Vigil v. City of N.Y.

• Decision Date: 23 October 2013
• Parties: Olga VIGIL, appellant, v. CITY OF NEW YORK, defendant, B.D. Holding Co., respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 986
973 N.Y.S.2d 750
2013 N.Y. Slip Op. 06853

Olga VIGIL, appellant,
v.
CITY OF NEW YORK, defendant,
B.D. Holding Co., respondent.

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

Oct. 23, 2013.

Friedman Friedman Chiaravalloti & Giannini, New York, N.Y. (A. Joseph Giannini of counsel), for appellant.

Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

[973 N.Y.S.2d 751]

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated March 22, 2012, as granted that branch of the motion of the defendant B.D. Holding Co. which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant B.D. Holding Co. which was for summary judgment dismissing the complaint insofar as asserted against it is denied.

On October 11, 2008, the plaintiff allegedly tripped and fell over a two to-three-inch height differential between a metal grating covering a tree well and the surrounding sidewalk. As a result, the plaintiff commenced this action against the City of New York and the abutting property owner, B.D. Holding Co. (hereinafter B.D. Holding). B.D. Holding moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, contending, among other things, that it had no duty to maintain the tree well since the tree well was not part of the sidewalk for purposes of section 7–210 of the Administrative Code of the City of New York, and that the alleged defective condition was open and obvious and not inherently dangerous. The Supreme Court granted that branch of B.D. Holding's motion.

“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 of New York to the abutting property owner” ( Pevzner v. 1397 E. 2nd, LLC, 96 A.D.3d 921, 922, 947 N.Y.S.2d 543;see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191;Fusco v. City of New York, 71 A.D.3d 1083, 1084, 900 N.Y.S.2d 81). A tree well is not part of the “sidewalk” for purposes of Administrative Code of the City of New York §...