Castillo v Hurston Place Hous. Dev. Fund Corp.

Annotate this Case

Download PDF

Castillo v Hurston Place Hous. Dev. Fund Corp. 2011 NY Slip Op 32707(U) October 14, 2011 Supreme Court, New York County Docket Number: 105840/10 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. SCANNEDON 1011912011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART P, - Index Number : 105840/2010 INDEX NO. CASTILLO, MAYRA MOTION DATE VS. HURSTON PLACE HOUSING MOTION SEQ. NO. SEQUENCE NUMBER : 001 MOTION CAL. N O . I DISMISS $b-7 thls motion tolfor 55 PAPERS NUMBERED - . Upon the foregoing papers, it is ordered that this motion NEW YORK COUNTY CLERK'S OFFICE Dated: J. S. C. 0 FINAL DISPOSITION NON-FINAE~ISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE Check one: SUBMIT ORDER/ JUDG. c SETTLE ORDER/ JUDG. ] [* 2] Index No, 105840/10 Motion Subm.: Motion Seq. No.: Plaintiff, 8/2/11 001 -againstDECISION & ORDER HURSTON PLACE HOUSING DEVELOPMENT FUND CORPORATION, NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT AND CITY OF NEW YORK, FILED OCT 1 9 2011 NEW YORK COUNTY CLERK'S OFFICE . . For City/NYCHPD: For plaintiff: Matthew A. Taub, Esq. The Taub Law Firm, P.C. 14 Penn Plaza, Ste. 2105 22s 34Lh St. New York,NY 10 122 646484-5020 Annica Sunnex, Esq. Michael A. Cardozo Corporation Counsel 100 Church St., 4" FI. New York, NY 10007-2601 2 12-22 7-3365 w. By notice of motion dated April 19,2011, defendants City of New York and New York City Department of Housing Preservation and Development (City, collectively) move pursuant to CPLR 321 l(a)(7) and/or 3212 for an order dismissing the complaint and all cross claims against them. Plaintiff Qpposes and, by notice of cross motion dated May 12,201 1 and submitted without opposition, moves pursuant to CPLR 305 and 3025 for an order granting her leave to file an amended complaint naming A. Aleem Construction Inc. (Aleem) as an additional defendant. I. BACKGROWD On February 17,2010, plaintiff was allegedly injured when she slipped and fell on a layer of ice on the sidewalk in front of 272 West 154* Street, otherwise known as 2906 Frederick Douglas Boulevard, in Manhattan (the premises). (Affirmation of Annica Sunner, ACC, dated - [* 3] Apr. 19,201 1 [Sunner Aff.], Exh. A). On or about February 24,2010, plaintiff served City with her notice of claim, and on or about April 24,2010 with her summons and complaint. (Id., Exhs. A, B). On or about May 28, 2010, City served its answer. (Id,Exh. C). At an examination before trial held on May 17,ZO 10, plaintiff testified that days before her accident, snow had begun to fall and stopped falling one day before the accident, that on the day of her accident, while walking on the sidewalk in front of the premises, she observed that snow was piled up on both sides of the sidewalk and that the ground was apparently clear but when she took a step forward, she slipped and fell. Upon touching the ground, she felt wetness and saw that the sidewalk was covered with a thin layer of shiny, transparent, clean, and smooth ice. She saw no sand or salt on the sidewalk. ( I d , Exh. E). By affidavit dated July 1,2010, Eddie Colon, an employee of City s Department of Sanitation (DOS), states that he fruitlessly searched DOS records for any removal of snow from the sidewalk on which plaintiff fell from February 3,2010 to and including February 17,2010 by any DOS employee or contractor hired by DOS. (Id,,Exh. F). B. CITY S MOTION TO DISMISS A, Contentiom City argues that it may not be held liable for the aIlegedly defective sidewalk on which plaintiff slipped as it did not own the premises abutting the sidewalk, relying on a deed recorded on June 8,2006 reflecting that as of April 5,2006, defendant Hurston Place Housing Development Fund Corporation (Hurston) owned the premises, which are classified as a building class C7 apartment building. (Sunner Aff., Exh. G). City denies that it caused or created the icy .. [* 4] condition as it had undertaken no snow or ice removal efforts in the two weeks before plaintiffs accident, and submits certified climatological records which it asserts show that the ice on which plaintiff fell must have formed no earlier than February 15 or 16, 20 10. (Id, Exh. J). Plaintiff maintains that City s motion is premature as depositions of all of the parties have not been completed, and that Hurston s ownership of the premises is not dispositive of whether City owed her a duty, relying on a Home Written Agreement between Hurston and City which, she claims, reflects that City was significantly involved with or controlled the premises. (Affirmation of Matthew A. Taub, Esq., dated May 12,2011 [Taub Aff.], A). She thus Exh. contends that discovery is necessary to determine the nature and extent of City s involvement with the premises, as well as discovery from the proposed additional defendant, Aleem, which may reveal a connection between City and Aleem. (Id). In reply, City observes that it is undisputed that it did not own the premises, and that plaintiff failed to submit any evidence showing that City caused or created the icy condition and did not address its argument in that regard. It also denies that the Home Written Agreement gave it any control over the management or maintenance of the premises, or that it may be held liable even if it controlled the premises. (Reply Affirmation, dated July 14,2011; Affidavit of Andrew Linder, dated July 14,201 1). B. Analysis 1. O w n e w Pwsuant to New York City Administrative Code $ 7-2 10, the owner of real property abutting a sidewalk has the duty of maintaining it in a reasonably safe condition, and is liable for any personal or property injury proximately caused by its failure to so maintain the sidewalk, [* 5] unless the property is exempt. (Admin. Code 7-210[c] [City liable for injury caused by failure to maintain sidewalks abutting 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 . . . I). The failure to maintain a sidewalk includes the negligent failure to remove snow and ice from the sidewalk. ( I d ) . Therefore, after September 14,2003, the effective date of the Sidewalk Law, the abutting property owner, not City, is generally liable for accidents caused by the failure to maintain a sidewalk. (Vucetovicv Epsom Downs, Inc., 10 NY3d 5 17, 520-21 [2008]). Here, as City has established that it is not the abutting landowner and that the premises is not exempt, it has demonstrated, primafacis, that it may not be held liable for plaintiff s injuries. (See Nicoletti v City of New York, 77 AD3d 715 [2d Dept 20101 [City establishedprimafacie entitlement to dismissal by showing that plaintiff fell on snow and ice on sidewalk abutting property owned by another entity]; Gordy v City ofNew York, 67 AD3d 523 [la Dept 20091 [dismissing action against City as plaintiff fell on icy sidewalk abutting property owned by corporate entity and not exempt]; see also Forbes v Auron, 81 AD3d 876 [2d Dept 201 11 [as premises was four-family multiple dwelling, liability for defective sidewalk shifted from City to abutting premises owner]; Rodriguez v City ofNew York, 70 AD3d 450 [lat Dept 20101 [City entitled to dismissal of complaint as it did not own property on which plaintiff fell, and as property was vacant lot and thus not exempt pursuant to section 7-2 lo]). Plaintiff cites no authority for the proposition that City s alleged control over the premises pursuant to the Home Written Agreement is suffcient to hold it liable here notwithstanding that it is not the premises owner, and in any event, nothing in the Agreement demonstrates that City retained control over the maintenance or management of the premises or [* 6] had any duty to remove snow or ice from the sidewalk abutting the premises. Nor did plaintiff specify the discovery she seeks from defendants or Aleem. (CPLR 3212[fl; Nascimento v Bridgehumpton Constr. Corp., 86 AD3d 189 [lStDept 201 I] [defendant failed to set forth basis for claim that further discovery would lead to additional relevant evidence]; IRB-Brad Resseguros S.A. v Portobello Intern. Ltd., 84 AD3d 637 [lstDept 201 11 [ defendants did not demonstrate, however, that there was a likelihood that there is relevant evidence in lplaintiff s] exclusive knowledge, that further discovery might reveal the existence of such evidence, or that they made a reasonable attempt, prior to the motion, to pursue other means of discovering the information now claimed to be necessary ]). 2, Cause OF create As City submits evidence showing that it undertook no snow or ice removal efforts in the two weeks preceding plaintiffs accident, it has established, primafacis, that it did not cause or create the icy condition on the sidewalk. (See Gumbs v Friedman & Simon,35 AD3d 362 [Zd Dept 20061 [absent evidence that City had performed snow removal, plaintiff s claim that City caused or created dangerous condition was speculative]; Paula v Ct o New York, 249 AD2d iy f 100 [laDept 19981 [defendant had no duty to remove ice and snow from sidewalk and no evidence that defendant undertook snow removal efforts]). Plaintiff neither argues nor proffers any evidence demonstrating that City had created the condition, thereby failing to show the existence of any triable issues as to City s liability, 1 1 PLAINTIFF S MOTION TO AMFND 1. Absent any opposition to plaintiffs motion to add Aleem as an additional defendant, and as the motion is meritorious, it is granted. 5 [* 7] IV, coNCLUSION Accordingly, it is hereby ORDERED, that defendants City of New York and New York Department of Housing Preservation and Development's motion for summary judgment is granted and the complaint and any cross claims against them are dismissed with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; it is further ORDERED, that the Clerk is directed to enter judgment accordingly; it is further ORDERED, that the Trial Support Office is directed to reassign this case to a non-City I P r and remove it from the Part 5 inventory. Plaintiff shall serve, within 20 days of the date of at this order, a copy of this order on all other parties and the Trial Support Office, 60 Centre Street, Room 158; it is M e r ." ORDERED, that plaintiff's cross motion to amend is granted, and the amended complaint, in the f o m annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action; it is further ORDERED, that a supplemental summons and amended complaint in the form annexed to the moving papers shall be served in accordance w t the Civil Practice Law and Rules upon ih the proposed additional parties in this action within 30 days after service of a copy of this order with notice of entry; it is further ORDERED, that upon said service, the action shall bear the following caption: [* 8] M Y R A CASTILLO, Plaintiff, - against HURSTON PLACE HOUSING DEVELOPMENT FUND CORPORATION, NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION & DEVELOPMENT, CITY OF NEW YORK, and A. ALEEM CONSTRUCTION INC., Defendants. And it is further . . ORDERED, that counsel for the moving party shall serve a copy of this orhdr with no1 c e of,entry upon the County clerk (Room 141B) and the Clerk of the Trial Support Office (Room l58), who are directed to mark the court s records to reflect the additional p ENTER: &.I L E D OCT 19 2011 NEW YORK COUNTY CLERKS OFFICE DATED: October 14,201 1 New York, New York J.S. C. DCT 1 4 2011 7 - I

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.