August 9, 2018

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023

Richard W. Berne
Richard W. Berne

WESTCHESTER COUNTY, New York ― Richard W. Berne, a partner in the New York City office of Quintairos, Prieto, Wood & Boyer, P.A. (QPWB), received a summary judgment and dismissal on behalf of his client, a landowner.

On February 1, 2015 the plaintiff was walking with her boyfriend on the sidewalk in front of a large apartment building at approximately 6:30 p.m.  According to her, she stepped into a hole in the sidewalk and fell. Plaintiff alleged that as a result of this fall, she suffered cervical and lumbar herniations, and a sprained wrist and sprained ankle.  She underwent a cervical discectomy and fusion with allograft and plating approximately 10 months later.

Plaintiff provided a photograph taken by her boyfriend the next day, showing the spot while it was covered by snow that obscured the depth of the hole; later, pictures taken by her attorney’s investigator showed a patched hole in the area where the hole had been.  Plaintiff sued the City of Yonkers, which owned the sidewalk, and sued the insured as the “adjacent landowner.”  In New York State, adjacent landowners (other than 1, 2 or 3 family owner occupied homes) are legally responsible to maintain the adjacent sidewalks, including snow removal and repair of defects.  The law however, makes the landowner liable to the governmental entity that owns the sidewalk, not to pedestrians injured unless: 1) There is an ordinance or local regulation making the landowner liable in tort to pedestrians; 2) the landowner made a special use of the area of sidewalk; or 3) the landowner caused or created the alleged defect.

In New York City, there is an ordinance (NYC Administrative Code) that creates this tort liability.  The City of Yonkers has no such ordinance or regulation.  Plaintiff conceded that the insured had made no special use of the sidewalk and relied only on the “caused or created” theory, arguing that the existence of the rapid repair suggested that the landowner had done the patching (which the insured denied), and that a previous defective patch led to the hole being exposed.

On summary judgment, the Court dismissed the case against the City of Yonkers since its liability required prior written notice of the defect, and there was none.  The Court granted the defense’s motion, concluding that plaintiff’s contention – that there was a fact question on whether the insured caused or created the condition – was nothing more than conjecture.  The case was dismissed against all defendants.

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Richard W. Berne is a partner in the New York office.  For the past 40 years he has represented clients and tried cases in the areas of personal injury, wrongful death, nursing home defense, medical malpractice, insurance defense litigation, insurance coverage disputes, general liability, workers’ compensation defense, criminal defense, governmental liability, and police misconduct.

About QPWB

Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 370 lawyers serving clients from 21 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.