RAHMAN v. REALTY ASSOCIATES LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias–Colón, J.), dated October 10, 2024. The order granted the separate motions of the defendants B & K Realty Associates, LLC, Maimonides Medical Center, Food City Markets, Inc., and Maimonides Newkirk Family Health Center and the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants B & K Realty Associates, LLC, Maimonides Medical Center, Food City Markets, Inc., and Maimonides Newkirk Family Health Center for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying those defendants' motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff, payable by the defendants B & K Realty Associates, LLC, Maimonides Medical Center, Food City Markets, Inc., and Maimonides Newkirk Family Health Center, and one bill of costs to the defendant City of New York, payable by the plaintiff.

The plaintiff commenced this action against the defendants B & K Realty Associates, LLC, Maimonides Medical Center, Food City Markets, Inc., and Maimonides Newkirk Family Health Center (hereinafter collectively the non-City defendants) and the defendant City of New York to recover damages for personal injuries he allegedly sustained when he fell after tripping over a wooden fence surrounding a tree well. The complaint alleged, inter alia, that the defendants were negligent in “causing and creating a hazardous condition by installing and building a fence surrounding the tree.” The City and non-City defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated October 10, 2024, the Supreme Court granted the separate motions. The plaintiff appeals.

Contrary to the plaintiff's contention, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it. Where, as here, a municipality has enacted a prior written notice law, the municipality “cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” (Canaday v Village of Wappingers Falls, 220 AD3d 731, 732 [internal quotation marks omitted]; see Palermo v Metropolitan Tr. Auth., 245 AD3d 729, 731). To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect. Once that showing is made, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality (see Canaday v Village of Wappingers Falls, 220 AD3d at 732; Smith v City of New York, 210 AD3d 53, 62).

Here, the City established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating that it had not received prior written notice of the condition that allegedly caused the plaintiff's injuries (see Mattiello v Town of Oyster Bay, 248 AD3d 776, 777; Callaghan v County of Nassau, 236 AD3d 725, 727). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City received prior written notice or whether either of the recognized exceptions to the prior written notice requirement applied (see Parchment v Crawford, 246 AD3d 824, 825; Canaday v Village of Wappingers Falls, 220 AD3d at 732). Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.

However, the Supreme Court erred in granting the motion of the non-City defendants for summary judgment dismissing the complaint insofar as asserted against them. Administrative Code of the City of New York § 7–210 imposes a duty upon the owner of real property abutting any sidewalk to maintain such sidewalk in a reasonably safe condition (see Shelby v Shalmer Trucking Corp., 240 AD3d 639, 640; Pevzner v 1397 E. 2nd, LLC, 96 AD3d 921, 922). Section 7–210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521; Shelby v Shalmer Trucking Corp., 240 AD3d at 640). Thus, liability may be imposed on the abutting landowner in such instances only where he or she has affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area (see Ivry v City of New York, 206 AD3d 980, 981).

Here, the non-City defendants failed to establish, prima facie, that they did not create the condition that allegedly caused the plaintiff's injuries (see Pevzner v 1397 E. 2nd, LLC, 96 AD3d at 922; Harakidas v City of New York, 86 AD3d 624, 626). Moreover, contrary to the non-City defendants' further contention, they failed to eliminate triable issues of fact as to whether the presence of the subject fence across the tree well was open and obvious and not inherently dangerous under the circumstances surrounding the accident (see Dispensa v City of New York, 245 AD3d 678, 680; Pellegrino v Trapasso, 114 AD3d 917, 918). Since the non-City defendants failed to meet their prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Accordingly, the Supreme Court should have denied the motion of the non-City defendants for summary judgment dismissing the complaint insofar as asserted against them.

DILLON, J.P., WOOTEN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.