Fusco v. City of N.Y.

• Decision Date: 30 March 2010
• Citation: 900 N.Y.S.2d 81,71 A.D.3d 1083
• Parties: Carmela FUSCO, respondent, v. CITY OF NEW YORK, respondent-appellant, Santo Arena, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 81
71 A.D.3d 1083

Carmela FUSCO, respondent,
v.
CITY OF NEW YORK, respondent-appellant,
Santo Arena, appellant-respondent.

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

March 30, 2010.

900 N.Y.S.2d 81

Richard T. Lau, Jericho, N.Y. (Nancy S. Goodman of counsel), for appellant-respondent.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel), for respondent-appellant.

STEVEN W. FISHER, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

71 A.D.3d 1083

In an action to recover damages for personal injuries, the defendant Santo Arena appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated January 26, 2009, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, and the defendant City of New York cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment

71 A.D.3d 1084

dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, without costs or disbursements.

900 N.Y.S.2d 82

The plaintiff alleges that on January 24, 2006, she was injured in Bay Ridge, Brooklyn, when she tripped and fell while walking over a portion of elevated sidewalk which was raised by a nearby tree root that emanated from an adjacent tree well. She commenced this action against Santo Arena, a co-owner of the premises abutting the sidewalk at the site of her accident, and the City of New York. In their respective answers, Arena and the City asserted cross claims against each other. Following discovery, Arena moved, and the City cross-moved, for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied the motion and cross motion. We affirm.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner ( see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 860 N.Y.S.2d 429, 890 N.E.2d 191). For purposes of the Administrative Code, "a tree well is not part of the 'sidewalk' " ( id. at 518, 860 N.Y.S.2d 429, 890 N.E.2d 191). Consequently, "section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells" ( id...