Wieder v City of New York

[*1] Wieder v City of New York 2007 NY Slip Op 51238(U) [16 Misc 3d 1103(A)] Decided on June 21, 2007 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 21, 2007
Supreme Court, Kings County

Rosalia Wieder, Plaintiff,

against

City of New York, Morris Friedman, Gitel Friedman, Chaim Roth and Rivka Roth, Defendants.



18770/06



Plaintiff was represented by Arthur Sisser, Esq. of the Law Office of Herschel Kulefsky. Defendant the City of New York was represented by Michael Shender, Esq. of the Corporation Counsel of the City of New York. Defendants Morris Friedman, Gitel Friedman, Chaim Roth, and Rivka Roth were represented by Meghan P. Flaherty, Esq. of Russo, Keane & Toner, LLP.

Jack M. Battaglia, J.

In her Amended Verified Complaint, Rosalia Wieder alleges two causes of action: one against the City of New York, the other against Morris Friedman, Gitel Friedman, Chaim Roth and Rivka Roth, the owners of real property at 260 Keap Street, Brooklyn. At oral argument on the City's motion to dismiss pursuant to CPLR 3211 (a) (7), Plaintiff asked the Court to read the Complaint as if all of its allegations were asserted against the City. Even so, the Court concludes that the allegations do not state a cause of action against the City.

The Complaint alleges that, prior to March 25, 2005, the City erected and installed a street light/lamppost "located across the street from the front of the premises known as 260 Keap Street" (Amended Verified Complaint, ¶ 5); the City "had a duty to light the public sidewalk that it had undertaken to light when it erected and installed the . . . street light/lamppost" (id., ¶ 13); "for a long time prior" to March 25, 2005, the street light/lamppost "was unlit, broken and defective," and the City "knew or should have known, in the exercise of due care" of the condition of the street light/lamppost "and such condition constituted a danger to the public walking on or near the public sidewalk" (id., ¶ 17.)

The Complaint continues that, on March 25, 2005, at approximately 10:00-10:30 p.m., "as a result of the . . . unlit, broken and defective condition of the . . . street light/lamppost , and the resultant dark condition of the sidewalk," Plaintiff "was caused to fall when she stepped from the front steps of 260 Keap Street . . . onto the sidewalk at the bottom of said steps at said location" (id., ¶ 19); she was "carefully descending the outdoor stairway located in front of" 260 Keap Street, when [*2]"she was caused to fall and injure herself as the result of the defective, dangerous, unsafe and/or hazardous conditions of the premises and stairway, and the porch light thereon" (id., ¶ 51); specifically, and among other things, the "premises, outdoor stairway, handrails and lighting" were "dangerous, defective, unsafe and/or hazardous" in that the handrails were "of improper length and/or height" and there was a failure "to properly and adequately light . . . the outdoor stairway and surrounding area at the bottom of the stairs" (id.,

¶ 53.)

"When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'." (Goldman v Metropolitan Life Insurance Company, 5 NY3d 561, 586 [2005] [quoting Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 (2001)].) "In assessing a motion under CPLR 3211 (a) (7), . . . a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint." (Leon v Martinez, 84 NY2d 83, 88 [1994].) The court must review the complaint and any affidavits with the view of "preserving inartfully pleaded, but potentially meritorious claims." (See Davis v CCF Capital Corp., 277 AD2d 342, 343 [2d Dept 2000].)

The City, Plaintiff, and Co-Defendants each submit and rely upon the testimony of Plaintiff at a hearing held pursuant to § 50-h of the General Municipal Law. (See Gen. Mun. L. § 50-h; Weinberg v City of New York, 3 AD3d 489, 490 [2d Dept 2004].) "[W]here . . . evidentiary material has been submitted on a motion to dismiss, it may be considered in assessing the viability of a complaint, although the complaint should not be dismissed unless the defendant demonstrates that a material fact alleged by the plaintiff is not a fact at all' and that no significant dispute exists regarding it'." (Pechko v Gendelman, 20 AD3d 404, 406-07 [2d Dept 2005].)

Plaintiff's testimony as to the circumstances of her fall was:

" QWhat was it that caused you to fall down the step?

AIt was very dark.

...

QWhy did you fall?

ABecause it was very dark. I didn't see the step. I was holding.

...

[Q]When you fell, were you holding on the handrail? [*3]

AYes. I think I was holding and I felt that it was finished. The railing was finished and then I think I am on the sidewalk and this was not the sidewalk, because the rail, this stopped before the sidewalk. Then I think this is the sidewalk. I go down and this is not the sidewalk. It was a step. Then I fell."

(Transcript of 50-h Hearing of Rosalia Wieder, Exhibit C to Affirmation in Support, at 8, 21.)

It is important to note before proceeding any further that there is no allegation in the Amended Verified Complaint, or in Plaintiff's testimony, or in her notice of claim (see Appendix A to Affirmation in Support) of any defect or dangerous condition on the sidewalk itself in front of 260 Keap Street.

Plaintiff submits two affidavits to support the viability of her complaint: the affidavit of Stanley H. Fein, P.E., and the affidavit of Lezer Chaim, a resident at 272 Keap Street. The affidavit of Mr. Chaim creates an inconsistency in the record on this motion. Mr. Chaim asserts that "[f]or many weeks prior to March 25, 2005, the City street light in front of 270 Keap Street was broken and inoperative." (See Affidavit of Lezer Chaim, Exhibit C to Affirmation in Opposition, ¶ 2.) But the Complaint alleges that the suspect street light/lamppost "was located across the street from the front of the premises known as 260 Keap Street" (Amended Verified Complaint, ¶ 5), which the notice of claim suggests "may be known as 245 Keap Street" (see Exhibit A to Affirmation in Support, ¶ 2.) For purposes of this motion, the Court will assume that either the street light in front of 270 Keap or that in front of 245 Keap Street, or both, were dark at the time of Plaintiff's fall.

The Affidavit of the engineer supplements Plaintiff's testimony as to her fall by providing an opinion that the exterior stairway at 260 Keap Street was "dangerous, defective and a trap and tripping hazard" in that "among other things the stairway did not have hand rails that continued to "the bottom step which created an illusion as if the bottom step was part of the sidewalk," and that "the subject steps had varying riser heights at the bottom step and an unequal tread depth at the bottom step." (Affidavit of Stanley H. Fein, P.E., Exhibit B to Affirmation in Opposition,

¶ 2.) Although the engineer finds that "[t]hese steps . . . became an extremely hazardous trap in the absence of adequate lighting" (id., ¶ 3), he points to no defect or dangerous condition on the sidewalk itself.

The parties agree that the controlling authority is Thompson v City of New York (78 NY2d 682 [1991].) The plaintiff was struck by an automobile while crossing a street in the Bronx; "[i]t was dark at the time of the accident and a bulb in the nearest streetlight had burned out." (See id., at 684.) The opinion of the Court of Appeals is short, but its language and reasoning are critical to the issues raised by the City's motion:

"A municipality has a duty to maintain its streets in a reasonably safe condition . . . Although authorized to install street lighting by General City Law § 20 (7), a municipality generally is required to do so only in certain situations where it is necessary to keep the street safe, i.e., where there is a defect or some unusual condition rendering the street unsafe to the traveling public . . . The duty to [*4]maintain existing streetlights is similarly limited to those situations in which illumination is necessary to avoid dangerous and potentially hazardous conditions." (Id.)

The municipality's duty, therefore, is not to install or maintain street lighting in itself, but "to keep the street safe." (See id.)And, so, a plaintiff "ha[s] to show that the City permitted a dangerous or potentially hazardous condition to exist and cause injury," and "[t]he mere outage of the streetlight [does] not render [a] reasonably safe street dangerous." (See id., at 685; see also Rios v City of New York, 33 AD3d 780, 782 [2d Dept 2006]; Michetti v City of New York, 184 AD2d 263, 263 [1st Dept 1992].)

General City Law § 20 (7), cited by the Court of Appeals in Thompson (see 78 NY2d at 684), makes no explicit mention of sidewalks, and virtually all of the published decisions that apply Thompson involve roadway accidents. (See Rios v City of New York, 33 AD3d at 782; Hayden v City of New York, 26 AD3d 262, 262 [1st Dept 2006]; Hayden v Ward, 283 AD2d 942, 942 [4th Dept 2001]; Cracas v Zisko, 204 AD2d 382, 383-84 [2d Dept 1994]; Michetti v City of New York, 184 AD2d at 264; Graham v City of Rochester, 184 AD2d 990, 991 [4th Dept 1992].) Even then, not all roadway conditions will "impose[ ] a duty to illuminate" on the appropriate governmental unit. (See Lee v Morris, 297 AD2d 626, 627 [2d Dept 2002] ["accumulation of scattered leaves on the ground"]; Abbott v County of Nassau, 223 AD2d 662, 662 [2d Dept 1996] ["pothole"].)

But in holding in Thompson that a municipality is required to install and maintain street lighting only "where there is a defect or some unusual condition rendering the street unsafe to the traveling public" (Thompson v City of New York, 78 NY2d at 684), the Court of Appeals cites four decisions, none of which involved accidents in the roadway. In Griffin v Town of Harrison (268 NY 238 [1935]), the plaintiff was injured "at the junction of a concrete highway and the wooden planking of a railroad bridge . . . reserved for the use of pedestrians and in respect to it the town was under a duty of reasonably safe maintenance" (id., at 240.) The Court of Appeals rejected liability based upon the "abrupt elevation" between the concrete and the planking "coupled with the lack of adequate light" (see id.)

Andrews v City of Elmira (128 AD 699 [3d Dept 1908]) involved "a pathway at the side of the road made of ashes" (id., at 700.) Rejecting liability based upon "negligen[ce] in not maintaining lights at the place in question sufficient to make the place reasonably safe for public travel," the court noted that liability for the failure "to place lights at certain places" had been imposed only in cases "where the street is out of repair or where there is some excavation, defect or obstruction in the street or something unusual rendering it unsafe, and where in the night time lights or barriers are essential for the protection of travelers." (See id. at 701 [citing Deufel v Long Island City, 19 AD 620 (2d Dept 1897) (snow/ice and hole on sidewalk; no artificial street lights)].)

In Bauer v Town of Hempstead (143 AD2d 793 [2d Dept 1988]), the plaintiff was "walking on a sidewalk . . . when she caught her foot on a raised curb" (id.) The court held that "there is no duty on the part of the town to light the public sidewalk area so as to support a cause of action sounding in negligence based on the lack of lighting." (See id., at 794.) And in Schlicher v City of New York, (175 Misc 696 [Sup Ct, Bronx County 1940], aff'd 264 AD 763 [*5]

[1st Dept 1942]), involving a stairway between two streets in the Bronx "maintained by the defendant as a passageway for the public" (175 Misc at 697), the court stated that "the failure of a City to light its streets cannot be properly regarded as an act of negligence rendering it liable for injuries sustained by a person solely through such failure" (id.) The court noted, however, the cases described in Andrews v City of Elmira (128 AD 699) in which liability had been imposed for "some excavation, defect or obstruction in the street or something unusual rendering it unsafe." (See Schlicher v City of New York, 175 Misc at 697 [quoting Andrews v City of Elmira, 128 AD at 701]; see also Moran v City of Troy, 258 AD 1021 [3d Dept 1940] ["open stairway" leading from public street to pond "where the City maintained an ice skating rink"].)

In the only post-Thompson decision found involving a sidewalk, Greenberg v McLaughlin (242 AD2d 603 [2d Dept 1997]), the plaintiff allegedly "tripped and fell on a raised sidewalk flag" (id., at 603). Citing Bauer v Town of Hempstead (143 AD2d 793), the court held that "there was no duty on the part of the Village to provide street lighting for the area where the plaintiff allegedly fell." (See Greenberg v McLaughlin, 242 AD2d at 603-04.) The Court also cited Abbott v County of Nassau (223 AD2d 662 [2d Dept 1996]), a roadway case, which in turn cited Thompson and held that "[t]he duty to maintain existing streetlights is limited to those situations in which illumination is necessary to avoid dangerous and potentially hazardous conditions," and that "[a] pothole is not the type of dangerous and potentially hazardous condition that imposes [the] duty"(id.) (See Greenberg v McLaughlin, 242 AD2d at 603-04.)

It is not easy to know from these decisions when the City will be liable for inadequate lighting over a roadway or sidewalk when it would not otherwise be liable for the necessary additional dangerous condition on the roadway or sidewalk itself, except where a prior-written- notice law applies to the latter but not the former (see Cracas v Zisko, 204 AD2d at 383.) In its most recent restatement of Thompson, the Second Department stated, "Liability cannot attach to a municipality which controls street lighting conditions where such lighting conditions did not contribute to or cause a dangerous condition which was the proximate cause of the subject accident." (See Rios v City of New York, 33 AD3d at 782 [emphasis added].) It may be that, although the "duty" to provide lighting is only a corollary of the duty to provide reasonably safe streets and sidewalks, the question is whether the condition of the street or sidewalk would have been unreasonably dangerous even with artificial lighting. Only if the answer is "no," if the potential for harm is unacceptably high only because of the absence of artificial lighting, do we say that there is a "duty" to provide it.

Since, moreover, liability for inadequate lighting is determined by reference to the condition of the affected street or sidewalk, the matter became more complicated under the, colloquially-named, New Sidewalk Law. (See Administrative Code § 7-210.) Prior to September 23, 2003, the effective date of the New Sidewalk Law, it could easily be said that the City had an "obligation to maintain sidewalks in a reasonably safe condition." (See Garricks v City of New York, 1 NY3d 22, 27 [2003]; see also Foye v City of New York, 133 Misc 407, 408 [2d Dept 1928] ["The City's liability was to keep the sidewalk reasonably safe whether it is flagged, planked, or made of ashes or dirt."].) The new law shifts liability for the failure to maintain sidewalks in a reasonably safe condition from [*6]the City to the owners of abutting property, except for owner-occupied residential property with three units or fewer. (See Administrative Code § 7-210 [b], [c].) Again, Plaintiff's fall occurred on March 25, 2005, after the effective date of the new law.

It might be argued, although the City has not on this motion, that the New Sidewalk Law removes the foundation for even the limited liability for inadequate lighting articulated by Thompson. If the City's duty to provide adequate lighting is but a facet of its duty to provide reasonably safe sidewalks, what happens when the City is no longer liable for unsafe sidewalks? In this case, Plaintiff's testimony indicates that 260 Keap Street, where she fell, is a two family, owner-occupied property (see Transcript of 50-h Hearing, at 7, 15), and the City is still obligated to maintain the sidewalk. But the street light that was not operating was located in front of 245 Keap or 270 Keap, which adds further complexity. These issues neet not be addressed here, however, not only because the parties agree that Thompson provides the framework to be applied, but because, even assuming that Thompson is not affected by the New Sidewalk Law, Plaintiff has not stated a claim against the City.

None of the decisions that suggest liability for inadequate street or sidewalk lighting, before Thompson or since, have involved a dangerous condition, not on the street or sidewalk, but on abutting property owned by a private party. Nothing in the rationale of Thompson, or prior or subsequent decisions, suggests that the City could have a duty to illuminate the property of a private party. This is not a case where the City owns the abutting property(see Griffen v Village of Southampton, 206 AD2d 504 [2d Dept 1994] [parking lot]), or where the City created the dangerous condition on the abutting property (see Cracas v Zisko, 204 AD2d at 383-84.)

It is not enough, however, that liability has not up to now been determined, or even suggested, to exist when the allegedly defective and dangerous condition is found on abutting private property. There must be good reason, preferably grounded in accepted doctrine, for liability not to be found. That ground might be the principle that "[l]iability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises." (See Gibbs v Port Authority of New York, 17 AD3d 252, 254 [1st Dept 2005]; see also Weinberg v City of New York, 3 AD3d 489, 490 [2d Dept 2004].)

Similarly, "as a general matter, an owner owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it." (Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004].) "The reason for such a rule is obvious - - a person who lacks ownership or control of property cannot fairly be held accountable for injuries resulting from a hazard on the property." (Id.) The unfairness comes from the lack of "power to correct the hazard." (See id.) Thequalification for the adjacent property owner who "contributes" to the dangerous condition requires that the act or omission constitute a direct and substantial factor in bringing about the condition. (Compare Griffin v 19-20 Industry City Assocs, LLC, 37 AD3d 412, 412-13 [2d Dept 2007] with Galperina v Mandelbaum, 27 AD3d 520, 521 [2d Dept 2006].) [*7]

In a recent analogous case, the plaintiff's vehicle collided with a train at an unmarked crossing, and he sued, among others, the owners of the property bordering the right-of-way at the crossing. "[H]e contended that trees and other foliage on the [owners'] property obstructed his view of the oncoming train." (Clementoni v Consolidated Rail Corp., 2007 NY Slip Op 3792, * 2 [Ct App, May 3, 2007].) Quoting the governing principle limiting the duty of an adjoining landowner, the Court of Appeals held that "a landowner is generally not liable for the existence of uncut vegetation obstructing the view of motorists at an intersection." (See id.)

The conclusion that the City cannot be liable for failing to illuminate private property abutting the sidewalk also finds support in pre-Thompson caselaw, specifically Griffin v Town of Harrison (268 NY 238), where the Court of Appeals rejected an Appellate Division decision that upheld a judgment based upon inadequate lighting:

"The implications of this decision are most extensive. The judgment means that all the hundreds of thousands, perhaps millions, of miles of sidewalks in this State must be kept in such condition that, at night, no careful pedestrian can be injured. Such a rule closely approaches, if it does not include, the liability of an insurer." (Id., at 241.)

These considerations of policy continue to hold sway. In the "search for [the] shimmering line of duty" (Palka v Servicemaster Management Services Corp., 83 NY2d 579, 585 [1994]), courts must consider the "reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability." (Id.)

The Court of Appeals again acknowledged that "[c]ourts have long fixed duty by balancing [such] factors" in Peralta v Henriquez (100 NY2d 139, 144-45 [2003].) The Court was called upon to decide whether the defendant landowners had a duty to illuminate an adjacent unpaved lot, which they also owned, where residents of their buildings and their guests were permitted to park. Although the Court noted that "providing outside lighting to one's property may be a reasonable response by a private landowner who knows, or should know, that someone will visit the property and confront a hazard that would reasonably be avoided by illumination" (see id., at 144), the Court rejected "a general duty to illuminate the lot." (See id., at 145.) It was a question of fact whether "defendants knew or should have known that the existing lighting was adequate given the use and design of the lot." (See id. [footnoteomitted].)

The decision in Peralta v Henriquez virtually requires the conclusion that, generally at least, a property owner has no duty to illuminate an adjacent property. When considered with the other authorities reviewed, particularly the caselaw on the City's limited duty to illuminate its streets and sidewalks, the further conclusion is required that Plaintiff has not alleged a claim upon which relief can be granted.

Stated generally, the Court holds that, as a matter of law, the City will not be liable for the [*8]failure to provide adequate lighting for a street or sidewalk where a dangerous condition exists, not on the street or sidewalk, but on adjacent private property, and the City did not otherwise cause, create, or contribute to that condition. There is no allegation here that the City had actual knowledge of the allegedly defective and dangerous stairway and railing at 260 Keap Street, and so the Court has no cause to consider how, if at all, knowledge would change the result. It would appear, however, that actual knowledge of dangers on a neighboring property would, at most, give use to a duty to warn (see Galindo v Town of Clarkstown, 2 NY3d at 637), and such a duty to warn would clearly be inapposite to the circumstances here.

Co-Defendants have asserted a cross-claim for indemnity and contribution based on the allegation that the Plaintiff's injury was "caused entirely by the culpable conduct" of the City. (See Verified Answer, ¶ 12.) Since the Court has determined that Plaintiff's Complaint fails to state a cause of action against the City, and Co-Defendants have not alleged that the City breached any separate duty owed to them, contractual or otherwise, there is no basis for a cross-claim. (See Jehle v Adams Hotel Assocs., 264 AD2d 354, 355 [1st Dept 1999].)

The City's motion is granted. Plaintiff's Amended Verified Complaint and Co-Defendants' cross-claim are dismissed, and the City may enter judgment accordingly.

The Clerk is directed to transfer the action to a non-City part.

June 21, 2007_________________

Jack M. Battaglia

Justice, Supreme Court