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James v. 1620 Westchester Avenue, LLC

Supreme Court of New York, First Department

February 7, 2013

Denise James, Plaintiff-Respondent,
v.
1620 Westchester Avenue, LLC, et al., Defendants-Appellants.

Defendants appeal from the order of the Supreme Court, Bronx County (Robert E. Torres, J.), entered May 5, 2011, which, to the extent appealed from as limited by the briefs, denied their motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for leave to amend the complaint and from the order, same court and Justice, entered March 8, 2012, which, to the extent appealed from, denied defendants' motion for leave to renew.

Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Joseph D'Ambrosio and Andrew I. Mandelbaum of counsel), for appellants.

Alexander J. Wulwick, New York, for respondent.

Luis A. Gonzalez, P.J., John W. Sweeny, Jr., Rosalyn H. Richter, Nelson S. Román, Darcel D. Clark, JJ.

RICHTER, J.

On or about September 18, 2005, plaintiff was walking home from the grocery store, pushing her shopping cart along the sidewalk on Morrison Avenue in the Bronx. As plaintiff walked, one of the wheels of the cart went into a hole in the sidewalk, causing the cart to flip over. Plaintiff fell to the ground and the cart fell on top of her. Plaintiff alleges that as a result of the accident she sustained a debilitating injury to her neck and a spiral fracture of her right leg.

Defendant 1620 Westchester Avenue, LLC, owns the premises known as 1620 Westchester Avenue, a triangular-shaped building. The building is managed by defendant ISJ Management Corp. The block on which the building sits is bounded to the north by Westchester Avenue, to the east by Harrod Avenue, to the south by Harrod Place, and to the west by Morrison Avenue. Because of the shape of defendants' building, there is a large triangular-shaped sidewalk area between the building and Morrison Avenue. As one travels south from the corner of Morrison and Westchester Avenues, the paved sidewalk splits in two. One part of the sidewalk runs at an angle directly alongside the building, and the other part runs parallel to Morrison Avenue. In between the two paved sections of the sidewalk lies a smaller unpaved triangular area containing grass and several trees.

According to plaintiff, the accident occurred on the portion of the paved sidewalk parallel to Morrison Avenue and adjacent to the unpaved grassy area [1]. This grassy area is not part of defendants' property but is owned by the City of New York [2]. Land surveys submitted by both plaintiff's and defendants' experts indicate that there is no separate tax lot assigned to this area. Thus, there is no intervening parcel between defendants' property and the curb line of Morrison Avenue.

Plaintiff brought this action against defendants seeking to recover for personal injuries sustained when she allegedly fell on the sidewalk. Defendants moved for summary judgment dismissing the complaint, arguing that they were not responsible for maintaining that part of the sidewalk where plaintiff allegedly fell. Plaintiff cross-moved for summary judgment in her favor and for permission to amend her bill of particulars to correct the location of the accident. In an order entered May 5, 2011, the court denied both motions for summary judgment and granted plaintiff's cross motion for leave to amend [3]. Defendants moved to renew, and in an order entered March 8, 2012, the court denied the motion. Defendants now appeal from both orders.

Historically, liability for injuries sustained as a result of negligent maintenance of a public sidewalks was placed on the municipality. In New York City, that changed with the enactment of Administrative Code of City of NY § 7—210 which, with certain exceptions, transferred tort liability for defective sidewalks from the City to abutting property owners. Subdivision (a) of the statute imposes a duty upon "the owner of real property abutting any sidewalk... to maintain such sidewalk in a reasonably safe condition." Subdivision (b) further provides that "the owner of real property abutting any sidewalk... shall be liable for any... personal injury... proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." Failure to maintain a sidewalk in a reasonably safe condition includes, but is not be limited to, "the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags..." (id.).

Although § 7-210 does not define the term "sidewalk, " Administrative Code § 19-101(d) defines sidewalk as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians." This Court has held that, in the absence of a definition in section 7-210, the definition of sidewalk in section 19-101(d) should govern (Fernandez v Highbridge Realty Assoc., 49 A.D.3d 318, 319 [1st Dept 2008]; see Ascencio v New York City Hous. Auth., 77 A.D.3d 592, 593 [1st Dept 2010] [applying section 19-101(d) in determining scope of duty under section 7-210]; Garris v City of New York, 65 A.D.3d 953, 953 [1st Dept 2009] [same]).

The definition of the term "sidewalk" in section 19-101(d) requires denial of defendants' motion for summary judgment. According to plaintiff, the accident took place between the curb line of Morrison Avenue and the adjacent property line of defendants' building [4]. This location fits squarely within the definition of sidewalk contained in section 19-101(d), making section 7-210 applicable (see Khaimova v City of New York, 95 A.D.3d 1280, 1281 [2d Dept 2012] [brick walkway between curb and property line was part of the sidewalk for purposes of liability under section 7-210]; Harakidas v City of New York, 86 A.D.3d 624 [2d Dept 2011], lv dismissed ___ N.Y.3d ___, 2013 NY Slip Op 60606 [2013] [same with respect to asphalt surface between curb line and property line]).

In disclaiming liability under section 7-210, defendants argue that the part of the sidewalk where plaintiff allegedly fell does not abut their property, but rather abuts the unpaved grassy area, which defendants characterize as a separate "parcel of land" and a "park area." Defendants' use of these terms to describe the grassy area is unsupported by the record. The undisputed evidence establishes that, although under the ownership of the City, no separate tax lot is assigned to this area. Nor is there any evidence that the grassy area was ever designated as a park. We perceive no reason why liability under section 7-210 should not attach merely because there is an unpaved area of grass, not comprising a separate lot of property, between the location of the accident and defendants' abutting property.

This case is similar to Pardi v Barone (257 A.D.2d 42 [3d Dept 1999]). In Pardi, the plaintiff fell on a concrete public sidewalk in front of the defendants' property in the City of Schenectady. A strip of land owned by the City was situated between the sidewalk and the defendants' property. This strip was part of the larger municipal right-of-way within which the street and sidewalk were located. A local zoning ordinance, similar to section 7-210, provided that "the owner of lands abutting' any street shall keep the sidewalks adjoining [the owner's] lands' ...


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