Mastromarino v City of New York

[*1] Mastromarino v City of New York 2008 NY Slip Op 50377(U) [18 Misc 3d 1140(A)] Decided on February 25, 2008 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2008
Supreme Court, Kings County

Annette Mastromarino and Nunzio Mastromarino, Plaintiff(s),

against

The City of New York and Loren Norvin, Defendant(s).



10536/06



The plaintiffs are represented by Russo, Scamardella & D'Amato by Michael V. Gervasi, Esq., of counsel.

The defendant Loren Norvin is represented by Robert P. Tusa Law Offices by Steve M. Sophocleous, Esq., of counsel, and defendant The City of New York is represented by Michael A. Cordozo, Esq., Corporation Counsel for the City of New York, by Pamela Beitelman, Esq., of counsel.

Robert J. Miller, J.

In this action, defendant Loren Norvin ("Norvin"), the owner of a one-family residence used by Norvin as his residence is sued by plaintiff, Annette Mastromarino ("Mastromarino") as a result of plaintiff's tripping on a raised sidewalk plate in front of Norvin's home.

Norvin now moves for summary judgment arguing that New York City Administrative Code §7-210, commonly known as the Sidewalk Law of 2003, exempts owners of one-family residences from liability for sidewalk trip and fall accidents in front of their homes.

Section 7-210 provides in relevant part as follows;

b. Notwithstanding any other provision of law, the owner of real

property abutting any sidewalk, including, but not limited to, the

intersection quadrant for corner property, shall be liable for any [*2]

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. . . This subdivision shall not apply to

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.

Notwithstanding the clear language of the section which provides that it does not apply "to one-, two- or three-family residential real property" that are owner occupied and used exclusively for residential purposes, plaintiff argues that the Sidewalk Law's "text and legislative

history establish that a residential landowner is liable, at least concurrently with the City for sidewalk defects."

Plaintiff's argument is unconvincing and flies in the face of the clear language of the statute.

In this case, it is undisputed that plaintiff fell on a raised defective sidewalk in front of Norvin's personal residence. The photograph of the accident scene makes it clear that the defect was caused by tree roots. Plaintiff cites no case law in support of her claim that under these facts

the owner of a one-family home is liable for the sidewalk defect under the Sidewalk Law of 2003.

The purpose and intent of the Sidewalk Law of 2003 was to shift liability away from the City for sidewalk accidents other than sidewalks abutting one-family homes used exclusively for residential purposes. (Gangemi v City of New York, 13 Misc 3d 1112 [Sup. Ct. Kings County, 2006].)

Plaintiff argued at oral argument that while the Sidewalk Law of 2003 made it clear that the City is liable for sidewalk accidents in front of one-family residential homes, that no case law exists establishing that where, as here, the owner of a one-family home is also sued, the homeowner should be dismissed from the case. Plaintiff cannot have it both ways. He can't argue that while the Sidewalk Law established liability for the City, it also ( in spite of its clear language) somehow establishes in plaintiff's words, "concurrent" liability for the homeowner. Neither the statute, the legislative history or the case law support such a holding. Accordingly, defendant Norvin's motion for summary judgment is granted and the Clerk of the Court is directed to dismiss the complaint as against defendant Loren Norvin only, with prejudice.

This constitutes the decision and order of the Court.

E N T E R:

____________________________________

ROBERT J. MILLER

Justice