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Ortiz v. City of New York

August 25, 2009

RAMONA ORTIZ, PLAINTIFF-RESPONDENT-APPELLANT,
v.
THE CITY OF NEW YORK, DEFENDANT-RESPONDENT-APPELLANT, 240 WEST 98TH STREET ASSOCIATES, ET AL., DEFENDANTS-APPELLANTS-RESPONDENTS.
RAMONA ORTIZ, PLAINTIFF-RESPONDENT, THE CITY OF NEW YORK, DEFENDANT-RESPONDENT, 240 WEST 98TH STREET ASSOCIATES, ET AL., DEFENDANTS-APPELLANTS.



Defendants 240 West 98th Street Associates and Weinreb Management appeal from the order of the Supreme Court, New York County (Karen S. Smith, J.), entered February 25, 2008, which denied their motion for summary judgment dismissing the complaint and all cross claims as against them. Cross appeals from an order, same court and Justice, entered February 25, 2008, which granted defendant City's motion for summary judgment dismissing the complaint and all cross claims as against it only to the extent of finding that the City had not received prior written notice of the hole in the ramp over which plaintiff allegedly tripped, and denied the motion to the extent of finding that issues of fact exist as to whether the City had caused or created the hole. Defendants 240 West 98th Street Associates and Weinreb Management appeal from the order, same court and Justice, entered February 25, 2008, which denied their motion to vacate the note of issue.

The opinion of the court was delivered by: Acosta, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Peter Tom, J.P., David B. Saxe, John W. Sweeny, Jr. Rolando T. Acosta & Helen E. Freedman, JJ.

113366/05

At issue in this case is whether a corner pedestrian ramp leading down a sidewalk onto the street is part of the "sidewalk" for purposes of Administrative Code of the City of New York § 7-210, which imposes tort liability on property owners who fail to maintain City-owned sidewalks in a reasonably safe condition. We hold that § 7-210 does not impose tort liability on abutting property owners for defects on pedestrian ramps. The City of New York is responsible for maintaining the pedestrian ramps, and there is evidence that the City was partially responsible for creating the hole in this particular ramp.

Background

On February 3, 2005, plaintiff tripped and injured her knee when she stepped into a triangle-shaped hole in the bottom edge of a pedestrian ramp connected to the sidewalk adjacent to property owned by defendant 240 West 98th Street Associates and managed by defendant Weinreb Management, at 98th Street and Broadway in Manhattan. A missing street curb formed the base of the triangular hole. Plaintiff's expert conducted an inspection of the area of the accident and found several purported defects that, in his opinion, represented departures from City regulations and engineering standards. In particular, the expert found "no protective curb surrounding the concrete sidewalk curb ramp," that is, "[t]he street asphalt [met] the curb ramp directly." He thus concluded that either the City or its agents had constructed the curb ramp without a protective curb in place and without ensuring that the ramp was flush with the street, or the curb had sunk relative to the ramp and had been paved over. He opined, without contradiction by the City, that "the City . . . had actual knowledge of the missing or depressed protective curb as the street was paved directly to the curb ramp without a curb in place as required."

Defendant 240 moved for summary judgment, arguing, inter alia, that Administrative Code § 7-210, the new sidewalk law, did not apply to this case since the pedestrian ramp was not part of the sidewalk for which the adjacent property owner was liable. Section 7-210, it argued, requires only repair and maintenance of the "sidewalk flags," which are different from pedestrian ramps.

The City opposed the motion and cross-moved for summary judgment, arguing that, aside from the fact that Administrative Code § 7-210 transferred liability to the adjacent property owner, it was also not liable because there was no prior written notice of the defect causing plaintiff's injury. The City also noted that the record contained no evidence of any fact that would bring the case within any exception to the prior written notice requirement. The City attached the deposition testimony of Sherry Johnson of the Department of Transportation, who stated that the City had searched the records and found no written notice, complaints or work performed at that location. The City also attached a map prepared by the Big Apple Pothole and Sidewalk Protection Corporation (the Big Apple map), which had been served on the City prior to plaintiff's accident. This map contained no notation indicating a hole or cracked sidewalk at that location.

The court denied defendant 240's motion for summary judgment, holding that the pedestrian ramp was part of the sidewalk for which adjacent land owners were liable for maintenance and repair pursuant to Administrative Law § 7-210. The City's cross motion for summary judgment was granted solely to the extent of finding that the City had not received written notice of the hole. The court found, however, that issues of fact existed as to whether the City had caused or created the defect (not in the construction of the ramp itself, but in creating a height differential when it repaved the street). The court noted plaintiff's expert's finding that the average height differential at the base of the ramp edge measured 11/2 to 2 inches, which provided an abrupt vertical transition creating a recognized tripping hazard. The expert also found (and photographs of the hole confirm) that the base of the triangular hole was caused by a missing curb. The court noted the expert's uncontradicted finding of no protective curb surrounding the concrete sidewalk curb ramp, and the City's actual knowledge of the missing or depressed protective curb, having paved the street directly to the curb ramp without a curb in place as required. The court noted that if the only claim were the premature failure of the concrete, under Bielecki v City of New York (14 AD3d 301 [2005]), the City would prevail.

Administrative Code § 7-210

At common law, prior to enactment of § 7-210, the City, and not the abutting landowner, was liable for injuries sustained by a pedestrian as a result of defects in the sidewalk, unless the owner created the defective condition or caused it through some special use. In addition, while the statutory scheme prior to enactment of § 7-210 required an abutting landowner to "install, construct, repave, reconstruct and repair the sidewalk flags in front of or abutting such property" (Administrative Code § 19-152[a] [emphasis added]), and to remove snow, ice, dirt or other material from the sidewalk (§ 16-123 [a]), the failure to abide by these provisions would expose the landowner to fines or require the landowner to reimburse the City for its expense in performing these acts (Hausser v Giunta, 88 NY2d 449, 452-453 [1996]), but would not expose the landowner to tort liability (Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 520 [2008]; see also Muniz v Bacchus, 282 AD2d 387 [2001]; Nicholson v City of New York, 257 AD2d 532 [1999]).

In 2003, the New York City Council enacted ยง 7-210, which states in part: 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 injury to property or 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 reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the ...


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