In this action, plaintiff Adua Falco ("Falco") alleges in her Notice of Claim filed against The City of New York ("the City") that on January 9, 2006, while walking on the sidewalk in front of 260 Powers Street in Brooklyn that she tripped and fell due to a "cracked, broken, raised and uneven" sidewalk.

Falco sued the City as well as the other defendants, Jennings Hall Senior Citizen Housing Development Fund, Inc. (a.k.a. Jennings Hall Senior Citizen Housing Development Fund Corporation) ("Jennings Hall"), the owner and operators of the premises located at 260 Powers Street.

The City moves for summary judgment relying on §7-210 of the Administration Code of the City of New York, commonly referred to as the Sidewalk Law of 2003. Section 7-210 provides in relevant part as follows:

b. Notwithstanding any other provision of law, the owner of real

property abutting any sidewalk, including, but not limited to, the

intersection quadrant for corner property, shall be liable for any

injury to property or personal injury, including death, proximately [*2]

caused by the failure of such owner to maintain such sidewalk in

a reasonably safe condition. Failure to maintain such sidewalk in

a reasonably safe condition shall include, but not be limited to, the

negligent failure to remove snow, ice, dirt or other material from

the sidewalk. This subdivision shall not apply to one-, two- or

three-family residential real property that is (i) in whole or in part,

owner occupied, and (ii) used exclusively for residential purposes.

c. 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 (other than

sidewalks abutting one-, two- or three-family residential real

property that is (i) in whole or in part, owner occupied, and

(ii) used exclusively for residential purposes) in a reasonably

safe condition. This subdivision shall not be construed to apply

to the liability of the city as a property owner pursuant to

subdivision b of this section.

The Sidewalk Law of 2003 was intended to shift liability from the City to property owners

with the exception of one- three family residences used exclusively for residential purposes.

The legislative history for the Sidewalk Law of 2003 is clear as to its purpose. In signing Local Law No. 49 and Local Law No. 54, Mayor Michael R. Bloomberg remarked:

New York City has 12,750 miles of sidewalks. Laid end to end they

would stretch halfway around the world. It would cost the City billions

of dollars to hire sidewalk repair crews to repair all sidewalk defects

and keep the sidewalks perfectly free of defects. Under current law,

property owners are required to keep their sidewalks in good repair

and free of snow and ice. However, if they fail to comply with this

statutory duty and someone is injured as a result, they don't get

sued, the City does. This legislation transfers liability for sidewalk

accidents from the City to the property owners who already have the

duty to keep the sidewalks in good repair...

This bill will not only save the City millions of dollars but ...will

mean safer sidewalks and fewer injuries...

This bill will [also] require property owners, other than...owners of

one-, two- or three-family homes, to have a policy of personal injury

and property damage liability insurance to cover their liability for

sidewalk accidents...

(Mayor Michael R. Bloomberg Signs Tort Reform Legislation, Office

of the Mayor Press Release 2000-03, July 16, 2003.)

The City now moves for summary judgment in reliance on the Sidewalk Law of 2003. It [*3]

submits documentary and affidavit evidence that the subject property is not a one-three family residence used exclusively for residential purposes.

Plaintiff and Jennings Hall oppose the motion. Neither the plaintiff nor the defendant dispute the fact as established by the City that the property at issue is not exempt from the Sidewalk Law of 2003. Instead, they argue that plaintiff fell over the raised sidewalk which "was due to tree roots from an adjoining tree."

Plaintiff and Jennings Hall submit no affidavit in support of this claim. Instead, in an attorneys' affirmation, they rely on the photographs attached to the Notice of Claim to raise this argument.

While it is clear that the attorneys' affirmations are insufficient to raise triable issues of fact on this motion for summary judgment (Worldcom Inc. v Dialing Loving Care, Inc., 269 AD2d 159 [1st Dept 2000]), even if the argument that the fall was caused by a defect in the sidewalk created by the roots of a tree were advanced by a client affidavit, the motion for summary judgment would still be granted.

The clear unambiguous language of the statute combined with the expressed purpose of the law as set forth in the legislative history established that the City Council intended to shift liability for sidewalk accidents away from the City to the abutting landowner.

The fact that the sidewalk defect may have been caused by tree roots is of no pause. As the court noted in Seplow v Solil Mgt. Corp., 15 Misc.3rd 1138(a), 2007 WL1518930(NY Sup),2007 NY Slip Op 51033 [U].

Here, where the sidewalk may have damaged by the tree roots of the

curbside tree, it is clear that under the law, the owners are responsible

for remedying the condition and are liable for damages that may

occur because of the defect. The City assumes no duty by the mere

fact of planting the tree, and does not acquire a duty of care when the

tree's roots cause the sidewalk flags to break or become uneven.

Defendant's reliance on Vucetovic v Epson Downs, Inc. (45 AD3d 28 [1st Dept.

2007]) is misplaced. In Vucetovic, the First Department in a 3-2 decision held that a "tree well" was not considered a "sidewalk" for purposes of the Sidewalk Law of 2003. Without commenting on

the wisdom of the decision in Vucetovic, there is nothing in the record to support that plaintiff in the instant case fell in the tree well. The Notice of Claim establishes the contrary.

Plaintiff and Jennings Hall also rely on Faulk v City of NY, (16 Misc 3d 1108(A) [Kings County Supreme Ct. 2007]). However, Faulk does not support their position. As the court in Faulk noted:

Had there been sufficient evidence that Plaintiff's fall was caused

by tree roots, the City's showing that it had no duty to maintain

the sidewalk would be sufficient for the City's prima facie showing.

Even before the New Sidewalk Law, and where the City continues

to have a duty to maintain, the failure to control tree roots or their

effects on the sidewalk was not considered "affirmative negligence"

that would avoid the prior-written-notice law. [*4]

Accordingly, the motion of the City of New York for summary judgment is granted and

the Clerk of the Court is ordered to dismiss the complaint as against the City of New York only with prejudice.

This constitutes the decision and order of the Court.

E N T E R :

_________________________________________

Robert J. Miller

Justice