Opinion
No. 570281/12.
2012-11-28
Paul FONTANAZZA, Plaintiff v. CENTRAL PARKING SYSTEM OF NEW YORK, INC., Defendant–Respondent Central Parking System of New York, Inc., Third-party Plaintiff–Respondent Edison Company of New York, Inc., Empire City Subway Company, Felix Equities, Inc., and Erectra Construction Corp., Third-party Defendants.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered April 13, 2011, which granted defendant's motion for summary judgment dismissing the complaint in the main action.
Present: LOWE III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Order (Andrea Masley, J.), entered April 13, 2011, affirmed, with $10 costs.
This negligence action seeks to recover damages for personal injuries allegedly sustained when plaintiff stepped into a hole or gap, some two and a half to three inches deep, between the sidewalk and a depressed gas valve cap owned by third-party defendant Con Edison. We sustain the grant of summary judgment dismissing the complaint against defendant, the abutting property owner, since the evidentiary proof submitted by defendant established, prima facie, that it did not have the “ability to exercise control” over the sidewalk defect that allegedly caused plaintiff's fall (Lewis v. City of New York, 89 AD3d 410 [2011];Hurley v. Related Mgt. Co., 74 AD3d 648, 649 [2010] ). While section 7–210 of the Administrative Code of the City of New York generally imposes liability for injuries resulting from negligent sidewalk maintenance on the abutting property owners, Rules of City of New York Department of Transportation (34 RCNY) § 2–07(b) provide that owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending 12 inches outward from the perimeter of the hardware, and for ensuring that the hardware is flush with the surrounding street surface. The cited rule includes a “sidewalk” within the definition of “street .” Accordingly, the responsibility for maintaining the condition of the area where plaintiff fell lies with Con Edison, rather than defendant ( see Flynn v. City of New York, 84 AD3d 1018, 1019 [2011],lv denied17 NY3d 709 [2011];Storper v. Kobe Club, 76 AD3d 426, 427 [2010] ). “There is nothing in Administrative Code § 7–210 to show that the City Council intended to supplant the provisions of 34 RCNY 2–07 and to allow a plaintiff to shift the statutory obligation of ... [Con Edison] to the abutting property owner. In reaching this result, we are guided by the principle that legislative enactments in derogation of common law, and especially those creating liability where none previously existed, must be strictly construed” (Storper v. Kobe Club, 76 AD3d at 427 [internal citations and quotations omitted] ). To the extent that Rojas v. Con Edison, 34 Misc.3d 69 (2011), can be read to support a contrary result, we decline to follow it.
In opposition to defendant's prima facie showing of entitlement to summary judgment, plaintiff failed to raise a triable issue. Contrary to plaintiff's contention, the evidence does not show that “the defect was caused by the [defendant's] special use of the sidewalk as a driveway or that the driveway in any way contributed to the allegedly defective condition (Moschillo v. City of New York, 290 A.D.2d 260 [2002] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.