Wade Clark Mulcahy LLP

As a best practice, property owners in New York should keep records concerning the condition of their property to mitigate potential premises liability. This is particularly true where utility work is taking place on the property or an adjacent sidewalk. Even when facing a seemingly questionable lawsuit, unless an owner can document the condition of its property and the work being performed, property owners face an uphill battle in dismissing a complaint.

This issue was addressed in the Second Department’s recent decision in Samodurova v. Consolidated Edison Co. of N.Y., Inc. In that case, the plaintiff was injured when she allegedly tripped and fell over the edge of a metal plate that was located over an opening in the sidewalk near a Quick Check convenience store in Brooklyn. Con Edison was performing work on the sidewalk and had placed the metal plate over the opening. Two of the defendants, Fratelli Realty and Quick Check, moved for summary judgement showing that they did not own, create, maintain, or use the subject metal plate. The Supreme Court agreed and granted the motions.  

The Second Department affirmed, finding that the defendants demonstrated, prima facie, that Con Edison was responsible for the plate based on testimony showing that Con Edison opened up that plate to run power cables and photographs showing the plate with Con Edison’s logo. The defendants also pointed to testimony showing that the defendants kept the sidewalk in good repair and that none of their employees directed or assisted Con Edison’s sidewalk work. Accordingly, the Court found that the Supreme Court had properly granted the defendants’ motion for summary judgment.

This decision highlights several important risk management practices for property owners. The first is to document the condition of property and adjacent sidewalks before, during and after utility work, particularly if the work itself creates a potentially dangerous condition. Owners should also avoid having any involvement in the work to avoid potential liability arising from the work. Taking these steps could provide the basis for a dismissal of premises liability lawsuits.