Papp v 31 Gramercy Park S. Owners Corp.

Annotate this Case

Download PDF

Papp v 31 Gramercy Park S. Owners Corp. 2013 NY Slip Op 30619(U) March 27, 2013 Sup Ct, New York County Docket Number: 112047/2010 Judge: Kathryn E. Freed 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. SCANNED ON41112013 [* 1] Index Number : 112047/2010 PAPP, KRISTINE KRISTEL vs. CITY OF NEW YORK SEQUENCE NUMBER : 002 INDEX NO. MOTION DATE MOTION SEQ. NO. C d +'ZT DISMISS The following papers, numbered 1 to ,were read on this motion tolfor Notice of MotionlQrder to Show Cause - Affidavits Answering Affidavits - Exhibit$ BWS). - Exhibits NO@). Replying Affidavits NO@). Upon the foregoing papen, it is ordered that this motion is I i FILED MAR 29 2013 N W YORK E f Q i cQumcmIcs0~ . I Dated: - -zr)1 ) J - ,J.S.C. MAR 2 7 20?3 f. CHECK ONE: ...................................................................... 2. CHECK AS APPROPRtATE: ........,..................MQTIOBd 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED is: GRANTED D DENIED aSETTLE ORDER 0DO NOT POST FINAL DlSPOSlTlON uGRANTED INPART nOTHER 0SUBMIT ORDER 0FlDUCl M Y APPOINTMENT fl REFERENCE [* 2] 1 x KRISTJNE KRISTEL PAPP, DECISION/ORDER Index No.: 112047/2010 Seq. No.: 002 Plaintiff, -against3 1 GRAMERCY PARK SOUTH OWNERS CORP., MANHATTAN PARKING GRAMERCY CORP., THE CITY OF NEW YORK, PRESENT: Hon. Kathryn E. Freed J,S.C, Defendants. ', VIEW OF RECITATION, AS REQUIRED BY CPLR §2219(a), OF THE THIS MOTION. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED.................. ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED......... ANSWERING AFFIDAVITS............................................................. REPLYING AFFIDAVITS. ................................................................ EXHIBITS........................................................................................... STIPULATIONS................................................................................. OTHER................................................................................................ ......1-2......... ..................... ..................... ..................... ......... ....... 3-5 ...................... ...................... UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: Corporation Counsel for the City ofNew York, (hereinafter, "the City"), moves for an Order pursuant to CPLRg 321 1 dismissing plaintiffs complaint against it; or in the alternative, for an Order pursuant to CPLR $32 12 granting summaryjudgment, dismissing the complaint and all crossclaims against the City it. No opposition has been submitted. After a review of the instant motion, all relevant statutes and case law, the Court grants the motion. 1 [* 3] Factual and procedural background: This is an action to recover damages for personal injuries allegedly sustained by plaintiff on June 14,2009, when she tripped and fell while jogging on the sidewalk in front of 3 1 Grarnercy Park South and/or 32 Gramercy Park South in New York County. Consequently, plaintiff served a Notice of Claim on the City on September 4, 2009. On January 28,2010, she appeared for a General Municipal Law 50-h hearing. On September 13,2010, plaintiff filed a Summons and Complaint which was sewed on the City on November 26,201 0. On December 19,20 10, the City served its Answer. On June 4,201 0, plaintiff served her Verified Bill of Particulars as to defendant City. On August 17, 2012, she also served multiple photographs depicting the alleged accident location. The City asserts that in her Notice of Claim, plaintiff alleged that her accident occurred [wlhile jogging past a building located at 3 1 Gramercy Park South, when she tripped due to a protruding, uneven, raised and cracked sidewalk. However, at her 50-h hearing, she testified that she was running on the sidewalk and tripped on an uneven slab of sidewalk in front of 32 Gramercy Park South. The City also asserts that Verified Complaint lists both addresses and her Verified Bill of Particulars asserts that her accident occurred on the sidewalk abutting the buildings located at 3 1 Gramercy Park South and 32 Gramercy Park.. The City argues that based upon the location of plaintiffs alleged accident, it is not liable for plaintiffs injuries pursuant to 7-21 0 of the Administrative Code of the City of New York. The City argues that based on plaintiffs testimony, Notice of Claim, Verified Complaint, and Verified Bill of Particulars, it is clear that she tripped and fell due to an alleged defect on the sidewalk, and not on the curb, street, or something else. 2 [* 4] The City annexes as its Exhibit K, an affidavit of David C. Atik, Esq., an attorney with the Department of Finance of the City of New York. In his affidavit, Mr. Atik avers in pertinent part, that he personally conducted a search of the Real Property Assessment Division database for records relating to both 3 1 and 32 Gramercy Park South. He also avers that 3 1 Gramercy Park South is located at Block 875 and Lot 48 for the County ofNew York, and 32 Gramercy Park South is located at Block 875 and Lot 47. Thus, the search reveals that on June 14,2009, the City of New York was not the owner of either property. Additionally, Mr. Atik avers that his search results also indicate that 3 1 Gramercy Park South was classified as Building Class C6, ( a walk-up cooperative), with 1 1 apartments, and not as a one-, two-, or three- family solely residential property, and 32 Gramercy Park South was classified as Building Class D4 ( elevator operated), with 186 apartments, and not as a one, two-, or three-family solely residential property. Conclusions of law: The proponent of a summary judgment motion must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law ( Dallas-Stephenson v. Waisman, 39 A.D.3d 303,306 [lSt Dept. 20071, citing Winegrad v. New York Univ, Med. C r , t. 64 N.Y.2d 85 1,853 [19851 ). Once the proponent has proffered evidence establishing a prima facie showing, the burden then shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact ( see Zuckerman v. Ct of New York, 49 N.Y.2d 557 [ 19891; People iy ex re1 SDitzer v. Grasso, 50 A.D.3d 535 [lstDept. 20081 ). Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture or speculation ( Morgan v, New York Telephone, 220 A.D.2d 728, 729 [2d Dept. 19851 ). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied ( Rotuba 3 [* 5] Extruders v. Ceppos, 46 N,Y .2d 223 [ 19781; Grossman v. Amalgamated Hous. C o p , 298 A.D.2d 224 [ 1St Dept. 20021 ). Effective September 14,2003, the New York Sidewalk Law, now imposes upon the owner of real property abutting any sidewalk, the duty...to maintain such sidewalk in a reasonably safe condition, and provides that the owner 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 reasonable safe condition ( see Administrative Code of the City of New York 8 7-210[a],[b] ). There is an exception to owner liability for one-, two-, or three family residential property that is ....in whole or in part, owner occupied, and ....used exclusively for residential premises (see Administrative Code of the City of New York 6 7-210[b] >. The City shall not be liable for any roximately caused by the failure to maintain sidewalks, injury to property or personal injury....p except for sidewalks abutting owner-occupied residential properties with three or fewer units, or where the City itself is the owner of the abutting property ( see Administrative Code of the City of New York 8 7-210 [c] ). In the case at bar, the C u t finds that the City has sufficiently established its prima facie or showing that it does not own either 3 1 or 32 Gramercy Park South. Moreover, plaintiff has failed to rebut said showing. Therefore, in accordance with the foregoing, it is hereby ORDERED that defendant City ofNew York s motion for summary judgment is granted and the complaint and any cross-claims are hereby severed and dismissed against it; and it is further ORDERED that the remainder of the action shall continue; and it is further ORDERED that the Trial Support Office is directed to reassign this case to a non-City part 4 [* 6] and remove it from the Part 5 inventory; and it is further ORDERED that defendant City shall serve a copy of this order on all other parties and the Trial Support Office at 60 Centre Street, Room 158. ORDERED that this constitutes the decision and order of the Court. ENTER: DATED: March 2 9 20 13 5

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.