Yiu v. George J. Crevatas As Tr. of The Crevatas Family Trust

• Decision Date: 14 July 2011
• Citation: Yiu v. George J. Crevatas As Tr. of The Crevatas Family Trust, 33 Misc.3d 267, 928 N.Y.S.2d 454, 2011 N.Y. Slip Op. 21272 (N.Y. Sup. Ct. 2011)
• Parties: LAI–HOR NG YIU, Plaintiff,v.George J. CREVATAS as Trustee of the Crevatas Family Trust, Defendant.
• Court: New York Supreme Court

33 Misc.3d 267

928 N.Y.S.2d 454

2011 N.Y. Slip Op. 21272

LAI–HOR NG YIU, Plaintiff,

v.George J. CREVATAS as Trustee of the Crevatas Family Trust, Defendant.

Supreme Court, Kings County, New York.

July 14, 2011.

Krause & Mauser, New York, for Plaintiff.Devitt, Spellman & Barrett, Smithtown, for Defendant.DAVID I. SCHMIDT, J.

Upon the foregoing papers, defendantGeorge J. Crevatas, as Trustee of the Crevatas Family Trust, (Trustee) moves for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint.

The motion is granted and the complaint is dismissed.

Plaintiff alleges that she suffered injuries on September 23, 2008, when she tripped and fell on the sidewalk in front of a house, owned by the defendant as Trustee of the Crevatas Family Trust (Trust), and located at 1616 Putnam Avenue in Queens, New York (Premises).The Premises is a two-family house,¹ that, at the time of the accident, was occupied by Anne Crevatas, who lived in the first floor unit, and her son Raymond Crevatas, who lived in the second floor unit.George Crevatas, Anne Crevatas' other son, had originally rented the house starting in 1972, and his parents, Anne Crevatas and George Crevatas, Sr., had purchased the Premises from the landlord in 1978.When George Crevatas, Sr., died in March 2002, Anne Crevatas became the sole owner of the Premises.As part of her estate planning, Anne Crevatas, who was born on October 29, 1919, and who was 88 years old in August 2008, transferred ownership of the Premises to the Trust, by way of a quitclaim deed dated August 28, 2008(Deed).This Deed expressly provided that the transfer was “SUBJECT TO THE LIFE ESTATE OF THE GRANTOR, ANNE CREVATAS.”

The Trust, established by way of a Trust Agreement (Agreement) dated August 28, 2008, appointed George Crevatas as Trustee, acknowledged the receipt of the Deed, identified the Premises as the “Trust Premises” and “acknowledged ANNE CREVATAS as the life tenant of such real property or any property substituted therefor as provided herein”(Agreement § SECOND).The Agreement further notes that the Trust Premises is subject to conditions, including one providing that, “[t]he Grantor shall have the right to the exclusive use and enjoyment of the Trust Premises, without the requirement of any bond or security”(Agreement § FIRST [A][1] ), and another providing that “[t]he Trustee shall be authorized, but not required, to pay for the expenses of maintaining the Trust Premises, including, but not limited to, real estate taxes and assessments, utilities, insurance, improvements and repairs”(Agreement § FIRST [A][2] ).Other provisions of the agreement give the Grantor the power to transfer additional property to the Trust (Agreement § FIFTH), and grant the Trustee the power, among others, to buy and sell real property and to mortgage such property (Agreement §§ NINTH [B], [D], [E], [F], ELEVENTH).The Trustee's power to mortgage the Trust Premises, however, is subject to consent of the Grantor (Agreement § ELEVENTH).Finally, the Agreement provides that the Trust terminates upon the death of the grantor, and that the property of the trust will be sold and the balance of the Trust Estate remaining will be distributed equally to the Grantor's sons.

In moving for summary judgment, defendant contends that he may not be held liable under Section 7–210 of the Administrative Code of the City of New York(Sidewalk Law)² for any failure to maintain the sidewalk abutting the Premises because his ownership (as Trustee) of the Premises falls within the exception for “one-, two- or three-family residential real property that is (i) in whole or part, owner occupied, and (ii) used exclusively for residential purposes”(Administrative Code § 7–210[b], [c] ).In opposition, plaintiff argues that the one to three family residential property exception does not apply because Anne Crevatas may not be deemed an owner, and because defendant does not reside at the property.The court finds, however, that Anne Crevatas, as life tenant, is an owner for purposes of the exception to liability contained in section 7–210(b), and since the property is owner occupied “in part,”, defendant may not be held liable for failing to maintain the property under the Sidewalk Law.

The term “owner” is not defined in Article 7(addressing the liability of the City) or Article 19(addressing sidewalk and street maintenance) of the Administrative Code.The primary guide in determining the meaning of owner for purposes of section 7–210(b) is thus the City Counsel's intent in enacting the Sidewalk Law ( seeBraschi v. Stahl Assocs. Co.,74 N.Y.2d 201, 207–208, 544 N.Y.S.2d 784, 543 N.E.2d 49[1989];see alsoPeople v. Finnegan,85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758[1995], cert. denied sub nom.516 U.S. 919, 116 S.Ct. 311, 133 L.Ed.2d 214[1995] ).The statutory text, read in its plain and natural sense, generally provides the clearest indicator of the legislature's intent ( seeCortland–Clinton, Inc. v. New York State Dept. of Health,59 A.D.2d 228, 231, 399 N.Y.S.2d 492[1977];see alsoParkhurst v. United Rentals Aerial Equip., Inc.,75 A.D.3d 702, 704, 903 N.Y.S.2d 802[2010], lv. granted15 N.Y.3d 712, 912 N.Y.S.2d 577, 938 N.E.2d 1012[2010];see alsoFinnegan,85 N.Y.2d at 58, 623 N.Y.S.2d 546, 647 N.E.2d 758).A court may also refer to dictionary definitions in determining the sense in which a word is employed ( seeCortland–Clinton, Inc.,59 A.D.2d at 231, 399 N.Y.S.2d 492;see alsoBraschi,74 N.Y.2d at 211, 544 N.Y.S.2d 784, 543 N.E.2d 49).Such reference is not determinative here, however, as dictionary definitions of what constitutes an owner encompass both one who has the fee or title to property as well as the broader concept of one who has a right to occupy and use property.³

Nevertheless, the City Counsel's intent to include more than fee or title holders as owners may be inferred from its purpose in enacting the Sidewalk Law.As noted by the Court of Appeals:

The City Council enacted section 7–210 in an effort to transfer tort liability from the City to adjoining property owners as a cost-saving measure, reasoning that it was appropriate “to place liability with the party whose legal obligation it is to maintain and repair sidewalks that abut them-the property owners”(Rep. of Comm. on Transp., at 5, Local Law Bill Jacket, Local LawNo. 49[2003] of City of NY).Notably, the language of section 7–210“mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code section 19–152and16–123”( id. at 4;see alsoOffice of Mayor Mem. in Support, Local Law Bill Jacket, Local LawNo. 49[2003] of City of NY)( Vucetovic v. Epsom Downs, Inc.,10 N.Y.3d 517, 521, 860 N.Y.S.2d 429, 890 N.E.2d 191[2008] ).

The purpose of the exception for owners of one to three family dwellings “is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair”( Coogan v. City of New York,73 A.D.3d 613, 614, 900 N.Y.S.2d 645[2010];Story v. City of New York,24 Misc.3d 325, 327, 876 N.Y.S.2d 838[Sup. Ct., Kings County, 2009]; Report of Infrastructure Div., Comm. on Trasp. of Council of City of NY, Nov. 12, 2002[in support of enactment of the 2003 amendment to section 7–210] ).This focus on the person or entity that has the responsibility to repair and maintain a sidewalk, as well as the financial resources to do so, suggests that the City Counsel did not intend to limit the term “owner” to fee or title holders.Indeed, in other contexts in the Administrative Code, the City Counsel has employed a broad definition of owners that includes the holders of life estates.⁴

Deeming a life tenant an owner under section 7–210 is consonant with this statutory purpose.A life tenant is more than a mere incumbrancer, such as a mortgagor, lienor or judgment creditor ( seeAckerman v. State of New York,199 Misc. 76, 80, 102 N.Y.S.2d 536[Court of Claims 1951] ).While a remainderman may have fee title and a greater interest in the property than the life tenant, the life tenant is generally deemed an owner of the property as well and “is entitled to all of the benefits and burden[s] of such ownership although not a fee ownership, so long as the remainder interest is not affected”( Matter of Fisher,169 Misc.2d 412, 413, 645 N.Y.S.2d 1020[Sur. Ct. Rockland County1996];Ackerman,199 Misc. at 80, 102 N.Y.S.2d 536;see alsoBoard of Educ., Hewlett–Woodmere Union Free School Dist. v. Board of Assessors of County of Nassau,54 A.D.2d 978, 979, 389 N.Y.S.2d 27[1976][life tenant is an owner], lv. denied41 N.Y.2d 805, 395 N.Y.S.2d 1026, 363 N.E.2d 1386[1977] ).“It is a general rule that a tenant for life, since he enjoys the rents and profits of the land, must pay the taxes and make all ordinary, reasonable repairs required to preserve the property and prevent it going to decay or waste, unless the instrument creating his tenancy expressly provides otherwise”( Matter of Gaffers,254 App.Div. 448, 451, 5 N.Y.S.2d 671[1938];see alsoBoard of Educ., Hewlett–Woodmere Union Free School Dist.,54 A.D.2d at 979, 389 N.Y.S.2d 27).This duty to make repairs has been held to include at least a portion of an assessment imposed for the purpose of sidewalk repairs ( seeKirchner v. Kirchner,71 Misc. 57, 63, 127 N.Y.S. 399[Sup. Ct. Dutchess County1911][court apportioned sidewalk assessment between life tenant and remaindermen] ), certainly the core concern for determining ownership for purposes of the Sidewalk Law.

Labor Law §§ 240and241(6) also provide some guidance with respect to who may be deemed an owner under section 7–210.Although the term “owner”, as is the case here, is not defined in Labor Law §§ 240and241(6), courts have found that an owner for purposes of those sections is not limited...