Dimitratos v City of New York

[*1] Dimitratos v City of New York 2009 NY Slip Op 52290(U) [25 Misc 3d 1224(A)] Decided on September 28, 2009 Supreme Court, New York County Scarpulla, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2009
Supreme Court, New York County

Araklis Dimitratos, Plaintiff,

against

The City of New York, ROBERT E. WAGENFELD and SANDRA G. WAGENFELD, Defendants.



106863/06



For Plaintiff:

Mirman Markovitz & Landau, P.C.

291 Broadway, 6th Floor

New York, NY 10007

For Defendant City of New York:

Michael A. Cardozo,

Corporation Counsel

100 Church Street, 4th Floor

New York, NY 10007

For Defendant Sandra Wagenfeld:

The Law Offices of Neil L. Kanzer

17 State Street, 25th Floor

New York, NY 10004

Saliann Scarpulla, J.

In this action to recover damages for personal injuries, defendant the City of New York (the "City"), moves to dismiss the complaint pursuant to CPLR 3211, or in the alternative for summary judgment pursuant to CPLR 3212 dismissing all claims and cross-claims against it.

This action arises from injuries allegedly sustained by plaintiff Araklis Dimitratos ("Dimitratos") on June 16, 2005. On that date, Dimitratos alleges, he was walking from the grocery store he owns, Hercules' Fancy Grocery at 27½ Morton Street, New York, New York, to his car when he tripped and fell on the sidewalk in front of 48-52 Seventh Avenue South.

The property located at 48-52 Seventh Avenue South (the Seventh Avenue South property") is owned by defendant Sandra G. Wagenfeld ("Wagenfeld"). Wagenfeld and her husband Robert E. Wagenfeld jointly purchased the Seventh Avenue South property in 1991. Mr. Wagenfeld died in 1996, and since then Wagenfeld has been the sole owner of the Seventh Avenue South property.

The Seventh Avenue South property is a one room structure. It is adjacent to residential property located at 66 Bedford St., New York, NY, also owned by the Wagenfelds (the "Bedford Street property"). The Bedford Street property is a four story single occupancy townhouse. The Seventh Avenue South Property and the Bedford Street property are connected by a rear garden.

At her deposition, Wagenfeld testified that she and her husband purchased the Seventh Avenue South property in 1991 with the intention of turning it into a garden and driveway for the Bedford Street property. According to Wagenfeld, she subsequently learned that the Bedford Street property had been a gas station and is a protected landmark. The Wagenfelds [*2]were therefore unable to tear the one room structure down, and instead turned it into a home-office.

Wagenfeld testified that for many years, she considered the Bedford Street property her primary residence. Since around 2001, however, she has resided primarily in Westport, Connecticut. Wagenfeld stated that, from 2001 through June 16, 2005, she resided at the Bedford Street property approximately six (6) times per year.

Procedural History

In his amended summons and complaint, dated May 16, 2006, Dimitratos alleges a cause of action for negligence against all defendants. In her answer, Wagenfeld denies all material allegations of the complaint, and asserts three affirmative defenses, including Dimitratos's culpable conduct, indemnification or recovery from a collateral source, and lack of jurisdiction. Wagenfeld also asserts a cross-claim against co-defendant the City for indemnification. In its answer, the City also denies all material allegations and asserts affirmative defenses including Dimitratos's culpable conduct, assumption of the risk, and limitation of liability pursuant to CPLR 1601. The City asserts a cross-claim against Wagenfeld for common law indemnification and/or contribution.

Previously, Wagenfeld moved for summary judgment dismissing the complaint on the grounds that the Seventh Avenue South property abutting the sidewalk where Dimitratos fell is within the exception to Administrative Code §7-210. Administrative Code §7-210 provides, in pertinent part, that the City "shall not be liable for any . . . personal injury . . . proximately caused by the failure to maintain sidewalks in a reasonably safe condition," other than sidewalks abutting a "one-, two- or three-family residential property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes." Wagenfeld argued that the Seventh Avenue South property is a residential property subject to the exemption found in Administrative Code §7-210.

This Court (Matthew Cooper, J.), in a decision dated January 28, 2009, denied Wagenfeld's summary judgment motion, finding that the City and Dimitratos raised a material issue of fact as to whether the Seventh Avenue South property falls within the exception to Administrative Code §7-210.

The City moved to reargue Wagenfeld's motion for summary judgment. The City did not contest the Court's decision to deny summary judgment to Wagenfeld, but took issue with the language of the decision which stated that the City and Dimitratos "raised a material issue of fact as to whether the property falls within the exception in Administrative Code §7-210." Judge Cooper, in a decision dated July 2, 2009, granted the City's motion to reargue, and modified the January 28, 2009 Decision and Order to delete the contested sentence, and replace it with the following: "Defendant Sandra Wagenfeld has failed to demonstrate that there are no material issue of fact as to her being entitled to invoke the residential owner-occupier exemption provided for under Administrative Code §7-210."

The City now moves on its own to dismiss the complaint pursuant to CPLR 3211, or for summary judgment pursuant to CPLR 3212 dismissing the complaint and all cross-claims. [*3]The City argues that it is not liable for Dimitratos's alleged injuries because the Seventh Avenue South property does not fall within the owner-occupier exception to Administrative Code §7-210.

The City further argues that there is no evidence that the City caused or created the condition which led to Dimitratos's slip and fall, and has not received prior written notice of the condition. In opposition, Dimitratos and Wagenfeld argue that there exist questions of fact as to whether the Seventh Avenue South property falls within the exception to Administrative Code §7-210.

Discussion

Summary judgment is an extraordinary remedy and is only appropriate where the movant has established that there is no question of fact on any issue which would require a trial. See Andre v. Pomeroy, 35 NY2d 361, 364 (1974). The court may grant summary judgment upon a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence sufficient to eliminate material issues of fact. CPLR 3212(b); Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). On a motion for summary judgment the testimony of the nonmoving party is accepted as true. O'Sullivan v. Presbyterian Hosp. in City of New York at Columbia Presbyterian Medical Center, 217 AD2d 98, 101 (1st Dep't 1995).

As was the case before Judge Cooper, the issue raised in this summary judgment motion is whether the City has shown, as a matter of law, that the Seventh Avenue South property is not eligible for the exemption provided in Administrative Code §7-210 . Prior to the enactment of Administrative Code §7-210 (also know as the "New Sidewalk Law"), the City of New York, as the owner of the sidewalks, was generally "liable for injuries to pedestrians caused by defective sidewalk flags, subject to the requirements of the prior written notice law." Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 520 (2008).

In 2003, the New York City Council enacted Administrative Code §7-210, which now shifts responsibility to the "owner[s] of real property abutting any sidewalk . . . to maintain such sidewalk in reasonably safe condition. " Administrative Code §7-210(a). Pursuant to Administrative Code §7-210, abutting property owners "shall be liable for any injury to property or personal injury . . . proximately caused by failure to maintain such sidewalk in a reasonably safe condition." Administrative Code §7-210(b). Section 7-210 by its terms does 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." Administrative Code §7-210(b) c).

This provision's shift of liability away from the City and to abutting land owners is "in derogation of the common law and must thus be strictly construed." Ortiz v. City of New York, 2009 NY Slip Op 6299, at *5 (1st Dep't Aug. 25, 2009). See also Vucetovic, 10 NY3d at 521.

To be entitled to summary judgment on the basis of Administrative Code §7-210, the City must first make a showing by evidence in admissible form that the abutting property is [*4]not owner-occupied residential property with three or fewer units. See Maderias v. National Bank of North America, 17 Misc 3d 1131A (Richmond Co. Sup. Ct. 2007). In the absence of any conflicting evidence, courts have found that the City has met its burden of proof where the City submitted copies of the RPAD database along with an affidavit authenticating the business records. See Aurelien v. City of New York, 15 Misc 3d 1116A (Richmond Co. 2007) (City establishes prima facie entitlement to judgment upon submission of authenticated DOF records showing property classification which is not a listed exception to Administrative Code §7-210) (emphasis added); Maderias, 17 Misc 3d at 1131A (City adequately established that the property at issue was not a one, two or three-family residential, owner occupied dwelling by submitting a printout from DOF's RPAD database showing the business classification of the premises, along with an affidavit of a DOF assistant commissioner, verifying that the information contained in the records was compiled in the regular course of the agency's business) (emphasis added).

Here, the City has failed to submit sufficient proof, in evidentiary form, to establish that the Seventh Avenue South property is not owner-occupied residential property with three or fewer units. The City submits only an affirmation by David C. Atik, an attorney employed by DOF who is responsible for responding to Freedom of Information Law requests, as well as subpoenas and other demands for information relating to DOF's property records. Mr. Atik affirms, based on a review of information from the Real Property Assessment Division ("RPAD") database, that the property located at 48-52 Seventh Avenue South is classified as "Building Class 09 (Office Buildings), and not as a one-two- or three-family solely residential property." However, Mr. Atik does not amend a printout from the RPAD to his affirmation, nor does the City submit any other documentation in admissible form to substantiate Atik's statement.

Further, Judge Cooper previously found that, based upon the testimony and documents submitted on Wagenfeld's motion for summary judgment, there is an issue of fact as to whether the Seventh Avenue South property is actually used as a one family residentially occupied property for purposes of application of Administrative Code §7-210. I agree that there is an issue of fact as to this issue.

While the City submits an affirmation of a DOF attorney attesting that the Seventh Avenue South property is zoned for commercial use, Wagenfeld testified that the Seventh Avenue South property is actually used as a part and parcel of her residential Bedford Street property. For the purposes of this summary judgment motion I must accept Wagenfeld's testimony as true.

Wagenfeld testified that: 1) she intended the Seventh Avenue South property to become an appendage to her Bedford Street property, her one-family home; 2) she intended to remove the one room structure on the Seventh Avenue South property and extend her garden and create a parking area for her car; 3) the only reason the one room structure still stands is because the Seventh Avenue South property was designated as a landmark; 4) Wagenfeld does not rent out the Seventh Avenue South property or derive any commercial [*5]benefit from it; 5) Wagenfeld is the sole occupant of the Seventh Avenue South property; and 6) she uses the Seventh Avenue South property as a home office.

Wagenfelds's testimony shows that the Seventh Avenue South property's actual use was counter to its tax classification. Regardless of its tax classification, if Wagenfeld used the Seventh Avenue South property as a home office when she was in New York, a jury could find that the Seventh Avenue South property was "used exclusively for residential purposes." See DeJesus v. City of New York, 24 Misc 3d 1249(A) (question of fact as to actual use of property for purposes of Administrative Code §7-210, despite tax classification of property as being outside the exemption), see also Story v. City of New York, 24 Misc 3d 325, 327 (Sup. Ct. Kings Co. 2009)(using property as mailing address for law practice does not establish a non-residential use of the property as a matter of law for purposes of Administrative Code §7-210); Vargas v. Rodriguez, 2007 NY Misc. Lexis 6397at *5 (Sup. Ct. Queens Co. 2007) (homeowner's "minor foray into the internet business world can not constitute a commercial endeavor so significant as to destroy the defendants' exemption from liability under the Administrative Code").[FN1]

Based upon all of the foregoing, the Court finds that the City has failed to make a prima facie of entitlement to summary judgment dismissing the complaint and the cross-claims against it as a matter of law, as there is a question of fact as to whether the Seventh Avenue South property is exempt under Administrative Code §7-210.

In accordance with the foregoing, it is

ORDERED that defendant the City of New York's motion for summary judgment to dismiss plaintiff Araklis Dimitratos's complaint and all of the cross-claims against it is denied.

This constitutes the Decision and Order of the Court.

Dated:New York, New York

September 28, 2009

E N T E R:

_____________________________

Saliann Scarpulla, J.S.C. Footnotes

Footnote 1: While Wagenfeld testified that her primary residence is in Westport, Connecticut. Administrative Code §7-210, however, does not state that the exception is only for "primary residences," but rather for owner occupied residential real property which is used for residential purposes. Wagenfeld is clearly the owner of the property, and occupies it when she is in New York, but also resides in Connecticut.