Klau v Belair Bldg., LLC

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Klau v Belair Bldg., LLC 2011 NY Slip Op 33029(U) October 12, 2011 Sup Ct, Nassau County Docket Number: 19456/09 Judge: F. Dana Winslow 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. ........................ ...... ..................... ....... ..... ........."................"......".."............" ..."........ ............... ............ ... ... ........... .... ... [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIALIIAS, PART" NASSAU COUNTY ELAINE KLAU AND MARVIN L. KLAU, &)1 Plaintiffs, MOTION SEQ. NO : 001 MOTION DATE: 7127/11 -againstBELAIR BUILDING, LLC, INDEX NO. : 19456/09 Defendant. BELAIR BUILDING, LLC, Third- Party Plaintiff, -againstNATIONAL GRID and LIP A Third-Part Defendants. The following papers having been read on the motion (numbered 1- 3): tio D...... .... ..... ...... Affirm a tio n in Op' p 0 s iti 0 D............" ... Reply Affirmatio D............... .............. ... ................. No ti ce of 3212 by the defendant Belair Building, LLC for an order dismissing the complaint and all cross claims and/or counterclaims insofar as interposed against it is determined as follows. In August 01'2009 , the plaintiff Elaine Klau was walking on a public sidewalk abutting 325 Shore Road , in Long Beach , New York , near the Lincoln Apartent 30; Cmplt. 10- 11). As she proceeded complex (E. Klau Dep. , 11- 12; 18eastbound, her right foot struck an allegedly uneven and " upraised" blob of concrete attached to , and located directly on top of, a metal gas valve cover or cap, which had been installed in the concrete sidewalk slab (E. Klau Dep. , 11- 12; 18- 20; 27- 28; 85- 86; Pictures , Milch Exh. " Sommer Aft , Exh. H" Stone Dep. 10- 12). Motion pursuant to CPLR ," ," [* 2] After her foot contacted the concrete blob , which was some two to three inches wide and about an inch-and-one half high , the plaintiff lost her balance and feU to the sidewalk , allegedly sustaining personal injuries (E. Klau Dep. , 18- 21; 27 , 32 , 54- 55). The propert directly adjacent to the sidewalk area where the plaintiff fell - the Lincoln Aparments - is owned by the defendant Belair Building, LLC ("Belair National Grid owns , and is responsible for maintaining, the sidewalk gas box valve on which the plaintiff stumbled (Milch Aff. , Exh. Relevant work records produced during discovery indicate inter alia that National Grid received notice of a gas leak in the underlying main attached to the subject valve cover , and performed repairs in 2003. As par of the repair process , the concrete sidewalk slab in which the valve was installed was excavated. Thereafter, National Grid retained a private paving contractor to reinstall the sidewalk slab (Stone Dep. , 8- 9; 17- , 23; Haberman Dep. , 18- 20; Marquez Dep. , 27). According to Belair s property manager, Brook Haberman he observed utility 17- personnel performing a second repair on the same valve and sidewalk slab , possibly at some point in 2007 or 2008 , after which he noticed that the sidewalk had again been replaced (Haberman Aft: , ~~ 4- 6 (Milch Aff. , Exh. ); Marquez Aff. , ~~ 6- 7; Klau Dep. , 87). After the repair, and in the exercise of his management duties , Haberman had occasion to walk in the vicinity of the slab , but never noticed any defect in its construction (Haberman Afl , ~ 5; Marquez Aff. , ,~ 8- 9). After the injured pla-intiffs accident occurred , however, Haberman examined the slab more closely and " observed a square metal plate marked ' GAS' and a very small amount of concrete on it" (Habennan Aff. , ~ 5; Marquez Aff. , ~~ 8- 9). Haberman stated that no one from Belair had ever performed any repair or construction work on the involved , sidewalk slab or the gas box valve (Haberman Aff. 2; Marquez Afl , ~ 9). National Grid' s current senior administrator, Walter Stone , was deposed and testified inter alia that as a general practice, National Grid excavates sidewalk slabs surrounding gas box valves when repairs are made. National Grid is thereafter responsible for replacing and/or repairing the excavated sidewalk slab (Stone Dep. , 17- 19), Stone testified that adjacent landowners are not permitted or authorized to remove gas cap valves (Stone Dep. , 31). By summons and verified complaint dated July, 2010 , the injured plaintiff , Elaine ," [* 3] Klau , and her husband , suing derivatively, commenced the within personal injury action as against Belair. Among other things , the verified complaint references and relies upon " Long 256 , which provides in relevant part inter alia adjoining landowners whose propert fronts or abuts " any street , highway, traveled road, public lane , alley or square, " must "make , maintain and repair the sidewalk , curbstones and gutters " (Cmplt. , ~ 9). The foregoing Charter section fuher provides that abutting landowners " shall be liable for any injury or damage by reason of omission, failure or negligence to make , maintain or repair such sidewalk , curbstone and gutter or to remove snow , ice or other obstructions therefrom * * * Significantly, the term " sidewalk" is defmed in a separate portion of the Charter as " any portion of a street between the curbline and the adjacent property line , intended for the use of pedestrians , excluding parkways " (Code of Ordinances , Part II , Gh. 1 1.2 Beach City Charter , that cl, 144). Vehicle & Traffic Law Belair has answered the verified complaint, denied the material allegaW;ms therein and interposed various affirmative defenses (Milch Aff. , Exh. ). Thereafter, Belair instituted a third- par action against National Grid and LIP A. Discovery has been conducted and Belair now moves for sumar judgment dismissing the plaintiffs ' complaint insofar as interposed against it. In support of its application , Belair argues that the utilty-owned gas valve cover (and the concrete affixed to it) were not part of the sidewalk within the meaning of the $ubject City inter alia, Charter provision and that the defect was exclusively created by National Grid Milch Aff., ~~ 34motion. (e. , 50). National Grid has not fied papers in connection with the It is settled that " (a)n adjoining landowner may be liable for injuries caused by a sidewalk defect only where it affirmatively created the dangerous condition , n gligent1y made repairs to the area , caused the dangerous condition to occur through a special use of the area, or violated a statute which expressly imposes liabilty on the propert owner for 82 AD3d 1047 1048 see Epsom Downs, Inc. 10 NY3d 517 519Hausser Giunta 88 NY2d 449 45386 AD3d 624; 85 AD3d 971 972). However, in construing municipal ordinances and statues and Code provisions failure to maintain the abutting sidewalk" (Holmes v. Town of Oyster Bay, , Vucetovic v. 520 (2008); v. James 454 (1996); v. County of Nassau, Harakidas v. City of New York, ," [* 4] which impose liabilty upon adjoining landowners, the Court of Appeals has emphasized that ''' legislative enactments in derogation of common law , and especially those creating liabilty where none previously Epsom Downs 10 NY3d at 521 quoting from ifNJ. , Inc. Philp Morris USA Inc. 3 NY3d 200, City of New York, supra 86 AD3d at 627). existed,' must be strictly construed" , Inc., supra, (Vucetovic , Blue Cross v. 206 (2004); In the leading case of Vucetovic v. Harakidas Epsom Downs v. Blue Shield v. , Inc., supra, the injured plaintiff ontaining tripped over uneven or defective cobblestones which bordered a dirt tree well the stump of a tree removed by the City several months prior to the accident (Vucetovic Epsom Downs, Inc. at 519 , 522 , fn 2). The Court' s opinion notes that the record was unclear as to who placed the cobblestones and/or who had installed the tree well , supra, Epsom Downs, Inc. at 522 210 of the City Administrative Code provided that: " It shall be the duty of the owner of real propert abutting any sidewalk , including, but not limited to , the intersection quadrant for comer (Vucetovic v. , supra, , fn 2). Insofar as relevant a reasonably safe condition. " A separate: Code provision defined the term " sidewalk" as meaning, " that portion of a street between the curb lines , or the lateral lines of a roadway, and the adjacent propert lines, but not including the curb , intended for the use of pedestrians 19- 101(dJ). In ruling that the City Code provision was inapplicable to the tree well , the Court observed that neither the Code transfer provision itself, nor the separate definition of sidewalk, mentioned tree wells as covered defects. In light of this statutory omission , and applying the principle of strict construction , the Court declined to apply the Code provision and dismissed the complaint as to the adjoining landowner. propert, to maintain such sidewalk in " (Code 210 , the Second Deparment has Notably, and upon subsequently interpreting 210 " does not impose strict liabilty upon the propert owner " and that therefore the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable City of New York 86 AD3d at Khaimov 74 AD3d 1031 , 1032- 1033). With these principles in mind , the Court agrees that Belair has establish d its entitlement to judgment as a matter law. Specifically, Belair has demonstrated that the valve box cover to which the offending cement substance was affixed , does not fall within the scope of the relevant City of New York 33 AD3d 828 Epsom Downs, Inc. recently held that (Harakidas , supra, 626; Martinez prima facie , Charer provisions , 830 see generally, Vucetovic v. (Alexopoulos , supra cf, Manning [* 5] Misc.3d City of New York , 2007 WL 2446562, at 2 (Supreme Court , Richmond County 2007)). Here , there is no common law precedent which would require adjoining landowners to maintain a public utilitt s gas valve equipment, or to clear potentially City of New York, supra, 86 (Harakidas sensitive gas service equipment of defects AD3d at 626). Accordingly, any transfer of municipal liabilty (Vucetovic strict" or narrow statutory construction v. is subject to the rule of Epsom Downs, Inc., supra; City of New York, supra, 86 AD3d at 626). At bar , the subject Charter provision , at least to the extent described by the parties does not particularize the defects for which an adjoining landowner would be responsible i. e. it contains no language which expressly provides that landowners are to be held accountable for affirmatively created defects which are literally affixed to utilHy-owned equipment which only the utilty is (see, Epsom Downs, Inc. City of New York, supra 2007 WL 2446562 , at 2). Specifically, while the governing charer provision is relatively broad, its language only generally refers to the repair and maintenance of " sidewalks , curbstones Harakidas gas main equipment Vucetovic authorized to service v. v. , supra; Manning inter alia, and gutters City of New York, supra). The charer provision itself does not contain language defining the meaning of " sidewalk" for the specific purpose (i)f applying (see generally, Epsom Downs, Inc., at 521). Similarly, although the Charter s separately codified definitional section does define the term " sidewalk " there is no language in that provision which e pressly states that a utilty-owned , metal gas box valve constitutes part of a sidewalk fQr purposes (Manning v. its repair and maintenance obligations Vucetovic v. supra, (see of imposing liabilty on adjoining landowners supra see, Vucetovic Epsom Downs, Inc. , supra v. City of New York, , Alexopoulos at 521 cf, Smith v. 125th Street Gateway Ventures, LLC 75 AD3d 425). It bears noting that to the extent discernable from the record , the allegedly hazardous cement "blob" was literally fused to the valve box cap itself, and was not therefore , situated on the surounding slab portion of the sidewalk. Nor was Belair an entity even possessing the authority to correct conditions affecting utility-owned gas Milennium Partners Misc.3d _ 2010 WL 521123 (Supreme Cour Alltom Properties, Inc., Misc. , 2007 WL 2333086 , at 2 (Supreme Court , Kings County 2007)). National equipment (cf, Calise v. , New York County 2010); King v. ," [* 6] Grid' s witness testified in this respect that only utilty personnel were authorized to service or maintain the valve (Stone Dep., 30- 31). While the plaintiffs further contend inter alia, that the definition of they term sidewalk" under the Long Beach Code includes the surface area where the valve was located case , the governing City Code definition of the term " sidewalk " was also arguably broad enough to lit rally encompass the specific geographic and/or physical location where the offending within the "physical boundares " of what Epsom Downs 45 AD3d 28, 3031 (Gonzalez , J. Epsom Downs New York City Administrative Code 710; 19- 101(d); 19- 152). Despite this , the Court of Appeal' s written opinion does not rely on the theory that the involved tree weU area was not a location " for the use of pedestrians (see 19- 101 (d)), but instea rejected liabilty because the transfer (and related) Code provisions contained no reference to " tree wells (cj, Epsom Downs, Inc. 45 AD3d 28 afJ' Epsom Downs, Inc. supra). The plaintiffs ' additional suggestion that Belair was duty- bound to notifY the appropriate repair authority (Sommer Aff. , ~ 28), is lacking in merit , since the relevant Charer provisions "nowhere impose a duty to notify (third paries) * * * of dangerous conditions Alltom Properties, Inc. Misc.3d , 2007 WL 2333086, at 3 (Supreme Court, Kings County 2007)). Alternatively, and even assuming that the involved defect falls within the reach of Vucetovic , this assertion is not determinative. In the e., cobblestones and tree well were located, one would consider the sidewalk v. (see, Vucetovic , dissenting), affd, Vucetovic , Inc., v. , Inc., supra see also, Code " as specific features of a sidewalk to which the statutory duty would apply Vucetovic v. , 29 (King , Vucetovic v. v. (86 AD3d at 626- 628), Belair has demonstrated that the plaintiff's injuries were exclusively attributable to the affirmative acts and omissions of National Grid. City of New York, supra (86 AD3d at 626), the Second Department recently applied the requisite strict construction " principle to the analogous, City sidewalk ordinance , and concluded that although the ordinance " expressly shifts tort liabilty to the abutting property owner for injuries proximately caused by the orner failure to maintain the sidewalk in a reasonably safe condition * * * (neverthel ss) it does not shift tort liabilty for injuries proximately caused by the City' s affirmative acts of negligence City of New York, supra 86 AD3d at 626). the Charer (cj, Harakidas primafacie In Harakidas (Harakidas City of New York, supra, [* 7] Here , the record indicates that any defect which existed - the raised cement lump affixed to the gas box cap - was created by National Grid. The available evidence in this that National Grid was the only entity which performed work at the site; and that after National Grid repaired the gas leak, it then reinstalled the respect establishes, inter alia, valve cap and repaired the sidewalk flag. In opposition , the plaintiffs have not disputed that the inference to be dlrawn from the deposition testimony and other evidentiar materials , is that the alleged defect was created exclusively by National Grid' (el, s affirmative conduct in performing the tepair Harakidas City of New York, supra 86 AD3d at 626)(Sommer Aff., ~ 28). The Court has considered the plaintiffs ' remaining contentions and concludes that they are insufficient to defeat Belair' s motion. Accordingly, it is ORDERED , that the motion pursuant to CPLR ~3212 by the defendant Belair Building, LLC , for an order dismissing the complaint and all cross claims and/or counterclaims insofar as interposed against it , is granted. This constitutes the Order of the Court. Dated: fA 2011 ENTERED NOV 15 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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