Second Department Affirms Finding of Liability Against City, Finding that City Owed Special Duty to Homeowners

In Stanciu v. Bilello, the plaintiff tripped over a sidewalk flag that was raised because of tree roots. The plaintiff sued the adjacent property owners and the owners, in turn, sued the City.  The owners argued that, before they could repair the sidewalk they were instructed by the City that the Department of Forestry needed to inspect the sidewalk around the tree and create a design plan. Although the owners allegedly made repeated attempts to schedule an inspection, no one from the City responded before the plaintiff was injured. 

A jury returned a verdict against the owners and the City in which the jury apportioned 35% of the fault to the owners and 65% to the City. The Second Department affirmed. The Court observed that, although Administrative Code 7-210 shifted liability for sidewalk defects from the City to the adjacent property owner, if the City owed a special duty to the owner the City could be held liable despite the fact that it owed no duty to the injured plaintiff. The existence of a duty to the adjacent property owner is premised upon a special relationship, which includes (1) the assumption by the City of an affirmative duty to act, (2) the failure of which could lead to harm (3) and there must be some form of contact between the City and the party (4) upon which the party justifiably relies.

Here, the Court found that the jury's determination that a special relationship existed between the City and the property owners was supported by legally sufficient evidence.