Ortiz v. City of New York
| Decision Date | 25 August 2009 |
| Docket Number | 118118A119N. |
| Citation | 67 A.D.3d 21,884 N.Y.S.2d 417,2009 NY Slip Op 06299 |
| Parties | RAMONA ORTIZ, Respondent-Appellant, v. CITY OF NEW YORK, Respondent-Appellant, and 240 WEST 98TH STREET ASSOCIATES et al., Appellants-Respondents. RAMONA ORTIZ, Respondent, v. CITY OF NEW YORK, Respondent, and 240 WEST 98TH STREET ASSOCIATES et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Flynn, Gibbons & Dowd, New York City (Ann Teresa McIntyre of counsel), for 240 West 98th Street Associates and another, appellants-respondents/appellants.
Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner and Barry P. Schwartz of counsel), for municipal respondent-appellant/respondent.
Brian J. Isaac, New York City, and Gersowitz, Libo & Korek, P.C., New York City (Edward H. Gersowitz and Julie T. Mark of counsel), for Ramona Ortiz, respondent-appellant/respondent.
At issue in this case is whether a corner pedestrian ramp leading down a sidewalk onto the street is part of the "sidewalk" for purposes of Administrative Code of the City of New York § 7-210, which imposes tort liability on property owners who fail to maintain City-owned sidewalks in a reasonably safe condition. We hold that section 7-210 does not impose tort liability on abutting property owners for defects on pedestrian ramps. The City of New York is responsible for maintaining the pedestrian ramps, and there is evidence that the City was partially responsible for creating the hole in this particular ramp.
On February 3, 2005, plaintiff tripped and injured her knee when she stepped into a triangle-shaped hole in the bottom edge of a pedestrian ramp connected to the sidewalk adjacent to property owned by defendant 240 West 98th Street Associates and managed by defendant Weinreb Management, at 98th Street and Broadway in Manhattan. A missing street curb formed the base of the triangular hole. Plaintiff's expert conducted an inspection of the area of the accident and found several purported defects that, in his opinion, represented departures from city regulations and engineering standards. In particular, the expert found "no protective curb surrounding the concrete sidewalk curb ramp," that is, "[t]he street asphalt [met] the curb ramp directly." He thus concluded that either the City or its agents had constructed the curb ramp without a protective curb in place and without ensuring that the ramp was flush with the street, or the curb had sunk relative to the ramp and had been paved over. He opined, without contradiction by the City, that "the City ... had actual knowledge of the missing or depressed protective curb as the street was paved directly to the curb ramp without a curb in place as required."
Defendant 240 moved for summary judgment, arguing, inter alia, that Administrative Code § 7-210, the new sidewalk law, did not apply to this case since the pedestrian ramp was not part of the sidewalk for which the adjacent property owner was liable. Section 7-210, it argued, requires only repair and maintenance of the "sidewalk flags," which are different from pedestrian ramps.
The City opposed the motion and cross-moved for summary judgment, arguing that, aside from the fact that Administrative Code § 7-210 transferred liability to the adjacent property owner, it was also not liable because there was no prior written notice of the defect causing plaintiff's injury. The City also noted that the record contained no evidence of any fact that would bring the case within any exception to the prior written notice requirement. The City attached the deposition testimony of Sherry Johnson of the Department of Transportation, who stated that the City had searched the records and found no written notice, complaints or work performed at that location. The City also attached a map prepared by the Big Apple Pothole and Sidewalk Protection Committee (the Big Apple map), which had been served on the City prior to plaintiff's accident. This map contained no notation indicating a hole or cracked sidewalk at that location.
The court denied defendant 240's motion for summary judgment, holding that the pedestrian ramp was part of the sidewalk for which adjacent land owners were liable for maintenance and repair pursuant to Administrative Code § 7-210. The City's cross motion for summary judgment was granted solely to the extent of finding that the City had not received prior written notice of the hole. The court found, however, that issues of fact existed as to whether the City had caused or created the defect (not in the construction of the ramp itself, but in creating a height differential when it repaved the street). The court noted plaintiff's expert's finding that the average height differential at the base of the ramp edge measured 1½ to 2 inches, which provided an abrupt vertical transition creating a recognized tripping hazard. The expert also found (and photographs of the hole confirm) that the base of the triangular hole was caused by a missing curb. The court noted the expert's uncontradicted finding of no protective curb surrounding the concrete sidewalk curb ramp, and the City's actual knowledge of the missing or depressed protective curb, having paved the street directly to the curb ramp without a curb in place as required. The court noted that if the only claim were the premature failure of the concrete, under Bielecki v City of New York (14 AD3d 301 [2005]), the City would prevail.
At common law, prior to enactment of section 7-210, the City, and not the abutting landowner, was liable for injuries sustained by a pedestrian as a result of defects in the sidewalk, unless the owner created the defective condition or caused it through some special use. In addition, while the statutory scheme prior to enactment of section 7-210 required an abutting landowner to "install, construct, repave, reconstruct and repair the sidewalk flags in front of or abutting such property" (Administrative Code § 19-152 [a] [1] [emphasis added]), and to remove snow, ice, dirt or other material from the sidewalk (Administrative Code § 16-123 [a]), the failure to abide by these provisions would expose the landowner to fines or require the landowner to reimburse the City for its expense in performing these acts (Hausser v Giunta, 88 NY2d 449, 452-453 [1996]), but would not expose the landowner to tort liability (Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 520 [2008]; see also Muniz v Bacchus, 282 AD2d 387 [2001]; Nicholson v City of New York, 257 AD2d 532 [1999]).
In 2003, the New York City Council enacted section 7-210, which states in part:
Applicable to incidents occurring on or after September 14, 2003, section 7-210 transferred liability for defective sidewalk flags from the City to all nonexempt adjacent property owners (see Klotz v City of New York, 9 AD3d 392, 393 [2004]).1 The primary intent of section 7-210 and the related amendments to the Code was to alleviate the practical and financial burdens the City faced in maintaining its sidewalks, while preserving an injured person's access to recovery (see Gangemi v City of New York, 13 Misc 3d 1112, 1121 [2006], citing Mayor Bloomberg's statement in signing Local Laws 49 and 54 of 2003 of the City of New York).
Another intent of the new sidewalk law was to address an anomaly in the prior statutory scheme, which ostensibly required property owners to maintain the sidewalks abutting their properties in good repair, but imposed no tort liability for their passive failure to do so (Vucetovic, 10 NY3d at 519). Liability was only incurred by the property owner for injuries arising from the negligent repair of the sidewalk, creation of the defective condition, or use of the sidewalk for a special purpose (id. at 520, citing Hausser, 88 NY2d at 453).
Therefore, the intent of the new sidewalk law, aside from financial considerations, was to encourage owners to comply with their preexisting obligations under Administrative Code §§ 16-123 (a) and § 19-152 (a), and ultimately to improve the condition of sidewalks citywide (see 2003 NY City Legis Ann, at 330-334).
Although the City clearly had the authority to transfer tort liability to abutting property owners under the new scheme (Hausser, 88 NY2d at 452-453), section 7-210 of the Code is nonetheless in derogation of the common law and must thus be strictly construed (Vucetovic, 10 NY3d at 521; see generally McKinney's Cons Laws of NY, Book 1, Statutes § 301 [a]). Therefore, if the City desired, with the enactment of the new sidewalk law, to shift liability for accidents on pedestrian ramps, "it needed to use specific and clear language to accomplish this goal" (10 NY3d at 522).
As quoted above, section 7-210 (b) states that the abutting landowner is liable for...
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