The motion of defendant Eduardo Rodriguez, s/h/a Edwardo Rodriguez (No. 3632), for an order dismissing the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7) is denied, as is the cross motion for summary judgment of defendant the City of New York ("City") (No. 314); plaintiff's cross motion (No. 222) for leave to serve and file an amended summons and complaint correcting the spelling of the non-municipal defendant's first name is granted.

This matter arises out of a slip and fall which occurred on May 19, 2006, on or near an allegedly defective sidewalk in front of 22 Scarboro Avenue, Staten Island, New York, a one-family residence allegedly owned by defendant Rodriguez. In his January 7, 2008 affidavit submitted in opposition to the co-defendants' dismissal motions, plaintiff describes the accident as follows: "I fell on the sidewalk in the area at or near the wooden/utility pole and the fence post to the right of the front door of 22 Scarboro Avenue as you face the premises...[I fell] in a depression where the pavement is missing between the driveway surface and cement sidewalk flag...[T]his depression is in the driveway" (see Plaintiff's Exhibit 4). Other than the copies of the photographs attached to plaintiff's affidavit, no discovery has been exchanged between the parties in this case.Underlying the individual defendant's motion to dismiss is the 2003 amendment to the Administrative Code of the City of New York (i.e., §7-210), which provided a shift in liability from the City to the individual abutting property owner in the case of a trip or slip and fall on a defective sidewalk. However, this amendment specifically excludes from liability the owners of "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" (see Administrative Code of the City of New York, §7-210[b]). Accordingly, Rodriguez asserts that since his property is a one-family owner-occupied residence, the complaint as against him must be dismissed for failure to state a cause of action. Attached to his motion papers is a copy of the deed memorializing the transfer of ownership of the subject premises to defendant Rodriguez (Movant's Exhibit B), as well as a building notice from the New York City Department of [*2]buildings which purports to indicate that 22 Scarboro Avenue is a one-family dwelling (Movant's Exhibit C).

In opposition to this motion, plaintiff argues that: (1) Rodriguez has failed to furnish an affidavit attesting to the fact that the alleged one-family home is owner occupied and used exclusively for residential purposes,^[FN1] and (2) in any event, Rodriguez created the alleged defect through his special use of the sidewalk to access the driveway. Alternatively, plaintiff argues that the motion is premature because no discovery has been conducted, particularly with regard to this defendant's nature and use of the premises; and the construction work, if any, performed on the premises. Lastly, plaintiff seeks to serve an amended Summons and Complaint correcting the spelling of "Edwardo" to "Eduardo".

In reply to plaintiff's opposition, Rodriguez points out that the complaint alleging his residency and ownership of the subject premises constitute "formal judicial admissions" under Weichert v. Kimber, (229 AD2d 998).^[FN2] Rodriguez also notes that the "mere hope" that evidence sufficient to defeat a summary judgment motion might be uncovered during the discovery process is insufficient to defeat his motion for summary judgment (Gomez v. Sammy's Transport, Inc., 19 AD3d 544).

The City's motion for summary judgment is the inverse of co-defendant's dismissal motion. Specifically, the City argues against liability on the grounds that the subject property is neither owner- occupied nor owned by the City. In support of this position, the City utilizes its Department of Finance ("DOF") Real Property Assessment Division database to show that the real estate tax bills pertaining to the subject property are mailed to defendant Rodriguez in Florida. According to the affidavit of George Mark of the DOF, such mailings occur where, e.g., an owner resides elsewhere. For his part, Rodriguez has failed to rebut the City's and plaintiff's proof on the issue of owner-occupancy. Moreover, the City argues that Rodriguez has failed to show that the alleged defect is separable from his special use of the driveway.

In his opposition to the City's motion, Rodriguez claims, inter alia, that no evidence has been offered by the City (or by plaintiff for that matter) to show that his "winter home" in Florida is his legal residence.As previously indicated, the motions for summary judgment and/or dismissal of the complaint are denied.

With respect to the City's motion, it is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). However, once the moving party has made a [*3]prima facie showing of its entitlement to judgment, it becomes incumbent upon the opposing party to provide evidentiary proof in admissible form sufficient to raise a triable issue (Rosenberg v. Rockville Centre Soccer Club, 166 AD2d 570). In deciding such a motion, the court must view all of the evidence in the light most favorable to the party opposing the motion, and if a triable issue of fact is present, or even arguable, the motion must be denied (see Fleming v. Graham, 34 AD3d 525, rev on other grounds 10 NY3d 296; Gant v. Sparacino, 203 AD2d 515).

In this case, the City has failed to make a prima facie showing of entitlement to judgment as a matter of law, as the only evidence set forth to show that Rodriguez does not occupy the house in question is an inference based on the print-out from the DOF. That hearsay document does not constitute competent evidence proving the actual legal residence of the defendant is in Florida, and is therefore insufficient to make out a prima facie case that the residence is not owner-occupied, especially in light of the contrary averments by defendant Rodriguez and plaintiff's judicial admission that the one-family property is owner-occupied.

With respect to the Rodriguez motion, this Court is mindful that when reviewing a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, it "must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, and accord plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414). Here, plaintiff's proofs, including the affidavit claiming service upon Rodriguez in Florida in September of 2007, are sufficient to raise a triable issue as to whether or not the subject residence is, in fact, owner-occupied by Rodriguez except during the winter months. Also relevant to this determination is the fact that the uncontroverted affidavit of personal service upon the individual defendant in this case states that it was made in Florida pursuant to CPLR 308(2) at the individual defendant's "dwelling house [or] usual place of abode."

Accordingly, whether or not the Rodriguez premises fall within the single family owner-occupied exception set forth in Administrative Code §7-210 presents a question of fact for the jury. Moreover, it is beyond cavil under these circumstances that plaintiff's claim that the motions are premature is not based on the "mere hope" of discovering probative evidence. The law favors full disclosure before deciding whether a trial is warranted (see Juseinoski v. New York Hosp. Med Ctr. of Queens, 29 AD3d 636), and this is especially true where facts essential to oppose the motion may lie exclusively within the knowledge and control of a moving party (id.; cf. Arpi v. New York City Tr. Auth., 42 AD3d 478).

Accordingly, it is

ORDERED that the defendants' motions for dismissal and/or summary judgment are denied, and it is furtherORDERED that plaintiff's cross motion is granted.

The foregoing constitutes the Decision and Order of the Court.

Dated: July 18, 2008/s/

Hon. Thomas P. Aliotta, J. S. C. [*4]