DeJesus v City of New York

[*1] DeJesus v City of New York 2009 NY Slip Op 51925(U) [24 Misc 3d 1249(A)] Decided on August 27, 2009 Supreme Court, Kings County Velasquez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 27, 2009
Supreme Court, Kings County

Milagros DeJesus, Plaintiff,

against

The City of New York, Robert Riggs, and Elizabeth Riggs, Defendants.



27787/06



Plaintiff is represented by the firm of Talisman & Delorenz, P. C., Dawn M. Ninnisi, of Counsel; Defendants Riggs are represented by the firm of Russo, Keane & Toner, LLP: and Defendant City of New York is represented by Michael A. Cardozo, Corporation Counsel of the City of New York, Kathrine M. Borowiecki, of counsel.

Richard Velasquez, J.

On February 3, 2006, plaintiff suffered various injuries when she was caused to trip and fall allegedly due to a defective condition of the sidewalk area in front of the premises located at 123 Nevins Street, Brooklyn, New York. Plaintiff was produced for a deposition on November 20, 2007 and at that deposition four photographs were identified by the plaintiff and marked as exhibits. Plaintiff testified that she tripped over a "sidewalk [that] was a little bit high."[DeJesus deposition transcript: page 28, lines 14-16]. Plaintiff then identified an area on the photograph marked as "Exhibit D", and circled the area where she alleged that she fell. A review of that photograph by the Court indicates that the circle encompassed some stones forming the tree well as well as the sidewalk.

The property located at 123 Nevins Street, defendants Riggs' residence at the time of the incident, is claimed to be a four-family dwelling by defendant City of New York. Defendants Riggs' claim that the dwelling was a four-family dwelling on the date of their purchase of the property, but that it was converted to a two-family dwelling before February 3, 2006.

Contentions of the Parties

[*2]Defendants Riggs move the Court by Notice of Motion for an Order pursuant to CPLR §3212 dismissing the Complaint and any and all cross claims against them and directing that summary judgment be entered in their favor on the grounds that the plaintiff was caused to trip and fall, allegedly, as a result of the cobblestones that surround and are part of the tree well, and that the premises owned by the defendants on the date of the incident was a two family dwelling and, therefore, falls within the exception to Administrative Code of the City of New York §7-210.

Defendant City of New York also moves the Court by Notice of Motion for an Order pursuant to CPLR §3212 dismissing the complaint and granting it summary judgment dismissing all claims, and cross-claims against defendant City on the ground that the dwelling located at 123 Nevins Street is, allegedly, a four family residence and as such it does not fall within any of the exemptions set forth in §7-210. The defendant City also contends that the plaintiff was caused to trip and fall by a defect in the sidewalk only, and not the cobblestones surrounding the tree well and relies upon plaintiff's deposition testimony to support this claim.

Defendant City contends that it is not liable as it made no repairs to the sidewalk area where plaintiff's trip and fall occurred, and that it did not create the condition that caused plaintiff's accidentthrough any affirmative act. Defendant City alleges plaintiff testified that her "shoe tripped with the sidewalk", and that at no time did the plaintiff testify that anything other than the sidewalk caused the subject occurrence. Thus, defendant City contends, it may not be held liable for the sidewalk condition at issue.

Discussion

In support of its motion to dismiss, defendant City submitted a copy of the Certificate of Occupancy for 123 Nevins Street, dated March 19, 1985, which indicates that there are four 1 family apartments on the premises. Also submitted is a copy of Robert Riggs affidavit which states in relevant part that he and his wife, co-defendant, purchased the property in February 1998 and lived in one of the apartments until 2006. When he and his wife purchased the property, he states in said affidavit, it was a four-family home. During the course of ownership, however, it was converted to a two-family home, and that the premises were strictly used for residential purposes. In addition, attached to defendant City's motion is a copy of defendants Riggs' Response To Plaintiff's Notice to Admit in which defendants admit that the aforesaid property was a four (4) family dwelling.

Defendants Riggs offered the transcript of defendant Robert Riggs' deposition testimony in support of its motion to dismiss on the ground that the premises is currently and was at the time of the incident on February 3, 2006, a two-family dwelling. At the time of the incident, according to Mr. Riggs' testimony, the third and fourth floors were occupied by defendants Riggs in one of the two family units in the premises. The first and second floor comprised the second of the two apartments in the dwelling. Defendants also provided a copy of a Certificate of Occupancy dated June 9, 2006, approximately four months after the February 3, 2009 incident, which states that the dwelling was "altered" and was now a residential two family dwelling. The date of the application for permits from the Department of Buildings to "reduce occupancy to a two family residence including the removal of a stoop, and kitchens", was April 24, 2000. Defendant Robert Riggs testified [*3]at his deposition that the actual renovation work commence and was completed during 2003-2004.

Applicable Law

A motion for summary judgment is a drastic measure and to be used sparingly (Wanger v. Zeh, 45 Misc 2d 93 [Sup.Ct., Albany County], aff'd 26 AD2d 729 [3rd Dept 1965] ). Summary judgment is proper when there are no issues of triable fact (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986] .) Issue finding rather than issue determination is its function (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957] .) The evidence will be construed in the light most favorable to the one moved against (Weiss v. Garfield, 21 AD2d 156 [3d Dept 1964] ).

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. The moving party must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. (Zuckerman v City of New York, 49 NY2nd 557 [1990].) Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v.Algaze, 84 NY2d 1019 [1995]).

Defendant City contends that there is no basis for it to be found liable because plaintiff allegedly fell after tripping over a defect in the sidewalk only, and §7-210 shifts liability from defendant City to defendants Riggs. Plaintiff contends that the incident at issue happened in "sidewalk area" which could include a tree well, curb, or other fixture. Defendants Riggs contend that their dwelling fell within the exemptions provided in §7-210 as their premises was in "actual use" as a two-family dwelling on February 3, 2009.

Relevant portions of Administrative Code §7-210 provide as follows:

Subsection b: Notwithstanding any other provisionof law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, 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. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to 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.

Although defendant City maintains that because the Certificate of Occupancy for 123 Nevins Street indicates that it was a four-family dwelling in 1985, and because defendants Riggs, in their Notice to Admit dated March 1, 2007, admitted that 123 Nevins Street was a four family dwelling, it has established a prima facie [*4]entitlement to summary judgment as a matter of law. Defendants Riggs, however, have come forward with testimony and documentary evidence sufficient to rebut defendant City's prima facie entitlement, and defendants Riggs have raised the issue of "actual use" of the premises on the date of the incident.

Actual Use

In a series of recent Second Department cases, the concept of "actual use" of premises has emerged as an element in the definition of the exemption authorized in Administration Code§ 7-210; that is, whether the dwelling is a one-, two- or three-family residential dwelling, in whole or part owner occupied. Acevedo v. Edwardo Rodriguez, 20 Misc 3d 1122(A), 867 NYS2d 372, 2008 WL 2805881 (NY Sup.) is just such a case. In Acevedo, defendant Rodriquez moved for summary judgment on the ground that his one-family home is owner occupied and used exclusively for residential purposes. In the defendant City's motion for summary judgment, it utilized its Department of Finance Real Property Assessment Division ("DOF") database to show that the real estate tax bills pertaining to the subject property are mailed to defendant Rodriguez in Florida. In opposition to the City's motion, defendant Rodriquez claimed, inter alia, that no evidence was offered by the City to show that his "winter home" in Florida is his legal residence.

The Acevedo Court found that the City had failed to make a prima facie showing of entitlement to judgment as a matter of law, as the only evidence set forth to show that Rodriquez does not occupy (or actually use) the house in question as his primary residence is an inference based on the print-out from the DOF, and that document does not constitute competent evidence proving the actual legal residence of the defendant is in Florida. Further, plaintiff's opposition to defendant Rodriquez' motion for summary judgment claims that Rodriquez was served with the summons and complaint herein, in Florida, is sufficient to raise a triable issue of fact as to whether the subject residence is, in fact, owner occupied.The Court found that whether or not the Rodriquez' premises fall within the single family owner-occupied exception presents a question of fact for the jury.

Aurelien v. City of New York, 15 Misc 3d 1116(A), 839 NYS2d 431, 2007 WL 1012978 (N.Y.Sup.) also discusses "actual use" as a factor to be considered where non-residential use is alleged. In Aurelien, however, defendant City was alleging non-residential use in seeking summary judgment, and plaintiff's opposition alleging "actual residential use" consisted of a Tax Assessor listing of the property as "Single Family Residence—Townhouse. The document, however, went on to describe the premises as "storesResidential". For that reason, the Aurelien Court found the "tax assessor's listing" as insufficient to raise a triable issue of fact regarding the absence of any non-residential use. Additionally, there was no affidavit of a person with personal knowledge of the facts, thus the attorney's affirmation alone was insufficient to defeat summary judgment.

Falk v. City of New York, 15 Misc 3d 1116(A), 839 NYS2d 431, 2007 WL 1012978 (N.Y.Sup.) and Story v. City of New York, 24 Misc 3d 325, 876 NYS2d 838 (2009) also find that the "actual use" of a dwelling, could constitute a triable issue of material fact. Additionally, the issue of whether the plaintiff was caused to trip and fall by the sidewalk alone, the sidewalk and tree well, [*5]or the tree well alone are also triable issues of material fact. Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 890 NE2d 191, 860 NYS2d 429 (2008). Accordingly, based upon the facts herein, both defendant City of New York, and defendants Riggs' motions for summary judgment must be and are denied.

This constitutes the Decision and Order of the Court.

Date: August 27, 2009___________________________________

RICHARD VELASQUEZ, J.S.C.``