YOUSUFU SANGARAY, Aрpellant, v WEST RIVER ASSOCIATES, LLC, Respondent, et al., Defendants. (And a Third-Party Action.)
Court of Appeals of the State of New York
Argued January 5, 2016; decided February 11, 2016
48 NE3d 933, 28 NYS3d 652 | 26 NY3d 793
POINTS OF COUNSEL
Kelner & Kelner,
Rebore, Thorpe & Pisarello, P.C., Farmingdale (Timothy J. Dunn, III, and Michelle S. Russo of counsel), for respondent. The Appellate Division correctly affirmed the lower cоurt‘s granting of dismissal to the owner of property that did not abut the sidewalk where the accident occurred. (Vucetovic v Epsom Downs, Inc., 10 NY3d 517; Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200; Matter of Brown v Wing, 93 NY2d 517; Desiderio v Ochs, 100 NY2d 159; Montalbano v 136 W. 80 St. CP, 84 AD3d 600; Thompson v 793-97 Garden St. Hous. Dev. Fund Corp., 101 AD3d 642; Lorenzo v Ortiz Funeral Home Corp., 113 AD3d 528; Byron v City of New York, 119 AD3d 625; Mitchell v Icolari, 108 AD3d 600; Camacho v City of New York, 96 AD3d 795.)
OPINION OF THE COURT
Pigott, J.
Plaintiff alleges that he tripped and fell when his right toe came into contact with a raised portion of a New York City public sidewalk. The sidewalk flag that plaintiff was traversing ran from the front of a property owned by defendant West River Associates, LLC to a neighboring premises owned by defendants Sandy and Rhina Mercado. A photograph contained in the record depicts the sidewalk flag slоping and descending lower than a level flagstone that is in front of the Mercado property. The expansion joint that plaintiff‘s toe contacted abutted solely the Mercado property.
Plaintiff commenced this common-law negligence action against West River and the Mercados. After defendants served their respective answers, plaintiff responded to West River‘s demand for a verified bill of particulars by alleging, among other things, that West River violated section 7-210 of the Administrative Cоde of the City of New York. That provision, which was enacted for the purposes of transferring tort liability from the City to certain adjoining property owners as a cost-saving measure (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521 [2008]), provides, as relevant here:
“a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition. “b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any . . . personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonаbly safe condition shall include, but not be limited to, the negligent failure to . . . repair or replace defective sidewalk flags.”
West River moved, among other things, for summary judgment dismissing plaintiff‘s complaint, asserting that because the area of the sidewalk upon which plaintiff tripped was located entirely in front of the Mercado property, the “defect” did not abut the West River premises, and, therefore, West River could not be held liable for failing to maintain its sidewalk. In support of its motion, West River submitted an affidavit from a land surveyor who conducted a boundary survey of the sidewalk in front of the West River and Mercado properties. The surveyor determined that the expansion joint upon which plaintiff claimed he tripped was wholly in front of the Mercadо property, as evidenced by the survey map that was attached to the surveyor‘s affidavit.
Plaintiff countered that West River breached its statutory duty by allowing its sidewalk flag to fall into disrepair, and, in any event, failed to demonstrate its entitlement to summary judgment bеcause it did not show that it maintained its sidewalk in a reasonably safe condition.
The Mercados also opposed West River‘s motion, arguing that, based on their own survey and an affidavit submitted by a licensed professional engineer, approximatеly 92% to 94% of the defective flag (which had settled due to subsidence of the underlying soil) was in front of the West River property, and 6% to 8% of the defective flag fronted the Mercado property.
Supreme Court granted West River‘s motion for summary judgment and dismissed plаintiff‘s complaint and the Mercados’ cross claim upon constraint of the Appellate Division, First
On plaintiff‘s appeal, the Appellate Division affirmed, holding that because the record demonstrated that “West River did not own the property that abutted the sidewalk where plaintiff tripped and fell[, it] was therefore not responsible for maintaining the sidewalk in a reasonably safe condition” (121 AD3d 602, 603 [1st Dept 2014], citing
The case upon which West River primarily relies, and which both the lower courts found controlling, is Montalbano. Contrary to West River‘s contention, Montalbano is distinguishable from this case. In Montalbano, the plaintiff claimed that he tripped on a sidewalk flag that was raised on one side at the expansion joint (84 AD3d at 600). There was initially a dispute concerning whether the sidewalk flag abutted the property of defendant 80th Street Owners Corp. or defendant James Callanan, but as the litigation progressed, it became clear by way of a survey that the area where the plаintiff claimed he tripped abutted the Owners Corp. property (see id. at 601). The plaintiff and Owners Corp. argued, among other things, that because the majority of the flag abutted Callanan‘s property, Callanan was liable to the plaintiff, but the Court disagreed, holding that the plaintiff did not fall on a portion of the sidewalk abutting Callanan‘s property (see id. at 602). The Court further rejected the argument by the plaintiff and Owners Corp. that Callanan‘s replacement of the defective sidewalk flag after the accident made Callanan liable to the plaintiff, holding that it was irrelevant whether Callanan had exercised control over that part of the sidewalk because
Unlike the plaintiff in Montalbano, who did not argue that Callanan failed to maintain the sidewalk flag abutting his property in a reasonably safe condition, plaintiff here argues that West River failed to comply with its own statutory duty to maintain the sidewalk аbutting its premises in a reasonably safe condition, and that such failure was a proximate cause of his injury. To be sure, the location of the alleged defect and
As part of its prima facie showing of entitlement to summary judgment, West River was required to do more than simply demonstrate that the alleged defect was on another landowner‘s property. Here, West River focused solely on the location of the actual defect uрon which plaintiff allegedly tripped, and ignored its burden of demonstrating that it complied with its own duty to maintain the sidewalk abutting its property in a reasonably safe condition and/or that it was not a proximate cause of plaintiff‘s injuries (see e.g. James v Blackmon, 58 AD3d 808, 809 [2d Dept 2009]).
Plaintiff tripped on an expansion joint that abutted the Mercados’ property. That does not end the inquiry, nor does the fact that the defect upon which plaintiff tripped was in front of the Mercado property necessarily absolve West River of liаbility. Although West River did not have a duty to remedy any defects in front of the Mercado property,
Accordingly, the order of the Appellate Division should be reversed, with costs, and West River Associates, LLC‘s motion insofar аs it sought summary judgment dismissing the complaint denied.
Judges Rivera, Abdus-Salaam, Stein and Fahey concur; Chief Judge DiFiore and Judge Garcia taking no part.
Order reversed, with costs, and defendant West River Associates, LLC‘s motion insofar as it sought summary judgment dismissing the complaint denied.