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The Rogak Report: 29 Sept 2005 ** Premises Liability - Sidewalks **

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  • Lawrence Rogak
    NEW YORK CITY ORDINANCE MAKING LANDOWNERS LIABLE FOR SIDEWALK DEFECTS DOES NOT NEGATE PLAINTIFF S BURDEN OF PROVING NEGLIGENCE Padob v. 127 E. 23rd Street LLC,
    Message 1 of 1 , Sep 29, 2005
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      NEW YORK CITY ORDINANCE MAKING LANDOWNERS LIABLE FOR SIDEWALK DEFECTS
      DOES NOT NEGATE PLAINTIFF'S BURDEN OF PROVING NEGLIGENCE

      Padob v. 127 E. 23rd Street LLC, NYLJ 9/29/05 (Supreme Court, New
      York County) (EDMEAD, j)

      Plaintiff was injured on April 30, 2004 as a result of a trip and
      fall on a sidewalk in front of the commercial premises located at 127
      East 23rd Street, Manhattan. Defendant "127" owns the building
      adjacent to the subject sidewalk and defendant Delmar manages the
      adjacent building. It was alleged that prior to the date of the
      accident, the owner 127 leased the commercial premises to
      defendant "Absolute," and that Absolute assigned the lease to
      defendant "NAV."

      Plaintiff moved for partial summary judgment against 127 on the issue
      of liability, contending that, although 127's answer denied any "duty
      to maintain and/or repair the sidewalk," the recently added New York
      City Administrative Code §7-210 placed a duty on 127, as owner of the
      subject premises, to maintain and repair the public sidewalk abutting
      its building.

      The Court stated that "Plaintiff herein bases her motion for summary
      judgment entirely on the application of the recently added N.Y.C.
      Adm. Code §7-210, which states that 'it shall be the duty of the
      owner of real property abutting any sidewalk to maintain such
      sidewalk in a reasonably safe condition, . . . ' and that 'the owner
      of real property abutting any sidewalk shall be liable for any
      personal injury proximately caused by the failure of such owner to
      maintain such sidewalk in a reasonably safe condition . . . .'
      Essentially, as of §7-210's effective date of September 14, 2003,
      certain landowners have an affirmative duty to maintain their
      adjacent sidewalks in a reasonably safe condition."

      "Prior to §7-210's passage, an owner of land did not owe a duty to
      the public to maintain the sidewalk in a safe condition unless the
      owner created the defect or used the sidewalk for a special purpose,
      such as when an appurtenance was installed for its benefit or at its
      request. Although §7-210 now alters an abutting landowner's duty to
      maintain sidewalks in a reasonably safe condition, §7-210 does not
      impose absolute tort liability upon these landowners for injuries
      arising from alleged unsafe conditions on an abutting sidewalk."

      "Generally the violation of a rule of an administrative agency
      lacking the force and effect of a substantive legislative enactment
      does not establish negligence per se, but is simply some evidence of
      negligence which the jury can take into consideration with all the
      other evidence bearing on the subject.... It has been held that a
      property owner's violation of a municipal code provision that imposes
      a special duty cannot give rise to statutory liability without regard
      to negligence. Absolute and instant liability without regard to
      negligence may be imposed only from a statute duly enacted by the
      State Legislature, but the ordinances of a municipality lack the
      force and effect of a substantive legislative enactment."

      "In any cause of action founded upon negligence, a successful
      plaintiff must demonstrate the existence of a duty, the breach of
      which may be considered the proximate cause of the damages suffered
      by the injured party. When the duty to maintain and repair public
      sidewalks rested with the City of New York, a plaintiff seeking to
      recover damages based on the City's breach thereof was obligated to
      establish actual or constructive notice... Likewise, under premises
      liability line of cases, the plaintiff must establish notice.
      Therefore, it appears that in order for plaintiff to recover for the
      injuries alleged herein under §7-210, she must establish that
      defendant 127 created, or had actual or constructive notice of the
      alleged dangerous condition that proximately caused her injuries."

      "Moreover, in an action arising out of a slip and fall accident, a
      plaintiff's motion for summary judgment should be denied where no
      discovery had been conducted, where no photographs or other proof of
      the place of the accident was attached, where no proof of length of
      time that the place of the accident existed in poor condition was
      given, . . . and where no evidence was offered regarding culpable
      conduct."

      "Plaintiff's citation of §7-210 alone, without any other evidentiary
      showing, falls short of making a prima facie showing that she is
      entitled to a judgment as a matter of law. The sole evidentiary proof
      offered by plaintiff is a list of assertions from the complaint that
      127 breached its duty to maintain the sidewalk and that 127 had
      knowledge of the allegedly defective sidewalk. However, these
      assertions are mere affirmations by plaintiff's counsel, lacking in
      proof, and unsupported by any sworn testimony. Regardless of whether
      defendant 127 has a duty to maintain the sidewalk as the provision
      dictates, plaintiff offers no evidence that 127 had notice of the
      alleged defective condition, failed to properly maintain the
      sidewalk, and that 127 proximately caused plaintiff's injuries. While
      §7-210 likely places a duty on landowners such as 127, plaintiff's
      failure to provide evidence establishing the remaining elements of
      negligence is fatal to plaintiff's motion."

      "...Notwithstanding that 127 had such a duty to maintain the subject
      sidewalk, plaintiff is not entitled to summary relief on the issue of
      liability."

      Summary judgment was denied.

      Larry Rogak
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