Building owner not liable for cellar fall

Via Italia. Image Credit: Google Maps.

Pedestrian fell through cellar doors on sidewalk on West 46th Street.  On November 29, 2017, John Harrington was walking on the sidewalk in front of a building located at 45 West 46th Street in Manhattan when he fell through the cellar doors and suffered injuries.

The building has multiple tenants including a first-floor restaurant, Via Italia, that utilizes the building’s basement. The basement is accessed by cellar doors that open out from the sidewalk in front of the building.

Harrington sued the building owner and the restaurant, claiming liability under the New York City Administrative Code for failure to maintain the cellar doors in a reasonably safe condition. The building owner and the restaurant blamed each other, asserting that the other was responsible for maintaining the cellar doors. The restaurant also argued that the building owner was liable for failing to post signage to warn pedestrians of the cellar doors.

The owner of the building moved to dismiss both Harrington and the restaurant’s complaints. New York County Supreme Court Justice Louis L. Nock denied the owner’s motion and the owner appealed.

The Appellate Division, First Department reversed the Supreme Court’s decision, dismissed Harrington and the restaurant’s complaint against the building owner, and upheld Harrington’s complaint against the restaurant.

The Court found that there was no evidence that the cellar doors in the sidewalk were in an unsafe condition or in violation of the Administrative Code, or that the building owner negligently constructed, maintained, or repaired the cellar doors in the sidewalk. The Court also rejected the claim that the building owner had duty to prevent the pedestrian’s injuries by providing, warning lights or signals. The court found that the cellar doors only became unsafe when the restaurant’s employee opened the doors improperly.

Harrington v. Azogues Corp, 138 N.Y.S.3d 338 (1st Dep’t 2021).

By: Nicholas Negron (Nicholas is a New York Law School student, Class of 2022.)


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