Font v Lopez

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Font v Lopez 2018 NY Slip Op 32108(U) July 20, 2018 Supreme Court, Richmond County Docket Number: 150769/2017 Judge: Thomas P. Aliotta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] RICHMOND COUNTY CLERK 07/26/2018 04:08 PM NYSCEF DOC. NO. 35 INDEX NO. 150769/2017 RECEIVED NYSCEF: 07/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND: PART C-2 ----------------------------------------------------------------------)( AMERICA FONT, Plaintiff, DECISION AND ORDER -against Index No. 150769/2017 RICARDO LOPEZ SR., ROSARIO LOPEZ and CITY OF NEW YORK, Motion No: 1352-001 Defendants. ----------------------------------------------------------------------)( The following papers numbered 1 and 2 were fully submitted on the 6th day of June 2018: Papers Numbered Defendant Lopez' Notice of Motion, Affirmation and Exhibits (Dated: March 15, 2018) ............................................................................... 1 Plaintiffs Affirmation in Opposition (Dated: May 30, 2018) ......................................................................................................... 2 Upon the foregoing papers, the motion of the defendants Ricardo Lopez Sr., and Rosario Lopez 1 (hereinafter "Lopez") for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted. This matter arises out of a trip and fall that occurred on November 22, 2016 on the sidewalk in front of the premises known as 330 Milton Avenue, Staten Island, New York. Plaintiff claims to have sustained extensive personal injuries inclusive of a fractured right elbow when she was caused to trip on a" ... dangerous, dilapidated, broken, raised, depressed, cracked 1 Plaintiff discontinued her action against defendant, The City of New York, on or about July 27, 2017. The fully executed "Stipulation of Discontinuance with Prejudice" was filed with the Richmond County Clerk on May 14, 2018. 1 of 4 [*FILED: 2] RICHMOND COUNTY CLERK 07/26/2018 04:08 PM NYSCEF DOC. NO. 35 INDEX NO. 150769/2017 RECEIVED NYSCEF: 07/26/2018 and uneven" sidewalk (see Verified Bill of Particulars and photographs of alleged accident site, Defendants' Exhibits E and F). It appears that plaintiff tripped on the height differential between sidewalk flags abutting Lopez' property. It is undisputed that Lopez owns and occupies the one family semi-attached residence abutting the subject sidewalk, i.e., 330 Milton Avenue, Staten Island, New York. Lopez moves for judgment dismissing the complaint on the grounds that Administrative Code of the City of New York §7-210 insulates them from liability inasmuch as they are "owners of a one-family residential real property that is (i) in whole or in part owner occupied, and (ii) used exclusively for residential purposes" (Administrative Code of City ofN.Y. §7-210[b]), and further, that they neither created the allegedly defective condition, made negligent repairs to the sidewalk, nor caused the condition to occur through special use. Plaintiff opposes the motion asserting that there is an issue of fact as to whether the property is used "exclusively for residential purposes" inasmuch as Ricardo Lopez, Sr. cites this address for annual renewal of his taxi medallion with the New York City Taxi and Limousine Commission, and for annual payment of income taxes (see Testimony of Ricardo Lopez, pp 1218, Defendants' Exhibit G). As previously indicated, defendants' motion for summary judgment dismissing the complaint and cross claims is granted. Pursuant to New York City Administrative Code §7-210, 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 injury proximately caused by its failure to so maintain the sidewalk, unless the property is exempt, i.e., the property is a "one-, two-or three-family residential property that is Font v. City, et al. Index No.: 150769/2017 Page 2of4 2 of 4 [*FILED: 3] RICHMOND COUNTY CLERK 07/26/2018 04:08 PM NYSCEF DOC. NO. 35 INDEX NO. 150769/2017 RECEIVED NYSCEF: 07/26/2018 (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (Administrative Code of the City ofNew York, §7-210[b]). The statutory language recognizes that it "was inappropriate to expose small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair" (Johnston v. Manley, 150 AD3d 1210, 1211 [2d Dept. 2017], quoting Coogan v. City ofNew York, 73 AD3d 613 [1st Dept. 2010], internal quotations omitted). Here, defendants have sufficiently established through, e.g., their deposition testimony, deed to the premises, and records from the New York City Department of Buildings (see Defendants' Exhibits I and J), that they are the sole owners of the subject property, which they use solely for residential purposes, and that they neither performed work nor hired anyone to make repairs at the subject location. Accordingly, Lopez have established primafacie that they are exempt from liability under the Administrative Code. In opposition, the plaintiff has failed to submit any evidence to rebut the foregoing or otherwise raise an issue of fact (see Zuckerman. v. City ofNew York, 49 NY2d 557, 562). Plaintiffs argument that the property is not being "used exclusively for residential purposes" is without merit. The Court finds Lopez' use of his home address for receipt of mail from the NYC Taxi and Limousine Commission is "merely incidental" to his use of the property and does not prevent the exemption under Administrative Code §7-210 from applying (see DeB!asi v. City ofNew York, 157 AD3d 656 [2d Dept. 2018]; Koronkevich v. Dembitzer, 147 AD3d 916 [2nd Dept. 2017]; and Coogan v. City ofNew York, 73 AD3d 613 [Pt Dept. 2010]). Font v. City, et al. Index No.: 150769/2017 Page 3of4 3 of 4 [*FILED: 4] RICHMOND COUNTY CLERK 07/26/2018 04:08 PM NYSCEF DOC. NO. 35 INDEX NO. 150769/2017 RECEIVED NYSCEF: 07/26/2018 Based upon the foregoing, it is ORDERED, that the motion for summary judgment of defendants Ricardo Lopez Sr., and Rosario Lopez is granted; and it is further ORDERED, that the Clerk enter judgment in favor of defendants dismissing the complaint. ENTER, Dated: July./C, 2018 HON. THOMAS P. ALIOTTA, J.S.C. Font v. City, et al. Index No.: 150769/2017 Page 4of4 4 of 4

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