CABRAL v. TRIANGLE LLC (2025)

Order, Supreme Court, Bronx County (Marissa Soto, J.), entered July 27, 2023, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff alleges that she was injured when she tripped and fell getting out of a car onto the sidewalk abutting premises owned by defendant.  In the pleadings, plaintiff alleged that she was “caused to fall” over a metal fence or railing surrounding a tree well, and that defendant owned and maintained the tree well and sidewalk.

Defendant established its prima facie entitlement to summary judgment by submitting plaintiff's pleadings and deposition testimony, along with photographic evidence showing the area where the sidewalk connects to the tree well and marked by plaintiff at her deposition to show where she fell.  This evidence, taken together, establishes that plaintiff fell when she stepped into and out of the perimeter of the tree well, not when she stepped on an uneven sidewalk slab or other sidewalk defect (see e.g. Brown v. New York City Dept. of Transp., 187 A.D.3d 535, 536, 132 N.Y.S.3d 128 [1st Dept. 2020]).  The perimeter of the tree well is not part of the sidewalk whose maintenance is the responsibility of the abutting property owner under Administrative Code of City of N.Y. § 7–210 (see Fusco v. City of New York, 71 A.D.3d 1083, 900 N.Y.S.2d 81 [2d Dept. 2010]).  Rather, the perimeter of the tree well is part of the tree well itself, which the City, not the property owner responsible for the sidewalk, has the obligation to maintain in a safe condition (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008];  Castro v. 243 E. 138th St., LLC, 190 A.D.3d 475, 476, 135 N.Y.S.3d 651 [1st Dept. 2021]).

Defendant also submitted an affidavit and deposition testimony from one of its owners, stating that the tree wells near the property were installed by the City and that neither defendant nor any building tenant constructed the tree well, maintained it, repaired it, or put it to special use.  This evidence was sufficient to show that defendant did not affirmatively create the dangerous condition, negligently make repairs to the area, or cause the dangerous condition to occur through a special use of the area.  Thus, there was no basis to impose liability on the defendant (see Combier v. City of New York, 96 A.D.3d 505, 505, 946 N.Y.S.2d 159 [1st Dept. 2012];  Farrell v. 225 Parkside, LLC, 173 A.D.3d 1138, 1139, 102 N.Y.S.3d 683 [2d Dept. 2019]).  In opposition, plaintiff failed to raise a triable issue of fact.