Esponda v. Ramos-Ciprian , 19 N.Y.S.3d 419 ( 2015 )

Esponda v Ramos-Ciprian (2015 NY Slip Op 08645)

Esponda v Ramos-Ciprian

2015 NY Slip Op 08645

Decided on November 24, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 24, 2015
Acosta, J.P., Saxe, Richter, Gische, Kapnick, JJ.

16224 305186/12

[*1] Mirta Esponda, Plaintiff-Respondent,

v

Ana Ramos-Ciprian, Defendant-Appellant, The City of New York Defendant.

Smith Mazure, New York (Mitchell Studley of counsel), for appellant.

Law Office of Michael S. Lamonsoff, PLLC, New York (Joseph E. Gorczyca of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 16, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment as against defendant Ramos-Ciprian, and denied said defendant's cross motion for summary judgment dismissing the complaint as against her, unanimously modified, on the law, to deny plaintiff's motion, and otherwise affirmed, without costs.

Plaintiff established prima facie that defendant's single-family residential real property was not used exclusively for residential purposes and therefore that defendant was not entitled to the exemption from tort liability for injuries to third persons on the sidewalk abutting the property (see Administrative Code of City of NY § 7-210[b]). However, in opposition, defendant raised an issue of fact whether the part-time business she ran from her home was "merely incidental to [her] residential use of the property" (see Coogan v City of New York, 73 AD3d 613, 614 [1st Dept 2010]).

Plaintiff established that defendant had known about a certain condition of the sidewalk abutting her property for several years preceding plaintiff's accident (see Sacco v City of New York, 92 AD3d 529 [1st Dept 2012]). However, defendant raised an issue of fact whether the subject condition was a defective condition (see Hutchinson v Sheridan Hill House Corp., NY3d, 2015 NY Slip Op 07578 [2015]; Pena v Women's Outreach Network, Inc., 35 AD3d 104, 109 [1st Dept 2006]).

Defendant failed to establish that plaintiff was unable to identify the cause of her fall (see e.g. Tomaino v 209 E. 84th St. Corp., 72 AD3d 460 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 24, 2015

CLERK