Satram v City of New York

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[*1] Satram v City of New York 2009 NY Slip Op 51713(U) [24 Misc 3d 1233(A)] Decided on August 7, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 7, 2009
Supreme Court, Kings County

Surajdai Satram, Plaintiff,

against

The City of New York, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, DHARAMDAS DASWANI, KALAWANTI DASWANI and SRM CONSTRUCTION CORPORATION, Defendants.



35021/06



The plaintiff is represented by Ferro, Kuba, Mangano Skylar, P.C. by Kenneth E. Mangano, Esq., of counsel,

The defendants the City of New York, The New York City Department of Park and Recreation, are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by David Charles Cooperstein, Esq., of counsel.

Robert J. Miller, J.



Trees are a part of nature and our everyday life. They shield us from the sun and have even inspired some to write poetry . Joyce Kilmer's famous poem "Trees" expressed his sentiment:" I think that I shall never see a poem as lovely as a tree".However, in the everyday world of New York tort litigation, a tree on a New York sidewalk seems not to inspire modern day poets but instead inspire lawsuits.

In this case, the Court considers the question of who is responsible for the sidewalk when someone trips and falls on a raised sidewalk flag that could be due to burgeoning tree roots below the surface.

The determination of where liability begins and ends for the 12, 750 miles of New York City sidewalks was supposedly simplified after the enactment in 2003 of Administrative Code of the City of New York §7-210 which is better known as the "New Sidewalk Law." The New Sidewalk Law was intended to shift liability from the City to property owners with the exception of one, two and three family residences used exclusively for residential purposes. However, for the courts that deal with municipal liability in personal injury cases, sidewalks and trees continue to spawn continued litigation. [*2]

The former Chief Justice of the New York Court of Appeals, the Hon. Judith S. Kaye in a New York State Bar Journal article, City Sidewalk Trees and the Law (Feb. 2009) reviewed the merits of the "urban forest" and the legal issues that continue to arise surrounding sidewalk trees. Justice Kay, wrote the article following the Court of Appeals, decision in Vucetovic v. Epsom Downs, Inc., 10 NY3d 517 (2008). In Vucetovic, plaintiff tripped on the cobblestones surrounding the dirt of the tree well and the Court analyzed who was responsible for the maintenance of the tree well. Justice Kaye

stated:

As we know, however careful and comprehensive

the answer, a court decision rarely is the last word

on any subject. In one form or another, sidewalk trees

undoubtedly will continue to reappear on the dockets,

especially with the prospect of 220,000 more of them

on New York City sidewalks alone. Although these trees

are technically the province of the Parks Department, and

sidewalk maintenance is technically the province of the

abutting property owners, these separate domains come into

contact, and inevitably also into conflict. The collective history

of New York "tree" and "sidewalk" laws reflect the competing

interests.

In this case, the plaintiff Surajdai Satram ("Satram") alleges in her Notice of Claim filed against The City of New York ("the City") that on April 2, 2006, while walking on the sidewalk in front of 354 Grant Avenue in Brooklyn, NY that she tripped and fell due to a "cracked, uneven, raised, depressed, missing and/or deteriorated" sidewalk.

Satram sued the City as well as the other defendants, Dharamdas Daswani and Kalawanti Daswani (collectively "Daswani"), the owners of the premises located at 354 Grant Avenue.The City moves for summary judgment relying on the New Sidewalk Law which provides in relevant part as follows:

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

shall include, but not be limited to, 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, personal injury, including

death, proximately caused by the failure to maintain (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.

Plaintiff and Daswani oppose the motion. Plaintiff claims that the City has failed to establish that the subject property was not exempt under the New Sidewalk Law. However, the transcript of Dharamdas Dawani's depostion demonstrates that on April 2, 2006, the day of the accident, 1) he owned the property (p. 14, 1.6), 2) that Daswani did not occupy the property (p, 24, 1.23), and 3) that the property was used as a rental (p.25, 1.16). Because the owner of the property did not occupy it on the day of the plaintiff's accident, but rented the property to a third-party, the property is not exempt from the New Sidewalk Law.

Plaintiff's second argument against summary judgment is that the City should be responsible because the raised sidewalk condition was caused by a tree root. Plaintiff argues that the Administrative Code of the City of New York §18-104 specifies that the planting, cultivating, and care of trees is normally under the exclusive control of the Commissioner of the New York City Department of Parks and Recreation. Plaintiff also argues that the New Sidewalk Law includes the duty to take corrective or precautionary action with respect to sidewalk conditions caused by tree roots.

The issue before the Court is whether or not the existence of a tree whose roots push up the sidewalk is in itself a basis for liability on the part of the City.

Plaintiff relies on Faulk v. City of New York,, 16 Misc 3d 1108A [Supreme Court Kings County, 2007] However, Faulk does not support this position. As the Court in Faulk noted:

Had there been sufficient evidence that Plaintiff's

fall was caused by tree roots, the City's showing

that it had no duty to maintain the sidewalk would

be sufficient for the City's prima facie showing.

Even before the New Sidewalk Law, and where the

City continues to have a duty to maintain, the failure

to control tree roots or their effects on the sidewalk

was not considered "affirmative negligence" that

would avoid the prior-written-notice law.

The Court looks to other cases involving tree roots in the sidewalk. In Goss v Park Briar [*3]Owners, Inc., 14 Misc 3d 1239(A), [Sup. Court Queens County, 2007], the New Sidewalk Law was addressed as it pertains to sidewalks damaged by tree roots. The court in Goss held that "[e]ven had the plaintiff alleged and shown proof that the curbside tree owned by the City had caused the raised sidewalk condition, such fact alone would not establish any basis of liability against the City."The Court in Goss reasoned that the existence of a curbside tree whose roots may have partially raised a sidewalk flag does not, of itself, raise an issue of fact as to negligence and causation. Neither does it raise an issue of special use.

Here, the plaintiff has only speculated that the photos show that a previously existing tree (there is a tree stump in the tree well) caused the raised sidewalk.

Moreover, in Seplow v. Solil Management Corp , (15 Misc 3d 1138A [Sup. Court, NY County, 2007], the Court found that " [t]he City assumes no duty by the mere fact of planting the tree, and does not acquire a duty of care when the tree's roots cause the sidewalk flags to break or become uneven."

The clear unambiguous language of the New Sidewalk Law combined with the expressed purpose of the law as set forth in the legislative history established that the City Council intended to shift liability for sidewalk accidents away from the City to the abutting landowner. This Court previously determined that tree roots that may have caused damage to a sidewalk was not contemplated by the plain language of the New Sidewalk Law in Falco v. Jennings Hall Senior House Development Fund Inc., 19 Misc 3d 1107A, [Sup. Court Kings County, 2008]. Subsequent to this Courts decision in Falco, the Court of Appeals in Vucetovic v. Epsom Downs, Inc.,10 NY3d 517 [2008], considered whether tree wells should be considered an integral part of the sidewalk for purposes of the New Sidewalk Law such that a commercial property owner would be liable for injuries arising from a defective tree well. The Court of Appeals in Vucetovic stated that:

"Section 7-210 does not impose civil liability

on property owners for injuries that occur in city-

owned tree wells. 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." (Citations omitted)

Here, the Court finds that Vucetovic does not provide any basis to impose liability upon the City where, as here, tree roots may have contributed to the defect in the sidewalk. As noted in Vucetovic the statute must be strictly construed so as not to create liability where none existed or contrary to the express purpose of the statute.

Based on the foregoing, it is clear that under 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. [*4]

Accordingly, the motion of the City of New York for summary judgment is granted and the Clerk of the Court is directed to dismiss the complaint and all cross-claims as against the City of New York only with prejudice. The Case is transferred to a non-City part.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. MillerJ.S.C.

August 7, 2009

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