Summary
In LoCurto, the Court specifically pointed to the definition of sidewalk set forth in Vehicle and Traffic Law § 144 and held that a grassy area between the curb and the paved portion of a sidewalk is part of the sidewalk under that definition (see also Malone v Town of Southold, 303 AD2d 651, 652; Castiglione v Village of Ellenville, 291 AD2d 769, 770, lv denied 98 NY2d 604; Hall v City of Syracuse, 275 AD2d 1022, 1023; Zizzo v City of New York, 176 AD2d 722; Gallo v Town of Hempstead, 124 AD2d 700).
Summary of this case from Callan v. City of N.YOpinion
2520.
Decided December 18, 2003.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 17, 2002, which, in an action for personal injuries sustained when plaintiff, after putting money in a parking meter, tripped and fell traversing a strip of grass and dirt between the curb and the paved sidewalk, granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Brian J. Isaac, for Plaintiff-Appellant.
Ralph Janzen, for Defendant-Respondent.
Before: Mazzarelli, J.P., Saxe, Lerner, Marlow, JJ.
We are in accord with the other Departments that a grassy area between a curb and a paved sidewalk is part of the sidewalk, as defined in Vehicle and Traffic Law § 144 ( see Zizzo v. City of New York, 176 A.D.2d 722 [2d Dept]; Castiglione v. Village of Ellenville, 291 A.D.2d 769, 770 [3d Dept], lv denied 98 N.Y.2d 604; Hall v. City of Syracuse, 275 A.D.2d 1022 [4th Dept]). Accordingly, the City's Pothole Law (Administrative Code § 7-201) applies ( see Zizzo, id.), requiring a showing that the City had prior written notice of the alleged hole in the ground, or created the hole through an affirmative act of negligence, or made a special use of the grassy area that conferred a benefit ( see Torres v. City of New York, 306 A.D.2d 191, 194). Admittedly, the City did not have prior written notice, and we reject plaintiff's expert's conclusory opinion that the siting of the meters was an affirmative act of negligence that caused heavy traffic on the grassy strip and thus the dangerous condition that caused plaintiff's fall ( cf. Zizzo, supra). Certainly, the grassy strip may have been traversed by pedestrians for reasons completely unrelated to the meters. Moreover, even if it were assumed that the installation of parking meters adjacent to a grassy area is a departure from some accepted standard of safety, such an assumption would not permit a reasonably reliable inference that the hole that caused plaintiff's fall was a consequence of such a departure rather than normal deterioration over time ( see Cardona v. City of New York, 305 A.D.2d 303). Nor does it avail plaintiff to argue that the parking meters constitute a special use of the grassy area that confer a benefit on the City, where she does not show that the hole she tripped emanated from a parking meter. To hold otherwise would be to make actionable any defect in any sidewalk along which parking meters are placed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.