The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION In the underlying action, plaintiff alleges that she sustained personal injuries when she fell on August 13, 2019 at or around 6:50 p.m., on “defective steps” just outside the main entrance of 20 West 115th St. in the County, City and State of New York. Pending now before the court is a motion where defendant City of New York (the “City”) seeks an order dismissing the complaint, pursuant to Civil Practice Law and Rules 3211(a)(7), for failure to state a cause of action, and striking the names of the aforementioned defendants from the caption, on the basis that the City does not own, control, maintain or operate the subject location. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction […] We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83 [NY Ct. of Appeals 1994]). Arguments Made by the Parties The City argues that it was not the owner of the subject property on the date of the alleged incident; nor did the City operate, maintain, or control the subject property, as “such duties are derived from ownership.” The City argues that such property was in fact owned by co-defendant New York City Housing Authority (“NYCHA”). In support of these arguments, the City submitted, inter alia, a sworn Affidavit from David Schloss, a Senior Title Examiner with the New York City Law Department (NYSCEF Doc. No. 30), which stated, in part: 2. I have conducted a title search for 20 WEST 115th STREET, NEW YORK, NEW YORK, designated on the tax map as Block 1596 Lot 1. 3. Record title for New York Block 1596, Lot 1, on AUGUST 13, 2019, was in THE NEW YORK CITY HOUSING AUTHORITY, pursuant to a deed recorded APRIL 28, 1949, in Liber 4619, Page 1949. The City also submitted the Answer filed by NYCHA (NYSCEF Doc. No. 5), which stated in part: 3. […] except admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the premises known as the King Towers Houses, in the County of New York, City and State of New York, and operates and maintains those portions of the premises used in common by all persons lawfully thereat, and reserves and refers all questions of law, fact and/or conclusions raised therein to the Trial Court. The only opposition to this motion was filed by plaintiff, who did not dispute the City’s central argument that it did not own the subject property on the date of the accident, but plaintiff argues that the City had an active role in performing negligent work, which created the hazard that caused plaintiff to fall. Specifically, plaintiff argues that the City may have worked on the subject steps and created the hazardous condition. Plaintiff had served a discovery notice seeking: (i) copies of all records of repairs for the concrete leading to the steps involved for a period of three years prior and one year subsequent to plaintiffs fall, and (ii) names and addresses of any person working in or on the premises on behalf of the defendants for three years prior to the fall. Plaintiff argues that this motion is premature, as she did not receive a response to this demand, and that the response is vital on the issue of whether the City performed work on the steps. Finally, plaintiff argues that NYCHA’s own Answer asserts a cross-claim against the City sounding in common law and contractual indemnification. In Reply, the City reiterates that it “does not own, lease, operate, manage, maintain, or control the subject premises at 20 West 115th Street, New York, NY.” The City also argues that “premises liability is generally predicated upon occupancy, ownership or control of such premises, and where none is present, a party cannot be held liable for injuries caused thereon.” Conclusions of Law In the Complaint, (NYSCEF Doc. No. 1), plaintiff not only alleges that the City “owned” the subject premises, but plaintiff alleges that the City worked on the subject steps and created the hazardous condition. Even if the City is correct in arguing that it does not own the property, the Affidavit of Mr. Schloss, which was the only Affidavit submitted by the City, does not address this cause of action as alleged by plaintiff. Notably, in NYCHA’s Answer (NYSCEF Doc. No. 5) NYCHA cross-claimed for contribution and indemnification against the City, which suggests that NYCHA has a good faith basis to believe that the City may have had some responsibility towards the subject property. These issues can only be explored through further relevant discovery. Conclusion For the reasons above, it is hereby: ORDERED that this motion is DENIED without prejudice; and it is further ORDERED that the City is granted leave to re-file this motion, at its election, after relevant discovery has been concluded. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: May 15, 2024
