Yousufu Sangaray v. West River Associates , 26 N.Y.3d 793 ( 2016 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 7
Yousufu Sangaray,
Appellant,
v.
West River Associates, LLC,
Respondent,
et al.,
Defendants.
(And a Third-Party Action.)
Joshua D. Kelner, for appellant.
Timothy J. Dunn, III, for respondent.
PIGOTT, J.:
Plaintiff alleges that he tripped and fell when his
right toe came into contact with a raised portion of a New York
City public sidewalk. The sidewalk flag that plaintiff was
traversing ran from the front of a property owned by defendant
West River Associates, LLC (West River) to a neighboring premises
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owned by defendants Sandy and Rhina Mercado (Mercados). A
photograph contained in the record depicts the sidewalk flag
sloping and descending lower than a level flagstone that is in
front of the Mercado property. The expansion joint that
plaintiff's toe contacted abutted solely the Mercado property.
Plaintiff commenced this common law negligence action
against West River and the Mercados. After defendants served
their respective answers, plaintiff responded to West River's
demand for a verified bill of particulars by alleging, among
other things, that West River violated section 7-210 of the
Administrative Code of the City of New York. That provision,
which was enacted for the purposes of transferring tort liability
from the City to certain adjoining property owners as a cost-
saving measure (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517,
521 [2008]), provides, as relevant here:
"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 . . . 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, negligent failure to . . .
repair or replace defective sidewalk flags .
. ."
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West River moved, among other things, for summary
judgment dismissing plaintiff's complaint, asserting that because
the area of the sidewalk upon which plaintiff tripped was located
entirely in front of the Mercado property, the "defect" did not
abut the West River premises, and, therefore, West River could
not be held liable for failing to maintain its sidewalk. In
support of its motion, West River submitted an affidavit from a
land surveyor who conducted a boundary survey of the sidewalk in
front of the West River and Mercado properties. The surveyor
determined that the expansion joint upon which plaintiff claimed
he tripped was wholly in front of the Mercado property, as
evidenced by the survey map that was attached to the surveyor's
affidavit.
Plaintiff countered that West River breached its
statutory duty by allowing its sidewalk flag to fall into
disrepair, and, in any event, failed to demonstrate its
entitlement to summary judgment because it did not show that it
maintained its sidewalk in a reasonably safe condition.
The Mercados also opposed West River's motion, arguing
that, based on their own survey and an affidavit submitted by a
licensed professional engineer, approximately 92% to 94% of the
defective flag (which had settled due to subsidence of the
underlying soil) was in front of the West River property, and 6%
to 8% of the defective flag fronted the Mercado property.
Supreme Court granted West River's motion for summary
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judgment and dismissed plaintiff's complaint and the Mercados'
cross claim upon constraint of the Appellate Division, First
Department's holding in Montalbano v 136 W. 80 St. CP (84 AD3d
600 [1st Dept 2011]), which it interpreted as holding that a
landowner's duty to maintain the sidewalk is implicated only
where the defect upon which the plaintiff falls abuts the
landowner's property (2013 WL 1808093, 2013 NY Misc LEXIS 1699
[Sup Ct, New York County 2013]). The court concluded that
because plaintiff and the Mercados failed to dispute the evidence
submitted by West River that the defect was in front of the
Mercado property, plaintiff and the Mercados failed to raise a
question of fact as to whether West River breached a duty owing
to plaintiff.
On plaintiff's appeal, the Appellate Division affirmed,
holding that because the record demonstrated that "West River did
not own the property that abutted the sidewalk where plaintiff
tripped and fell[, it] was therefore not responsible for
maintaining the sidewalk in a reasonably safe condition" (121
AD3d 602, 602 [1st Dept 2014] citing Administrative Code of City
of NY § 7-210; Thompson v 793-97 Garden St. Hous. Dev. Fund
Corp., 101 AD3d 642 [1st Dept 2012]; Montalbano, 84 AD3d at 602).
Two Justices concurred with the majority's interpretation of
section 7-210, but asserted that the provision, as written,
allowed West River to avoid liability for the consequences of its
failure to maintain its sidewalk in a reasonably safe condition
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(see id. at 605 [Saxe, J., concurring]). This Court granted
plaintiff leave to appeal and we now reverse.
Section 7-210 unambiguously imposes a duty upon owners
of certain real property to maintain the sidewalk abutting their
property in a reasonably safe condition, and provides that said
owners are liable for personal injury that is proximately caused
by such failure. The First and Second Departments have seemingly
engrafted onto section 7-210 a "location requirement," such that
if the defect upon which a person trips abuts a particular
property, then the owner of that property is deemed liable,
without conducting any inquiry as to whether a neighboring
owner's failure to comply with its statutory duties may have also
been a proximate cause of the accident (see e.g. Byron v City of
New York, 119 AD3d 625 [2d Dept 2014] [holding that defendant
made a prima facie showing of entitlement to summary judgment by
demonstrating that the plaintiff's fall was caused by an alleged
defect that was present in a portion of a sidewalk abutting the
premises owned by the codefendant]; Lorenzo v Ortiz Funeral Home
Corp., 113 AD3d 528 [1st Dept 2014] [granting codefendant summary
judgment because the sidewalk defect that caused the accident was
located in front of the neighboring defendant's property, and,
therefore, the codefendant did not have any obligation to repair
it]; Camacho v City of New York, 96 AD3d 795 [2d Dept 2012]
[defendant property owners met their prima facie burden by
demonstrating, through the use of a land survey, that the portion
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of the sidewalk containing the alleged defect did not abut their
property]; Montalbano, 84 AD3d 600 [defendant met his burden by
submitting uncontroverted evidence that his property did not abut
the portion of the sidewalk where the plaintiff fell and
therefore established that he did not have a duty to maintain the
portion of the sidewalk where the plaintiff fell in a reasonably
safe condition]).
The case upon which West River primarily relies, and
which both the lower courts found controlling, is Montalbano.
Contrary to West River's contention, Montalbano is
distinguishable from this case. In Montalbano, the plaintiff
claimed that he tripped on a sidewalk flag that was raised on one
side at the expansion joint (84 AD3d at 600). There was
initially a dispute concerning whether the sidewalk flag abutted
the property of defendant Owners Corp. or defendant Callanan, but
as the litigation progressed, it became clear by way of a survey
that the area where the plaintiff claimed he tripped abutted the
Owners Corp. property (see id. at 601). The plaintiff and Owners
Corp. argued, among other things, that because the majority of
the flag abutted Callanan's property, Callanan was liable to the
plaintiff, but the court disagreed, holding that the plaintiff
did not fall on a portion of the sidewalk abutting Callanan's
property (see id. at 602). The court further rejected the
argument by the plaintiff and Owners Corp. that Callanan's
replacement of the defective sidewalk flag after the accident
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made Callanan liable to the plaintiff, holding that it was
irrelevant whether Callanan had exercised control over that part
of the sidewalk because section 7-210 "does not make persons who
exercise control over the sidewalk liable -- it refers only to
owners of real property" (id. at 602).
Unlike the plaintiff in Montalbano, who did not argue
that Callanan failed to maintain the sidewalk flag abutting his
property in a reasonably safe condition, plaintiff here argues
that West River failed to comply with its own statutory duty to
maintain the sidewalk abutting its premises in a reasonably safe
condition, and that such failure was a proximate cause of his
injury. To be sure, the location of the alleged defect and
whether it abuts a particular property is significant concerning
that particular property owner's duty to maintain the sidewalk in
a reasonably safe condition. That does not, however, foreclose
the possibility that a neighboring property owner may also be
subject to liability for failing to maintain its own abutting
sidewalk in a reasonably safe condition where it appears that
such failure constituted a proximate cause of the injury
sustained. Thus, to the extent that Montalbano and other cases
interpreting section 7-210 can be interpreted as holding that
only the landowner whose property abuts the defect upon which the
plaintiff trips may be held liable, they should no longer be
followed for that premise. Simply put, section 7-210 (b), by its
plain language, does not restrict a landowner's liability for
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accidents that occur on its own abutting sidewalk where the
landowner's failure to comply with its duty to maintain its
sidewalk in a reasonably safe condition constitutes a proximate
cause of a plaintiff's injuries. Furthermore, our interpretation
of section 7-210 as tying liability to the breach of that duty
when it is a cause of the injury is consistent with the purpose
underlying the enactment of that provision, namely, to
incentivize the maintenance of sidewalks by abutting landowners
in order to create safer sidewalks for pedestrians and to place
liability on those who are in the best situation to remedy
sidewalk defects.
As part of its prima facie showing of entitlement to
summary judgment, West River was required to do more than simply
demonstrate that the alleged defect was on another landowner's
property. Here, West River focused solely on the location of the
actual defect upon which plaintiff allegedly tripped, and ignored
its burden of demonstrating that it complied with its own duty to
maintain the sidewalk abutting its property in a reasonably safe
condition and/or that it was not a proximate cause of plaintiff's
injuries (see e.g. James v Blackmon, 58 AD3d 808, 809 [2d Dept
2009]).
Plaintiff tripped on an expansion joint that abutted
the Mercados' property. That does not end the inquiry, nor does
the fact that the defect upon which plaintiff tripped was in
front of the Mercado property necessarily absolve West River of
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liability. Although West River did not have a duty to remedy any
defects in front of the Mercado property, section 7-210 (a)
imposed a duty on West River to maintain the sidewalk abutting
its premises in a reasonably safe condition. Moreover, the plain
language of section 7-210 (b) provides that West River may be
held liable for injuries where its failure to maintain its
sidewalk is a proximate cause of that injury. Here, most of the
sunken sidewalk flag that plaintiff traversed abutted West
River's property, and plaintiff claims that West River's sidewalk
flag had sunk lower than the expansion joint upon which plaintiff
allegedly tripped. Thus, West River failed to meet its burden of
demonstrating entitlement to judgment as a matter of law, leaving
factual questions as to whether West River breached its duty to
maintain the sidewalk flag abutting its property and, if so,
whether that breach was a proximate cause of plaintiff's
injuries. Under the circumstances of this case, summary judgment
should have been denied.
Accordingly, the order of the Appellate Division should
be reversed, with costs, and West River Associates, LLC's motion
insofar as it sought summary judgment dismissing the complaint
denied.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, and defendant West River Associates,
LLC's motion insofar as it sought summary judgment dismissing the
complaint denied. Opinion by Judge Pigott. Judges Rivera,
Abdus-Salaam, Stein and Fahey concur. Chief Judge DiFiore and
Judge Garcia took no part.
Decided February 11, 2016
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