Defendant Rite-Aid of New York (hereinafter "Rite-Aid") moves for an order dismissing plaintiff's complaint and all cross-claims asserted against it pursuant to CPLR §§3211 and 3212.

Plaintiff filed a summons and complaint on or about September 7, 2004, alleging that on February 10, 2004, she tripped and fell on broken sidewalk surrounding a fire hydrant outside the Rite-Aid store. Plaintiff alleges that the City of New York (hereinafter "the City") repaired said sidewalk and that it was the City's duty, as well as the duty of the other defendants, to maintain the sidewalk in a reasonably safe condition. Rite-Aid moves for summary judgement dismissing the complaint and all cross-claims asserted against it, alleging that the City was on notice of the broken sidewalk; caused the sidewalk to become broken; and was responsible for fixing the sidewalk.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). In light of such a showing, if a party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. Rebecchi v. Whitmore, 172 AD2d 600 (2d Dept 1991). In reviewing a motion for summary judgment, the court accepts as true the evidence presented by the non-moving party. Fleming v. Graham, 34 AD3d 525 (2d Dept 2006).

Administrative Code of the City of New York §7-210, effective September 14, 2003, provides in pertinent part that "[i]t shall be the duty of the owner of real property abutting any sidewalk, ...to maintain such sidewalk in a reasonably safe condition." NYC Admin Code §7-210(a). This includes liability for personal injury "caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." NYC Admin Code §7-210(b). There is a statutory exception to this rule. The statute does 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." NYC Admin Code §7-210(c).

If the abutting property falls within the statutory exception, then prior written notice of a defective condition must have been given before liability may be imposed on the City. See NYC Admin Code §§7-210(d), 7-201(c)(2); Farrell v. City of New York, 49 AD3d 806 (2d Dept 2008); Vertsberger v. City of New York, 34 AD3d 453, 455 (2d Dept 2006). However, the Courts have recognized two exceptions to §7-210 and §7-201(c)(2). The City may be liable for a defective sidewalk if the City either caused and created the defective condition that allegedly caused plaintiff's accident through an "affirmative act of negligence" or if a "special use" conferred a special benefit upon the City. See Scavuzzo v. City of New York, 47 AD3d 793, 794-795 (2d Dept 2008); Nunez v. City of New York, 41 AD3d 677, 678 (2d Dept 2007); Jordan v. City of New York, 23 AD3d 436, 437 (2d Dept 2005); Hines v. City of New York, 43 AD3d 869, 870 (2d [*2]Dept 2007); Zektser v. City of New York, 18 AD3d 869 (2d Dept 2005).

In order for the City to be liable under the theory of cause and create, the affirmative negligence of the City must "immediately result[] in the existence of a dangerous condition." Yarborough v. City of New York, 10 NY3d 726, 728 (2008) quoting Oboler v. City of New York 8 NY3d 888, 889 (2007). The "special use" exception authorizes the imposition of liability against any entity "that installs an object onto the sidewalk or roadway, for injuries arising out of circumstances where the entity has been permitted to interfere with a street solely for private use and convenience which is in no way connected with the public use [see Kaufman v. Silver, 90 NY2d 204, 207 (1997); Ausderan v. City of New York, 219 AD2d 562 (1st Dept 1995)]. Liability may be imposed since the special user has exclusive access to and control of the special use structure or appurtenance." Posner v. New York City Transit Authority, 27 AD3d 542, 543 (2d Dept 2006).

In support of its motion, Rite-Aid submits the examination before trial testimony of Robert West, a supervisor employed by the New York City Department of Environmental Protection (hereinafter "DEP"). Mr. West was shown a picture of the alleged defective sidewalk and stated that it appeared to be a "wash out" condition. He explained that a "wash out" occurs as a result of a fire hydrant malfunctioning or leaking and freezing, which causes the sidewalk to break. Rite-Aid also submits three service requests issued by DEP for the subject fire hydrant, all of which predate plaintiff's accident. The service requests state that the fire hydrant's dressing was replaced and that the sidewalk needs repair. Therefore, Rite-Aid maintains that the City caused the sidewalk to break; was on notice of the defective condition; and failed to repair the defective condition.

In opposition to the instant motion, the City argues that pursuant to §7-210 of the Administrative Code of the City of New York, effective September 14, 2003, Rite-Aid is liable for the defective sidewalk. Moreover, it maintains that to the extent that an exception to §7-210 exists, there is an issue of fact as to whether the City caused and created the alleged defect. Therefore, summary judgement should be denied.

Plaintiff allegedly tripped and fell on the broken sidewalk on February 10, 2004, and therefore, §7-210, effective September 14, 2003, applies. Rite-Aid does not fall within the statutory exception to §7-210 since it is not a one-, two- or three-family residential property, owner occupied for residential purposes. Therefore, pursuant to §7-210, Rite-Aid is responsible for personal injury caused by Rite-Aid's failure to maintain the sidewalk in a reasonably safe condition unless the City falls within one of the two court recognized exceptions, namely cause and create or special use.

Rite-Aid devotes most of its argument to the contention that the City was on notice of the alleged defect. However, notice is irrelevant since the City is not statutorily responsible for repairing the sidewalk even if prior written notice was given. The Court must determine whether an issue of fact exists as to whether the City is responsible for the alleged defect under the theory [*3]of cause and create or special use.

Rite-Aid fails to submit any evidence in support of the contention that the City is responsible for the alleged defect under the theory of cause and create. Rite-Aid fails to establish the City's affirmative negligence and that the "wash out" condition caused the sidewalk to immediately break rather than break or erode over time. See Yarborough v. City of New York, 10 NY3d 726 (2008). Finally, the principle of special use creates a narrow exception to the general rule. See Minott v. City of New York, 230 AD2d 719, 720 (2d Dept 1996). The special use must "confer a special benefit upon the municipality" unrelated to the public use. Poirier v. City of Schenectady, 85 NY2d 310, 315 (1995). See Loiaconi v. Village of Tarrytown, 36 AD3d 864 (2d Dept 2007). Rite-Aid fails to demonstrate that the sidewalk in proximity to a fire hydrant falls within the special use exception. In fact, a fire hydrant is generally maintained by a municipality in the discharge of its duty to keep the public reasonably safe.

In view of the foregoing, the Court finds that Rite-Aid failed to make a prima facie showing of entitlement to summary judgement as a matter of law. Therefore, Rite-Aid's motion is denied in its entirety.^[FN1]

The foregoing shall constitute the Decision and Order of the Court.



DONALD SCOTT KURTZ

Justice, Supreme Court