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The plaintiff in this case is Jacqueline Stein. The defendants are 1394 Housing Corp. and Due Restaurant and Order. The Supreme Court of the State of New York in New York County is overseeing this legal matter.
The defendant and third party plaintiff, 1394 Housing Corp. is moving for an order granting summary judgment on the third party complaint against the third party defendant, Tower National Insurance Company and declaring that Tower Insurance must defend and indemnify them to the claims that are made against them.
Tower Insurance has cross moved for an order to dismiss the third party complaint made against them.
The plaintiff has cross moved for an order to grant at least a partial summary judgment in her favor against 1394 Housing.
Complaint
The plaintiff began this action in July of 2008 for injuries that she sustained from a trip and fall accident that occurred on the 21st of March, 2008 on a sidewalk that is located outside of the premises located at 1396 Third Avenue in Manhattan. In the complaint the plaintiff states that she tripped and fell due to the fact that the sidewalk was raised.
At the time of the complaint the subject premises was owned by 1394 Housing and Due Restaurant was the commercial tenant on the ground floor space of the building that is adjacent to the sidewalk where the alleged accident occurred.
The plaintiff has cross moved for a partial summary judgment against the defendant 1394 Housing as the landowner stating that they are responsible pursuant to New York City Administrative Code that states the owner of an adjacent property is responsible for keeping the sidewalk in a reasonably safe condition.
Court Discussion and Decision
As the landowner, 1394 has the duty to maintain the sidewalk that is adjacent to the building. However, the law does not impose strict liability on the landowner. The liability for the plaintiff’s accident only lies with 1394 Housing if it is shown that they had created the condition that caused the action or had constructive notice that the condition existed.
1394 has offered support for their cross motion to dismiss in the form of an affidavit and testimony of their treasurer, Jerrietta Hollinger. Ms. Hollinger states that during the time frame that 1394 owned the property she never noticed any mis-leveling of the sidewalk where the plaintiff claims to have fallen. She further states that no complaints about the sidewalk were ever received.
The plaintiff offers the testimony of the restaurant manager, Ernesto Cavalli as support for her case. In his testimony Cavalli states that the roots of the tree by the sidewalk were getting out of control and for this reason he painted a yellow circle around the area as a warning. He further testifies that he showed the problem to Ms. Hollinger and she gave him the numbers to call to have the issue repaired.
After reviewing the evidence in this case the court has issued the following orders: the motion by 1394 housing denied as well as their cross motion to dismiss the complaint. The cross motion made by tower insurance is denied and the plaintiff’s cross motion for a declaration that 1394 Housing has a duty pursuant to NYC Admin Code is granted.
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