A woman alleges that while walking her dog on the south sidewalk, she fell after tripping on a cobblestone brick which had been part of the tree well. She summoned the building owner and the City. The building is owned by a Street Associates. By notice of motion and cross-motion, both the building owner and the City move for an order summarily dismissing the complaint.
The woman testified that while she had probably stopped at the location before, she had not made any observations about the tree or the area surrounding it, nor had she seen the brick or any debris on the sidewalk at any time prior to her fall. Photographs taken after the accident depict a brick on the sidewalk, approximately one foot from the tree well. In an affidavit submitted opposing the building owner’s motion, the woman alleges that she specifically recalls that the night before her accident, she saw the brick on the sidewalk near tree well. A witness also testified that he saw the woman fall on the brick and that he had previously seen cobblestones from the tree well on the sidewalk. The building manager and the limited liability company that manages it, testified that he visits the building every day and every week he cleans its interior and exterior, including the tree well and area around it, but never noticed any loose bricks around the tree well.
Sources revealed that the principal administrative associate of the concern government agency testified that the results of a record search conducted by record searcher for a two-year period prior to and including the accident date yielded no permits, corrective action requests, notices of violation pertaining to permits, applications for permits, repair orders, sidewalk violations, contracts or complaints. The director of forestry testified that the results of a search for records in his department showed no complaints found relating to City-owned sidewalk trees.
The building owner contends that it owed no duty to the woman because it is not liable for the tree well and, assuming it had such a duty, it had no actual or constructive notice of a dangerous condition there. In support, it relies on the woman’s pleadings and formal statement, photographs of the accident location, and an affidavit in which the building manager swears that he visited the building daily to maintain it and never saw cobblestones from the tree well on the sidewalk.
In opposition, the woman maintains that, pursuant to the City Administrative Code, the building owner is responsible for the sidewalk and that there exist issues of fact as to whether it had actual or constructive notice thereof. In support, she relies on the statute and the building manager’s testimony accompanying her deposition transcript stating that she had seen bricks on the sidewalk on prior occasions, her affidavit stating she had previously seen bricks from the tree well on the sidewalk, and an affidavit from a previously undisclosed witness, who states that he lives in the area and remembers seeing a brick approximately one foot from the tree well the night before plaintiff’s accident.
The one who request to dismiss the complaint must make a legitimate presumption showing of right to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. If this burden is not met, the request for complaint dismissal must be denied, regardless of the sufficiency of the opposition papers.
When the moving party has demonstrated right to request for complaint dismissal, the burden of proof shifts to the opposing party to demonstrate by admissible evidence the existence of a factual issue requiring trial, unsupported allegations and assertions are not sufficient.
On a defendant’s request for a complaint dismissal in a trip and fall case where written notice is not a statutory requirement, the defendant has the burden of establishing legitimate presumption, that it had no actual or constructive notice of a dangerous condition. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it.
Pursuant to Administrative Code, the owner of a real property adjacent to any sidewalk has the duty of maintaining it in a reasonably safe condition, and is liable for injury immediately caused by its failure to so maintain the sidewalk, including the removal of snow, ice, dirt or other material. However, the Court of Appeals held that, for purposes of Administrative Code, which must be strictly taken, a tree well is not part of the sidewalk and the adjacent to landowner is not obligated to maintain it. The City Code does not impose civil liability on property owners for injuries that occur in city-owned tree wells.
Here, however, the issue is not whether the property owner failed to maintain the tree well in a safe condition but whether it complied with its duty to maintain the sidewalk in a safe condition regardless of City’s failure to maintain the tree well. Thus, even if the brick on which plaintiff tripped had migrated to the sidewalk from the tree well as a result of City’s negligence, once it reached the sidewalk, it became the responsibility of the building owner to remove it.
However, defendant has established, legitimate presumption through the testimony of its manager that it had no constructive notice of the condition, and the woman’s affidavit, submitted in opposition to the motion, do not raise issues capable of trial.
The City maintains that it may not be held liable for a street defect absent written notice, and denies that it caused or created the alleged defect. In support, it relies on the testimonies of the forestry director, the principal administrative associate, and the results of the record searches. In opposition, the woman argues that written notice is not required for a defective tree well, and that there exist issues of fact as to City’s actual or constructive notice.
Administrative Code states that no civil action may be maintained against the City arising from a dangerous condition on a street, sidewalk, or encumbrances thereon or attachments thereto unless the plaintiff demonstrates that City had prior written notice of the condition. Although the Court of Appeals has held that the tree well is not part of the sidewalk for purposes of Administrative Code, thus designating City as the party liable for failure to maintain tree wells, it did not disturb the requirement of written notice as a predicate for finding City liable for defects in a tree well, an encumbrance to the sidewalk.
None of plaintiff’s pleadings, formal demand statements, and moving papers contains any allegation that the City had written notice of a defect at or around the tree well. Rather, the woman asserts that the City had actual or constructive notice of the defect. As neither actual nor constructive notice eliminates the requirement that written notice be established before municipal liability will attach, the plaintiff has failed to raise an issue capable of trial. No criminal charges were filed.
Accordingly, complaint against the building owner and the City is dismissed with costs and disbursements to the defendants upon the submission of an appropriate bill of costs.
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