Upon the foregoing papers, the motion for summary judgment of defendant the City of New York is granted.

This is an action to recovery monetary damages for injuries allegedly sustained by plaintiff Kelsey Lucille Aurelien on December 24, 2004 when she slipped and fell on an allegedly defective sidewalk abutting the premises at 346 Broadway, Staten Island, New York. It is conceded that the abutting property is not owned by the City of New York (hereinafter "The City").

In the present application, the City is moving for summary judgment and dismissal of the complaint against it on the ground that it is not liable for the alleged injuries pursuant to § 7-210 of the Administrative Code of the City of New York. In relevant part, that section requires the owners of property abutting any sidewalk to maintain said sidewalk in a "reasonably safe condition", and states that the owner of such property

(b) shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential real property that is (I) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.

It further provides that

(c) the city shall not be liable for any injury to property or personal injury, including death, [*2]proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two- or three-family residential real property that is (I) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition (New York City Administrative Code § 7-210[a-c]).

Plaintiff contends that the property in question is exempt under the residential property exception and thus the City remains liable.

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" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Here, defendant has presented authenticated New York City Department of Finance (hereinafter "DOF") records that classify the property located at 346 Broadway, Staten Island, as a "S1 Residence - Multi Use __ Prim. 1 Family w/ Store or Office". This classification is not listed as an exception in section 7-210 of the Administrative Code. Further, the City points to recent case law supporting the summary dismissal of a complaint based on the DOF's classification and the absence of any opposing evidence raising triable issues of fact.

The City having thus demonstrated its prima facie entitlement to judgment as a matter of law, the burden shifts "to the [opposing party] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; see Zuckerman v City of New York, 49 NY2d 557 [1980]). In reviewing such a motion, the court is enjoined to accept as true the evidence tendered by the opposing party, and "must deny the motion if there is

even arguably any doubt as to the existence of a triable issue" (Fleming v Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotations marks omitted]).

Here, plaintiff contends the cited exceptions for "one-, two- or three-family" residences are predicated upon actual usage rather than DOF classifications, and has introduced a copy of a purported record maintained by the Office of the Richmond County Tax Assessor listing the property as "Single Family Residence - Townhouse". While plaintiff contends that this document is sufficient to raise a triable issue of fact regarding the absence of any non-residential use at 346 Broadway, the Court disagrees. Rather, so much of the same document goes on to describe the premises as "stores- Residential" and tends to support the City's prima facie showing of a mixed use that would bar exemption (see Administrative Code of City of New York § 7-210[b][ii]). Moreover, it is well settled that the affirmation of an attorney with no personal knowledge of the facts is insufficient to defeat summary judgment (Zuckerman v City of New York, 49 NY2d at 563).

Finally, plaintiff has failed to indicate the efforts, if any, undertaken to discover the actual use of the premises at any time since the filing of the notice of claim on March 18, 2005, or the commencement of this action on February 28, 2006. In fact, there is no representation of any effort to uncover the actual facts during the five months that have elapsed since the City filed this motion. [*3]Under these circumstances, plaintiff may not rely on CPLR 3212(f) to avoid summary judgment (see Sasson v Setina Mfg Co., 26 AD3d 487 [2d Dept 2006]; Cruz v Otis El. Co., 238 AD2d 540 [2d Dept 1957]; Kenworthy v Town of Oyster Bay, 116 AD2d 628 [2d Dept 1986]).

Accordingly it is,

ORDERED, that the motion for summary judgment of defendant the City of New York is granted, and the complaint against it is severed and dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

Dated: April 4, 2007/s/________________________________________

THOMAS P. ALIOTTA, J.S.C.

All Sides Notified by Eve/pt on 4/4/07

Stewart Schachner, Esq.

390 St. Marks Place

Staten Island, NY 10301

Corporation Counsel of the

City of New York

60 Bay Street, 4th Fl.

Staten Island, NY 10301

Valerie Grant-martin

346 Broadway

Staten Island, NY 10310