FARRELL v. 225 PARKSIDE LLC (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated August 22, 2017.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

On June 16, 2014, the plaintiff tripped and fell in a tree well abutting the sidewalk adjacent to the building in which she resided.  At the time of the accident, the building was owned by the defendant.  The plaintiff commenced this action to recover damages for personal injuries, alleging, among other things, that the defendant was negligent in maintaining the subject sidewalk.  After joinder of issue, the defendant moved for summary judgment dismissing the complaint.  The Supreme Court denied the motion, and the defendant appeals.

Administrative Code of the City of New York § 7–210 places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk.  However, the statute does not extend that duty of maintenance to City-owned tree wells or provide for civil liability for injuries occurring in City-owned tree wells (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191; Gibbons v. City of New York, 139 A.D.3d 1004, 1004–1005, 30 N.Y.S.3d 843).  Thus, liability may be imposed on the abutting landowner in such instances only where she or he has “affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area” (Grier v. 35–63 Realty, Inc., 70 A.D.3d 772, 773, 895 N.Y.S.2d 149; see Leibowitz v. 2555 E. 12th St. Corp., 128 A.D.3d 1023, 1024, 10 N.Y.S.3d 298; Donadio v. City of New York, 126 A.D.3d 851, 852, 6 N.Y.S.3d 85; Morelli v. Starbucks Corp., 107 A.D.3d 963, 964, 968 N.Y.S.2d 542; Morales v. Pozo, 90 A.D.3d 625, 933 N.Y.S.2d 902).

Here, defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no duty to maintain the City-owned tree well, did not create the allegedly dangerous condition, did not negligently repair the sidewalk abutting the tree well, and did not cause the condition to occur through any special use of the tree well.  In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

MASTRO, J.P., DILLON, MALTESE and BRATHWAITE NELSON, JJ., concur.