Elizabeth Vargas, Plaintiff, v. NEW DUMBO BUILDING SUPPLY INC (2026)

The following papers efiled on NYSCEF were used on this motion: Doc Nos. 79-94, 103-116, 118, 137-138.

Upon the foregoing papers, having heard oral argument  ¹ , and due deliberation having been had, the within motion by third-party defendant New Dumbo Building Supply, Inc. seeking summary judgment dismissing the third-party complaint is determined as follows.

Background

This third-party action arises out of a sidewalk trip-and-fall accident that allegedly occurred on August 28, 2021, adjacent to 171 York Street, Brooklyn, New York. Elizabeth Vargas ("Plaintiff"), a pedestrian, alleges that she sustained injuries after tripping and falling on a broken, cracked, defective, and/or unleveled portion of the sidewalk. Plaintiff commenced this action against Great Front Realty Corp. ("Great Front Realty"), the owner of the subject premises. Great Front, as a defendant/third-party plaintiff, thereafter commenced a third-party action against New Dumbo Building Supply, Inc. ("New Dumbo"). The subject premises, 171 York Avenue, Brooklyn, New York, were leased in 1997 to New Star Building Supply; the lease was later assumed by New Dumbo Building Supply. The lease required the tenant to maintain and repair the premises, including the sidewalk. It further provided that, in the event of a holdover tenancy, all covenants and conditions of the lease would continue to bind the tenant. Although the original lease expired on December 31, 2017, New Dumbo continued to occupy the premises as a month-to-month tenant. By letter dated October 15, 2020, Great Front Realty notified New Dumbo that the tenancy would terminate effective March 31, 2021. Notwithstanding the termination notice, New Dumbo remained in possession and continued to occupy the premises as a month-to-month tenant until its final rent payment in June 2021. New Dumbo vacated the premises in late June or early July 2021, retaining a key for a disputed number of months thereafter. (See generally NY St Cts Elec Filing [NYSCEF] Doc Nos. 81, 85, 90, 92, 98.)

Movant's Contentions

Third-party defendant New Dumbo seeks summary judgment dismissing Great Front Realty's third-party complaint on the ground of lack of a duty of care owed. To prevail on a negligence claim, a plaintiff must show that the defendant owed a duty of care and breached that duty, and that the breach was a proximate cause of the alleged injury. Here, New Dumbo contends that they had vacated the premises more than a month prior to the incident and exercised no control over the property or sidewalk at the relevant time. Although New Dumbo retained the key for approximately one month after vacating in late June or early July 2021, New Dumbo had ceased business operations at the site and stopped paying rent. Of note, during this extra month, employees came back once or twice to pick up some leftover debris from the yard. Further, New Dumbo argues that it neither created the alleged defect nor engaged in a special use that would give rise to liability. In support of their arguments, they put forth that Great Front Realty sold the property on October 27, 2021 to Macentico II, LLC, pursuant to a contract of sale. (See generally NYSCEF Doc No. 80.)

Opposition

Defendant/third-party plaintiff Great Front Realty opposes the motion for summary judgment dismissing the third-party complaint. They contend that New Dumbo retained the keys to the subject premises for at least one month after the alleged fall in August and for at least two months after their final rent payment in June. They note that during this time, New Dumbo continued to have a physical presence such as employees, "assets," and "remaining debris" at the subject premises until October 2021. Further, they allege that between July 2021 and August or September 2021, New Dumbo's employees went to the subject location on multiple occasions to remove debris, with the vice president of Great Front testifying that New Dumbo had in fact repaired the sidewalk on at least one occasion. Great Front avers that evidence raises issues of fact as to whether New Dumbo had special use of the driveway which provided access to the sole entrance of the subject premises by using the driveway on a daily basis to bring in supplies by heavy trucks. (See generally NYSCEF Doc No. 103.)

Discussion

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (see Bazdaric v Almah Partners LLC, 41 NY3d 310, 314 [2024]).

The issue posed is whether New Dumbo remained in possession or control of the premises or otherwise retained contractual or special-use responsibility for the sidewalk, such that it owed a duty to those walking on the sidewalk despite having stopped paying rent and allegedly vacating the premises before the accident. Liability for a dangerous condition on real property is generally predicated upon ownership, occupancy, control, or special use of the property (see Velez v Captain Luna's Mar., 74 AD3d 1191 [2d Dept 2010]). Accordingly, a party that neither owns, occupies, controls, nor makes special use of the property generally owes no duty with respect to its maintenance. Here, although the parties dispute the precise date on which New Dumbo returned its keys to the premises, that dispute is not material because New York law generally does not treat possession of a key as automatically equivalent to possession of premises. (see Charlebois v Carisbrook Indus., Inc., 23 AD3d 821 [3d Dept 2005]). Rather, surrender is determined by the parties' conduct and whether they acted inconsistently with a continuing landlord-tenant relationship. The focus is abandonment and acceptance of surrender—not who physically possessed a key. (see Ford Coyle Props., Inc. v 3029 Ave. V Realty, LLC, 63 AD3d 782 [2d Dept 2009]). Hence, the relevant inquiry is whether New Dumbo exercised dominion and control over the property on the date of plaintiff's accident, owing a duty of care as a holdover tenant. The record reflects that New Dumbo had ceased business operations at the location, made its final rent payment in June 2021, and vacated the premises in late June or early July 2021, nearly two months before plaintiff's August 28, 2021 accident, suggesting that it had relinquished possession and control of the premises before the accident.

Great Front has not demonstrated a basis for liability under the special-use doctrine. Under the special-use doctrine, liability may be imposed where a defendant derives a special benefit from a public sidewalk distinct from that enjoyed by the general public and the special use created or contributed to the alleged defective condition (see Kaufman v Silver, 90 NY2d 204 [1997]; Poirier v City of Schenectady, 85 NY2d 310 [1995]). Thus, a party's mere use of a sidewalk is insufficient; rather, there must be evidence establishing a nexus between the special use and the defect alleged to have caused the accident. Here, although the record reflects that New Dumbo utilized the driveway portion of the sidewalk during its three-year tenancy for deliveries by heavy commercial trucks, Great Front has not submitted evidence establishing that such use created or contributed to the specific defect that allegedly caused plaintiff's fall. The mere existence of a driveway or prior commercial use of the sidewalk is insufficient, without more, to establish special-use liability.

Nevertheless, Great Front has submitted testimony from which a reasonable jury could infer that New Dumbo maintained a continuing connection to the premises after vacating. Specifically, Great Front contends that New Dumbo retained access to the premises, left property and debris on site, and continued to send employees to the property on multiple occasions to remove debris and continue cleaning the sidewalk through August or September 2021. While New Dumbo characterizes these activities as less frequent and incidental to its departure from the premises, a factfinder could reasonably conclude that such conduct constituted continued possession, control, or maintenance of the property, particularly in light of the parties' month-to-month landlord-tenant relationship following the expiration of the lease and New Dumbo's continued presence at the property after the stated termination date. Moreover, evidence that New Dumbo agreed to continue maintaining the sidewalk after vacatur could further support an inference that its obligations with respect to the premises had not fully ceased. As such, competing inferences may be drawn from the differing narratives, rendering summary judgment inappropriate.

Conclusion

Accordingly, although the record contains evidence that New Dumbo ceased operations, stopped paying rent, and vacated the premises before plaintiff's accident, Great Front has submitted testimony from which a reasonable factfinder could conclude that New Dumbo retained a sufficient degree of possession, control, or maintenance responsibility with respect to the premises and adjacent sidewalk after vacatur. Specifically, questions remain regarding New Dumbo's continued access to the property, its retention of debris on site, its employees' post-vacatur visits to remove debris and clean the sidewalk, and whether it agreed to continue maintaining the sidewalk after vacating. Because these facts bear directly on whether New Dumbo owed a duty at the time of plaintiff's accident and permit competing inferences regarding its ongoing connection to the premises, summary judgment dismissing the third-party complaint is not warranted.

Third-party defendant New Dumbo having made out a prima facie case of lack of a duty, defendant/third-party plaintiff Great Front Realty produced evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution of the issue of whether the former owed a duty of care (see Zuckerman v City of New York, 49 NY2d 557; Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223), especially since the facts must be viewed in the light most favorable to Great Front Realty, as the non-moving party (see Bazdaric v Almah Partners LLC, 41 NY3d 310).

It is hereby ORDERED that third-party defendant New Dumbo Building Supply, Inc.'s motion for summary judgment dismissing the third-party complaint of defendant/third-party plaintiff Great Front Realty Corp. is DENIED.

FOOTNOTES

FOOTNOTE.  

1.   Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.* FN* This Court acknowledges the assistance of Cindy Zhang, judicial intern and second year student at Cardozo School of Law, in the preparation of this decision.