Court Navigates Administrative Code: Was City Negligent/ Liable for Injury?
Commentators will probably disagree on whether or not the rules and exceptions of the New York City Administrative Code are as (or more) complicated and difficult to navigate than the United States Code, in general, or the Internal Revenue Code, in particular. But, as a recent case illustrates, the labyrinthine Administrative Code arguably gives its convoluted Federal counterparts a run for the money.
On March 5, 2017, Konstantinos Gallis allegedly was injured when he tripped and fell on an uneven or raised condition of a sidewalk that abutted property in Queens owned by 23-21 33 Road, LLC. The accident occurred on a part of the sidewalk that was near a tree. Gallis filed a personal injury action against the LLC and the City of New York. The LLC failed to answer the complaint and Gallis was granted leave to enter a default judgment against the LLC. Gallis then moved for summary judgment on the issue of liability against the City. Contending that the City negligently maintained the tree near the accident site, thereby allowing the tree roots to grow and lift the sidewalk, creating a dangerous condition. Supreme Court denied the motion. Gallis appealed.
Administrative Code Section 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, except for sidewalks abutting one-, two-, or three-family residential properties that are owner occupied and used exclusively for residential purposes. 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 was to maintain and repair sidewalks that abut them—the property owners.
Section 7-210(a) states that it “shall be the duty of the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.” Section 7-210(b) states that an abutting owner “shall be liable for any . . . personal injury . . . proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.” Section 7-210(c) further provides that the City “shall not be liable.” And Section 7-201[b} provides that the failure to maintain a 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”. That language mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code Sections 19-152 and 16-123.
The clear and unambiguous language of Administrative Code Section 7-210, combined with the expressed purpose of the law as set forth in the legislative history, established that the City Council intended to shift liability for sidewalk accidents away from the City to the abutting landowner. The statute makes no exception for defective sidewalk conditions.
Gallis argued that the Administrative Code did not relieve the City of potential liability for sidewalk defects resulting from tree growth—pointing out that Administrative Code Section 18-104 which specifies that the planting, cultivating, and care of trees is normally under the exclusive jurisdiction of the City’s Department of Parks and Recreation. And relied on Administrative CodeSection 18-129, which prohibits an individual or entity from cutting or removing trees and vegetation.
But various sections of the Administrative Code also permit abutting property owners to repair and reconstruct sidewalks, which may include the cutting or removal of tree roots, after obtaining appropriate permission from the City. The Code allows abutting property owners to obtain permission to repair and reconstruct the sidewalk under those circumstances, but that does not absolve abutting property owners from their duty of care and potential liability under Code Section 7-210. Where a sidewalk may have been damaged by growing tree roots, abutting property owners are responsible for remedying the condition and are liable for damages that may occur because of the defect. Gallis failed to establish that Section 7-210 was not applicable to the alleged circumstances involving the growth of tree roots.
Gallis also argued that the City was liable pursuant to the express exemption contained in Administrative Code Section 7-210(b) for abutting property that was “in whole or in part, owner occupied” and “used exclusively for residential purposes”. The purpose of that exception was to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair. Gallis correctly contended, and the City conceded, that the statutory exemption might apply to owners that are corporate entities, such as the LLC. But Gallis failed to adduce evidence that the LLC actually occupied the property at the time of the accident, or that use of the property was limited to residential purposes. Instead, Gallis relied solely on his General Municipal Law Section 50-h hearing testimony to make that argument. And Gallis admitted that he did not know if anyone was living at the property when he tripped and fell, and he did not know who the owner of the property was at the time of his fall. Gallis failed to eliminate triable issues of fact on that issue. Gallis alleged, but failed to establish, prima facie, that the sidewalk was not maintained in a reasonably safe condition. Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury. Summary judgment should not be granted where the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive.
While Gallis testified at the Section 50-h hearing that the sidewalk was raised two or three inches, he also admitted that he did not measure the sidewalk and did not know how many inches it was raised. Moreover, the photographs and documents he relied upon were not authenticated and submitted in admissible form. So the pictures failed to demonstrate, prima facie, that the sidewalk was defective.
What’s more, Gallis failed to establish, prima facie, that the City received prior written notice of the alleged defect.
Gallis failed to meet his initial burden as the movant on the issue of liability against the City. His motion for summary judgment was denied.