| Moreno v Shanker |
| 2012 NY Slip Op 02289 [93 AD3d 829] |
| March 27, 2012 |
| Appellate Division, Second Department |
| Elvin Javier Moreno, Respondent, v Moorleadher JanakShanker et al., Appellants. |
—[*1] Gorayeb & Associates, P.C., New York, N.Y. (Roy A. Kuriloff of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Silber, J.), dated June 30, 2011, which denied their motion forsummary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff claims that he was injured on December 3, 2009, when he slipped and fell onthe sidewalk in front of a building owned by the defendants. The plaintiff commenced this actionalleging that the defendants were liable for failing to maintain the sidewalk in a reasonably safecondition. At the time of the plaintiff's fall, the building was undergoing renovation. OnSeptember 23, 2010, or almost 10 months after the accident occurred, the New York CityDepartment of Buildings issued a final certificate of occupancy for the building. This certificatestated that the "Altered" building contained four dwelling units. The defendants moved forsummary judgment, contending that at the time of the accident, they were exempt from liabilityunder the provisions of Administrative Code of the City of New York § 7-210. Thissection imposes liability upon property owners for injuries which result from their failure tomaintain the abutting sidewalk in a safe condition, but also provides an exception thereto for"one-, two- or three-family residential real property that is . . . owner occupied"(Administrative Code § 7-210 [b] [i]). The Supreme Court denied the motion, stating thatthe defendants "do not make out a prima facie case for the relief requested. The only evidence inthe motion is a [certificate of occupancy] for a 4 family house, which is not exempt [underAdministrative Code § 7-210]."
The defendants established their prima facie entitlement to judgment as a matter of law bysubmitting proof that they were exempt from liability pursuant to Administrative Code §7-210. The only evidence in the record regarding the configuration of the building prior to theissuance of a four-family certificate of occupancy was the deposition testimony of the defendantKemjar Shanker, who testified that the building was a "two stor[y]," "two family," "residentialbuilding" [*2]with "an apartment on the first floor and anapartment on the second floor." Such evidence was sufficient to establish, prima facie, that thebuilding was a two-family residence when the accident took place (see Soussi v Gobin, 87 AD3d 580[2011]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Massey v Newburgh W. Realty, Inc.,84 AD3d 564 [2011]; Levine vKadison, 70 AD3d 651 [2010]; Morales v Morales, 55 AD3d 306 [2008]; Malenda v Great Atl. & Pac. Tea Co.,Inc., 50 AD3d 972 [2008]; Strange v Colgate Design Corp., 6 AD3d 422 [2004]). Contrary tothe plaintiff's contention, for purposes of Administrative Code § 7-210, the fact that thebuilding was ultimately converted to a four-family residence did not deprive the defendants ofthe statutory exemption from liability at the time of the occurrence of the accident. Thedefendants also established, prima facie, that when the accident took place, the premises were"owner occupied" as that term is used in Administrative Code § 7-210 (b) (i), despite thefact that they temporarily relocated from the premises in order to accommodate the renovationwork (see generally Yerdon v Lyon, 259 AD2d 864, 865 [1999]; Matter of Masters vBoard of Assessors, 188 AD2d 471 [1992]).
In opposition to the defendants' prima facie showing of entitlement to judgment as a matterof law, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court shouldhave granted the defendants' motion for summary judgment dismissing the complaint (seeGiuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Alvarez v Prospect Hosp., 68NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).Balkin, J.P., Eng, Hall and Sgroi, JJ., concur.