It’s Not My Manhole Cover

CHRISTIAN JONES ET AL. V. VORNADO NEW YORK RR ONE L.L.C. ET AL.

WHAT HAPPENED Christian Jones, a California resident, was visiting New York and staying at the Warwick Hotel in the summer of 2015. He and his daughter left the hotel to have lunch when he realized he forgot his camera. His daughter continued on to the restaurant, and Jones went back to the hotel to get the camera. With camera in hand, Jones set out to meet his daughter, but when he reached the corner of 53rd Street and Seventh Ave. he tripped and fell over a Con Ed manhole cover (weighing between 250 and 300 pounds) that was on the sidewalk, partially covered with a garbage can on top of it. The manhole cover was on the sidewalk in front of the Tower 53 condominium, and Jones and his spouse sued everyone - Tower 53, its managing agent and Con Ed - for personal injury and loss of consortium. This case is an appeal of the original decision, which had dismissed the claims against Tower 53 and its managing agent on the grounds that Con Ed was solely responsible for maintaining and removing manhole covers.

IN COURT The Appellate Division distinguished between the responsibility to maintain manhole covers and the responsibility to maintain the sidewalk on which the manhole cover had been placed. Under NY Administrative Code Sections 7-210(a) and (b), a building owner has a nondelegable duty to maintain and repair the sidewalks abutting its building. Con Edison had a duty to maintain manhole covers in the street, which duty may have impliedly extended to maintaining covers located or placed on the sidewalk as well. However, Con Edison’s responsibility did not preclude concurrent responsibility by the landowner. Tower 53 and its managing agent continued to exercise control over the sidewalk. Neither Tower 53 nor its managing agent could demonstrate that they didn’t know about the manhole cover, even though Con Edison recognized that it could not claim that the Condominium or its managing agent contributed to causing the accident in real life. Thus the dismissal was reversed.

COUNSEL for Mr. Mrs. Jones  STEVEN FALKOFF Rosenberg Minc Falkoff & Wolff; for the condo and its managing agent KIEL DORAN Sjoquist Law Offices: for Con Ed STEPHEN BREWI Con Ed and DANIEL RATNER Heidell Pittoni Murphy & Bach: Justice Sabrina Kraus

TAKEAWAY The court made a subtle distinction between control of the street and the sidewalk that – at least at the motion to dismiss stage – kept everyone potentially responsible for sidewalk conditions in the case. For co-ops and condos and their managing agents, this is a cautionary warning to pay close attention to any obstacles laying on the sidewalk abutting your property, even if these obstacles appear to be someone else's responsibility. Recent cases also have confirmed that a property owner could not disclaim its nondelegable duty to maintain sidewalks to a third party by virtue of a lease provision that transferred all responsibility for the abutting sidewalk to a commercial tenant. (At best they would have a cross-claim for indemnification.) This case is consistent with those rulings.