9-11 Riverdale Realty, LLC v City of Yonkers

[*1] 9-11 Riverdale Realty, LLC v City of Yonkers 2018 NY Slip Op 51496(U) Decided on October 2, 2018 Supreme Court, Westchester County Ecker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 2018
Supreme Court, Westchester County

9-11 Riverdale Realty, LLC, Plaintiff,

against

City of Yonkers and CITY OF YONKERS DEPARTMENT OF HOUSING AND BUILDINGS, Defendants.



62569/2015



Appearances

Shapiro and Associates PLLC

Attorneys for Plaintiff

Via NYSCEF

Office of the Corporation Counsel

City of Yonkers

Attorneys for Defendants

Via NYSCEF
Lawrence H. Ecker, J.

The following papers numbered 1 through 38 were read on the motion of CITY OF YONKERS and CITY OF YONKERS DEPARTMENT OF HOUSING AND BUILDINGS ("collectively defendant") [Mot. Seq. 5], made pursuant to CPLR 3212, for an order granting summary judgment as against 9-11 RIVERDALE REALTY, LLC ("plaintiff"), dismissing the complaint:

PAPERS NUMBERED

Notice of Motion, Affirmation, Memorandum of Law 1-33

Exhibits A-DD

Affirmation in Opposition, Affidavit in Opposition,

Memorandum of Law, Exhibit 1, 34-37

Affirmation in Reply 38

Upon the foregoing papers, the court determines as follows:

According to the complaint, plaintiff sustained monetary damages due to defendant having ordered, in March 2015, the wrongful demolition of two buildings owned by plaintiff known as 9 and 11 Riverdale Avenue in Yonkers ("the Properties"). Plaintiff alleges that it received no notification from defendant prior to the demolition. When it was discovered, plaintiff claims, it came as a complete surprise. Thereafter, on May 1, 2015, plaintiff served its Notice of Claim [Ex. A] on defendant. Plaintiff commenced the action by summons and complaint on or about July 30, 2015. Defendant answered on September 2, 2015.

The Properties are two separate buildings, constructed in 1927, consisting of one two-story masonry and frame building (9 Riverdale Ave.)and one three-story masonry and frame building (11 Riverdale Ave.). Both buildings were unoccupied and vacant from at least 2006.

In his affidavit in support of defendant's motion, Christopher DeSantis, professional engineer, Yonkers Fire Department Fire Inspector, states that, in October 2011, he made an inspection of 9 Riverdale Ave. at the request of the Department of Housing and Buildings ("DHB"). At the time, he observed that the second floor had suffered a partial collapse into the first floor, there were numerous broken windows and the debris created heavy fire loading. He recommended that the building be demolished at the time, but did not believe that immediate demolition was required or that there was evidence of imminent harm [NYSCEF No. 155]. Thereafter, at a hearing in June 2012, he again recommended demolition, but did not find the property to be an immediate danger to the public.

Saadia Shapiro, Esq. ("Shapiro") is the managing member and sole employee of plaintiff 9-11 Riverdale Realty LLC.("Riverdale Realty"). On November 13, 2013, Riverdale Realty bought the Properties for $270,000.

On November 19, 2013, Nick Faustini, Shapiro's architect ("the Architect"), emailed Shapiro seeking permission to share the future plans for the Properties with the DHB and the Planning Board. Shapiro responded with concerns regarding whether the information may lead to variance rejection. The same day, the Architect responded that:

"The DOB Commissioner also asked if any work was planned for the existing building. He said that the building will need to be addressed ASAP and will require shoring or retro fit to make it safe. Alternatively, it can also be demolished. Permits are required for either option"'

Approximately a week later, on November 25, 2013, William Schneider, the Commissioner of the DHB ("the Commissioner") emailed Shapiro (at "sshapiro @shapirolawyers.net"), stating:

"The existing buildings are in severe disrepair and work needs to be done to either make them stable and safe or demolish. Please let me know your intentions regarding this matter" [NYSCEF No. 141].

The next day, on November 26, 2013, the Architect emailed Shapiro telling him that:

"I received a phone call from the Yonkers DOB Commissioner yesterday & he said that he has received inquires regarding the status of 9-11 Riverdale Ave. He wanted to know the ownership status/ contact info and the plans for the safeguarding/shoring and/or [*2]demo of the existing building. I advised the Commissioner that I was unaware of the exact details and that I would reach out to you to let you know of his concerns"[NYSCEF No. 143].

Approximately two months later, on February 12, 2014, the Architect wrote Shapiro that:

"I was at the building dept. on Monday for another project and the commissioner asked me again about the ownership status of 9-11 Riverdale.As I mentioned previously, I am not sure about the ownership status if you or your client is in contract, or now own the property or not. In any event, he said he tried to contact your office, but was unable to reach anyone. The commissioner said that if they can't reach anyone, the city will demolish the building and lien the property for costs of the demolition.If you do own the property, or know who does, please contact [the Commissioner] at the DOB (914) 377-6500 to discuss these issues. Thank you." [NYSCEF No. 143].

Shapiro responded that, among other things:

"I don't understand. I own the property . . . they must have wrong phone number to reach me please correct them give them the number this is crazy!!! Office not cell" [NYSCEF No. 143].

That Architect than informed Shapiro that he had forwarded "your contact info as requested" to the Commissioner. The contact information provided included two telephone numbers and the email address of "sshapiro@shapirolawyers.net" [NYSCEF Nos. 142,143].

On April 9, 2014, the DHB notified Shapiro that he must promptly join the Vacant Building Registry. The DHB employee, Building Inspector Matthew Foley ("the Building Inspector"), also inquired:

"What your intentions are for the building? Repair or demolish. When will the necessary permits be filed and a scenario of how the building will be kept safe and secure if the intention is to repair?" [NYSCEF No. 145].

Shapiro immediately responded that it was his intention to demolish and build a new building, and that the Architect is working on plans for submission. [Id.]. The email originated from "sshapiro@shapirolawyers.net" and listed Shapiro's address as "Shapiro & Associates, Attorneys at Law, PLLC, 3145 Coney Island Avenue, Brooklyn, NY 11235".

On July 7, 2014, the Architect included Shapiro on an email in which he stated that the Commissioner had again inquired as to the status of the Properties. The Architect wrote that the Commissioner had:

"reiterated that non-action on the part of the owner will cause him to take action to demolish the building and lien the property." [NYSCEF No. 144].

In the email, the Architect provided to Shapiro the Commissioner's contact information and asked that Shapiro follow up [NYSCEF No. 144]. Shapiro's representative, with Shapiro "cc'd," responded with an inquiry as to whether the Architect could recommend a company that could do the demolition at a cheap price. [NYSCEF no. 144]. On July 15, 2014, the Architect answered that it might be more cost effective to shore the building as opposed to demolishing it, and asked Shapiro to contact him if that was a possibility.

On December 23, 2014, Shapiro submitted a Vacant Building Registration Form. [*3]The address listed on the form for the business was "3145 Long Island Avenue, Brooklyn, NY 11235". The check submitted for the corresponding fees, however, listed Shapiro's address as "3145 Coney Island Avenue, Brooklyn, NY 11235-5369." [NYSCEF No. 87]

In January 2015, defendant received a complaint about the Properties. As a result of the complaint and defendant's concerns, an inspection was conducted by the Building Inspector on January 12, 2015 ("the January 2015 Inspection"). DeSantis accompanied the Building Inspector to assist in gaining access to the premises. In his affidavit, DeSantis avers that he noticed the condition of the Properties was in disrepair, but he did not prepare a report at this time [NYSCEF No. 155].

At the conclusion of his inspection, the Building Inspector noted several structural defects, and sent a "Notice of Unsafe Conditions with Order to Correct" ("the Notice to Correct") to plaintiff, dated January 22, 2015. [NYSCEF No. 87]. The Notice to Correct was mailed to the "3145 Coney Island Avenue" address. The Building Inspector sent the Notice to Correct again by Certified Mail, Return Receipt requested to plaintiff at the "3145 Coney Island Avenue" address. The unopened Notice was returned by the post office sometime after March 23, 2015. [NYSCEF No. 92].

The Notice to Correct listed numerous structural defects on both buildings. It stated that the buildings were "both in complete disrepair, are not being maintained, create a fire hazard and create an extreme nuisance not only to the neighborhood but to all citizens of Yonkers and should be demolished as soon as possible." It directed that, immediately upon receipt of the notice, Shapiro was to contact the DHB and file for a demolition permit to remove the dangerous condition. Shapiro was directed to board up all openings, and to promptly inform the DHB whether he assented to the removal of the buildings. The Notice to Correct also provided that, should Shapiro assent to the demolishing the buildings, he had "24 hours from the time of this notice is served on you, within which to commence work. You are required (sic) sufficient labor and assistance to perform this work as expeditiously as possible . . . Failure to secure, make safe, or remove the above captioned premises/structure, will make you liable for criminal penalties, and/or other appropriate actions taken to remedy the conditions described herein" [NYSCEF No. 91].

Between January and March 2015, the area was subject to several snowstorms.

In March 2015, the Commissioner requested further inspections of the premises by the DHB and the Yonkers Fire Department.

On March 20, 2015, the Building Inspector and DHB Plan Examiner David Barbuti, registered architect, inspected the premises, and Barbuti issued a report ("the Barbuti Report") [NYSCEF No. 154]. The inspectors were unable to enter the structures and therefore performed the inspection from outside the buildings and on an adjacent rooftop. Barbuti found that the interior of the structures had collapsed and the first floor was strewn with debris. Sections of the roof structure and the rear porch had collapsed. He stated that:

"The sections of collapsed roof and floors, compounded by damage from the elements have deteriorated the structural integrity of this structure. It is my professional opinion that this building is a safety hazard to the public and adjacent properties, and should be demolished immediately" (emphasis added).[NYSCEF No. 154].

In his affidavit in support of this motion, Barbuti explains that he, during the inspection, noted that the interior of 9 Riverdale Ave. (the two-story building) had collapsed, the first floor was strewn with debris and sections of the roofing contained holes. He also observed that 11Riverdale Ave. (the three-story building) exhibited significant structural damage, including the collapse of a section of the roof and of the rear porch. [NYSCEF No. 153]. Barbuti opined that:

"It was my judgment that the structural integrity of the buildings upon the Properties were unsound. It was also my professional opinion that the Properties were a hazard to the public and adjoining properties and required immediate demolition. I recorded my opinion in a report, dated March 20, 2015, which I provided to Commissioner Schneider." [NYSCEF No. 153].

DeSantis also inspected the Properties on March 20, 2015 [NYSCEF No. 155, 156] ("the DeSantis Reports"). In his report, DeSantis found that, in terms of 9 Riverdale Ave., the building had suffered a complete internal collapse of the first floor and second floor structural members. The collapse appeared to extend to the basement, with heavy piles of combustible material strewn within the structure. The roof structural members were exposed with numerous holes in the roofing. The front facade had large vertical cracks extending from the storefront entrance upward as well as numerous smaller horizontal cracks. The rear portions of the south and north sides were visible and showed deterioration at window openings as well as along the roof line. The roof structure, supporting members, fascia boards and sheathing were deteriorated, resulting in the compromise of the structural integrity of the building. He opined, based on these observations, that:

"it is our professional opinion that structural integrity of the building is compromised and is hazard to life and property and as such should be demolished or repaired immediately" (emphasis added). [NYSCEF No. 156].

In his affidavit, DeSantis avers that, at the time of the inspection, he was particularly concerned with the large cracks extending from the storefront entrance upward. While he had noticed the cracks during his January 2015 visit, the cracks had increased in size and amount. In addition, he observed a "new" wide gap opening in the front of the building, which was evidence that further deterioration could result in the failure of the front facade [NYSCEF No. 155]. DeSantis avers that "as of March 25, 2015, I was of the professional opinion that the structural integrity of 9 Riverdale Avenue was compromised and was a hazard to life and property that required an immediate demolition." [NYSCEF No. 155].

In terms of 11 Riverdale Ave., DeSantis's inspection revealed numerous similar structural defects. In addition, the rear wall had buckled and pushed out toward the rear yard. The exposure 3-4 corner (north-west) had suffered a collapse and the exposure 4 (north) wall was missing for approximately 15 feet from the rear wall. The roof had collapsed. A plumbing vent stack had broken free and was leaning outward and the chimney was deteriorating and brickwork was falling therefrom. The corner of the structure had pulled away from the adjacent structure indicating building movement occurring in a northward direction. The main supporting members of the rear of the structure were damaged and broken. The rear yard was strewn with debris and vegetation. He opined, based on his observations that:

"it is our professional opinion that structural integrity of the building is compromised and is hazard to life and property and as such should be demolished or repaired immediately."(emphasis added).[NYSCEF No.156].

He later noted that 11 Riverdale Ave. suffered a collapse of the north-west corner of the structure and furnished copies of photographs of the buildings.

In his affidavit in support of this motion, DeSantis repeats these findings concerning 11 Riverdale Ave. and states that "given the snow and weather we experienced between January and March, it was my professional opinion that due to the exposure of the internal structure to the elements (in part because of the partial wall collapse), there was an increase in structural instability of the building." He found that the condition of the basement level of the building was in a complete state of disrepair with debris strewn around, with the beams collapsed or deteriorated and no longer providing structural support to the two stories above. DeSantis avers that, "as of March 25, 2015, I was of the professional opinion that the structural integrity of 11 Riverdale Ave. was compromised and was an immediate hazard to life and property that required an immediate demolition" [NYSCEF No. 155].

The Building Inspector (Foley) also submits an affidavit in support of defendant's motion. In the affidavit he, in sum and substance, confirms Barbuti's findings from the March 20, 2015, inspection. Foley avers that he and Barbuti determined that the Properties required "immediate demolition" and that they recommended the same to the Commissioner [NYSCEF No. 149].

The inspection reports were forwarded to the Commissioner on Thursday, March 26, 2015.[FN1]

On Monday, March 30, 2015, the Commissioner obtained an emergency declaration from the Mayor, permitting the demolition of the Properties and a demolition permit application was made and issued [NYSCEF No. 158]. On Tuesday, March 31, 2015, the demolition of the Properties was commenced and the work was completed on April 2, 2015.

Plaintiff commenced this action on July 20, 2015 and filed an amended complaint on November 10, 2017. The amended complaint is predicated on allegations that defendant, among other things, failed to provide notice and an opportunity for plaintiff to be heard and to correct conditions at the Properties before demolishing the two buildings. The amended complaint alleges seven causes of action: trespass to land [first cause of action], intentional destruction of property [second cause of action], conversion [third cause of action], wrongful demolition [fourth cause of action]; negligence [fifth cause of action]; violation of 42 U.S.C. 1983 [sixth cause of action]; and violation of due process under the fifth amendment [seventh cause of action]. The demand for damages as to each cause of action is $1,400,000 plus punitive and treble damages, attorneys' fees, interest, costs and disbursements.

Issue was joined by the filing and service of defendant's answer to the amended complaint on November 29, 2017. In the amended answer, defendant denies all [*4]allegations and sets forth affirmative defenses of: contributory negligence, failure to mitigate damages, governmental immunity, nonarbitrary actions, actions taken in furtherance of public safety, statute of limitations, failure to exhaust administrative remedies, frivolous litigation, not subject to punitive damages, and failure to state a cause of action. As part of the "frivolous litigation" defense, defendant seeks "costs and attorneys' fees in the amount of ten thousand ($10,000) dollars." [NYSCEF No. 112].

The deposition of Riverdale Realty, by Shapiro, was taken on July 18, 2017. In addition, the Building Inspector (Foley), the Commissioner (Schneider) and DeSantis were deposed. The EBT's were also taken of nonparty Doran Shapiro and Nesya Realty, LLC.

A Note of Issue was filed on September 28, 2017. Thereafter, it was stricken by this court's decision of January 9, 2018. A new Note of Issue was filed on March 13, 2018. On or about April 26, 2018, defendant filed the present motion for summary judgment dismissing the complaint.

In sum, defendant argues that it is entitled to summary judgment as a matter of law because: the emergency demolition was a permissible exercise of defendant's police powers, governmental immunity applies, and the alleged tort claims fail to state causes of action. In addition to numerous exhibits and deposition transcripts, defendant submits affidavits from Schneider, Foley, Barbuti and DeSantis in support of the motion.In opposition, plaintiff submits the affirmation of plaintiff's attorney, the affidavit of Shapiro and copies of the inspection reports. In essence, plaintiff argues that defendant failed to set forth a prima facie showing that the Properties posed an imminent danger to the public and the jury could conclude that no such danger was present. In addition, plaintiff maintains that the decision to demolish without giving notice and an opportunity to be heard cannot be classified as a discretionary action because it is a violation of fundamental due process. As such, defendant's decision to demolish the Properties, plaintiff asserts, is not protected by governmental immunity (Scott v Town of Duanesburg, 176 AD2d 989 [3d Dept 1991]).

In reply, defendant alleges that the record establishes, prima facie, that the Properties posed an imminent or immediate threat to public safety. In addition, defendant points out that plaintiff has not provided even a scintilla of evidence that contradicts the proof in the record showing that the dilapidated condition of the Properties presented an immediate risk of harm to the public. In any event, defendant maintains, governmental immunity applies to its decision to demolish and, consequently, plaintiff's claims are barred.

It is well-settled that the proponent of the summary judgment motion 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 (Zuckerman v City of New York, 49 NY2d 557 [1980 ]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; De Souza v Empire Transit Mix, Inc., 155 AD3d 605 [2d Dept 2017]). Importantly, "[o]nce this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., supra; Alvarex v Madeline D'Anthony Enterprises, Inc.v Sokolowsky, [*5]101 AD3d 606 [1st Dept 2012]; see De Souza v Empire Transit Mix, Inc., supra; Pinelawn Cemetery v Metropolitan Transp. Auth., 155 AD3d 1069 [2d Dept 2017]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to raise a triable issue of fact (Zuckerman v City of New York, supra; Cabrera v Rodriguez, 72 AD3d 553 [1st Dept 2010]; Hammond v Smith, 151 AD3d 1896 [4th Dept 2017]).

"In the exercise of its police powers [a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger" (Iavarone v City of New York, 129 AD3d 776 [2d Dept 2015]; One Monroe, LLC v City of New York, 89 AD3d 812 [2d Dept 2011]). "[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion" (Iavarone v City of New York, supra, quoting Catanzaro v Weiden, 188 F.3d 56, 63 [2d Cir. 1999]).

Here, defendant submitted voluminous evidence establishing, prima facie, the existence of such exigent circumstances, thereby showing that its decision to cause the demolition of the subject buildings was not arbitrary or an abuse of discretion (Iavarone v City of New York, supra; Merino v City of Middletown, 272 AD2d 454 [2d Dept 2000]; One Monroe, LLC v City of New York, supra; Tucker v City of Albany Dept. of Fire Emergency and Bldg. Services, 57 AD3d 1078 [3d Dept 2008]). Specifically, the testimony, affidavits, and inspection reports clearly set forth proof that extremely dangerous conditions existed, and were quickly deteriorating, at the Properties at the relevant time, and those deteriorating hazardous conditions created a significant, immediate risk to public safety. Under the circumstances, that proof constitutes competent evidence showing that the relevant officials reasonably believed that an emergency did in fact exist, and their discretionary invocation of the emergency procedure was not arbitrary or an abuse of discretion as a matter of law.

In opposition, plaintiff fails to raise a triable issue of fact as to the issue (Iavarone v City of New York, supra; One Monroe, LLC v City of New York, supra). Simply put, plaintiff submits no proof to contradict defendant's evidence or to generate a triable issue of fact with respect to the condition of the premises at the time that the demolition was ordered (see Zuckerman v City of New York, supra). In fact, in his affidavit, plaintiff does not claim that he ever visited the premises or that he ordered the premises inspected, despite the numerous communications from the DOH that it was seriously concerned about the risk to the safety of the public created by the condition of the Properties. Nor does plaintiff provide an affidavit from the Architect or any other expert or fact witness. As such, plaintiff has not opposed the facts set forth in the affidavits and inspection reports submitted by defendant's experts and witnesses, all of which are based on personal inspections of the premises.

Contrary to plaintiff's argument, the lack of the specific word "imminent" in the inspection reports does not warrant a different conclusion here, as there is no legal [*6]precedent cited that restricts the government's ability to act in an emergency situation based on whether the word "imminent" is utilized in the inspection reports that are considered in reaching the determination to take action. Certainly, the call for immediate demolition in the Barbuti report and the recommendation for immediate action, including demolishing the Properties, in the DeSantis Reports, combined with the testimony and affidavits submitted, prove that an emergency situation existed at the time that the decision to demolish the Properties was reached. Plaintiff has offered no competent evidence contradicting this conclusion and, accordingly, defendant is entitled to summary judgment dismissing the complaint.

The court concludes that, in any event, defendant has also set forth a prima facie entitlement to judgment as a matter of law by establishing the applicability of the defense of governmental immunity to its actions (Farm Family Cas. Ins. Co.v Village of Washingtonville, 147 AD3d 1028 [2d Dept 2017]; see Reynolds v Kreb, 143 AD3d 1256 [4th Dept 2016]). "That defense shields public entities from liability for discretionary actions taken during the performance of governmental functions" (Reynolds v Kreb, supra, quoting Valdez v City of New York, 18 NY3d 69, 75 [2011]). Here, section 56-83 of the Yonkers City Code affords the Commissioner the discretion to demolish a building in an emergency situation (Reynolds v Krebs, supra).[FN2] Plaintiff failed to raise a triable issue of fact in opposition as to this issue, and, as such, the causes of action in the complaint are barred by the governmental immunity defense.

The court notes that, despite repeated requests by defendant that plaintiff remedy or demolish the Properties in furtherance of assuring public safety, which were communicated to plaintiff as early as the date of purchase in November 2013, plaintiff took no action to remedy the obviously dangerous conditions or to safe guard the public. Moreover, those repeated communications by defendant to plaintiff placed him on notice that the Properties were a risk to public health and vulnerable to emergency demolition by defendant. As plaintiff decided to ignore the communications and elected to permit the Properties to continue to dangerously deteriorate, for more than [*7]seventeen months and through two winter seasons, without taking any remedial action, he created, and was therefore on notice of, the emergency situation that led to the demolition of the buildings.

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby

ORDERED that the motion of motion of defendants CITY OF YONKERS and CITY OF YONKERS DEPARTMENT OF HOUSING AND BUILDING [Mot. Seq. 5], made pursuant to CPLR 3212, for an order granting summary judgment as against plaintiff 9-11 RIVERDALE REALTY, LLC dismissing the complaint is granted and the complaint is dismissed in its entirety.

The foregoing constitutes the Decision/Order of the court.

Dated: October 2, 2018

White Plains, New York

E N T E R,

HON. Lawrence H. Ecker, J.S.C.

Footnotes

Footnote 1:Additional photographs of the premises were taken on March 31, 2015.

Footnote 2:In addition to the reasons set forth above, defendant is entitled to summary judgment on the causes of action within the complaint for other reasons. As for the constitutional claims based on 5th amendment and federal statute, plaintiff failed to demonstrate that there is a requirement of notice under the circumstances. In any event, in the absence of any allegation by plaintiff that post-deprivation remedies were either unavailable or insufficient, the due process claim must be dismissed for failure to state a claim (Idlewild 94-100 Clark, LLC.v City of New York, 27 Misc 3d 1006 [Sup. Ct. New York County 2010]). As for the conversion cause of action, an action sounding in conversion does not lie where the property involved is real property (Dickinson v Igoni, 76 AD3d 943 [2d Dept 2010]). Nor does the intentional destruction of property claim based on the allegation that the basements were separate from the buildings set forth a cause of action as there is no legal precedent or facts presented that support that contention. Moreover, defendant demonstrated a lawful and justified entrance to the property, to which plaintiff fails to raise a triable issue of fact, and, therefore, defendant is entitled to summary judgment on the negligence and trespass causes of actions (see Tucker v City of Albany Dept.of Fire Emergency and Building Services, 57 AD3d 1078 [3d Dept 2008]).