Contact Us for a Free Consultation 1-646-522-9082

Blog

Trip and Fall Cases Over raised Sidewalks - The Twist and Turns of the Law a Good Accident Lawyer Should Know

Posted by Edward Lemmo | Aug 01, 2021 | 0 Comments

 Section 7-210 of the Administrative  Code of the City of NY

One of the common cases of a personal injury lawyer is a client who comes to you after tripping and falling over a raised or uneven sidewalk in the City of New York. and sustaining injuries .  Unique to the City of New York  trip and fall over sidewalk cases is the Administrative Code of The City of New York . In 2003 the Administrative Code of the City of NY  7-210  also commonly known as the New York City Sidewalk Law, was enacted in order to shift liability for sidewalk accidents from the City of New York to real property owners. Section 7-210 applies only to those accidents that occurred on or after September 14, 2003.

Pursuant to §7-210, property owners now have a duty to maintain abutting sidewalks, including intersection quadrants for corner properties, in a reasonably safe condition. Failure to maintain a sidewalk in a reasonably safe condition may include “the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk.” Additionally, property owners are now liable for property damage or personal injuries . Moreover, §7-210 absolves the City of New York of liability for damage or injuries caused by the failure of a property owner to comply with §7-210. 

An exception to this rule is that  Section  7-210 does not apply to one-, two- or three-family residential properties that are, in whole or in part, owner-occupied and used exclusively for residential purposes.

Broken Sidewalks in front of Subway Stations

However if a trip and fall accident  occurs over a broken , uneven sidewalk in front of an entrance to the subway station , NYCTA has maintained that they make special use of the area. The " Special Use doctrine" applies when  a structure erected on public land has the affect of causing the adjoining private property owner to derive a special benefit from that land. This issue was discussed in the case of  Hood v 288 St. Nick LLC 2013 N. Y. Slip Op . 30468(N.Y. Sup. Ct. 2012). The Court of Appeals in Bignham v New York City Transit Authority, 8 NY3d 176[2007], held that this duty of care imposed on a carrier to keep approaches and platforms safe has not been extended to common areas in multi - carrier facility  " . Finally in Hood v 288 St Nick LLC et al the Court denied the New York City Transit Authority 's motion for summary judgment dismissing  the complaint .  

 What is  a Trivial Defect and what  a Substantial  Sidewalk Defect to  Qualify under the protections of The  Administrative Code 

In Perkins v 85 Kenmare Realty Corp  2014 N.Y. Slip Op 31100 ( N. Y.  Sup. Ct 2014 , the the defendant maintained that a sidewalk's condition  failed to constitute  a " substantial defect " and trip hazard under the Administrative Code 7-210 and 19-152 . In denying the motion for summary judgment, the Court held that  there were triable issues of fact as to whether  the  defect in the  sidewalk was a an open and obvious condition. Usually if there is a 1/2  inch differential between two sidewalk flagstones , causing a trip hazard the Courts  will be loath in dismissing the case.  In Lopez v  Carollo Bakery , 2012 N.Y. Slip Op 31179 (2012) The Court in deciding the issue of a trivial defect in a sidewalk held that in viewing the  photographs of the alleged defect, the determination of whether  a condition is trivial does not rest exclusively upon the dimension of depth of the defect in inches, but must be made upon an examination of " the facts" presented  , including the width, depth , elevation , irregularity , and appearance of the defect along with the  time, place  and circumstance of the injury . See Trincere v County of Suffolk, 90 NY2d 976(1997).

 Tree Wells are not Sidewalks and thus do not fall under the Administrative Code of the City of New York 

The Court in Hanan v 246 W. 87th St Assocs. 2010 NY. Slip Op 33614 ( N.Y. Sup Ct 2010 held that a tree well is not a sidewalk under the Administrative Code. The  Court held that a tree well is not part of the sidewalk and the abutting landlord is not obligated to maintain it.  The leading case on the responsibility for tree wells is  Vucetovic v Epson Downs , Inc. , 2002 NY Slip Op 04901 [10NY3d 517]] June 3 2008].  In that case, the Court concluded that a tree well is not part of the Administrative Code of the City of New York , which imposes tort liability on property owners  who fail to maintain city-owed sidewalks in a reasonably safe condition .

In Rosario v. City of New York, a trip-and-fall case, the Appellate Division, First Department reversed the trial court's denial of defendant's motions for a directed verdict and/or judgment notwithstanding the verdict.

 “To impose liability on defendant City for a defective condition of a tree well, plaintiff must show that the municipality either received prior written notice of the alleged defect or caused or created the defective condition through an affirmative act of negligence.”

In finding against the plaintiff, the court reasoned:

Plaintiff makes no claim that the City had prior written notice of the claimed defect. There is no view of the evidence in the record that the City created the dangerous condition that caused plaintiff to fall. Plaintiff's testimony is that on November 7, 2007, she fell after stepping into a hole in a tree well because the dirt was not even with the sidewalk. She described the hole as being three inches in depth. The evidence also shows that more than one year before the accident, the City identified and removed a dead tree in the tree well, leaving a stump behind. The city inspector testified that although he determined that removal of the dead tree was necessary, he did not notice the level of the dirt in the well at that time. The city inspector further testified that in his years of experience, the removal of trees would not disrupt the level of dirt in a tree well. According to the city inspector, any disruption of the dirt in the tree well ensues when the tree stump is removed, which in this case did not occur until after plaintiff's accident. Plaintiff had no personal knowledge of the cause of the differential of the dirt in the well. There is no basis on this record to conclude that the City caused or created that differential.

Plaintiff asserted at trial that the City's negligence consisted of the failure to remove the tree stump after it cut down the tree. However, plaintiff did not fall on or over the stump, but testified that she tripped on a two or three inch hole between the level of the soil in the tree well and the level of the sidewalk. Thus, the failure to remove the stump was not the proximate cause of the accident.

In Callan v City of New York , Supreme Kings, decided June 2007, the Court  found that the subject to certain limitations the abutting property owner is charged with responsibility for accidents in a tree well. In that case, the tree well at issue was located between the curb and the  adjacent property line and it was argued that a missing  concrete block ( unrelated to the cultivation of trees ) caused the  tripping hazard  The plaintiff in that case has not alleged that  the missing block was caused or created by an action on the part of the City. The Court  held that the  City demonstrated the applicability of section 7-210 and dismissed  the case against the City. 

If you or a loved one are injured in a trip and fall over a  broken or uneven sidewalk contact Edward Lemmo  Esq. of Lemmo Law at 646-522-9082 .  We will be happy to analyze and investigate the facts of your accident and provide sound legal advise. 

 
  

About the Author

Edward Lemmo

Edward Lemmo Esq. of Lemmo Law TOP NYC PERSONAL INJURY LAWYER For over 34 years Edward Lemmo has distinguished himself as a one of the top personal injury lawyers in Manhattan , Bronx , Brooklyn and the Upper West side ,combining hard work and dedication to achieve positive results for his clients. Lemmo Law's philosophy is clear. We prepare every case as if it is going to trial .

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Me Today

Edward Lemmo, Esq., is committed to answering your questions about Slip, Trip, & Fall accidents, Motor Vehicle Accidents, Construction Accidents, Wrongful Death, and Medical Malpractice law issues in New York.

I offer a free consultation and I'll gladly discuss your case with you at your convenience. Contact me today to schedule an appointment.

Menu