Mauro Lilling Naparty LLP, Woodbury (Kathryn M. Beer of counsel), for appellants.

Brownell Patners PLLC, New York (Shanna R. Torgerson of counsel), for respondent.

TOM, J.P., RICHTER, ANDRIAS, GESMER, SINGH, JJ.

Order, Supreme Court, New York County (Geoffrey D.S. Wright, J.), entered December 5, 2016, which, inter alia, granted the motion of defendant Theresa M. Worner Herbst for summary judgment dismissing the cross claims against her by defendants 320 East 50th Street Realty Co. and Daniel Rapaport, unanimously reversed, on the law, without costs, and the motion denied to that extent. Plaintiff's appeal from the order dismissed, without costs, as abandoned.

Plaintiff alleges that she tripped and fell over a mis-leveled sidewalk slab between properties owned by Herbst and by appellants. Herbst moved for summary judgment dismissing the complaint and cross-claims as against her on the ground that she is exempt from personal liability for failure to maintain the sidewalk because her property is a "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (Administrative Code of the City of New York § 7–210[b] ; see Aracena v. City of New York, 136 A.D.3d 717, 717–19, 25 N.Y.S.3d 266 [2d Dept.2016] ). Administrative Code § 7–210(b) is to be strictly construed as a statute creating liability in derogation of the common law ( Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 520–21, 860 N.Y.S.2d 429, 890 N.E.2d 191 [2008] ).

The statute does not expressly contain a primary residence requirement as part of the owner-occupied exemption (see Dimitratos v. City of New York, 25 Misc.3d 1224, 2009 Slip Op. 5229 [U], 2009 WL 3805612 [Sup.Ct., N.Y. County] ), but the term "owner occupied" generally is used to mean that the owner regularly occupies the property as a residence. Further, the legislative history shows that the exemption recognizes "the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair" ( Coogan v. City of New York, 73 A.D.3d 613, 614, 900 N.Y.S.2d 645 [1st Dept.2010] [emphasis added] ).

Here, Herbst testified that the New York property is not her primary residence, which is in Israel, and that she also has a property in New Hampshire, which is where her driver's license was issued and she receives most of her mail. Her testimony indicated that she spent about three months in the United States in the year the accident occurred, and divided that time between New Hampshire and New York. Accordingly, Herbst did not demonstrate prima facie that she regularly occupies the New York property as a residence, so as to be entitled to the benefit of the exemption provided by Administrative Code § 7–210 as a matter of law (see Howard v. City of New York, 95 A.D.3d 1276, 1277, 944 N.Y.S.2d 886 [2d Dept.2012] ; Acevedo v. Rodriguez, 20 Misc.3d 1122[A], 2008 N.Y. Slip Op. 51518[U], 2008 WL 2805881, 2008 WL 2805881 [Sup.Ct., Richmond County] ).

Since plaintiff abandoned her appeal by failing to perfect ( 22 NYCRR 600.11 [a] [3] ), and defendants 320 East 50th Street Realty Co. and Daniel Rapaport have not argued that they are aggrieved by the dismissal of the complaint as against Herbst, we decline to reinstate the complaint as against Herbst ( Rodriguez v. Heritage Hills Society, Ltd., 141 A.D.3d 482, 36 N.Y.S.3d 15 [1st Dept.2016] ).