I.BACKGROUND

This decision requires the court to determine a real property owner's liability for a hazardous, misleveled abutting sidewalk caused by his predecessor owner's negligent installation of new pavement. Alternatively the court must determine, even if the installation was not negligent or did not cause the hazard, but the predecessor owner installed the new sidewalk to accommodate the owner's use of that area, whether the current owner assumes a duty to maintain the area free of hazards.

Plaintiff sues to recover for personal injuries she sustained June 7, 2005, when she tripped and fell on a misleveled portion of the sidewalk in front of premises owned by defendant Cyril Adams at 1717 Van Buren Street, in Bronx County. Defendant Adams moves for summary judgment, C.P.L.R. § 3212(b), dismissing the complaint against him on the grounds that he did not create the condition that caused plaintiff's injury and was not responsible for maintaining the sidewalk due to his special use of the sidewalk or under New York City Administrative Code § 7-210(b). For the reasons explained below, the court denies Adams's motion.

II.DEFENDANT PROPERTY OWNER'S LIABILITY

Defendant Adams, as the owner of land abutting a public sidewalk, is liable for a hazardous condition on the sidewalk only if the owner created the hazard, made special use of the sidewalk, or was obligated by statute to maintain the sidewalk. Taubenfeld v. Starbucks Corp., 48 AD3d 310, 311 (1st Dep't 2008); Febrescordero v. 2527 Boston Rd. Corp., 301 AD2d 401, 402 (1st Dep't 2003); Moschillo v. City of New York, 290 AD2d 260 (1st Dep't 2002); Montalvo v. Western Estates, 240 AD2d 45, 47 (1st Dep't 1998). In New York City, a landowner is statutorily obligated to maintain sidewalks abutting his premises and liable for failing to perform that duty, N.Y.C. Admin. Code § 7-210(a) and (b); Vucetovic v. Epsom Downs, Inc., 10 NY3d [*2]517, 520-21 (2008), but the statute exempts from this duty an owner of a one to three family home used exclusively as a residence. Plaintiff concedes that Adams's premises fall within this exemption.

Adams claims he also is not liable because he did not cause the misleveling of the sidewalk where plaintiff fell and did not make special use of that portion of the sidewalk. Instead, he points to the overgrowth of a tree planted by the City of New York adjacent to that portion of the sidewalk and not maintained by Adams, as the cause of the raised sidewalk.

III.THE MATERIAL EVIDENCE

A.Defendants' Deposition Testimony

At Adams's deposition, when asked about repairs to the sidewalk in front of his property in 1995, Adams answered: "We did the whole sidewalk," referring to his grandmother, who owned the property then, and himself as an occupant. Aff. of Terrence J. Ingrao, Ex. E at 12. See id. at 23. Plaintiff claims this repaving was performed negligently, so as to cause the eventual misleveling where she fell.

In addition, the property owner adjacent to Adams, former defendant Gonzalez, testified that his neighbor had repaved the sidewalk after tearing it up to install a water line for the family's private use from the street to their house. Gonzalez could not recall the precise time or location of the repaving, but in the context of Adams's testimony that the only repaving was in 1995, Gonzalez's testimony regarding the water line correlates with the 1995 repaving. Although Gonzalez acknowledged that the repaving encompassed a misleveled portion of the sidewalk other than where plaintiff fell, he never disavowed that the repaving encompassed other portions as well.

B.The Engineers' Findings

Plaintiff's expert, engineer Rudy Sherbansky, attests that he reviewed photographs authenticated at the parties' depositions as depicting the sidewalk where and when plaintiff fell and inspected the site more recently. Although when Sherbansky inspected the site the breakage and misleveling where she fell was repaired, Adams testified that no one had repaired "the sidewalk" since 1995, indicating any localized repair was patchwork, not a sidewalk reinstallation or replacement. Id. at 24. Even if the court considers Adams's later affidavit, that the City of New York did replace "the entire sidewalk in front of our house" after plaintiff's fall, Reply Aff. of Terrence J. Ingrao, Ex. C ¶ 5, as supplementing rather than contradicting his prior deposition, see Weiss v. Gerard Owners Corp., 22 AD3d 406, 407 (1st Dep't 2005); Garfinkel v. Manhattan & Bronx Surface Tr. Operating Auth., 8 AD3d 118 (1st Dep't 2004); Philips v. Bronx Lebanon Hosp., 268 AD2d 318, 320 (1st Dep't 2000), Sherbansky accounted for intervening repair or replacement. Based on his comparison of the contemporaneous photographs with his later inspection, he nonetheless found the sidewalk's dimensions, markings, and tree installation the same as in the photographs depicting the area when plaintiff fell. Sherbansky further explains how he could measure the height of the raised sidewalk paving flag as 1.23 inches above the adjacent flag depicted in the photographs, by comparing the height difference to the dimensions of the constant components in both the photographs and his inspection. Thus, even though Sherbansky's findings and conclusions are partly based on his later inspection, he demonstrates that the conditions he assessed were the same as at the time and place of plaintiff's injury. Murphy v. Conner, 84 NY2d 969, 972 (1994); Sarmiento v. C & E Assoc., 40 AD3d 524, 526-27 (1st Dep't 2007); Vasquez v. Rector, 40 AD3d 265, 266-67 (1st Dep't 2007); Potter v. NYC Partnership Hous. Dev. Fund Co., Inc., 13 AD3d 83, 85 (1st Dep't 2004).

Adams's expert, engineer Paul Angelides, attests that, based on his comparison of the photographs from when plaintiff fell and his recent inspection, the entire sidewalk in front of Adams's residence was replaced between when the photographs were taken and his inspection. Consequently, in his opinion no conclusions as to a hazardous condition in 2005 or the components or methods of the prior sidewalk installation in 1995 could be drawn from the [*3]photographs.

Adams offers his engineer's findings only in reply, which the court ordinarily may not consider. McNair v. Lee, 24 AD3d 159, 160 (1st Dep't 2005); Morris v. Solow Mgt. Corp., 8 AD3d 126, 127 (1st Dep't 2004); Jackson v. Bronx Lebanon Hosp. Ctr., 7 AD3d 356, 357 (1st Dep't 2004); Leeds v. Lenox Hill Hosp., 6 AD3d 232 (1st Dep't 2004). Insofar as Angelides merely undermines or otherwise rebuts Sherbansky's findings first revealed in plaintiff's opposition to Adams's motion, however, Angelides never concludes that the sidewalk was not hazardous when and where plaintiff fell. His resistance to drawing any conclusions, moreover, does little to support Adams's defense that, even if the sidewalk was dangerously misleveled, negligent installation did not cause the hazard. At best, whether contrasted just with Sherbansky's findings or with Adams's testimony as well, Angelides's conflicting findings simply raise factual issues regarding a hazardous condition and its causation.

The misleveled condition found by Sherbansky as depicted in the photographs, a "vertical differential between adjacent flags . . . greater than . . . 1/2 in.," 34 R.C.NY § 2-09(f)(5)(iv), is also described by plaintiff and defendants as a noticeable crack and raised flag and thus based on first hand accounts of the condition when plaintiff was injured. Sawyer v. Dreis & Krump Mfg., 67 NY2d 328, 335 (1986); Jill S. v. Steven S., 43 AD3d 724, 725 (1st Dep't 2007); Machado v. Clinton Hous. Dev. Co., Inc., 20 AD3d 307, 308 (1st Dep't 2005); Saborido-Calvo v. New York City Tr. Auth., 11 AD3d 216 (1st Dep't 2004). These facts qualify as a "trip hazard" under 34 R.C.NY § 2-09(f)(5)(iv), which, unlike Administrative Code § 7-210, applies to owners of one to three family homes and constitutes evidence of negligent installation or maintenance. Cruz v. City of New York, 13 AD3d 254 (1st Dep't 2004); Posner v. New York City Tr. Auth., 27 AD3d 542, 543-44 (2d Dep't 2006). See Schneider v. Diallo, 14 AD3d 445, 446 (1st Dep't 2005); Romeo v. DeGennaro, 255 AD2d 208 (1st Dep't 1998); Adriano v. Manhattan & Bronx Surface Tr. Operating auth., 250 AD2d 541, 542 (1st Dep't 1998); Gayle v. City of New York, 256 AD2d 541, 542 (2d Dep't 1998).

34 R.C.NY § 2-09(f)(4) sets specifications for sidewalk installation. Contrary to plaintiff's interpretation, however, the regulation does not require expansion joints. It merely specifies that they "are typically placed at 20 ft. intervals and at the property line." 34 R.C.NY § 2-09(f)(4)(v). Subsection 2-09(f)(4)(vii) does require that: "Flags shall be 5 ft. X 5 ft. where feasible," defined as when the building frontage "is exactly divisible," in which case "all flags shall be 5 ft. wide." When the frontage is not exactly divisible, "the flags shall be plus or minus in an amount . . . as near to 5 ft. as possible." 34 R.C.NY § 2-09(f)(4)(vii).

When inspecting the installation of the sidewalk and its components that remained constant since the installation, Sherbansky found that it included neither expansion joints nor uniform five feet square paving flags. He does not specify, however, that the frontage of Adams's building was exactly divisible by five feet wide squares, or how near the frontage was to those dimensions, or the flags' precise dimensions, beyond not uniformly five feet square. Nevertheless, he concludes that the omissions of expansion joints and uniform five feet square flags caused the pavement to buckle, crack, and become misleveled.

IV.BASES FOR ADAMS'S LIABILITY

A.Plaintiff's Claims

Adams faults plaintiff for not pleading the above regulatory violations in her complaint or bill of particulars. Her identification of specific regulatory violations in opposition to Adams's motion for summary judgment, without having identified them in her complaint or bill of particulars, is not necessarily fatal if her belated citations are not unduly delayed and do not cause unfair surprise or other prejudice. Foley v. City of New York, 34 AD3d 702, 704 (1st Dep't 2007); Walker v. Metro-North Commuter R.R., 11 AD3d 339, 340-41 (1st Dep't 2004); Padilla v. Frances Schervier Hous. Dev. Fund Corp., 303 AD2d 194, 196 & n.1 (1st Dep't 2004); Zuluaga v. P.P.C. Constr., LLC, 45 AD3d 479, 480 (2d Dep't 2007). See Reilly v. Newireen Assoc., 303 AD2d 214, 218 (1st Dep't 2003).

Plaintiff's bill of particulars alleges Adams's negligence "in causing . . . and permitting the [*4]premises to become and remain in dangerous . . . condition" and "failing to remove the nuisance . . . on the aforesaid premises despite actual and constructive notice of said hazardous conditions." Aff. of Laurence M. Savedoff, Ex. B ¶ 4. The bill of particulars describes those conditions "the eventual breakup and cracking of sidewalk, which created a misleveled and dangerous condition." Id. ¶ 5.

The regulatory violation plaintiff now demonstrates is consistent with those broad parameters: Adams's negligence caused the misleveled sidewalk paving flags, such that one flag was raised 1.23 inches above the adjacent flag. The omissions of expansion joints and uniform five feet square paving flags, however, are inconsistent with the specific cause of the condition alleged in the bill of particulars, which attributes the breakage, cracks, and misleveling to Adams's deficient "maintenance of the tree and surrounding flower bed" in the area where plaintiff fell. Id. As discussed above, plaintiff has not shown the omissions in the installation of the sidewalk to be regulatory violations, but she does now allege that these omissions constitute Adams's negligence. In sum, it is this form of negligence that is inconsistent with her bill of particulars, not the regulatory violation, which is the resulting hazardous condition as alleged in the bill of particulars.

The regulatory violation merely amplifies and elaborates on plaintiff's bill of particulars. The fact that the hazardous misleveled sidewalk also violated city regulations is only additional support for, but not dispositive of Adams's negligence, nor a new theory of negligence. Foley v. City of New York, 34 AD3d at 704; Adams v. Santa Fe Constr. Corp., 288 AD2d 11, 12 (1st Dep't 2001); Baten v. Wehuda, 281 AD2d 366 (1st Dep't 2001); Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232-33 (1st Dep't 2000). Plaintiff's reliance on this hazardous misleveled condition alone, whether or not it also violates city regulations, has not unfairly surprised or prejudiced Adams and, as discussed below, is enough to defeat summary judgment. Even plaintiff's new negligence theory, that the omission of expansion joints and uniform five feet square flags in the sidewalk installation was negligent, causing the cracked, misleveled pavement hazardous to pedestrians, whether a regulatory violation or not, has caused no undue surprise or prejudice, given Adams's reply to those new claims. Insofar as plaintiff seeks to rely on the absence of expansion joints and uniform five feet square flags and regulatory violations at trial, however, she must move to amend her complaint or bill of particulars or serve a supplemental bill of particulars. C.P.L.R. §§ 3025(b), 3043(b); Foley v. City of New York, 34 AD3d at 704; Asaro v. City of New York, 19 AD3d 167 (1st Dep't 2005); Walker v. Metro-North Commuter R.R., 11 AD3d at 340-41; Adams v. Santa Fe Constr. Corp., 288 AD2d at 12.

Under plaintiff's theory of liability, plaintiff claims that when Adams's predecessor owner, his grandmother, installed a new sidewalk in 1995, the owner negligently created the hazardous, misleveled condition that caused plaintiff's fall, and Adams now succeeds his grandmother as the owner liable for creating that hazard. Grossman v. Amalgamated Hous. Corp., 298 AD2d 224, 226 (1st Dep't 2002); Collins v. City of New York, 273 AD2d 138 (1st Dep't 2000); Kiett v. New York City Hous. Auth., 255 AD2d 422, 423 (2d Dep't 1998). Furthermore, even if Adams as the successor owner was not charged with notice of a latent condition that his predecessor created, once the negligent sidewalk installation manifested itself in buckling, cracks, and misleveling, he was charged with at least constructive, if not actual, notice of an underlying defective condition. Finally, because the predecessor owner installed the new sidewalk to accommodate her special use of that area for a private water line, which Adams continues to use, she and now he undertook a duty to maintain and repair that area. Sheehy v. City of New York, 43 AD3d 336, 337 (1st Dep't 2007); Torres v. City of New York, 32 AD3d 347, 348 (1st Dep't 2006); Eliassian v. Consolidated Edison Co. of NY, 300 AD2d 51 (1st Dep't 2002). See Cook v. Consolidated Edison Co. of NY, Inc., 51 AD3d 447, 448 (1st Dep't 2008); Navarreto v. 995 Westchester Ave. LLC, 35 AD3d 267, 268 (1st Dep't 2006); Campos v. Midway Cabinets, Inc., 51 AD3d 843, 844 (2d Dep't 2008).

B.The Successor Owner's Liability for His Predecessor's Creation of the Hazardous Condition

Adams insists that Consolidated Edison Company, not his grandmother, actually opened the sidewalk to install the water line in 1995, yet he never disclaims that the excavation for the water line was from the street to his family's house, or for the family's use, or at his grandmother's request. He further insists that the water line ran through the sidewalk at the opposite end of his building frontage from where plaintiff fell. This fact, too, is inconsequential, if, as he repeatedly testified, the family repaved the entire frontage.

The fact that Adams himself did not assume ownership until 2001 poses the more substantial issue. Accepting plaintiff's allegations that Adams's predecessor owner negligently installed the new sidewalk six years before, leading to a buckling, cracked, and hazardous misleveled condition as of 2005, did the successor owner Adams assume liability for that hazard?

Ordinarily liability for a hazardous condition passes to the current owner Adams, unless the hazard was unknown when he assumed ownership and he did not have a reasonable time to discover and remedy the condition after he assumed ownership and before the hazard injured plaintiff. Bittrolf v. Ho's Dev. Co., 77 NY2d 896, 898 (1991); Gramazio v. 370 Lexington Ave., LLC, 40 AD3d 303, 304 (1st Dep't 2007); Armstrong v. Ogden Allied Facility Mgt. Corp., 281 AD2d 317, 318 (1st Dep't 2001); Brown v. O'Connor, 193 AD2d 1088 (4th Dep't 1993). Here, Adams nowhere indicates that, while occupying his grandmother's house, he was unaware that expansion joints were omitted from the sidewalk installation or that the non-uniform flags, while readily observable, would cause misleveling, assuming they did not violate any regulation. Even were he unaware of such deficiencies in the prior sidewalk installation, however, the combined testimony of plaintiff and both defendants indicates that the buckling, cracking, and misleveled flags were readily observable months before her fall. This evident condition, at minimum, raises an issue whether, because of the hazard produced, and because it manifested a defect in sidewalk construction, it triggered a duty on Adams's part to investigate and address the cause. Gramazio v. 370 Lexington Ave., LLC, 40 AD3d at 304; Armstrong v. Ogden Allied Facility Mgt. Corp., 281 AD2d at 318; Brown v. O'Connor, 193 AD2d 1088.

C.The Successor Owner's Duty to Maintain the Area of His Predecessor's Special Use

Even if plaintiff's new theory of negligence, that the omission of expansion joints and uniform five feet square flags was negligent and caused the hazardous misleveled pavement, fails, because those omissions either were never pleaded or did not constitute negligence or cause the hazard, plaintiff still survives summary judgment. Once the abutting property owner tore open the entire sidewalk along the property frontage to install a water line to the property for the owner's use and then repaved the entire frontage, the owner assumed a duty to maintain and repair the area she repaved for her use. Sheehy v. City of New York, 43 AD3d at 337; Torres v. City of New York, 32 AD3d at 348; Eliassian v. Consolidated Edison Co. of NY, 300 AD2d 51. This duty runs with the property and does not depend on whether the repaving was negligent or directly caused a condition needing repair. Concomitantly, the duty falls to the current owner whether or not he repaved the sidewalk, performed subsequent maintenance or repairs, or even used the water line that necessitated the repaving. Torres v. City of New York, 32 AD3d at 348; Feldman v. Kings Hero Rest., 270 AD2d 1 (1st Dep't 2000); Beplat v. City of New York, 246 AD2d 471 (1st Dep't 1998). While it is difficult to conceive of how the property would not continue to derive a benefit from the water line, and Adams has not shown its disuse, of course if Adams ultimately proves that the owner never repaved the sidewalk for such a special use, then plaintiff will not prevail on this theory. Torres v. City of New York, 32 AD3d at 349. Nevertheless, the record here, when construed in her favor, demonstrates otherwise.Assuming the special use, plaintiff need only show that the misleveled flags were readily observable for a reasonable period before her fall and that they posed a hazard. Since she has, at minimum, raised factual issues as to both elements, she need not rely on her other potential bases for Adams's liability.

V.CONCLUSION [*6]

Consequently, the court denies defendant Adams's motion for summary judgment dismissing the complaint against him. C.P.L.R. § 3212(b). This decision constitutes the court's order. The court will provide copies to the parties' attorneys.

DATED: February 6, 2009

_____________________________

LUCY BILLINGS, J.S.C.