| Schwartz v City of New York |
| 2010 NY Slip Op 04984 [74 AD3d 945] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Yecheskel Schwartz et al., Respondents, v City of NewYork, Defendant/Third-Party Plaintiff-Respondent, and 307 Hewes Street Realty Corp. et al.,Defendants/Third-Party Defendants-Appellants. |
—[*1]
In an action to recover damages for personal injuries, etc., the defendants/third-partydefendants, 307 Hewes Street Realty Corp., Ben Zion Jacobowitz, and Toby Jacobowitz, appealfrom an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated October 9, 2009,which denied that branch of their motion which was for summary judgment dismissing theamended complaint insofar as asserted against them and, in effect, denied those branches of theirmotion which were for summary judgment dismissing all cross claims insofar as asserted againstthem and dismissing the third-party complaint.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, and the motion of thedefendants/third-party defendants for summary judgment dismissing the amended complaint andall cross claims insofar as asserted against them and dismissing the third-party complaint, isgranted.
The injured plaintiff and his wife, suing derivatively, commenced this action to recoverdamages for personal injuries allegedly sustained by the injured plaintiff when he slipped andfell on a sidewalk abutting the appellants' property. The appellants moved for summary judgmentdismissing the amended complaint and all cross claims insofar as asserted against them, as wellas the third-party complaint, on the ground that their property was exempt from liability imposedpursuant to Administrative Code of the City of New York § 7-210 (b) for failure tomaintain the sidewalk in a reasonably safe condition. The Supreme Court denied that branch ofthe motion which was for summary judgment dismissing the amended complaint insofar asasserted against them and, in effect, denied those branches of their motion which were forsummary judgment dismissing all cross claims insofar as asserted against them and dismissingthe third-party complaint. We reverse the order of the Supreme Court and grant the motion.[*2]
The appellants established their prima facie entitlementto judgment as a matter of law by demonstrating that the certificate of occupancy for the subjectproperty permitted three families to reside there, and that the property was owner-occupied andused exclusively for residential purposes (see Administrative Code of City of NY§ 7-210 [b]). Thus, the appellants established, prima facie, that the property was exemptfrom liability imposed pursuant to Administrative Code of City of New York § 7-210 (b).In opposition, the plaintiffs and the defendant/third-party plaintiff, City of New York, failed toraise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Accordingly, the Supreme Court should have granted the appellants' motion for summaryjudgment dismissing the amended complaint and all cross claims insofar as asserted against themand dismissing the third-party complaint. Mastro, J.P., Eng, Leventhal and Roman, JJ., concur.