Opinion
Index Nos. 157247/2019 596058/2021 Motion Seq. No. 003
04-10-2023
STEPHANIE BURROWS, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, HOUSING DEVELOPMENT FUND CORPORATION, LYNN TIEDE, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendants. LYNN TIEDE, Third-Party Plaintiff, v. 213 EAST 120TH STREET, LLC, LORE DECORATORS, LLC, Third-Party Defendants.
Unpublished Opinion
MOTION DATE 10/11/2022
DECISION + ORDER ON MOTION
JUDY H. KIM, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 003) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 82, 83, 84, 85, 87, 88 were read on this motion for JUDGMENT - SUMMARY.
Upon the foregoing documents, defendant Lynn Teide's motion for summary judgment dismissing this action as against her is granted, for the reasons set forth below.
Plaintiff Stephanie Burrows brings this negligence a to recover for injuries sustained when she tripped and fell near a metal plate or gas cap on the sidewalk abutting 215 East 120th Street, New York, New York (the "Building") on August 25, 2018 (NYSCEF Doc. Nos. 62 [Compl. at ¶¶2, 134] and 64 [Bill of Particulars at ¶2]).
On May 13, 2020, Teide, the owner of the Building, moved for summary judgment. This motion was denied without prejudice by the Court (Hon. Dakota D. Ramseur) (NYSCEF Doc. No. 39 [Decision and Order]).
On November 24, 2021, Tiede filed a third-party complaint, asserting claims for indemnification and contribution against 213 East 120th Street, LLC and Lore Decorators, LLC, the lessor and lessee of the building located at 213 East 120th Street, on the grounds that they failed to maintain the sidewalk abutting that building and, as a result, caused any injuries alleged by plaintiff in the main action.
Tiede now moves, again, for summary judgment dismissing this action as against her. In support of motion, Tiede submits an affidavit, attesting as follows:
I am the sole owner of a three-family residential property located at 215 East Street, New York, New York ... 1 have occupied one unit of the subject residence since obtaining title in 2005. I lease the other two (2) units to tenants. At no time since taking title to the subject premises in 2005 have I used the property for business purposes. I have only used the subject premises as a residence ... Since becoming the owner of 215 E. 120th St., I have never used the sidewalk near or around the subject premises for any special or specific purpose. I have also never altered, modified or repaired the adjacent sidewalk since becoming the owner of the subject premises in 2005. Moreover, I do not own, maintain, control and/or operate any gas cap(s) that are part of the sidewalk near or adjacent to the subject premises. Likewise, I have never made alterations, modifications or repairs to any gas cap or metal plate on the sidewalk adjacent to the subject premises since becoming the property owner in 2005.(NYSCEF Doc. No. 80 [Tiede Aff. at¶¶2-5, 8-14]).
Tiede also submits the Building's Certificate of Occupancy (NYSCEF Doc. No. 79) and the deed transferring ownership of the Building to her (NYSCEF Doc. No. 70). Finally, plaintiff submits a CPLR §3101(d) disclosure for her expert witness, architect Charles J. Schaffer. Tiede asserts that the foregoing establishes that she bears no statutory liability under Administrative Code §7-210 or under common law negligence principles. Plaintiff does not oppose Tiede's motion but cross-moves to sever this action from Tiede's third party action, in the event Tiede's motion is denied.
Defendant Consolidated Edison Company of New York, Inc. ("ConEd") opposes the motion. ConEd argues that issues of fact remain as to whether plaintiff's fall was caused by a negligent repair of the sidewalk abutting Tiede's property-which repairs are showcased in photos of the sidewalk attached to plaintiffs Bill of Particulars-and that an issue of fact remains as to whether Tiede was responsible for these negligent repairs (NYSCEF Doc. No. 83 [Augustin Affirm, in Opp. at ¶¶7-8]).
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissi ble form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]).
Administrative Code §7-210 shifts tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, except for sidewalks abutting one-, two- or three-family residential properties that are owner occupied and used exclusively for residential purposes (Santos v City of New York, 59 Mise 3d 1211 [A] [Sup Ct, Bronx County 2018] citing Vucetovic v Epsom Downs, Inc., 10 N.Y.3d 517, 520 [2008]). Tiede has established that she falls within this residential exception to Section 7-201 through the submission of the deed to the Building, the Building's Certificate of Occupancy, and her affidavit in support of the motion.
In light of the foregoing, Tiede may only be liable in this action if she "created the defective condition or caused the defect to occur because of some special use" (Febrescordero v 2527 Boston Rd. Corp., 301 A.D.2d 401, 402 [1st Dept 2003]). Tiede has made a prima facie showing that she did not cause or create the alleged defect through her affidavit and deposition testimony unequivocally denying that she attempted to repair the area before the accident (See Rizzo v City of New York, 178 A.D.3d 503, 503-04 [1st Dept 2019]), thereby establishing her entitlement to summary judgment dismissing this action against her.
In opposition, ConEd argues that the existence of photographs documenting (purportedly negligent) repairs performed on the subject sidewalk prior to the accident creates an issue of fact, citing Rizzo v City of New York, 178 A.D.3d 503, 503-04 ). In that case, however, the record contained photographic evidence of a patched area on the sidewalk and evidence in the record that the only other defendant in the action, the City of New York, had not performed such repairs (Rizzo v City of New York, 178 A.D.3d 503, 503-04 [1st Dept 2019]). Here, the parties are unable to point to any evidence in the record suggesting that Tiede or any other party made any repairs to the subject sidewalk prior to the accident. In the absence of any such evidence, the Court finds that there are issues of fact in dispute (See Anderson v City of New York, 2021 WL 2176191 [Sup Ct, Queens County 2021]).
Accordingly, it is
ORDERED that defendant Lynn Tiede's motion for summary judgment is granted and this action is dismissed as against her; and it is further
ORDERED that defendant/third party plaintiff Lynn Tiede's action against third party defendants 213 East 120th Street, LLC and Lore Decorators, LLC (Index No. 596058/2021) is dismissed, as moot; 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 counsel for the moving party 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 enter judgment accordingly and 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.