Zizzo v. City of New York

• Court: New York Supreme Court — Appellate Division
• Citation: Zizzo v. City of New York, 176 A.D.2d 722, 574 N.Y.S.2d 966 (N.Y. App. Div. 1991)
• Decision Date: 07 October 1991
• Parties: Gloria ZIZZO, Plaintiff-Respondent-Appellant, v. CITY OF NEW YORK, Defendant-Respondent, Glen Oaks Village Owners, Inc., Defendant-Appellant.

Page 966

574 N.Y.S.2d 966

176 A.D.2d 722

Gloria ZIZZO, Plaintiff-Respondent-Appellant, v. CITY OF NEW YORK, Defendant-Respondent Glen Oaks Village Owners, Inc., Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 7, 1991.

William T. Ryan, P.C., Mineola, for defendant-appellant.

Liotti & Skelos, Garden City (George A. Terezakis, of counsel), for plaintiff-respondent-appellant.

O. Peter Sherwood, Corp. Counsel, New York City (Pamela Seider Dolgow and Fay S. Ng, of counsel), for defendant-respondent.

Before MANGANO, P.J., and KUNZEMAN, MILLER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant Glen Oaks Village Owners, Inc. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lerner, J.), entered September 15, 1989, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiff cross-appeals from so much of the same order as granted the defendant City of New York's motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that that order is reversed insofar as appealed from, on the law, the cross motion of the defendant Glen Oaks Village Owners, Inc. is granted, and the complaint is dismissed as asserted against that defendant; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that the defendants, appearing separately and filing separate briefs, are awarded one bill of costs payable by the plaintiff.

The plaintiff slipped and fell on the roots of a tree which was growing in the grassy area between the sidewalk and the curb in front of the building owned by the defendant Glen Oaks Village Owners, Inc. (hereinafter Glen Oaks). Glen Oaks hires gardeners to maintain the grounds around the building. They cut the grass and shrubs on the property as well as the grass on the area between the sidewalk and the curb. They do not, however, care for the trees which grow in front of the building. Those trees are owned and maintained by the defendant City of New York, which is responsible for their pruning and removing their roots.

Contrary to the plaintiff's contention, the grassy area adjacent to the curbline where the plaintiff fell is part of the sidewalk (see, Gallo v. Town of Hempstead, 124 A.D.2d 700, 508 N.Y.S.2d 212; Vehicle and Traffic Law § 144), and New York City's "Pothole Law" (Administrative Code of the City of New York § 7-201[c] is applicable thereto. Since no prior written notice of the defect had been given, it is necessary for the plaintiff to establish affirmative negligence on the part of the City in order for that defendant to be held liable. Under the circumstances of this case the mere planting of a curbside tree does not, in itself, constitute an affirmative act of negligence. Furthermore, the alleged failure of the City to maintain the tree in question constitutes, at best, simple nonfeasance for which there can be no liability absent prior written notice of the...