Evans v YBBME LLC

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Evans v YBBME LLC 2019 NY Slip Op 30410(U) February 19, 2019 Supreme Court, Kings County Docket Number: 501785/2018 Judge: Reginald A. Boddie 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. [* 1] INDEX NO. 501785/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/21/2019 At LA.S. Part 7 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State of New York, on the 19th day .February of20 19. . PRESENT: Honorable Reginald A. Boddie Justice, Supreme Court -------------)C ANGELA EVANS, Inde)CNo. 501785/2018 Cal. No. 16 ~ /Mf &"0/1..' DECISION AND ORDER Plaintiff, -againstYBBMELLC, Defendant. ______________________________________________________ Recitation, as required by CPLR motion: 1 I J t ------------)C S 2219 (a), of the papers considered in the review of this • Papers Df. Notice of Motion & Anne)Ced Affirmation/Affidavits PI. Affirmation in Opposition Df. Reply Numbered 1-2 3 4 r. Upon the foregoing cited papers, and after oral argument, the decision and order on defendants' motion for summary judgment, pursuant to CPLR 3212, is as follows: In this personal injury action, plaintiff alleges she tripped and fell on the sidewalk at the comer property, known as 16 Bartlett Street, on the Harrison Avenue side, approximately 25 feet from the Bartlett Street comer, and was injured. Defendant City of New York moved for summary judgme)ft alleging the subject property is non-exempt under the Administrative Code of the City 6fNew York S7-21O. Plaintiff opposed, alleging the City sidewalk map produced was illegible and the City can not establish absence of fault since it has water monitoring wells at the 1 ...•.. ~-::=-----~----1 of 5 [* 2] INDEX NO. 501785/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/21/2019 subject location. Summary judgment is a drastic remedy that should not be granted where there is any doubt regarding the existence of material issues of fact (Daliendo vJohnson, 147 AD2d 312, 317 [2d Dept 1989]). "The proponent of a motion for summary judgment 'must make a prima facie showing of entitlement to judgment as a matter of law ... Failure to make such a prima facie showing requires a denial of the motion; regardless of the sufficiency of the opposing papers'" (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373,384 [2005], quoting Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; citing Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]). The proponent of a motion for summary judgment must establish its defense or cause of action sufficiently to warrant a court directing judgment in its favor as a matter oflaw; thus the defendant bears the burden to dispel any question of fact that would preclude summary judgment . . (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557,562 [1980], citing Friends of Animals, 46 NY2d at 1067-1068; Ryan v Trustees of Columbia Univ. in the City ofN Y, Inc., 96 AD3d 551 [1st Dept 2012]). Only after the movant meets its burden, does the burden shift to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman, 49 NY2d at 562 [citations omitted]; Kershaw v Hospitalfor Special Surgery, 114 AD3d 75,82 [1st Dept 2013], citing Kosson v Algaze, 84 NY2d 1019 [1995]). "Motions for summary judgment may not be defeated merely by surmise, conjecture or suspicion" (Shaw v Time-Life Records, 38 NY2d 201,207 [1975], citing Shapiro v Health Ins. Plan of Greater N Y, 7 NY2d 56, 63 [1959]; Bankfor Sav. v Rellim Constr. Co., 285 NY 708, 709 [1941]). Plaintiff must establish the existence of material facts to create a triable 2 2 of 5 [* 3] INDEX NO. 501785/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/21/2019 issue of fact (CPLR 3212 [b]; Shaw, 38 NY2d at 207 [citations ,omittedD. . Section 7-210 of the Administrative Code of the City of New York imposes liability for sidewalk accidents onthe abutting property owner. The statute, effective September 14, 2003, provides, in relevant part, that "[i]t shall be the duty of the owner ofre,al property abutting any sidewalk, ... to maintain such sidewalk in a reasonably safe condition" (Administrative Code S 7-210 [aD. This includes liability for personal injury "caused by the failure of such owner to , maintain such sidewalk in a reasonably safe condition" (Administrative Code S 7-210 [bD. However, there is a statutory exception to this rule. The statute exempts "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (Administrative Codes 7-210 [cD. Where a property. falls . wit~in the statutory exemption, prior written notice of the defective condition must be given before liability may be imposed on the City (Fernandez v City of New York, 19 MisC3d 1135(A) [Sup Ct, New York County; citing see Administrative Code ss7,-210 [d], 7-201 [c][2]; Farrell v City of New York, 49 AD3d 806, 807 [2d Dept 2008]; Yertsberger v City of New York, 34 AD3d 453, 455 [2d Dept 2006D. Here, the City produced acceptable proof that the subject property is not a one-, two- or three-family dwelling,used for residential purposes. Rather, it isa six story building consisting of , ten apartments. Therefore, the property is not exempt from liability imposed by S 7-210 of the ' Administrative Code, and the prior written notice law' is inapplicable. It therefore follows that the . Big Apple map produced by the City has no relevance'since notice to the City is not at issue. Previous courts have however recognized two exceptions to f7-210 for conferring liability on the City; where the City causes and creates a dangerous condition or when a special 3 I , 3 of 5 I [* 4] INDEX NO. 501785/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/21/2019 >, use conferred a special benefit upon the City (see Yarborough iV City of New York, 10 NY3d 726, 728 [2008], citing see Amabile v e;ity of Buffalo, 93 NY2d 471, 474 [1999]). For the cause and. create exception to apply, the injury must have resulted from an affinnative act of negligence by the City "that immediately results in the existence of a dangerous. condition" (Yarborough, 10 NY3d at 728, citing Oberler v City of New York, 8 NY3d 888,889 [2007] [emphasis omitted], quoting Bielecki v City of New York, 14 AD3d 301 [1st Dept 2005]). The special use doctrine "authorizes the imposition of liability against any entity that installs an object onto the sidewalk or roadway, for injuries arising out of circumstances where the entity has been permitted to interfere with a street solely for private use and convenience which is in no way connected with the public use" (Posner v New York City Tr. Aufh., 27 AD3d 542, 543 [2d Dept2006), citing Kaufman v Silver, 90 NY2d 204, 207 [1997]; Ausderan v City of New York, 219 AD2d562, 563 [1st Dept 1995]). Here., plaintiff avers the City has made special use of the subject sidewalk and caused and created a condition which led to plaintiffs accident and injury. Plaintiffproduced a photo of the accident location, attached as Exhibit B to its opposition papers, which represents a square cut out of the middle of the sidewalk with a circle in the middle. Plaintiff contends that this could be related to the City's well monitors. Although the City included a drawing in its moving papers which evidence monitors in the area, it did not address the issue in those papers. Instead, the City indicated in its reply that there were no well monitors in the area of plaintiff s accident. in its efforts to explain the omission, the City contends that the well monitors are limited to the Bartlett Street side of the property and the accident occurred on the Harrison Avenue side of the property, '. 4 4 of 5 [* 5] INDEX NO. 501785/2018 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 02/21/2019 However, the documentary evidence shows otherwise. Exhibit G, annexed to the motion, includes a map which clearly shows a well monitbr on Harrison Avenue near the comer of Bartlett Street, proximate to the,location of the accident. Thus, questions of fact exist as to whether the City caused and created the accident and whether its special use of the sidewalk contributed to plaintiffs accident. Accordingly, the City's motion for summary judgment is denied. E N T E R: ~ Hon. Reginald A. Boddie Justice, Supreme Court ( 5 5 of 5

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