For Plaintiff Stuart M. Rissoff Esq.
For Defendants SEP 10 2013 Howard S. Edinburgh Esq. Herzfeld & Rubin, P.C. COUNTY CLERK'S OFFICE.
DECISION AND ORDER
LUCY BILLINGS, J.S.C.
Defendants Permanent Mission of Romania to the United Nations and Romania have moved for summary judgment dismissing plaintiff Weason's action seeking damages for personal injuries. C.P.L.R. § 3212(b). Weason claims that she was injured May 31, 2010, when she tripped on a hole in the sidewalk in front of defendant Mission at 573-577 Third Avenue, New York County, causing her to fall. She further claims that defendants, as the owners of the abutting building, are liable to her because under New York City Administrative Code § 7-210 they bore a nondelegable duty to maintain the sidewalk adjoining the Mission in a reasonably safe condition and negligently failed to do so. The Romania defendants do not deny the hole in the sidewalk or that the condition was unsafe, but based on diplomatic immunity under the federal Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611, deny any duty to repair the hole.
New York City Administrative Code § 7-210 provides:
a. It shall be the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition.
b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . 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 sidewalk. ...
c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks . . . in a reasonably safe condition.
The Administrative Code, on its face, does not make any exception or otherwise address these provisions' effect on real property owners entitled to diplomatic immunity from their enforcement, despite the United Nations Headquarters' longstanding presence in New York City that has led and is likely to lead to foreign governments' ownership of real estate in the City. This ownership in turn has led and is likely to lead to issues regarding the viability of claims against these real property owners for injury to persons or other property.
I. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff originally sued the City of New York as a defendant in this action. Upon a prior motion for summary judgment, the court (Engoron, J.), on April 25, 2012, granted the City of New York summary judgment dismissing the action against the City. C.P.L.R. § 3212(b). Justice Engoron ruled that "whether or not the City had notice of a defect at the location is irrelevant where, as here, § 7-210 of the Administrative Code applies and the City has not made special use of the sidewalk nor caused or created the condition complained of." Aff. of Howard S. Edinburgh Ex. J. Justice Engoron did not address the status of Romania or its Mission or Weason's claim against them. His decision, to the extent of the City's responsibility, is nevertheless law of the case, with the implicit consequence that Weason either may recover against the Romania defendants or not recover at all. People v. Evans, 94 N.Y.2d 499, 503 (2000); Dukett v. Wilson, 31 A.D.3d 865, 868-69 (3d Dep't 2006); Brownriqcr v. New York City Hous. Auth., 29 A.D.3d 721, 722 (2d Dep't 2006); Kve Po Choi v. O.R. Dev. Corp., 17 A.D.3d 538 (2d Dep't 2005). See BDCM Fund Advisor, L.L.C. v. Zenni, 106 A.D.3d 596, 597 (1st Dep't 2013); Chappelear v. Dollar Rent-A-Car, 33 A.D.3d 513 (1st Dep't 2006).
Before Weason's fall May 31, 2010, the New York City Department of Buildings (DOB) had served a Notice of Violation on defendant Mission, pursuant to Administrative Code § 7-210, requiring the Mission, as the abutting property owner, to repair the sidewalk. Defendant Mission consulted with the government of Romania in Bucharest, which advised the Mission that, based on its diplomatic immunity under the Vienna Convention on Diplomatic Relations, Edinburgh Aff. Ex. P, the Mission was exempt from any obligation to repair a New York City sidewalk. Defendant Mission, however, did ...