Opinion
15908/2013
04-12-2018
Aarolia Melkafayziyev, Plaintiff, v. Starret City, Inc., STARRET CITY ASSOCIATES, SPRING CREEK TOWERS, STARRET CITY MANAGEMENT, STARRET CITY TENANTS ASSOCIATION, STARRET CITY PRESERVATION LLC, and GRENADIER REALTY CORP., R. JUNIORS CONTRACTING CORP., and BUONO CONTRACTING CO. INC., Defendants.
Attorney for plaintiff Firm Name: Dressler Law LLP Address: 300 West 38th Street, 3rd Floor New York, New York 10018 Attorney for defendant R. Juniors' Contracting Corp. Firm Name: Galvano & Xanthakis, P.C. Address: 150 Broadway, Suite 2100 New York, New York 10038 Attorney for Starrett City defendants Firm Name: Brody & Branch LLO Address: 205 Lexington Avenue, 4th Floor New York, New York 10016
Attorney for plaintiff Firm Name: Dressler Law LLP Address: 300 West 38th Street, 3rd Floor New York, New York 10018 Attorney for defendant R. Juniors' Contracting Corp. Firm Name: Galvano & Xanthakis, P.C. Address: 150 Broadway, Suite 2100 New York, New York 10038 Attorney for Starrett City defendants Firm Name: Brody & Branch LLO Address: 205 Lexington Avenue, 4th Floor New York, New York 10016 Paul Wooten, J.
The following papers were read on this motion by defendant for summary judgment.
PAPERS/NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1, 2 Answering Affidavits — Exhibits (Memo) 3, 4 Replying Affidavits (Reply Memo) 5, 6
Motions sequence numbers 9 and 10 are consolidated for disposition.
This is an action that was consolidated under Index Number 15908/2013 and was first commenced by plaintiff Aarolia Melkafaziyev on September 3, 2013, by filing a Summons and Complaint against co-defendants Starret City Inc., Spring Creek Towers, Starret City Associates, and Grenadier Realty Corp. (collectively, the Starret defendants), and on June 30, 2014, by filing a Summons and Complaint against co-defendants R. Juniors Contracting Corp. (R. Juniors) and Buono Contracting Co. Inc. (Buono), to recover damages for injuries plaintiff allegedly sustained on July 13, 2011, when she tripped and fell after a wheel of her shopping cart became stuck in a hole in the walkway located at the rear of the apartment building, located at 11325 Seaview Avenue, Brooklyn, New York, which is part of a multi-building apartment complex known as Starret City. Issue has been joined, discovery is complete, and a Note of Issue has been filed. Co-defendant Buono has not appeared in this action.
Before the Court is a motion by R. Juniors for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's Complaint and all cross claims against it (motion sequence 9). Plaintiff opposes the motion and R. Juniors submits a reply. Also before the Court is a motion by the Starret defendants for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's Complaint against them (motion sequence 10). Plaintiff also opposes the motion and the Starret defendants submit a reply.
BACKGROUND
On July 13, 2011, plaintiff, accompanied by her two young daughters, Bahmal and Rachel, left her apartment in Starret City to walk Bahmal to a nearby camp. It was a sunny, warm, summer day, and it did not raining that day. Plaintiff had with her a foldable shopping cart as she intended to go to a store afterwards. The cart was medium size and was empty. Bahmal (12) and Rachel (2) were walking together in front of plaintiff. There was a small hole on the edge of the pedestrian walkway in the rear of her apartment building at Starret City. The walkway was open, wide, and unobstructed, as it was one of the main walkways in Starret City. The hole was also located on the outmost edge of the walkway, which had flat edges—as the walkway was not raised and did not have a curb—and, a lawn covered with grass tightly abutted the walkway. Alongside the edge of pedestrian walkways and grass lawns throughout Starret City, there were small and short metal poles, or pipes, connected together with wire cables, to keep pedestrians from walking onto lawns. Starret City began removing the poles and cable wires, and patching up the holes created by pulling the poles out from the ground, sometime in March or April of 2011.
Plaintiff's accident occurred on the pedestrian walkway in the rear of her apartment building when she veered with her cart to the left edge of the walkway and a wheel of the cart she was pushing forward got stuck in the hole at the edge. As the wheel got stuck, the cart started to lean and plaintiff fell backward onto the walkway. The hole in which plaintiff's cart became stuck was left opened and exposed after a pole was pulled out from the ground.
R. Juniors was one of the Starret defendants' contractors. R. Juniors had been performing outside maintenance work at Starret City for nearly a decade, such as patching up blacktop sidewalks, including during the month of plaintiff's accident—June of 2011. SUMMARY JUDGMENT STANDARD
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]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Winegrad v NY Univ. Medical Cntr., 64 NY2d 851, 853 [1985]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez, 68 NY2d at 324; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974]). 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" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Zuckerman v City of NY, 49 NY2d 557, 562 [1980]).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]; Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; CPLR 3212[b]). DISCUSSION
"A landowner has a duty to maintain its premises in a reasonably safe condition" (Van Dina v St. Francis Hosp., Roslyn, NY, 45 AD3d 673, 674 [2d Dept 2007]; see Basso v Miller, 40 NY2d 233, 241 [1976]). "The scope of a landowner's duty to maintain property in a reasonably safe condition may also include the duty to warn of an open and obvious condition" (Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]; see also Bissett v 30 Merrick Plaza, LLC, 156 AD3d 751, 752 [2d Dept 2017]; Simon v Comsewogue Sch. Dist., 143 AD3d 695, 695 [2d Dept 2016]). However, "a landowner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous" (Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]; Oldham-Powers v Longwood Cent. Sch. Dist., 123 AD3d 681, 682 [2d Dept 2014]; Baron v 305-323 E. Shore Rd. Corp., 121 AD3d 826, 827 [2d Dept 2014]).
In support of its motion for summary judgement, the Starret defendants argue, inter alia, that the subject hole in which plaintiff's shopping cart became stuck was located outside of the walkway for pedestrians, as it was located near the grassy area (with a large tree root) that abutted the walkway (see Starret defendants' Aff in Supp ¶¶ 27-28). The Starret defendants further argue that they did not have a duty to warn plaintiff that her cart might become stuck in the subject hole if she veered the cart away from the walking path onto the grassy area (see id. ¶ 29). Moreover, the Starret defendants aver that the affidavit of Jeffrey J. Schwalje, P.E., establishes that the walkway was not a causal factor in plaintiff's accident because the hole posed no threat to pedestrians as the hole was small and was located outside of the anticipated walking path of pedestrians (see id. ¶ 28).
In opposition, plaintiff argues that the condition of the walkway was not open and obvious; rather, it was an inherently dangerous condition because the subject hole was hidden (see Plaintiff's Aff in Opp ¶¶ 90-101). Plaintiff further argues, inter alia, that triable issues of fact exist as to whether (1) the hole was in the walking path of the walkway because it was intended and is foreseeable that pedestrians would use all portions of the walkway to walk; and (2) the hole was the proximate cause of plaintiff's injuries as the hole, and not the cart, caused her to fall (see id. ¶¶ 26-89).
After examination of all the evidence and facts herein, the Court finds that the Starret defendants failed to meet their prima facie burden of showing entitlement to judgment as a matter of law that the condition of the pedestrian walkway with the subject hole was open and obvious, and not inherently dangerous. Specifically, the Court finds that the Starret defendants failed to proffer evidence that establishes that the hole was a trivial defect in the walkway (see Hutchinson v Sheridan Hill House Corp., 19 NYS3d 802, 809 [2015], citing Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]). "[A] property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" (Hutchinson, 19 NYS3d at 809).
To determine whether a defect is trivial as a matter of law, the court must examine all of the facts and circumstances of the case, "including the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury" (see Trincere v County of Suffolk, 90 NY2d at 978, 665 [1997], quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]; James v Newport Gardens, Inc., 70 AD3d 1002, 1004 [2d Dept 2010]). For example, in James, the infant plaintiff was injured when the front tire of his bike "hit a crack and space in the sidewalk" and the bike flipped and landed on the infant's leg (see James, 70 AD3d at 1003). The James Court reversed the lower court's Order and held that the defect in the sidewalk was trivial and nonactionable (see id. at 1004). In Rosario, the defect a 3-5 inches wide and 3-5 inches deep hole that the Court found to be non-trivial, and, therefore, actionable (see Rosario v City of New York, 289 AD2d 133 [1st Dept 2001]). In Brenner, the Court found that a crack in the pavement of at least 3/4 of an inch in dept, and approximately 4 inches wide, was not trivial as the crack was also in a high traffic location—at a carnival (see Brenner v Herricks Union Free Sch. Dist., 106 AD3d 766, 768 [2d Dept 2013]). In Figueroa, the Court found that a shallow and gradual depression in walkway of 1/2 of an inch was trivial and nonactionable (see Figueroa, 247 AD2d at 210).
However, the Court of Appeals in Hutchinson cautioned that "there is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable, and therefore granting summary judgment to a defendant 'based exclusively on the dimension[s] of the . . . defect is unacceptable" (Hutchinson, 19 NYS3d at 808, quoting Trincere, 90 NY2d at 977 [emphasis added]). Hence, "the dimension[s] of the defect at issue" is just one circumstance to be considered (id. at 809).
Moreover, characteristics such as "the abruptness of the projecting edge, the alleged irregularity of its shape, and its rigidity and firm insertion into the sidewalk—are not dispositive, being true of many contours in a sidewalk" (id. at 811). Thus, the proper test is not "whether a defect is capable of catching a pedestrian's shoe . . . [but] whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances" (id.).
As for the characteristics of the subject hole, here, plaintiff's testimony establishes that the photographs of the subject hole and pedestrian walkway show that the hole was small and readily discernable (see Starret defendants' Aff in Supp, exhibit L; Plaintiff's Aff in Opp, exhibits 11A, 11B, and 15). Plaintiff also testified that she merely estimated the size of the hole in her Bill of Particulars to be "approximately three inches by three inches by three inches," and she referred to the hole throughout her testimony as "small" (see id., at 93).
"Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" (Schenpanski v Promise Deli, Inc., 88 AD3d 982, 984 [2d Dept 2011]; see also James, 70 AD3d at 1003; Nunez v Morwood Dry Cleaners, 116 AD3d 831, 831-832 [2d Dept 2014]; Vani v County of Nassau, 77 AD3d 819, 819 [2d Dept 2010]).
Here, although plaintiff testified that she did not know when the photographs of the subject hole and walkway were taken and who took them, she acknowledged that the photographs fairly and accurately represented the site of her accident; and, she marked the photographs to indicate the specific location of her accident ( see Starret defendants' Aff in Supp, exhibit F, Plaintiff's 2014 Tr, at 37-42, 47-49, exhibit G, Plaintiff's 2015 Tr, at 32).
In contrast, the Starret defendants relied on the affidavit of Jeffrey J. Schwalje, P.E. who indicated that the hole was "approximately 3" in diameter" (see id., exhibit M ¶ 5 [emphasis added]). The Court finds, however, that the affidavit is unavailing as the expert performed an on site inspection of the subject hole and walkway in 2015, but did not state that the condition of the hole in 2015 was the same as its condition during the time of plaintiff's accident in July 2011 (see Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210, 210 [1st Dept 1998] [finding that the expert's opinion was properly disregarded because it was based on his inspection and observations of the walkway made two years after the accident and the expert never stated that the condition of the depression in the walkway at the time of his inspection was the same as it was at the time of plaintiff's accident]). In addition, plaintiff testified that sometime after the accident, and by 2015 in any event, the subject hole was filled with cement, and thus, the condition of the walkway was corrected (seeStarret defendants' Aff in Supp, exhibit G, Plaintiff's 2015 Tr, at 16). Therefore, the Court finds that the opinion of Jeffrey J. Schwalje, P.E. was "speculative, conclusory and not based on foundational facts, such as the exact measurements of the defect at the time of the accident" (Vazquez v JRG Realty Corp., 81 AD3d 555 [1st Dept 2011]).
Moreover, none of the photographs of the subject hole in the record shows ruler measurements of the hole and, as plaintiff testified, there is no evidence indicating when the photographs were taken, and thus, whether any of them was taken shortly after plaintiff's accident (see Starret defendants' Aff in Supp, exhibit L; exhibit F, Plaintiff's 2014 Tr, at 37-42, 47-49, exhibit G, Plaintiff's 2015 Tr, at 32; cf Plaintiff's Aff in Opp, exhibits 11A-11B). Neither did the Starret defendants submit relevant evidence showing, for example, the size of the wheels in plaintiff's cart, or the width of the pedestrian sidewalk, or the measurement of the diameter of the poles that were installed alongside the sidewalk and allegedly created holes just like the subject hole.
While the Court is ultimately required to consider all of the circumstance of plaintiff's injury and the characteristics of the hole to determine actionability of the defect in the walkway—and not merely measure this defect with the inches—in the case at bar, the material factors are the small size of the subject hole in comparison, or in porportion, to the width of the pedestrian walkway, and the unique location of the small hole. For example, unlike in Hutchinson, where the trivial and nonactionable object was located in the middle of a sidewalk, here, the hole was located at the outmost edge of a walkaway that appeared on the photographs to be very wide and opened, and was not covered with anything (see Hutchinson, 19 NYS3d at 810) ..
In Zelichenko, a chip in the nosing about 3 1/4 inches wide and about 1/2 inch deep, which was located "almost entirely on the edge of the second to last step from the bottom" (Zelichenko v 301 Oriental Blvd., LLC, 117 AD3d 1038, 1039 [2d Dept 2014], rvd by Hutchinson, 19 NYS3d 802).
The Appellate Division, Second Department, held that the chip was a trivial defect; however, the Hatchinson Court of Appeals reversed the Appellate Court's decision and found a triable issue of fact on the ground that "the Appellate Division erroneously decided that the "chip" was not on the walking surface of a step tread" ( see Hutchinson, 19 NYS3 at 812). Zelichenko is distinguishable, however, as here were are concerned with a wide pedestrian walkway, and not a step in a stairway.
As for the circumstance of plaintiff's injury, plaintiff stated that the hole caused her to fall because a wheel of her empty shopping cart became stuck in it (see id. at 42). In particular, plaintiff testified that she was wheeling the cart in front of her. She veered to the left edge of the walkway, and when the left wheel of the cart got stuck in the hole, the cart started leaning, and plaintiff lost balance (see id. at 42, 47). Since she was holding the cart with her two hands and was eight-months pregnant, she tried to avoid falling onto the cart, and she leaned back and fell backward to her right side, and onto the walkway (see id.). Plaintiff also testified that she had seen the subject hole prior to her accident more than once as she used the walkway "practically always" and almost every day (id. at 22-25, 33; id., exhibit F, Plaintiff's 2015 Tr, at 22-23). Thus, the Court finds that the question whether the hole was a trivial defect and thus not inherently dangerous condition on the subject walkway is a triable issue of material fact. Therefore, the Starret defendants' summary judgment motion to dismiss plaintiff's Compliant is denied.
Furthermore, the Court finds that R. Juniors established its prima facie burden of showing that R. Juniors did not owe duty of care to plaintiff and plaintiff failed to raise an issue of triable fact in opposition, as unsubstantiated speculations are insufficient to defeat a motion for summary judgment (see Mack v Am. Handling Equip., Inc., 69 AD2d 853, 853 [2d Dept 1979] [internal citations omitted]). In support of its motion for summary judgment, R. Juniors avers that plaintiff cannot establish its prima facie case in negligence against it, as there is no evidence proving that R. Junior owed plaintiff a duty of care (see R. Juniors' Aff in Supp ¶¶ 22- 23). Additionally, R Juniors argues that there is also no evidence that R. Juniors created the subject hole or had actual or constructive notice of the defective condition of the walkway with the subject hole (see id. ¶¶ 26-33).
In opposition, plaintiff argues, inter alia, that a question of triable fact exists as to whether (1) R. Junior had actual or constructive notice of the defective condition of the walkway caused by the subject hole, because R. Juniors performed work at Starret City in July 2011, and since for the past ten years, R. Juniors has been retained by the Starret defendants to perform work that included maintenance and repairs of sidewalks throughout Starret City, and (2) R. Juniors had constructive notice of the condition, as R. Juniors' owner, Domingo Roldan (Roldan), was at Starret City every day during July 2011 to inspect R. Juniors' work for the City, and, thus, R. Juniors knew that there were holes from removing the poles on the subject walkway (see Plaintiff's Affi in Opp ¶¶ 24-47).
In support of its motion, R. Juniors submits the deposition testimony of Roldan who stated that R. Juniors did not work on removing the poles at Starret City, and he did not have any purchase orders from the Starret defendants, or other records, indicating that R. Juniors performed worked on the poles and cable wires (see id., at 12, 21-34). Furthermore, Josapha Gonzalez (Gonzalez), a superintendent for nine apartment buildings at Starret City, testified that, in July 2011, the Starret defendants' gardeners performed removal of the poles throughout Starret City and these workers were responsible for filling out the holes created by pulling out poles from the ground with cement (see Starret defendants' Aff in Supp, exhibit H, Gonzalez's Tr 10, 59-64). Importantly, Gonzalez also confirmed that the removal of the poles was done exclusively by the Starret defendants' gardeners (id.). Plaintiff, too, testified that, in either March or April 2011, she had observed the Starret defendants' workers removing the poles and cable wires in vicinity of her apartment building (see Starret defendants' Aff in Supp, exhibit F, Plaintiff's 2014 Tr, at 19-23). Plaintiff's husband, Solomon Fayziyev (Fayziyev), also testified that the Starret defendants' workers were working on removing poles and cable wires at Starret City and he approached them to ask about it while they were removing the poles near his apartment building (see id., exhibit I, Fayziyev Tr at 45-48; Uncyk v Cedarhurst Prop. Mgmt., LLC, 137 AD3d 610, 611 [1st Dept 2016] [a hearsay statement "may be relied upon to defeat summary judgment where . . . it is not the only evidence submitted in opposition to the motion"]). Fayziyev testified that he complained to his super, whom he knew but could not identify by name, about the removal of the poles and closing the holes created by pulling the poles from the ground (see id. at 48-49). Thus, the Court finds that plaintiff failed to "assemble, lay bare and reveal [her] proofs, in order to show that the matters set up in [her pleadings] are real and are capable of being established upon a trial" (see Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959]). "A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party;" thus, the Court also finds that plaintiff failed to allege facts that would establish that any of the Espinal exceptions would be applicable so as to allow R. Juniors "to be said to have assumed a duty of care—and thus be potentially liable in tort—to" plaintiff (see Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138—40 [2002] [a contracting party may be liable in tort to third persons if (1) "the contracting party launches a force or instrument of harm; (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely"]. Therefore, R. Juniors summary judgment motion to dismiss plaintiff's Complaint and all cross claims asserted against it is granted. CONCLUSION
For these reasons and upon the foregoing papers, it is,
ORDERED that the motion by the Starret defendants, pursuant to CPLR 3212, seeking summary judgment dismissing the Complaint against them is denied (motion sequence 10); and it is further,
ORDERED that the motion by R. Juniors, pursuant to CPLR 3212, seeking summary judgment dismissing the Complaint and all cross claims against it is granted in its entirety (motion sequence 9), and the Complaint and all cross claims are hereby dismissed as against R. Juniors; and it is further
ORDERED that counsel for co-defendant R. Juniors is directed to serve a copy of this Order with Notice of Entry upon all Parties and the County Clerk who shall enter judgment accordingly.
This constitutes the Decision and Order of the Court.
Dated: April 12, 2018
PAUL WOOTENJ.S.C.