ROJAS v. City of New York, et al., Defendants. (2019)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered on or about April 5, 2018, which, to the extent appealed from as limited by the briefs, granted defendant Empire City Subway Company Ltd.'s (Empire) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.

Empire owns certain manholes in Manhattan, including one located immediately adjacent to where plaintiff allegedly tripped and fell on a hole in a curb.  While the Highway Rules require owners of manholes to monitor and repair defective street conditions within an area extending twelve inches outward from the perimeter of the manhole (34 RCNY 2–07[b][2] ), curbs are not included in the area that a manhole owner is required to repair (see 34 RCNY 2–01).  Accordingly, 34 RCNY 2–07(b) does not apply to curbs (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521–522, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008];  Rakowski v. St. Aiden's R.C. Church, 135 A.D.3d 730, 731, 23 N.Y.S.3d 296 [2d Dept. 2016];  Ascencio v. New York City Hous. Auth., 77 A.D.3d 592, 593, 910 N.Y.S.2d 61 [1st Dept. 2010];  Garris v. City of New York, 65 A.D.3d 953, 885 N.Y.S.2d 491 [1st Dept. 2009] ).

Nevertheless, Empire City Subway Company Ltd.'s motion for summary judgment should have been denied, as it failed to establish that the hole which caused plaintiff's fall was entirely on the curb (see Metzker v. City of New York, 139 A.D.3d 828, 830, 31 N.Y.S.3d 175 [2d Dept. 2016];  Buonviaggio v. Parkside Assoc., L.P., 120 A.D.3d 460, 461–462, 990 N.Y.S.2d 595 [2d Dept. 2014];  cf.  Ascencio, at 593, 910 N.Y.S.2d 61), or outside of the manhole's 12 inch perimeter (34 RCNY 2–07[b][2] ).  Although plaintiff described the hole as located at the curb, another witness testified that the hole was partially on the curb and partially on the sidewalk.  Plaintiff also identified a photo of the hole which indicated that the area where the hole was located did not have a clearly defined curb.