SCHUTZMAN v. The City of New York et al., Defendants–Respondents–Appellants. (2026)

Order, Supreme Court, New York County (Jeanine R. Johnson, J.), entered October 18, 2024, which denied the motions of defendants 19 East 72nd Street Corporation and Brown Harris Stevens Residential Management LLC (collectively, 19 East 72nd Street) and the City of New York, the Department of Transportation, and the Department of Parks and Recreation (collectively, the City defendants) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to the extent of granting the City defendants' motion for summary judgment dismissing the complaint as against them, and otherwise affirmed, without costs.

Supreme Court properly denied 19 East 72nd Street's motion for summary judgment because 19 East 72nd Street failed to establish that it did not install the allegedly defective tree well involved in plaintiff's trip and fall accident (see Manglani v. City of New York, 209 A.D.3d 563, 563, 175 N.Y.S.3d 475 [1st Dept 2022] ).  19 East 72nd Street's witnesses testified that they did not know who installed the tree well (cf.  Cabral v. Triangle, LLC, 234 A.D.3d 518, 519, 227 N.Y.S.3d 4 [1st Dept 2025] ), and their argument that the allegedly defective tree well was open and obvious and not inherently dangerous is not determinative because that defense relieves a property owner only of its duty to warn (see Navarro v. University Ave., L.P., 221 A.D.3d 412, 413, 197 N.Y.S.3d 234 [1st Dept 2023] ).

However, the court should have granted the City defendants' motion for summary judgment.  The City defendants established prima facie that they lacked prior written notice of the alleged defect through affidavits stating that the City's records did not contain prior written notice of the particular defect with the tree well, and in opposition plaintiff failed to raise a triable issue of fact as to whether they had prior written notice or created the defect through an affirmative act of negligence (see Pena v. City of New York, 243 A.D.3d 484, 484–485, 246 N.Y.S.3d 22 [1st Dept 2025];  Civic v. City of New York, 215 A.D.3d 445, 445–446, 188 N.Y.S.3d 12 [1st Dept 2023] ).  Even assuming, without deciding, that the City defendants installed the tree well, plaintiff's expert safety consultant failed to provide a nonspeculative basis to establish that the work immediately created the defect (see Pena, 243 A.D.3d at 485, 246 N.Y.S.3d 22;  Civic, 215 A.D.3d at 446, 188 N.Y.S.3d 12).