The plaintiff provided the defendant with a verified bill of particulars dated November 10, 2009. In paragraphs fourteen and fifteen, the plaintiff states that she tripped as a result of an open abandoned utility hole in the sidewalk in front of the premises located at 236 Irving Avenue. At her deposition conducted on August 10, 2010, plaintiff testified that the aforementioned defect was a break “where they put the gas in, where they put in the tube”.
The defendant may rely on the admissions contained in the plaintiff’s verified bill of particulars and deposition testimony as evidence of the admitted facts. The personal injury defendant does not dispute that the defect is as an access point to a gas main. Therefore, the defendant may rely on plaintiff’s admission that the defect is an access point to a gas main.
The defendant contends that NYCRR §7-210 does not apply to him because he did not create and is not responsible for maintaining the access point to the gas main in the sidewalk in front of his property. Inasmuch as the subject property is an eight family property within the confines of the City of New York, the defendant is not exempt from the requirements of NYCRR §7-210. Although not specifically articulated by the defendant the question that remains is whether an access point to a gas main contained within a public sidewalk is considered part of the sidewalk for purposes of applying NYCRR §7-210.
The issue presented is similar to the argument advanced by an adjoining property owner in one case. In that case the defendant ultimately established successfully that a tree well contained within a public sidewalk is not considered part of the sidewalk for purposes of applying NYCRR §7-210. Similarly, the Appellate Division, First Department determined that sidewalk grates are not considered part of the sidewalk and that NYCRR §7-210 does not impose liability upon a property owner for failure to maintain a sidewalk grate in a reasonably safe condition.
The question is resolved by the holding. The Appellate Division, Second Department held that summary judgment as a matter of law may be granted to the defendant when he establishes prima facie that he did not have exclusive control over the gas valve cover on which the plaintiff allegedly tripped and fell. The court agrees with the defendant’s claim that he has no responsibility for the repair and maintenance of the access point of gas mains. The court further finds that the access point of the gas main is outside of the ambit of NYCRR §7-210. Therefore the defendant has demonstrated prima facie that he neither controlled nor is he responsible for the condition of the access point to the gas main.
The burden now shifts to the plaintiff to produce evidentiary proof sufficient to establish the existence of dog bite material issues of fact. Plaintiff’s attorney submitted an affirmation in opposition to the defendant’s motion for summary judgment, which restates the substance of the complaint and alleges that the defendant’s legal arguments on tree wells are distinguishable and irrelevant to the present factual scenario. Plaintiff’s opposition papers do not raise a triable issue of fact.
Accordingly, the court held that the defendant’s motion for an order granting summary judgment in his favor on the issue of liability and dismissing plaintiff’s complaint is granted.