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Cleotilde SEGOVIA, Plaintiff, v. R.T.H. ASSOCIATES LLC et al., Defendants.
In this personal injury case, Defendant Star Bright, LLC (hereinafter “Star Bright”) moves in sequence number 3 for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint and all cross-claims against it. Defendant R.T.H. Associates LLC (hereinafter “R.T.H.”) moves in sequence number 4 for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint and all cross-claims against it. Defendant R & G Enterprises, Inc. (hereinafter “R & G”) moves in sequence number 5 for summary judgment pursuant to CPLR 3212, dismissing the plaintiff's complaint and all cross-claims against it, and summary judgment against Star Bright for contractual indemnification and breach of contract for failure to procure insurance. Motion sequence numbers 3-5 are consolidated for purposes of disposition.
R.T.H. is the owner of the property located at 411 E. 151st Street, Bronx, New York. The adjacent property, 409 E. 151st Street, Bronx, New York, is owned by defendant R & G. Star Bright was a tenant on the date of the alleged incident and operated a supermarket on the property owned by R & G.
Plaintiff alleges that on August 26, 2017 she was caused to trip and fall and sustain injuries while walking on the sidewalk adjacent to East 151st Street where the building lines of 411 East 151st Street and 409 E. 151st Street meet together. Plaintiff testified that she tripped with the right foot because one sidewalk flag was two inches lower than the adjacent flag. Plaintiff further testified that her left foot then caught on a white object which she described as a “plastic tube” located between the sidewalk flags. Plaintiff maintains that the tripping hazard should have been inspected, maintained and/or repaired in a timely manner by the two respective property owners herein.
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 ). 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 ). 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 ).
The law concerning liability for injury caused by a dangerous condition on a sidewalk is governed by New York City Administrative Code of the City of New York § 7-210 which imposes a nondelegable duty on the owner, not tenant, of the abutting premises to maintain and repair the sidewalk. In addition, provisions of a lease obligating a tenant to maintain and/or to repair the sidewalk do not impose on the tenant a duty to a third party, such as a plaintiff (see Collado v Cruz, 81 AD3d 542 [1st Dept 2011]).
R.T.H. by its principal Sam Kafif testified at his deposition that R.T.H. purchased the property located at 411 E. 151st Street on December 3, 2013. He testified that demolition work to remove an existing one-story building was done on the property. He further attests that the sidewalk flag plaintiff was walking on when she alleges to have tripped lies on the adjacent property of 409 E. 151st Street, while the sidewalk flag immediately to its right is on R.T.H.’s property. R.T.H. maintains that the sidewalk flag on the property of R & G was sunken vis-à-vis the adjacent sidewalk flag on the adjourning property it owned and had been for a number of years, resulting in a height differential with adjacent flag on its property.
R.T.H. also submits the affidavit of Kelly D. Scott, P.E., a licensed engineer. Mr. Scott conducted an inspection of the accident location on August 6, 2021. Mr. Scott's inspection revealed that the sidewalk flag located in the front of the adjoining property owned by R & G, was sunken as compared to the surfaces of all adjacent flags. Mr. Scott further stated that there were no cracked, broken, depressed, raised, or loose areas observed along the flags in front of R.T.H.’s property. It was Mr. Scott's opinion that plaintiff's accident was caused as a result of the sunken condition of the 409 flag she was walking on immediately prior to her accident, which created a height differential between the eastern edge of the 409 flag, located on the R & G property. The sunken condition of the 409 flag also exposed the white plastic isolation joint cover between the two flags.
Defendant R & G, by its principal Bruce Laxner testified at his deposition that the property owned by R & G was located at 409 E. 151st Street and is a corner property which extends onto Melrose Avenue. He was shown photographs of the East 151st Street side of the property and testified that the metal door depicted in photographs was exclusively used for deliveries by the supermarket tenant, Star Bright. Mr. Laxner further testified he had never noticed the sunken condition of the sidewalk flag in front of the metal door on the East 151st Street side of the property. R & G submits admissible evidentiary proof, in the form of an expert opinion and affidavit, namely a professional property surveyor, who opined that the alleged defective sidewalk condition was wholly within the property boundaries of R.T.H. R & G also claims it is owed contractual indemnification from the tenant of the premises, Star Bright. Additionally, it is claimed that Star Bright failed to procure insurance for the benefit of R & G.
It is undisputed that R.T.H. and R & G were the owners of the properties that border the sidewalk area in dispute and that Star Bright leased its property from R & G. Therefore, the Administrative Code creates an obligation for both R.T.H. and R & G, but does not impose an obligation on the tenant, Star Bright. Additionally, “in the absence of a lease that is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk” (Abramson v Eden Farm, Inc., 70 AD3d 514 [1st Dept 2010], quoting Espinal v Melville Snow Contrs., 98 NY2d 136 ), the lessee will be liable only if it “created the defective condition, negligently made repairs, or used the sidewalk for a special purpose” (Berkowitz v Dayton Constr., Inc., 2 AD3d 764 [2d Dept 2003]).
It is undisputed that Star Bright was a commercial tenant in possession of a supermarket with a front entrance to the public on the Melrose Avenue side and used a side door on the East 151st Street side of the building as a delivery chute for its inventory. As such, plaintiff claims that Star Bright made a special use of the rear door and the adjoining sidewalk. Plaintiff argues that neither owner acted reasonably and allowed the sidewalk flag to create a tripping hazard in violation of the NYC Administrative Code Sections 710 and 19-152.
Here, the lease agreement between Star Bright and R & G does not require the commercial tenant to make any “structural” repairs, and the tenant is responsible for only “nonstructural” repairs to the leased premises inclusive of the sidewalk adjacent thereto. Moreover, the lease between R & G and Star Bright does not create a duty to the plaintiff as a pedestrian (see Kennedy v C & C New Main St. Corp., 269 AD2d 500 ). Thus, any failure of Star Bright to maintain the sidewalk as required under the lease does not create liability on its part to plaintiff. Therefore, Star Bright is entitled to dismissal of the complaint insofar as asserted against it.
In this case, defendant Star Bright has made a prima facie showing of its entitlement to summary judgment by establishing through competent evidence, including the parties’ examinations before trial testimony, that it owed no duty to plaintiff to maintain or repair the subject sidewalk through its lease with defendant R & G or by statute, and that it did not make any repairs to the sidewalk, use it for a special purpose or create the defective condition that caused plaintiff's accident. Star Bright demonstrated that the alleged defective condition in the sidewalk flags were structural, and pursuant to the terms of the subject lease, defendant Star Bright was only required to make nonstructural repairs to the premises.
In opposition to defendant Star Bright's motion, plaintiff and defendant R & G have failed to raise any triable issues of fact. As to Star Bright's contention that it owed no duty to the plaintiff to maintain the sidewalk, the plaintiff failed to raise a triable issue of fact by demonstrating that Star Bright created the defective condition, negligently made repairs, or used the sidewalk for a special purpose (see Lowenthal v Heidrich Realty Corp., 304 AD2d 725, 726-727 ). The plaintiff's opposition constitutes nothing but speculation and is thus insufficient to raise a triable issue of fact. Contrary to the plaintiff's contention, the mere fact that Star Bright used the sidewalk to gain access to a rear/side door for deliveries is insufficient to establish the existence of a special use (see Tyree v Seneca Ctr. Home Attendant Program, 260 AD2d 297 [1st Dept 1999]). The mere proximity of the defect to the rear door, without more, is insufficient for plaintiff to establish any duty on the part of Star Bright on the theory of special use. Assuming, arguendo, that it does constitute a special use of the sidewalk, the plaintiff failed to set forth evidence to establish that the special use created the alleged defect that caused plaintiff's injuries (see Benanati v City of New York, 282 AD2d 418, 419 [2nd Dept 2001]).
As such, Star Bright 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 R & G's leasehold and statutory duty to address.
Here, both R.T.H. and R & G failed to establish, prima facie, that they owed no duty of care to the plaintiff pursuant to Administrative Code section 7-210. They also failed to establish, prima facie, that a portion of the sidewalk slab which allegedly caused the height differential did not abut their property (see Sangaray v West Riv. Assoc., LLC, 26 NY3d 793 ). The photographic and testimonial evidence submitted failed to clarify whether the defect lay entirely within R.T.H.’s or R & G's property, thus creating a question of fact for the jury to resolve. As such, both defendants failed to eliminate all triable issues of fact regarding whether it had a duty to maintain the area of the plaintiff's fall, and whether the alleged dangerous sidewalk condition was attributable to its negligence and contributed to the plaintiff's fall (Id. at 799-780).
R & G also moves for summary judgment against Star Bright for contractual indemnification. Here, R & G's contractual indemnification claim against Star Bright is based on the lease agreement between them. Paragraph 8 of the lease provides, in relevant part, “that Tenant shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs and expenses for which Owner shall not be reimbursed by insurance, including reasonable attorney fees, paid, suffered or incurred as a result of any breach by Tenant, of any covenant or condition of this lease, or the carelessness, negligence or improper conduct of Tenant” R & G claims that the indemnification provision was triggered because Star Bright failed to notify it of any sidewalk related conditions at any time.
“The right to contractual indemnification depends upon the specific language of the contract,” and “[t]he promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances” (George v Marshalls of MA, Inc., 61 AD3d 925, 930 [2nd Dept 2009]). In addition, “a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2nd Dept 2009]; see General Obligations Law § 5-322.1). Here, R & G failed to meet their initial burden of demonstrating its entitlement to contractual indemnification.
That branch of R & G's motion for summary judgment against Star Bright for breach of contract for failure to procure insurance is denied because there is no such claim alleged in its Answer and Cross-Claims.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed by the court, it is hereby denied.
Accordingly, it is hereby
ORDERED that the sequence 3 motion of defendant Star Bright for summary judgment dismissing plaintiff's claims and all cross-claims against it is granted; and it is further
ORDERED that the sequence 4 motion of defendant R.T.H. for summary judgment is denied; and it is further
ORDERED that the sequence 5 motion of defendant R & G for summary judgment is denied in its entirety.
This is the Decision and Order of the Court.
Adrian Armstrong, J.
Response sent, thank you
Docket No: 28830/2017E
Decided: May 04, 2022
Court: Supreme Court, Bronx County, New York.
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