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ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant Time Warner’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although the sidewalk defect was outside 12 inch area around the metal box cover in the sidewalk which the Rules of the City of New York (RCNY) require Time Warner to maintain, there were questions of fact whether Time Warner created the defect or had constructive notice of the defect:

Time Warner … has a common-law duty not to create a hazardous condition on the sidewalk … , and, further, as a special user of the public sidewalk, has a “duty to maintain the area of the special use in a reasonably safe condition”… . Additionally, constructive notice may be imputed where, as here, there is a duty under the administrative code to conduct inspections of the box covers … .

Here, the evidence, including the testimony of Time Warner’s construction manager, shows that Time Warner did not regularly inspect its box covers, as required by the regulation it relied upon … , and that, if the area had been inspected, Time Warner would have repaired the cracked sidewalk condition around the box cover and replaced the sidewalk flag, which extends to the spot where plaintiff tripped. Time Warner also submitted the affidavit of an engineer who measured the distance between plaintiff’s fall and the box cover as more than 12 inches, but did not address whether or not the metal box installed in the sidewalk created the cracked condition around the box cover that extended to the spot where plaintiff fell. Furthermore, the fact that Time Warner did not install the box cover itself has no bearing since the duty to maintain the area of the special use “runs with the land as long as it is maintained for the benefit of a special user” … . Robles v Time Warner Cable Inc., 2018 NY Slip Op 08244, First Dept 12-4-18

NEGLIGENCE (SLIP AND FALL, ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))/SPECIAL USE (SIDEWALKS, SLIP AND FALL,  ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED  IN THIS SLIP AND FALL CASE (FIRST DEPT))

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