Opinion
No. 27874/06.
2010-04-6
Patrick FLYNN and Marie Flynn, Plaintiffs, v. The CITY OF NEW YORK and Hanus Simone as Executrix of the Estate of Radu Neagoe, Defendants.
Christopher Spina, Esq., Sullivan Papian, Block McGrath & Cannavo, New York, for Plaintiffs. William J. Crowe, Esq., Gannon, Rosenfarb & Moskowitz, New York, for Defendant Simone.
Christopher Spina, Esq., Sullivan Papian, Block McGrath & Cannavo, New York, for Plaintiffs. William J. Crowe, Esq., Gannon, Rosenfarb & Moskowitz, New York, for Defendant Simone.
Magdalena Perlman, Esq., Michael A. Cardozo, Corporation Counsel, Jamaica, for the City.
KEVIN J. KERRIGAN, J.
The following papers numbered 1 to 16 read on this motion by defendant, Hanus Simone, as executrix of the Estate of Radu Neagoe for summary judgment.
Papers
Numbered
Notice of Motion–Affirmation–Exhibits .......... 1–4
Memorandum of Law ............ 5–6
Affidavit in Opposition–Exhibits .......... 7–9
Memorandum of Law ............... 10–11
Affirmation in Opposition–Exhibit .......... 12–14
Reply ............... 15–16
Upon the foregoing papers it is ordered that the motion is decided as follows:
Motion by Simone for summary judgment dismissing the complaint and all cross-claims as against her as executrix of the estate of Neagoe is granted.
Plaintiff Patrick Flynn, a firefighter, allegedly sustained injuries as a result of falling when he stepped on a water valve gate box cover in the sidewalk next to a fire hydrant in front of the premises 759 Seneca Avenue in Queens County as he was walking from his fire truck to the hydrant on July 8, 2006. The photographs annexed to the moving papers show a square metal valve box cover recessed into the sidewalk next to the hydrant. The premises abutting the sidewalk were owned by Neagoe, who died in 2005. Simone was the executor of Neagoe's estate and the premises had not yet been distributed on the date of the accident.
An abutting property owner is not liable for injuries sustained by a pedestrian as a result of a defective condition of a public sidewalk unless the property owner created the defective condition or caused it through some special use, or unless a statute charges the owner with the responsibility to repair and maintain the sidewalk and specifically imposes liability upon the owner for injuries resulting from a violation of the statute ( see Solarte v. DiPalmero, 262 A.D.2d 477 [2nd Dept 1999] ).
The uncontroverted evidence proffered on this record is that the valve box was installed and maintained by the City and that the owner of the abutting premises made no repairs or alterations at that location. Therefore, it is uncontested that neither Neagoe, Simone nor anyone on their behalf created the condition that allegedly caused plaintiff's injuries. Moreover, there is no issue of a special use of the valve box by the abutting premises since it is uncontested that the valve box is appurtenant to and services the fire hydrant.
Counsel for plaintiff contends that liability against Simone may be premised upon x7–210 of the Administrative Code of the City of New York, which imposes liability upon property owners for failing to repair and maintain the public sidewalks abutting their property, except owners of one to three-family homes that are either wholly or partially owner-occupied and used exclusively for residential purposes. The subject premises is a six-family premises and, thus, does not fit within the exception to x7–210. Counsel argues that Simone was responsible for maintaining the sidewalk flush with the valve box cover and was liable for the “mis-leveled” condition of the sidewalk surrounding the valve box. Counsel's argument is without merit.
As counsel for plaintiff correctly notes, § 7–210 must be read in conjunction with § 19–152 of the Administrative Code since the scope of a property owner's liability regarding abutting sidewalks imposed by § 7–210 “mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code section[s] 19–152” (Report of Committee on Transportation, 2003 New York City, N.Y. Local Law Report No. 49 Int. 193). Counsel contends that 19–152(a)(6) requires a property owner to repair mislevelings between the sidewalk and hardware in the sidewalk. That section, however, provides that a property owner may only be required to repair “those sidewalk flags which contain a substantial defect” which includes “hardware defects” defined as “hardware or other appurtenances not flush within 1/2” of the sidewalk surface” (emphasis added).
Abutting property owners do not have blanket responsibility for all hardware installed in the sidewalk, but only such hardware that is appurtenant to the owner's property. Since it is undisputed that the valve box was appurtenant to the fire hydrant, and since there is no evidence suggesting, nor does plaintiff allege, that such hardware belonged to or serviced the abutting premises, there is no basis for liability against Simone under § 7–210 based upon x19–152(a)(6).
Moreover, the evidence on this record is that the subject area of the sidewalk where the valve box was recessed was the result of the design and construction of the City, which appropriated that area for the placement of the hydrant and its valve box. Moreover, the record on this motion indicates that the City continued to maintain the hydrant and valve box. Therefore, not only did the City create the condition, but it continued to possess, control and maintain the area to the exclusion of Simone. Neither counsel for plaintiff nor the City cite any authority, and this Court is unaware of any, for the proposition that § 19–152 may be held to apply to the instant situation and obligate the adjacent property owner to take charge of the area around a City fire hydrant and undo the construction work performed by the City.
Indeed, not only was Simone not obligated to undo or modify the work performed by the City around the valve box, she had no right to do so. The placement and maintenance of a fire hydrant (and, here, its appurtenant valve box) is the exclusive province of the municipality ( see Manning v. City of New York, 2007 N.Y. Slip Op 51667[U] [Supreme Ct, Richmond County 2007] ).
In addition, to the extent that counsel for plaintiff characterizes the recessed condition of the valve cover as a sidewalk “repair” issue, § 19–152(a) specifically prohibits the City from directing the property owner to repair or correct any sidewalk flag that was damaged by the City or the City's contractors in the course of a capital construction project. There is no issue that the condition of the area in question was created by the City in connection with a capital construction project—the installation of a fire hydrant and valve gate box.
Also, the Court notes that the Highway Rules governing underground street access covers, transformer vault covers and gratings (34 RCNY § 2–07 [b][1] ) provides, “The owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware.” In the present matter, plaintiff alleges that he fell because he stepped on the recessed valve cover, and, thus, there is no question that the condition complained of was within 12 inches of the valve cover. Therefore, responsibility for the recessed condititon would belong to the owner of the cover, which is the City ( see Cruz v. New York City Transit Authority, 19 AD3d 130 [1st Dept 2005] ).
Finally, with respect to § 7–210, that section was enacted as a cost-saving measure “to place liability with the party whose legal obligation it is to maintain and repair sidewalks that abut them, the property owners” (Report of Committee on Transportation, 2003 New York City, N.Y. Local Law Report No. 49 Int. 193; see Puello v. City of New York, 35 AD3d 294 [1st Dept 2006] ).
Section 7–210 (a) provides, “It shall be the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition” (emphasis added). Section (c) thereof provides, “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” (emphasis added). A plain reading of the language of the statute indicates that responsibility is transferred to abutting property owners only for the maintenance of sidewalks, not for the correction of negligent design features thereof created by the municipality.
The condition at issue has nothing to do with a failure to maintain the sidewalk, thereby allowing it to fall into disrepair. Rather, the condition alleged is the very design of the area of the sidewalk as altered by the City specifically to accommodate its valve gate box. There is no indication either in the language of § 7–210 or in the legislative history behind the statute that the City Council intended to cast responsibility upon the abutting property owner for the City's own affirmative act of creating such condition. Even prior to the enactment of § 7–210, a clear distinction was recognized between the City's responsibility for actually creating a defect in the sidewalk as opposed to its duty merely to maintain the sidewalks in a reasonably safe condition, which duty was “independent of its duty not to create a defective condition” (( see Faulk v. City of New York, 2007 N.Y. Slip Op 51346[U], 3* [Sup Ct, Kings Co 2007] quoting Kiernan v. Thompson, 73 N.Y.2d 840, 841 [1988] ).
Thus, it is the opinion of this Court that § 7–210 does not divert liability for injuries sustained by a pedestrian as a result of a sidewalk condition away from the City where the condition was actually designed and created by the City ( see Adler v. City of New York, 52 AD3d 549 [2nd Dept 2008]; Faulk v. City of New York, supra; Maderias v. National Bank of North America, 2007 N.Y. Slip Op 52219[U] [Sup Ct, Richmond County] ).
Accordingly, the motion is granted and the complaint and all cross-claims are dismissed as against Simone.