| Boorstein v 1261 48th St. Condominium |
| 2012 NY Slip Op 04308 [96 AD3d 703] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Rivkah Leah Boorstein, Appellant, v 1261 48th StreetCondominium, Respondent. |
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Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De Lindsay of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated March 24, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint and denied, as academic, hercross motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
On April 13, 2007, the plaintiff allegedly tripped and fell on a sidewalk abutting real propertyowned by the defendant condominium. The defendant established its prima facie entitlement tojudgment as a matter of law by demonstrating that the subject property was a three-familyresidence, that it was partially owner-occupied, and that it was used solely for residentialpurposes (see Administrative Code of City of NY § 7-210 [b]), thus exempting itfrom liability pursuant to Administrative Code of the City of New York § 7-210 (b) for thealleged failure to maintain the sidewalk abutting its property (see Soussi v Gobin, 87 AD3d 580, 581 [2011]; Schwartz v City of New York, 74AD3d 945, 946 [2010]; cf. Gordy vCity of New York, 67 AD3d 523 [2009]). In opposition, the plaintiff failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Contraryto the plaintiff's contention that, because the defendant is a condominium, it is also a corporation,and therefore, cannot invoke the statutory exemption from liability, Administrative Code of theCity of New York § 7-210 (b) does not preclude a corporation from invoking theexemption from liability provisions contained therein. Indeed, as Administrative Code of the Cityof New York § 7-210 is a legislative enactment in derogation of common law, whichcreated liability where none previously existed (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521 [2008]), itmust be strictly construed. Contrary to the plaintiff's further contention, the application of theexemption from liability provisions in Administrative Code of the City of New York §7-210 (b) to the defendant does not violate the Municipal Home Rule Law (seeMunicipal Home Rule Law § 10 [1]).
Moreover, the defendant's motion for summary judgment was not premature. The plaintifffailed to demonstrate that discovery may lead to relevant evidence or that the facts essential tojustify opposition to the motion were exclusively within the knowledge and control of thedefendant (see CPLR 3212 [f]; Martinez v Kreychmar, 84 AD3d 1037, 1038 [2011]).[*2]
The plaintiff's remaining contention has been renderedacademic in light of our determination. Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.[Prior Case History: 30 Misc 3d 1241(A), 2011 NY Slip Op 50421(U).]