In this personal injury action, plaintiff Bonnie Manning alleges that on February 22, 2005, she fell on a defective sidewalk in front of a commercial building located at 584 Forest Avenue, Staten Island, New York. Said premises were owned by defendant Forest Avenue Associates, LLC (hereinafter "Forest") and leased to third-party defendant University Physicians Group Inc. (hereinafter "UPG"). According to plaintiff, she lost her footing after stepping into a metal circular hole that remained after a damaged fire hydrant had been removed.

In moving for summary judgment dismissing the complaint and third-party complaint, UPG maintains that the record is devoid of evidence of any acts or omissions on its part that caused or contributed to plaintiff's injuries. Relying upon the undisputed facts, UPG argues that the alleged hazard was created solely by the City agency that removed the fire hydrant and left the "hole" unguarded until a replacement could be installed. Thus, UPG contends that there are no triable issues of fact as to its freedom from liability for the accident. [*2]

In cross-moving for summary judgment, defendant Forest Avenue Associates seeks (1) dismissal of the complaint as against it in the main action, or (2) judgment in its favor in the third-party action for, inter alia, contribution and indemnification. In support, Forest argues that it is an out-of-possession landowner under a net lease with no duty to maintain or repair the premises.

In opposition to the motion and cross motion, plaintiffs contend that the enactment of §7-210 of the Administrative Code of the City of New York (effective September 14, 2003), imposed an affirmative duty upon the owners of commercial buildings to respond in damages for injuries resulting from their failure to maintain the sidewalks abutting their premises in a reasonably safe condition. In sum and substance, plaintiffs argue that no "exception" exists for holes created by "missing fire hydrants", and that Forest Avenue Associates and UPG have failed to show that the above provision is not applicable to them. Consonant with this position, plaintiffs have also cross-moved for leave to serve an amended summons and complaint naming UPG as an additional defendant. According to plaintiffs, since the claims of negligence to be interposed against the tenant arise out of the same series of facts and occurrences alleged in the original and third-party complaints, they are not barred by the Statute of Limitations.

"As a general rule, a landowner or tenant will not be liable to a pedestrian injured by a defect in a public sidewalk abutting its premises" (Cannizzaro v Simco Mgt. Co., 26 AD3d 401, 401; see Hausser v Giunta, 88 NY2d 449, 452-453). However, an exception

exists where the abutting owner or lessee (1) created the alleged defect by, e.g., making a defective repair, (2) caused it to occur by a special use, or (3) violated a statute or ordinance making it liable to respond in damages for injuries arising out of its failure to maintain the sidewalk (see Bruno v City of New York, 36 AD3d 640, 640-641; Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d 725, 726).

Here, the moving defendants claim that they have made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidence that they (1) did not perform any repairs to the public sidewalk abutting the leased premises; (2) did not create the alleged defect; and (3) made no special use of the sidewalk (see Alvarez v Prospect Hosp., 68 NY2d 320). In response, plaintiffs assert that defendants are liable under the recently-enacted §7-210 of the Administrative Code of the City of New York (effective September 14, 2003).

The legislative documents underlying the passage of §7-210 of the Administrative Code reveal an express intent on the part of the City Council to place an adjacent property owner's liability to respond in damages on an equal footing with his or her "duties and obligations of... sidewalk [maintenance as] set forth in Administrative Code section 19-152" (Report of Committee on Transportation, 2003 New York City, NY Local Law Report No. 49 Int. 193). Accordingly, the two provisions must be read together, and when this is done, there is no reading [*3]of §19-152 which would place upon an adjacent landowner the duty to "install...repave...[or] repair" any sidewalk defect attributable to the City's removal of a fire hydrant. Not only is a fire hydrant the property of the City, but its location and maintenance fall within the sole province of the municipal authorities (see 15 RCNY §20-08; cf. Betram v Brown, 260 AD2d 189; see generally Moch Co. v Rensselaer Water Co., 247 NY 160). Moreover, although the Administrative Code section relied upon by plaintiff takes the form of a 100% shift in such liability onto the abutting landowner ^[FN1], the fact that this imposition of liability is in derogation of the common law means that the §7-210 must be strictly construed against the City (see e.g. Almadotter v City of New York, 15 AD3d 426). Under these circumstances, and in the absence of any language in §19-152 expressly requiring an abutting landowner to respond in damages for injuries caused by the City's removal of a fire hydrant and the concomitant failure to safeguard the hole or other sidewalk defect left in its wake, the motion and cross motion, e.g., for dismissal of the complaint as against UPG and Forest, is granted. In this regard, the situation is remarkably similar to that posed by a trip and fall over the remainder of a sign post imbedded in a

sidewalk, where courts of concurrent jurisdiction have held that such injuries are not attributable to a failure in maintenance by an adjoining landowner (see King v Alltom Props., Inc., Supreme Court, Kings Co, June 26, 2007).

In view of the foregoing, plaintiffs' cross motion for leave to add UPG as a party defendant has been rendered academic.

Accordingly, it is

ORDERED, that the motion and cross motion of third-party defendant University Physicians Group Inc. and defendant/third-party plaintiff Forest Avenue Associates, LLC, for summary judgment dismissing the complaint and third-party complaint as against each is granted, and the complaint and third-party complaint as against the above named parties are severed and dismissed; and it is further

ORDERED, that plaintiffs' cross motion and the balance of the cross motion of defendant Forest Avenue Associates, LLC are denied as academic; and it is further

ORDERED, that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

Dated: 8/30/07/s/____________________________

HON. THOMAS P. ALIOTTA,

J.S.C.

ALL PARTIES NOTIFIED BY EVE/pt on 8/30/07

OCA e-submission: no Judge E-Mail