Wood v. City of N.Y.

• Decision Date: 04 September 2012
• Citation: 2012 N.Y. Slip Op. 06100,950 N.Y.S.2d 373,98 A.D.3d 845
• Parties: James WOOD, et al., Plaintiffs–Respondents, v. The CITY OF NEW YORK, et al., Defendants, East 49th Street Development II, LLC, et al., Defendants-appellants.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 845

950 N.Y.S.2d 373

2012 N.Y. Slip Op. 06100

James WOOD, et al., Plaintiffs–Respondents,

v. The CITY OF NEW YORK, et al., Defendants,East 49th Street Development II, LLC, et al., Defendants-appellants.

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

Sept. 4, 2012.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Jerri A. DeCamp of counsel), for appellants.

Shafran & Mosley, P.C., White Plains (Kevin L. Mosley of counsel), for respondents.

SWEENY, J.P., CATTERSON, ACOSTA, FREEDMAN, JJ.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about January 25, 2012, which, to the extent appealed, denied the motion by defendants East 49th Street Development II, LLC, and 250 East Borrower, LLC for summary judgment dismissing the complaint and the cross-claim of codefendant Ocean Avenue Construction, Inc., for contractual indemnification, unanimously reversed, on the law, without costs, and the claims and cross-claim dismissed as to these defendants.

Defendant 250 East Borrower and its indirect member defendant 49th Street Development II, are the owners of property adjacent to where plaintiff allegedly sustained injury when he tripped and fell on a crack in the sidewalk and hit his head on a muni-meter installed by the City. The record establishes that defendant Ocean Avenue Construction erected a blue, wooden construction fence in connection with a construction project being performed on the owners' lot. Plaintiff was walking in front of a restaurant on the lot just south of defendants' lot and was approaching the area where the sidewalk was narrowed by the construction fence, when he stepped aside toward the curb to allow other pedestrians approaching him to pass. As he stepped toward the curb, but before he reached the construction site, plaintiff tripped on a crack in the sidewalk and fell, striking his head on the muni-meter and sustaining injuries.

Plaintiff sued, inter alia, the owners of the abutting property, the restaurant, the construction company, and the owner of the construction site averring that the narrowing of the sidewalk in front of the construction site directed him toward the cracked sidewalk.

Moving to dismiss the claims against them, defendants, as owners of the construction site property, contend they had no duty to plaintiff and that they did not proximately cause plaintiff's injury, as they neither created the alleged defect upon which plaintiff fell nor was it located on their property. In addition, they argue that plaintiffs' claim that the closeness of the muni-meter to the fence created a hazard lacks merit. Defendants contend that even if the presence of the muni-meter, which was situated south of the construction fence in front of the restaurant, narrowed the area approaching the walkway, it was the crack on the neighboring property that caused plaintiff to trip and strike the meter, not the construction fence. Defendants further aver that Administrative Code of the City of New York § 7–210[b] does not impose liability on them as they are not the abutting owner of the sidewalk on which plaintiff tripped, nor have they violated any provision of 12 NYCRRR 23–1.18 governing the construction of sidewalk sheds and barricades. Defendants...