Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after considering oral argument on December 4, 2024, pursuant to CPLR §§ 3212 and 3211, the Decision and Order on Defendants Doe Court Homeowner's Association, Dawning Real Estate, Incorporated, and Yona and Yoni Matmon's ("Doe") Motion for Summary Judgment and dismissing Plaintiff's complaint and any [*2]crossclaims is DENIED in part and GRANTED in part.

Plaintiff initiated this action by filing a summons with notice on May 15, 2018, followed by an amended summons and complaint on June 25, 2018, naming Doe Defendants.^[FN1] Plaintiff seeks damages for personal injuries sustained from an alleged trip and fall on October 21, 2017, near 181 and 183 Freedom Avenue, Staten Island.^[FN2] Plaintiff claims she tripped over a hole in the curb of a driveway while walking her dog.^[FN3]

The Doe Defendants answered the amended complaint on August 2, 2018,^[FN4] and the City Defendant City filed its answer on August 20, 2018.^[FN5] The Doe Defendants moved for the instant summary judgment motion on October 4, 2024,^[FN6] arguing that:

1. They are not responsible for maintaining or repairing the curb, and the defect is trivial and not actionable.^[FN7]

2. The individual homeowners, Yona and Yoni Matmon, are not liable for the driveway and curb maintenance.^[FN8]

3. Plaintiff's claims regarding the failure to provide an offering plan, failure to be incorporated, and inspection of books and records should be dismissed as moot.^[FN9]

Plaintiff and Defendant City opposed the motion, arguing that triable issues exist regarding Doe Defendants' special use of the driveway and its contribution to the curb defect.^[FN10] Plaintiff also asserted noncompliance with the New York State Department of Law Real Estate Finance Bureau's Cooperative Policy Statement No. 7 ("CPS-§7[1]"); as well as Doe's failure to provide an offering plan, failure to be incorporated, and for inspection of their books and [*3]records.^[FN11] In reply, Defendants Doe maintains that Plaintiff and Defendant City failed to refute their prima facie showing they were not responsible for maintaining and repairing the subject curb, that the alleged defect is trivial, and Plaintiff did not demonstrate her second and third causes of action are not moot.^[FN12]

Summary Judgment

A party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law and must tender sufficient evidence in admissible form to demonstrate the absence of any material factual issues. See CPLR 3212 (b); Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Korn v Korn, 135 AD3d 1023, 1024 (3d Dept. 2016). Failure to make this prima facie showing requires denial of the motion. See Alvarez, 68 NY2d at 324; Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish an issue of material fact requiring a trial. See CPLR 3212; Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562. "[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment." Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 (2004) (internal quotations omitted). The court must view the totality of evidence presented in the light most favorable to the nonmoving party and accord that party the benefit of every favorable inference. See Fortune v Raritan Building Services Corp., 175 AD3d 469, 470 (2d Dept. 2019); Emigrant Bank v Drimmer, 171 AD3d 1132, 1134 (2d Dept. 2019).

Dismissal pursuant to CPLR § 3211(a)(1)

"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR § 3211(a)(1) may only be granted where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law." Maursky v. Latham, 219 AD3d 473, 475 (2d Dept. 2023) (quoting Qureshi v. Vital Transportation, Inc., 173 AD3d 1076 [2d Dept. 2019]). "Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case." Id. at 475. Finally, affidavits, deposition testimony, nor letters are considered documentary evidence pursuant to CPLR 3211(a)(1). Id.

Dismissal pursuant to CPLR 3211(a)(2)

A motion to dismiss under CPLR 3211(a)(2) may be granted if the court lacks subject matter jurisdiction over a cause of action. "Subject matter jurisdiction refers to objections that are fundamental to the power of adjudication of a court." Garcia v. Gov't Emps. Inc. Co., 130 AD3d 870 (2d Dept. 2015). Lack of jurisdiction does not mean merely the "elements of a cause of action are absent, but that the matter before the court was not the kind of matter on which the court had power to rule." Id. at 871 (quoting Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 NY3d 200 [2013]). "As a court of original, unlimited and unqualified jurisdiction," the Supreme Court is vested with general original jurisdiction. 21st Century Pharm. v. Am. Intl. Group, 195 AD3d 776 (2d Dept. 2021).

Defendant Doe's Summary Judgment Motion:

1. Plaintiff's personal injury claims

Liability for a dangerous condition on property is predicated upon ownership, occupancy, control, or special use of the property. Toner v. Trader Joe's E., Inc., 209 AD3d 690 (2d Dept. 2022). The "existence of one or more of these elements is sufficient to give rise to a duty of care." Micek v. Greek Orthodox Church of Our Savior, 139 AD3d 830 (2d Dept. 2016). However, where none is present, a party cannot generally be held liable for injuries caused by an allegedly defective condition. Misa v. Town of Brookhaven, 212 AD3d 804 (2d Dept. 2023). Special use is a narrow exception to the general rule, which imposes an obligation on the abutting landowner where they put part of a public way to a special use for their own benefit. Minott v. City of New York, 230 AD2d 719 (2d Dept. 1996). The use of a sidewalk as a driveway constitutes special use. Katz v. City of New York, 18 AD3d 818 (2d Dept. 2005).

Furthermore, "a defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and the characteristics of the defect or the surrounding circumstances do not increase the risk it poses." Padarat v. New York City Tr. Auth., 137 AD3d 1095 (2d Dept. 2016). The Court must examine all facts presented when determining whether a defect is trivial, which includes "the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstance of the injury." See Id. at 1096.

Here, the Doe Defendants failed to establish entitlement to judgment as a matter of law regarding Plaintiff's personal injury claims given existing issues of fact as to whether they made special use of the area in which Plaintiff allegedly fell because it is used as a driveway, and whether use of the driveway contributed to the alleged defect.^[FN13] Simmons v. Elmcrest Homewoners' Ass'n, Inc., 11 AD3d 447 (2d Dept. 2004); Dos Santos v. Peixoto, 293 AD2d 566 (2d Dept. 2002). The Doe Defendants failed to submit any measurements of the dimensions of the alleged defective condition to determine whether it was trivial. See Padarat, 137 AD3d at 1096-1097 (defendant failed to meet its burden demonstrating an alleged defect was trivial when only submitting photographs and descriptions of the alleged defect). Therefore, Defendants Doe's motion for summary judgment is denied as to Plaintiff's personal injury claims.

2. Plaintiff's claims against Defendants Doe for failure to provide an offering plan and failure to be incorporated

"The mootness doctrine precludes courts from considering questions which, although once active, have become academic by the passage of time or by a change in circumstances." In re Melinda D., 31 AD3d 24 (2d Dept. 2006). The Court only has the power to declare the law arising out of actual controverted issues or determining the rights of persons in a particular case before the Court. Hearst Corp. v. Clyne, 50 NY2d 707 (1980). Courts are generally prohibited from issuing advisory opinions or ruling on hypothetical questions, unless an adjudication will result in immediate consequences to the parties. Coleman v. Daines, 19 NY3d 1087 (2012). Moreover, a statement of policy generally does not confer jurisdiction to the court to consider its enforcement. Subway Surface Supervisors Ass'n v. New York City Transit Auth., 22 NY3d 1182 (2014).

Here, the Doe Defendants established Plaintiff's claims of failure to provide an offering plan and failure to be incorporated must be dismissed on the grounds of mootness and standing. Firstly, there is documentary evidence demonstrating that Defendant Doe is incorporated ^[FN14] and that they provided an offering plan,^[FN15] meaning these claims are moot. Plaintiff has no right to a private cause of action pursuant to CPS-§7[1], which is merely a policy statement.^[FN16] Therefore, the Doe Defendants' motion regarding Plaintiff's claims pursuant to CPS-§7[1] is granted and Plaintiff's second cause of action is hereby dismissed.

3. Plaintiff's claim for inspection of books and records

"Not-For-Profit Corporation Law § 621 authorizes any person who is a member of a not-for-profit corporation for at least six months immediately preceding an unsuccessful demand to inspect the corporation's books and records to commence a special proceeding to compel the production of those books and records." Tae Hwa Yoon v. New York Hahn Wolee Church, Inc., 56 AD3d 752 (2d Dept. 2008); N-PCL § 621. The right to inspect corporate books and records "can only be asserted when a corporate shareholder is acting in good faith and has established that the inspection is for a proper purpose." Wisniewski v. Polish & Slavic Ctr., Inc., 309 AD2d 869 (2d Dept. 2003).

Here, Defendants Doe established that Plaintiff's claim for inspection of their books and records is moot as it pertains to this personal injury action and therefore, this cause of action is hereby dismissed. The Doe Defendants complied with multiple court orders to turn over records [*4]to Plaintiff,^[FN17] responded to Plaintiff's discovery demands,^[FN18] and were previously granted a protective order regarding Plaintiff's previous subpoena demands.^[FN19] Furthermore, Plaintiff indicated that her request pursuant to N-PCL § 621 was not relevant to her personal injury claims,^[FN20] and thus would not be for a proper purpose here.^[FN21] Therefore, the Doe Defendants' motion regarding Plaintiff's claim for inspection of books and records is granted and Plaintiff's third cause of action is hereby dismissed.

CONCLUSION

Doe Defendants' motion for summary judgment is:

• Denied as to Plaintiff's personal injury claim.

• Granted as to Plaintiff's second and third causes of action, which are dismissed.

This constitutes the Decision and Order of the Court.