Opinion
28863/04.
Decided on February 1, 2007.
Plaintiffs were represented by Sanford Solny, Esq. Defendant the City of New York was represented by Stacey L. Katz, Esq. of the Corporation Counsel of the City of New York, and defendant Congregation Ohr Sharaga D'Veretzky was represented by Salvatore J. DeSantis, Esq. of Molod Spitz DeSantis, P.C.
Defendant Congregation Ohr Sharaga D'Veretzky moves to "restor[e] this case to active status," and, upon restoration, for summary judgment dismissing Plaintiff's Verified Complaint. ( See Notice of Motion.) To the extent that the motion seeks restoration, it is granted, without opposition by Plaintiffs or co-defendant City of New York. (Co-defendant ATA Construction has not answered or otherwise appeared in the action.) To the extent that the motion seeks summary judgment, it is denied, with leave to renew after appropriate discovery.
Plaintiff Sari Bernstein alleges that on June 18, 2003 she tripped and fell as "the result of the broken sidewalk . . . as well as the debris from the construction of the . . . premises" at 1249 East 18th Street, Brooklyn, property owned by defendant Congregation.
"Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner . . ., where the abutting owner affirmatively caused the defect . . ., where the abutting landowner negligently constructed or repaired the sidewalk . . . [,] and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty." ( Hausser v Giunta, 88 NY2d 449, 453.)
Liability based upon "special benefit" is not limited to situations "where the sidewalk was constructed in a special manner" ( see id.), and includes "a sidewalk appurtenance installed for the special use or benefit of the owner of the abutting premises" ( see D'Ambrosio v City of New York, 55 NY2d 454, 462-63), and "situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use" ( see Poirier v City of Schenectady, 85 NY2d 310, 315), such as an outdoor café ( see MacLoed v Pete's Tavern, Inc, 87 NY2d 912, 914), or as a driveway ( see Colonna v Allen, 2006 NY Slip Op 9399, * 2 [2nd Dept]; Jordan v City of New York, ( 23 AD3d 436, 437 [2nd Dept 2005]), or as a children's playground ( see Santana v City of New York, 282 AD2d 208, 208-09 [1st Dept 2001].)
An abutting landowner seeking summary judgment must "demonstrate[ ] [its] entitlement to judgment as a matter of law by presenting evidence that none of the elements necessary to impose liability . . . are present." ( See Cannizzaro v Simco Management Co., 26 AD3d 401, 402 [2nd Dept 2006]; see also Bruno v City of New York, 2007 NY Slip Op 251, * 2 [2nd Dept]; Farmer v City of New York, 25 AD3d 649, 649-50 [2nd Dept 2006].) Because Plaintiff's alleged fall occurred prior to September 14, 2003 when the new sidewalk law took effect ( see NYC Administrative Code § 7-210; Garricks v City of New York, 1 NY3d 22, 26 n 2 [2003]), there is no ordinance that charges defendant Congregation with a duty to repair the sidewalk ( see Hausser v Giunta, 88 NY2d at 453.)
In support of its motion, defendant Congregation submits the Affidavit of Jacob Kalish, the "manager of the building that houses the defendant." ( See Affidavit of Jacob Kalish, ¶ 1.) Mr. Kalish asserts that "[t]he CONGREGATION OHR SHARAGA D'VEREZKY did not conduct any repairs to the subject sidewalk and/or make any special use of the sidewalk in front of the facility" ( id., ¶ 3), and that "there was no construction work being performed at the CONGREGATION OHR SHARAGA D'VEREZKY at the time of the plaintiff's alleged accident" ( id., ¶ 4.) Mr. Kalish also asserts that he is "aware that the plaintiff Mrs. Sari Bernstein was injured outside my facilities when she allegedly tripped and fell over a raised and/or cracked sidewalk." ( Id., ¶ 2.) No other evidence is submitted in support of the motion.
Although the case law on sidewalk accidents, and summary judgment motions in those cases, is voluminous, it provides little specificity on the showing the landowner must make to meet its prima facie burden. Appellate opinions often state only that the landowner met its burden ( see, for example, Sammarco v Long Island University, 16 AD3d 657, 658 [2nd Dept 2005]), or that it did not ( see, for example, Farmer v City of New York, 25 AD3d 649, 649-50 [2nd Dept 2006]), without describing what evidence, if any, other than an affidavit was found sufficient.
In some cases, involving perhaps a small residential property, a mere testimonial denial would be sufficient. ( See Diaz v Vieni, 303 AD2d 713, 713-14 [2nd Dept 2003]; Ritts v Teslenko, 276 AD2d 768, 769 [2nd Dept 2000].) In others, involving perhaps larger residential property or non-residential property, a review of appropriate records would be important, if not necessary. ( See Furey v Sayville Union Free School District, 2007 NY Slip Op 115, * 2 [2nd Dept]; Rendon v Castle Realty, 28 AD3d 532, 533 [2nd Dept 2006].) In any event, any testimonial denial, whether or not based upon a record review, must be based upon personal knowledge or other foundation sufficient to impart probative value.
On occasion, the sufficiency of the moving party's showing will be determined in light of other evidence submitted by the movant or by evidence submitted by an opposing party. ( See Colonna v Allen, 2006 NY Slip Op 9399, *1- * 2 [2nd Dept]; Vyado v City of New York, 2 AD3d 519, 520-21 [2nd Dept 2003].)
Here, we have only the affidavit of the "manager of the building," "personally involved in its daily routine activities." (Affidavit of Jacob Kalish, ¶¶ 1, 2.) The affidavit does not state when the manager took that position, or that he reviewed identified records, sufficient to support his assertions that the Congregation "did not conduct any repairs to the subject sidewalk and/or make special use of the sidewalk," and that "there was no construction work being performed at the . . . time of the plaintiff's alleged accident." ( See id., ¶¶ 3, 4.) Plaintiffs' submissions in opposition, moreover, at the least raise questions about the accuracy or completeness of the manager's assertion that "there was no construction work being performed." ( See Kreimer v Rockefeller Group, Inc, 2 AD3d 407, 408-09 [2nd Dept 2003].)
Plaintiffs' submissions consist of counsel's Affirmation in Partial Opposition; printouts from the website of the New York City Department of Buildings, which are not certified; a Solemn Affirmation of Merit of plaintiff Sari Bernstein; and copies of photographs of the sidewalk where she allegedly fell, taken the next day. The Court notes, in the first instance, that, although there are allegations in Ms. Bernstein's Solemn Affirmation ( see ¶ 3 ) and counsel's Affirmation ( see ¶¶ 12, 15) of repairs to the sidewalk prior to her fall, the Verified Bill of Particulars states that "no claim of negligent repairs is being made" ( see ¶ 8) and no negligence is described in the submissions. Similarly, despite the reference in the Verified Bill of Particulars to "debris from the construction of the . . . premises" ( see ¶ 4), there is nothing in the submissions that describes any debris, or supports an allegation that debris was a factor in Ms. Bernstein's fall.
The primary thrust of Plaintiffs' opposition is that "the property was undergoing a major construction and alteration during the time that plaintiff fell on the defective sidewalk" ( see Affirmation in Partial Opposition, ¶ 4); "[i]t is common knowledge . . . that when a major alteration of a building takes place it is necessary for the building supplies to be taken over the sidewalk onto the construction site" ( id., ¶ 9); that "[i]t is beyond question that dragging building materials over the sidewalk in order to bring those materials to the construction site constitute (sic) a special use of the sidewalk and hence a basis for liability" ( id., ¶ 11); and that "there are significant questions of fact as to whether the ongoing construction at the premises was a cause of the sidewalk defect" ( id.)
Plaintiffs provide no support for their contention that the use of a sidewalk incident to construction constitutes a special use for purposes of abutting landowner liability, but there is authority that suggests that regular and long-term use of a sidewalk for the parking of heavy vehicles might constitute a special use. ( See Peretich v City of New York, 263 AD2d 410, 411 [1st Dept 1999]; see also Rosario v City of New York, 289 AD2d 133, 134 [1st Dept 2001].) There is, moreover, long-standing authority to support the liability of an abutting landowner when a sidewalk defect is caused by "heavily-laden wagons and trucks passing back and forth over the [sidewalk] on entering and leaving" the property incident to construction activity. ( See Mullins v Siegel-Cooper Co., 183 NY 129, 132; see also Stockdale v City of New York, 294 AD2d 195, 196 [1st Dept 2002]; Caturano v City of New York, 224 AD2d 202, 202 [1st Dept 1996].)
If accepted, the uncertified records printed from the Building Department's website would support Plaintiffs' contention that substantial construction activity took place at the Congregation's premises close to the time Ms. Bernstein fell. This Court is not aware that any appellate court has passed definitively upon the admissibility as evidence of public records printed from a government website. ( See Secretary of the Department of Housing and Urban Development v Torres, 2 Misc 3d 53, 54-55 [App Term, 2nd Dept 2003].) Trial courts have, however, found such copies admissible. ( See Proscan Radiology of Buffalo v Progressive Casualty Ins. Co., 12 Misc 3d 1176 [A], 2006 NY Slip Op 51242[U], * 6 [Buffalo City Court]; Miriam Osborn Memorial Home Ass'n v Assessor of City of Rye, 9 Misc 3d 1019, 1027-30 [Sup Ct, Westchester County 2005].)
The Congregation does not challenge the admissibility of the Building Department records or their authenticity. ( See Secretary of the Department of Housing and Urban Development v Torres, 2 Misc 3d at 55.) Recognizing the difference between admissibility and probative value ( see, for example, CPLR 4518 [a], [c]), and that "hearsay may be considered in opposition to a motion for summary judgment" ( see Rodriguez v Sixth President, Inc., 4 AD3d 406, 407 [2nd Dept 2004]), the Court will accept the Building Department printouts on this motion.
Perhaps more compelling as evidence of the Congregation's construction activity, if admissible as such, are photographs attached to Ms. Bernstein's Solemn Affirmation of Merit that show attached to the Congregation's building a large sign with the name "ATA Construction." In her signed document, Ms. Bernstein "Solemnly (sic) affirms under the penalties of perjury pursuant to CPLR 2106," and the document is signed by a notary public with the legend "Solemnly Affirmed (sic) before me." It is quite clear, however, that Ms. Bernstein cannot affirm pursuant to CPLR 2106, since she is not an attorney, physician, osteopath, or dentist, and is a party. ( See CPLR 2106; Sam v Town of Rotterdam, 248 AD2d 850, 851 [3rd Dept 1998].)
The Court need not decide whether there are circumstances that would warrant acceptance of such an affirmation as evidence for example, objection to the oath on religious or other conscientious grounds because here the Congregation does not challenge Ms. Bernstein's affirmation, nor would it be expected to. In any event, any such challenge is deemed waived. ( See id.; Akamnonu v Rodriguez, 12 AD3d 187, 187 [1st Dept 2004]; Teig v First Union Ins. Co., 282 AD2d 669, 670 [2nd Dept 2001].)
Plaintiffs' problem, however, lies less in their evidence as to significant construction activity on the Congregation's property prior to the day of Ms. Bernstein's fall, than in the complete absence of any evidence as to the relationship between the construction activity and the use of the sidewalk, either to support a "special use" ( see Oquendo v City of New York, 238 AD2d 391, 392 [2nd Dept 1997] ["The plaintiff's mere conclusory allegation of a special use by the abutting property owners was insufficient to defeat the motion for summary judgment"]), or to support a claim that the Congregation's contractor was negligent ( see Kleeberg v City of New York, 305 AD2d 549, 549-50 [2nd Dept 2003]; Klar v A. J. Pegno Construction Corp., 266 AD2d 434, 434 [2nd Dept 1999]; Simpson v State of New York, 192 Misc 49, 51-52 [Ct Claims 1948].)
The Court is mindful that "a motion for summary judgment may not be defeated by a response based on surmise conjecture and suspicion' " ( Rendon v Castle Realty, 28 AD3d at 533 [ quoting Shapiro v Health Ins. Plan of Greater NY, 7 NY2d 56, 63 (1995)]) and that "[t]he plaintiff's mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process' [is] insufficient to defeat summary judgment" ( see Sammarco v Long Island University, 16 AD3d at 658 [ quoting Neryaev v Solon, 6 AD3d 510, 510 (2nd Dept 2004)].)
There is authority, however, for denial of summary judgment in a case like this, particularly in the early stages of discovery, either because the landowner is deemed not to have made its prima facie showing ( see Breger v City of New York, 297 AD2d 770, 771 [2nd Dept 2002]), or because issues of fact are deemed to exist ( see Caturano v City of New York, 224 AD2d at 202.)
Indeed, co-defendant City of New York has opposed the Congregation's motion solely on the ground that it is premature. The City too has a real interest in determining whether there is a basis for liability on the part of the Congregation. ( See D'Ambrosio v City of New York, 55 NY2d at 462-64.)
The parties shall appear for a compliance conference in Part 22, 9:30 a.m., on Tuesday, March 6, 2007.