BRANCH v. 36 (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Heela D. Capell, J.), dated April 3, 2025.  The order, insofar as appeal from, granted that branch of the motion of the defendants 36 Plaza Corp. and Babad Management Co., LLC, which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, the defendants 36 Plaza Corp. and Babad Management Co., LLC (hereinafter together the defendants), to recover damages for personal injuries she allegedly sustained when she tripped and fell on a raised brick surrounding a tree well which abutted a building owned by the defendants.  The defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them.  The plaintiff opposed the motion.  In an order dated April 3, 2025, the Supreme Court, among other things, granted that branch of the defendants' motion.  The plaintiff appeals.

“Administrative Code of the City of New York § 7–210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner” (Ivry v. City of New York, 206 AD3d 980, 981;  see Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 171).  However, “section 7–210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” (Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521).  “[L]iability 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” (Ivry v. City of New York, 206 AD3d at 981 [internal quotation marks omitted];  see Gibbons v. City of New York, 139 AD3d 1004, 1004–1005).

Here, the defendants demonstrated, prima facie, that the plaintiff fell due to a condition in a tree well that they had no duty to maintain and that they did not create the alleged dangerous condition that caused the plaintiff to fall, negligently make repairs to the area, or cause the condition to occur through any special use of the tree well (see Marcano v. City of New York, 224 AD3d 829, 830;  Ivry v. City of New York, 206 AD3d at 981).  In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

DUFFY, J.P., WARHIT, VENTURA and OTTLEY, JJ., concur.