Nereida Colon v. The City of New York, et al.; Rita Marsicano
Attorneys and Parties
Brief Summary
Premises liability involving municipal sidewalks and the homeowner exemption under Administrative Code of the City of New York § 7-210(b) [exempts owner-occupied one-, two-, or three-family residences used exclusively for residential purposes from statutory sidewalk liability] and the common-law 'special use' doctrine.
Granted summary judgment to the homeowner (Marsicano) and dismissed the complaint based on the § 7-210(b) exemption.
The order granting summary judgment to Marsicano and dismissing the complaint as against her.
Although the statutory homeowner exemption applied, the homeowner failed to make a prima facie showing of freedom from common-law liability because she did not establish that her special use of the sidewalk as a driveway did not create or exacerbate the icy condition; her testimony that she did not recall driveway use during the year of the accident was insufficient (see Gilmartin; Prete; Trent-Clark).
Background
Plaintiff alleges she slipped and fell on ice on the sidewalk abutting defendant Marsicano’s property. Marsicano owns a one-, two-, or three-family residence that is owner-occupied and used exclusively for residential purposes. Plaintiff contends the presence and use of Marsicano’s driveway—a special use of the sidewalk—created or exacerbated the icy condition.
Lower Court Decision
Supreme Court, Bronx County (Danziger, J.), by order entered April 22, 2025, granted Marsicano’s motion for summary judgment and dismissed the complaint as against her based on the homeowner exemption under Administrative Code § 7-210(b).
Appellate Division Reversal
The Appellate Division unanimously reversed, denied Marsicano’s motion, and reinstated the complaint. While the statutory exemption applied, Marsicano failed to establish prima facie that the icy condition was not created or exacerbated by her special use of the sidewalk as a driveway; her lack-of-recollection testimony did not refute plaintiff’s theory.
Legal Significance
Even when the Administrative Code § 7-210(b) homeowner exemption applies, a property owner must still negate common-law liability by showing the condition was not created or exacerbated by the owner’s special use of the sidewalk. Conclusory or non-committal testimony (e.g., lack of recollection) will not satisfy the prima facie burden on summary judgment.
Homeowners protected by the § 7-210(b) exemption must affirmatively demonstrate that their special use—such as a driveway—did not create or worsen hazardous sidewalk conditions; mere inability to recall use is insufficient to win summary judgment.