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Story v. City of New York

March 16, 2009

WILMA STORY, PLAINTIFF,
v.
CITY OF NEW YORK, MORRIS M. LOWINGER AND JUDITH LOWINGER, DEFENDANTS.



The opinion of the court was delivered by: Robert J. Miller, J.

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 printed Official Reports.

In this case, the Court is asked to construe the scope of the one- two- three family residential exemption for property "used exclusively for residential purposes" under section 7-210 of the Administrative Code of the City of New York (the New Sidewalk Law). The section in pertinent part provides as follows:

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, thenegligent failure to install , construct, reconstruct, repave, repair or replace defective sidewalk flagsand the negligent failure to remove snow, ice, dirt or other material from the sidewalk.

This subdivision shall not apply to 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.

Plaintiff Wilma Story (" Story") was allegedly injured as a result of a trip and fall accident on a sidewalk in front of 563-571 East 9th Street, Brooklyn, NY (the Property). The defendants, Morris and Judith Lowinger , the owners of the Property, move for summary judgment asserting that they have owned their home for over forty (40) years, they reside at the Property and they are the sole occupants.

Plaintiff and the co- defendant City of New York (City) oppose the motion asserting that there is a fact issue as to whether the Property is used "exclusively for residential purposes" as there is a sign attached to the Property that reads "Richard Lowinger Attorney at Law and Equinox Company" and Richard Lowenger (Richard), the son of defendants, lists the Property as his address for the practice of law with the Office of Court Administration (OCA). Richard testified as follows:

Q: Can you tell me where your office is currently located?

A: My house, 1631 East 28th Street.

Q: That is in Brooklyn as well?

A: That is in Brooklyn as well.

********************

Q: Do you maintain any kind of operations of a business nature at that ...


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