BENNY v. CONCORD PARTNERS 46TH STREET LLC (2021)

Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered on or about April 15, 2019, which denied plaintiff's motion for summary judgment on liability, unanimously reversed, on the law, without costs, and the motion granted.

In this personal injury action, plaintiff alleges that he slipped on an icy condition on the sidewalk and injured his back in an attempt to not fall, during his employment as an emergency medical technician (EMT), while transporting a patient from the sidewalk to the ambulance.

In moving for summary judgment on the issue of liability, plaintiff argued that he was not negligent under the “danger invites rescue” doctrine.  “Under the ‘danger invites rescue’ doctrine, there exists a duty of care toward a potential rescuer where a culpable party has placed another person in a position of imminent peril which invites a third party, the rescuing plaintiff, to come to the aid of the imperiled person” (Velazquez v. New York City Health & Hosps. Corp., 65 A.D.3d 961, 888 N.Y.S.2d 1 [1st Dept. 2009] [internal quotation marks, brackets and citations omitted]).  “The doctrine applies where a potential rescuer reasonably believes that another is in peril, which determination is made on the facts and circumstances of each case” (id. [internal quotation marks, brackets, and citations omitted]).  Contrary to plaintiff's argument, he failed to show that the doctrine applies here.  There is no evidence that plaintiff was unable to see and avoid the slippery condition on the basis that the patient was endangered if she was not transported immediately to the hospital.

Although plaintiff was unable to show that the rescue doctrine applies, he was entitled to partial summary judgment on the issue of defendants' liability.  To obtain partial summary judgment, a plaintiff does not have to demonstrate the absence of his own comparative fault (see Rodriguez v. City of New York, 31 N.Y.3d 312, 323, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).  Moreover, plaintiff is not required to show that “defendants' negligence was the sole proximate cause of the accident to be entitled to summary judgment” (Fernandez v. Ortiz, 183 A.D.3d 443, 444, 121 N.Y.S.3d 867 [1st Dept. 2020]).  The evidence plaintiff submitted in support of his motion shows that defendants-tenants Havana Central N.Y. 2 LLC d/b/a Havana Central Restaurant & Café (Havana) and Tintol LLC d/b/a Clubhouse Café (Tintol) created the dangerous condition when their employees hosed the sidewalk on a cold winter day (see Mercer v. City of New York, 88 N.Y.2d 955, 956, 647 N.Y.S.2d 159, 670 N.E.2d 443 [1996]).  Defendants-owners Concord Partners 46th Street LLC (Concord) and Elo Equity, LLC, had a non delegable duty to maintain the sidewalk.  Elo had notice that the restaurant employees had created a dangerous condition, because Elo's superintendent had observed the restaurants' employees hosing the sidewalk.  The property manager for Concord did not personally observe the restaurant employees hosing down the sidewalk on the date in question;  however, he testified that it was the general practice to hose down the sidewalk at approximately 7:30 a.m.

In opposition, defendants did not raise a question of fact with respect to the issue of their liability.  Defendant restaurants admit that the evidence shows that their employees hosed the sidewalk with water before the incident occurred.  Furthermore, defendants' argument that there are triable issues of fact on the basis that plaintiff should have sought an alternative route to safely care for the patient relates to the issue of comparative negligence and, therefore, does not preclude summary resolution of the issue of their liability (see Derix v. Port Auth. of N.Y. & N. J., 162 A.D.3d 522, 79 N.Y.S.3d 146 [1st Dept. 2018]).

The Decision and Order of this Court entered herein on December 17, 2020 is hereby recalled and vacated (see M–2021–27, M–2021–56 and M–2021–235 decided simultaneously herewith).