Defendant THE 1261 48th STREET CONDOMINIUM, in this negligence action, moves for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212. Plaintiff RIVKAH LEAH BOORSTEIN cross-moves for partial summary judgment on liability, pursuant to CPLR Rule 3212. Plaintiff claims that she sustained [*2]injuries when she fell on a defective sidewalk in front of defendant's premises, located at 1261 48th Street, Brooklyn, New York, on April 13, 2007 at approximately 2:30 P.M. However, defendant's premises, pursuant to New York City Administrative Code § 7-210, falls within the liability exception for unsafe sidewalks for the owners of one or two or three family residences, which are in whole or in part owner occupied and used exclusively for residential purposes.

Therefore, the Court grants defendant's motion for summary judgment and dismissal of plaintiff's complaint. With defendant having exemption from sidewalk conditions liability under New York City Administrative Code § 7-210, the Court does not need to address plaintiff's claims that defendant is liable. Thus, plaintiff's cross-motion for partial summary judgment on liability is denied as moot.

Plaintiff, as mentioned above, claims that she injured herself when she fell on the sidewalk in front of defendant's premises due to plaintiff's negligence in maintaining the subject sidewalk in a safe condition. It is uncontroverted that the premises at 1261 48th Street are a three apartment or unit residential building, with one apartment or unit on each floor and the premises partially owner occupied on the day of the accident. On April 13, 2007, the day of plaintiff's accident, the owner of the first floor rented the apartment to a tenant, the owner of the second floor apartment lived in the apartment and the owner of the third floor apartment rented the apartment to a tenant.

The plaintiff, a pedestrian, alleges that she was injured when she tripped on a raised segment of the sidewalk abutting the defendant's property. Plaintiff timely filed a notice of claim, pursuant to General Municipal Law § 50-e, with the Comptroller of the City of New York. The Office of the Comptroller, in a letter to plaintiff, dated July 18, 2007, denied plaintiff's claim, asserting that pursuant to New York City Administrative Code § 7-210, the City of New York was not liable for plaintiff's accident and "[y]our claim does not fall within the exceptions to section 7-210." Subsequently, plaintiff commenced the instant action against defendant, the owner of the property adjacent to the sidewalk where the alleged accident took place.

Defendant moves for a summary judgment and dismissal of the action and plaintiff cross-moves for partial summary judgment on liability. Defendant meets its CPLR Rule 3212 (b) burden demonstrating a prima facie showing that it is not liable for the plaintiff's accident. Plaintiff's opposition fails to demonstrate any triable issue of fact. Therefore, defendant's motion for summary judgment is granted and plaintiff's cross-motion for partial summary judgment is denied as moot.

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 eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v [*3]Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).

CPLR 3212 (b) requires that for a court to grant summary judgment the court must

determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010]).

a. It shall be the duty of the owner of real property abutting any

sidewalk, including, but not limited to, the intersection quadrant

for corner property, to maintain such sidewalk in a reasonably safe

condition.

b. Notwithstanding any other provision of law, the owner of real

to property or personal injury, including death, proximately caused

by the failure of such owner to maintain such sidewalk in a reasonably

safe condition . . . 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. [Emphasis added]"The purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive

liability with respect to sidewalk maintenance and repair." (Coogan v City of New York, 73 AD3d 613 [1d Dept 2010]). (See Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 520 [*4][2008]; John v City of New York, 77 AD3d 792, 793 [2d Dept 2010]; Mastromarino v City of New York, 18 Misc 3d 1140 [A] [Sup Ct, Kings County 2008]).

Plaintiff, in opposition and in her cross-motion, argues that defendant

RPL §339-e (16) defines a "unit owner" as "the person or persons owning a unit in fee simple absolute." With respect to areas in common or "common elements," RPL § 339-e (5) defines "common interest" as "the proportionate, undivided interest in fee simple absolute." In the instant action, the three unit owners are individuals, not corporate entities and there is no reason to treat them as a corporation. Several months ago, in Board of Managers of Village View Condominium v Forman at 629, the Appellate Division, Second Department explained that:

Condominium ownership is a hybrid form of real property

ownership, created by statute (see Real Property Law art 9-B [§ 339

et seq.] [hereinafter the Condominium Act]; Carper v Nussbaum,

36 AD3d 176, 183 [2006]). Pursuant to the Condominium Act,

each owner holds a real property interest in his or her unit and its

appurtenances (see Real Property Law § 339-g), which consists of

an exclusive possessory interest in the unit (see Real Property Law

§ 339-h) and an undivided interest in the common elements of the

condominium (see Real Property Law § 339-i; Carper v Nussbaum, [*5]

36 AD3d at 183; Murphy v State of New York, 14 AD3d 127, 132-133

[2004]; Schoninger v Yardarm Beach Homeowners Ass'n, Inc.,

134 AD2d 1, 5-6 [1987]).Furthermore, New York City Administrative Code §7-210 does not automatically assign sidewalk liability to corporations. The unambiguous language of § 7-210 allows a sidewalk liability exception for properties abutting one or two or three family residential real property, whole or partially owner occupied and used exclusively for residential use, regardless of whether that property is owned by a corporation. Defendants' status as a condominium is irrelevant. § 7-210 is silent as to its application or non application to condominiums, corporations, or any other entities. A property, which is owned as a condominium or corporation or a coop, as long as the property is a one or two or three family residence, whole or partially owner occupied and used exclusively for residential purposes is clearly excluded from sidewalk liability under New York City Administrative Code § 7-210. Plaintiff has not submitted any evidence why defendant does not fit squarely within the § 7-210 exclsuion.

Plaintiff cites Gordy v City of New York (67 AD3d 523 [1d Dept 2009]), in support of its argument that condominiums are treated as corporate entities. In Gordy, the injured plaintiff sued the City of New York after sustaining injuries in a slip and fall on an icy sidewalk. The Court found that the City was not liable because the property that abutted the sidewalk where the accident occurred was a two-family dwelling owned by a corporate entity and not owner-occupied. The Court affirmed summary judgment for defendant City of New York after plaintiff failed to introduce any evidence regarding the occupancy of the property. The City was not liable because plaintiff failed to prove a

necessary element for an exception to §7-210 of the New York City Administrative Code, that the property in question was owner occupied. That the property was owned by a corporate entity was irrelevant to the holding, except to shift the burden to plaintiff to introduce evidence that the building was at least partially owner occupied, as required by § 7-210 of the New York City Administrative Code.

In the instant action, defendant submitted affidavits demonstrating that on the day of plaintiff's accident, defendant condominium was a three-family residence partially owner occupied and used exclusively for residential purposes. Moreover, plaintiff does not dispute this.

Therefore, the Court finds that defendant falls into the exception from sidewalk liability because it has satisfied the three requirements of New York City Administrative Code § 7-210: it is a one or two or three family residence; whole or in part owner occupied; and, is used exclusively for residential purposes.

"[W]here the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action." (See Zuckerman v City of New York at 560). [*6]

Plaintiff has not offered any evidence to demonstrate that defendant does not fall within the sidewalk liability exception to New York City Administrative Code § 7-210. Therefore, defendant's motion for summary judgment is granted. Consequently, plaintiff's cross-motion for partial summary judgment on liability must be denied.

Accordingly,it is

ORDERED, that the motion of defendant THE 1261 48th STREET CONDOMINIUM for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212, is granted; and it is further

ORDERED, that the cross-motion of plaintiff RIVKAH LEAH BOORSTEIN for partial summary judgment on liability, pursuant to CPLR Rule 3212, is denied as moot.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.