ORTIZ v. CITY OF NEW YORK

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Supreme Court, Appellate Division, First Department, New York.

Ramona ORTIZ, Plaintiff-Respondent-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent-Appellant,

240 West 98th Street Associates, et al., Defendants-Appellants-Respondents. v. The City of New York, Defendant-Respondent, 240 West 98th Street Associates, et al., Defendants-Appellants.

-- August 25, 2009

PETER TOM, J.P., DAVID B. SAXE, JOHN W. SWEENY, JR., ROLANDO T. ACOSTA, HELEN E. FREEDMAN, JJ. Flynn, Gibbons & Dowd, New York (Ann Teresa McIntyre of counsel), for 240 West 98th Street Associates and Weinreb Management, appellants-respondents/appellants. Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner and Barry P. Schwartz of counsel), for municipal respondent-appellant/respondent. Brian J. Isaac, New York, and Gersowitz, Libo & Korek, P.C., New York (Edward H. Gersowitz and Julie T. Mark of counsel), for Ortiz, respondent-appellant/respondent.

At issue in this case is whether a corner pedestrian ramp leading down a sidewalk onto the street is part of the “sidewalk” for purposes of Administrative Code of the City of New York § 7-210, which imposes tort liability on property owners who fail to maintain City-owned sidewalks in a reasonably safe condition.   We hold that § 7-210 does not impose tort liability on abutting property owners for defects on pedestrian ramps.   The City of New York is responsible for maintaining the pedestrian ramps, and there is evidence that the City was partially responsible for creating the hole in this particular ramp.

Background

On February 3, 2005, plaintiff tripped and injured her knee when she stepped into a triangle-shaped hole in the bottom edge of a pedestrian ramp connected to the sidewalk adjacent to property owned by defendant 240 West 98th Street Associates and managed by defendant Weinreb Management, at 98th Street and Broadway in Manhattan.   A missing street curb formed the base of the triangular hole.   Plaintiff's expert conducted an inspection of the area of the accident and found several purported defects that, in his opinion, represented departures from City regulations and engineering standards.   In particular, the expert found “no protective curb surrounding the concrete sidewalk curb ramp,” that is, “[t]he street asphalt [met] the curb ramp directly.”   He thus concluded that either the City or its agents had constructed the curb ramp without a protective curb in place and without ensuring that the ramp was flush with the street, or the curb had sunk relative to the ramp and had been paved over.   He opined, without contradiction by the City, that “the City ․ had actual knowledge of the missing or depressed protective curb as the street was paved directly to the curb ramp without a curb in place as required.”

Defendant 240 moved for summary judgment, arguing, inter alia, that Administrative Code § 7-210, the new sidewalk law, did not apply to this case since the pedestrian ramp was not part of the sidewalk for which the adjacent property owner was liable.  Section 7-210, it argued, requires only repair and maintenance of the “sidewalk flags,” which are different from pedestrian ramps.

The City opposed the motion and cross-moved for summary judgment, arguing that, aside from the fact that Administrative Code § 7-210 transferred liability to the adjacent property owner, it was also not liable because there was no prior written notice of the defect causing plaintiff's injury.   The City also noted that the record contained no evidence of any fact that would bring the case within any exception to the prior written notice requirement.   The City attached the deposition testimony of Sherry Johnson of the Department of Transportation, who stated that the City had searched the records and found no written notice, complaints or work performed at that location.   The City also attached a map prepared by the Big Apple Pothole and Sidewalk Protection Corporation (the Big Apple map), which had been served on the City prior to plaintiff's accident.   This map contained no notation indicating a hole or cracked sidewalk at that location.

The court denied defendant 240's motion for summary judgment, holding that the pedestrian ramp was part of the sidewalk for which adjacent land owners were liable for maintenance and repair pursuant to Administrative Law § 7-210.   The City's cross motion for summary judgment was granted solely to the extent of finding that the City had not received written notice of the hole.   The court found, however, that issues of fact existed as to whether the City had caused or created the defect (not in the construction of the ramp itself, but in creating a height differential when it repaved the street).   The court noted plaintiff's expert's finding that the average height differential at the base of the ramp edge measured 1 1/212 to 2 inches, which provided an abrupt vertical transition creating a recognized tripping hazard.   The expert also found (and photographs of the hole confirm) that the base of the triangular hole was caused by a missing curb.   The court noted the expert's uncontradicted finding of no protective curb surrounding the concrete sidewalk curb ramp, and the City's actual knowledge of the missing or depressed protective curb, having paved the street directly to the curb ramp without a curb in place as required.   The court noted that if the only claim were the premature failure of the concrete, under Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67 [2005], the City would prevail.

Administrative Code § 7-210

At common law, prior to enactment of § 7-210, the City, and not the abutting landowner, was liable for injuries sustained by a pedestrian as a result of defects in the sidewalk, unless the owner created the defective condition or caused it through some special use.   In addition, while the statutory scheme prior to enactment of § 7-210 required an abutting landowner to “install, construct, repave, reconstruct and repair the sidewalk flags in front of or abutting such property” (Administrative Code § 19-152 [a] [emphasis added] ), and to remove snow, ice, dirt or other material from the sidewalk (§ 16-123[a] ), the failure to abide by these provisions would expose the landowner to fines or require the landowner to reimburse the City for its expense in performing these acts (Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470 [1996] ), but would not expose the landowner to tort liability (Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 520, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008];  see also Muniz v. Bacchus, 282 A.D.2d 387, 724 N.Y.S.2d 46 [2001];  Nicholson v. City of New York, 257 A.D.2d 532, 684 N.Y.S.2d 240 [1999] ).

In 2003, the New York City Council enacted § 7-210, which states in part:

a.  It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.

b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.   Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk ․

c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks ․ in a reasonably safe condition.

Applicable to incidents occurring on or after September 14, 2003, § 7-210 transferred liability for defective sidewalk flags from the City to all nonexempt adjacent property owners (see Klotz v. City of New York, 9 A.D.3d 392, 393, 781 N.Y.S.2d 357 [2004] ).1  The primary intent of § 7-210 and the related amendments to the Code was to alleviate the practical and financial burdens the City faced in maintaining its sidewalks, while preserving an injured person's access to recovery (see Gangemi v. City of New York, 13 Misc.3d 1112, 1121, 827 N.Y.S.2d 498 [2006], citing Mayor Bloomberg's statement in signing Local Laws 49 and 54 of 2003).

Another intent of the new sidewalk law was to address an anomaly in the prior statutory scheme, which ostensibly required property owners to maintain the sidewalks abutting their properties in good repair, but imposed no tort liability for their passive failure to do so (Vucetovic, 10 N.Y.3d at 519, 860 N.Y.S.2d 429, 890 N.E.2d 191).   Liability was only incurred by the property owner for injuries arising from the negligent repair of the sidewalk, creation of the defective condition, or use of the sidewalk for a special purpose (id. at 520, 860 N.Y.S.2d 429, 890 N.E.2d 191, citing Hausser, 88 N.Y.2d at 453, 646 N.Y.S.2d 490, 669 N.E.2d 470).   Therefore, the intent of the new sidewalk law, aside from financial considerations, was to encourage owners to comply with their pre-existing obligations under Administrative Code §§ 16-123(a) and 19-152(a), and ultimately to improve the condition of sidewalks City-wide (see 2003 N.Y. City Legis Ann, at 330-334).

Although the City clearly had the authority to transfer tort liability to abutting property owners under the new scheme (Hausser, 88 N.Y.2d at 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470), § 7-210 of the Code is nonetheless in derogation of the common law and must thus be strictly construed (Vucetovic, 10 N.Y.3d at 521, 860 N.Y.S.2d 429, 890 N.E.2d 191;  see generally McKinney's Statutes § 301[a] ).   Therefore, if the City desired, with the enactment of the new sidewalk law, to shift liability for accidents on pedestrian ramps, “it needed to use specific and clear language to accomplish this goal” (10 N.Y.3d at 522, 860 N.Y.S.2d 429, 890 N.E.2d 191).

 As quoted above, § 7-210(b) states that the abutting landowner is liable for injuries caused by a failure to maintain the “sidewalk” in a reasonably safe condition, and the “[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk.”   While the section states “but not limited to,” the Court of Appeals has held that “this clause applies to the types of maintenance work to be performed, not the specific features of what constitutes a sidewalk” (Vucetovic, 10 N.Y.3d at 522, 860 N.Y.S.2d 429, 890 N.E.2d 191).   Therefore, the abutting landowner's liability, as it relates to its failure to maintain the “sidewalk,” is limited to its failure to repair, replace, etc. “sidewalk flags.”   There is simply no indication anywhere in the amendments, or for that matter in the legislative history of § 7-210, that the City Council intended to include pedestrian ramps as part of the sidewalk that the abutting property owner would be responsible for maintaining.   As the Court of Appeals noted in Vucetovic, Administrative Code § 7-210 mirrors § 19-152, which merely required the abutting property owner to “install, construct, repave, reconstruct and repair the sidewalk flags” abutting the property (10 N.Y.3d at 519, 860 N.Y.S.2d 429, 890 N.E.2d 191).

Moreover, the City's Highway Rules regarding “Sidewalk, Curb and Roadway Work” mandate the specific construction requirements of sidewalk “flags” (34 RCNY § 2-09[f][4][vii] ) and “Pedestrian ramps” (§ 2-09[f][4] [xiv] ), clearly indicating that the City views the two as separate and distinct items.   Additionally, Administrative Code § 19-112 (Ramps on Curbs) provides in pertinent part:

In the construction and installation of all new and reconstructed curbs at corner located street intersections and pedestrian crosswalks not located at street intersections, provision shall be made for the installation of the following:  two ramps at corners located at street intersections and one ramp at pedestrian crosswalks not located at street intersections ․ [continuing to discuss the specific requirements for the construction of such ramps].

Thus, § 19-112 includes ramps as part of the curb, not the sidewalk, in both its title heading and its text.   The abutting landowner is not responsible for maintaining and repairing these ramps (see Rodriguez v. Sequoia Prop. Mgt. Corp., 24 Misc.3d 822, 878 N.Y.S.2d 606 [Sup. Ct., Queens County, 2009] ), and the motion court thus improperly denied defendant 240's motion for summary judgment.2

Notice

 Contrary to plaintiff's assertions, the City did not receive prior written notice of the hole that allegedly caused plaintiff to trip (Administrative Code § 7-201[c][2] ).   The Big Apple map on which plaintiff relied did not constitute such notice because the “awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident” (Roldan v. City of New York, 36 A.D.3d 484, 831 N.Y.S.2d 110 [2007] ).   In other words, markings showing a crack on the sidewalk do not give notice of a hole at the end of that crack.   The markings on a Big Apple map must give notice of the particular defect alleged to have caused the injury (see D'Onofrio v. City of New York, 11 N.Y.3d 581, 873 N.Y.S.2d 251, 901 N.E.2d 744 [2008];  Laughton v. City of New York, 30 A.D.3d 472, 817 N.Y.S.2d 105 [2006];  Waner v. City of New York, 5 A.D.3d 288, 773 N.Y.S.2d 542 [2004] ).

There are issues of fact, however, as to whether the City caused or created the hole.   On a motion for summary judgment, “Where the City establishes that it lacked prior written notice ․, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the [requirement of written notice]-that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” (Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ).   Furthermore, “the affirmative negligence exception ․ [is] limited to work by the City that immediately results in the existence of a dangerous condition” (Bielecki, 14 A.D.3d at 301, 788 N.Y.S.2d 67, quoted in Yarborough ).

 Here, plaintiff submitted evidence through her expert that the City was partly responsible for creating the hole.   Indeed, there is evidence that the City repaved the street and either buried the curb or simply failed to install one, which created a 1 1/212-to-2-inch vertical drop from the ramp to the street.   The expert further noted, and the photographs confirm, that the missing curb, which was the City's responsibility, accounted for the base of the triangular hole.   And, as the court below found, the City never opposed these facts.   We thus respectfully disagree with the dissent on this issue.

Accordingly, the order of Supreme Court, New York County (Karen S. Smith, J.), entered February 25, 2008, which denied the motion of defendants abutting property owner and property manager for summary judgment dismissing the complaint and all cross claims as against them, should be reversed, on the law, without costs, the motion granted, and the complaint and all cross claims dismissed as against them.   Order, same court and Justice, also entered February 25, 2008, which granted defendant City's motion for summary judgment dismissing the complaint and all cross claims as against it only to extent of finding that the City had not received prior written notice of the hole in the ramp over which plaintiff allegedly tripped, and denied the motion to the extent of finding that issues of fact exist as to whether the City had caused or created the hole, should be affirmed, without costs.   Appeal from order, same court and Justice, also entered February 25, 2008, which denied the motion of the property owner and manager to vacate the note of issue, should be dismissed, without costs, as academic.   The Clerk is directed to enter judgment in favor of defendants property owner and property manager dismissing the complaint and all cross claims.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered February 25, 2008, reversed, on the law, without costs, the motion granted, and the complaint and all cross claims dismissed as against them.   Order, same court and Justice, entered February 25, 2008, affirmed, without costs.   Appeal from order, same court and Justice, entered February 25, 2008, dismissed, without costs, as academic.   The Clerk is directed to enter judgment in favor of defendants property owner and property manager dismissing the complaint and all cross claims.

I dissent on one issue:  whether the plaintiff has raised a question of fact that the City can be held responsible for plaintiff's accident.   She has not;  therefore, the complaint should be dismissed in its entirety.

The majority correctly notes that because there was no written notice of the defect, the burden is on plaintiff to establish the City's liability.   The majority is also correct that the City can only be responsible if it created the defect by its negligent construction or repair, and if the work immediately results in the existence of a dangerous condition (Yarborough v. City of New York, 10 N.Y.3d 726, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008], quoting Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67 [2005] ) 1

The majority relies primarily on the plaintiff's expert's report, which dealt primarily with the following alleged defects:

the curb ramp provides an “abrupt vertical transition ” which is dangerous and hazardous to users at the base of the ramp creating a significant tripping hazard ․ The difference in heights creates a trap and snare due to the change in levels ․ Either the curb has sunk relative to the ramp and was paved over or the curb is missing entirely.   In either case, there is no protective curb in place, thereby permitting the raised concrete ramp to be exposed to impact traffic ․ [T]he concrete ramp was improperly constructed too thin at the base of the ramp at only 1 1/212″ to 2″ thick, which permitted premature failure of the concrete

Even accepting the expert's observations, they are completely irrelevant to the issue before us.   Plaintiff never stated any of these conditions were the cause of her fall.   She stated, unequivocally, that the fall resulted from her stepping into a hole.   Although the report makes reference to a hole leading from a crack in the pavement, nowhere in the expert's report does he state the actions of the City resulted in the immediate creation of that hole.   At best, the report indicates there may have been a layer of pavement that gradually wore away or cracked because of constant traffic, thereby creating the hole over time.   However, there is nothing but pure speculation to say that hole was an immediate result of the City's work.

Accordingly, plaintiff failed to meet her burden under Yarborough that the actions of the City resulted in the immediate creation of the hazard that caused her injury.

FOOTNOTES

1.   Exemptions exist for owners of one-, two-, or three-family owner-occupied dwellings used exclusively for residential purposes, as well as City-owned property (Administrative Code § 7-210[b] and [c] ).  Neither exemption is claimed here.   Along with § 7-210, the City Council enacted §§ 7-211 and 7-212 to protect individuals injured on defective sidewalks covered by the new sidewalk law.   Section 7-211 requires owners of real property, other than public corporations, to purchase liability insurance covering personal injury occurring on the sidewalks abutting the property.   If the adjoining landowner does not have insurance, § 7-212 authorizes the Comptroller, after consultation with the Corporation Counsel, to pay up to $50,000 for uncompensated medical expenses if certain conditions are met.

2.   Aside from our holding that § 7-210 does not encompass pedestrian ramps, it is not entirely clear that the City would have been permitted to transfer its obligations to private property owners in any event, under the Americans with Disabilities Act of 1990 (Pub. L. 101-336), which prohibits discrimination in the provision of public services.   Specifically, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity” (42 USC § 12132).   Pursuant to this section, a public entity's failure to install pedestrian ramps when it resurfaces a street is in violation of the ADA (Kinney v. Yerusalim, 9 F.3d 1067 [3rd Cir.1993] ).   As the court there noted, Congress's concerns with physical barriers led to a “particular emphasis on the installation of curb cuts” (id. at 1071).   Indeed, the House Report for the legislation noted that “The employment, transportation, and public accommodation sections of this Act would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets” (HR Rep. 485[II], 101st Cong., 2d Sess., at 84, reprinted in 1990 U.S.Code Cong. & Admin. News, at 367).   As such, “under this title, local and state governments are required to provide curb cuts on public streets ” (id., emphasis added;  see also 28 CFR 35.151[e] [regulation mandating the installation of pedestrian ramps whenever a city “alters” a street] ).Consistent with the language of the regulations and the legislative history, the Federal Highway Administration of the United States Department of Transportation opined in a Question and Answer format (see United States Department of Justice's website) that a public agency may not “make” private individuals or businesses responsible for ADA Title II (as well as Rehabilitation Act of 1973 [§ 504] ) mandated pedestrian access.   This opinion, however, is inconsistent with opinion letters issued by the Department of Justice, which has opined that “the ADA does not regulate the manner in which a covered entity, such as [a city], should finance changes it must make in order to bring itself into compliance with the ADA” (Department of Justice, Civil Rights Division, Advisory Opinion No. 797 [August 5, 1999] ).   Therefore, “public entities are free to allocate these costs among their residents in any manner authorized by state law,” as long as a “surcharge is not imposed against a particular individual or group of individuals with disabilities” (id. at 2 [DOJ opined that City of Lancaster, PA was not in violation of Title II of the ADA by requiring house owner to replace curb ramps and/or sidewalks adjacent to house as part of City's annual street improvement project];  see also Advisory Opinion No. 472 [March 15, 1994] [same opinion] ).   Significantly, unlike the statute in Lancaster, Administrative Law § 7-210 exempts owners of one-, two-, or three-family owner-occupied dwellings used exclusively for residential purposes.   Regardless of whether the City can transfer its obligation to install and maintain pedestrian ramps to private entities, it cannot, by Administrative Law § 7-210, shift its liability for ADA Title II violations to private entities (see Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 [9th Cir.2006] ).

1.   There is a second ground to establish liability, namely, the creation of a special use by the City, which concededly does not apply here.

ACOSTA, J.

All concur except TOM, J.P. and SWEENY, J. who dissent in part in an Opinion by SWEENY, J.

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