Preview
FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
--------------------------------------------------------------X Index No. 150671/2021
JANNA SICHUGA and EFRIN CISHOOGA,
Plaintiffs,
AFFIRMATION IN
-against- OPPOSITION
CITY OF NEW
YORK, THE NEW YORK
CITY DEPARTMENT OF TRANSPORTATION,
NEW YORK CITY DEPARTMENT OF PARKS
AND RECREATION, THE FRANCISCAN
HANDMAIDS OF THE MOST PURE HEART OF
MARY, INC. and ARCHDIOCESE OF NEW YORK,
Defendants.
_____________________________________________________________________Ç
MICHAEL P. De CARLO, an attorney duly licensed to practice law in the State of
New York, affirms the following under penalties of perjury:
1. I am associated with Connors & Connors, P.C., attorneys for defendants, The
Franciscan Handmaids of The Most Pure Heart of Mary, Inc. and the Archdiocese of New
York.
2. I am fully familiar with the facts and circumstances of this matter as a result of
a review of the file maintained by Connors & Connors, P.C. in connection with the defense of
this matter.
3. This affirmation is submitted in opposition to the motion for summary
judgment by defendants, the City of New York, City of New York s/h/a New York City
Department of Transportation, and City of New York s/h/a New York City Department of
Parks and Recreation.
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PLAINTIFFS'
CLAIM
4. Plaintiff, Janna Sichuga, claims that she was caused to fall and suffer serious
and permanent injury as a result of a defective sidewalk on Woodvale Avenue adjacent to
plaintiffs'
premises known as 63 Bayside Lane, on Staten Island (see Verified Bill of
Particulars and Amended Bill of Particulars annexed hereto collectively as Exhibit A.
THE FRANCISCAN HANDMAIDS OF THE MOST PURE
HEART OF MARY, INC. AND THE ARCHDIOCESE OF
NEW YORK (A) WERE NOT UNDER A STATUTORY
DUTY TO MAINTAIN THE SUBJECT SIDEWALK, AND
(B) TOOK NO AFFIRMATIVE ACT TO CAUSE OR
CREATE THE CLAIMED DANGEROUS/UNSAFE
CONDITION
5. As a general rule, in trip and fall cases on an unsafe condition...an owner of
property abutting a public sidewalk is under no duty to maintain the sidewalk unless a statute
or ordinance specifically imposes tort liability for failing to do so (Robles v. City of New
York, 56 A.D.3d 647; Klotz v. City of New York, 9 A.D.3d 392). In 2003 the New York City
Council enacted Section 7-210 of the Administrative Code of the City of New York, which
imposes tort liability on certain abutting landowners for accidents resulting from the negligent
maintenance of a sidewalk (see DeSilvio v. Lin Zheng, 150 A.D.3d 679). However, this
provision of the Code does not apply to "one-, two-or three-family residential real property
that is (1) in whole or in part, owner occupied, and (2) used exclusively for residential
purposes"
(Administrative Code Section 7-210[b]). Nonetheless, even in the absence of a
statue or ordinance, an owner...of property abutting a public sidewalk may be held liable
where an affirmative act/special use created/resulted in the dangerous/unsafe condition
alleged.
A. The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. is
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exempt from the statutory liability imposed by Section 7-210(b) of the Administrative Code
of the City of New York because its property is an owner-occupied one-family residence and
convent that is used solely for residential purposes.
The pertinent subsection of the relevant law, Section 7-210(b) of the NYC
Administrative Code, provides:
Notwithstanding any other provision of law, the owner
of real property abutting any sidewalk, including, but not
limited to, the intersection quadrant for corner property, 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 to two- or residential real
apply one-, three-family
property that is (i) in whole or in part, owner occupied, and
(ii) used exclusively for residential purposes.
(Emphasis Added)
6. Sister Gertrude Ihenacho, of 63 Bayside Lane, Staten Island, New York,
testified under oath at a deposition conducted on April 8, 2022. A transcript of her deposition
testimony is annexed as Exhibit B (Exhibit B at page 7, lines 7-13).
7. She is the Congregation Minister of The Franciscan Handmaids of The Most
Pure Heart of Mary, Inc., which is one of the leaders of the organization. She has held that
position for twelve years (Exhibit B at page 9, lines 8-19; page 10, lines 6-9). The mission of
The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. is praise and honor to God
and service of charity to humanity (Exhibit B at page 9, line 23 to page 10, line 5).
8. Premises known as: 63 Bayside Lane, Staten Island, New York are owned by
The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. (Exhibit B at page 12, lines
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14-17); see Recording and Endorsement Cover Page, Exhibit C. A building located at the
premises is a house, a convent. It is used as a residence for nuns (Exhibit B at page 11, lines
4-10) and a house of prayer (Exhibit B at page 11, lines 17-21). The building is a one-family
house (Exhibit B at page 14, lines 8-15) with four bedrooms which, at various times, has been
occupied by from one to four nuns (Exhibit B at page 14, line 25 to page 15, line 16). The
Sisters have resided there continuously from 2007 to Sister Gertrude's deposition on April 8,
2022 (Exhibit B at page 13, lines 7-9).
9. A Certified Certificate of Occupancy (Exhibit D) on file with the Department
of Buildings of the City of New York with effective date of May 8, 2007 classifies the
building located at 63 Bayside Lane, Staten Island, New York in the J-3 Occupancy Group.
Section 27-266 of the NYC Administrative Code (see Exhibit E) provides that Group J-3
"shall include buildings occupied as one-family or two-family dwellings or as convents or
rectories."
As such, the defendant, The Franciscan Handmaids of The Most Pure Heart of
Mary, Inc. has made a prima facie showing that it is exempt from the statutory liability
imposed by Section 7-210(b) of the Administrative Code of the City of New York for the
failure to maintain the sidewalk in a reasonably safe condition because its property is an
owner-occupied one-family residence that is used solely for the residential purposes (see
Administrative Code of City of New York Section 7-210[b]), thus exempting it from liability
pursuant to Administrative Code of the City of New York Section 7-210(b) for the alleged
48th
failure to maintain a sidewalk abutting its property (see Boorstein v. 1261 Street
Condominium, 96 A.D.3d 703; Soussi v. Gobin, 87 A.D.3d 580; Schwartz v. City of New
Y_ork, 74 A.D.3d 945).
B. By no affirmative act did The Franciscan Handmaids of The Most Pure
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Heart of Mary, Inc. or the Archdiocese of New York cause or create a dangerous/unsafe
condition on the public sidewalk on Woodvale Avenue adjacent to premises known as 63
Bayside Lane, Staten Island, New York.
10. At no time prior to January 15, 2020 did The Franciscan Handmaids of The
Most Pure Heart of Mary, Inc. or any person or entity on behalf of or at the behest of The
Franciscan Handmaids of The Most Pure Heart of Mary, Inc. install, repair or in any way alter
the sidewalk located on the Woodvale Avenue side of the premises known as 63 Bayside
Lane, Staten Island, New York (see Affidavit of Cyril Agatep annexed hereto Exhibit F).
11. At no time prior to January 15, 2020 did the Archdiocese of New York or any
person or entity on behalf of or at the behest of the Archdiocese of New York install, repair or
in any way alter the sidewalk located on the Woodvale Avenue side or premises known as 63
Bayside Lane, Staten Island, New York (see Affirmation of Roderick Cassidy, Esq. annexed
hereto as Exhibit G).
THE CITY OF NEW YORK FAILS TO PROVE THAT
CITY TAX RECORDS ARE AT ALL RELEVANT IN
DETERMINING WHETHER THE OWNER OF 63
BAYSIDE LANE, STATEN ISLAND, NEW YORK IS
EXEMPT FROM § 7-210'S SHIFT OF LIABILITY FOR
INJURIES ARISING FROM NEGLIGENT FAILURE TO
MAINTAIN A SIDEWALK FROM THE CITY TO A
NON-EXEMPT ABUTTING LANDOWNER
data"
12. Counsel for the City of New York cites to "tax-relevant maintained in the
Department of Finance's Property Tax System database which is said by counsel for The City
to be relevant to the tax status of property located within the City of New York. Counsel for
The City of New York asserts, without any supporting evidence, that the fact that the subject
abutting property is classified as "M4", a convent, for property tax purposes, it is therefore not
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a § 7-210 exempt one-, two-or three family residential property that was at the time of the
alleged accident in whole or in part owner-occupied and used exclusively for residential
purposes.
THE APPELLATE DIVISION, SECOND DEPARTMENT
HAS REJECTED THE CITY'S ASSERTION THAT
WHEN AN ENTITY OWNS A PROPERTY IT CANNOT
BE OWNER OCCUPIED
"31"
13. Counsel for The City asserts in paragraph numbered of her support
affirmation: "The text of 7-210 admits of no religious or house or worship exception. There is
case."
no exception for a convent, as in this However, the pertinent subsection of the relevant
law lists one family, two family and three family residential real property that is in whole or
in part owner occupied and used exclusively for residential purposes as qualifying for the
Section 7-210 Exception. The Certificate of Occupancy (Exhibit D) issued by the Department
of Buildings of the City of New York for the abutting property places the property in the J-3
Building Occupancy Group Classification. Section 27-266 of the Administrative Code of the
City of New York (Exhibit E) states that Occupancy Group J-3 shall include buildings
occupied as one-family or two-family dwellings or as convents or rectories. Sister Gertrude
Ihenacho's deposition testimony (Exhibit B) together with the Certificate of Occupancy
(Exhibit D) shows that the subject property is a one-family house that has been occupied and
used exclusively as a residence by nuns of the Order of The Franciscan Handmaids of The
Most Pure Heart of Mary, Inc. since 2007.
14. The position of the City of New York in this case is simply stated by counsel
"31"
for the City of New York at paragraph numbered of her supporting affidavit but it is
occupied."
unsupported law: "when an entity owns a property it cannot be owner The
by
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48th
Appellate Division, Second Department stated in Boorstein v. 1261 Street Condominium,
that "Administrative Code of the City of New York Section 7-210(b) does not preclude a
corporation from invoking the exemption from liability provisions contained therein (96
A.D.3d 703; see also Valez v. City of New York, et al., 97 A.D.3d 813; Fine v. City of New
York, et al., 48 Misc.3d 1224[A]).
15. The City's reliance on Rabkin v. Coney Island Pentecostal Church, et al.,
Index No.: 28877/08 is misplaced. In Rabkin there is no indication that evidence such as a
Certificate of Occupancy was provided to show that the Church and/or parsonage is
"one-two-or three-family residential real property Further, counsel for the City incorrectly
"33"
states at paragraph of her support affirmation that the property in Rabkin was "classified
case."
as M3, just like the subject property in the instant The Rabkin Order contains no
"M3" "M4"
reference to a classification. In any event, the convent has a tax classification (see
Exhibit I of City's moving papers) which is irrelevant for the purpose of deciding whether an
abutting landowner is entitled to 7-210's exemption. It is the convent's J-3 Building
Occupancy Group classification (see Exhibit D and Section 27-266 of the N.Y.C.
Administrative Code; Exhibit E), which places it in the same occupancy group as one-family
and two-family dwellings, which is relevant.
16. In sum, The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. has
established its prima facie entitlement to judgment as a matter of law by demonstrating
through the deposition testimony of its congregation minister and documentary evidence in
admissible form that the abutting property is a one-family owner-occupied building used
exclusively for residential purposes and, therefore, is exempt from the liability imposed
pursuant to Administrative Code of the City of New York Section 7-210(b) (see
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Administrative Code of City of New York Section 7-210[b]).
17. By no affirmative act did The Franciscan Handmaids of The Most Pure Heart
of Mary, Inc. or the Archdiocese of New York cause or create a dangerous condition on the
public sidewalk on Woodvale Avenue adjacent to premises know as 63 Bayside Lane, Staten
Island, New York.
18. At no time prior to January 15, 2020 did The Franciscan Handmaids of The
Most Pure Heart of Mary, Inc. or any person or entity on behalf of or at the behest of The
Franciscan Handmaids of The Most Pure Heart of Mary, Inc. install, repair or in any way alter
the sidewalk located on the Woodvale Avenue side of the premises known as 63 Bayside
Lane, Staten Island, New York (see Affidavit of Cyril Agatep annexed hereto as Exhibit F).
19. At no time prior to January 15, 2020 did the Archdiocese of New York or any
person or entity on behalf of or at the behest of the Archdiocese of New York install, repair or
in any way alter the sidewalk located on the Woodvale Avenue side of premises known as 63
Bayside Lane, Staten Island, New York (see Affirmation of Roderick Cassidy, Esq. annexed
hereto as Exhibit G).
20. The location of the accident, 63 Bayside Lane, Staten Island, New York, is an
exempt property under Section 7-210 of the N.Y.C. Administrative Law. Consequently, the
plaintiffs'
City of New York is solely liable for injuries.
WHEREFORE, it is respectfully requested that the motion by the City of New York
defendants for summary
Preview
FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND --------------------------------------------------------------X Index No. 150671/2021 JANNA SICHUGA and EFRIN CISHOOGA, Plaintiffs, AFFIRMATION IN -against- OPPOSITION CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, THE FRANCISCAN HANDMAIDS OF THE MOST PURE HEART OF MARY, INC. and ARCHDIOCESE OF NEW YORK, Defendants. _____________________________________________________________________Ç MICHAEL P. De CARLO, an attorney duly licensed to practice law in the State of New York, affirms the following under penalties of perjury: 1. I am associated with Connors & Connors, P.C., attorneys for defendants, The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. and the Archdiocese of New York. 2. I am fully familiar with the facts and circumstances of this matter as a result of a review of the file maintained by Connors & Connors, P.C. in connection with the defense of this matter. 3. This affirmation is submitted in opposition to the motion for summary judgment by defendants, the City of New York, City of New York s/h/a New York City Department of Transportation, and City of New York s/h/a New York City Department of Parks and Recreation. Page 1 of 11 1 of 12 FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 PLAINTIFFS' CLAIM 4. Plaintiff, Janna Sichuga, claims that she was caused to fall and suffer serious and permanent injury as a result of a defective sidewalk on Woodvale Avenue adjacent to plaintiffs' premises known as 63 Bayside Lane, on Staten Island (see Verified Bill of Particulars and Amended Bill of Particulars annexed hereto collectively as Exhibit A. THE FRANCISCAN HANDMAIDS OF THE MOST PURE HEART OF MARY, INC. AND THE ARCHDIOCESE OF NEW YORK (A) WERE NOT UNDER A STATUTORY DUTY TO MAINTAIN THE SUBJECT SIDEWALK, AND (B) TOOK NO AFFIRMATIVE ACT TO CAUSE OR CREATE THE CLAIMED DANGEROUS/UNSAFE CONDITION 5. As a general rule, in trip and fall cases on an unsafe condition...an owner of property abutting a public sidewalk is under no duty to maintain the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so (Robles v. City of New York, 56 A.D.3d 647; Klotz v. City of New York, 9 A.D.3d 392). In 2003 the New York City Council enacted Section 7-210 of the Administrative Code of the City of New York, which imposes tort liability on certain abutting landowners for accidents resulting from the negligent maintenance of a sidewalk (see DeSilvio v. Lin Zheng, 150 A.D.3d 679). However, this provision of the Code does not apply to "one-, two-or three-family residential real property that is (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes" (Administrative Code Section 7-210[b]). Nonetheless, even in the absence of a statue or ordinance, an owner...of property abutting a public sidewalk may be held liable where an affirmative act/special use created/resulted in the dangerous/unsafe condition alleged. A. The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. is Page 2 of 11 2 of 12 FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 exempt from the statutory liability imposed by Section 7-210(b) of the Administrative Code of the City of New York because its property is an owner-occupied one-family residence and convent that is used solely for residential purposes. The pertinent subsection of the relevant law, Section 7-210(b) of the NYC Administrative Code, provides: Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, 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 to two- or residential real apply one-, three-family property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes. (Emphasis Added) 6. Sister Gertrude Ihenacho, of 63 Bayside Lane, Staten Island, New York, testified under oath at a deposition conducted on April 8, 2022. A transcript of her deposition testimony is annexed as Exhibit B (Exhibit B at page 7, lines 7-13). 7. She is the Congregation Minister of The Franciscan Handmaids of The Most Pure Heart of Mary, Inc., which is one of the leaders of the organization. She has held that position for twelve years (Exhibit B at page 9, lines 8-19; page 10, lines 6-9). The mission of The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. is praise and honor to God and service of charity to humanity (Exhibit B at page 9, line 23 to page 10, line 5). 8. Premises known as: 63 Bayside Lane, Staten Island, New York are owned by The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. (Exhibit B at page 12, lines Page 3 of 11 3 of 12 FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 14-17); see Recording and Endorsement Cover Page, Exhibit C. A building located at the premises is a house, a convent. It is used as a residence for nuns (Exhibit B at page 11, lines 4-10) and a house of prayer (Exhibit B at page 11, lines 17-21). The building is a one-family house (Exhibit B at page 14, lines 8-15) with four bedrooms which, at various times, has been occupied by from one to four nuns (Exhibit B at page 14, line 25 to page 15, line 16). The Sisters have resided there continuously from 2007 to Sister Gertrude's deposition on April 8, 2022 (Exhibit B at page 13, lines 7-9). 9. A Certified Certificate of Occupancy (Exhibit D) on file with the Department of Buildings of the City of New York with effective date of May 8, 2007 classifies the building located at 63 Bayside Lane, Staten Island, New York in the J-3 Occupancy Group. Section 27-266 of the NYC Administrative Code (see Exhibit E) provides that Group J-3 "shall include buildings occupied as one-family or two-family dwellings or as convents or rectories." As such, the defendant, The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. has made a prima facie showing that it is exempt from the statutory liability imposed by Section 7-210(b) of the Administrative Code of the City of New York for the failure to maintain the sidewalk in a reasonably safe condition because its property is an owner-occupied one-family residence that is used solely for the residential purposes (see Administrative Code of City of New York Section 7-210[b]), thus exempting it from liability pursuant to Administrative Code of the City of New York Section 7-210(b) for the alleged 48th failure to maintain a sidewalk abutting its property (see Boorstein v. 1261 Street Condominium, 96 A.D.3d 703; Soussi v. Gobin, 87 A.D.3d 580; Schwartz v. City of New Y_ork, 74 A.D.3d 945). B. By no affirmative act did The Franciscan Handmaids of The Most Pure Page 4 of 11 4 of 12 FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 Heart of Mary, Inc. or the Archdiocese of New York cause or create a dangerous/unsafe condition on the public sidewalk on Woodvale Avenue adjacent to premises known as 63 Bayside Lane, Staten Island, New York. 10. At no time prior to January 15, 2020 did The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. or any person or entity on behalf of or at the behest of The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. install, repair or in any way alter the sidewalk located on the Woodvale Avenue side of the premises known as 63 Bayside Lane, Staten Island, New York (see Affidavit of Cyril Agatep annexed hereto Exhibit F). 11. At no time prior to January 15, 2020 did the Archdiocese of New York or any person or entity on behalf of or at the behest of the Archdiocese of New York install, repair or in any way alter the sidewalk located on the Woodvale Avenue side or premises known as 63 Bayside Lane, Staten Island, New York (see Affirmation of Roderick Cassidy, Esq. annexed hereto as Exhibit G). THE CITY OF NEW YORK FAILS TO PROVE THAT CITY TAX RECORDS ARE AT ALL RELEVANT IN DETERMINING WHETHER THE OWNER OF 63 BAYSIDE LANE, STATEN ISLAND, NEW YORK IS EXEMPT FROM § 7-210'S SHIFT OF LIABILITY FOR INJURIES ARISING FROM NEGLIGENT FAILURE TO MAINTAIN A SIDEWALK FROM THE CITY TO A NON-EXEMPT ABUTTING LANDOWNER data" 12. Counsel for the City of New York cites to "tax-relevant maintained in the Department of Finance's Property Tax System database which is said by counsel for The City to be relevant to the tax status of property located within the City of New York. Counsel for The City of New York asserts, without any supporting evidence, that the fact that the subject abutting property is classified as "M4", a convent, for property tax purposes, it is therefore not Page 5 of 11 5 of 12 FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 a § 7-210 exempt one-, two-or three family residential property that was at the time of the alleged accident in whole or in part owner-occupied and used exclusively for residential purposes. THE APPELLATE DIVISION, SECOND DEPARTMENT HAS REJECTED THE CITY'S ASSERTION THAT WHEN AN ENTITY OWNS A PROPERTY IT CANNOT BE OWNER OCCUPIED "31" 13. Counsel for The City asserts in paragraph numbered of her support affirmation: "The text of 7-210 admits of no religious or house or worship exception. There is case." no exception for a convent, as in this However, the pertinent subsection of the relevant law lists one family, two family and three family residential real property that is in whole or in part owner occupied and used exclusively for residential purposes as qualifying for the Section 7-210 Exception. The Certificate of Occupancy (Exhibit D) issued by the Department of Buildings of the City of New York for the abutting property places the property in the J-3 Building Occupancy Group Classification. Section 27-266 of the Administrative Code of the City of New York (Exhibit E) states that Occupancy Group J-3 shall include buildings occupied as one-family or two-family dwellings or as convents or rectories. Sister Gertrude Ihenacho's deposition testimony (Exhibit B) together with the Certificate of Occupancy (Exhibit D) shows that the subject property is a one-family house that has been occupied and used exclusively as a residence by nuns of the Order of The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. since 2007. 14. The position of the City of New York in this case is simply stated by counsel "31" for the City of New York at paragraph numbered of her supporting affidavit but it is occupied." unsupported law: "when an entity owns a property it cannot be owner The by Page 6 of 11 6 of 12 FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 48th Appellate Division, Second Department stated in Boorstein v. 1261 Street Condominium, that "Administrative Code of the City of New York Section 7-210(b) does not preclude a corporation from invoking the exemption from liability provisions contained therein (96 A.D.3d 703; see also Valez v. City of New York, et al., 97 A.D.3d 813; Fine v. City of New York, et al., 48 Misc.3d 1224[A]). 15. The City's reliance on Rabkin v. Coney Island Pentecostal Church, et al., Index No.: 28877/08 is misplaced. In Rabkin there is no indication that evidence such as a Certificate of Occupancy was provided to show that the Church and/or parsonage is "one-two-or three-family residential real property Further, counsel for the City incorrectly "33" states at paragraph of her support affirmation that the property in Rabkin was "classified case." as M3, just like the subject property in the instant The Rabkin Order contains no "M3" "M4" reference to a classification. In any event, the convent has a tax classification (see Exhibit I of City's moving papers) which is irrelevant for the purpose of deciding whether an abutting landowner is entitled to 7-210's exemption. It is the convent's J-3 Building Occupancy Group classification (see Exhibit D and Section 27-266 of the N.Y.C. Administrative Code; Exhibit E), which places it in the same occupancy group as one-family and two-family dwellings, which is relevant. 16. In sum, The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. has established its prima facie entitlement to judgment as a matter of law by demonstrating through the deposition testimony of its congregation minister and documentary evidence in admissible form that the abutting property is a one-family owner-occupied building used exclusively for residential purposes and, therefore, is exempt from the liability imposed pursuant to Administrative Code of the City of New York Section 7-210(b) (see Page 7 of 11 7 of 12 FILED: RICHMOND COUNTY CLERK 10/06/2023 03:24 PM INDEX NO. 150671/2021 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 10/06/2023 Administrative Code of City of New York Section 7-210[b]). 17. By no affirmative act did The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. or the Archdiocese of New York cause or create a dangerous condition on the public sidewalk on Woodvale Avenue adjacent to premises know as 63 Bayside Lane, Staten Island, New York. 18. At no time prior to January 15, 2020 did The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. or any person or entity on behalf of or at the behest of The Franciscan Handmaids of The Most Pure Heart of Mary, Inc. install, repair or in any way alter the sidewalk located on the Woodvale Avenue side of the premises known as 63 Bayside Lane, Staten Island, New York (see Affidavit of Cyril Agatep annexed hereto as Exhibit F). 19. At no time prior to January 15, 2020 did the Archdiocese of New York or any person or entity on behalf of or at the behest of the Archdiocese of New York install, repair or in any way alter the sidewalk located on the Woodvale Avenue side of premises known as 63 Bayside Lane, Staten Island, New York (see Affirmation of Roderick Cassidy, Esq. annexed hereto as Exhibit G). 20. The location of the accident, 63 Bayside Lane, Staten Island, New York, is an exempt property under Section 7-210 of the N.Y.C. Administrative Law. Consequently, the plaintiffs' City of New York is solely liable for injuries. WHEREFORE, it is respectfully requested that the motion by the City of New York defendants for summary