Saunders v. Tarsia

• Decision Date: 14 January 2015
• Citation: Saunders v. Tarsia, 2015 NY Slip Op 352, 997 N.Y.S.2d 909, 124 A.D.3d 620 (N.Y. App. Div. 2015)
• Parties: Eddie SAUNDERS, et al., appellants, v. Mary TARSIA, et al., respondents.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 620

997 N.Y.S.2d 909

2015 N.Y. Slip Op. 00352

Eddie SAUNDERS, et al., appellants,

v.Mary TARSIA, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 14, 2015

Daniel L. Feldman, Flushing, N.Y., for appellants.

Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered December 21, 2012, which, upon an order of the same court dated October 15, 2012, granting the defendants' motion for summary judgment dismissing the complaint and denying their cross motion for summary judgment on the issue of liability, is in favor of the defendants and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

Initially, we note that the plaintiffs previously appealed from the order dated October 15, 2012, upon which the judgment appealed from was entered. That appeal was dismissed by a decision and order on motion of this Court dated August 5, 2013, for failure to timely perfect. While the plaintiffs ordinarily would be precluded from relitigating the issues which could have been raised on the prior appeal ( see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86; Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575), under the circumstances of this case, we exercise our discretion to determine the issues raised on the instant appeal ( see Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864; Ravina v. Hsing Hsung Chuang, 95 A.D.3d 1288, 1288–1289, 945 N.Y.S.2d 411; Ho Sports, Inc. v. Meridian Sports, Inc., 92 A.D.3d 915, 916, 939 N.Y.S.2d 140).

On February 20, 2008, the injured plaintiff allegedly tripped and fell on a sidewalk abutting the defendants' property. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the subject property was a single-family residence, that it was owner occupied, and that it was used solely for residential purposes ( see Administrative Code of City of N.Y. § 7–210[b] ), thus exempting them from liability pursuant to Administrative Code of the City of New York § 7–210(b) for the alleged failure to maintain the sidewalk abutting their property ( see Lai–Hor Ng Yiu v. Crevatas, 103 A.D.3d 691, 691–692, 962 N.Y.S.2d 158; Boorstein...