Opinion
2014-05-1
Elena TITOVA, Plaintiff–Appellant, v. Bezabeth D'NODAL, Defendant–Respondent.
Subin Associates, LLP, New York (Brooke Lombardi of counsel), for appellant. Law Offices of Karen L. Lawrence, Tarrytown (David Holmes of counsel), for respondent.
Subin Associates, LLP, New York (Brooke Lombardi of counsel), for appellant. Law Offices of Karen L. Lawrence, Tarrytown (David Holmes of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, FEINMAN, GISCHE, KAPNICK, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered November 20, 2012, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant made a prima facie showing that her property abutting the sidewalk where plaintiff allegedly fell is a two-family, owner-occupied residence, exempt from Administrative Code of City of N.Y. § 7–210(b), and that she did not create or cause the alleged hazardous condition ( see Rios v. Acosta, 8 A.D.3d 183, 184–185, 779 N.Y.S.2d 469 [1st Dept.2004] ). The motion court properly considered defendant's son's affidavit and the attached photographs of the sidewalk and driveway at issue ( see Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564, 565 n. 1, 923 N.Y.S.2d 81 [1st Dept.2011] ).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's argument that defendant is not exempt from Administrative Code § 7–210(b) because defendant used the premises for commercial purposes is improperly raised for the first time on appeal. The issue, which is not purely legal and apparent on the face of the record, requires resolution of facts that were not brought to defendant's attention on the motion ( see Botfeld v. Wong, 104 A.D.3d 433, 433–434, 961 N.Y.S.2d 77 [1st Dept.2013] ). In addition, plaintiff failed to offer any basis from which it could be reasonably inferred that defendant's snow-removal efforts “created or heightened” the alleged hazardous condition ( Rios, 8 A.D.3d at 185, 779 N.Y.S.2d 469 [internal quotation marks omitted] ). Plaintiff's affidavit attesting that, at the time of her accident, the sidewalk contained ice and snow contradicts her deposition testimony that she did not see any ice or snow on the sidewalk. Accordingly, it is insufficient to raise a genuine issue of fact ( see Joe v. Orbit Indus., 269 A.D.2d 121, 122, 703 N.Y.S.2d 14 [1st Dept.2000] ).
We have considered plaintiff's remaining contentions and find them unavailing.