Chulpayeva v. 109-01 Realty Co.

• Decision Date: 13 March 2019
• Docket Number: Index No. 13479/14,2018–00417
• Citation: 170 A.D.3d 798,95 N.Y.S.3d 323
• Court: New York Supreme Court — Appellate Division
• Parties: Blurya CHULPAYEVA, Appellant, v. 109–01 REALTY CO., LLC, Respondent, et al., Defendants.

170 A.D.3d 798

95 N.Y.S.3d 323

Blurya CHULPAYEVA, Appellant,

v.109–01 REALTY CO., LLC, Respondent, et al., Defendants.

2018–00417

Index No. 13479/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 19, 2018

March 13, 2019

Serhiy Hoshovsky, New York, N.Y., for appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Meredith Drucker Nolen and Nicholas Hurzeler of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), dated December 4, 2017. The order, insofar as appealed from, granted that branch of the motion of the defendant 109–01 Realty Co., LLC, which was for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On September 23, 2013, the plaintiff allegedly tripped and fell on uneven bricks inside a tree well in front of a building located in Forest Hills which was owned by the defendant 109–01 Realty Co., LLC (hereinafter 109–01 Realty). The plaintiff commenced this action against, among others, 109–01 Realty to recover damages for personal injuries the plaintiff alleges she sustained as a result of the fall. At the time of the accident the building was undergoing a facade inspection and there was scaffolding on the sidewalk. The scaffolding had been installed by the defendant Rock Scaffolding Corp., which had been hired by 109–01 Realty. The plaintiff alleged that the scaffolding on the sidewalk narrowed the pedestrian path where the accident occurred. The plaintiff testified at her deposition that the accident occurred when a woman pushing a man in a wheelchair was approaching the plaintiff from the opposite direction. The plaintiff, in order to let them pass, stepped to her left and into the tree well. After joinder of issue, 109–01 Realty moved for summary judgment, inter alia, dismissing the complaint insofar as asserted against it. In the order appealed from, the Supreme Court, among other things, granted that branch of the motion. The plaintiff appeals.

Administrative Code of the City of New York § 7–210 places the duty to maintain a sidewalk in a reasonably safe condition on the owner of the property abutting the sidewalk, and provides for civil liability for injuries proximately caused by the failure to so maintain the sidewalk. However, the statute does not extend that duty of maintenance to city-owned tree wells, or provide for civil liability for injuries occurring in city-owned tree wells (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521–522, 860 N.Y.S.2d 429, 890 N.E.2d 191 ; Gibbons v. City of New York, 139 A.D.3d 1004, 1004, 30 N.Y.S.3d 843 ). Thus, liability may be imposed on the abutting landowner in such instances only where she or he has "affirmatively created the dangerous condition, negligently made repairs to the area, [or] caused the dangerous condition to occur through a special use of that area" ( Grier v. 35–63 Realty, Inc., 70 A.D.3d 772, 773, 895 N.Y.S.2d 149 ; see Gibbons v. City of New York, 139 A.D.3d at 1004–1005, 30 N.Y.S.3d 843 ).

We agree with the Supreme Court's determination granting summary judgment to 109–01 Realty. There are no...