198 A.D.3d 730
N.Y. App. Div.2021Background
- On March 5, 2017 plaintiff Konstantinos Gallis tripped and fell on an allegedly raised/uneven sidewalk in Queens near a tree; he sued the abutting owner (23-21 33 Road, LLC) and the City of New York.
- The LLC defaulted and plaintiff obtained leave to enter a default judgment against it.
- Plaintiff moved for summary judgment on liability against the City, arguing the City negligently maintained the tree (roots lifted the sidewalk).
- The Supreme Court (Queens County) denied plaintiff’s motion; plaintiff appealed.
- The Appellate Division affirmed, finding plaintiff failed to meet his prima facie burden on multiple threshold issues under the Administrative Code and summary judgment standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Admin. Code § 7-210 (liability shift to abutting owners) apply to sidewalk defects caused by tree roots? | §7-210 should not relieve City of liability for tree-root–caused defects because Parks Dept. controls trees. | §7-210 shifts sidewalk liability to abutting owner and contains no exception for defects caused by tree roots. | §7-210 applies; the statute shifts liability to abutting owners even where roots cause the defect. |
| Does the owner-occupied residential exception to § 7-210 apply to the LLC property? | Plaintiff contends the LLC may qualify for the owner-occupied residential exception. | City concedes the exception can apply to corporate owners but disputes that LLC actually occupied/used property residentially. | Plaintiff failed to show the LLC occupied or used the property exclusively for residential purposes; triable issue remains. |
| Did plaintiff establish the sidewalk was defective (e.g., raised by specific measurement) and thus not reasonably safe? | Plaintiff testified the flag was raised 2–3 inches and offered photos/documents purporting to show the defect. | City challenged adequacy and admissibility of evidence; disputed measurements. | Plaintiff’s unmeasured testimony and unauthenticated photos/documents failed to establish defect prima facie; issue for factfinder. |
| Did the City have prior written notice of the defect? | Plaintiff did not present evidence of prior written notice. | City argued absence of prior written notice defeats liability. | Plaintiff failed to establish City received prior written notice; summary judgment denied. |
Key Cases Cited
- Dragonetti v. 301 Mar. Ave. Corp., 180 A.3d 870 (App. Div.) (§7-210 shifts sidewalk liability to abutting owner)
- Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517 (Court of Appeals) (legislative purpose and scope of §7-210)
- Trincere v. County of Suffolk, 90 N.Y.2d 976 (Court of Appeals) (whether condition is dangerous is generally a jury question)
- Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (Court of Appeals) (summary judgment inappropriate where defect dimensions are unknown)
- Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (Court of Appeals) (movant bears initial burden on summary judgment)
- Arutyunov v. City of New York, 175 A.D.3d 1368 (App. Div.) (prior written notice required to charge City)