Opinion
No. 30503/2010.
2013-03-27
Ernesto Ramirez PEREZ, Plaintiff, v. 12422 QUEENS BLVD LLC, New York City Management LLC, JPMorgan Chase Bank N.A., Oceanview Service Incorporated, Ocean View Service Corporation, All Counties Snow Removal Corp., Len Enterprises, Inc., d/b/a Louis Steven Income Tax and Ira Judelson Bail Bonds, Defendants.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 19 were read on this motion by defendant, LEN ENTERPRISES, INC. d/b/a STEVEN LOUIS INCOME TAX CENTER s/h/a LOUIS STEVEN INCOME TAX CENTER, for an order, pursuant to CPLR 3211 and CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's verified complaint and all cross-claims that may have been asserted against it:
+---------------------------------------------------+ ¦Papers ¦Numbered ¦ +----------------------------------------+----------¦ ¦LEN Notice of Motion–Affidavits–Exhibits¦1–6 ¦ +----------------------------------------+----------¦ ¦PEREZ'S Affirmation in Opposition ¦7–8 ¦ +----------------------------------------+----------¦ ¦ALL COUNTIES Affirmation in Opposition ¦9–12 ¦ +----------------------------------------+----------¦ ¦CHASE Affirmation in Opposition ¦13–16 ¦ +----------------------------------------+----------¦ ¦LEN Reply Affirmation ¦17–19 ¦ +---------------------------------------------------+
This is an action for damages for personal injuries sustained by plaintiff, ERNESTO RAMIREZ PEREZ, on February 20, 2010, when he slipped and fell on ice on a public sidewalk adjacent to premises located at 124–22 Queens Boulevard, Kew Gardens, New York. The building is owned by defendant 12422 Queens Blvd. LLC. Defendant LEN is a tenant who occupies the second floor premises. The ground floor of the subject premises is occupied by co-defendant JPMorgan Chase Bank. As a result of his fall, the plaintiff allegedly sustained a fractured right ankle which required an open reduction.
The plaintiff initially commenced an action for negligence against 12422 Queens Blvd. LLC, JPMorgan Chase Bank N. A., Louis Steven Income Tax Center and Ira Judelson Bail Bonds by filing a summons and verified complaint on December 8, 2010. Plaintiff filed a supplemental summons and complaint on August 5, 2011 adding defendants New York City Management, LLC, Ocean View Service Corporation and All Counties Snow Removal.
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 condition, in failing to inspect the area, in allowing the sidewalk to become accumulated with ice and snow, in improperly clearing the sidewalk of ice and snow, in allowing the sidewalk to remain in a slippery and dangerous condition; and in failing to warn pedestrians of the unsafe condition.
Plaintiff claims that defendants had actual notice of the hazardous condition. Plaintiff also claims that the defendants 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, Len Enterprises, Inc.(Len) now moves for an order granting summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against it on the ground that said defendant, as a second floor tenant, bears no liability for negligence due to a dangerous condition on a public sidewalk. Counsel states that the building is owned by 12422 Queens Boulevard LLC and the ground floor of the subject premises is occupied by co-defendant JPMorgan Chase LLC (Chase). Counsel contends that Chase has undertaken all responsibility for the performance of snow and ice removal from the abutting sidewalk pursuant to its lease. Counsel contends that the evidence shows that Chase in turn contracted with co-defendant All Counties Snow Removal and that All Counties subcontracted the snow removal to OceanView Service Corporation.
In support of the motion, defendant's counsel, David I. Robinson, Esq., submits his own affirmation, dated October 4, 2012; a copy of the pleadings; a copy of the plaintiff's supplemental verified bill of particulars; an affidavit of Steven Holtz, a supervisor from Len; and copies of the transcripts of the examinations before trial of plaintiff Ernesto Ramirez Perez, Philip Franco from All Counties Snow Removal, and Jack Rinaldi, facilities manager from Chase.
In his examination before trial, taken on June 13, 2012, plaintiff, Ernesto Ramirez Perez, age 45, testified that his accident occurred on Friday, February 25, 2010 at approximately 3:00 p.m. He stated that he had taken the subway from his job in Long Island City and got off at Queens Boulevard and Union Turnpike. He was going to a doctor's appointment on Queens Boulevard and was looking for the address. He stated that it was raining at the time and the sidewalk near Chase was icy and was covered with 6–7 inches of snow. Plaintiff stated that on the date of the accident it began snowing at about 6:00 a.m. and that it had stopped snowing at about 1:00 or 1:30 p.m. and the freezing rain started about 30–40 minutes later. He stated that he was walking slowly in the middle of the sidewalk with an umbrella in one hand in front of Chase when his left foot slipped on ice and he fell backwards hitting the ground with his hip. He stated that the entire sidewalk was covered with ice and that the snow had not been removed from the sidewalk prior to his fall. However, at the time he fell he observed men coming out of a van who just began shoveling snow in front of Chase Bank. A police officer was walking and tried to help him up but he could not stand. He told the officer that he had broken his left ankle. The police officer called an ambulance and the plaintiff was transported to the emergency room at Jamaica Hospital. No one from Chase came out after the accident and he did not file a report with Chase. After being x-rayed at the emergency room he was told that he sustained two fractures in his left ankle. He was admitted to the hospital and stayed for 10 days. He had a operation on March 4, 2010 where the fractures were stabilized with plates and screws. He remained in a cast for 6 weeks followed by physical therapy.
Jack Rinaldi, the Vice–President and facilities manager for Chase testified at an examination before trial on June 14, 2012. He testified that with regard to snow removal, several Chase Bank locations, including the subject premises, have contracted with All Counties Snow Removal. As part of his duties he would contact All Counties when he felt snow removal was needed or when he received a call from one of the branches. He was not aware of the existence of any records indicating communications with All Counties as to the subject branch. He stated that he believed the bail bondsman, who has a first floor entrance to their second floor office was responsible for snow removal in front of his own space. He stated that with respect to Chase, the bank managers responsibilities include informing him if there is an unsafe condition on the premises.
Philip Faicco, a supervisor with All Counties Snow Removal testified at an examination before trial on June 14, 2012. He stated that All Counties uses twelve subcontractors. He stated that he reviewed a snow report from the date of the accident and recalled that the report indicated that it had started snowing before the plaintiff's accident and stopped snowing the next day, with a total accumulation of 12 inches. Faicco stated that with respect to this Chase branch he had a subcontract with Oceanview. He stated that he received an invoice from Oceanview with respect to snow removal on February 25, 26 and 27th of 2010. He testified that All Counties monitors the snowfall and lets the subcontractors know when they will be needed to mobilize for a snow event. All Counties would tell the subcontractors when to begin their work. He stated that All Counties had a contract with Chase for snow removal for the subject premises which covered February 2010. He stated that if the bank was not shoveled appropriately that the bank would contact All Counties. He did not recall any specific discussions with any one regarding the snowstorm in February 2010. He stated that even the area leading to the upstairs tenants was serviced under the contract.
In his affidavit, dated September 25, 2012, Steven Holtz, owner of Len Enterprises, states that Len leased commercial office space on the second floor of the premises known as 124–26 Queens Blvd. He states that all the snow removal performed at the premises had been undertaken by the first floor tenant, Chase Bank. He states that it was his understanding that Chase hired a snow removing company to clean the sidewalk. He states that no one on behalf of Len has ever performed any snow or ice removal from the public sidewalk in front of the premise and that Len has never contracted with any person or entity to perform any snow or ice removal from the public sidewalk abutting the subject premises.
Counsel contends that defendant Len is not a proper party to this action as the pre-trial testimony indicates that Len leased offices on the second floor of the commercial building. Counsel contends that pursuant to the terms of its lease, Chase was required to maintain the abutting sidewalk and was required to perform all snow and ice removal at the premises. Counsel asserts that pursuant to the lease, Chase contracted with All Counties for snow removal and that the testimony of All Counties confirmed that it had a contract with Chase and that the subcontracted the snow removal to Oceanview. Consequently, counsel argues that Len had no duty of care to the plaintiff with regards to snow removal as Chase assumed the duty of snow removal and it did not own, occupy control or put the sidewalk to special use (citing Ellers v. Horowitz Family Ltd. Partnership, 36 AD3d 839 [2d Dept.2007] ).
In opposition, Jennifer Coviello, Esq., counsel for 12422 Queens Blvd LLC, New York Management and JPMorgan Chase submits an affirmation dated November 16, 2012, which has been adopted by the plaintiff and by co-defendant All Counties Snow Removal. In her affirmation, Ms. Coviello argues that Len's motion for summary judgment should be denied as it is premature having been filed prior to several co-defendants having appeared for examinations before trial. In addition, counsel argues that Len failed to establish prima facie entitlement to judgment as a matter of law on the issue of liability and further, material issues of fact exist as to the circumstances surrounding the accident and Len's responsibility for snow and ice removal.
Counsel states that plaintiff, JP Morgan and All Counties appeared for depositions on June 13 and 14, 2012. The deposition of the remaining defendants were scheduled for September 19, 2012 but were not held as scheduled. Pursuant to so ordered stipulation the depositions were to take place on November 6, 2012 but were adjourned and have not been held to date. Counsel also attaches a copy of a lease agreement between Len and the building owners, produced by Len during discovery, which states in paragraphs 43 and 63 of the Rider that the tenant agrees to keep the sidewalks and curbs adjacent to the demised premises free of any snow and ice accumulation. Paragraph 63 states that the tenant will continuously keep the sidewalk in front of the premises clean and free of garbage, debris, dirt litter, rubbish, snow and ice. The lease states that the “tenant further agrees, at its sole cost and expense, to be responsible for the clearance and removal of snow and ice which may accumulate on the sidewalk in front of or adjacent to the demised premises.”
Counsel contends that Len failed to establish, prima facie, its freedom from negligence. Counsel claims that the affidavit of Steven Holtz stating only that he leased space on the second floor and did not perform snow removal was insufficient to demonstrate any agreement between Len and Chase regarding snow removal at the premises. Further, counsel asserts that the Len's lease, which places responsibility on the tenant for snow removal, raises a material question of fact as to whether Len was responsible for snow removal at the premises or the portion of the premises in front of the entrance to the upstairs space.
Upon review and consideration of the defendant's motion, the affirmations in opposition and defendants' 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 N.Y.2d 557[1980] ).
Here this court finds that the Len has failed to meet its burden of establishing that it was not responsible for snow removal at the subject premises. Although Len was an upstairs tenant, the testimony of the witness for Chase, submitted in support of the motion, stated that the upstairs tenants were responsible for snow removal in front of entrance leading to the upstairs offices. Further, although the owner of Len, who failed to appear for a deposition, submitted an affidavit stating that Chase performed the snow removal at the premises, the affidavit fails to mention Len's obligations under its lease for snow removal and failed to establish that he had no duty for snow removal over all portions of the sidewalk (see Vasquez v. RVA Garage, 238 A.D.2d 407 [2d Dept.1997];). In fact, Len failed to provide a copy of its lease or evidence of an agreement with Chase to indicate that Len had no responsibility or control over the sidewalk in front of its entrance (see Woods v. Daniella Realty Corp., 15 AD3d 407 [2d Dept.2003] ).
Moreover, in opposition to the motion, defendant for the owners submits a lease between the building owners, 12422 Queens Boulevard LLC and Len Enterprises, dated December 6, 2005, signed by Steven Holtz on behalf of Len. The lease commenced on January 1, 2006 and ended December 31, 2010. As stated above, the lease agreement contains two separate provisions obligating Len to keep the sidewalks adjacent to the premises free of snow and ice accumulation. Therefore, the express terms of the lease raises triable issues of fact regarding Len's obligation and responsibility under the lease to remove snow, which portions of the sidewalk Len was responsible for, whether the failure of Len to undertake snow removal on the date of the accident caused or contributed to plaintiff's accident and whether Chase by their course of conduct may have modified the terms of lease.
Accordingly, as defendant LEN failed to establish its entitlement to judgment as a matter of law and because the co-defendants raised material questions of fact, and for all of the above stated reasons, it is hereby
ORDERED, that the motion by defendant LEN ENTERPRISES INC for summary judgment dismissing the plaintiff's complaint and all cross-claims is denied.