Opinion
Index No. 160875/2020 Motion Seq. No. 002
01-09-2024
CIPRIAN GONZALEZ, Plaintiff, v. GWB 179 REALTY LLC, AGCI INC., THE CITY OF NEW YORK, Defendants.
Unpublished Opinion
MOTION DATE 05/03/2023
PRESENT: HON. JUDY H. KIM, JUSTICE
DECISION + ORDER ON MOTION
JUDY H. KIM, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 69, 70, 71,72, 73, 74, 75, 76, 77, 78 were read on this motion for JUDGMENT - SUMMARY.
Upon the foregoing documents, the City of New York's motion for summary judgment dismissing plaintiffs complaint is denied for the reasons set forth below.
Plaintiff's cross-motion, pursuant to CPLR §3212, for an order “judicially determin[ing] that the area where [p]laintiff fell was on the sidewalk and not the curb or curbside and that defendant [GWB] as property owner had a legal duty to maintain said area” under Administrative Code §7-210, is denied as “an improper vehicle for seeking relief from a nonmoving party” (Hennessey-Diaz v City of New York, 146 A.D.3d 419, 420 [1st Dept 2017]; Asiedu v Lieberman, 142 A.D.3d 858, 858 [1st Dept 2016]).
In this negligence action, plaintiff alleges that on February 29, 2020, she tripped and fell on a defective condition on the sidewalk abutting 657 West 179th Street, New York, New York (the "Property"), sustaining injuries (NYSCEF Doc. No. 51 [Compl. at ¶16]). Plaintiff asserts claims against defendants the City of New York (the "City"), GWB 179 Realty LLC ("GWB"), and AGCI Inc. ("AGCI"), alleging that these defendants caused and created the defect and failed to remedy same (Id. at ¶¶17, 35). On June 24, 2022, GWB interposed an answer admitting ownership of the Property (NYSCEF Doc. No. 30 [Answer at ¶3]).
The City now moves, pursuant to CPLR §3212, for summary judgment dismissing this action and all crossclaims as against it on the grounds that it is exempt from liability under Administrative Code §7-210. In support of its motion, the City submits: (i) the affirmation of David Atik, an employee for the New York City Department of Finance ("DOF"), in which he attests that a review of the DOF's Property Tax System database reveals that that the Property was not owned by the City on the date of plaintiff s accident and that the Property is classified as an "office building" (NYSCEF Doc. No. 62 [Atik Affirm, at ¶¶4-6]); (ii) the affidavit of David Schloss, Senior Title Examiner for the New York City Law Department, attesting to a title search revealing that defendant GWB held title to the Property at the time of plaintiff s accident (NYSCEF Doc. No. 63 [Schloss Aff. at ¶¶l -3]); (iii) the affidavit of Sharabanti Aich, an employee for the New York City Department of Transportation ("DOT"), detailing the results of a record search performed for the sidewalk of West 179th between Broadway and Wadsworth Avenue for the two-year period prior to and including the date of the subject incident, which produced, as relevant here, twenty-seven permits, only three of which, the City's counsel asserts, were issued to City contractors (NYSCEF Doc. No. 61 [Aich Aff. at ¶¶3-4]); and (iv) the DOT records produced by Aich's search (NYSCEF Doc. No. 60 [DOT Records]).
On February 10, 2021, AGCI interposed an answer asserting crossclaims against the City for indemnification and contribution (NYSCEF Doc. No. 52 [Answer]).
Plaintiff opposes the City's motion, arguing that summary judgment is premature because depositions have yet to be conducted and an issue of fact exists as to whether the City performed work at the subject location and created the alleged defect.
The Court rejects plaintiff's contention that these affidavits are inadmissible. Atik's affirmation complies with CPLR §2106(a). Though Schloss's out-of-state affidavit lacks a certificate of conformity, plaintiff does not point to any prejudice arising from its consideration (See Matapos Tech. Ltd. v Cia. Andina de Comercio Ltda, 68 A.D.3d 672, 673 [1st Dept 2009]; see also Charnov v New York City Bd. of Educ., 171 A.D.3d 409, 410 [1st Dept 2019]).
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]). The City has failed to carry its burden.
The City has demonstrated, through the Atik affirmation and Schloss affidavit, that it did not own the Property at the time of plaintiffs accident and that the Property was not a one-, two-, or three-family residential property (See e.g., King v City of New York, 2014 NY Slip Op 31428[U], *4 [Sup Ct, NY County 2014]). It is also undisputed that the GWB owned the Property at the time of plaintiff s accident (See NYSCEF Doc. No. 30 [Answer at ¶3]).
However, while the City has established that it bears no liability for the subject condition under Administrative Code §7-210, it remains an open question whether any negligence on its part created the defective condition or if it made special use of the sidewalk where plaintiff fell (Yarborough v City of New York, 10 N.Y.3d 726, 728 [2008]). Contrary to the City's contention, it is the City's burden on this motion to demonstrate that it did not cause or create this defective condition (See Rosa v Columbus Parkway Associates, 2020 NY Slip Op 33312(U) [Sup Ct, NY County 2020] [while Administrative Code §7-201 expressly places the burden on plaintiff to establish that the City caused and created a defect once the City establishes a lack of prior written notice, no such burden shifting exists under Administrative Code §7-210]).
While the City is correct that a permit, alone, is not proof that work was performed, the twenty-seven permits produced by the City-some of which pertain to work on the subject sidewalk-are sufficient to create an issue of fact as to whether work performed at the site of plaintiffs fall created the defective condition (See e.g,, Plana v Coalition for the Homeless, Inc., 2013 NY Slip Op 32321 [U] [Sup Ct, NY County 2013]; see also Millington v City of New York, 2019 WL 2568075 [Sup Ct, NY County 2019]). The City submits no affidavit or EBT testimony establishing the precise location of the work performed pursuant to these permits (or that no work was performed) (Cf. Vega v City of New York, 193 A.D.3d 560, 561 [1st Dept 2021]). The assertion by the City's counsel that the permits issued to City contractors did not involve work at the site of plaintiffs fall is insufficient to do so (See e.g., Ross v DD 11th Ave., LLC, 109 A.D.3d 604, 606 [2d Dept 2013]; see also Aranovich v City of New York, 2008 NY Slip Op 33760[U], *3 [Sup Ct, NY County 2008]).
Accordingly, it is
ORDERED that the City of New York's motion for summary judgment is denied; and it is further
ORDERED that within ten days from the date of this decision and order, counsel for plaintiff shall serve a copy of this decision and order, with notice of entry, upon defendant the City of New York as well as the Clerk of the Court (60 Centre St., Room 14 IB) and the Clerk of the General Clerk's Office (60 Centre St., Rm. 119); and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E- Filing" page on this court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.