In Dzafer Vucetovic v. Epsom Downs, Inc., — N.E.2d —-, 2008 WL 2242308 (N.Y.), 2008 N.Y. Slip Op. 04901, plaintiff was injured when he stepped into a defective tree well located on the sidewalk in front of the building owned by defendant. Plaintiff asserted that defendant, as the abutting landowner, violated section 7-210 of the Administrative Code of the City of New York that requires abutting landowners to maintain the sidewalk in a reasonably safe condition. Defendant successfully moved for summary judgment contending that the tree well was not part of the sidewalk as defined by the Administrative Code. In a 3-2 decision, the Appellate Division upheld the trial court’s decision.
Engaging in statutory interpretation, the Court of Appeals affirmed the Appellate Division’s decision. Noting that earlier Administrative Code sections 16-123 and 19-152 imposed a duty upon abutting landowners to repair and maintain the sidewalk, these sections did not create tort liability upon these landowners for their failure to do so. The enactment of section 7-210 of the Administrative Code imposed tort liability upon abutting landowners and “mirrored the duties and obligations of property owners…as set forth in Administrative Code sections 19-152 and 16-123.” Finding that Administrative Code sections 7-210, 16-123 and 19-152 neither define “sidewalk” nor mention tree wells, and guided by the principle that legislative enactments in derogation of the common law must be strictly construed, in “a close question” the Court found that the legislators did not consider tree wells when it shifted tort liability in creating section 7-210. Thus, as the Administrative Code is currently constituted, along with the curbstone of sidewalks, tree wells also remain the responsibility of the City of New York.