Fernandez v Highbridge Realty Assoc.
Annotate this CaseDecided on November 24, 2006
Supreme Court, Bronx County
Jonathan Fernandez, an infant, by his mother and natural guardian, ANA FERNANDEZ, and ANA FERNANDEZ, Individually, Plaintiff,
against
Highbridge Realty Associates and UNITED PROPERTY SERVICES INC., Individually and as a general partner of HIGHBRIDGE REALTY ASSOCIATES and P & M MANAGEMENT REALTY CORP., Defendant.
6734/05
Plaintiff's counsel: Trollman, Glaser & Lichtman, PC, 777 third Ave., New York, NY 10017.(212) 750-1200.
Defendant's counsel: Moroney Law Offices, 11 Broadway, Suite 1060, New York, NY 1004. (212) 509-2008.
Stanley Green, J.
The motion by Highbridge Realty Associates and United Property Services, Inc.
(Highbridge) for an order pursuant to CPLR §3212 granting summary judgment dismissing
the complaint and all cross-claims against them is hereby consolidated for decision with the
motion by P & M Management Realty Corp. for the same relief and upon consolidation, the
motions are granted.
Plaintiff commenced this action to recover damages for personal injuries sustained by the infant plaintiff on September 25, 2004, when he fell on a loose step on a stairway owned by the City of New York. The stairway, which consists of several flights of stairs, runs from Shakespeare Avenue to Anderson Avenue and abuts the premises owned by Highbridge, located at 1141-1161 Jerome Avenue and the premises owned by P & M, located at 1172 Anderson Avenue, Bronx, New York.
According to the infant plaintiff, as he was descending the fifth stairway, one of the steps wobbled, causing him to fall. Plaintiffs allege that defendants negligently caused and allowed the "sidewalk (public stairway)" to become and remain in a dangerous and defective condition.
Highbridge and P & M seek dismissal of the complaint and all cross-claims on the ground that they were under no duty to maintain or repair the stairway and did not cause or create the [*2]alleged dangerous condition.
In support of the motions, defendants submit transcripts of plaintiffs' deposition testimony, which show that plaintiffs had never made any complaints to anyone about the condition of the stairs and they were not aware of any complaints having been made by anyone else prior to the date of the accident. Highbridge and P & M also submit transcripts of the deposition testimony of their respective building superintendents, both of whom testified that they did not clean or perform any snow and ice removal from the stairway, but each had observed Sanitation Department workers cleaning and shoveling snow and ice from the stairway during the year. P & M's building superintendent, Mr. Pascal, also testified that the City made repairs to the stairway subsequent to plaintiff's accident and that violations for failure to clean the staircase that were issued to his building by a substitute Sanitation Supervisor, were dismissed by a Judge who told him that the building was only responsible for cleaning the area from the stairway rail inside to the building.
Plaintiffs do not dispute that the stairway is owned by the city of New York, but contend that defendants are liable for the infant plaintiff's injuries pursuant to NYC Administrative Code §7-210, which imposes liability the abutting property owner for a "sidewalk" defect and NYC Administrative Code §7-201, which defines a sidewalk as including "a boardwalk, underpass, pedestrian walk or path, step and stairway."
Defendants acknowledge that NYC Administrative Code §7-210 makes an abutting landowner of commercial properties and dwellings in excess of three families responsible for failure to maintain a sidewalk in a reasonably safe condition, but contend that the purpose of Administrative Code section 7-210 is to "mirror" the duties and obligations of property owners set forth in Administrative Code section 19-152, which requires the owner of real property to "install, construct, repave, reconstruct, and repair the sidewalk flags in front of or abutting such property..." and Administrative Code section 15-123, which requires owners and lessees to remove snow and ice from the sidewalk. Defendants also contend that the definition of the term "sidewalk"in Section 7-201 applies only to that particular subdivision, which deals with prior written notice of a defect to the City and that the definition of "sidewalk" as set forth in section 19-101 of Title 19 of the Administrative Code is the definition that the legislature intended to be applied to section 7-210.
Generally, a municipality and not the abutting landowner is liable for injuries sustained as a result of negligent maintenance of a public sidewalk or the existence of a dangerous and defective condition on the sidewalk (Hausser v. Giunta, 88 NY2d 449, citing City of Rochester v. Campbell, 123 NY 405; Roark v. Hunting, 24 NY2d 470). Liability shifts from the municipality to an abutting landowner where: (1) the sidewalk was constructed in a special manner for the benefit of the abutting owner; (2) the abutting landowner affirmatively caused the defect; (3) the abutting landowner negligently constructed or repaired the sidewalk; or (4) a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty (Id).
With the enactment of NYC Administrative Code §7-210,effective September 14, 2003, responsibility for the maintenance of sidewalks and liability for injuries arising out of a defective condition on the sidewalks was shifted to abutting landowners.
Section 7-210 provides: [*3] (a) It shall be the duty of 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.(b) Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, 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. This subdivision shall not apply to one, two or three family residential real property that is (I) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes. (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 (other than sidewalks abutting one, two or three family residential real property that is (I) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition. This subdivision shall not be construed to apply to the liability of the city as a property owner pursuant to subdivision b of this section. (d) Nothing in this section shall in any way affect the provisions of this chapter or of any other law or rule governing the manner in which an action or proceeding against the city is commenced, including any provisions requiring prior notice of the city of defective conditions.
While plaintiff contends that the definition of a "sidewalk" set forth in section 7-201 of the Administrative Code is applicable to section 7-210 of the Administrative Code, that argument is not persuasive because subparagraph "(c)[1]" of section 7-201 specifically limits the application of the definitions to that subdivision of Title 7 by stating: "As used in this subdivision...".
A court's primary consideration in interpreting a statute or code provision is to ascertain and give effect to the intention of the Legislature (Riley v. County of Broome, 95 NY2d 455), quoting McKinney's Cons. Laws of NY, Book 1, Statutes §92 [a] at p. 176). To that end, the legislative history "is not to be ignored, even if the words be clear" (Mc Kinney's Cons. Laws of NY, Book 1, Statutes §124 at p. 252 (d)).
The Bill Jacket of the legislation contains a discussion of the volume and cost of claims against the City arising out of sidewalk defects and the need to hold landowners responsible for failure to comply with the provisions of section 19-152 and 16-123 of the Administrative Code.Section 19-152 of the Administrative Code provides, in pertinent part: (a) The owner of any real property, at his or her own cost and expense, shall (1) install, construct, repave, reconstruct and repair the sidewalk flags in front of or [*4]abutting such property, including but not limited to the intersection quadrant for corner property... whenever the commissioner of the department shall so order or direct...".
Section 19-152 does not define the term "sidewalk," but Section
19-101, "Definitions" defines the term "sidewalk" as follows:
(d) "Sidewalk" shall mean 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.
Section 16-123 of the Administrative Code (Department of Sanitation) does not define the term "sidewalk", but provides that: (a) Every owner, lessee, tenant, occupant, or other person, having charge of any building or lot of ground in the city, abutting upon any street where the sidewalk is paved, shall... remove the snow or ice, dirt, or other material from the sidewalk and gutter...".
Nothing in the language of section 16-123 or 19-152 indicates that the legislators intended to require abutting landowners to maintain and repair stairways such as the one involved in plaintiff's accident. If it was their intention to require abutting landowners to repair steps and stairways owned by the city, then the term "sidewalk" should have been defined in section 7-210 to include stairways, as it is defined in section 7-201.
It is noted that in Woodson v. City of New York (93 NY2d 936), the Court of Appeals rejected the plaintiff's contention that a "stairway" was categorically different from a "sidewalk." That case is distinguishable from the instant case in that it was decided prior to the enactment of Section 7-210 and dealt with the issue of whether the plaintiff had to provide prior written notice of the defective condition on a stairway, which is clearly required under section 7-201 of the Administrative Code.
It is also noted that in Irizarry v. The Rose Bloch (12 Misc 3d 733), the court determined that a curbstone did not fall within the definition of a sidewalk for purposes of imposing liability pursuant to Administrative Code section 7-210, by looking to the definitions provided in Administrative Code section 7-201. However, there was no question as to whether the curbstone was part of the sidewalk in that case because section 7-201 defines "street" as including the curbstone. While this court agrees with the result in that case, this court would not have applied the definitions in section 7-201 to reach that result.
While the stairway involved in plaintiff's accident is the functional equivalent of a sidewalk between Anderson Avenue and Shakespeare Avenue, this court declines to expand the definition of a "sidewalk" to include the steps of a stairway that is several flights high, and arguably a structure, in the absence of clear language indicating that this is what the legislature intended.
In any event, the testimony of the building superintendents shows that the City has routinely exercised control over this stairway, cleaning, removing snow and ice and making repairs of the steps. Under the circumstances, defendants owed no duty to maintain the stairway [*5]where the accident occurred. Accordingly, defendants are entitled to summary judgment dismissing the complaint and all cross-claims.
Movants shall serve a copy of this order with notice of entry on the Clerk of the Court who shall enter judgment dismissing the complaint and all cross-claims.
This constitutes the decision and order of the Court.
Dated: November 24, 2006
____________________________
STANLEY GREEN, J.S.C.
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