DeSilvio v. Lin Zheng

150 A.D.3d 679

53 N.Y.S.3d 699

Anna DeSILVIO, appellant,

v.Lin ZHENG, respondent.

Supreme Court, Appellate Division, Second Department, New York.

May 3, 2017.

Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Julie T. Mark of counsel), for appellant.

Gialleonardo, Frankini, Harms & Pieret, Mineola, NY (Michael F. Palmeri of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, BETSY BARROS and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated March 9, 2016, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly slipped and fell on ice on the sidewalk abutting property owned by the defendant in Brooklyn. The plaintiff commenced this action against the defendant, who subsequently moved for summary judgment, contending that he had no duty to maintain the sidewalk abutting his property. The Supreme Court granted the motion. The plaintiff appeals.

"The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so" (Bruzzo v. County of Nassau, 50 A.D.3d 720, 721, 854 N.Y.S.2d 774 ; see Bleich v. Metropolitan Mgt., LLC, 132 A.D.3d 933, 935, 19 N.Y.S.3d 527 ; Schron v. Jean's Fine Wine & Spirits, Inc., 114 A.D.3d 659, 660, 979 N.Y.S.2d 684 ). In 2003, the New York City Council enacted section 7–210 of the Administrative Code of the City of New York to shift tort liability for injuries resulting from defective sidewalk conditions from the City to abutting property owners (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 519–520, 860 N.Y.S.2d 429, 890 N.E.2d 191 ). However, this liability-shifting provision does 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" (Administrative Code § 7–210[b] ).

"[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Here, in view of the plaintiff's pleadings, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that as an owner of a two-family residential property, which he occupied and which...