Tevelow v 31 Gramercy Park So. Owners Corp.

Annotate this Case

Download PDF

Tevelow v 31 Gramercy Park So. Owners Corp. 2011 NY Slip Op 32211(U) July 27, 2011 Sup Ct, NY County Docket Number: 108910/06 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON81I112011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK m= BAREMR~ 7 c. j G jAFFE ! <I . . PRESENT: COUNTY PART .t( - Index Number : 108910/2006 INDEX NO. TEVELOW, PAUL S. vs. 31 GRAMERCY PARK SOUTH MOTION DATE MOTION SEQ. NO. SEQUENCE NUMBER : 005 MOTION CAL. NO. SUMMARY JUDGMENT - this motion tolfor C d H I 4 PAPFRS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhlblta .. Replying Affidavits v) Cross-Motion: I Anewering Affldavits - Exhibits 5 ... c 2 0 3 K 0 Yes @ NO FILED(\ Upon the foregoing papers, It is ordered that this rnotlon I Dated: 7 'I I Check one: JUL 2 anit FINAL DISPOSITION Check if appropriate: c DO NOT POST ] 0 SUBMIT ORDER/ JUDG. REFERENCE n SETTLE ORDER/ JUDG. [* 2] Index No.: 108910/04 Plaintiff, Mot. Date: Mot. Seq. Nos.: 5124111 005 -against- DECISION AND OIRDER 3 1 GRAMERCY PARK SOUTH OWNERS COW., THE CITY OF NEW YORK, and GRAMERCY PARK TRUST, BARBARA JAFFE, J.S.C.: For 31 Gramercy: Christian Sedereas, Esq. Bates & Baer 60 E. 42& St., Ste. 1524 New York, NY 10165 212-227-1735 For City: Lynn M. Leopold, ACC Michael A. Cardozo Corporation Counsel I00 Church St., 4'hFl New York, NY 10007 212-442-0398 By notice of motion dated February 10,20 11, defendant City moves pursuant to CPLR 321 1 andor 3212 for an order dismissing the complaint and all cross claims against it. Defendant 3 1 Gramercy Park South Owners C o p . (Gramercy) opposes. By notice of motion dated February 16,201 1, submitted on default, Gramercy moves pursuant to CPLR 3212 for an order dismissing the complaint and all cross claims against it. The motions are consolidated for decision. I, BACKGROUND On October 12, 2005, plaintiff was allegedly injured when he tripped and fell on a section of tree fencing protruding from a tree well in the sidewalk in front of the building at 3 1 Gramercy Park South in Manhattan (the premises). (Affirmation of Lynn Leopold, ACC, dated Feb. 10,2011 [Leopold Aff.], Exh. A). On or about December 15, 2005, plaintiff served City [* 3] with a notice of claim. (Id.). On or about May 18,2006, plaintiff commenced the instant action against defendants City and Grarnercy, and on or about August 9,2006, City served its answer, in which it asserted a cross claim against Gramercy for contribution and/or indemnification. (Id,, Exhs. B, C). At a 50-h hearing held on March 13, 2006, plaintiff testified that at approximately 7:30 pm on October 12,2005, which was a dark and rainy night, he tripped on a black rod iron fence that was surrounding a tree in the sidewalk in front of the premises. (Id., Exh. D). On or about December 17, 2007, Gramercy served its answer and asserted a cross claim against City for contribution and/or indemnification. (Affirmation of Christian Sedereas, Esq., dated Feb. 16,201 1 [Sedereas Aff.], Exh. B). On August 7,2008, City Department of Transportation (DOT) employee Stacey Williams testified at an examination before trial (EBT) that a fruitless search was conducted of DOT records for any permits, complaints, repair orders, applications for permits, violations, and contracts related to the accident location from October 12,2003 to October 12, 2005. (Leopold Aff,, Exh. E). The same day, City Department of Parks (Parks) employee William Steyer testified at an EBT that a search was conducted for any Parks records, including complaints or notifications or any activity undertaken by Parks employees or a contractor performing work for City, related to the accident location between October 12,2003 and October 12,2005, and that no records were found related to metal fencing surrounding the trees on Gramercy Park South or showing that any permits were requested or obtained by any entity to install the fencing. According to Steyer, although City would not generally install such fencing, it would inspect it if it had issued a 2 [* 4] permit to install it or in response to a request or complaint, but no such records were found for the accident location. (Id., Exh. G). On or about October 7,2008, plaintiff commenced a separate action against Gramercy Park Trust (Trust), and by stipulation dated October 2, 2009, the two actions were consolidated. (Sedereas Aff., Exh. E). At an EBT held on August 27, 2009, Dion Harry Fotopoulos, an employee of Gramercy s management company, testified that he was in charge of maintenance of the premises for the past 13 years, that he did not know who had installed the tree guards or fencing around the tree wells in front of the premises, that Gramercy did not take care of the trees outside the premises, and that he had never seen any work or maintenance performed on the tree wells. (Id., Exh. J). At an EBT held on March 8,2010, James M. Clark Jr., the chairman of the Trustees of the Trust, testified that the Trust did not plant the trees on the sidewalk outside Gramercy, that to his knowledge no one had complained to the Trust about the trees or tree wells, and that Trust is not responsible for maintaining the trees or tree wells. (Id., Exh. K). The same day, Patricia G. C a k testified at an EBT that she cleans the premises, that she lr never saw anyone make repairs to the tree wells in fiont of the premises, and that while she was working no complaints were made about the sidewalk in fiont of the premises. ( I d , Exh. L). By decision and order dated August 3, 2010, the complaint and all cross claims were dismissed against the Trust. (Id., Exh. M). By affidavit dated February 16,201 1, Calvin Skaggs, the board president of Gramercy since 1994, denies that Gramercy owns, operates, maintains or controls the tree well on which I plaintiff allegedly tripped, or that it made a special use of it or received any complaints about it. [* 5] (Id.,Exh. P). . CITY S MOTION & A, Contentions City argues that it may not be held liable for plaintiffs injuries as it received no prior written notice of any defect related to the fencing, nor did it cause or create the defect. (Leopold Aff.). In opposition, Gramercy asserts that as City and not the abutting landowners are liable for the condition of tree wells in the sidewalk, and that as the identity of the entity which installed the fencing on which plaintiff fell is unknown, City may be held liable, although it concedes that City had no prior notice of the defect. (Affirmation of Christian Sedereas, Esq., dated Feb. 28, 201 1). In reply, City maintains that even if had a duty to maintain tree wells, such duty would not be triggered absent prior written notice of a defect related thereto, and observes that Gramercy concedes that City had received no notice. (Reply Affirmation, dated M r 9,201 1). a. B, Analysis While City may be held liable for any defect related to a tree well located in a City sidewalk (Vucetovicv Epsom Downs, Inc., 10 NY3d 5 17 [2008]), liability may be imposed only upon a showing that City had prior written notice of the defect or caused or created it (Tucker v City ofNew York, 84 AD3d 640 [lSt Dept 201 I]). [Plrior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City. (Katz v City ofNew J ork, 87 NY2d 241, 243 [ 1995I). Where the City establishes a lack of prior written notice of a defect, the burden 4 [* 6] shifts to the plaintiff to demonstrate that an exception applies, either that the Ct affirmatively iy created the defect through an act of negligence, which requires a showing that work performed by City immediately resulted in the existence of the defect, or that it made a special use of the place where the defect was located. (Yarboroughv City uflvew York, 10 NY3d 726 [2008]). As City submitted evidence showing that it received no prior written notice of any defect associated with the tree well and performed no work on it in the two years prior to plaintiff s accident, it has established, prima facie, that it may not be held liable here. (See Tucker, 84 AD3d at 644-645 [complaint alleging defect in tree well dismissed against City given the lack of prior written notice of the alleged defect, and the absence of any evidence that the City created the alleged defect through an affirmative act of negligence or made a special use of the subject tree well ]). 1 1 GRAMERCY S MOTION 1. Absent any dispute that City and not Gramercy is responsible for maintaining the tree well on which plaintiff fell, and as there is no evidence that Gramercy created the defect, negligently made repairs to the tree well or fencing, or made special use of it, Gramercy has established prima facie entitlement to an order dismissing the complaint against it. (See Fernandez v 707, Inc., 85 AD3d 529 [lst Dept 201 11 [as property owner s duty to maintain sidewalk does not extend to tree wells, it could be held liable only if it created dangerous condition, negligently made repairs to area, or made special use of it]; Teitelbaum v Crown Heights Assn. for Betterment, 84 AD3d 935 [2d Dept 201 11 [dismissing claim against property owner for injury caused by defect in tree well]). 5 [* 7] ZV, CONCJUSIQN Accordingly, it is hereby ORDERED, that defendant City of New York s motion to dismiss the complaint and all cross claims against it is granted and the cornplaint and all cross claims are hereby dismissed, and the Clerk is directed to enter judgment in favor of said defendant; and it is further ORDERED, that defendant 3 1 Gramercy Park South Owners C o r p . ~ motion to dismiss the complaint and all cross claims against it is granted and the complaint and all cross claims are hereby dismissed, and the Clerk is directed to enter judgment in favor of said defendant. DATED: July 27,201 1 New York, New York 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.