Opinion
Index No. 159147/2019
12-02-2022
DIJON HOLMES, Plaintiff, v. THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, THE GOSPEL SPREADING CHURCH Defendant.
Unpublished Opinion
PRESENT: HON. LESLIE A. STROTH Justice.
DECISION + ORDER ON MOTION
HON. LESLIE A. STROTH Judge.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27, 28,29,30,31,32,33,34,35,36,37,38,39,40,41 were read on this motion to/for JUDGMENT - SUMMARY.
Defendants the City of New York and the City of New York Department of Transportation (together, the City) seek an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint and all cross-claims against them under the Administrative Code of the City of New York § 7-210. In this action, plaintiff Dijon Holmes (plaintiff) alleges that he tripped and fell due to a hole in the sidewalk adjacent to 210-220 West 145th Street, New York, NY on May 23, 2019.
The City argues that it is not liable for plaintiffs injuries, because it is not the record owner of the subject property, and that the owner of the property is not exempt from the liability shifting provision of Administrative Code § 7-210. Furthermore, the City maintains that it did not cause or create the alleged defective condition that caused plaintiffs incident. Neither plaintiffs nor defendant, the Gospel Spreading Church, submit opposition.
It is a well-established principle that the "function of summary judgment is issue finding, not issue determination." Assqfv Ropog Cab Corp., 153 A.D.2d 520 (1st Dept 1989), quoting Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). As such, the proponent'of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. See Alvarez v Prospect Hospital, 68 N.Y.2d 320 (1986); see also Winegrad v New York University Medical Center, 64 N.Y.2d 851 (1985). Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of issues of fact. See Sillman, 3 N.Y.2d at 404. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted. See Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 (1 st Dept 1990), citing Assafv Ropog Cab Corp., 153 A.D.2d at 521.
Administrative Code § 7-210, provides in pertinent part that "the owner of real property abutting any sidewalk...shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." Further, "[notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting 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) in a reasonably safe condition. This subdivision shall not be construed to apply to the liability of the city as a property owner pursuant to subdivision b of this section." Id.
The City establishes through admissible evidence that the sidewalk adjacent to 210-220 West 145th Street was not owned by the City on the date of the incident. Regarding ownership of said property, the City submits the affirmation of David Atik, an attorney for the New York City Department of Finance (DOF). See Exhibit K, NYSCEF doc. no. 38. Mr. Atik attests that he conducted a search of the Property Tax System database which revealed that the City did not own 210-220 West 145th Street at the time of the incident. Id. Mr. Atik also affirms that on the date of the alleged incident 210-220 West 145th Street was classified as a "Building Class VI (vacant land)." Id. Mr. Atik's search revealed that 210-220 West 145th Street was not classified as a one-, two- or three-family solely residential property at the time of the alleged incident. Additionally, the City provided the affidavit of New York City Law Department Senior Title Examiner David Schloss, who conducted a search for the record owner of the subject location which revealed that the record owner was Gospel Spreading Association. See Exhibit L, NYSCEF doc. no. 39.
Therefore, the City demonstrates prima facie entitlement to summary judgment by establishing: (1) the non-City ownership of the real property that abuts the sidewalk where the alleged incident occurred, and (2) the non-exempt building classification of the abutting property, pursuant to Administrative Code §7-210.
While the City has no burden to establish its prima facie entitlement to summary judgment in order to prove its freedom from liability due to affirmative negligence or special use, the City has tendered evidence proving that it did not cause or create the subject sidewalk condition or make special use of the sidewalk. The City annexes to its motion the affidavit of New York City Department of Transportation (DOT) paralegal Henry Williams, who conducted a search for the two-year period prior to and including the date of plaintiff s trip and fall on May 23, 2019. See Exhibit J, NYSCEF doc. no. 37. Mr. Williams attests that he found no evidence that the City caused or created the subject defect. Id.
As they submit no opposition to the instant motion, plaintiff and defendant the Gospel Spreading Church fail to raise a triable issue of fact. Therefore, the City's motion for summary judgment must be granted.
Accordingly, it is hereby
ORDERED that the motion of co-defendants the City of New York and the New York City Department of Transportation seeking summary judgment to dismiss the complaint is granted and the complaint is dismissed in its entirely as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that this action, including any pending motions, is transferred to a general IAS Part, as corporation counsel no longer represents any parties to this action; and it is further
ORDERED that counsel for the moving parties shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.