St. Jacques v. City of New York

• Decision Date: 26 September 1995
• Citation: 633 N.Y.S.2d 97,215 A.D.2d 75
• Parties: Daniel ST. JACQUES and Donna St. Jacques, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent. Larry J. WILTBANK and Joan Wiltbank, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 97

633 N.Y.S.2d 97

215 A.D.2d 75

Daniel ST. JACQUES and Donna St. Jacques, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.

Larry J. WILTBANK and Joan Wiltbank, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Sept. 26, 1995.

Joseph L. Decolator, of counsel (John V. Decolator and Michael Majewski, on the brief, Lysaght, Lysaght & Kramer, P.C., attorneys), Lake Success, for plaintiffs-appellants.

Barry P. Schwartz, of counsel, New York City (Mordecai Newman, on the brief, Paul A. Crotty, Corporation Counsel of New York City, attorney), for defendant-respondent.

Before SULLIVAN, J.P., and ROSENBERGER, ROSS, ASCH and TOM, JJ.

ROSS, Justice.

The dispositive issue in these appeals is whether the defendant City's failure to cause the sidewalks in question to be repaired in accordance with various sections of the New York City Charter, Administrative Code and Municipal Home Rule Law (see, New York City Charter §§ 2903(b) and 2904; Administrative Code §§ 19-152 and 7-201(c)(2); and Municipal Home Rule Law § 11(1)[j] can support the plaintiffs' actions pursuant to General Municipal Law § 205-e (GML § 205-e). The injured plaintiffs were police officers who sustained injuries under virtually identical circumstances. Both officers were on duty chasing a suspect on foot when they tripped, fell and were injured due to a depression and/or crack in the respective sidewalks on which they were running. In both cases counsel for the parties stipulated that maps prepared by the Big Apple Pothole & Sidewalk Protection Corp., which were entered into evidence in each case, showed the sidewalk defect in question and were received by the City well before the respective incidents occurred. It was also stipulated that during the intervening time between receipt of the maps and the incidents in question, the defendant City did not issue notices of violation to the owners of the abutting property.

In St. Jacques v. The City of New York, the City moved for a trial order of dismissal on, inter alia, the grounds that the plaintiffs' common law claims were barred as a matter of law pursuant to Santangelo v. New York State, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, and that plaintiffs had no viable claim under GML § 205-e. The trial court found that pursuant to Santangelo (supra ), there was no common law right of action by a police officer to recover for injuries sustained upon tripping over a defect in a sidewalk while pursuing a suspect. With respect to the GML § 205-e claim the court found that the plaintiffs had not set forth evidence that, if believed by a jury, would permit a finding to sustain the City's liability under GML § 205-e. Specifically, the Court found that the statute should be strictly construed and that none of the laws relied upon by the plaintiffs imposed a statutory duty on the City to maintain its sidewalks above and beyond its common law duty.

In Wiltbank v. The City of New York, tried before the same trial court, the City moved for a directed verdict dismissing the complaint. In a ruling from the bench the trial court granted the City's motion for the reasons stated in its decision in the St. Jacques matter.

On appeal plaintiffs have abandoned their common law negligence causes of action and proceed only on their claims under GML § 205-e. Plaintiffs argue that the statute is a remedial measure and should be broadly interpreted to enable police officers to recover against the City of New York, based upon its failure to maintain its sidewalks in accordance with the duty imposed upon it by the Legislature. Plaintiffs cite various sections of the New York City Charter and Administrative Code in order to demonstrate that the City's obligation to maintain its streets and sidewalks in a reasonably safe condition is statutory.

It has long been recognized that the "municipality owes a duty to keep the public sidewalks in a reasonably safe condition" (D'Ambrosio v. City of New York, 55 N.Y.2d 454, 462, 450 N.Y.S.2d 149, 435 N.E.2d 366). While the duty has generally been recognized as a common law duty, it has been held that the source of the duty is also statutory (Lopes v. Rostad, 45 N.Y.2d 617, 412 N.Y.S.2d 127, 384 N.E.2d 673). Lopes involved an action against Nassau County and the statutory duty imposed upon it by Highway Law §§ 102 and 139. The case of City of New York v. Kalikow Realty Co., 71 N.Y.2d 957, 529 N.Y.S.2d 62, 524 N.E.2d 416, aff'g, 132 A.D.2d 481, 518 N.Y.S.2d 375, relied upon by plaintiffs to demonstrate that the defendant City has a statutory obligation as well as one imposed by common law, involved the question, as framed by the Court, of "who, as between the City and [a] property owner, should ultimately pay" the judgment won by a plaintiff who was injured when he fell on a broken sidewalk (id. 71 N.Y.2d at 958, 529 N.Y.S.2d 62, 524 N.E.2d 416). In both the Appellate Division memorandum (132 A.D.2d 481, 482, 518 N.Y.S.2d 375) and the Court of Appeals memorandum (71 N.Y.2d at 958-959, 529 N.Y.S.2d 62, 524 N.E.2d 416) it was acknowledged that the City of New York had a statutory duty to maintain its sidewalks; the Court of Appeals noted that the nondelegable duty was conceded by the City.

The statutes relied upon by the plaintiffs provide as follows: New York City Charter § 2903(b) provides the Commissioner of Transportation with authority to repair sidewalks, streets, bridges and tunnels. New York City Charter § 2904 sets out the duties and obligations of property owners with respect to "sidewalk flags, fencing of vacant lots and filling of sunken lots or cutting down of raised lots" and Administrative Code § 19-152 sets out the duties and obligations of property owners with respect to sidewalks and lots. Specifically, § 19-152(d) provides that the Department of Transportation, upon being notified in writing of a dangerous condition in a sidewalk and after determining that the condition constitutes an immediate danger to the public, may notify the property owner of the condition and direct same to repair the defect. Section 7-201(c)(2) of the Administrative Code, commonly referred to as the "Pothole Law", requires written notice of any street defect as a condition precedent to any possible liability on the part of the City for that defect. Finally, Municipal Home Rule Law § 11(1)(j) provides that the City may not adopt any law that would transfer such liability, as would attach to the City for the failure to maintain sidewalks, to the abutting landowner.

We agree with the trial court's determination that nothing in any of the provisions cited by the plaintiffs imposes upon the City any duty beyond that which exists by virtue of the case law. Review of the provisions in question demonstrates that, rather than explicitly articulate that the City would be liable to an injured person in the manner of Highway Law § 139, the above cited statutes provide, inter alia, the relevant authorities with control over the construction, maintenance and repair of public roadways and sidewalks; further, they delineate the mechanisms by which the City's duty to maintain sidewalks and roads is to be carried out and set out the relevant rights and duties between the City and the abutting landowner. The statutes, which clearly prohibit the City from any "burden shifting", neither diminish the City's nondelegable common law duty nor add to it.

General Municipal Law § 205-e, in pertinent part, provides a right of action or recovery, in addition to that created under any other provision of law, to officers injured or killed in the course of performing their duties, where the injury or death occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments, or of any and all of their departments, divisions and bureaus.

It is by now well known that General Municipal Law § 205-e was enacted to bring police officers into parity with firefighters who were already provided with a right of action by GML § 205-a (Ruotolo v. State of New York, 83 N.Y.2d 248, 255, 609 N.Y.S.2d 148, 631 N.E.2d 90; L.1989, ch. 346; see Mem of Senator Skelos, 1989 NY Legis Ann, at 180). First enacted on July 12, 1989 (L.1989, ch. 346), the enacting legislation of GML § 205-e was amended in 1990 and made retroactive to revive actions dismissed on or after January 1, 1987 (L.1990, ch. 762). The section was amended a second time in 1992 to provide a right of action to police officers injured in the line of duty, irrespective of whether they were injured as a consequence of a statutory violation respecting the safe maintenance and control of premises (see, L.1992, ch. 474; Ruotolo, supra, 83 N.Y.2d at 255-256, 609 N.Y.S.2d 148, 631 N.E.2d 90). This last amendment was effected in recognition of the "vastly different public services provided by police and firemen" (Mem of Assembly Rules Comm, 1992 NY Legis Ann, at 285-286) and the fact that police officers may suffer injuries which the Legislature intended to be covered by GML § 205-e as a result of violations of statutes other than those governing the proper maintenance and control of "premises" (Ruotolo, 83 N.Y.2d at 255-256, 609 N.Y.S.2d 148, 631 N.E.2d 90; Mem Sen. Skelos, 1992 Legis Ann at 285-286).

GML §§ 205-a and 205-e were clearly intended to ensure that firefighters and police officers would be able to recover for injuries caused by violation of statutes, ordinances, codes, rules and regulations which increase the dangers inherent in their respective work (see, Kenavan v. City of New York, 70 N.Y.2d 558, 567, 523 N.Y.S.2d 60, 517 N.E.2d 872; Mem of Assembly Rules Comm, 1992 Legis Ann at 285-286). In Kenavan, the plaintiff's decedent, a...