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On the sidewalk there was a tree providing shade for the café tables

A lady was walking outside a restaurant located at 1396 Third Avenue in Manhattan. The restaurant had a permit from the City of New York to set up café tables and chairs on the sidewalk. On the sidewalk there was a tree providing shade for the café tables. Sometime on March 21, 2008 as the lady was walking past the café, she stepped on a raised sidewalk flagstone and that caused her to trip and fall.

She sued the owner of the premises and the owner of the premises sued the tenant (the café) and the insurance company. After the deposition of the lady, the building manager and the café manager, the plaintiff filed a motion for a partial summary judgment against the building owner and seeks that the building owner be declared as liable under the Sidewalk Law of New York. The building owner filed a motion for summary judgment asking the court to dismiss the lady’s complaint against it. And the insurance company asked the court for a summary judgment to dismiss the complaint of the building owner against it.

The Sidewalk Law of New York provides that the owner has the duty to maintain the sidewalk outside its premises in a reasonably safe condition and failing to do so, the building owner shall be liable for any injury. This duty to maintain the sidewalk in a reasonably safe condition cannot be delegated. The Court held that since the Sidewalk Law clearly puts the duty on the owner to maintain the sidewalk, and there is evidence that the building owner owns the property which abuts the sidewalk where the lady tripped and fell, the lady’s motion for partial summary judgment against the owner declaring him liable for her injury is granted.

But just as the Court declared that the building owner is liable for the injury sustained by the lady from the raised sidewalk flagstone outside the premises, the Court also declared that the building owner’s liability is not strict. Its liability will arise only if it is established by evidence that the building owner created the defect in the sidewalk or had constructive notice of the defect (the raised flagstone) but did not do anything to repair the defect. The Court also declared that the building owner can agree with the tenant of the premises to allocate the liability and even procure insurance for the benefit of the building owner and the tenant.

The building manager categorically testified during her testimony that she had never observed any raised flagstones around the premises or received complaints concerning any dangerous condition on the sidewalk. She categorically stated that the café manager never informed her of any raised sidewalk flagstones and that she does not remember if any repairs were made on the sidewalk prior to the date that the lady tripped and fell on the sidewalk. During the same deposition, she also stated that she walked past the sidewalk on the way to her office in the higher floors of the building everyday for three years prior to the date of the lady’s accident.

But the testimony of the café manager totally contradicts the testimony of the building manager. He testified that in the spring of 2008, before he learned that a lady had tripped and fallen on the sidewalk, he painted the edge of the sidewalk yellow. He painted with similar yellow paint that area of the sidewalk that surrounded a tree to alert passersby and pedestrians of a possible tripping hazard. He testified that he had observed that the roots of the tree were causing some of the flagstones to be cracked and raised. He also testified that for fear that someone might get injured; he talked with the building manager herself and to clarify who was responsible for having the raised flagstone repaired. He testified further that the building manager gave him a printout of contact numbers of City offices which might be able to help him with the repair of the sidewalk.

The Court ruled that since there are discrepancies between the testimony of the café/restaurant manager and the building manager, these discrepancies raise issues of fact that must be tried by a court. The Court accordingly dismissed the motion for summary judgment filed by the building owner.

The lease contract entered into by and between building owner and the café/restaurant owner provided that they should both procure an insurance policy that will indemnify them for any claims for negligence that may be filed against them.

The insurance company moved for a summary dismissal of the complaint filed against it by the building owner and the café/restaurant owner. Because the insurance covered only bodily injuries sustained within the premises of the insured building. The insurance company reasoned that since the trip and fall occurred on the sidewalk and not in the building, it is relieved of its obligation to indemnify the building owner or the café.

The Court rejected this reasoning of the insurance company and it ruled that the sidewalk must be used to gain access and entry into the premises of the café. Without using the sidewalk, the patrons of the café will not be able to enter the café. The sidewalk then must be considered as part of the use of the premises of the café for the purpose of determining the liability of the building owner, the tenant and the insurance company.

The Court denied the building owner’s motion for summary judgment and his motion to dismiss the complaint. The insurance company’s motion to dismiss the complaint of the building owner against him is denied. All other issues of fact still remaining are remanded for trial.

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