Maderias v National Bank of N. Am.

[*1] Maderias v National Bank of N. Am. 2007 NY Slip Op 52219(U) [17 Misc 3d 1131(A)] Decided on November 21, 2007 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2007
Supreme Court, Richmond County

Marsha Maderias, Plaintiff,

against

National Bank of North America, Family Health Foods, G.F.S. New Dorp Health Foods, Inc., Individually, and d/b/a Family Health Foods, the City of New York and Fred Winrock, Defendants.



102919/06

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion of defendant the City of New York (hereinafter the "City") for summary judgment and dismissal of the complaint as against it is denied.

In this personal injury action, plaintiff alleges that on June 28, 2005, she fell on an allegedly uneven and raised sidewalk in front of 1789 Victory Boulevard, at or near 1791 Victory Boulevard Staten Island, New York. The premises in question consist of two adjoining commercial buildings known as Family Health Foods and National Bank of North America, respectively.

In moving to dismiss the complaint, the City maintains that it is not liable for plaintiff's injuries since section 7-210 of the Administrative Code of the City of New York (effective September 14, 2003) has shifted the liability for injuries arising out of purported sidewalk defects from the City to the owner of the abutting real property. The City argues that the subject property (which is one tax block and lot bearing the address of 1791 Victory Boulevard) does not fall within any of the exemptions set forth in section 7-210 of the Administrative Code, i.e., it is not a one, two or three-family residential dwelling that is owner-occupied and used exclusively for residential purposes.

In support of this proposition, the City submits a printout of the New York City Department of Finance (hereinafter "DOF") Real Property Assessment Division database to demonstrate (1) that it is not the owner of 1789 or 1791 Victory Boulevard, and (2) that said premises are classified as "K1 Store Buildings__ STORE BUILDING ONE STORY." The affidavit of George Mark, an Assistant Commissioner of DOF, is also submitted to verify that the information contained in these records is compiled in the regular course of that agency's business.

In opposition, plaintiff maintains that (1) the so-called "new sidewalk law" may be unconstitutional as a "taking" by the State without due process of law, (2) the motion is premature since no discovery has taken place and a preliminary conference has yet to be [*2]held[FN1], and (3) triable issues of fact exist as to whether the City had prior written notice of the defect and/or whether it created the alleged dangerous condition which, plaintiff claims, pre-existed the effective date of section 7-210. In this regard, plaintiff argues that fairness and justice preclude the City from shifting liability for a sidewalk defect that pre-existed the effective date of section 7-210 of the Administrative Code where it had prior written notice of the alleged defect and/or created it. In support, plaintiff submits certain Big Apple Maps dated October 31, 1997, January 26, 1999, December 17, 1999, December 5, 2000, February 22, 2002 and December 18, 2002. According to plaintiff, these maps uniformly establish that "a potholed, cracked, raised and uneven [sidewalk] condition existed for many years" at the subject location prior to plaintiff's accident. To further establish prior written notice, plaintiff submits a copy of a notice of claim (obtained in response to a FOIL request) which was filed with the Comptroller's Office on November 2, 1998, and pertains to an injury allegedly sustained by a pedestrian on August 19, 1998 due to a pothole on the sidewalk in front of 1789 Victory Boulevard. Photographs of the subject area are also submitted revealing a "patchwork" of concrete at the subject location, which is alleged to indicate that "someone obviously performed [prior] repair work." In addition, it is claimed that the defects are located within the area of a bus stop, thereby raising issues of "special use." Finally, plaintiff disputes the admissibility of the DOF printout on the ground that it contains information that was recorded subsequent to the date of this occurrence, and that it is of no probative value regarding the ownership of the property in question.

In reply, the City has submitted proof that it did not create the alleged defective condition, i.e., the affidavit of Cynthia Howard, an employee of the Department of Transportation (hereinafter "DOT"), who attests that a search was conducted for "applications, complaints/repair orders, contracts and violations" relating to the sidewalk in question for a period of two years preceding the date of the accident, and that no such

records were found. The City argues that any claimed need for discovery has been obviated by the results of this search.

In the opinion of this Court, the City has failed to meet its initial burden as the proponent of summary judgment to demonstrate its freedom from liability as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 851, 853).

Although section 7-210 of the Administrative Code takes the form of a 100% shift in liability for the failure to reasonably maintain a sidewalk onto the abutting landowner[FN2], the fact that this "shift" is in derogation of the common law means that this section must be strictly construed against the City (see e.g. Almadotter v City of New York, 15 AD3d 426). In view of the foregoing, it is the opinion of this Court that in order to establish its [*3]right to summary judgment under the new sidewalk law, the City is required to show by evidence in admissible form that (1) the abutting property is not owner-occupied residential property with three or fewer units, and (2) the alleged damage or injury was not caused by a condition (a) caused or created by the City, or (b) arising out of the City's special use of the sidewalk (see generally Faulk v City, 16 Misc 3d 1108A [Sup Ct Kings Co 2007]). Moreover, there is no indication that the enactment of the new sidewalk law was in any way intended to alter the preexisting and well- established rule that the City of New York is legally responsible for the maintenance of bus stops, "including the roads, curbs and sidewalks attendant thereto" (Shaller v City of New York, 41 AD3d 697, 698; see Brown v City of New York, 250 AD2d 638).

In the instant matter, the authenticated records of the New York City Department of Finance adequately indicate that the single tax lot at issue here was not a one, two, or three-family residential dwelling that was owner-occupied and used exclusively for residential purposes. Moreover, the affidavit of the DOT record-searcher is sufficient to demonstrate prima facie that the City did not cause or create the alleged hazard through its "affirmative negligence" as explained in Amabile v City of Buffalo, 93 NY2d 471, 474). To be actionable within Amabile, the affirmative negligence exception is limited to work by the City that immediately results in a dangerous condition (see Oboler v City of New York, 8 NY3d 888). Here, the "patchwork" of sidewalk repair is nowhere described as being recent. Nor is there any evidence of a "special use." The City's liability arising from special use is limited to usage that is "unrelated to public use" (see Poirier v City of Schenectady, 85 NY2d 310, 3150. This, clearly, would not include a bus stop.

Nevertheless, questions of fact exist in this case as to whether or not the alleged "patchwork" of prior repairs to the sidewalk in question lies within a City bus stop. Plaintiff at bar has produced copious evidence of prior written notice as recently as December 18, 2002, and the City has failed to address that evidence with proof of repair subsequent to that date and prior to the date of plaintiff's accident.

Having rejected the City's argument that the new sidewalk law operates to absolve it of liability in this case, there is no reason to address plaintiff's constitutional issue (see Matter of Sarah K., 66 NY2d 223, 240, cert den sub nom Kosher v Stamatis, 475 US 1108).

Accordingly, it is

ORDERED, that the motion of the City of New York is denied.

The foregoing constitutes the Decision and Order of the Court

Dated: NOV. 21, 2007/s/

HON. THOMAS P. ALIOTTA, J.S.C.

Footnotes

Footnote 1: But see Uniform Civil Term Rules, Richmond County, §1

Footnote 2: As applicable, section 7-210 of the Administrative Code provides as follows:

b. Notwithstanding any other provision of law, the owner of real property abutting anysidewalk...shall be liable for any injury to property or personal injury, includingdeath, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be 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".