MARTINEZ v. PROVO PARKING LLC (2022)

Plaintiff brings this personal injury case against Provo Parking LLC, (“PROVO”) and Gem Parking Corp. (“GEM”) (or collectively referred to as “Defendants”). Defendants now move for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint and all cross-claims against them. Codefendant St. Barnabas Hospital (“St. Barnabas”) and the plaintiff both oppose the motion.

The instant action involves a trip and fall accident which allegedly occurred on December 28, 2014 on the sidewalk abutting the Union Community Health Center (“UCHC”) located at 260 East 188th Street in Bronx County. Valentine Avenue is on one side of UCHC and Tiebout Avenue is on the other side. These premises are owned by St. Barnabas and leased by Defendants.

On the accident date, GEM operated a parking lot at 2446-2456 Valentine Avenue on the Valentine Avenue side of UCHC. The Valentine Avenue side of the parking lot was connected to a series of ramps which led to parking on the roof of an adjacent building located at 2439 to 2453 Tiebout Avenue, which is the designated address of the Tiebout Avenue side of the UCHC. In addition to using the roof of this building for its parking, GEM also parked cars inside this building, but apparently not in the area that is directly next to the accident site sidewalk where plaintiff's fall occurred on the Tiebout Avenue side of UCHC.

PROVO is also one of the parking lots within the entity known as Manhattan Parking Group. PROVO operated a parking lot on Tiebout Avenue between East 188th Street and East Fordham Road. PROVO did not operate the subject parking lot which is on the St. Barnabas owned property at 260 East 188th Street and did not inspect, repair, nor perform any snow removal or cleaning on the accident site sidewalk.

On the accident date, GEM's January 4, 2000 lease extension with property owner St. Barnabas was in effect for the accident site property based on the May 1, 2005 lease extension. Schedule A of the parties’ lease refers to the “St. Barnabas Hospital parking garage” located at “Valentine Avenue and 188th Street” which is adjacent/adjoined to the building that abuts the Tiebout Avenue accident site sidewalk. The lease provided, in part, that GEM perform nonstructural repairs of the leased premises and its abutting sidewalks.

GEM argues that it did not owe a duty of care toward plaintiff and that St. Barnabas was not entitled to indemnification or contribution. In support of dismissing plaintiff's complaint, GEM argues that it did not own the subject location and the governing lease placed liability for structural repairs on St. Barnabas, the owner. Moreover, GEM maintains that it never performed any repairs to the subject sidewalk.

GEM's expert engineer, Stanley Fein, P.E., opines with a reasonable degree of certainty that based on his review of the relevant records, photographs and his February 6, 2021 inspection of the accident site sidewalk, that there was a genuine defective sidewalk, the proximate cause of which was a structural defect in the vault below the sidewalk. Mr. Fein opines that the defective condition in the sidewalk would not have existed with the proper steel beam support.

In support of its motion, GEM also relies in part on the affidavit of Julio Aguilera who states that he has been employed by Manhattan Parking Group since January 25, 2003 at GEM's parking lot that abuts the building next to the accident site sidewalk where plaintiff fell and that he is currently manager of the GEM lot. His affidavit confirms that for the 3—year pre-accident period from December 28, 2011 to the December 28, 2014 accident date, the workers at the subject GEM parking lot were not required to check, clean or repair the accident site sidewalk, and only parked cars on the roof of the subject building that abuts the accident site sidewalk.

The November 20, 2020 affidavit of Danny Sockidjan, a maintenance worker, asserts that he has been employed by Manhattan Parking Group within the maintenance department since 2012. His affidavit also confirms the results of his search of his department's records for the 3-year pre-accident period from December 28, 2011 through December 28, 2014 accident date. This affidavit states that during this 3-year pre-accident period of time, Manhattan Parking Group did not get any complaint about the accident site sidewalk, did not inspect or repair this sidewalk and did not arrange for any contractor to repair this sidewalk.

In opposition to the motion, plaintiff argues that there is an issue of fact with regard to whether or not GEM made special use of the subject sidewalk and whether GEM has a contractual duty with respect to the subject sidewalk pursuant to the GEM — St. Barnabas lease agreement.

In opposition, St. Barnabas contends that the lease agreement between St. Barnabas and GEM specifically required GEM to maintain and repair the section of the sidewalk where plaintiff's accident occurred. St. Barnabas also argues that the alleged defective condition of the sidewalk was not the result of a structural defect, and therefore, it did not have a responsibility to repair the sidewalk.

St. Barnabas also argues that GEM's expert's claim that the accident sidewalk did not have adequate structural support and that the sidewalk required a structural repair to fix the sidewalk, is not accurate. Mr. Fein's claims are disputed by the affidavits of Dr. William Marletta and Hani Nashid.

Mr. Nashid, the construction manager employed by St. Barnabas, stated in his affidavit that no structural repairs have ever been performed to the accident sidewalk, and that the repair that was performed by St. Barnabas after the plaintiff's fall did not involve the installation of any structural steel supports.

St. Barnabas’ expert, safety consultant William Marletta, Ph.D., sets forth in his affidavit that he inspected the accident sidewalk on March 1, 2022 and determined that the accident sidewalk does not contain a sidewalk vault and that the sidewalk repair performed following the plaintiff's accident did not involve or include the installation of any structural beams. It is Dr. Marletta's expert opinion that the condition of the sidewalk at the time of the plaintiff's accident was not caused by any structural problems or deficiencies but resulted from erosion and deterioration of the concrete over time most likely caused by salt erosion and weather. Furthermore, it was Dr. Marletta's opinion that the accident sidewalk was both adjoining and abutting the parking garage that was leased by St. Barnabas to GEM.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Winegrad v New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on the owner of the abutting premises to maintain and repair the sidewalk. It is undisputed that St. Barnabas owned the subject property and GEM leased the property from St. Barnabas. Therefore, the Code creates an obligation for St. Barnabas but does not impose an obligation on GEM.

GEM asserts that paragraph 9 and 10 of the lease made them responsible only for nonstructural repairs and to comply with laws applicable to the subject premises relating to the tenant's use of the premises or created by the tenant making changes, repairs, alterations or improvements to the premises. Since the sidewalk where plaintiff allegedly fell needed replacement, GEM asserts that the necessary repair was structural, and it therefore was not responsible for correcting the condition.

GEM also maintains that it cannot be liable for plaintiff's fall on the accident site sidewalk abutting the subject building since its use of these premises are limited to parking vehicles on its roof and the portion of this building's interior which is not contiguous with the accident site sidewalk.

Because GEM was a tenant, and not the owner, of the relevant property, it cannot be held liable to a third party in tort absent a showing that (a) it affirmatively caused or created the defect that caused plaintiff to trip, or (b) put the subject sidewalk to a “special use” for its own benefit, thus assuming a responsibility to maintain the part used in a reasonably safe condition (see, Collado v Cruz, 81 AD3d 542, 542 [1st Dept 2011]).

GEM's witnesses unequivocally testified that GEM employees never performed any repairs to the subject sidewalk where plaintiff tripped. Neither party opposing the motion submitted evidence rebutting that testimony. Similarly, any reliance on paragraph 10 of the lease requiring compliance with all laws and ordinances is misplaced because there is no law that makes GEM liable for structural repairs of the sidewalk or imposing liability for any failure to do so. Here, there is no evidence that GEM caused or created the sidewalk defect that caused plaintiff to trip. Additionally, contrary to plaintiff's argument, the record affords no ground to conclude that the defendants used the sidewalk as a “special use.” There is no evidence that defendant GEM, a commercial tenant in St. Barnabas’ building, engaged in any special use of the sidewalk prior to the plaintiff's accident. Notwithstanding plaintiff's speculation and conjecture, there is no evidence linking the claimed accident site sidewalk condition to GEM's parking on the building's roof or in the portion of the building's interior.

St. Barnabas argues that the broken condition of the sidewalk was not a structural condition, and therefore pursuant to the lease, GEM was required to repair the nonstructural defect. However, contrary to St. Barnabas’ contention, the photographs of the sidewalk clearly depict the structure of the sidewalk in a broken condition (NYSCEF Doc. No. 26) and there is clearly a substantial defect as defined in the Administrative Code § 19-152.

Where, as here, GEM neither owed a duty toward plaintiff nor breached its contractual obligations, GEM is entitled to judgment as a matter of law. Furthermore, St. Barnabas’ cross-claims must be dismissed because St. Barnabas is not entitled to indemnification or contribution from GEM. St. Barnabas is not entitled to contribution or indemnification because the lease does not require GEM to indemnify St. Barnabas for its own negligence. Responsibility for the structural integrity of the sidewalk was retained by St. Barnabas because GEM is not responsible for structural repairs to the public sidewalk, and because St. Barnabas is solely responsible for performing structural repairs to the public sidewalk, there are not questions of fact and St. Barnabas is not entitled to indemnification.

Similarly, common-law indemnification is inapplicable to the instant action. GEM cannot be liable to St. Barnabas for plaintiff's injuries because GEM did not have a duty to maintain or repair the structural aspects of the sidewalk (see, Arrendal v Trizechahn Corp., 98 AD3d 699 [2nd Dept 2012]). Any liability on the part of St. Barnabas cannot be attributed to any acts or omissions of GEM. Any liability is the sole negligence of St. Barnabas who was responsible for structural maintenance and repair of the subject sidewalk. Because GEM had no duty to make structural repairs to the sidewalk, plaintiff's accident resulting from an alleged defect in the sidewalk is the sole responsibility of St. Barnabas. It follows that St. Barnabas in not entitled to contribution because GEM did not owe a duty of care toward plaintiff or any duty toward St. Barnabas independent of its contractual obligations.

As such, GEM is entitled to dismissal of plaintiff's complaint and all cross-claims against it based on the structural nature of the claimed condition which was St. Barnabas’ leasehold and statutory duty to address.

Finally, neither plaintiff nor St. Barnabas’ opposition make any arguments as to why a dismissal of PROVO would not be appropriate. It is noted that plaintiff has previously agreed to discontinue their claims against PROVO.

Accordingly, it is hereby

ORDERED that the motion of defendants pursuant to CPLR § 3212 for an order granting summary judgment dismissing all claims against both defendants GEM and PROVO is granted, and all claims and cross-claims against said defendants are dismissed in its entirety.

This is the Decision and Order of the Court.

Adrian Armstrong, J.