Opinion
2012-05-30
George HOWARD, respondent, v. CITY OF NEW YORK, defendant, Kathryn Smith, appellant.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant. Mark J. Rayo, P.C., Garden City, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant. Mark J. Rayo, P.C., Garden City, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Kathryn Smith appeals from an order of the Supreme Court, Kings County (Ash, J.), dated September 28, 2011, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.
ORDERED that the order is affirmed, with costs.
In 2003, the New York City Council enacted section 7–210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from defective sidewalks from the City to abutting property owners ( see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 519–520, 860 N.Y.S.2d 429, 890 N.E.2d 191). However, this liability shifting provision does not apply to “one-, two-, or three-family residentialreal property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code § 7–210[b] ). “ The purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” ( Coogan v. City of New York, 73 A.D.3d 613, 614, 900 N.Y.S.2d 645;see Gangemi v. City of New York, 13 Misc.3d 1112, 1120 n. 2, 827 N.Y.S.2d 498).
Here, the defendant property owner, Kathryn Smith, failed to make a prima facie showing that she is entitled to judgment as a matter of law on the theory that she is exempt from liability pursuant to Administrative Code § 7–210(b). Although Smith submitted proof that the subject property is a two-family residence, her own deposition testimony raises an issue of fact as to whether the premises were “owner occupied” within the meaning of Administrative Code § 7–210(b) ( see Acevedo v. Rodriguez, 20 Misc.3d 1122 [A], 2008 N.Y. Slip Op. 51518[U], 2008 WL 2805881 [2008];cf. Moreno v. Shanker, 93 A.D.3d 829, 941 N.Y.S.2d 216). Accordingly, the Supreme Court properly denied Smith's motion for summary judgment dismissing the complaint insofar as asserted against her, regardless of the sufficiency of the plaintiff's opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Smith's contention that she is entitled to summary judgment because the sidewalk defect which allegedly caused the plaintiff's fall was open and obvious and not inherently dangerous is raised for the first time on appeal, and is thus not properly before this Court ( see Van Salisbury v. Elliott–Lewis, 55 A.D.3d 725, 726–727, 867 N.Y.S.2d 454;see also Quinones v. Federated Dept. Stores, Inc., 92 A.D.3d 931, 939 N.Y.S.2d 134;ATC Healthcare, Inc. v. Goldstein Golub Kessler, LLP, 92 A.D.3d 820, 821, 938 N.Y.S.2d 820).