New York State Court of Claims

New York State Court of Claims

TRIANI v. THE STATE OF NEW YORK, #2006-016-055, Claim No. 112028, Motion No. M-71583


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Queller, Fisher, Dienst, Serrins, Washor & Kool, LLPBy: Dallin M. Fuchs, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik-Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 30, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York moves to dismiss the claim of Moises Triani, in which it is alleged that on December 5, 2005, Mr. Triani slipped and fell on snow and ice on the sidewalk abutting Kingsboro Hospital at 681 Clarkson Avenue in Brooklyn. In support of its motion, the State argues that: (1) section 7-210 of the Administrative Code of the City of New York does not apply to the State of New York; and (2) the claim fails to comply with §11 of the Court of Claims Act in that it fails to adequately describe the location and manner of the accident, and fails to properly state an accrual date.
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In 2003, the City of New York amended its Administrative Code via Local Law No. 49 (approved July 16, 2003 and effective September 14, 2003), which added a new section, 7-210, entitled, “Liability of real property owner for failure to maintain sidewalk in a reasonably safe condition,” which provides in relevant part that:
  1. It shall be the duty of the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.
  1. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury . . . proximately 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 . . . the negligent failure to remove snow [and] ice . . . from the sidewalk . . .
  1. Notwithstanding any other provision of law, the [City of New York] shall not be liable for any injury to property or personal injury . . . proximately caused by the failure to maintain sidewalks . . . in a reasonably safe condition . . .

Contrary to claimant’s assertion, §7-210 does not “simply [codify] an [owner’s] common law duty to maintain a sidewalk abutting real property . . .” In fact, “[a]bsent the existence of a statute or ordinance imposing liability [such as §7-210], an abutting landowner is not liable to a passerby on a public sidewalk for injuries resulting from defects in that public sidewalk unless the landowner either caused the defect to occur because of some special use by the landowner or the landowner created the defect.” Zektser v City of New York, 18 AD3d 869, 796 NYS2d 656, 657 (2d Dept 2005). See also, e.g., Bechtos v City University of New York, Ct Cl, July 19, 2001 (unreported, claim no. 99586, Read, P.J., UID #2001-001-526[1]), in which the court noted that, “[a]s a general rule, the municipality, not an abutting landowner or occupant, is liable to a pedestrian injured as a result of a defective or dangerous condition of a public sidewalk. In other words, an abutting landowner or occupant does not, by reason of proximity alone, owe the public a duty to keep the sidewalk in a safe condition.”

It is thus undisputed that prior to the enactment of §7-210 of the City’s Administrative Code, the State could not have been liable for the accident alleged in Mr. Triani’s claim. The issue is whether §7-210 is applicable to the State of New York in this case. The State argues that it “is exempt from municipal regulation,” citing Love v Port Authority, 168 AD2d 222, 562 NYS2d 110 (1st Dept 1990) and Santiago v Port Authority, 203 AD2d 217, 611 NYS2d 174 (1st Dept 1994). Such cases are unpersuasive.

In Miller v State of New York, 62 NY2d 506, 511, 478 NYS2d 829, 832 (1984), the Court of Appeals stated that “[i]t is not disputed that when the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord (see Court of Claims Act, § 8 . . .)” Such standard applies to local laws. See, e.g., Huerta v New York City Transit Authority, 290 AD2d 33, 37, 735 NYS2d 5, 9 (1st Dept 2001), in which defendant argued that “as a creature of the New York State Legislature,” it was not subject to the regulatory safety standards of the City of New York. The First Department disagreed, stating that:
Whatever may be the rule in deciding where one governmental entity’s authority begins and another’s ends . . . the law is well settled that, for purposes of tort law, a governmental entity is liable for failure to comply with the same minimum regulatory standards as are applicable to all similarly situated landowners if the challenged conduct is proprietary and not governmental in nature. “As a landowner, a public corporation acts in its proprietary capacity rather than its governmental capacity and owes the same duty of care as that of a private individual. State agencies are subject to local laws and regulations when acting in a proprietary as opposed to a governmental capacity.” (62A N.Y. Jur 2d, Govenment Tort Liability, § 194.)

290 AD2d at 38, 735 NYS2d at 9. See also Dempsey v Manhattan and Bronx Surface Transit Operating Authority, 214 AD2d 334, 625 NYS2d 133 (1st Dept 1995).

In view of the foregoing, I find that in this case, the State is subject to §7-210 of the New York City Administrative Code.
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As to location, defendant argues that the claim’s description of the accident site as 681 Clarkson Avenue in Brooklyn is inadequate for the purposes of §11 of the Act since it makes no mention of any particular portion of sidewalk or identifying feature.

In Schneider v State of New York, 234 AD2d 357, 650 NYS2d 798 (2d Dept 1996), dismissal of the claim on §11 grounds was upheld where it was asserted that claimant had fallen in the picnic area adjacent to the parking area at Heckscher State Park. On its motion to dismiss, defendant submitted a map showing a number of picnic areas near a number of parking areas scattered throughout the park. In contrast, in this case, nothing has been submitted by defendant to suggest, for example, that there was more than one entrance at 681 Clarkson Avenue. It should also be noted that this claim deals with a transitory condition, for which the precise location of the fall is less at issue than in the case of, e.g., a defect in a pavement surface.

In Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th Dept 1980), it was stated that, "[w]hat his required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State." I find that in the instant case, claimant has complied with this standard with regard to the location of the alleged defect.

Defendant also argues that the description of the accident’s “manner” is insufficient. In that regard, the claim states, inter alia, that Mr. Triani slipped and fell because defendant had “negligently fail[ed] to clear the subject sidewalk of snow, ice, and precipitation . . .” I find that such is adequate for the purposes of Heisler, supra.

Finally, defendant argues that the claim fails to state a specific date of accrual. In fact, paragraph two of the claim specifically “asserts a claim for personal injuries . . . due to the occurrence on December 5, 2005. At approximately 10:30 a.m. . . . the Claimant . . . was caused to sustain serious personal injuries . . .” The fact that a subsequent paragraph states that as of a later date in December 2005, the State had a duty to maintain the sidewalk (which date claimant characterizes as a typographical error), does not alter the fact that an accrual date is properly alleged in paragraph two.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-71583 be denied.

August 30, 2006
New York, New York

Judge of the Court of Claims

  1. [1]This and other decisions of the Court of Claims may be found on the court’s website:
  2. [2]The following were reviewed: defendant’s Notice of Motion with Affirmation in Support and exhibits A and B; claimant’s Affirmation in Opposition; defendant’s Affirmation in Reply; and claimant’s Affirmation in Sur-Reply.