As noted in our earlier article, "Why Many Defective Sidewalk Cases in New York Are Doomed to Fail," back in 2003, New York City's legislature adopted Administrative Code 7-210 which transferred liability for maintaining sidewalks from the City of New York to the abutting landowner, thereby paving the way (no pun intended) for the City to save significant money in defending personal injury claims arising out of a trip and fall over defective sidewalks. (Previously, the City was statutorily required  to "install, construct, repave, reconstruct and repair the sidewalk flags" as well as to "remove the snow or ice, dirt, or other material from the sidewalk"). What the statute left unclear, however, was who was responsible to maintain the tree wells that either cut into or abut New York City's sidewalks.

Enter New York's highest court, the Court of Appeals.

In Vucetovic v. Epsom Downs, Inc., the plaintiff was injured when he fell over some cobblestones that formed the border of a tree well in midtown Manhattan. In affirming the Appellate Division's decision that dismissed the complaint as against the Epsom (who was the owner of the abutting property), the Court of Appeals stated as follows:

"Acknowledging that this case presents a close question, we are constrained to agree with the courts below that section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells. In reaching this result, we are guided by the principle that "legislative enactments in derogation of common law, and especially those creating liability where none previously existed," must be strictly construed (Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200, 206 [2004] [internal quotation marks and citation omitted]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 301 [c])."