Takebe v New York City Hous. Auth.

[*1] Takebe v New York City Hous. Auth. 2009 NY Slip Op 50194(U) [22 Misc 3d 1120(A)] Decided on February 9, 2009 Supreme Court, New York County Cooper, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 10, 2009; it will not be published in the printed Official Reports.

Decided on February 9, 2009
Supreme Court, New York County

Miyoko Takebe, Plaintiff,

against

New York City Housing Authority, Defendant.



112645/07



For the Plaintiff:

Jeffrey Singer, Esq.

Segan, Nemerov & Singer, P.C.

112 Madison Ave.

ew York, NY 10016

(212) 696-9100

For Defendant:

Edward J. Gorman, Esq.

Ledy-Gurren Bass & Siff, L.L.P.

475 Park Ave. South, 27th Fl.

New York, NY 10016

(212) 447-1111

Matthew F. Cooper, J.

Everybody involved in this case agrees as to exactly where on Manhattan's West 89th Street plaintiff, Miyoko Takebe, allegedly tripped and fell. In fact, the location of the roughly eight-inch-wide triangular break in the concrete has been so clearly identified through photographs and deposition testimony that a global positioning system could probably zero in on it with pinpoint accuracy. The problem is that nobody can agree on a fundamental question: Is the fateful spot on the sidewalk or is it on the curb?

It's safe to say that millions of New Yorkers walk the streets of this city everyday with barely a thought as to where the sidewalk ends and the curb begins. But for those of us who deal with personal injury cases arising from sidewalk falls either of the "trip" or "slip" variety the distinction is of critical importance. This is because in 2003, the City Council, by enacting section 7-210 of the Administrative Code of the City of N.Y., largely shifted responsibility for pedestrian [*2]injuries caused by defective sidewalks from the City of New York to adjoining property owners.

Since the new law went into effect, courts, citing the narrow language of section 7-210, have excluded from its reach certain "sidewalk" components that might traditionally have been thought of as being part and parcel of a city sidewalk. Last year, the Court of Appeals in Vucetonic v. Epsom Downs, Inc., 10 NY3d 517 (2008), held that tree wells those little oases of green that dot our city's byways were not part of the sidewalk for purposes of liability. Similarly, in Irizarry v. Rose Bloch 107 Univ. Place Partnership, 12 Misc 3d 733 (Sup Ct, Kings County 2006), summary judgment was granted to the adjoining building owner dismissing the complaint where the plaintiff acknowledged that she fell on the curb rather than on the sidewalk itself.

Relying on Vucetovic and Irizarry, defendant, the New York Housing Authority, moves for summary judgment dismissing the complaint. While defendant concedes that the site of the alleged fall is in front of one of its buildings thus making it an adjoining landowner it contends that it has no liability inasmuch as the site cannot be considered the sidewalk. According to defendant, the place where plaintiff says she fell is "clearly" the curb, an area for which it has no responsibility under the Administrative Code. Plaintiff, on the other hand, asserts that defendant's liability is well established since it is "clear" that the offending crack is situated on the sidewalk.

It turns out that what is the sidewalk and what is the curb, prosaic as that may sound, is anything but clear. This is true not only for this case in particular, but for sidewalks and curbs in general throughout Manhattan. In many cities and towns, the curb generally defined as "the stone or concrete edging forming a gutter along the street"[FN1] is indeed easy to recognize and differentiate from the sidewalk. Along the boulevards of Paris, as laid out by the civic designer Baron Georges-Eugene Haussman in the second half of the 19th Century, the curb takes the form of weighty quarry stones proudly separating the sidewalk from the street. Along the orderly and uniform streets of Truman Burbank's Seahaven, every curb is a well-formed concrete edge set apart from the sidewalk by a strip of manicured lawn.

But along the mean streets of New York, at least as far as curbs are concerned, it seems that almost anything goes. In some places there are real curbstones, in others there are defined concrete curbs separate and distinct from the sidewalk pavement. On many streets, though, there is nothing but a rusted metal edge between the sidewalk and the roadway, or there is only the barest trace of a concrete border differing almost imperceptibly from the sidewalk pavement in color or composition. And then all too often the sidewalk just seems to end at the street without any line of demarcation whatsoever. Under the circumstances, it's little wonder that so many people ignore the command to "curb your dog." Quite simply, they don't know where the curb is.

Defendant's motion for summary judgment rests largely on the color photographs that plaintiff used at her deposition to identify the scene of her fall. The two photographs, which are somewhat dark and grainy, depict a fissure in the pavement that widens into a full fledged crack or hole just inside of what appears to be the score line on the sidewalk slab. This crack then extends up to and against the metal edge adjoining the street. Although plaintiff testified consistently throughout her deposition that the place she fell was on the sidewalk, defendant [*3]argues that the photographs prove otherwise. It is defendant's position that the court should be able to find from the photographs alone that the defect which allegedly caused plaintiff's injury is squarely on the curb, and thus conclude that defendant is entitled to judgment as a matter of law dismissing the complaint.

Plaintiff, of course, contends that the photographs in no way permit the court to make such a finding with regard to the curb or reach such a conclusion with regard to the disposition of the case. According to plaintiff, the photographs conclusively establish that the spot in question constitutes nothing but sidewalk. Although plaintiff did not cross-move for relief, at oral argument her attorney asked the court to search the record and grant partial summary judgment in her favor on the issue of the sidewalk versus the curb.

Rather than relying solely on the photographs, plaintiff has submitted two affidavits in support of her position. The first is from Christopher Genovese, the general manager of the Sanborn Map Company, the publisher of the Big Apple Maps. These maps, the subject of much attention recently as a result of the decision by the Court of Appeals in D'Onofrio v. City of New York, 11 NY3d 581 (2008), are used to provide the City with notice of sidewalk, curb and crosswalk defects. Referring to the map covering the relevant area of West 89th Street, Mr. Genovese states the only defect shown is on the sidewalk, not the curb. That defect, though, is marked as an "extended section of raised or uneven sidewalk." The condition at issue, all agree, is not raised or uneven sidewalk, but a very definite crack or hole. As a result, the Big Apple Map sheds little light on the issue.

The second affidavit is of greater significance. It is from Scott Silberman, a professional engineer with a special interest in sidewalks. Mr. Silberman, like just about everybody else who has looked at the photographs of the scene, has an opinion as to whether the spot is sidewalk or curb. He comes down firmly on the side of sidewalk. He bases this opinion, which he states with a "reasonable degree of engineering certainty," on various sections of New York City rules and regulations that refer to the curb as being a structure independent from the sidewalk and separated from it by a "joint or joint filler." According to Mr. Silberman, what is depicted in the photographs is a "monolithic pour" of concrete that fully encompasses the defect. Although there is a score line in the concrete, he views this as having a solely decorative or aesthetic purpose as opposed to actually separating the curb from the sidewalk pavement.

Included with the Silberman affidavit is a diagram identified as the New York City Department of Transportation Standard Details of Construction for a concrete curb. While the diagram represents a schematic cross-sectional view of how a curb is supposed to be built, complete with a "1/4 inch premolded joint filler," it does very little to help a non-engineer identify a curb when called upon to do so, particularly a curb that hasn't been laterally dissected. If anything, the diagram looks more like a blueprint for the rampart constructed by the ancient Romans to storm Masada in 74 A.D..

Also included with the affidavit is a photograph labeled "This is What They Mean by Curbstones." This depicts the classic curb in all its granite-striated majesty, the one nobody has any trouble differentiating from the sidewalk. Unfortunately, as we have seen, not all curbs fall into this category. Because in this case the curb is not readily identifiable, at least to this court's eye, there remains an issue of fact as to whether the place where plaintiff sustained her injury is the sidewalk or the curb. Consequently, summary judgment is not appropriate. See Glick & [*4]Dolleck v. Tri-Pac Export Corp., 22 NY2d 439 (1968). If and when the case goes to verdict, it will be up to the jury, prior to addressing the standard issues involving negligence, to answer a threshold question: Curb or No Curb.

In light of the foregoing, the motion for summary judgment by defendant, the New York City Housing Authority, is denied. The request by plaintiff, Miyoko Takebe, that the court search the record and grant her partial summary judgment is also denied.

This constitutes the decision and order of the court.

Dated: February 9, 2009

ENTER:

__________________________

MATTHEW F. COOPER, J.S.C.

Footnotes

Footnote 1: Webster's New World College Dictionary, 4th edition.