The following papers numbered 1 to 3 were fully submitted on the 16th day of December, 2015:

Thomas P. Aliotta, J.

Upon the foregoing papers, the motion for summary judgment by defendant New York City Housing Authority (hereinafter "NYCHA") is granted, in part, and is otherwise denied.

In this personal injury action, plaintiff Mikhail Kremerov (hereinafter "plaintiff) claims that on February 19, 2014, at approximately 5:00 p.m., while exiting his handicap equipped van "parked on the roadway of Seaver Avenue at and near its intersection with Jefferson Street, [on] Staten Island," he was "caused to tip over due to accumulation of snow and ice, causing him to sustain fractures and other multiple injuries" (see Notice of Claim; see also Verified Complaint, para 10). According to plaintiff he "was unable to safely park his handicap equipped van within the premises of his residence" due to the NYCHA's "refus[al] to accommodate the handicapped plaintiff with a parking spot within its parking lot or [otherwise] provide for... street or sidewalk handicapped... parking" (see Verified Complaint, para 11). It is uncontroverted that defendant is the owner of the premises in question.

In his Verified Complaint, plaintiff asserts two causes of action. In the first, plaintiff alleges that defendants were negligent in permitting the roadway to become and remain in a dangerous and unsafe condition (id. at 3). In the second, plaintiff alleges that the NYCHA "ignored plaintiff's requests" to secure a parking spot or special permit for handicapped parking in violation of City and State laws concerning handicapped and disability parking (id. at 17-18, 20-21). To the extent [*2]relevant, plaintiff acknowledges that the NYCHA "did not maintain a parking lot for residents, only for its employees" (see Verified Bill of Particulars, para 43).

At the General Municipal Law §50-h hearing, plaintiff testified that he resides at the Berry Houses located at 219 Jefferson Street on Staten Island, and that he has a special New York City parking permit which allows him "to park on [a] no parking sign" (see General Municipal Law §50-h transcripts, pp 5,33, 36). According to the witness, he usually parks his handicap-equipped vehicle on Jefferson Street "between... 219 and 235 Jefferson" (id. at 25, 40), but that on the date of his accident, "someone [had already] parked their car there". As a result, plaintiff ended-up parking his vehicle "on Seaver Avenue across from... [the] Berry Houses" (id. at 34, 43).^[FN1] Plaintiff further testified that "[t]here was snow... and... even... some ice, like frozen snow" in the area where he elected to park (id.), and that when he "lowered the lift and... started moving down on [his] wheelchair,... the snow [proved to be] too soft... [Consequently,] the front wheels... dropped... the wheelchair... tilted and [he] fell out" (id. at 34-35). Within a few minutes, the police and an ambulance had arrived at the scene, at which point plaintiff was taken to the hospital (id. at 35).

According to plaintiff, he has asked at the office for the Berry Houses on multiple occasions that he be permitted to park in the employees' parking lot, but was told that the parking lot, which will accommodate only five vehicles, was for employees only (id. at 36-37). Thus, his requests were denied. When asked if there was a parking lot for residents or visitors, plaintiff answered in the negative (id. at 39).

In support of its motion for summary judgment, Scott Marcus, the property manager of the "Berry Houses", has submitted an affidavit in which he attests that the "NYCHA provides on site, off street parking for the staff of the Berry Houses" (see Affidavit of Scott Marcus, para 4), but that it "does not maintain facilities, on or off street, for either resident or public parking" (id. at 5). In addition, he notes that Jefferson Street and Seaver Avenue are public thoroughfares, and that the NYCHA has no authority to control, reserve or otherwise designate handicap parking spaces on a public thoroughfare (id. at 7, 10).

Generally, liability for a dangerous condition on real property must be predicated on ownership, occupancy, control or a special use (see Russo v. Frankels Garden City Realty Co, 93 AD3d 708 [2nd Dept 2012]). Here, the NYCHA established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not own, occupy, control or make a special use of the area where the incident occurred (id. at 710). In opposition, plaintiff has failed to raise a triable issue as to the duty of NYCHA to maintain the area where he fell in a reasonably safe condition.

The balance of plaintiff's contentions are premised on the theory that, but for the NYCHA's failure to provide him with a handicapped parking space in the employee parking lot, it would not have been necessary for him to park on the street at the site of the accident.

The Court opines that even if the NYCHA can be shown to have violated some or all of the statutory and regulatory provisions relied upon by plaintiff, the fact remains that plaintiff's accident did not occur as the result of any dangerous or defective condition attributable to the negligence of the NYCHA. Thus, any statutory or regulatory violation on the part of the agency merely provided the occasion for plaintiff's accident, "a fortuitous circumstance providing no legal connection between the alleged violations and plaintiff's injuries" ( Warrick v. Capabilities, Inc, 299 AD2d 622, 623 [3rd Dept 2002]). Accordingly, the motion for summary judgment is granted with respect to plaintiff's first cause of action, and said cause of action against the NYCHA is severed and dismissed.

City and State Human Rights Laws provide, inter alia, that it shall be an unlawful discriminatory practice for a party to refuse to make reasonable accommodation in the rules, policies, practices, or services thereof, when such accommodation is necessary to afford a person with disabilities, e.g., an equal opportunity to use and enjoy his or her dwelling (Executive Law [*3]§296[18][2]; see Matter of Lindsay Park Hous Corp v. New York State Div of Human Rights, 56 AD3d 477 [2nd Dept 2008]).^[FN2] In a residential setting, it has been held that in order to establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish (1) a disability, (2) that the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment or residence, and (3) that the building owner refuses to make such an accommodation (see Matter of Lindsay Park Hous Corp v. New York State Div of Human Rights, 56 AD3d at 478). As a result, under certain circumstances, a building owner may be required to provide a disabled tenant with, e.g., a parking space for his or her own use as a reasonable accommodation for his or her disability (id; citing Shapiro v. Cadman Towers, 51 F3d 328 [2nd Cir. 1995]; Hubbard v. Samson Mgt Corp, 994 FSupp 187 [SDNY February 5, 1998]).Furthermore, in accordance with section 6(a) of the Fair Housing Amendments Act of 1988 ("FHAA"),^[FN3] it is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of that person or any person associated therewith (see Shapiro v. Cadman Towers, 51 F3d 328, 333 [2nd Cir. 1995]). Nevertheless, the Courts which have addressed this precise issue, have found that the use and enjoyment of a parking space cannot be considered in isolation when assessing a disabled tenant's ability to use and enjoy his or her dwelling space, a right which is specifically protected by the FHAA (id. at 335). In addition, while the United States Supreme Court has held that the FHAA is to be given a "generous construction" based on the importance of the anti-discrimination policies that it vindicates (Trafficante v. Metropolitan Life Ins Co, 409 US 205, 211-212 [1972], the above "balancing" test has not been found to be unreasonable (see Shapiro v. Cadman Towers, 51 F3d at 335). In view of the foregoing, it is the opinion of this Court that questions of fact exist as to whether, e.g., the moving defendant was under a duty to reasonably accommodate plaintiff's disability by providing him with a handicapped parking space in the employee parking lot. Thus, the balance of the moving defendant's summary judgment motion must be denied.

Accordingly, it is

ORDERED that the motion for summary judgment by defendant New York City Housing Authority is granted with respect to plaintiff's first cause of action for negligence; and it is further

ORDERED that said cause of action is severed and dismissed as against the moving defendant; and it is further

ORDERED that the balance of the motion is denied; and it is further

ORDERED that the Clerk enter judgment and mark his records accordingly.