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WCM Obtains Summary Judgment Prior To Discovery Pursuant To The Homeowner's Exemption of NYC's Sidewalk Law

July 29, 2021

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<p style="text-align: justify;">Wade Clark Mulcahy successfully obtained pre-discovery summary judgment dismissing the Plaintiff's complaint and the City of New York's crossclaims against Gloria and Debra Lewis, arguing the insured were shielded from liability pursuant to the Homeowner's Exemption of New York City Administrative Code §7-210.</p>
<p style="text-align: justify;">The action against our clients and the City of New York arises out of a trip-and-fall accident on February 7, 2019. Plaintiff claims she suffered injuries while walking on the sidewalk adjacent to our client's residential property.</p>
<p style="text-align: justify;">Relying on the Lewis sisters' affidavit, WCM filed a pre-discovery motion for summary judgment arguing the Homeowner's Exemption of the New York City Administrative Code §7-210 shields our clients from liability as occupying owners of the property used exclusively for residential purposes.</p>
<p style="text-align: justify;">Plaintiff did not oppose that our clients fell outside of the exemption. Instead, Plaintiff argued the Lewis sisters might have created or caused the allegedly hazardous condition by performing repairs on the sidewalk in front of the property. In New York, an abutting landowner could be held liable only if the owner affirmatively created the dangerous sidewalk condition, negligently made repairs, or used the sidewalk in a special manner for its own benefit. In support of her argument, Plaintiff offered a photograph which she attests show that patchwork had been performed by the Lewis sisters.</p>
<p style="text-align: justify;">Bronx Supreme Court Justice Mitchell J. Danziger ruled that the photograph plaintiff attached in support of her motion to show our clients had performed that patchwork is not admissible since it was updated and unauthenticated. Therefore, the exhibit was not acceptable proof that raised a triable issue of fact. Even if the photo were admissible, the Court noted the assumption that our clients may have performed the patchwork is merely a speculative assertion and insufficient to defeat a motion for summary judgment.</p>
<p style="text-align: justify;">Plaintiff also argued summary judgment was premature as they have not had the opportunity to depose the defendants and are entitled to a reasonable opportunity for disclosure of evidence. However, the Court was not swayed by the argument, ruling the Plaintiff provided no basis to believe that deposition of our clients would yield a basis for their asserted opposition.</p>
<p style="text-align: justify;">Thus, the Court <a href=""><em>granted</em></a> the motion for summary judgment and the Plaintiff’s complaint was dismissed against our clients.</p>
<p style="text-align: justify;">Thanks to Irving Fayman for his contribution to this post.   Should have any questions, please contact <a href="">Tom Bracken</a>.</p>

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