Seplow v Solil Mgt. Corp.

[*1] Seplow v Solil Mgt. Corp. 2007 NY Slip Op 51033(U) [15 Misc 3d 1138(A)] Decided on May 21, 2007 Supreme Court, New York County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2007
Supreme Court, New York County

Jacqueline Seplow and VAN SEPLOW, Plaintiffs,

against

Solil Management Corp., SOL GOLDMAN REALTY, LLC, SOL GOLDMAN INVESTMENTS, LLC, 405 EAST 56TH STREET, LLC, and ALLBORO PIPING CORPORATION, Defendants. SOLIL MANAGEMENT CORP., SOL GOLDMAN INVESTMENTS, LLC and 405 EAST 56TH STREET LLC, Third-Party Plaintiffs, THE CITY OF NEW YORK, Third-Party Defendant.



109470/2004



For Third-Party Plaintiff:

Peter D. Lechleitner, Esq.

Law Office of Margaret G. Klein & Assoc.

200 Madison Ave.

New York NY 10016

(212) 863-9700

For Third-Party Defendant:

Michael A. Cardozo, Esq.

Corporation Counsel of City of New York

By: Anthony Bila, ACC

100 Church St.

New York NY 10007

(212) 788-1411

Paul George Feinman, J.

Third-party defendant City of New York moves for summary judgment in its favor and dismissal of the third-party complaint in its entirety. For the reasons set forth below, the motion is granted.

Background[*2]

According to the amended verified complaint, on February 6, 2004, plaintiff Jacqueline Seplow tripped and fell on the sidewalk abutting 405 East 56th Street, New York, New York and suffered injuries (Not. of Mot. Ex. A, Am. Ver. Compl. ¶¶ 20, 24). The premises and abutting sidewalk at 405 East 56th Street are owned, operated, maintained, and repaired by defendants Solil Management Corp. Sol Goldman Realty, LLC, Sol Goldman Investments, LLC and 405 East 56th Street, LLC (Am. Ver. Compl. ¶¶ 13-15). Co-defendant Allboro Piping Corporation allegedly excavated and repaired the sidewalk in question between July 11, 2002 and August 11, 2003 (Am. Ver. Compl. ¶ 17). Plaintiff Seplow and her husband Van Seplow commenced a negligence action by filing a summons and verified complaint on June 28, 2004 , and served the amended summons and verified complaint in October 2005 (Not. of Mot. Ex. A).

On about August 9, 2006, defendants Solil, Sol Goldman Realty, Sol Goldman Investments, and 40 East 56th Street commenced a third-party action against the City of New York for contractual and common-law indemnification and contribution (Not. of Mot. Ex. A, Third-Party Compl.). The City's verified third-party answer contains an affirmative defense alleging comparative negligence by plaintiff and defendants, and a counterclaim against the defendants-third-party plaintiffs for contractual and common-law indemnification.

The City moves for summary judgment and dismissal of the third-party complaint based on section 7-210 of the New York City Administrative Code. When this statute was amended effective September 14, 2003, liability for injuries arising from sidewalk defects was generally shifted from the City to the owner of the sidewalk's abutting property. According to the City's Department of Finance records, the property at issue does not fall into one of the statutory exceptions, as it is neither owned by the City nor is it a one-, two-, or three-family residential premises that is in whole or in part owner-occupied and used exclusively for residential purposes (Not. of Mot. Bila Aff. ¶¶ 5, 6, citing N.Y.C. Admin. Code §7-210[b],[c]; Ex. C [N.Y.C. Dept. of Finance records]). Accordingly, the City seeks dismissal of the third-party complaint on the ground that there is no issue of fact concerning its liability.

The third-party plaintiffs contend that the motion is premature, and that pursuant to CPLR 3212(f), should be denied pending further discovery to determine whether the City bears any liability for the state of the sidewalk. They point to the June 28, 2006 deposition testimony of plaintiff in which she stated that she tripped on a piece of concrete that "was broken and different levels," and fell, hitting "broken cobblestones" which, according to the photographs, surrounded a sidewalk tree, and that the "different levels" were "between the two pieces of concrete [i.e., flagstone]" that make up the sidewalk (Aff. in Opp. Ex. H, EBT Testimony of Jacqueline Seplow 9, 10, 22:21-22; 24:2-3; 7-18; 19-22; Ex. I). The third-party plaintiffs contend that the photographs show a sidewalk flag "which is in disrepair and which appears to have been raised due to the roots of the tree" (Lechleitner Aff. in Opp. ¶ 11, Ex. I). They argue that the City retains responsibility for sidewalk defects caused by the City's trees and tree wells.

Legal Analysis

To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor. (GTF Mtkg, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1985]). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial. (Kosson v Algaze, 84 NY2d 1019 [1995]). [*3]

Here, although as correctly noted by the City, the amended verified complaint does not allege that the sidewalk defect was caused by the tree's roots pushing up a flagstone (Bila Aff. in Reply ¶ 2), the liberal standards for pleadings allow the court to determine that the complaint has obliquely alleged that the unevenness in the pavement flags might have been caused by the nearby tree, and accordingly addresses the substance of the third-party plaintiff's opposition papers.

Section 7-210(b) of the Administrative Code, commonly called the "sidewalk law," provides that "the owner of real property abutting any sidewalk. . . shall be liable for any . . . personal injury . . . proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition," including the failure to "reconstruct, repave, repair or replace defective sidewalk flags." Subsection ( c) states that, "[n]otwithstanding 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 property . . . ) in a reasonably safe condition."

The City argues that under the amended sidewalk law, the third-party plaintiffs, as the abutting landowners, are responsible for repairing any unevenness to the sidewalk caused by tree roots and are liable to plaintiff if she fell because of the unevenness caused by the tree roots, or for any other reason.

The third-party plaintiffs argue that the City Council never intended to relieve the City of its duty to maintain sidewalks which are damaged as the result of tree growth. They point to section 18-104 of the Administrative Code which specifies that the planting, cultivating, and care of trees in streets is normally under the exclusive jurisdiction of the Commissioner of the New York City Department of Parks and Recreation. The only exception are trees "found to be in the care of individual owners, corporations, societies, or associations." These trees are not the Commissioner's responsibility, "unless the owners thereof make written application to the commissioner to have such trees transferred to his or her care." Where transfer of ownership is approved, the Commissioner assumes "full control" of the trees (N.Y.C. Admin. Code § 18-104).

There have as yet been no reported decisions issued by the Appellate Division, First Department addressing whether, under the new sidewalk law, the abutting landowners are liable for injuries due to sidewalk defects or unevenness caused by tree roots. The parties both cite Simmons v Guthrie, 304 AD2d 819 (2d Dept. 2003), decided prior to the change in the law, which held that an abutting landowner is not responsible for damage caused to a sidewalk by the roots of a tree. However, Simmons also held that, "an abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty." (Simmons at 819, emphasis added). In Gitterman v City of New York, 300 AD2d 157, 159 (1st Dept. 2002), the Court stated that under the then-current law, a landowner had no duty to maintain tree roots and the sidewalk affected by the tree roots. The "mere planting" of sidewalk trees did not constitute acts of affirmative negligence, and even where a tree was on a landowner's property, there was no duty owed by the landowner (300 AD2d at 159, citing Picone v Schlaich, 245 AD2d 555 [2d Dept. 1997] [holding that although the landowner planted a tree 15 years before the plaintiff fell on sidewalk made uneven [*4]by the tree's roots, the landowner had no duty to repair the sidewalk]).

There have been some decisions by courts of coordinate jurisdiction addressing the new sidewalk law as it pertains to sidewalks damaged by tree roots. Goss v Park Briar Owners, Inc., 14 Misc 3d 1239A, 2007 NY Slip Op. 50437U, * 7 (Sup. Ct., Queens County 2007, Kerrigan, J.) primarily concerned a sidewalk which had been poorly repaired by the City. The Goss court held that the City's intervening act of repairing the sidewalk did not absolve the abutting landowner from its legal duty to maintain and repair the sidewalk. The court also addressed the duty to maintain the sidewalks surrounding tree wells, determining that although the City allowed the tree roots to grow and shift a sidewalk flag, it was not liable for the condition (Goss, at * 7). Goss cited Simmons and Gitterman, among others, to further find that the plaintiff could not establish a prima facie entitlement to summary judgment on the issue of liability based solely on the allegation that tree roots caused damage to the sidewalk, and held 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," nor of "special use" (Goss, at *8).

Another court of coordinate jurisdiction has held in three different unpublished decisions that section 7-210 of the Administrative Code removes liability from the City for injuries involving sidewalk unevenness caused by the roots of City-owned trees (see, Gitsin v BMS Realty Co., LLC, Index No. 34564/2005 [Sup. Ct., Kings County 2006, Solomon, J.]; Schochet v City of New York, Index No. 27089/2004 [Sup. Ct., Kings County 2006, Solomon, J.]; McGowan v City of New York, Index No. 41595/2004 [Sup. Ct., Kings County 2006, Solomon, J.], attached as exhibits A-C of the City's reply affirmation).

The third-party plaintiffs argue that the City recognizes a duty to care for curbside and sidewalk trees, as shown in the New York City Department of Transportation website concerning sidewalks, in the section entitled, "Sidewalk & Inspection Management Division." In answer to the question, "Tree roots have pushed up my sidewalk. Do I have to pay for the repairs if the City does the work?," the website states: "If the Inspector determines that a flag's defects are only due to tree roots, and that there are no other non-tree related defects in such flags, then these flags will be replaced at no cost if the City replaces your sidewalk." (Aff. in Opp. Ex. J, http://www.ny.gov/dot/sidewalks/sidewalkfaqs, "Frequently Asked Questions."). The City contends that this question concerns financial responsibility rather than the duty of care, and does not imply that the City will necessarily repair a sidewalk damaged because of tree roots. It also points out that the first question in the section asks, "Who is responsible for maintaining sidewalks?," and is answered by the statement that, "[t]he owner of the adjacent property is responsible for maintaining and repairing the sidewalk."

Further support for the City's position is found in section 19-152(a) of the Administrative Code which concerns the duties and obligations of property owners with respect to sidewalks and lots. The statute states that although owners of real property, at their own expense, shall "repave" or "repair the sidewalk flags in front of or abutting" their property whenever directed to do so by the Commissioner of the Department of Transportation, the Commissioner may not require the abutting landowner to "reinstall, reconstruct, repave or repair a sidewalk flag which was damaged by the city, its agents or any contractor employed by the city during the course of a [*5]city capital construction project." (N.Y.C. Admin. Code §19-152[a]).[FN1] Thus, as pointed out by Goss (* 5), the City's liability to persons injured by sidewalks damaged in the course of capital projects does not shift to the landowner, and is another exception to the general provisions of the sidewalk law embodied in section 7-210 of the Administrative Code.

Here, where the sidewalk may have damaged by the tree roots of the curbside tree, it is clear that under the law, the owners are responsible for remedying the condition and are liable for damages that may occur because of the defect. The 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. No discovery undertaken by the third-party plaintiffs will determine otherwise. Accordingly, the City has established its entitlement to dismissal of the third-party complaint as a matter of law (CPLR 3212). It is

ORDERED that the motion by third-party defendant City of New York for summary judgment in its favor is granted and the third-party complaint is dismissed with costs and disbursements to third-party defendant as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the main action Seplow v Solil Management Corp., et al., Index No. 109470/2004 is severed and shall continue; and it is further

ORDERED that the Clerk of Trial Support shall transfer this action to a non-city IAS Part inasmuch as the City of New York is no longer a party or third-party; and it is further

ORDERED that the movant third-party defendant City of New York shall serve a copy of this decision and order with notice of entry upon all parties and third-parties, upon the Clerk of Trial Support (60 Centre Street, Rm. 158), the Clerk of the Court (60 Centre Street, Basement) and the DCM Clerk (80 Centre Street, Rm. 102).

This constitutes the decision and order of the court.

Dated: May 21, 2007____________________________________

New York, New YorkJ.S.C. Footnotes

Footnote 1:As concerns non-capital construction projects, the Commissioner will only direct the owner to repair, replace, or otherwise address the sidewalk when there is a "substantial defect," which is defined, in part, as "a trip hazard, where the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch or where a sidewalk flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth." (N.Y.C. Admin. Code § 19-152[a][4]).