Opinion
102454/07
12-19-2011
Idelsa Acosta Hidalgo, Plaintiff, v. City of New York, Kingsley Court Associates, LP and Kingsley Realty Holdings, Ltd., Defendants.
For plaintiff: Morrison & Wagner, LLP By Stuart Wagner, Esq. For defendants/third-party plaintiffs Kingsley Court Associates LP and Kingsley Realty Holdings, Ltd: Pillinger Miller Tarallo, LLP By William A. Elder, Esq.
For plaintiff: Morrison & Wagner, LLP By Stuart Wagner, Esq.
For defendants/third-party plaintiffs Kingsley Court Associates LP and Kingsley Realty Holdings, Ltd: Pillinger Miller Tarallo, LLP By William A. Elder, Esq.
Michael D. Stallman, J.
Upon the foregoing papers, it is ordered that this motion for summary judgment by defendants Kingsley Court Associates, LP and Kingsley Realty Holdings, Ltd. is denied.
In this action, plaintiff alleges that, on February 28, 2006, she tripped and fell on the sidewalk in front of 336 Fort Washington Avenue in Manhattan. Plaintiff alleges that Kingsley Court Associates, L.P. and Kingsley Realty Holdings, Ltd. (collectively, Kingsley) owned, operated, managed and maintained the sidewalk abutting the premises at 336 Fort Washington Avenue. Plaintiff brought this action against the City of New York and Kingsley, and Kingsley impleaded the New York City Transit Authority, Metropolitan Transit [sic] Authority, and Vorillas Management, Inc.
The City previously moved for summary judgment, and Kingsley opposed the motion, claiming that damage to the sidewalk may be due to a subterranean tunnel that Kingsley believed was collapsing. Kingsley asserted in that prior motion that the tunnel was an abandoned passenger tunnel once used for access to the subway station, the entrance to which is now located at West 175th Street and Fort Washington Avenue. By decision and order dated August 3, 2010, this Court granted the City's motion for summary judgment dismissing the action as against it. (Hidalgo v City of New York, Sup Ct, New York County, Aug. 3, 2010, Stallman, J., index No. 102454/2007.) The Court reasoned, "The alleged cause of the cracking, even if proven, would not create an exception to Administrative Code § 7-210, nor would liability be shifted back to the City under such circumstances." The Court also stated, "Although the sidewalk defect here might be attributable to sub-surface conditions beyond the abutting property owner's control, it does not follow that the cracks in the sidewalk could not have been fixed."
Kingsley now moves for summary judgment dismissing the complaint, arguing that "the proximate cause of the sidewalk defects was not Kingsley's failure to install, maintain, repair or clear the sidewalk." In support of its motion, Kingsley submits the deposition testimony of Mauricio Fernandez, Kingsley's Superintendent, who recounted his efforts in 1999 to get either the City of New York or the Transit Authority to do something about the condition of the sidewalk. (See Elder Affirm., Ex G at 30-31.) Kingsley also submits the affidavit of Jacques P. Wolfner, P.E., who opines that "the deterioration of the subject sidewalk is due to the severe settlement of the soil foundation. The soil foundation of the subject sidewalk was placed as part of the subway construction. The soil backfill was not adequately compacted when the subway was constructed Circa 1930." (Id., Ex H [Wolfner Aff.] ¶ 14.) In addition, Kingsley submits an unsworn letter dated February 5, 2010 from Dr. Carl J. Costantino, an engineering consultant. (Id. Ex J.) Kingsley argues that it was not free to "excavate the foundation of the sidewalk and re-compact the soil surrounding the subterranean passenger tunnel," citing New York City Charter § 2903 (b) (4).
Kingsley has not met its prima facie burden of summary judgment as a matter of law. As the Court indicated in its prior decision and order dated August 3, 2010, "Although the sidewalk defect here might be attributable to sub-surface conditions beyond the abutting property owner's control, it does not follow that the cracks in the sidewalk could not have been fixed." Here, on this motion, Kingsley has not demonstrated that it was not able to fix the cracks in the sidewalk abutting its property.
Kingsley's argument, in essence, is that the soil underneath the sidewalk is not part of the sidewalk for purposes of Administrative Code § 7-210, even though the soil underneath the sidewalk may be the cause of the sidewalk cracks. First, the contention that Kingsley would have had to re-compact the soil surrounding the subterranean passenger tunnel is based only on an attorney's affirmation.
Second, Kingsley has not demonstrated that, as a matter of law, the soil beneath the sidewalk that it asserts ought to have been better compacted was the responsibility of the City of New York. Kingsley's reliance on New York City Charter § 2903 (b) (4) is misplaced. New York City Charter § 2903 (b) (4) provides that the Commissioner of the City's Department of Transportation "shall have charge and control of the following functions relating to the construction, maintenance and repair of public roads, streets, highways, parkways, bridges and tunnels:
(4) filling of sunken lots, fencing of vacant lots, digging down of lots and licensing of vaults under sidewalks;"(NY City Charter § 2903 [b] [4].) To the extent that Kingsley argues that the sidewalk is a sunken lot, New York City Charter § 2904 states:
"The owner of any property at his own cost, shall
(1) install, reconstruct, repave and repair the sidewalk flags in front of or abutting such property, including but not limited to the intersection quadrant for corner property, andAdministrative Code § 7-210 imposes a duty upon "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." "The City Council enacted section 7-210 in an effort to transfer tort liability from the City to adjoining property owners as a cost-saving measure, reasoning that it was appropriate to place liability with the party whose legal obligation it is to maintain and repair sidewalks that abut them—the property owners.'" (Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521 [2008].)
(2) fence any vacant lot or lots comprising part or all of such property and fill any sunken lot or lots comprising part or all of such property or cut down any raised lot or lots comprising part."
Kingsley's novel argument is that the soil underneath a sidewalk is not part of the "sidewalk" for the purposes of Administrative Code § 7-210. Kingsley cites no case law for proposition that soil underneath a sidewalk could not be within the duty of the abutting property owner, where the condition of the soil underneath causes, as Kingsley asserts, cracks in the sidewalk that make the sidewalk not reasonably safe. Following Kingsley's argument, an abutting owner who must replace a sidewalk flag pursuant to Administrative Code § 7-210 would not have to ask that contractors compact the soil before the concrete is poured, even if inadequate soil compacting could, as Kingsley's own expert opined, ultimately cause cracks in the new sidewalk.
Asnis v City of New York (2008 WL 3889212 [Sup Ct, NY County 2008]), which Kingsley cites, is distinguishable. In Asnis, the sidewalk defect upon which the plaintiff allegedly tripped and fell was the remnant of a sign post. " A City sign or signpost is not part of the sidewalk' for purposes of section 7—210 of the Administrative Code of the City of New York." (Smith v 125th Street Gateway Ventures, LLC, 75 AD3d 425, 425 [1st Dept 2010].) Neither has Kingsley demonstrated that Storper v Kobe Club (76 AD3d 426 [1st Dept 2010]) applies in this case. Storper involved a trip and fall on a raised and broken portion of public sidewalk within 12 inches of a vault cover owned by the MTA, which it was required to maintain pursuant to 34 RCNY 2-07. Here, there is no evidence on this motion that the area where plaintiff tripped and fell was within 12 inches of a vault cover or grating, and that this cover or grating was owned by another party or non-party.
Even if an abutting property owner has no duty with respect to the subterranean structures or conditions underneath a sidewalk under Administrative Code § 7-210, it does not follow that the abutting property owner is free to do nothing about existing cracks in a sidewalk that might render the sidewalk not reasonably safe. As the Court indicated in its prior decision and order, the abutting property owner is responsible for correcting sidewalk defects caused by the growth of roots, underneath a public sidewalk, from trees under the jurisdiction of the City's Department of Parks. "[I]t is clear that the New Sidewalk Law, when dealing with a non exempt property under §7-210, where the sidewalk may have been damaged by the tree roots of the curbside tree, the owners of the property abutting the defective sidewalk are responsible for remedying the condition and are liable for damages that may occur because of the defect." (Satram v City of New York, 24 Misc 3d 1233 (A) [Sup Ct, Kings County 2009]; see also DiGregorio v City of New York, 19 Misc 3d 1135 (A) [Sup Ct, Kings County 2008]["Liability does not shift back to the City when the accident occurred due to growth of tree roots."] [collecting cases].)
Moreover, the Court is not persuaded, on this record, that the scope of the work involved to maintain the sidewalk in a reasonably safe condition would have necessarily entailed work that
(Continued . . .)encroached upon an area which might arguably fall under the legal responsibility of another party or non-party. Therefore, Kingsley's motion for summary judgment is denied.
Hidalgo v City of New York, Index No. 102454/2007
Dated:12/19/11/s/, J.S.C.
New York, New York
1. Check one: ................................................................ 2. Check if appropriate:............................ MOTION IS:3. Check if appropriate:................................................ CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIEDGRANTED IN PARTOTHER SETTLE ORDERSUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT REFERENCE