DECISION/ ORDER This is an action to recover damages for personal injuries allegedly sustained by the plaintiff on June 20, 2014, who claims to have slipped and fallen on a defective sidewalk in front of 856 Fox Street, Bronx County (the premises), a one-family home owned by defendant Celeste Bonilla (Bonilla). Defendant The City of New York (the City), moves for summary judgment, pursuant to CPLR 3212, dismissing the complaint and cross-claims against it. Defendant Bonilla and the plaintiff oppose the motion, and defendant Bonilla separately moves for summary judgment seeking dismissal of the complaint and cross-claims against it. The City and the plaintiff also oppose that motion. After review of the papers and upon due deliberation, The City’s motion is denied in its entirety and Bonilla’s motion is granted.The Court’s function on this motion for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party (Rodriguez v. Parkchester South Condominium, Inc., 178 AD2d 231 [1st Dept. 1991]). The movant must come forward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). A party seeking summary judgment may not merely point to gaps in the opponent’s proof to obtain relief. Rather, the movant must adduce affirmative evidence of it entitlement to summary judgment (Torres v. Industrial Container, 305 AD2d 136 [1st Dept. 2003]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8 [I960]); Sillman v. Twentieth Century Fox Film Corp., supra.). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Lesocovich v. 180 Madison Avenue Corp., 81 NY2d 982 [1993]). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge…ruling on a motion for summary judgment” (Asabor v. Archdiocese of New York, 102 AD3d 524, 527 [1st Dept 2013] [citation and internal quotation marks omitted]).Pursuant to New York City Administrative Code §7-210, the owner of real property abutting a sidewalk has the duty of maintaining it in a reasonably safe condition, and is liable for personal injury proximately caused by the owner’s failure to so maintain the sidewalk, unless the property is exempt (Admin. Code §7-210[c]). Under Administrative Code §7-210(c), the City is liable only for sidewalks abutting “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” (emphasis added).Here, the City argues that the premises where defendant Bonilla resided was not used exclusively for residential purposes and as such the owner of the property abutting the sidewalk is not exempt from liability pursuant to Administrative Code §7-210. In support of that contention, the City submits the deposition transcript of defendant Bonilla, dated December 13, 2015, who testified that for the last six years, she has rented her driveway on a daily basis for a profit. Defendant Bonilla’s counsel argues that said rental is incidental to the owner’s residential use of the property as such, the premises is exempt. Where a property owner’s use of his or her premises for commercial purposes is limited or occasional, such use has been held to be incidental to the owner’s residential use, thereby entitling the owner to the statutory exemption (Coogan v. City of New York, 73 AD3d 613 [1st Dept 2010] [occasional use of laptop for research held incidental to residential use and owner denied using premises as home office or claiming tax deduction for such use]). The Court finds that defendant Bonilla’s pecuniary gain from renting the use of her driveway is a limited, de minimus commercial use of her property that should not bar her from enjoying the statutory exemption and can find no case law — binding or persuasive — to compel a different outcome. After all, “[t]he purpose of the exception is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” (Aracena v. City of New York, 136 AD3d 717,717-18 [2d Dept 2016] [internal citation and quotation marks omitted]) and excluding homeowners in possession who rent their driveways thwarts that legislative intent. Further, the Court can find no lawful difference between defendant renting out a parking space and defendants who rent apartments within their two or three-family properties — the latter has never been held to convert a premises into a “commercial use” property for purposes of Administrative Code §7-210. Accordingly, defendant Bonilla’s motion for summary judgment is granted.Turning to the City’s motion, the City asserts that there is no evidence that it caused or created the defective condition and submits, in support, the affidavit of an employee, Min Yi Chan of its Department of Transportation. Ms. Chan conducted a search for records pertaining to the segment at Fox Street between Intervale Avenue and Tiffany Street for a period of two-years prior to, and including, the date of plaintiff s accident and successfully uncovered four applications for permits and the subsequently issued permits. She could not locate, however, any Office of Construction and Mitigation coordination files, corrective action requests, notice of violations, notifications for immediate corrective actions, inspections, contracts, maintenance and repair records, complaints, sidewalk inspections, sidewalk violations, or Office of Special Events records. On a separate occasion, the City produced for deposition Omar Codling, a record searcher of its Department of Transportation, whose testimony reiterated Ms. Chan’s search findings. Codling testified that the purported “gang sheet” related to the instant premises was destroyed by Hurricane Sandy; however, it was Codling’s belief that the “gang sheet” related only to work performed solely on the roadway and not the sidewalk and thus would not be dispositive.In opposition, the plaintiff points to the fact that four permits were issued for the area at issue and that defendant Bonilla testified that she observed work performed on the sidewalk in front of her home. Plaintiff further argues that certain documents, such as the “gang sheets” were lost or destroyed as a result of Hurricane Sandy that would have been material to the issue of whether the City created or failed to remedy the defective condition.The Court agrees and finds the missing documents coupled with Bonilla’s testimony raise a question of fact sufficient to preclude the relief the City seeks. The City’s motion is denied. The Clerk is directed to dismiss the complaint as against Celeste Bonilla ONLY.Dated: 1/09/19
