LUCCIOLA v. CITY OF NEW YORK II (2005)

I. BACKGROUND

Plaintiff sues to recover for personal injuries sustained March 16, 2001, when she fell in a tree well in the sidewalk abutting the business premises leased by defendant E & M Café, Inc., on Arthur Avenue in Bronx County.   E & M Café moves for summary judgment dismissing the complaint and all cross-claims against this defendant, on the ground that E & M Café was not responsible for plaintiff's injuries.  C.P.L.R. § 3212(b).  For the reasons explained below, the court denies E & M Café's motion.

II. E & M CAFÉ'S LIABILITY

 As a party occupying and holding an interest in real property abutting a public sidewalk, E & M Café is not liable for a defect in the sidewalk unless the Café created the defect or made special use of the sidewalk.   Kaufman v. Silver, 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417 (1997);  Thomas v. Triangle Realty Co., 255 A.D.2d 153, 679 N.Y.S.2d 394 (1st Dep't 1998);  Frank v. City of New York, 211 A.D.2d 478, 479, 621 N.Y.S.2d 546 (1st Dep't 1995).   See Troncoso v. City of New York, 306 A.D.2d 208, 760 N.Y.S.2d 846 (1st Dep't 2003);  Moschillo v. City of New York, 290 A.D.2d 260, 736 N.Y.S.2d 26 (1st Dep't 2002);  Salas v. City of Yonkers, 294 A.D.2d 419, 420, 743 N.Y.S.2d 123 (2d Dep't 2002).   E & M Café maintains that it is not liable for a defect in the sidewalk because this commercial tenant did not create any defect and was not responsible for maintaining the sidewalk where plaintiff fell.   Plaintiff claims that E & M Café's liability arises from the tenant's special use of the sidewalk.

A. E & M Café's Evidence

E & M Café supports its motion with the deposition testimony of plaintiff, that she fell on brick surfacing around a tree and not level with the sidewalk adjacent to E & M Cafe's leased premises, and of Enzo DiRende, E & M Café's sole proprietor and vice president, acknowledging a tree 12 to 14 feet from the front of E & M Café.   DiRende denies, however, that E & M Café operated an outdoor Café or placed any chairs in front of the premises.   This evidence adequately establishes that E & M Café did not contribute to the alleged defect, shifting the burden to plaintiff to present contrary evidence.   Troncoso v. City of New York, 306 A.D.2d at 208, 760 N.Y.S.2d 846;  Gitterman v. City of New York, 300 A.D.2d 157, 158, 751 N.Y.S.2d 478 (1st Dep't 2002);  Sharif v. City of New York, 256 A.D.2d 111, 692 N.Y.S.2d 294 (1st Dep't 1998).

B. Plaintiff's Evidence

In opposition, plaintiff's affidavit attests that E & M Café had placed “near the tree well” (1) a freezer, “for some time prior to my fall,” Aff. of Vanessa Agor, Ex. A at 1, and (2) chairs, on numerous prior occasions, and on the day she fell.  Id. at 1-2.   Plaintiff's previous testimony at a hearing pursuant to N.Y. Gen. Mun. Law § 50-h specified that E & M Café had “a refrigerator outside” “at the time of the accident.”   Agor Aff., Ex. B at 13.   Plaintiff attests that E & M Café used the freezer to display and sell food and the chairs to accommodate E & M Café's customers, and these furnishings diverted pedestrian traffic on the sidewalk “into and around” the Café.   Id., Ex. A at 2.   This evidence establishes that E & M Café placed obstructions encroaching over the sidewalk, impeding its normal use, and constituting a special use, Frank v. City of New York, 211 A.D.2d at 478-79, 621 N.Y.S.2d 546;  see Lopez v. City of New York, 19 A.D.3d 301, 797 N.Y.S.2d 490 (1st Dep't 2005), which benefitted E & M Café independent of the public use.  Spangel v. City of New York, 285 A.D.2d 425, 728 N.Y.S.2d 157 (1st Dep't 2001);  Thomas v. Triangle Realty Co., 255 A.D.2d 153, 679 N.Y.S.2d 394;  Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298-99, 532 N.Y.S.2d 105 (1st Dep't 1988).

C. Causal Connection

 E & M Café further claims that even if it benefitted from its special use of the sidewalk area, that use did not cause plaintiff's fall.   Lopez v. City of New York, 19 A.D.3d at 302, 797 N.Y.S.2d 490;  Moschillo v. City of New York, 290 A.D.2d 260, 736 N.Y.S.2d 26;  Salas v. City of Yonkers, 294 A.D.2d at 420, 743 N.Y.S.2d 123;  Benenati v. City of New York, 282 A.D.2d 418, 419, 723 N.Y.S.2d 69 (2d Dep't 2001).   First of all, while DiRende testified that E & M Café did not plant the tree in the tree well or perform any work on the sidewalk, defendant does not establish that its use of the sidewalk and area around the tree well did not cause the misleveled bricks on which plaintiff fell.   The absence of E & M Café's evidence on this point, particularly in the face of plaintiff's affidavit that E & M Café's freezer was “at ․ or near the tree well,” and the Café's chairs were “in the vicinity of the tree well and the ․ freezer,” leaves an issue whether that use of the area did cause the defect in the brick surface.   Agor Aff., Ex. A at 1-2.   See Moschillo v. City of New York, 290 A.D.2d 260, 736 N.Y.S.2d 26;  Benenati v. City of New York, 282 A.D.2d at 419, 723 N.Y.S.2d 69.   Moreover, whether or not E & M Café's freezer, chairs, or employees or customers using those furnishings caused the defective surface, the evidence that they were near the tree well and diverted pedestrian flow leaves an issue whether that use of the area still contributed to plaintiff's fall by causing her to walk on that surface rather than the sidewalk.  Lopez v. City of New York, 19 A.D.3d at 302, 797 N.Y.S.2d 490;  Salas v. City of Yonkers, 294 A.D.2d at 420, 743 N.Y.S.2d 123.

 In any event, the alleged proximity of E & M Café's appurtenances and use to the tree well would impose correlating maintenance obligations on defendant, which according to DiRende it did not carry out.  Kaufman v. Silver, 90 N.Y.2d at 207, 659 N.Y.S.2d 250, 681 N.E.2d 417;  Thomas v. Triangle Realty Co., 255 A.D.2d at 154, 679 N.Y.S.2d 394;  Balsam v. Delma Eng'g Corp., 139 A.D.2d at 298, 532 N.Y.S.2d 105.   Thus, if E & M Café used the sidewalk area for the Café's purposes, defendant would assume an obligation to keep the area reasonably safe to avoid injury to pedestrians.   Kaufman v. Silver, 90 N.Y.2d at 207, 659 N.Y.S.2d 250, 681 N.E.2d 417;  Balsam v. Delma Eng'g Corp., 139 A.D.2d at 298, 532 N.Y.S.2d 105.   Certainly if, as plaintiff's evidence suggests, E & M Café's use caused pedestrians to walk either onto a defective surface or off the sidewalk onto a surface not intended for walking, defendant would be responsible for keeping that surface repaired and safe for pedestrians.

III. CONCLUSION

Consequently, the court denies defendant E & M Café's motion for summary judgment dismissing the complaint and cross-claims against E & M Café.   C.P.L.R. § 3212(b).

LUCY BILLINGS, J.