Defendants' Summary Judgment Motion Denied in Trip-and-Fall in Tree Well Where They Don't Show That NYC Owned It

Case: Pevzner v. 1397 E. 2nd, LLC

Court: Supreme Court, Appellate Division, Second Department, New York

Date: June 20, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury lawyer)

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RELATED POSTS:

ACCIDENT VICTIM TRIPS ON FENCE SURROUNDING SIDEWALK TREE WELL; BUILDING OWNER WINS SUMMARY JUDGMENT DISMISSING CASE

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Facts: This accident victim was walking down the sidewalk when he tripped and fell. His tumble was caused by a square section of the sidewalk that wasn't paved.

The injured plaintiff and his wife sued, among others, the owner and managing agent of the building. This case comes on appeal of summary judgment granted in their favor by the lower court.

The defendants claim that the unpaved square and the danger presented by it were not their fault as the unpaved portion of the sidewalk was a "tree well" so that the accident is the responsibility of the City of New York.

Held: The appeals court starts out by agreeing with the defendants: while City regulations make commercial landowners responsible for sidewalks next to their buildings, liability is not placed upon such owners for accidents occurring in tree wells.

So it seems that the defendants' lower court win should continue. However, the appeals court finds that these defendants failed to meet their burden of showing that the tree well belonged to the City of New York. So their win is reversed on appeal of this accident case, their request for summary judgment is denied, and they get stuck in this case to fight their way out at trial -- where the plaintiffs would have the burden of showing who owned the tree well.

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