Sewer v City of New York

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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 Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON111712012 SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY / PART 4 Justice - - - Index Number : 104416/2009 SEWER, AMELIA C . vs. CITY OF NEW YORK SEQUENCE NUMBER : 003 SUMMARY JUDGMENT L ~ The following papers, numbered 1 to ------INDEX NO, MOTION DATE MOTION SEQ.NO. # 12, L , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - - Exhlblts I NdS). I I No(8). 3 I No@)- '- - Exhiblts Replylng Affidavits - Upon the foregoing papers, it I ordered that thls motion is s APR 16 2012 NFW YUHK COUNTY CLERK'S OFFICE ..................................................................... CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION IS: 6 G R A N T E D LJ DENIED CHECK IF APPROPRIATE: ................................................ 1SETTLE ORDER 1 1. CHECK ONE: 2. 3. 11DO NOT POST ' - 'I.IZIF.NMFINAL DISPOSITION fl GRANTED IN PART LJ OTHER I? SUBMIT ORDER c-1 FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPRI<MKCOlJRT OF U E STA I E OF NEW YORK COUNI Y OF NEW YORK : PAR [ 5 AMET,IA SEWER, Index No. 1 044 16/09 Plainti fl: Moti on Subm .: Motion Seq. Nos.: 1/3/12 003, -against- DECISION & OKDEK THE CI1 Y OF NEW YORK, NEW YORK CITY BOARD OF EUIJCATION, NEW YORK CITY SCl IOOL C0NS I RIJC:TION AUT1 IORI I Y, DACOS I A LANDSCAYINC~ CONTllAC fORS CORP.. NEW YOCtk COUNTY CLERKS OFFICF. For plaintiff: Dmiti-iy Shulinan, Esq. Elliot Iliaimoff k Assocs,, P.C. 1 18-35 Queens Hlvd., Ste. 1250 Forest Hills, New York 11375 7 18-205-1 0 10 For NYCHA: Deborah Bass, Esq. Lcdy-Giiren cr d, 475 Park Ave. S.,77 FI. New York. NY 10016 212-447-1 I I 1 For SCA: 1,orraine McKay, Esq. Cozen O Coniior 45 Ilroaclway, 16 FI. New York, NY 10006 7,12-509-9400 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 of 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 C onstruction 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 [* 3] 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. , ) 4. By s~iiiiiiioiis aiid 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 until 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, 2 [* 4] stales that 011 March 27, 2000, hc conductcd ;I survey o f the area wlierc plaintiff 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 NYC HA owm the property on which plaintiff k l l , ( I d , 17x11. K . ) IT. PTATNTIFF S MOTION A. Contcjitioiis I IaintilT contends h a t tlicre remains n o triablc issue as to whether NYCHA owns the properly where she fell. (Shulniari A1 f.). 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 O I3uckley s afliidavit is insufficient proor of its t ownership 01 premises absent a dcscriptioii of his survey and because the 1953 deed contains the 110 description ol 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 NYClIA s overall liability but only its ownership of thc accident location, or that O Buckley s afiidavit is insiifficicnl. (Reply Alfinnation, dated DCC.12, 201 I ). f3. Analysis Pursuant to CPLK 32 12(g), on a inotion lor sumri7~~judginci11, court may dcterminc the 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, NYCliA s claim that the solc 3 [* 5] fiictual issue of whether it o w i s the property at issue may not bc resolved hcrc is misplxed. Moreover, as 0 13ucklcy s 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 Pt g R C M ~ Lqfkuwitz, 76 AD3d 619 [2d Dept 201 01 [ [I111 order lo 11 provc a boundary by a survcy, tlicre should be prool of the idcnlity, compcteiicy aiid the authority Jur of the stirvcyor i n thc particular case, and of the purposc ol lhc survey J , qimting I .NY 2d, Adjoining I mdawners $ 143 [2012]; Zehnick- 17 h/leadowbruok I,IAs,soc,~., AD3d 793 [3d Dept 20 20051, lv dmied 5 NY3d 873 [cicfendanl suhinittcd survey map and surveyor s affidavit to establish that plaintiff s kill did not occur on its property, thcreby shifting burden ol proof to plaintiff to raise triablc issue]; Grtdlon 1.1 City c!/ Nw York, 297 AD2d 261 (1 Dept 20021 [NYCl IA s 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 plaintif f fell was public sidewalk owned by town by submitting survey and surveyor s opinion]). Plaintiff has thus established, primn,fucie, that there is no lriable issue as to NYCllA s 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 (C1 1,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 l or daiigcrous (see L u p z v Allied Amiiscment ,S I70ws, condition gencrally depends ownership, control, or special use of properly]; C~ro.r.s Ilertz v 011 Local Edition Corp., 72 AD3d 15 1 8 [4IhDept 20 101 [as defciidant did not own, occupy, o r have 4 [* 6] 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 r 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 it. TV. CONC'TJUSION 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 is iiirther 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 5 [* 7] part and remove it from thc Part 5 invenlory. Plaintiff is dircctcd to scrvc a copy ol- tliisorder on all other parties aiid tlic f r i d Support Ofticc, 60 Centre Strcet, Room 158 ENTER: 1)A TE.D: April 1 1, 20 I 1 New York. Ne,w York NEW YOHK COUNTY CLERKS OFFICE 6

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