Opinion
Index 603139/2017
12-07-2020
KATHLEEN M. MICH and WILLIAM J. MICH, JR., Plaintiffs, v. VINTAGE STEAKHOUSE, INC., DELMONICO'S PORTERHOUSE, LLC, and AMELIA ASSOCIATES, INC., Defendants. Mot. Seq. Nos. 001- MD, 002 - MG
GLYNN MERCEP & PURCELL, LLP Attorney for Plaintiffs GANNON, ROSENFARB & DROSSMAN Attorney for Defendant MARTYN, MARTYN, SMITH & MURRAY Attorney for Defendant
Unpublished Opinion
MOTION DATE 6/25/20
ADJ. DATE 9/17/20
GLYNN MERCEP & PURCELL, LLP Attorney for Plaintiffs
GANNON, ROSENFARB & DROSSMAN Attorney for Defendant
MARTYN, MARTYN, SMITH & MURRAY Attorney for Defendant
HON. VINCENT J. MARTORANA JUSTICE
Upon the following papers read on these motions for summary judgment: Notice of Motion and supporting papers by defendant Amelia Associates, dated April 20.2020; Notice of Cross Motion and supporting papers by defendant Vintage Steakhouse. LLC, dated May 19, 2020; Answering Affidavits and supporting papers by plaintiffs, dated September 3.2020: Answering Affidavits and supporting papers by plaintiffs, dated September 3.2020: Replying Affidavits and supporting papers by defendant Amelia Associates, dated September 16.2020: Replying Affidavits and supporting papers by defendant Vintage Steakhouse, LLC, dated September 16, 2020: it is
ORDERED that the motion (seq. 001) by defendant Amelia Associates and the motion (seq. 002) by defendant Vintage Steakhouse, LLC, are consolidated for purposes of this determination; and it is
ORDERED that the motion by defendant Amelia Associates for summary judgment dismissing the complaint and cross claims against it is denied; and it is further;, ORDERED that the motion, incorrectly denominated a cross motion, by defendant Vintage Steakhouse, LLC, for summary judgment dismissing the complaint and cross claims against it is granted.
This action was commenced by plaintiff Kathleen M. Mich. to recover damages for injuries she allegedly sustained on April 18, 2014, when she tripped and fell on the sloped portion of a curb cut in the sidewalk in front of Vintage Steakhouse, located at 433 North Country Road, St. James, New York. By their bills of particulars, plaintiffs claim, inter alia, that defendants negligently failed to mark the subject curb cut. Mrs. Mich's husband, plaintiff William J. Mich, Jr., asserts a derivative claim for loss of services. Defendant Vintage Steakhouse, LLC, asserts cross claims against defendant Amelia Associates, i/s/h/a Amelia Associates, Inc., for contribution, common law, and contractual indemnification, as well as breach of contract. Amelia Associates asserts the same cross claims against defendants Vintage Steakhouse, LLC, and Delmonico's Porterhouse, LLC (Delmonico's). Delmonico's allegedly is the former name of Vintage Steakhouse, LLC.
Amelia Associates (Amelia) now moves for summary judgment in its favor, arguing that the alleged defective condition was not defective, but open, obvious, and not inherently dangerous. It also argues that it had no actual or constructive notice of any defective condition. In support of its motion, Amelia submits, among other things, transcripts of the parties' deposition testimony, a copy of a certificate of occupancy, a copy of a site plan, and two photographs.
Vintage Steakhouse, LLC (Vintage) also moves for summary judgment in its favor, arguing mat no defective condition is present, and that the curb cut was open and obvious and not inherently dangerous. It further argues that even if a defective condition was present, by the terms of its lease agreement with Amelia it had no duty regarding the area where the incident allegedly occurred. In support of its motion, Vintage submits, among other things, transcripts of die parties' deposition testimony, six photographs, and a copy of a lease between Amelia and Delmonico's.
Kathleen Mich. testified that at approximately 7:00 p.m. on the date in question, she and her husband parked their motor vehicle in an asphalt lot near the Vintage Steakhouse. Specifically, she explained that they parked in front of a store in a strip mall immediately adjacent to the restaurant She indicated that the weather was sunny and dry. Mrs. Mich. stated that upon exiting their vehicle, she and her husband stepped from the parking lot up onto an approximately 4-foot-wide concrete sidewalk that ran along the front of the strip mall's stores. She testified that she had been walking closer to the curb edge of the sidewalk than her husband, who walked closer to die storefronts. Asked to describe me entrance to the Vintage Steakhouse, Mrs. Mich. stated that it had a number of concrete steps leading to its doorway, which was to her right as she walked. To her left, however, directly in front of me entrance steps, was a sloped curb cut leading down to the black asphalt parking lot. She indicated mat her leftward positioning on the sidewalk placed her in close proximity to the curb cut, and that a car was parked directly in front of it, perpendicular to the curb. Upon questioning, she stated that while she did not see die curb cut, nothing physically obstructed her view mereof. Mrs. Mich. testified that as she walked, her left foot slipped down me slope of the curb cut, causing her to fall to the ground.
Eric Neitzel testified that he is one of eight partners who own Amelia, which is the general partnership mat owns the subject premises. He stated that Amelia entered into a 20-year lease wim Delmonico's in the year 2000. Mr. Neitzel indicated that at the time it executed the lease agreement Delmonico's was doing business as Vintage, and that he does not know if Vintage was ever incorporated. He testified that prior to Delmonico's taking possession of the subject premises, various renovations were completed by Amelia, including me construction of the subject sidewalk in front of the restaurant. Mr. Neitzel stated tiiat during construction of such sidewalk, Amelia was required, pursuant to a site plan approved by the Town of Smithtown (the Town), to create a sloping area to accommodate patrons in wheelchairs entering the sidewalk from me parking lot, which it did. Subsequent to the sidewalk's construction, the Town granted Amelia a certificate of occupancy. Upon questioning, Mr. Neitzel acknowledged mat while mere were no painted lines near me sloped sidewalk area to prevent vehicles from parking in front of it, the Town approved the parking lot's striping scheme. He further testified that the subject sidewalk has not been altered since Amelia had it installed.
Michael Cacaro testified that he is the majority owner of Vintage, and that while he obtained the lease to the building under the name of Delmonico's, Vintage has been subject to the terms of the original lease since the restaurant's inception. Mr. Cacaro indicated that Vintage's landlord, Amelia, installed the subject sidewalk prior to Vintage taking possession of the restaurant building, but that it was his understanding that Vintage had a contractual duty to keep it free from snow and debris. He further indicated that no repairs were made in the period between the sidewalk's installation and the time of Mrs. Mich's alleged incident.
The lease agreement, submitted as evidence by both movants in support of their motions, defines the "premises" as "approximately 2, 791 square feet of gross leasable area as cross-hatched on Exhibit A." Upon viewing Exhibit A of the lease agreement, a map of the subject premises and more, the cross-hatched area covers only the footprint of Vintage's restaurant building- not the subject sidewalk. The lease further provides, in section 8.02, that Amelia shall maintain the "Common Area," which it defines, in relevant part, as "all areas and space provided by [Amelia] for the common or joint use of all tenants in the Entire Shopping Center... including, without limitation, parking areas, access roads, driveways ... pedestrian walks, outside courts, and curb cuts . . . and all odier non-leasable portions of the Shopping Center."
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 318 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d499, 942 N.Y.S.2d 13 [2012]). Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient to raise a triable issue (see Zuckerman v City of New York, A9 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157, 159 [2011]).
The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606 [1980]; MUewski v Washington Mat, Inc., 88 A.D.3d 853, 931 N.Y.S.2d 336 [2d Dept 2011]). In a premises liability case, a defendant real property owner who moves for summary judgment "has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence" (Parietti v Wal-Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523 [2017]; see Gani v Ave. R Sephardic Congregation, 159 A.D.3d 873, 72 N.Y.S.3d 561 [2d Dept 2018]). However, a property owner "has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous" (Masker v Smith, ____ A.D.3d ____, 2020 NY Slip Op 06519 [2d Dept 2020]). Whether a dangerous condition exists on real property "depends on the particular facts and circumstances of each case and is generally a question of fact for the jury. Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, [and] [e]ven a condition that is generally apparent to a person making reasonable use of their senses may be rendered a trap . . . where the condition is obscured or the plaintiff is distracted" (Elfassi v Hollister Co., 167 A.D.3d 569, 570, 88 N.Y.S.3d 505 [2d Dept 2018] [internal citations and quotations omitted]).
Here, the Court finds Amelia failed to establish a prima facie case of entitlement to summary judgment in its favor (see Shermazanova v AmeriHealth Med, P.C, 173 A.D.3d 796, 103 N.Y.S.3d 160 [2d Dept 2019]; Dalton v N. Ritz Club, 147 A.D.3d 1017, 46 N.Y.S.3d 900 [2d Dept 2017]; Shah v Mercy Med Ctr., 71 A.D.3d 1120, 898 N.Y.S.2d 589 [2d Dept 2010]; Silberstein v City of New York, 7 A.D.3d 692, 776 N.Y.S.2d 520 [2d Dept 2004]); see also Monopoli v Food Emporium, Inc., 135 A.D.3d 716, 23 N.Y.S.3d 322 [2d Dept 2016]; see generally Alvarez v Prospect Hosp., supra). The evidence submitted in support of its motion was insufficient to meet its burden of demonstrating that the alleged defective condition was open and obvious and not inherently dangerous (see Holmes v Macy's Retail Holdings, Inc., 184A.D.3d811, 124 N.Y.S.3d 582 [2d Dept 2020)). m this case, plaintiffs do not allege that the concrete sidewalk in question was damaged or covered by debris. Rather, plaintiffs allege that the design, implementation, and failure to mark a handicapped-accessible sidewalk ramp was a defective condition, constituting a trap. Testimony of Amelia's representative, Mr. Neitzel, confirmed that it owned the situs of Mrs. Mich's alleged fall, and that it installed the sidewalk ramp in controversy. Notwithstanding the commonplace nature of similar curb cuts or ramps, the circumstances of this particular iteration, including its placement, unmarked, in an area of high foot traffic, at the head of a parking space in which a vehicle was parked at the time in question, leave triable questions outstanding regarding its danger (see Elfassi v Hollister Co., supra; see also Buonchristtano v Fordham Univ., 146 A.D.3d711, 46N.Y.S.3d76 [1st Dept 2017]). Such determinations are within the purview of the finder of fact. Furthermore, while Amelia argues that the Town's issuance of a certificate of occupancy implicitly sanctioned the sidewalk design, the site plan documents offered as exhibits do not depict the curb cut in question. Nevertheless, possession of a certificate of occupancy is not determinative proof that no defective conditions are present at a premises. Amelia having failed to meet its prima facie burden, the Court need not consider plaintiffs' papers in opposition (see generally Winegrad v New York Univ. Med. Ctr., supra). Accordingly, the motion by defendant Amelia for summary judgment dismissing the complaint and cross claims against it is denied.
Vintage, however, established a prima facie case of entitlement to summary judgment in its favor as to plaintiffs' complaint and Amelia's cross claims. Through its submissions, Vintage demonstrated that it did not own, construct, control, or have a duty to maintain that portion of the subject premises where Mrs. Mich's incident allegedly occurred (see Athenas v Simon Prop. Group, LP, 185 A.D.3d 884, 128 N.Y.S.3d 284 [2d Dept 2020]). In opposition to Vintage's motion, plaintiffs argue that it "had, at the very least, overlapping responsibility with respect to safeguarding the sidewalk for its patrons." Plaintiffs submit, among other things, transcripts of the parties' deposition testimony, an affidavit of Town of Smithtown Planning Director Peter Hans, an affidavit of accident reconstruction expert James Pugh, a copy of the lease agreement, and five photographs. Plaintiffs' submissions fail to raise a triable issue. Specifically, plaintiffs fail to cite any legal basis for Vintage's alleged duty to alter the subject sidewalk in light of Amelia's ownership of the premises, creation of the alleged defective condition, and contractual duty to maintain the common areas of the subject premises. Plaintiffs' reliance upon "Tenant's Obligations" in section 11.02 of the lease agreement, which makes reference to "sidewalks" is misplaced, as such section applies only to the "Premises," which, as defined on the second page of the lease, and delineated on the map appended thereto, covers only the area within the walls of the Vintage restaurant (see generally Monopoli v Food Emporium, Inc., supra). Accordingly, the motion by defendant Vintage for summary judgment dismissing the complaint and cross claims against it is granted.