On the Sidewalks of New York

Tree wells are not a part of sidewalks, at least not for purposes of Administrative Code of the City of New York § 7-210, which requires owners of real property to maintain abutting sidewalks in reasonably safe condition, or so said the First Department, in Vucetovic v. Epsom Downs, Inc., which was decided on September 6, 2007.

The court noted that, pursuant to Administrative Code § 19-101[d], a "sidewalk" is "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." The court concluded that tree wells are not intended for pedestrian use, "and therefore they are not part of the sidewalk."

Two judges filed a lengthy dissent, pointing to § 7-210(b) which reads, in pertinent part, that "[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk." The dissenters concluded that the Code expressly acknowledges that an owner's duty extends beyond merely repairing sidewalk flags or removing ice and snow, and that it runs to tree wells.