Opinion
33983/2009
03-27-2012
Karen Canaie, Plaintiff, v. G & G II Realty Properties, LLC, G & G REALTY PROPERTIES, LLC, and ZIKOS REALTY GROUP, INC., Defendants.
, J.
The following papers numbered 1 to 12 were read on this motion by defendant G & G II REALTY PROPERTIES, LLC and G & G REALTY PROPERTIES, LLC, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendants and dismissing the plaintiff's complaint:
Papers
Numbered
Notice of Motion-Affidavits-Exhibits...................1 - 7
Affirmation in Opposition-Memo of Law-Exhibits.........8 - 12
This is an action for damages for personal injuries sustained by plaintiff, Karen Canaie, on November 2, 2008, when she slipped and fell on an uneven portion of a public sidewalk adjacent to the commercial premises owned by the defendant G & G II Realty Properties, LLC, G & G Realty Properties, LLC,, located at 32-12 Astoria Boulevard, Queens County, New York. Plaintiff Zikos Realty Group, Inc. is a tenant who occupies the ground floor premises. As a result of her fall, the plaintiff allegedly sustained a herniated disc requiring a lumbar discectomy.
The plaintiff commenced an action for negligence against G & G II Realty Properties, LLC, G & G Realty Properties, LLC, and Zikos Realty Group, Inc., by filing a summons and verified complaint on December 18, 2009, a supplemental summons and complaint on September 14, 2010 and a second supplemental summons and complaint on February 15, 2011. Issue was joined by the service of defendants' verified answers on or about March 4, 2011 (G & G) and February 22, 2011 (Zikos). The gravamen of the complaint, as set forth in plaintiff's bill of particulars, is that the defendants were negligent in the ownership, operation, management, maintenance, repair and control of the area in failing to maintain the sidewalk in a proper and safe condition; in permitting a portion of the sidewalk to be in a dangerous and defective condition, in failing to inspect the area, in allowing a raised depressed area to exist and in failing to warn of the unsafe condition.
Plaintiff claims that defendants had actual notice of the hazardous condition. Plaintiff also claims that the defendant had constructive notice of the hazardous condition in that the condition existed for such period of time that defendants, in the exercise of due care, should have recognized and remedied it.
Counsel for defendant, G & G II Realty Properties, LLC and G & G Realty Properties, LLC, now moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the defendant bears no liability for negligence due to a dangerous condition in a public sidewalk. Counsel contends that the plaintiff has failed to demonstrate that defendants caused or created the dangerous condition complained of or had constructive notice of the condition. Defendants also allege that the plaintiff does not know where she fell and that she did not notify anyone of the incident when it occurred.
In support of the motion, defendant's counsel, Gary J. Levy, Esq., submits his own affidavit dated September 2, 2011; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the transcript of the examinations before trial of plaintiff Karen Canaie, defendant George Christoforou on behalf of G & G and Panagiotis Zikos on behalf of Zikos Realty Group.
In her examination before trial taken on September 16, 2010, plaintiff, Karen Canaie, age 66, testified that she is employed by Queens-Long Island Medical Group as a mammographer. She stated that the accident occurred on Sunday, November 2, 2008, at approximately 2:00 p.m. She testified that she fell on the sidewalk adjacent to the building located at 32-14 Astoria Boulevard. Plaintiff said that she was coming from the train station and going to Steinway Street to go shopping. When asked her version of the accident she stated: "[I] was walking from the train station and I was looking ahead anticipating my shopping and all of a sudden I tripped and I lurched forward and I was trying to balance myself and I fell back and landed on my left back first then subsequently my left knee and then I was trying to break my fall with my left wrist." She stated that she fell because her right foot got caught. Plaintiff testified that immediately before the accident she was looking straight ahead and did not observe any defect that she might have tripped on. She states that: "after I fell down and looked to see what had caused it and at that time I observed the crack in the sidewalk...it was like a deep hole, it wasn't that wide but it was deep so that's what my foot went into." After she got up she looked for a taxi to take her home and then she took a taxi to Winthrop Hospital in Mineola. She identified the crack in Exhibit A which also depicts the Zikos real estate office on the corner. She states that as a result of the fall she injured her lower left back, her left knee, and her left wrist. Prior to the accident she never complained about the crack and she does not know of anyone that ever made a complaint.
George Christoforou of G & G II Realty Properties testified at an examination before trial on September 16, 2010. He states that he is the President of G & G C Machines, a business dedicated to the manufacturing of steel aluminum poles. He is also the owner of the subject building located at 32-14 Astoria Boulevard. The deed to the building is in the name of G & G II Realty Properties, LLC. The building is three stories with both residential and commercial premises and consists of two stores and four apartments. In October 2008 the defendant Zikos Realty Group was a tenant that occupied the storefront on Astoria Boulevard. The other storefront was vacant. A lease identified at the examination before trial indicates that Zikos became a tenant in August 2007. Christoforou testified that in the 1980s or 1990s he hired someone to replace a portion of the sidewalk in front on Astoria Boulevard but he does not remember what portion.
When shown a photograph of the raised portion of the sidewalk Christoforou stated that he did not remember if the sidewalk looked as depicted in the photograph in November, 2008. He stated that he personally went to the property once a week to see his tenants or to check on things in the building. He stated that in November 2008 he probably went to the building but he does not remember. He stated that he did not specifically look at the sidewalk and he does not remember walking around the building. He also stated that he had the sidewalk replaced in the area of the defect. He stated that repairing the sidewalk is not the responsibility of the tenants but rather is his responsibility. He stated that the tenants are responsible for sweeping and cleaning the sidewalk and removing the snow according to the provisions of the lease. He stated that prior to the accident he never received any complaints regarding the condition of the sidewalk. He said he never noticed the defective condition prior to 2008 and he never received a violation from the City. He stated that he goes to the building at least once a month.
Panagiotos Zikos testified at his examination before trial on October 22, 2010, that he is a licensed real estate broker and the owner of Zikos Realty Group Inc. He stated that his office has been located at the building owned by G & G at 32-14 Astoria Boulevard since 2007. He stated that he has a lease with G & G for the ground floor commercial space located on the corner of Astoria Boulevard and 33rd Street. He stated that he did not do any repairs to the sidewalk since he moved in. He stated, however, that he is responsible to sweep the sidewalk and to remove snow and ice. He stated that he observed the defect circled in the picture although he felt that the picture did not portray the way it looked. He could not give any approximate measurements of the size of the defect. He never advised the landlord of the defect. He stated that the area was patched after the accident.
Defendants' counsel contends that the deposition testimony of the parties establishes that the defendant owner did not have actual or constructive notice of the defect in the sidewalk. Counsel states that the deposition testimony establishes that Christoforou never noticed the defect nor did anyone else ever give G & G notice of the defect and the City never issued any violations regarding the sidewalk in front of the premises. In addition, he asserts that Zikos' testimony indicates that Zikos never brought the defect to the attention of the landlord. Citing Peralta v Henriquez, 100 NY2d 139[2003] and Kane v Human Services Center, 186 AD2d 539[2d Dept. 1992]), counsel asserts that the plaintiff in a negligence action alleging an unsafe land condition must demonstrate that the owner either created the condition which caused the accident or had actual or constructive notice of the condition that allegedly caused the fall. Defendant claims that the plaintiff's deposition testimony does not raise a question of fact because plaintiff testified that she did not notice a defect prior to her fall and because she did not seek medical assistance at the scene or call an ambulance. Further, counsel contends that trivial defect or projection in the sidewalk is not actionable. In addition counsel contends that there is no proof in the record as to how long the sidewalk was in the condition in which the plaintiff allegedly found it on the date of the incident.
In opposition to the motion, plaintiff's counsel, John D. Pontisakos Esq. contends that the evidence submitted in support of the motion demonstrates that there is a question of fact as to whether G & G had actual or constructive notice of the sidewalk defect. Counsel contends that Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. This provision specifically states that the owner of real property abutting the sidewalk shall be liable for personal injuries for failure to maintain the sidewalk in a safe condition. However, under this statute the plaintiff must still prove that the defendant either created the condition or had actual or constructive notice of its existence. Counsel claims that based upon the photograph of the condition as identified by the plaintiff, as well as her description of the condition as a "deep hole" that the condition of the sidewalk was not in a reasonably safe condition.
Counsel also claims that based upon the testimony of the building owner, the defendants failed to make a prima facie showing that they lacked constructive notice of the defective condition. The owner of the building Chistoforou testified that he visited the premises on a weekly basis to check on the building and stated that he would walk on the sidewalk shown in Exhibit A during these visits.
Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).
A landowner may be held liable for injuries caused by a dangerous or defective condition on the public sidewalk abutting its property if it created the defect or caused it to occur because of some special use of the sidewalk, or if there is a statute or ordinance expressly imposing liability on the abutting landowner for failure to maintain the sidewalk. (See Smirnova v City of New York, 64 AD3d 641 [2d Dept. 2009]; James v Blackmon, 58 AD3d 808 [2d Dept. 2009]; see also Vucetovic v Epsom Downs, Inc., 10 NY3d 517 [2008]). Section 7-210 of the Administrative Code of the City of New York requires a commercial landowner to maintain the sidewalk abutting the land in a reasonably safe condition and expressly imposes liability on the landowner for injuries caused as a result of a failure to do so (id). A lease provision placing a duty on the tenant to maintain the premises does not affect the landowner's statutory nondelegable duty and does not provide a defense to a claim based upon section 7-210. (James, 58 AD3d at 809; see Reyderman v Meyer Berfond Trust No.1, 90 AD3d 633 [2d Dept. 2011]).
"[A] defendant who moves for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it" (see Jackson v Jamaica First Parking, LLC, 91 AD3d 602 [2d Dept. 2012 citing Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]).
On the motion for summary judgment, the defendants failed to provide any evidence showing that they properly maintained the sidewalk as the Administrative Code of the City of New York requires, or that any failure to properly maintain the sidewalk was not a proximate cause of the plaintiff's injuries. Here, the plaintiff's deposition testimony, submitted by the defendant, indicates that the plaintiff tripped and fell on a raised portion of the sidewalk that she characterized as a deep hole. The photographs marked as exhibits at the EBT corroborated the testimony regarding the raised sidewalk flag (see James v. Blackmon, 58 AD3d 808 [2d Dept. 2009]). Therefore, defendants' evidence was insufficient to demonstrate, as a matter of law, that no defective condition existed on the sidewalk where the plaintiff allegedly tripped and fell (see Rogers v 575 Broadway Assoc., L.P., 2012 NY Slip Op 1444 [2d Dept. 2012]).
Moreover, although the owner of the building testified that he usually inspected the building on a weekly basis and walked on the sidewalk in the area of the alleged defect, triable issues of fact exist as whether the alleged defect was visible and apparent, and did not exist for a sufficient length of time to permit the defendant to discover and remedy it (Perez v 655 Montauk, LLC, 81 AD3d 619 [2d Dept. 2011]; Bolloli v Waldbaum, Inc., 71 AD3d 618 [2d Dept. 618]]). Further, the owner did not provide any testimony as to when he last inspected the subject sidewalk prior to the accident or what it looked like when he last inspected it (see Baines v. G & D Ventures, Inc., 64 AD3d 528 [2d Dept. 2009]). Accordingly, this court finds that the defendant failed to establish, prima facie, that it lacked constructive notice of the defective condition that allegedly caused the plaintiff to slip and fall (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Since the defendants did not meet their prima facie burden, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Anastasio v Berry Complex, LLC, 82 AD3d 808 [2d Dept. 2011]; Gerbi v. Tri-Mac Enters. of Stony Brook, Inc., 34 AD3d 732 [2d Dept. 2006]; Tchjevskaia v Chase, 15 AD3d 389 [2d Dept. 2005]).
Accordingly, based upon the foregoing it is hereby,
ORDERED, that the defendant's motion for an order granting summary judgment dismissing plaintiff's complaint is denied.
Dated: March 27, 2012
Long Island City, NY
____________________
ROBERT J. MCDONALD
J.S.C.