| City of New York v B Green Constr. Corp. |
| 2021 NY Slip Op 00004 |
| Decided on January 05, 2021 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: January 05, 2021
Before: Renwick, J.P., Gische, Kern, Oing, Mendez, JJ.
Index No. 450230/15 Appeal No. 12750 Case No. 2018-21819
v
B Green Construction Corp., Defendant-Respondent.
James E. Johnson, Corporation Counsel, New York (D. Alan Rosinus, Jr., of counsel), for appellant.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about December 6, 2017, which granted defendant's CPLR 3211(a)(3) motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.
The City of New York commenced this action alleging that defendant negligently damaged five City trees while repairing a sidewalk. "The City has the general capacity to sue for the negligent destruction of its property" (City of New York v Tri-Rail Constr., Inc. 34 NY3d 963, 964 [2019]; see General City Law § 20[1]; New York City Charter § 394[c]). As defendant acknowledges, Tri-Rail Constr., decided after the Supreme Court order was made, controls here. It held that the City of New York has authority to sue for damages for the negligent destruction of City trees. The provisions defendant cites, former New York City Charter § 533 and 56 RCNY 1-07, which allow for criminal and civil penalties but do not expressly discuss or eliminate a common-law right of action, "do not abrogate the City's claim for damage to its property" (Tri-Rail Constr. at 965; see Asured Guar. [UK] Ltd. v J.P. Morgan Inv. Mgt. Inc., 18 NY3d 341, 350-51 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 5, 2021