Sewer v City of New York
2012 NY Slip Op 31001(U)
April 11, 2012
Sup Ct, New York County
Docket Number: 104416/09
Judge: Barbara Jaffe
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SUPREME COURT OF THE STATE O F NEW YORK
NEW YORK COUNTY
Index Number : 104416/2009
SEWER, AMELIA C .
CITY OF NEW YORK
SEQUENCE NUMBER : 003
The following papers, numbered 1 to
, were read on this motion tolfor
Notice of MotionlOrder to Show Cause -Affidavits
I NdS). I
I No(8). 3
Upon the foregoing papers, it I ordered that thls motion is
COUNTY CLERK'S OFFICE
CHECK AS APPROPRIATE: ........................... MOTION IS: 6 G R A N T E D
CHECK IF APPROPRIATE: ................................................
1. CHECK ONE:
11DO NOT POST
fl GRANTED IN PART
I? SUBMIT ORDER
SUPRI<MKCOlJRT OF â U E
STAâIâE OF NEW YORK
COUNIâY OF NEW YORK : PARâ[â 5
Index No. 1 044 16/09
Moti on Subm .:
Motion Seq. Nos.:
DECISION & OKDEK
THE CI1âY OF NEW YORK, NEW YORK CITY
BOARD OF EUIJCATION, NEW YORK CITY
SCl IOOL C0NSâIâRIJC:TION AUT1 IORIâIâY,
COUNTY CLERKS OFFICF.
Dmiti-iy Shulinan, Esq.
Elliot Iliaimoff âk Assocs,, P.C.
1 18-35 Queens Hlvd., Ste. 1250
Forest Hills, New York 11375
7 18-205-1 0 10
Deborah Bass, Esq.
Lcdy-Giiren cr d,
475 Park Ave. S.,77ââFI.
New York. NY 10016
212-447-1 I I 1
1,orraine McKay, Esq.
45 Ilroaclway, 16ââFI.
New York, NY 10006
By notice of motion dated October 12, 201 I , plaintiff niovcs pursuant to CPLR 3212 for
an order granting her summary judgnierit on liability only to the cxteiit of finding that 011 Ihc datc
ofâ her accident, dcfendanl New York City Housing Authority mYCI IA) owned the premises
where the accident occurrcd. NYCJIA opposes.
By notice of motion dated October 17, 201 I and sLibrnitled without opposition, defendant
New York City School Câonstruction Authority (SCA) inovcs pursuant to CPLli 32 12 lor an
order summarily dismissing Ihc complaini and al I cross claims and countcrclaims against il.
I. PERTINENT BACKGROUND
On April 7, 2008, plaintilf was injured when shc allegedly tripped aiid le11 on a defcct
located on the preiiiiscs located at 232 Easl 103"' Strcct in Manhattan (premises) aiid/or the
adjoining sidewalk, driveway, o r highway located in frotit of thc prcinises. (Affinnation of
Dinitriy Shulman, Esq., dated Oct. 12, 20 I 1 [Shulman Ail.], Esh. , )
complaint dated March 25, 2009, plaintiff sued defciidaiits City, Ncw
York City Board of Education (Board), SCA, and DaCosta Imclscaping Contractors Corp.
(DaCosta). ( I d , Gxh. A).
By summons and complaint datcd September 1 8, 2009, plaintiff commenced a separate
action against NYCHA, and by decision and order datcd Jaiiiiary 26, 20 10, the actions were
consolidated for all purposcs. (h?,
Exhs. C, D).
At an examination beforc trial (EB'T) held on January 18, 201 1 , plaintiff testified that on
t l x day of her accidcnt, shc walkcd along 103"' Strecl, which lcads into and cnds within a
NY CI-IA development called thc Washington I-~OUSCS, shc reachcd a public school within
the dcvelopment, which had a driveway or pickup area in front of it. She stepped off the curb
into the driveway and, afier walking beside the school, she stepped back oiito the curb, next to
the sidcwalk in front of the school, whcn her right foot becainc caught in a gap or missing part of
the curb and twisted, causing her to fall. Pictures identiiied by plaintiff rellcct a missiiig piece of
the curb i n li-ont of the sidewalk. ( I d , ijxhs. E, F).
By notice to admil dated March 9, 201 1, plaintirf asked NY CHA to admit lo the
genuinencss o f a dced dated February 26, 1953 betwcen City and NYCHA by wllich City
conveyed to NYCHA title to ccrtain property. ( I d , Exh. (3). By rcsponse dated March 22, 20 1 1,
NYCHA admitted to the genuincriess of the deed. ( I d Exh. I I).
Hy arfidavit datcd October I , 201 1, Gerald 'F. O'Buckley, a professional land swveyor,
stales that 011 March 27, 2000, hc conductcd
survey o f the area wlierc plaintiffâ fell to dcterminc
wlio owned it, and that according lo thc 1953 deed, litle to thc lot containing thc arm was givcn
to NYCHA lrom City and iio fiirtlier decds or convcyi1iices related to thc lot were hiitid. lie thus
concludes, based on his survey and the deed, that NYCâHA owm the property on which plaintiff
k l l , ( I d , 17x11. K .
IT. PTATNTIFFâS MOTION
IâIaintilT contends h a t tlicre remains n o triablc issue as to whether NYCHA owns the
properly where she fell. (Shulniari A1âf.).
NYCHA argues that sunimary judgment is inappropriate for rcsolution o r a single factual
issue, and that cveii if it is detcriiiitied that it owned the premises, it does not resolve plaintiffs
negligence claim against it. T also contends that OâI3uckleyâs afliidavit is insufficient proor of its
ownership 01 premises absent a dcscriptioii of his survey and because the 1953 deed contains
description olâ the prerniscs at the lot number slated by him. (Affkmation of Dcborah Bass,
Esq., datcd llec. 1, 201 1).
In reply, plaintiff denies seeking a declaration as to NYClIAâs overall liability but only its
ownership of thc accident location, or that OâBuckleyâs afiidavit is insiifficicnl. (Reply
Alfinnation, dated DCC.12, 201 I ).
Pursuant to CPLK 32 12(g), on a inotion lor sumri7~~judginci11, court may dcterminc
what facts arc not in dispute and may rcndcr an order specilying such h c t s which arc then
deemed established for all purposes in the action. Conscqucntly, NYCliAâs claim that the solc
fiictual issue of whether it o w i s the property at issue may not bc resolved hcrc is misplxed.
Moreover, as 0â13ucklcyâs survcy was acconipanicd by his allidavil explaining how he
condiicted tlic survey and arrived at his coiiclusioii, it is suffkient to establish that NY CIIA owns
the property at issue. ( S C Ptâg R C M ~ Lqfkuwitz, 76 AD3d 619 [2d Dept 201 01 [â[I111 order lo
provc a boundary by a survcy, tlicre should be proolâ of the idcnlity, compcteiicy aiid the authority
of the stirvcyor i n thc particular case, and of the purposc olâ lhc surveyâ J , qimting I .NY 2d,
Adjoining I mdawners $ 143 ; Zehnick- 17 h/leadowbruok I,IAs,soc,~., AD3d 793 [3d Dept
20051, lv dmied 5 NY3d 873 [cicfendanl suhinittcd survey map and surveyorâs affidavit to
establish that plaintiffâs kill did not occur on its property, thcreby shifting burden olâproof to
plaintiff to raise triablc issue]; Grtdlon 1.1 City c!/âNw York, 297 AD2d 261 (1ââ Dept 20021
[NYCl IAâs submissions, including alidavit and survey by liccnsed land surveyor, cstablished
prima.fircic that it did not own or control stairc2isc at issue]; LSch~~m.tzherg
v Eisenson, 260 AD2d
854 1:3d Dcpt 19991, 111 cknicd 93 NY2d 8 I5 Ldefcndant met burden of showing that arca wlierc
plaintifâf fell was public sidewalk owned by town by submitting survey and surveyorâs opinion]).
Plaintiff has thus established, primn,fucie, that there is no lriable issue as to NYCllAâs
ownership of the property, and NYCHA has failed to submit proof in opposition thereto.
Moreovcr, as conccded by plaintiff, as NYCHA is the owrier ofthe property, there is no
ground upon which lo hold dcfendaiils City and BOE liable, and thus, a scarch ofthe rccord
(C1â1,R 32 12[b]) leads to their entitlenient lo a sumiiiary dismissal of the complaint against lhcin
Inc., 83 AD3d 5 I9 11 st Dept 201 11 [liability lâor daiigcrous
(see L u p z v Allied Amiiscment
condition gencrally depends
ownership, control, or special use of properly]; C~ro.r.s Ilertz
Local Edition Corp., 72 AD3d 15 1 8 [4IhDept 20 101 [as defciidant did not own, occupy, o r have
right to control or iiiniiitain [mliing lot wlierc plain~ifi'icll,it owed plaintii'l'no duty of care]).
111. SC'A'S MOI ION
As SC'A has establislied that it ncillier owned the property o i i wliicli plaintiiy fell, ~ i o that
it pcrforiiied any work a t the property that niay have causcd the defect, it has dcinniistratcd prin7ir
f&ic entitlement to dismissal of the complaint and any cross claims or couiiterclaims against
Accordingly, it is hcrehy
OR13EREI3, that plaintiiTs iiiolion for siimmary judgment is granted to the cxtcnt of
lindng that dckridant New York City I iousing Authority is tlic owner o f tlic property where
plaintifl'was injured; it is fiirther
ORDERP;D, that upon scarching the records, tlic complaiizt and any cross claiiiis are
disinissed against defendants City of Ncw York and New York City Hoard oi'Pklucalion with
costs and disbursements to dcl'mdants as taxed by the clerk of the court upon the submission of
an appropriatc bill oi'costs, and tlic clerk of thc court is directed to enter judgment accordingly; it
0 IiL, ER ED, tliat de fccndant Ncw York City Scliool c'onstruc ti on Authority ' s 111 01 ion for
summary judgiiient is granted, arid the complaint aiid any cross clainzs or counterclaims are
dismisscd against said defendant with costs and disbursements to defendant as taxed by Ihc clerk
of the court iipoii the submission of an appropriate bill of costs, and the clerk of thc court is
directed to enter judgment accordingly; it is iiirthcr
ORDERED, that the reniaiiidcr of the action shall coiitinuc; atid it is riirthcr
C)RDERE.D, that tlic Trial Support Office is directed to rcassign this case to a non-City
part and remove it from thc Part 5 invenlory. Plaintiff is dircctcd to scrvc a copy ol-âtliisorder on
all other parties aiid tlic â f r i d Support Ofticc, 60 Centre Strcet, Room 158
April 1 1, 20 I 1
New York. Ne,w York
COUNTY CLERKS OFFICE