Vucetovic v. Epsom Downs, Inc., 81.

• Court: New York Court of Appeals
• Writing for the Court: Graffeo
• Citation: 10 N.Y.3d 517,890 N.E.2d 191
• Parties: Dzafer VUCETOVIC et al., Appellants, v. EPSOM DOWNS, INC., Respondent.
• Docket Number: No. 81.,81.
• Decision Date: 03 June 2008

890 N.E.2d 191

10 N.Y.3d 517

Dzafer VUCETOVIC et al., Appellants, v. EPSOM DOWNS, INC., Respondent.

No. 81.

Court of Appeals of New York.

June 3, 2008.

Roura & Melamed, New York City (Alexander J. Wulwick of counsel), for appellants.

Rebore Thorpe & Pisarello PC, Farmingdale (Timothy J. Dunn, III, of counsel), for respondent.

Michael A. Cardozo, Corporation Counsel, New York City (Francis F. Caputo and Susan Paulson of counsel), for City of New York, amicus curiae.

OPINION OF THE COURT

GRAFFEO, J.

In this personal injury action, we conclude that a tree well is not part of the "sidewalk" for purposes of section 7-210 of the Administrative Code of the City of New York, which imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition. We therefore affirm the order of the Appellate Division dismissing the complaint.

At about 10:30 P.M. on a clear, dry evening on January 31, 2004, plaintiff Dzafer Vucetovic was walking down East 58th Street in Manhattan between Second and Third Avenues when he stepped into a tree well and tripped on one of the cobblestones surrounding the dirt area containing a tree stump. The tree well was located in front of a building owned by defendant Epsom Downs, Inc.,¹ but the tree well apparently was installed prior to Epsom's acquisition of the building.² Approximately four months before the accident, the City of New York had cut down the tree.

Plaintiff and his wife, suing derivatively, brought this action for personal injuries against Epsom alleging that the property owner failed to maintain the sidewalk in a reasonably safe condition in violation of section 7-210 of the Administrative Code of the City of New York. Epsom moved for summary judgment dismissing the complaint, contending that section 7-210 did not apply because the tree well was not a part of the sidewalk as defined in the Administrative Code.

Supreme Court granted the motion and dismissed the complaint, agreeing with Epsom that section 7-210 was inapplicable. A divided Appellate Division affirmed and plaintiff now appeals as of right based on the two-Justice dissent.

Before addressing the language of section 7-210 itself, it is necessary to examine the background underlying its enactment. Prior to the adoption of section 7-210, property owners in New York City had a statutory duty both to "install, construct, repave, reconstruct and repair the sidewalk flags in front of or abutting such property" (Administrative Code of City of N.Y. § 19-152[a]) and to "remove the snow or ice, dirt, or other material from the sidewalk" (Administrative Code of City of N.Y. § 16-123[a]). Failure to comply with these directives resulted in fines or an obligation to reimburse the City for its expenses incurred in performing the necessary work, but not tort liability (see Administrative Code of City of N.Y. § 19-152[e]; § 16-123[e], [h]).

Under this previous statutory scheme, the City, as the owner of the sidewalks, generally remained liable for injuries to pedestrians caused by defective sidewalk flags, subject to the requirements of the prior written notice law (see Administrative Code of City of N.Y. § 7-201[c][2]; see also Yarborough v. City of New York, 10 N.Y.3d 726, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008]). An abutting landowner could be held liable only if the owner affirmatively created the dangerous sidewalk condition, negligently made repairs or used the sidewalk in a special manner for its own benefit (see Hausser v. Giunta, 88 N.Y.2d 449, 453, 646 N.Y.S.2d 490, 669 N.E.2d 470 [1996]).

In 2003, the New York City Council modified this regime by adopting section 7-210 of the Administrative Code, which reads as follows:

"a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.

"b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk "c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks . . . in a reasonably safe condition."³

The City Council enacted section 7-210 in an effort to transfer tort liability from the City to adjoining property owners as a cost-saving measure, reasoning that it was appropriate "to place liability with the party whose legal obligation it is to maintain and repair sidewalks that abut them — the property owners" (Rep. of Comm. on Transp., at 5, Local Law Bill Jacket, Local Law No. 49 [2003] of City of NY). Notably, the language of section 7-210 "mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123" (id. at 4; see also Office of Mayor Mem. in Support, Local Law Bill Jacket, Local Law No. 49 [2003] of City of NY).

Against this backdrop, plaintiff, joined by the City as amicus curiae, asserts that tree wells should be considered an integral part of the...