Decision Day

Trip Over a Fence Around a Sidewalk Tree Well: The City Is Out for Lack of Prior Written Notice, but the Private Defendants Stay In (Rahman v B & K Realty Assoc., LLC, 2d Dept 2026)

This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.

Bottom line

In New York City, an abutting property owner generally is not responsible under the sidewalk law for injuries in a City-owned tree well, but it may be if it created the dangerous condition there. Here, the Second Department reinstated a pedestrian’s claim against four private defendants over a wooden fence around a tree well, because they did not affirmatively show that they had not created the condition, while it affirmed dismissal against the City, which showed it had no prior written notice.

The case

Court
Appellate Division, Second Department
Decided
November 4, 2026
Case
Rahman v B & K Realty Assoc., LLC
Citation
2026 NY Slip Op 06475
Official text
Read the decision on the New York courts’ official reporter site

The facts

The plaintiff alleged that he fell after tripping over a wooden fence surrounding a tree well. He sued B & K Realty Associates, LLC, Maimonides Medical Center, Food City Markets, Inc., and Maimonides Newkirk Family Health Center (the court called them “the non-City defendants”) and the City of New York. The complaint alleged that the defendants were negligent in “causing and creating a hazardous condition by installing and building a fence surrounding the tree” (2026 NY Slip Op 06475, *1). The non-City defendants and the City separately moved for summary judgment, and the Supreme Court, Kings County, granted both motions. He appealed.

The holding

The Second Department modified the order by reinstating the claim against the non-City defendants, and otherwise affirmed. On the City: a municipality with a prior written notice law “cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” (id., quoting Canaday v Village of Wappingers Falls). The City showed that it had no prior written notice, and the plaintiff raised no issue of fact (id.). On the others: Administrative Code § 7-210 “does not impose civil liability on property owners for injuries that occur in city-owned tree wells” (id.), so an abutting owner may be liable there “only where he or she has affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area” (id.). The non-City defendants “failed to establish, prima facie, that they did not create the condition that allegedly caused the plaintiff’s injuries” (id.). They also “failed to eliminate triable issues of fact as to whether the presence of the subject fence across the tree well was open and obvious and not inherently dangerous under the circumstances surrounding the accident” (id.).

What changed

Nothing new: this applies settled law, including the Court of Appeals’ decision in Vucetovic v Epsom Downs, Inc. (10 NY3d 517 [2008]).

What it means

  1. In New York City, the owner of the building or lot that a sidewalk runs in front of (the “abutting” owner) generally must keep the sidewalk reasonably safe under Administrative Code § 7-210. That duty does not extend to a City-owned tree well.
  2. An abutting owner may still be responsible for a tree well if it created the dangerous condition, made negligent repairs, or caused the condition through a special use. Here, the private defendants did not show that they had not created the condition with the fence.
  3. The City generally cannot be held liable for a defect covered by its prior written notice law without that notice, unless an exception applies. Here, the City showed it had none.

Our view

Commentary by Frank N. Eskesen. This section is opinion.

This decision adds to our recent entries on who answers for a hazard on or beside a sidewalk. In Fung v Exxon Mobil Oil Corp. (Second Department, October 14, 2026), the abutting owner showed that the City was responsible for maintaining the fire hydrant whose base the plaintiff tripped on. In Matos-Matos v City of Yonkers (Second Department, October 28, 2026, noted in our Melendez entry), Yonkers had no prior written notice of a plank bordering a tree well. Here, the City was out for that reason, but the private defendants were not. In Fung, we noted that just because something sits within the sidewalk does not necessarily make it part of the sidewalk the abutting owner must maintain. This decision is the other side of that point: even where the sidewalk law does not reach, someone who created a hazard may have to answer for it. Two lessons. 1. After a fall on or near a sidewalk, if you are able, photograph exactly what you tripped on and the area around it, and get legal advice promptly. If the City may be responsible, a Notice of Claim generally must be served within 90 days. 2. For lawyers, find out early who put up a fence, guard, or planter in a tree well; the prior written notice rule may end a claim against the City, but not against whoever created the condition. On a New York City sidewalk, who put the hazard there can matter as much as whose sidewalk it is.

Topics

Sidewalks (Admin. Code 7-210)Notice of Claim and Municipal LiabilityPremisesSummary Judgment

Court: Second Department. Year: 2026. Statutes: Administrative Code of City of NY § 7-210. Result: modified.

Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided November 4, 2026. Posted November 11, 2026.

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