In this premises liability action, the 74-year-old plaintiff alleged she sustained severe injuries including traumatic brain injury and five surgeries as a result of a trip and fall accident on the sidewalk adjacent to the defendant property owner’s building in Brooklyn, New York. The plaintiff claimed she tripped on a “bump” of black asphalt approximately 7 cm in diameter and raised approximately 3-5 cm high on an asphalt strip on the sidewalk. The asphalt strip had been laid by a utility company’s contractors in the course of their work on underground gas main upgrades in the neighborhood. The plaintiff sued the property owner for negligent sidewalk maintenance based on violations of N.Y.C. Admin Code 7-210 (the “Sidewalk Law”).
Representing the property owner, we successfully impleaded utility National Grid, its contractor Hallen and subcontractor New York Paving as parties to the action. Discovery and depositions revealed that the condition was entirely caused and created by the utility’s contractors in the process of restoring the sidewalk following gas main work underground.
We moved for summary judgment motion, arguing the property owner should be dismissed as a matter of law because it: (a) did not create the condition and was not involved with the gas main or restoration work, (b) had no ability to exercise control of the work (c) had no duty to warn and (d) did not otherwise create the condition by special use. We argued that responsibility for any defect in the utility’s sidewalk installation does not fall on the abutting property owner. Rather, pursuant to New York Administrative Code and Department of Transportation rules, including NY Administrative Code § 19-147 and 19-110 and 34 R.C.N.Y, and the contracts for the job, the utility and its contractors were each (and all) obligated to maintain, repair and restore the sidewalk in a safe manner and warn of unsafe conditions they created, to the exclusion of the property owner.
The utility’s contractors and the plaintiff each argued in opposition that the defendant owner should remain in the action because of the owner’s nondelegable duty under the Sidewalk Law to maintain the sidewalk adjacent to its building. The plaintiff also argued the property owner’s receipt of gas service from the newly installed gas lines constituted a special use of the area of sidewalk where the accident allegedly occurred.
Dismissing the case against the property owner in its entirety, New York County Supreme Court Judge Lisa Ottley agreed that the property owner was not responsible for the condition caused and created by the utility’s contractors and that the building’s receipt of gas service did not otherwise impose liability by special use. The court also dismissed the utility, on the basis that it retained an independent contractor and did not perform the work which caused plaintiff’s alleged accident. The motions for summary judgment by Hallen, the contractor, and by New York Paving, the subcontractor, were denied.
Madeline Wagner represented the Defendant property owner.
National Grid and Hallen were represented by Fabiani Cohen & Hall. New York Paving was represented by Gallo Vitucci.
Representing the property owner, we successfully impleaded utility National Grid, its contractor Hallen and subcontractor New York Paving as parties to the action. Discovery and depositions revealed that the condition was entirely caused and created by the utility’s contractors in the process of restoring the sidewalk following gas main work underground.
We moved for summary judgment motion, arguing the property owner should be dismissed as a matter of law because it: (a) did not create the condition and was not involved with the gas main or restoration work, (b) had no ability to exercise control of the work (c) had no duty to warn and (d) did not otherwise create the condition by special use. We argued that responsibility for any defect in the utility’s sidewalk installation does not fall on the abutting property owner. Rather, pursuant to New York Administrative Code and Department of Transportation rules, including NY Administrative Code § 19-147 and 19-110 and 34 R.C.N.Y, and the contracts for the job, the utility and its contractors were each (and all) obligated to maintain, repair and restore the sidewalk in a safe manner and warn of unsafe conditions they created, to the exclusion of the property owner.
The utility’s contractors and the plaintiff each argued in opposition that the defendant owner should remain in the action because of the owner’s nondelegable duty under the Sidewalk Law to maintain the sidewalk adjacent to its building. The plaintiff also argued the property owner’s receipt of gas service from the newly installed gas lines constituted a special use of the area of sidewalk where the accident allegedly occurred.
Dismissing the case against the property owner in its entirety, New York County Supreme Court Judge Lisa Ottley agreed that the property owner was not responsible for the condition caused and created by the utility’s contractors and that the building’s receipt of gas service did not otherwise impose liability by special use. The court also dismissed the utility, on the basis that it retained an independent contractor and did not perform the work which caused plaintiff’s alleged accident. The motions for summary judgment by Hallen, the contractor, and by New York Paving, the subcontractor, were denied.
Madeline Wagner represented the Defendant property owner.
National Grid and Hallen were represented by Fabiani Cohen & Hall. New York Paving was represented by Gallo Vitucci.
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