Faulk v City of New York

[*1] Faulk v City of New York 2007 NY Slip Op 51346(U) [16 Misc 3d 1108(A)] Decided on July 10, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2007
Supreme Court, Kings County

Andrea Faulk, Plaintiff,

against

THE City of New York AND MARCUS GARVEY BROWNSTONE HOUSES, INC., , Defendants.



18400/06



Plaintiff was represented by Fredric S. Masure, Esq. Defendant the City of New York was represented by Diana Raynes, Esq. of the Corporation Counsel of the City of New York. Defendant Garvey Brownstone Houses, Inc. was represented by Michelle A. Kaddar, Esq. of Fischetti & Pesce, LLP.

Jack M. Battaglia, J.

In her Verified Complaint, plaintiff Andrea Faulk alleges that on January 9, 2006 "walking outside the premises located at 360 Chester Street, Brooklyn, New York, she was caused to fall and sustain serious injuries at said location, due to sidewalk being in a patched, broken, cracked, uneven, raised, dangerous and unsafe condition." (Verified Complaint, ¶ 16.) The property abutting the sidewalk is owned by defendant Marcus Garvey Brownstone Houses, Inc. The City of New York is also a defendant. Each of the defendants has asserted a cross-claim against the other, seeking indemnity or contribution. Because the alleged fall occurred after September 14, 2003, the parties' respective rights and liabilities are to be determined by reference to the New Sidewalk Law. (See Administrative Code of the City of New York § 7-210, Local Law No. 49 [2003].)

Defendants Marcus Garvey and the City of New York have each moved for dismissal pursuant to CPLR 3211, or, in the alternative, pursuant to CPLR 3212. Neither Defendant refers to any allegation of the Verified Complaint, nor makes any showing that "the pleading fails to state a cause of action" (see CPLR 3211 [a] [7]), or is otherwise subject to dismissal pursuant to CPLR 3211. The Court notes in any event that the Verified Complaint sufficiently alleges that each Defendant, among other things, negligently created or failed to repair a dangerous sidewalk condition that caused Plaintiff to fall. (See Verified Complaint, ¶ ¶ 13-19.)

Because Defendants each urge dismissal on the basis of allegedly undisputed facts, purportedly established by affidavit and other evidence, their respective motions are appropriately considered as seeking summary judgment pursuant to CPLR 3212. In order for the Court to properly assess whether either Defendant has sufficiently established prima facie its entitlement to judgment as a matter of law, the Court must first determine the circumstances under which, if any, Plaintiff may hold that Defendant liable for any injury caused by her fall.

Liability Under the New Sidewalk Law

Prior to September 14, 2003, the effective date of the New Sidewalk Law, 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 Rodriguez v City of New York, 12 AD3d 282, 282 [2d Dept2004]; Foye v City of New York, 133 Misc 407, 408 [App Term, 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 City's potential liability was not exhausted, however, by its duty to maintain. Even where it could not be held liable for the failure to maintain the sidewalk, because of an absence of prior written notice (see Administrative Code of the City of New York § 7-201 [c]), the City might still be held liable where the City "created the defect or hazard through an affirmative act of negligence [or] where a special use' confers a special benefit" upon the City. (See Oboler v City of New York, 8 NY3d 888, 889 [2007] [quoting Amabile v City of Buffalo, 93 NY2d 471, 474 (1999)].)

At the same time, the owner of the property abutting the sidewalk could also be liable for [*2]damage or injury caused by a dangerous condition on the sidewalk "where the sidewalk was constructed in a special manner for the benefit of the abutting owner . . . , where the abutting owner affirmatively caused the defect . . . , where the abutting landowner negligently constructed or repaired the sidewalk . . . [,] and where a local ordinance or statute specifically charges an abutting landowner with a duty to repair the sidewalks and imposes liability for injuries resulting from the breach of that duty." (See Hausser v Giunta, 88 NY2d 449, 453 [1996].)

When both the City and the abutting landowner breached their respective duties to members of the public, as "[w]hen a sidewalk appurtenance negligently [fell] into disrepair," both could be "made to respond in damages to those injured by the defective condition." (See D'Ambrosio v City of New York, 55 NY2d 454, 463 [1982].) As between the City and the abutting owner, the loss would ultimately be apportioned in accordance with general principles of indemnity and contribution. (See id.)

Effective September 14, 2003, the New Sidewalk Law imposes upon the owner of real property abutting any sidewalk "the duty . . . to maintain such sidewalk in a reasonably safe condition," and provides that the owner "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." (See Administrative Code of the City of New York

§ 7-210 [a], [b].) The provision for owner liability, however, does not apply to "one-, two-, or three-family residential real property that is . . . in whole or in part, owner occupied, and . . . used exclusively for residential purposes." (See Administrative Code of the City of New York § 7-210 [b].) The City, on the other hand, "shall not be liable for any injury to property or personal

injury . . . proximately caused by the failure to maintain sidewalks," except for the sidewalks abutting owner-occupied residential properties with three or fewer units, and except where the City itself is the owner of the abutting property. (See Administrative Code of the City of New York § 7-210 [c].)

The central feature of the liability that is transferred to the abutting owner by the New Sidewalk Law is that it is liability arising from "the failure . . . to maintain [the] sidewalk," which "include[s], but [is] not limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk." (Administrative Code § 7-210 [b].) The liability, therefore, is that which might be characterized generally, and perhaps over-simplistically, as arising from negligent omission rather than act.

The question is whether the New Sidewalk Law was intended to relieve the City of all liability for damage or injury caused by sidewalk defects, or only liability that arises from a failure to maintain the sidewalk. Put differently, is the City still liable where the damage or injury results from the City's "affirmative negligence" or special use, the bases for liability notwithstanding the absence of prior written notice? Again, the question only arises with respect to sidewalks fronting properties that are not owner-occupied residences of three or fewer units. With respect to those properties unaffected by the transfer of liability pursuant to the New [*3]Sidewalk Law, there is nothing in the Law to suggest any change in the allocation of liability between the City and the abutting owner.

But neither is there anything in the New Sidewalk Law that suggests that the City is not to remain liable where its liability would not be based on a failure to maintain. Before the Law, it was clearly recognized that the City's duty to maintain its sidewalks in a reasonably safe condition was "independent of its duty not to create a defective condition." (See Kiernan v Thompson, 73 NY2d 840, 841 [1988]; see also Sniper v City of Syracuse, 139 AD2d 93, 95-96 [4th Dept 1988].) The City remains liable for damage or injury caused by a breach of its duty not to create a defective condition on a sidewalk, whether it creates the condition with its own employees or its contractors. (See Tumminia v Cruz Construction Corp., 2007 NY Slip Op 5261, * 2 [2d Dept]; Smith v City of Syracuse, 298 AD2d 842, 842-43 [4th Dept 2002]; Combs v Incorporated Village of Freeport, 139 AD2d 688, 689 [2d Dept 1988].)

The City's liability arising from special use, unlike its liability for failure to maintain a sidewalk, is limited to use of the sidewalk that is "unrelated to public use." (See Poirier v City of Schenectady, 85 NY2d 310, 315 [1995]; Loiaconi v Village of Tarrytown, 36 AD3d 864, 865 [2d Dept 2007]; Mahler v Incorporated Vill. of Port Jefferson, 18 AD3d 450, 451 [2d Dept 2005].) Liability arises from special use where there is a breach of the "implied duty" imposed upon the user "in consideration of private advantage." (See Trustees of the Village of Canandaigua v Foster, 156 NY 354, 359 [1898] [quoting Heacock v Sherman, 14 Wend 58, 60 (1835)]; see also Kaufman v Silver, 90 NY2d 204, 207 [1997].) As to the City, a surveyor's monument would constitute a special use (see Weiser v City of New York, 5 AD2d 702, 703 [2d Dept 1957], aff'd 7 NY2d 811 [1959]), as would a manhole cover(O'casio v City of Middletown, 148 AD2d 431, 432 [2d Dept 1989]; see also Posner v New York City Transit Authority, 27 AD3d 542, 544 [2d Dept 2006].)

Up to a point, this Court's analysis of the New Sidewalk Law is consistent with views expressed by courts of coordinate jurisdiction. Three courts have suggested, however, that the Law does not shift any liability to the abutting owner for conditions created "by the city, its agents or any contractor employed by the city during the course of a city capital construction project." (See Seplow v Solil Management Corp., 2007 NY Slip Op 51033 [U], * 4 - * 5 [Sup Ct, New York County] [quoting Administrative Code § 19-152 (a)]; Goss v Park Briar Owners, Inc., 14 Misc 3d 1239 [A], 2007 NY Slip Op 50437 [U], * 4 - * 5 [Sup Ct, Queens County] [quoting Administrative Code § 19-152 (a)]; see also Moore v Newport Associates L.P., 2007 NY Slip Op 27241, * 2 [Sup Ct, Kings County].) To the extent that these courts suggest that the City remains liable to persons injured by conditions created "during the course of a city capital construction project," this Court's analysis leads to the same result.

To the extent, however, that these courts suggest that the abutting landowner has no duty to correct a dangerous condition created by the City or a contractor under those circumstances, this Court respectfully disagrees. As one court recognizes, a conclusion that the abutting landowner cannot be liable for a failure to correct a dangerous condition created "during the [*4]course of a city capital construction project" in effect legislates "another exception to the general provisions of the sidewalk law embodied in section 7-210 of the Administrative Code." (See Seplow v Solil Management Corp., 2007 NY Slip Op 51033 [U], at * 5.) But the statute clearly provides that the abutting owner "shall be liable" for damage and injury "proximately caused by the failure of [the] owner to maintain [the] sidewalk in a reasonably safe condition," subject only to the exception for owner-occupied residential property with three or fewer units. (See Administrative Code § 7-210 [b].)

The argument in favor of an additional exception to abutting owner liability is based upon a provision of § 19-152 of the Administrative Code and a statement from the committee report that accompanied the New Sidewalk Law before the City Council. Section 19-152 generally requires an abutting owner to correct a sidewalk condition "whenever the commissioner of the department [of transportation] shall so order or direct." (See Administrative Code of the City of New York, § 19-152 [a].) But "[t]he commissioner shall not direct the owner" to correct "a sidewalk flag which was damaged by the city, its agents or any contractor employed by the city during the course of a city capital construction project." (Id.)

Since, according to the committee report, the duty of the abutting owner to maintain the sidewalk "mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code section[ ] 19-152" (see Report of Committee on Transportation, Local Law Report No. 49 Int. 193 [2003]), and § 19-152 does not permit the commissioner to order the owner to correct a condition caused by the City or a contractor during a "city capital construction project," it is argued that the abutting owner's duty to maintain does not extend to any such condition. (See Seplow v Solil Management Corp, 2007 NY Slip Op 51033 [U], at * 4 - * 5; Goss v Park Briar Owners, Inc., 2007 NY Slip Op 50437 [U], at * 4 - * 5.)

The committee report is not, however, a clear indication of legislative intent on the issue. The committee's "mirror" reflects equivalence between the abutting owner's duty under the New Sidewalk Law and its duties under § 19-152 "outlined in detail in [a] prior section of [the] committee report." (See Report of Committee on Transportation, Local Law Report No. 49, Int. 193 [2003].) But nowhere in the report does the committee "detail" the limitation on the commissioner's authority with respect to damage caused "during the course of a city capital construction project." The committee's articulated justification for the stated residential exception, "recognition of the fact that small property owners who reside at such properties have limited resources and it would not be appropriate to expose such owners to exclusive liability with respect to sidewalk maintenance and repair" (see id., [emphasis added]), does not support the additional exception, nor does the broader purpose of the statute to provide "incentive [that] will result in safer sidewalks City-wide" (see id.) Indeed, an exception for damage caused "during the course of a city capital construction project" would be inconsistent with transfer to the owner of the "exclusive liability" with respect to maintenance and repair.

"As a general rule of statutory interpretation, application of a statute's clear language should not be ignored in favor of more equivocal evidence of legislative intent." (Desiderio v Ochs, 100 NY2d 159, 169 [2003].) "[T]he most direct way to effectuate the will of the [*5]legislature is to give meaning and force to the words of its statutes." (Id.) "[W]ell-established rules of statutory construction prevent [courts] from looking behind the unambiguous language of a statute unless an absurd result would obtain from its application." (Id., at 172.) It is hardly "absurd" to impose liability on an abutting landowner for failing to correct a dangerous sidewalk condition, even where the City solely caused the condition, but provide the owner the opportunity of shifting at least part of the liability onto the City through indemnity or contribution.

A conclusion that the abutting landowner may be liable for the failure to repair a dangerous condition resulting from a "city capital construction project" is not inconsistent with the City's liability as well under such circumstances. There appears to be no good reason to abandon the allocation of fault between the City and the abutting owner that in appropriate cases was mandated before the New Sidewalk Law (see D'Ambrosio v City of New York, 55 NY2d at 463), and to adopt an either/or regime where only one can be liable to the injured person. The practical result of the reading of the Law suggested by this Court is that the abutting owner, rather than the plaintiff, will bear the burden of coming forward with evidence that the injury-producing condition was created "during the course of a city capital construction project," when the abutting owner is in a much better position to do so.

Summary Judgment Under the New Sidewalk Law

On the basis, therefore, of the City's continuing potential liability for affirmative negligence and special use, the question becomes whether the City must make some showing as to those matters, or rather their absence, in order to make a prima facie showing on a motion for summary judgment in a New Sidewalk Law case. In the first instance, of course, the City must make a showing that the abutting property is not an owner-occupied residential property of three or fewer units, and evidence in admissible form of the Department of Finance classification will suffice. (See Aurelien v City of New York, 15 Misc 3d 1116 [A], 2007 NY Slip Op 50701 [U], * 2 [Sup Ct, Richmond County]; see also Goss v Park Briar Owners, Inc., 14 Misc 3d 1239 [A], 2007 NY Slip Op 50437 [U], * 1 [Sup Ct, Queens County].) It may be that actual use of the property, rather than its tax classification, should govern the applicability of the New Sidewalk Law (see Aurelien v City of New York, 2007 NY Slip Op 50701 [U], at * 2), but that issue need not be resolved. Since information as to the actual use of the property would appear at least as available to a plaintiff as to the City, if not more available, the burden of coming forward with evidence of actual use, if inconsistent with the tax classification, should be borne by the plaintiff as part of its burden to raise a triable issue.

Where the issue is compliance with a prior-written-notice law, the City generally makes a prima facie showing with evidence in admissible form that it did not receive the required notice. (See Ferreira v County of Orange, 34 AD3d 724, 725 [2d Dept 2006]; Schimicci v City of New York, 33 AD3d 687, 688 [2d Dept 2006]; Granderson v City of White Plains, 29 AD3d 739, 739 [2d Dept 2006].) But where the plaintiff has alleged that the City caused and created the injury-producing condition, the City's showing only as to lack of prior written notice has been found insufficient for summary judgment. (See Bisulco v City of New York, 186 AD2d 84, 85 [1st Dept [*6]1992]; see also Cabrera v City of New York, 21 AD3d 1047, 1048 [2d Dept 2005]; Schuman v City of New York, 304 AD2d 643, 644 [2d Dept 2003].)

In any event, in determining the nature of the showing required from the City on a motion for summary judgment under the New Sidewalk Law, a more appropriate model would be the showing required of the abutting landowner under the "old sidewalk law." An abutting landowner seeking summary judgment was still required to "demonstrate[ ] [its] entitlement to judgment as a matter of law by presenting evidence that none of the elements necessary to impose liability . . . [were] present." (See Cannizzaro v Simco Management Co., 26 AD3d 401, 402 [2d Dept 2006]; see also Bruno v City of New York, 36 AD3d 640, 641 [2d Dept 2007]; Farmer v City of New York, 25 AD3d 649, 649-50 [2d Dept 2006].) And so, prior to the New Sidewalk Law (and still as to owner-occupied residential property with three or fewer units), the abutting owner was required to show that it neither "created the defective condition, . . . voluntarily but negligently made repairs, . . . [nor] created the defect through special use." (See Ellman v Village of Rhinebeck, 2007 NY Slip Op 5455, * 2 - * 3 [2d Dept] [quoting Flores v Baroudos, 27 AD3d 517, 517 (2d Dept 2006)].)

With the New Sidewalk Law, and except for the exempted residential properties, the City and the abutting landowner have each essentially been moved into the other's place on the liability field. Now the abutting owner is generally liable for a failure to maintain the sidewalk, with the City liable only for affirmative negligence and special use. No reason presents itself for not requiring that the City make the same kind of showing previously required of the abutting owner, particularly since many of the material facts will be within the exclusive knowledge and control of the City (see Bisulco v City of New York, 186 AD2d at 85.)

In sum, the City will make a prima facie showing that it is entitled to judgment as a matter of law under the New Sidewalk Law with evidence in admissible form that the abutting property is not owner-occupied residential property with three or fewer units, and that the alleged damage or injury was not caused by a condition that the City caused or created and was not caused by the City's special use of the sidewalk.

As to the required showing under the New Sidewalk Law by an abutting landowner, a parallel to the liability of the City before the Law is difficult because the City was somewhat insulated from potential liability by the prior-written-notice law (see Administrative Code § 7-210 [c].) Generally under the old law, and still for owner-occupied residential premises with three or fewer units, "[a] failure to repair a defective condition, of which it has notice, either actual or constructive, will cast the municipality in liability for damages to a person injured thereby." (See D'Ambrosio v City of New York, 55 NY2d at 462; see also Quinn v City of New York, 305 AD2d 570, 571-72 [2d Dept 2003].)

The liability of an abutting landowner under the New Sidewalk Law is not absolute or strict; rather, it is limited to "the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags." (See Administrative Code § 7-210 [b] [emphasis added]; [*7]see also Gangemi v City of New York, 13 Misc 3d 1112, 1130 [Sup Ct, Kings County 2006].) The owner will breach its "duty . . . to maintain [the] sidewalk in a reasonably safe condition" (see id., § 7-210 [a]) only where it has actual or constructive notice of a condition on the property that renders it unsafe for a long enough period of time to allow corrective or precautionary action in the exercise of reasonable care. (See New York Pattern Jury Instructions, Civil, PJI 2:225 [2007]; Quinn v City of New York, 305 AD2d at 571-72.)

On a motion for summary judgment in a New Sidewalk Law case, therefore, the abutting landowner with a duty to maintain the sidewalk must at least make at showing that it did not have either actual or constructive notice that the sidewalk was not reasonably safe, or that it did not have notice for a sufficient period of time before the plaintiff's injury to have taken corrective or precautionary action with the use of reasonable care.

The Pending Motions/Tree Root Conditions

Marcus Garvey's motion for summary judgment is based upon the contention that, even under the New Sidewalk Law, an abutting landowner will not be liable for injury caused by a dangerous condition on the sidewalk where the condition is caused by the roots of a nearby tree. The evidentiary basis for the contention is purportedly supplied by the affidavit of an engineer, asserting that described conditions on the sidewalk near a tree pit were caused by tree roots (see Affidavit of Brian G. Brady, P.E., Exhibit D to Affirmation in Support, ¶ 3), as well as copies of five color photographs purportedly showing the described conditions (see Exhibit E to Affirmation in Support.)

Assuming for the moment that the legal proposition is correct, Marcus Garvey fails to make a prima facie showing with evidence in admissible form that the sidewalk condition that caused Plaintiff to fall was caused by tree roots. Most importantly, Marcus Garvey makes no showing whatsoever as to the location of Plaintiff's fall on the sidewalk, nor as to the condition that caused her to fall. There is nothing in Plaintiff's notice of claim (see Exhibit A to Affirmation in Support) or her Verified Complaint that even suggests that Plaintiff's fall was caused by the conditions described in the engineer's affidavit. Although photographs were apparently supplied to the City with the notice of claim, they are not included with the notice of claim in Marcus Garvey's papers, nor is there anything that connects the photograph that are found in Marcus Garvey's papers to the notice of claim. Since there is nothing to connect the conditions described by the engineer or those shown in the photographs to Plaintiff's fall, the affidavit and photographs are irrelevant.

The affidavit and photographs in any event are without evidentiary foundation. The engineer's opinion is apparently based solely upon an inspection of the sidewalk on October 23, 2006, but there is no showing that the condition of the sidewalk was substantially the same on that day as it was on January 9, 2006 when Plaintiff fell. There is no reference in the engineer's affidavit to the photographs, and the photographs themselves are not authenticated or otherwise rendered admissible in evidence as showing the condition of the sidewalk on either day. (See [*8]Krakinowski v New York City Transit Authority, 18 AD3d 443, 444 [2d Dept 2005]; DiNapoli v Huntington Hosp., 303 AD2d 359, 360 [2d Dept 2003]; LaBella v Willis Seafood, 296 AD2d 382, 382-83 [2d Dept 2002]; Wasserman v Genovese Drug Stores, Inc., 282 AD2d 447, 448 [2d Dept 2001]; Saks v Yeshiva of Spring Valley, Inc., 257 AD2d 615, 616 [2d Dept 1999].)

Even assuming, however, the proper evidentiary foundation, Marcus Garvey cannot succeed on its contention that it cannot be liable for a dangerous sidewalk condition caused by tree roots. The contention was certainly correct before the New Sidewalk Law even if the offending tree was found on the abutting owner's property and the owner planted it. (See Jackson v Thomas, 35 AD3d 666, 667 [2d Dept 2006]; Simmons v Guthrie, 304 AD2d 819, 820 [4th Dept 2003]; Gitterman v City of New York , 300 AD2d 157, 159 [2d Dept 2002]; Picone v Schlaich, 245 AD2d 555, 556 [2d Dept 1997]; Zawacki v Town of North Hempstead, 184 AD2d 697, 697 [2d Dept 1992].)

That has clearly changed, however, under the New Sidewalk Law. A number of courts of coordinate jurisdiction have agreed in effect that "[a]fter the passage of the Sidewalk Law of 2003, . . . the legal landscape in regard to tree root damage has . . . changed substantially." (See Moore v Newport Associates L.P., 2007 NY Slip Op 27241, at * 2; Seplow v Solil Management Corp., 2007 NY Slip Op 51033 [U], at * 3 - * 5; Goss v Park Briar Associates, LLC, 2007 NY Slip Op 50437 [U], at * 7 - * 8.) Under the New Sidewalk Law, the abutting landowner's

"duty . . . to maintain the sidewalk in a reasonably safe condition" (see Administrative Code § 7-210 [a]) includes the duty to take corrective or precautionary action with respect to sidewalk conditions caused by tree roots.

Even assuming, therefore, that Plaintiff's fall was caused by a condition that was caused by tree roots, Marcus Garvey fails to make a prima facie showing that it is entitled to judgment as a matter of law. Marcus Garvey makes no prima facie showing that it cannot be liable for a failure to maintain the sidewalk on which Plaintiff fell. The Court has noted Marcus Garvey's contention that in 2004 the "Capital Projects Division" of the Department of Parks & Recreation entered into contracts "for the reconstruction of sidewalks damaged by adjacent City-owned trees" in Brooklyn and Staten Island. (See Reply Affirmation in Further Support of Defendant's Motion for Summary Judgment to Dismiss, ¶ 5 and Exhibit A.) Putting aside the evidentiary objection made by the City, Marcus Garvey does not contend that the condition that caused Plaintiff to fall was created "during the course of" work done pursuant to such a contract (see Administrative Code § 19-152 [a]); indeed, its own expert's opinion would appear to undermine such a contention. In any event, as this Court has determined, there is no exception to Marcus Garvey's potential liability to Plaintiff for damage "during the course of a city capital construction project" (see id.), whatevermay be Marcus Garvey's rights against the City in such circumstances.

Turning to the City's motion, the City makes a prima facie showing with the affidavit of a Principal Title Examiner with the City's Law Department and the affirmation of an attorney employed by the City's Department of Finance that on January 9, 2006 the property abutting the [*9]sidewalk where Plaintiff fell was residential property with more than six units. Moreover, Marcus Garvey, the owner of the abutting property, acknowledges that it was not exempt from the liability-shifting provisions of the New Sidewalk Law. (See Affirmation in Support, ¶ 8.)

Had there been sufficient evidence that Plaintiff's fall was caused by a condition that 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. (See Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d 725, 726 [2d Dept 2003]; Michela v County of Nassau, 176 AD2d 707, 708 [2d Dept 1991]; see also Monteleone v Incorporated Vill. of Floral Park, 74 NY 917, 918 [1989]; O'Brien v Schenectady, 26 AD3d 655, 657 [3d Dept 2006]; Goldburst v County of Nassau, 307 AD2d 1019, 1020 [2d Dept 2003].) Where the City no longer has the duty to maintain, its position is the same as that of the abutting landowner before the New Sidewalk Law, and, as demonstrated above, it would not be liable.

In the absence of such evidence, however, the City must establish prima facie that it neither caused nor created the condition that caused Plaintiff's fall nor that the condition was a consequence of a special use. Without conceding that the City retains any "cause or create" liability under the New Sidewalk Law (see Affirmation in Support of the City's Cross-Motion and in Opposition to Marcus Garvey's Motion, ¶ 18), the City submits an Affidavit of Sherry Johnson, an employee of the Department of Transportation and a member of the Search and Appearance Unit of the Litigation Support Office (see id., Exhibit H, ¶ 1.) Ms. Johnson asserts that she "conducted a search for records of applications for permits, permits, cutforms, complaints/repair orders, violations, and contracts for the sidewalk" where Plaintiff allegedly fell, "encompass[ing] a period of two years prior to and including January 9, 2006," and that her search "revealed no records of applications for permits, permits, cutforms, complaints/repair orders, violations, or contracts at the afforementioned location and the afforementioned time frame." (See id., ¶ ¶ 2, 3, 5.)

When the issue was an exception to the requirement for prior written notice, "the City established, prima facie, that it did not create the defective condition by submitting evidence that it had not performed maintenance or repairs at the accident location for two years before the accident." (See Gruska v City of New York, 292 AD2d 498, 499 [2d Dept 2002]; see also Elstein v City of New York, 209 AD2d 186, 186 [1st Dept 1994].) The Affidavit of Ms. Johnson falls short of that evidence, however, because there is no statement that any activity at the location by the City or its contractor would have been reflected in the records that Ms. Johnson searched. There is no evidence, for example, that the Transportation Department records searched by Ms. Johnson would have reflected any work done pursuant to a Parks Department sidewalk reconstruction contract like that proffered by Marcus Garvey. Nor does Ms. Johnson's Affidavit provide any evidence that the City did not make any special use of the sidewalk; there is no mention of special use, nor any basis for concluding that a special use would be reflected in the records searched. [*10]

Statements as to lack of City activity or special use must, in any event, be made by a person shown to have sufficient knowledge to render the statements competent as evidence. Where a statement is based upon the absence of a record, the person asserting it must be shown to have sufficient knowledge to say that the fact would have necessarily been reflected in a record of the type searched. (See Hefte v Bellin, 137 AD2d 406, 408 [1st Dept [1988]; Psychological Practice, P.C. v NY Central Mut. Fire Ins. Co., 2007 NY Slip Op 51304 [U], * 1 - * 2 [App Term, 2d Dept].) Ms. Johnson is not shown to be so qualified.

Neither Marcus Garvey nor the City, therefore, has established prima facie its entitlement to judgment as a matter of law.

The motion of defendant Marcus Garvey Brownstone Houses, Inc. (no. 16) is denied.

The motion of defendant City of New York (no. 17) is denied, with leave to renew with affidavit(s) or other evidence in accordance with this opinion.

July 10, 2007___________________

Jack M. Battaglia

Justice, Supreme Court