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Defending Property Owners in NY Against Trip & Falls Caused by Sidewalk Stones, Trees, & Tree Wells

Pedestrians trip and fall for many reasons. Some fall because they are clumsy or not paying attention, while others are caused to fall due to the condition of the sidewalk. The City of New York, as well as many other municipalities around New York State, is actively involved in the beautification of its sidewalks, including installation of decorative sidewalk stones or bricks. These cities also direct the planting of trees within dirt or grass-filled “tree wells” embedded in the sidewalk. However, because contractors do not install them correctly or due to the effects of weather, trees may break or die and tree wells and stones may become uneven, creating a tripping hazard and exposing the adjacent property owner to liability.

Effective September 14, 2003, the City of New York modified the Administrative Code of the City of New York § 7-210, shifting liability for injuries arising from a defective sidewalk from the City of New York to the owner of the real property which abuts the defective sidewalk. What constitutes a sidewalk is defined by New York Vehicle & Traffic Law §144: “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for the use of pedestrians.”

Fortunately, New York’s Appellate Courts have recognized that most trees and decorative sidewalk stones are placed at the direction and control of municipal agencies and/or quasi-public agencies, and not at the direction, control or behest of a property owner, and have thus offered some relief to property owners. Property owners who sued for negligence based upon the condition of the sidewalk adjacent to their properties now have recourse under New York case law when the defective condition was caused by decorative sidewalk bricks, a tree and/or tree well embedded in the sidewalk.

For a property owner to obtain summary judgment in a case involving brickwork and/or tree wells embedded in the sidewalk, it must eliminate all triable issues of fact as to whether the plaintiff was caused to fall due to a defect in the tree well, the sidewalk, or a combination of the two. Vigil v. City of New York, 110 A.D.3d 986, 973 N.Y.S.2d 750 (2d Dep’t 2013); Fusco v. City of New York, 71 A.D.3d at 1084, 900 N.Y.S.2d 81 (2d Dep’t 2010). Where a property owner cannot demonstrate that a municipal tree well or area of brickwork was the sole proximate cause of the accident, the issues are usually reserved for a jury to decide.

In a case out of the Incorporated Village of Farmingdale, New York, Hartofil v. McCourt, 57 A.D.3d 943, 871 N.Y.S.2d 299 (2d Dep’t 2008), the plaintiff alleged that brickwork in the sidewalk, which he tripped over, had sunk, creating a trip hazard. While there was much discussion about how the area was constructed, the ultimate result was that the brick area does not constitute a “sidewalk” within the meaning of the local ordinance, but rather it is a decorative addition, and such an area is not a “sidewalk” as defined by the New York Vehicle & Traffic Law §144. Stones and bricks can, of course, be walked upon, but their primary purpose is aesthetic in nature.

We caution that New York courts are not in complete agreement on the issue of brickwork or stones upon the sidewalk, and it has been held that the presence of parking meters adjacent to a stone area supports the position that the area is meant for pedestrian use and thus may constitute a sidewalk for which an adjacent owner is liable. Khaimova v. City of New York, 95 A.D.3d 1280, 945 N.Y.S.2d 710 (2d Dep’t 2012).

The results are more predictable when the defective condition involves a tree or tree well and surrounding cobblestones or bricks. In Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 890 N.E.2d 191, 860 N.Y.S.2d 429 (2008), New York’s highest court, the Court of Appeals, concluded that a tree well is not part of the “sidewalk” for purposes of § 7-210 of the Administrative Code of the City of New York. In this case, the plaintiff stepped into a tree well and tripped on one of the cobblestones surrounding the dirt area containing a tree stump. The tree well was located in front of the defendant’s property. Four months prior to the accident, the City cut down the tree. No one knows who installed the cobblestones but the tree well was in place prior to the defendant’s acquisition of the property. The Court examined the legislative history and found no support for including tree wells as part of the sidewalk.

The Appellate Division and lower courts follow Vucetovic when there are no questions of fact as to what caused plaintiff’s fall. In Fuller v. PSS/WSF Hous. Co., 70 A.D.3d 415, 893 N.Y.S.2d 547 (1st Dep’t 2010), the plaintiff tripped in the dirt area of a tree well cut out of a public sidewalk and fell into the tree. The First Department upheld the lower court’s determination that the tree area was not part of the sidewalk for purposes of tort liability under the Administrative Code of the City of New York § 7-210.

In a recent case venued in the Bronx, Lewis Brisbois obtained summary judgment for its property owner client where the plaintiff tripped, not on the sidewalk as defined by the applicable statutes, but on the bricks surrounding a tree well. In that matter, the plaintiff attempted to maintain separate causes of action against both the adjacent property owner and The City of New York for the same alleged defect. We pointed this out to the Court, and our client was ultimately granted summary judgment.

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