PENA v. Oxford 2 Deli Grocery Inc., Defendant–Respondent. (2024)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered January 26, 2024, which, insofar as appealed from, denied Rhodes 2 L.L.C.’s motion for summary judgment dismissing the complaint and all cross-claims as against it, unanimously affirmed, without costs.

Plaintiff's testimony was sufficient to raise a triable issue of fact concerning whether the cause of her fall was an imbalance in the slope or smoothness of the subject ramp (see Garrett v. City of New York, 222 A.D.3d 554, 555, 202 N.Y.S.3d 86 [1st Dept. 2023]).  Moreover, plaintiff's expert opined that the slope of the ramp was too steep, which may reasonably be interpretated to mean that the ramp was not properly balanced.  Such submissions were sufficient to provide a jury with more than speculation concerning the cause of plaintiff's fall.

Rhodes argues that plaintiff's expert's affidavit should be disregarded because he cites numerous conditions on the ramp that played no part in the accident based on the evidence in the record.  While portions of the affidavit should be disregarded because there is no evidence supporting some alleged code violations and conditions as a cause of the accident, plaintiff's testimony may be reasonably interpreted to support the expert's opinion that plaintiff fell because the incline of the ramp was too steep.

The court properly declined to dismiss Oxford's cross-claims against Rhodes for contribution and common-law indemnification because Rhodes failed to demonstrate, as a matter of law, that it bore no responsibility for the allegedly hazardous condition of the ramp.  A jury may find that the ramp was a special use of the sidewalk, and therefore, a duty was imposed on Rhodes to make it reasonably safe regardless of whether Rhodes installed or maintained it (see Boneventura v. 60 W. 57 Realty LLC, 157 A.D.3d 502, 69 N.Y.S.3d 21 [1st Dept. 2018]).  Rhodes also failed to show that it was free from any negligence and was liable solely by virtue of a statute (see Correia v. Professional Data Mgt., Inc., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept. 1999]).  Rhodes's principal testified that he and his employees regularly visited the building and repaired portions of the sidewalk abutting the deli.  Thus, a jury may find that it was negligent in failing to correct the allegedly improper slope of the ramp.

We have considered Rhodes’ remaining arguments and find them unavailing.