| Harakidas v City of New York |
| 2011 NY Slip Op 06093 [86 AD3d 624] |
| July 26, 2011 |
| Appellate Division, Second Department |
| Maria Harakidas et al., Appellants, v City of New York etal., Defendants, and Brazal South Holdings, LLC, Respondent. |
—[*1] Cheng & Associates, PLLC, Long Island City, N.Y. (Pui Chi Cheng of counsel), forrespondent.
In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal,as limited by their brief, from so much of an order of the Supreme Court, Queens County(Kerrigan, J.), entered May 7, 2009, as granted that branch of the motion of the defendant BrazalSouth Holdings, LLC, which was for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Brazal South Holdings, LLC, which was for summaryjudgment dismissing the complaint insofar as asserted against it is denied.
The plaintiffs alleged that on June 2, 2005, Maria Harakidas (hereinafter the injured plaintiff)was injured when she tripped and fell on a depressed and defective portion of the sidewalkabutting property of the defendant Brazal South Holdings, LLC (hereinafter Brazal). The area inquestion is a rectangular depression with an irregular asphalt surface approximately the size of asidewalk flag in which a fire hydrant is situated close to one edge next to the curb. The injuredplaintiff and her husband, suing derivatively, commenced an action against Brazal, and a separateaction against the defendants City of New York, Department of Water and Sewer, Department ofEnvironmental Protection (hereinafter the DEP), and Environmental Control Board (hereinaftercollectively the City). The two actions were consolidated. After discovery, Brazal moved, interalia, for summary judgment dismissing the complaint insofar as asserted against it, contendingthat it was not liable as a matter of law because the City affirmatively created the alleged defectin the sidewalk.
In deposition transcripts submitted by Brazal in support of its motion, the injured plaintifftestified that her foot became caught in a "hole," which she described as an area of the cementnear a fire hydrant lower than the rest of the sidewalk. Brazal's owner testified at her depositionthat she visited the property regularly from 2003 through 2005. On a date she could not recall,she complained of the broken fire hydrant by a letter to the City, which subsequently repaired thehydrant but failed to finish the job by making the sidewalk "smooth and safe." Nick Tenaglia, asupervisor employed by the DEP, testified that the DEP was primarily responsible forinvestigating problems with city fire hydrants and making needed repairs. Tenaglia reviewedDEP service records which indicated that, on June 17, 2003, pursuant to a service request to fixthe hydrant which was[*2]"broken at [the] base," a DEP crewmade the repair and refilled the "excavation" around the hydrant with blacktop. Subsequent tothat repair, the DEP again performed maintenance on the hydrant twice in 2004 and twice in2005; on each occasion, the DEP neither repaired nor replaced the sidewalk surrounding thehydrant. Based on this evidence, Brazal contended that the City had created the defectivecondition in 2003 and was solely responsible for any injuries proximately caused by the allegedtripping hazard. Although it is undisputed that the area in question had a depressed and irregularsurface in 2005, Brazal submitted no evidence that the City's alleged negligent repair work in2003 created the defects which were visible in 2005 and allegedly caused the injured plaintiff tofall.
In opposition, the plaintiffs relied upon the testimony of Brazal's owner that she regularlyinspected the property to contend that Brazal had actual notice of the dangerous condition formore than two years yet failed to correct the defect, breaching its duty under section 7-210 of theAdministrative Code of the City of New York (hereinafter section 7-210) to maintain thesidewalk in front of its premises in a reasonably safe condition. The City joined in the plaintiffs'arguments that Brazal had a statutory duty to maintain the sidewalk.
The Supreme Court, inter alia, granted that branch of Brazal's motion which was forsummary judgment dismissing the complaint insofar as asserted against it. We reverse the orderinsofar as appealed from.
Section 7-210, which became effective September 14, 2003, shifted tort liability from theCity to the commercial property owner for personal injuries proximately caused by the owner'sfailure to maintain the sidewalk abutting its premises in a reasonably safe condition (see Vucetovic v Epsom Downs, Inc.,10 NY3d 517, 521 [2008]; Fusco vCity of New York, 71 AD3d 1083, 1084 [2010]; Grier v 35-63 Realty, Inc., 70 AD3d 772, 773 [2010]). Section7-210 applies to the area at issue here, which is roughly the size of a sidewalk flag lying betweenthe curbline and Brazal's property line "intended for the use of pedestrians" within the meaning ofthe definition of "sidewalk" (Administrative Code of City of NY § 19-101 [d]; cf.Vucetovic v Epsom Downs, Inc., 10 NY3d at 521). "[T]he language of section 7-210 mirrorsthe duties and obligations of property owners with regard to sidewalks set forth in AdministrativeCode sections 19-152 and 16-123" (Vucetovic v Epsom Downs, Inc., 10 NY3d at 521[internal quotation marks omitted]). Contrary to the reasoning of the Supreme Court, the allegeddefect in the sidewalk here falls within the definition of a "substantial defect" which is theproperty owner's duty to repair (see Administrative Code of City of NY § 19-152[a] [1], [9]).
However, section 7-210 does not impose strict liability upon the property owner, and theinjured party has the obligation to prove the elements of negligence to demonstrate that an owneris liable (see Martinez v Khaimov,74 AD3d 1031, 1032-1033 [2010]). Thus, in support of a motion for summary judgmentdismissing a cause of action pursuant to section 7-210, the property owner has the initial burdenof demonstrating, prima facie, that it neither created the hazardous condition nor had actual orconstructive notice of its existence for a sufficient length of time to discover and remedy it(id.; see James v Blackmon,58 AD3d 808, 808-809 [2009]). Here, in light of the evidence that Brazal was aware of thedefective condition in the sidewalk for a sufficient length of time to remedy it, Brazal failed toeliminate a triable issue of fact as to its liability under section 7-210.
Brazal contends that, notwithstanding its duty to maintain the sidewalk in a reasonably safecondition, section 7-210 did not shift tort liability where the sole proximate cause of the injury isa defect created by the City's affirmative act of negligence. Prior to the enactment of section7-210, an abutting property owner would not be held liable for injuries proximately caused by adefective sidewalk flag surrounding a fire hydrant absent the property owner's affirmativenegligence in creating the condition (see Aylon v City of New York, 256 AD2d 68[1998]). Since section 7-210 is a legislative enactment in derogation of the common law whichcreates liability where none previously existed, it must be strictly construed (see Vucetovic vEpsom Downs, Inc., 10 NY3d at 521). Generally, a duty to maintain an area in a reasonablysafe condition "is independent of [a] duty not to create a defective condition" (Kiernan vThompson, 73 NY2d 840, 841 [1988]). Thus, under a strict construction of section 7-210, itexpressly shifts tort liability to the abutting property owner for injuries proximately caused by theowner's failure to maintain the sidewalk in a reasonably safe condition, but it does not shift tortliability for injuries proximately caused by the City's affirmative acts of negligence.[*3]
Here, in support of its motion, Brazal failed to establishits prima facie entitlement to judgment as a matter of law eliminating triable issues of fact bysubmitting evidence showing that the City's affirmative act of negligence in 2003 created thealleged defective sidewalk condition which allegedly caused the injured plaintiff to fall in 2005.Although there is some evidence that the tripping hazard was created by negligent repair work in2003, on the record presented, the evidence does not eliminate a triable issue of fact as towhether the repair work in 2003 was properly performed and other causes were responsible forthe alleged defects observed in 2005 (cf. Fernandez v City of New York, 19 Misc 3d1135[A], 2008 NY Slip Op 51012[U] [2008]). Accordingly, the Supreme Court should havedenied that branch of Brazal's motion which was for summary judgment dismissing thecomplaint insofar as asserted against it. Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.