Garcia v City of New York

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Garcia v City of New York 2013 NY Slip Op 31073(U) May 15, 2013 Supreme Court, New York County Docket Number: 111383/2008 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. [* 1] UEDON511712013 SUPREME COURT OF THE STATE O F NEW YORK EXON. ~ s i n r n S m Z O R K * COUNTY XJSREOF IScPREF,'I?: Index Number : 1I 1383/2008 C',k{,'C",T GARCIA, MILDRED PART I vs CITY OF NEW YORK INDEX NO. Sequence Number : 001 MOTION DATE DISMISS C&L. MOTION SEQ. NO. &37 The following papers, numbered Ito , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits IW). - Exhibits I Wd. I No(s). Replying Affidavits Upon the foregoing papers, it is ordered that this motion is FILED 1 I ! MAY 1 6 2013 I NEW YORK WUNTY CLERKS OFFICE Dated: d--/4---/3 HAY I 5 2013 I . CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED GRANTED fl DENIED 0SETTLE ORDER -FINAL DISPOSITION flGRANTED IN PART 0OTHER 17SUBMIT ORDER cs DO NOT POST uFIDUCIARYAPPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 5 MILDRED GARCIA, Plaintiff, DECISION/ORDER Index No. 1 11383/200& Seq.No. 001 -against- THE CITY OF NEW YORK and the NEW YORK CITY HOUSING DEPARTMENT, PRESENT: Hon. Kathryn E, Freed J.S.C. Defendants. ___"____1-"_----____l_________________l_----~---"-----~-------~-- X HON. KATHRYN E. FREED: RECITATION, AS REQUIRED BY CPLRg22 1 F ) , P P @ D C O N S $ E R E D THIS MOTION. IN THE REVIEW OF c PAPERS MAY 'I6 2013 NUMBERED 1-2.......... NOTICE OF PETITION AND AFFlD ORDER TO SHOW CAUSE AND AFF ANSWERING AFFIDAVITS.. .............................................................. REPLYING AFFIDAVITS.................................................................... ...................... ...................... OTHER................................................................................................... ...................... EXHIBITS. ............................................................................................. ...).. 1 ...................... ........3-8 ......... UPON THE FOREGOlNG CITED PAPERS, THIS DECISIONlORDER ON THE MOTION IS AS FOLLOWS: Defendant City of New York moves for an Order pursuant to CPLRg 321 1(a)(7) dismissing the complaint, or in the alternative, for an Order pursuant to CPLRg3212 granting summary judgment and dismissing the complaint and all cross-claims against it. No opposition has been submitted by plaintiff or co-defendant, The New York City Housing Authority, ( hereinafter, "NYCHA"). After a review of the instant motion, all relevant statutes and case law, the Court grants the City's motion. [* 3] Factual and procedural backmound: Plaintiff brings the instant action to recover monetary damages for personal injuries allegedly sustained on May 4,2008,when she tripped and fell on the sidewalWrarnplwalkway located between the entrance of 326 Madison Street and 40 Gouverneur Street within the Vladeck Houses. The Claimant, a pedestrian, was caused to trip and fall when her foot got caught in a mis-leveled and uneven portion of the sidewalk/ramp/walkway located in the aforementioned location. . (see Notice of Claim annexed as Exhibit A ). On May 15,2008, plaintiff served her Notice of Claim. On May 20,2008, she served an Amended Notice of Claim. Plaintiff subsequently commenced the instant action via the service of a Summons and Complaint on August 20,2008. The City joined issue via service of its Answer on September 9, 2008, It should be noted that the City asserts that to date, it has not received a Verified Answer on behalf of co-defendant NYCHA. The City argues that the subject premises wherein plaintiff fell, is owned by NYCHA, and because said premises is not a public sidewalk, it exercised no control or maintenance of said premises. The City asserts that plaintiffs Amended Notice of Claim and Complaint does not state that she fell on a public sidewalk, but rather, specifies that she fell on a sidewalk/ramp/walkway located inside the confines of the Vladeck Houses. In support of its argument, the City refers to and relies on the affidavit of Mr. David Schloss, annexed as Exhibit D. In his affidavit, Mr. Schloss avers that he is a Senior Title Examiner with the New York City Law Department whose duties include the examination and certification of real estate titles in New York County, He also avers that he personally conducted title searches for 326 2 [* 4] Madison Street and 40 Gouverneur Street, New York, New York, designated on the tax map as Block 260, Lot 1. Record title for Block 260, Lot 1 on May 4,2008, was in the name of the NYCHA, pursuant to a deed recorded May 6, 1940. The City also argues that pursuant to Public Housing Law 5 40 1, NYCHA is a separate entity which is wholly distinct from the City. Since the City did not own, operate, manage, maintain or control the subject premises on the date of the incident, it did not owe any duty of care to plaintiff. Thus, as a matter of law, it cannot be held liable for plaintiffs injuries, Conclusions of law: The proponent of a summaryjudgment 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 [lstDept. 20071, citing Winemadv. New York Univ. Med. Ctr., 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. Citv ofNew York, 49 N.Y.2d 557 [1989]: Peode ex re1 Spitzer v. Grasso, 5 0 A.D.3d 535 [ 1 Dept. 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, summaryjudgment must be denied ( Rotuba Extruders v. Cemos, 46 N.Y.2d 223 [ 19781; Grossman v. Amalgamated Hous. Corp., 298 A.D.2d 224 [ 1st Dept. 20021 ). It is well settled that NYCHA is a distinct municipal entity not united in interest with [the] City ( Torres v. New York Citv Hous. Auth., 261 A.D.2d 273, 275 [lstDept. 19991 ). It is 3 [* 5] independent of the City of New York ( see Roberts v. New York City Office of Collective Bargaining, 33 Misc.3d 1224(A), 943 N.Y.S.2d 794 ( Sup. Ct, N.Y. County 201 1) ). The Housing Authority is not an alter ego of the City of New York and notice to the City may not be imputed to the Authority ( see Pavone v, Citv of New York, 170 A.D.2d 493 [2d Dept. 19911; Seif v. City of New York, 218 A.D.2d 595 [l"Dept. 19951 ). In the case at bar, the Court finds that the City has established its prima facie entitlement to summary judgment by proving that it does not own the subject premises. Thus, it cannot be held liable for any dangerous condition predicated upon the ownership of said premises. Therefore, in accordance with the foregoing, it is hereby ORDERED that defendant City's motion for summaryjudgment is granted and the complaint and any cross-claims are hereby severed and dismissed as against it and the Clerk is directed to enter judgment in favor of 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 and remove it from the Part 5 inventory. Defendant City shall serve a copy of this order on all other parties and the Trial Support Office at 60 Centre Street, Room 158, Any compliance conferences currently scheduled are hereby cancelled; and it is further ORDERED that this constitutes the decision and order of h Court. e DATED: May 4 2 0 1 3 I MAY 16 2013 d Hen. Kathryn E, Freed J.S.C. HON. KATHRYN F%ED JUSTICE OF SUPREME COURT

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