Motion by the City for summary judgment dismissing the complaint and any cross-claims against it is granted.

In order to obtain summary judgment, movant must make a prima facie showing that it is entitled to said relief, by tendering sufficient proof to eliminate any material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). The City has met its burden.

Plaintiff allegedly sustained injuries as a result of tripping [*2]and falling upon a raised portion of the public sidewalk abutting the premises 110-45 Queens Boulevard in Queens County on April 20, 2004.

The City moves for summary judgment on the basis of §7-210 of the Administrative Code of the City of New York, which makes abutting property owners (except owners of one to three-family residential premises that are owner-occupied), rather than the City, liable for injuries sustained as a result of broken or defective sidewalks. In support thereof, the City has shown proof that it does not own the abutting premises. Indeed, plaintiff concedes that the City does not own said premises. Moreover, there is no dispute that 110-45 is not a one to three-family residential dwelling but, rather, a commercial premises.

Property owners in the City of New York are required to repair and maintain at their own expense the public sidewalks abutting their premises, pursuant to §19-152 of the Administrative Code of the City of New York. However, a violation of that section, prior to September 14, 2003, could not form the basis of liability against them for injuries sustained by pedestrians. In the absence of any statute making property owners liable for injuries to pedestrians, liability remained exclusively upon the City.

The Administrative Code was amended in 2003 to add §7-210, which transferred liability from the City to property owners, except owners of one to three-family homes that are either wholly or partially owner-occupied and used exclusively for residential purposes.

Section 7-210 was enacted to absolve the City of any tort liability for personal injury or property damage and to shift that liability from the City to the property owner who breaches the duty to repair imposed by §19-152 (see Report of Committee on Transportation, 2003 New York City, NY Local Law Report No. 49 Int. 193; Puello v. City of New York, 35 AD3d 294 [1st Dept 2006]). Section 7-210 (c) provides, "Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks . . . in a reasonably safe condition." The only exceptions stated in that section are where the adjacent or abutting property is an owner-occupied one to three-family residential home and where the City is the property owner.

In the instant case, the premises 110-45 Queens Boulevard is neither a residential premises nor is owned by the City.

Plaintiff contends that §7-210 may not apply in the instant [*3]matter and liability may still attach to the City because the defect in the area of sidewalk in question might have occurred before the effective date of §7-210, at a time when the City still bore full liability for injuries caused by sidewalk defects.

Plaintiff alleges that the City had written notice of the alleged sidewalk defect for nearly 10 years prior to the enactment of §7-210 by virtue of three prior notices of claim dating back to 1993 and a Big Apple map filed with the City on June 26, 2003 showing the raised sidewalk. Plaintiff contends that the City had the duty to repair the defect of which it had constructive knowledge and should be held liable if, in fact, it failed to repair the condition.

This argument presents not only a speculative, hypothetical scenario, but is without merit. In the first instance, plaintiff provides no proof that the City had constructive notice of the raised sidewalk through any notices of claim or Big Apple maps. Even if the City had such notice, that fact is irrelevant.

Section 2 of Local Law 49, Int. 193 provides, "This local law shall take effect on the sixtieth day after it shall have become a law and shall apply to accidents occurring on or after such effective date." Thus, it is the date of the accident, not the date when the sidewalk condition manifested itself, that is the determinative date. Since the accident occurred over seven months after the effective date of the statute, §7-210 applies to this case, even if the City knew of the condition prior to the enactment of §7-210 and failed to take action to correct it. Plaintiff and Park Briar also contend that since someone obviously performed repair work to the sidewalk, as the patchwork in the photographs annexed to Park Briar's opposition show, this motion is premature, as no depositions have yet taken place so as to allow them to ascertain who performed the repairs. The City might have performed the repairs and those repairs might have been done in a negligent fashion. This argument is also without merit.

This motion is not premature. Contrary to plaintiff's and Park Briar's assertion that no depositions of the parties have been held, the City, in its reply, submits a certified copy of a deposition transcript of its employee, Herbert Stempel, a record searcher for the Department of Transportation. The deposition was conducted by plaintiff's attorney, and the attorneys for the City and Park Briar were also present at the deposition. Stempel testified that he conducted a search covering the period from April 20, 2002 to April 20, 2004 and found no records of permits, [*4]complaints, violations or repair orders.

The function of a reply is to respond to arguments made in the adversary's opposition papers (see Ritt v. Lennox Hil Hosp., 182 AD2d 560 [1st Dept 1992]). Although new evidence may not be introduced for the first time in reply papers, in the instant case, Stempel's deposition may be considered since it is responsive to plaintiff's and Park Briar's contention in their opposition papers that no depositions have taken place so as to enable them to ascertain whether repairs may have been performed negligently by the City.

Plaintiff contends that it should have the opportunity to explore the issue of the City's possible role in the sidewalk repair work, since it is yet unclear whether §7-210 imposes, as it puts it, "absolute liability" upon the abutting property owner even for injuries caused by a condition created by repairs made by the City.

More precisely, what plaintiff seems to be asking is this: Even though §7-210 transfers liability from the City to abutting property owners, does it also immunize the City from liability if the City takes action to make the necessary repairs itself? This question appears to be one of first impression.

This Court is led, by a consideration of the language of the relevant statutes and the legislative intent underlying the enactment of §7-210, to conclude that liability is not imposed upon the City if it undertakes sidewalk repairs that were the responsibility of the abutting property owner, even if those repairs are performed improperly. The intent of §7-210 was to place upon the property owners all liability for whatever consequences flow from their failure to repair and maintain the sidewalks, even the intervening acts of the City, and to relieve the City of any such liability.

There is only one provision setting forth a specific condition under which the City is not divested of responsibility regarding sidewalk defects caused by the City. That provision is not articulated in §7-210, but may be found in §19-152.

Section 19-152(a) provides, in relevant part, "The commissioner shall not direct the owner to reinstall, reconstruct, repave or repair a sidewalk flag which was damaged by the city, its agents or any contractor employed by the city during the course of a city capital construction project."

The scope of an adjacent property owner's liability [*5]regarding the repair and maintenance of sidewalks imposed by §7-210 "mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code section[s] 19-152" (Report of Committee on Transportation, 2003 New York City, NY Local Law Report No. 49 Int. 193). Therefore, §7-210 must be read in conjunction with §19-152. Since a property owner is not responsible to repair a sidewalk damaged by the City in the course of undertaking capital construction, it follows that the owner may not be held liable under §7-210 for injuries caused by such damage. Consequently, the common law liability of the City is not shifted to the property owner in such instance.

In the present case, however, there is no evidence, nor is it even alleged, that the City damaged the sidewalk in question in the course of a capital construction project. The undertaking of ordinary repairs to a sidewalk by the City does not fall within any of the exceptions to §7-210 or §19-152. Reading such an exception into them would counter the very purpose of §7-210.

Pursuant to §19-152(e), where the City has notified a property owner of the existence of an immediately dangerous sidewalk condition and the owner has failed to comply with an order by the City to correct the condition, the City may undertake to perform the repair and charge the owner with the cost of said repair. However, there is nothing in either §7-210 or §19-152 that would expose the City to liability merely by virtue of its undertaking the repair.

The purpose of §7-210 was to relieve the City of liability for sidewalk defects and place such liability upon the adjacent property owner, whose obligation it is, pursuant to §19-152, to repair and maintain the sidewalk. The Committee on Transportation of the New York City Council stated in its report in favor of approving the amendment of the Administrative Code to add §7-210 (Report of Committee on Transportation, 2003 New York City, NY Local Law Report No. 49 Int. 193, supra), inter alia:

The purpose of Int. 193 is to place liability [upon the property owner] for damage and injuries proximately caused by the property owner's failure to repair or maintain a sidewalk that abuts the owner's property. Property owners often fail to effect repair when an unsafe condition or defect appears on such sidewalks compelling the City to take action to make the condition safe. This has the effect of exposing the City of New York to liability under the current law . . . The end result is that the City, rather than property owner whose legal duty it is to maintain and repair such sidewalks, often has liability [*6]imposed upon [it] and incurs substantial costs flowing from claims filed by persons claiming damage or injury from unsafe sidewalk conditions . . . .

This legislation is designed to place liability with the party whose legal obligation it is to maintain and repair sidewalks that abut them . . . [and] will have the desired result of encouraging such property owners to better maintain and more expeditiously repair the sidewalks for which they are legally responsible. If successful, such incentive will result in safer sidewalks City-wide thereby reducing the number of occurrences of damage or injury therefrom.

Thus, it was clearly the intent of the City Council in enacting §7-210 to divert away from the City the peril of liability in which it was placed by non-compliant property owners, and to re-direct that peril where it belonged upon the property owners themselves. This new law would, hopefully, achieve the dual purpose of promoting public safety and providing relief to the City from the crushing burden of lawsuits. Such intent and purpose would be frustrated if the City could be exposed to liability anew merely by electing to perform repairs itself.

Section 7-210 cannot reasonably be interpreted as placing the City in the dilemma of having to choose between playing it safe by ignoring public safety and letting a hazardous condition remain, on the one hand, and exposing itself to liability by taking affirmative action to correct the condition, on the other hand, especially since the City Council has expressly stated that it is this dilemma that it intended to remedy by the enactment of §7-210. If the City could be dragged into litigation and be forced to defend against claims of "negligent repair", such would operate as a disincentive to the City to correct dangerous sidewalk conditions. It would also serve to encourage property owners to pass onto the City both the responsibility to make repairs and the consequential exposure to liability claims by plaintiffs asserting that the repairs created the condition that caused injury.

Therefore, this Court is of the opinion that the City is not liable for a repair it makes to a sidewalk that was the responsibility of the abutting property owner to make, even if the repair is not done in a proper fashion.

Finally, it is noted that plaintiff includes the tree well [*7]abutting the sidewalk within the zone of the alleged defective area. Plaintiff conjectures that the City's Department of Parks and Recreation may have been responsible for maintaining the tree and its appurtenances abutting the sidewalk and, therefore, if the curbside tree caused the condition, the City should be found negligent. However, plaintiff shows no evidence, nor does she allege, that she tripped upon a defective tree well or that a curbside tree caused the damage to the sidewalk. Plaintiff's attorney merely speculates as to possible legal theories of liability based upon hypothetical facts, trying to stave off summary judgment by asserting that more discovery should be conducted to explore these possible scenarios.

Even had plaintiff alleged and shown proof that a curbside tree owned by the City caused the raised sidewalk condition, such fact alone would not establish any basis of liability against the City. The planting of a tree does not, of itself, constitute an act of affirmative negligence (see Zawacki v. Town of North Hempstead, 184 AD2d 697 [2nd Dept 1992; Gitterman v. City of New York, 300 AD2d 157 [1st Dept 2002]). The City, therefore, merely by allowing a tree to grow and shift a sidewalk flag, cannot be deemed to have created the condition.

The same principle applies to an abutting property owner. It is well-established that an abutting landowner is not responsible for damage caused to a public sidewalk by the roots of a tree, even a tree belonging to the owner and located on the owner's property (see, e.g., Jackson v. Thomas, 35 AD3d 666 [2nd Dept 2006]; Simmons v. Guthrie, 304 AD2d 819 [2nd Dept 2003]; Gitterman v. City of New York, 300 AD2d 157, supra; Darringer v. Furtsch, 225 AD2d 577 [2nd Dept 1996]; Zipkin v. City of New York, 196 AD2d 865 [2nd Dept 1993]). These cases stand for the proposition that the mere existence of a tree whose roots push up the sidewalk is not of itself a basis of liability. Therefore, in the absence of a showing that the property owner either created the sidewalk defect or caused it through some special use, or that a statute imposed liability upon the owner for sidewalk defects (these cases were based upon accidents that occurred before §7-210 or which involved residential properties to which §7-210 did not apply), plaintiff could not establish a prima facie entitlement to summary judgment on the issue of liability on the sole fact that tree roots caused the damage to the sidewalk. The fact that the sidewalk was damaged by the roots of a tree that was either planted by defendant at the curbside or located on defendant's property was, therefore, irrelevant.

In the instant case, it has been established, pursuant to §7-210, that the City was not responsible for the alleged [*8]sidewalk defects but that such responsibility was shifted to the abutting property owner. The existence of a curbside tree whose roots may have partially raised a sidewalk flag does not, of itself, raise an issue of fact as to negligence and causation. Neither does it raise an issue of special use (see Darringer v. Furtsch, 225 AD2d 577, supra).

Accordingly, the motion must be granted and the complaint and any cross-claims insofar as asserted against the City are dismissed.

Dated: March 6, 2007

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KEVIN J. KERRIGAN, J.S.C.