Opinion
No. 702031 2012.
01-14-2015
JI EUN KIM, Plaintiff(s) v. CASAGRANDE REALTY CORP., BKNY Thai Restaurant, C & C Laundromat Inc., and the City of New York, Defendant(s).
Opinion
Defendant C & C Laundromat Co., sued herein as C & C Laundromat Inc. (C & C Laundromat), seeks summary judgment dismissing the complaint and all cross claims; and by separate notice of motion by defendant BKNY Thai Restaurant (BKNY) also seeks summary judgment dismissing the complaint and all cross claims.
This is an action to recover for personal injuries that plaintiff Ji Eun Kim (plaintiff) allegedly sustained on February 18, 2012, in a trip-and-fall accident. Plaintiff has alleged that she was a pedestrian in front of premises located at 47–11 and/or 47–15 Francis Lewis Boulevard, in the County of Queens, and that she was caused to trip and fall on a raised portion of the sidewalk. Defendant Casagrande Realty Corp. (Casagrande) owned premises located at 47–11 and 47–15 Francis Lewis Boulevard. Casagrande leased the premises located at 47–11 Francis Lewis Boulevard to non-party H.R. International, Inc., and BKNY's owners assumed H.R. International, Inc.'s lease agreement with Casagrande. C & C Laundromat leased the premises located at 47–15 Francis Lewis Boulevard from Casagrande. Plaintiff has also alleged that defendant The City of New York (the City), owned or leased the subject premises at the time of the accident.
C & C Laundromat has moved for summary judgment dismissing the complaint and has argued that it is not liable under the Administrative Code of the City of New York because it was a tenant at the property, and that it did not create the alleged defect or make special use of the sidewalk. As the movant, C & C Laundromat has the initial burden of demonstrating the absence of any material issues of fact (see Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 [2008] ; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). The Administrative Code of the City of New York § 7–210(a) provides that it is “the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition.” This section “must be strictly construed” because it is a “legislative enactment[ ] in derogation of common law” which “creat[es] liability where none previously existed” (Vucetovic v.. Epsom Downs, Inc., 10 NY3d 517, 521 [2008] [internal quotation marks and citation omitted] ). The duty to maintain the public sidewalk has been placed only upon the owner of property, not upon an occupant.
However, “[l]iability may ... be imposed on the abutting ... lessee where it either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon [it] the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty” (Lowenthal v. Theodore H. Heidrich Realty Corp., 304 A.D.2d 725, 726 [2003] ).
In support of its motion, C & C Laundromat has relied upon, among other things, plaintiff's deposition testimony, copies of photographs of the area where the accident allegedly occurred, the testimony of Steven Chan (Chan), on behalf of C & C Laundromat, and a copy of its lease agreement with Casagrande. Plaintiff testified that, as she left the laundromat operated by C & C Laundromat, and approached her vehicle parked at the curb, her foot twisted on an uneven area of the sidewalk, where it meets the curb. She also testified that customers of the laundromat, herself included, would unload laundry in front of the premises leased by C & C Laundromat and traverse the subject sidewalk in order to enter and leave the laundromat. Chan, the manager of the laundromat, testified that he did not maintain or make any repairs to the area of the sidewalk where plaintiff allegedly fell, and that he never received any complaints about the sidewalk. Based upon this evidence, C & C Laundromat has adequately demonstrated that it did not derive a “special use” from the public sidewalk that would render it liable under Administrative Code § 7–210(a) (see Brennan v. Town of N. Hempstead, 122 AD3d 892, 893 [2014] ). Neither has plaintiff alleged that C & C Laundromat derived a special use from the sidewalk at issue and has otherwise failed to raise an issue of fact in opposition (see id., Repetti v. City of New York Dept. of Envtl. Protection, 120 AD3d 655, 655–656 [2014] ).
C & C Laundromat has also moved to dismiss all cross claims against them. Casagrande has alleged cross claims, pursuant to the lease agreement, for contribution, common-law and contractual indemnification, and breach of contract for failure to procure insurance against C & C Laundromat. BKNY and the City have both alleged cross claims against C & C Laundromat for contribution and common-law indemnification. In light of the above determination that C & C Laundromat was not liable to plaintiff, the above cross claims against C & C Laundromat are dismissed.
BKNY has moved for summary judgment dismissing the complaint and has argued that it was not liable under Administrative Code § 7–210 because it was only a tenant at the subject premises, that it did not owe a duty to plaintiff under its lease agreement with Casagrande and because it did not create the alleged condition or derive a special use of the subject sidewalk. In support of its motion, BKNY has relied upon the testimony of Usai Kittekorncharoen (Kittekorncharoen), its owner, Enrico Casagrande, the owner of Casagrande, and a copy of its lease agreement with Casagrande.
As the court discussed above, the statutory duty to maintain a public sidewalk has been placed only upon an owner of property and, as a tenant, BKNY was not liable to plaintiff unless it created the alleged condition or fell under the special use exception (see Lowenthal v. Theodore H. Heidrich Realty Corp., 304 A.D.2d at 726 ; Montes v. City of Buffalo, 295 A.D.2d at 897 ).
Although BKNY did not have a formal written lease agreement with Casagrande, it assumed tenancy of the location and H.R. International, Inc.,'s lease obligations by its actions, such as making payments in compliance with the lease terms, operating a business at the subject premises and relying upon the lease agreement terms in its dealings with Casagrande (see Gateway I Group, Inc. v. Park Ave. Physicians, P.C., 62 AD3d 141, 147 [2009] ). The terms of the lease agreement provided that the tenant and owner were both responsible for taking good care of the premises, including sidewalks and preserving them in good working order and condition. While a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party, there are three exceptions to this rule (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138–140 [2002] ). In this matter, BKNY may potentially be liable to third persons, such as plaintiff, where it either (1) launched a force or instrument of harm while failing to exercise reasonable care in the performance of a contractual duty, (2) where the injured party detrimentally relied upon BKNY's continuing performance of a contractual obligation, or (3) where BKNY has entirely displaced another party's duty to maintain the premises safely (see Stiver v. Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007] ; Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140 ).
Since the lease agreement provided that both parties to the agreement had the duty to maintain and repair the public sidewalks, BKNY did not entirely displace Casagrande's duty to plaintiff to maintain the premise in good condition. Based upon the evidence submitted, BKNY has adequately demonstrated that it did not derive a “special use” from the public sidewalk unrelated to the public use (see Brennan v. Town of N. Hempstead, 122 AD3d at 893 ). However, the evidence in the record, including the testimony of Kittekorncharoen, has demonstrated that issues of fact remain, at least, as to whether BKNY had notice of the alleged defective condition of the subject sidewalk and failed in its duty, as a lessee, to maintain the sidewalk in a reasonably safe condition and whether it failed to fulfil its obligations under its agreement with Casagrande and, thus, launched a force or instrument of harm (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140 ; Barth v. City of New York, 307 A.D.2d 943, 944 [2003] ; see generally Kiernan v. Thompson, 73 N.Y.2d 840, 841 [1988] ). Therefore, BKNY is not entitled to the relief sought (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324 ).
BKNY has also moved for summary judgment dismissing all cross claims against it. The City has alleged cross claims against BKNY for contribution and indemnification, while Casagrande has alleged cross claims against it for contribution, common-law and contractual indemnification, and breach of contract for failure to procure insurance. Since there has been no determination as to whether BKNY is, in fact, liable to plaintiff in the instant matter, any determination as to the cross claims against BKNY for contribution, common-law indemnification and contractual indemnification would be premature and impermissible at this juncture (see Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616, 620 [2008] ; Sheridan v. Albion Cent. School Dist., 41 AD3d 1277, 1279 [2007] ; Gil v. Manufacturers Hanover Trust Co., 39 AD3d 703, 705 [2007] ).
As to Casagrande's cross claim for breach of contract for failure to procure insurance, BKNY has relied upon a copy of a Commercial General Liability policy issued for the subject premises for the relevant time period, which named Casagrande as an additional insured. Casagrande has failed to raise a triable issue of fact in opposition.
Accordingly, C & C Laundromat's motion for summary judgment dismissing the complaint and all cross claims is granted. BKNY's motion for summary judgment dismissing the complaint and all cross claims is granted only to the extent that Casagrande's cross claim against it for breach of contract for failure to procure insurance is dismissed and it is denied in all other respects.