Vucetovic v. Epsom Downs, Inc.

45 A.D.3d 28, 841 N.Y.S.2d 301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 6, 2007
• Status: Published

Opinions

OPINION OF THE COURT

Buckley, J.

At issue on this appeal is whether tree wells are part of the “sidewalk” for purposes of Administrative Code of the City of New York § 7-210, which requires owners of real property to maintain abutting sidewalks in a reasonably safe condition.

Title 19, chapter 1 of the Administrative Code, “Streets and Sidewalks,” defines “sidewalk” as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians” (Administrative Code § 19-101 [d] [emphasis added]). Neither trees nor tree wells are “intended for the use of pedestrians,” and therefore they are not part of the sidewalk.

Administrative Code § 18-104 entrusts the Department of Parks and Recreation with “exclusive jurisdiction” over “[t]he planting, care and cultivation of all trees and other forms of vegetation in streets.” The “care” of the trees would necessarily entail the tree wells, which encompass soil and roots. Moreover, the statute makes evident that the trees are “in streets,” and thus something separate and distinct from streets. The Department is to “employ the most improved methods for the protection and cultivation” of trees under its “exclusive care and cultivation” (Administrative Code § 18-105), which would include tree wells, which exist for the protection of trees.

Accordingly, the order of the Supreme Court, New York County (Judith J. Gische, J.), entered September 21, 2006, which granted defendant’s motion for summary judgment dismissing the complaint, should be affirmed, without costs.