Fernandez v. City of New York
Defendant, Rite Aid, moved for an order dismissing plaintiff’s slip and fall complaint, alleging that the City of New York was on notice of the broken sidewalk and should be responsible for fixing it.
Administrative Code of NYC states that the property owner is responsible for maintaining the sidewalk in a safe condition. In order for the city to be liable for a defective sidewalk, they must have caused and created the defective condition that caused the plaintiff’s accident. Rite Aid employed trial testimony of a supervisor for the NYC Department of Environmental Protection who stated that the condition of the sidewalk appeared to be a result of a fire hydrant malfunctioning or leaking.
Rite Aid failed to provide any evidence that definitively proves that the City is responsible for the alleged defect under the theory of cause and create. They also failed to establish the City’s affirmative negligence and that the condition alleged caused the sidewalk to immediately break and not simply erode over time. Also Rite Aid failed to demonstrate that the sidewalk in proximity to the fire hydrant falls within the special use exception.
Accordingly, the Supreme Court denied the motion for summary judgment.