GOLDSTEIN v. ARC ON 4TH ST., INC.

Full title: SHARON GOLDSTEIN, Plaintiff, v. ARC ON 4 TH STREET, INC., COOPER SQUARE…

Court: Supreme Court of the State of New York, New York County

Date published: Mar 1, 2010

2010 N.Y. Slip Op. 30406 (N.Y. Sup. Ct. 2010)

Opinion

106770/09.

March 1, 2010.

DECISION/ORDER

CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:________________________________________

1 2 3 4

Papers Numbered Notice of Motion and Affidavits Annexed ............. Notice of Cross Motion and Answering Affidavits ..... Affirmations in Opposition to the Cross-Motion ...... Replying Affidavits ................................. Exhibits ............................................

Plaintiff commenced the instant action to recover damages for personal injuries she allegedly sustained when she tripped and fell on the sidewalk located between 57 East 5^th Street and 59 East 4^th Street on November 2, 2008. The sidewalk where she tripped was in front of premises owned by defendant Arc on 4^th Street, Inc. and those premises are not a one-, two-or three-family home. Defendant the City of New York (the "City") now moves for summary judgment dismissing the complaint on the ground that the City is not liable pursuant to Administrative Code § 7-210. For the reasons set for the below, defendant City's motion is granted.

The City of New York is not liable for injuries arising from defective sidewalk conditions pursuant to § 7-210 of the Administrative Code, which shifted liability for sidewalk defects from the City to the adjacent landowner except where the adjacent property is an owner-occupied one-, two-or three-family dwelling. Section 7-210 provides in pertinent part:

b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.

c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting 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) in a reasonably safe condition.

In the instant case, the City makes out its prima facie case that the abutting property did not fall into one of the exceptions enumerated by § 7-210. It is undisputed that the City did not own the abutting property. The City has also established that the abutting property was not an owner-occupied residential property with three or fewer units by submitting a printout from the RPAD database, which is sufficient to establish the character of the abutting property. See Dimitratos v City of New York, 25 Misc.3d 1224(A) (Sup Ct, New York Cty, 2009).

However, the City can still be held liable for injuries resulting from a defective sidewalk condition that it "caused or created" or if the sidewalk was used for a "special use" which conferred a benefit upon the City. See Scavuzzo v City of New York, 47 A.D.3d 793 (2^nd Dept 2008); Fernandez v City of New York, 19 Misc.3d 1135(A) (Sup Ct, Kings Cty 2008). If plaintiff claims that the City caused or created the condition, plaintiff must show that the City created the defect through an affirmative act of negligence "that immediately resultp[ed] in the existence of a dangerous condition." Yarborough v City of New York, 10 N.Y.3d 726 (2008) (citations omitted); see also Scavuzzo, 47 A.D.3d 793, 794-95. In Yarborough, the Court of Appeals held that the City should be granted summary judgment because plaintiff failed to establish that the City had negligently performed a pothole repair which immediately resulted in a dangerous condition. See 10 N.Y.3d 726.

Plaintiff fails to raise an issue of triable fact as to whether the City caused or created the condition. Although she submits permits issued for work done in the vicinity of the subject accident, she fails to establish that the City did any work at the site itself. She also fails to submit any evidence that the City employed the sidewalk for a "special use."

Finally, plaintiffs argument that summary judgment is premature is unavailing. "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." Davila v New York City Transit Auth., 66 A.D.3d 952, 953-54 (2^nd Dept 2009); see also Brown v Bauman, 42 A.D.3d 390, 392-93 (1^st Dept 2007). Plaintiff fails to offer any basis other than speculation for its claim that further discovery would uncover facts sufficient to deny summary judgment.

Accordingly, defendant City's motion for summary judgment is granted and plaintiffs complaint is dismissed as against the City only. This constitutes the decision and order of the court.