Gera v 500 E. 76th St. LLC

Annotate this Case

Download PDF

Gera v 500 E. 76th St. LLC 2012 NY Slip Op 32450(U) September 20, 2012 Supreme Court, New York County Docket Number: 115856/2009 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - c -c f"3AKis;J~~ J,I',FFE PRESENT: PART ,/ ,T I ' Justice Index Number : 115856/2009 GERA, RUCHIKA vs 500 EAST 76TH STREET SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE I I _ SUMMARY JUDGMENT The following papem, numbered Ito Notlce of MotIonlOrdsr to Show Cause Answerlng Affldavib '5 MOTION SEQ. NO. L 3 ,J /" - ,were mad on this motion tolfor -Affldavlte - Exhibib IW s ) . z,3 - ExhlbiCe Replying Affldavlb Upon the foregolng papers, It Is ordered that thle motion I s , J.S.C. BARBAR >I O T N I S ..................................................................... CASE DISPOSED o OTHER GRANTED IN PART DENIED CHECK As APPROPRIATE: ........................... MoTIoN is: $GRANTED 0SUBMIT ORDER CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT REFERENCE 1. CHECK ONE: 2. 3. J FFE [* 2] Plaintiffs, 5115/12 00 1 DECISION AND ORDER -against- For plaintiffs: Howard Essner, Esq. Essner & Kobin, LLP 50 Broadway New York, NY 10004 212-7504949 Argued. : Motion seq. no.: For non-city defendants: For City: A. Jeffrey Spiro, Esq. Margaret 0. Klein & Assocs. 200 Madison Ave. New Y ork, NY I 00 16 646-392-9250 ,-, Michael Nacchio, ACC Michael A. Cardozo Corporation Counsel 100 Church St. New York, NY 10007 2 12-788-0627 "*- By notice of motion dated January 27, 2012, defendants 500 East 76'h Street LLC (500 East) and Mautner Glick Corp. (Mautner) (LLC, collectively) move pursuant to CPLR 3212 for an order summarily dismissing the complaint and any cross claims against them. Plaintiffs and defendant City oppose. On October 16, 2008, at approximately 8: 15 pm, while plaintiff Ruchika Gera was walking on the sidewalk in front of premises located at 500 East 76thStreet in Manhattan @remises), she tripped and fell when her foot became caught in an ornamental metal tree grate covering a tree well that no longer contained a tree. (Affirmation of A. Jeffrey Spiro, Esq., dated Jan. 27,2012 [Spiro Aff.], Exhs. E, F). It is undisputed that 500 East owns the premises and that Mautner is the management company responsible for maintaining the premises. (Id). [* 3] At an examination before trial (EBT) held on December 10, 201 0, Gera testified, as pertinent here, that she fell when her foot became caught in the hole in the center of the grate covering the tree well. Pictures taken of the location reflect a circular tree well covered almost entirely by a metal grate, except for a hole in the center where apparently a tree should have stood. (Id, Exh. F, G). On December 10,2010, Lydia Azzopardi, the superintendent of the premises at the time of Gera s accident, testified at an EBT that she did not know who placed the grate and that she did not maintain it or perform any work on it. Sometime in 2005 to 2006, a tree that was in the tree well fell due to bad weather. Azzopardi reported the incident to her supervisor, and thereafter called City to report that the tree had fallen. The fallen tree was removed and never replaced. ( I d , Exh. I). At an EBT held on August 26,201 1, William Steyer, the Director of Forestry for Manhattan in City s Department of Parks and Recreation (Parks), testified that Parks requires a property owner to obtain a permit before removing or planting a tree in the sidewalk, that City received a phone call about a dead tree in front of the premises in July 2008, and that a Parks employee inspected the location and recommended that a new tree be planted. A work order was generated in 2009 for the tree planting, but there is no indication that a tree was ever planted. (Id.,Exhs. L, M). LLC argues that it may not be held liable as it did not cause or create the defective condition, the condition was open and obvious, and City is liable as a matter of law for maintaining tree wells, grates surrounding tree wells, and trees within wells located in sidewalks. (Spiro Aff.; Exh. I). 2 [* 4] Plaintiffs argue that as LLC has submitted no evidence showing that the grate was purchased, installed or maintained by any entity other than it, triable issues remain as to its liability. They also observe that the defect was not open and obvious given that the accident occurred at night, and that, in any event, whether it was open and obvious is a triable issue. (Affirmation of Howard Essner, Esq., dated Apr. 23,20 12). City similarly contends that there exist factual issues as to whether LLC installed the grate and failed to maintain it, thereby creating a dangerous condition which caused Gera s accident. (Affirmation of Michael Nacchio, Esq., dated M r 29, 2012). a. In reply, LLC asserts that plaintiffs have not alleged that there was a defect in the grate, and that, as City is responsible for maintaining tree wells, it is also responsible for maintaining tree well grates. (Reply Affirmation, dated May 7,20 12). Pursuant to New York City Administrative Code 5 7-210(c), notwithstanding any other provision of law, the city shall not be liable for any . . . personal injury. . . 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. As section 7-2 10 is strictly construed against City, tree wells are not considered part of the sidewalk for its purposes, and City may be held liable for injuries resulting from its failure to maintain them. (Vucetovic v Epsom Downs, h c . , 10 NY3d 5 17 [2008]). However, an abutting property owner may be held liable for a defect in a tree well if it affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area. (Fernandez v 707, Inc., 85 AD3d 539 [ 1 Dept 20 111; 3 - - [* 5] Teitelbaum v Crown Heights Assn. for Betterment, 84 AD3d 935 [2d Dept 201 11; Grier v 35-63 Realty, Inc., 70 AD3d 772 [2d Dept 201 01). Here, even if LLC installed or maintained the grate, plaintiffs have not alleged that the grate was defective. Moreover, it is undisputed that City was responsible for removing the dead tree and planting a new one, and that it knew that a new tree was needed but failed to plant one before plaintiffs accident. Thus, to the extent that the hole constitutes a dangerous condition, it was neither caused nor created by LLC. LLC also established that it did not perform any work on the grate or tree well. (See eg Vellios v Green Apple, 84 AD3d 1356 [2d Dept 201 11 [owners demonstrated they had no duty to maintain tree well owned by City]; Grier., 70 AD3d at 772 [dismissing complaint against abutting property owner as area where plaintiff fell was unpaved patch of ground on sidewalk which was actually City-owned tree well which had once contained tree, and owner showed it did not create defective condition, negligently repair it, or cause it through special use]). I Accordingly, it is hereby \ FILED ORDERED, that defendants 500 &st 76 S t s w $ M v a u t n e r Glick Corp. s motion &m d couin for summary judgment is granted and the complaint- dismissed as against said defendants, and the Clerk is directed to enter judgment in favor of said defendants. ENTER: DATED: September 20,20 12 New York, New York BAR@A SEP 2 0 20 2 4 JAFFE J . s. c.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.