Fine v City of New York

[*1] Fine v City of New York 2015 NY Slip Op 51254(U) Decided on July 27, 2015 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 27, 2015
Supreme Court, Queens County

Meredith Fine, Plaintiff,

against

The City of New York and BANK RAKYAT INDONESIA a/k/a PT. BANK RAKYAT INDONESIA, Defendants.



11890/13



Lisa O'Connor, Esq.Karmer & Pollack, LLP25 Roslyn Rd. Mineola, NY 11501

James O'Hare, Esq.Jeffrey Samel & Partners, LLP150 BroadwayNew York, NY 10038

Cristina A. Knorr, Esq.Corporation CounselAttorney for Defendant)89-17 Sutphin Boulevard, Rm. 456Jamaica, NY 11435
Phyllis Orlikoff Flug, J.

The following papers numbered 1 to 10 read on this motion

Notice of Motion1 - 2

Notice of Motion3 - 4

Affirmation in Opposition (4)5 - 8

Reply Affirmation (2)9 - 10

Defendant, P.T. Bank Rakyat Indonesia i/s/h/a Bank Rakyat Indonesia a/k/a PT. Bank Rakyat Indonesia (hereinafter "Rakyat"), moves inter alia for summary judgment, dismissing plaintiff's complaint and all cross-claims asserted against it. Defendant, the City of New York (hereinafter "City"), separately moves inter alia for summary judgment, dismissing plaintiff's complaint and all cross-claims asserted against it.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on June 25, 2012, as a result of a trip and fall due to a defective condition on the sidewalk of 70th Avenue, abutting the premises located at 69-58 Harrow Street, in the County of Queens, City and State of New York.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Pursuant to New York City Administrative Code § 7-210, the owner of real property abutting a public sidewalk is liable for damages resulting from his or her failure to maintain the sidewalk in a reasonably safe condition except in the case of one-, two, or three-family residential real property that is in whole or in part owner occupied and is used exclusively for residential purposes.

Defendant Rakyat has established that it cannot be held liable [*2]under Administrative Code § 7-210 by submitting inter alia the deposition testimony of Banu Juwono, an operations manager for PT Bank, that the subject property is a single family home that is occupied by him and his family and used exclusively for residential purposes (See Velez v. City of New York, 97 AD3d 813, 814 [2d Dept. 2012]; Boorstein v. 1261 48th St. Condominium, 96 AD3d 703, 704 [2d Dept. 2012]).

Contrary to the contentions of plaintiff and co-defendant, the Second Department has expressly held that Administrative Code § 7-210 does not preclude a corporation from invoking the residential exemption (See Boorstein, supra, at 703-04).

In addition, as defendant Rakyat may invoke the residential exemption, co-defendant the City of New York fails to demonstrate that it did not have a duty to maintain the subject area pursuant to Administrative Code § 7-210 and cannot establish a prima facie entitlement to judgment.

Nevertheless, as defendant Rakyat fails to allege or otherwise demonstrate that it did not create the defective condition or cause it to occur through some special use, Rakyat may still be liable, even absent a statutory duty (See Alleyne v. City of New York, 89 AD3d 970, 971 [2d Dept. 2011]; Campos v. Midway Cabinets, Inc., 51 AD3d 843, 843-44 [2d Dept. 2008]; see also John v. City of New York, 77 AD3d 792, 793 [2d Dept. 2010]; see generally Breger v. City of New York, 297 AD2d 770, 771 [2d Dept. 2002]).

Accordingly, both motions for summary judgment are denied.

July 27, 2015 ____________________

J.S.C.