.,Hall, Lott and Cohen, JJ., concur.