They oppose the City’s cross motion on two bases. The first basis for their personal opposition is their position that, if the plaintiff stepped on the curb and slipped there, then NYCAC § 7-210 is inapplicable, pursuant to NYCAC § 19-101 [d]. According to NYCAC § 19-101 (d), the sidewalk does not include the curb. NYCAC 19-101 (d) defines sidewalk as: that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians.
The second basis for their opposition is that, while NYCAC § 7-210 does impose on abutting building owners the responsibility to clear sidewalks in front of the abutting premise of snow and ice, the statute does not also impose on the abutting landowner the City’s prior NYCAC § 7-210 duty to maintain a bus shelter or a bus stop area, should there be one located in front of that particular abutting landowner’s abutting premise.
The court’s responsibility to determine whether there is a duty “involves a very delicate balancing of such considerations as logic, common sense, science and public policy. Prior to the enactment of the new sidewalk law, it was the City’s duty to keep its sidewalks “reasonably free from snow and ice and the City could be held liable for the negligent failure to do so. After the enactment of NYCAC § 7-210, the duty to keep sidewalks clear of snow and ice was transferred to that of the abutting landowner.
The threshold question in a tort action is whether the alleged tortfeasor owed a duty of care to the injured party. Addressing the proposition that maintaining the bus shelters and bus stops is still a City responsibility, the court notes that, prior to the enactment of NYCAC § 7-210, it was the City that usually had the responsibility for maintaining the bus shelters.
We are constrained to agree with the courts below that section 7-210 does not impose civil liability on property owners for injury that occur in City-owned tree wells. In reaching this result, we are guided by the principle that legislative enactments in derogation of common law, and especially those creating liability where none previously existed, must be strictly construed.
M Realty and A Realty have raised the question of whether or not the enactment of NYCAC § 7-210 has also imposed the duty on them to keep bus shelters or bus stops and the immediate area around them clear of ice and snow, or does this duty still remain with the City.
NYCAC § 7-210 does not specifically state that abutting landowners are responsible for the maintenance of bus stops and bus shelters on sidewalks. As a matter of law, based on the determination of the Court of Appeals in Vucetovic (case law), this court finds that NYCAC § 7-210 does not impose the duty upon abutting landowners the responsibility for maintenance of snow and ice at a bus stop or bus shelter. However, the record does indicate that some sort of maintenance of snow and ice occurred at and near the bus stop where plaintiff was injured. A triable question of fact has been raised as to what entity cleared the three foot path at the bus stop, that being the City or one of the abutting landowners. Though an abutting landowner may not have the duty to remove snow and ice, where the attempted removal makes the condition more hazardous, liability could be imposed.
MABSTOA is a subsidiary of co-defendant NYCTA and is not a City agency or an entity synonymous with the City. Counsel for MABSTOA and NYCTA cites to numerous cases for the proposition that, while it is their duty to deliver a bus passenger safely to his/her destination, it is not their duty to maintain the bus stop or the area surrounding the bus stop. Their duty ceases once the passenger steps off the bus. None of the other co-defendants oppose MABSTOA’s and NYCTA’s motion.
The complaint states that plaintiff’s injury was caused by the negligent maintenance of a “sidewalk/curb.” To establish a prima facie case of negligence, the plaintiff must establish that a defendant owed a duty of reasonable care, that there was a breach of that duty and that she suffered an injury which proximately resulted from the breach of a duty. At this point there is a duty to maintain the bus stop sidewalk area but the question exists whether that duty was the City’s, M Realty’s, or A Realty’s.