Opinion
No. 504591/2021 Mot. Seq. No. 1 2 & 3
08-15-2023
BORIS RADUTSKIY, Plaintiff, v. NECK ROAD ONE REALTY LLC and NET COST MARKET, Defendants.
Unpublished Opinion
Mot. Cal.: 5/5/23
DECISION / ORDER
HON. RICHARD J. MONTELIONE, J.S.C.
The following papers were read on this motion pursuant to CPLR 2219(a):
| Papers | Numbered |
| Motion Sequence # 1 | |
| Defendant Net Cost Market's Notice of Motion for Summary Judgment, filed September 1, 2022 (NYSCEF # 16), Defendant Net Cost Market's Attorney Affirmation of David Neil, Esq., affirmed on September 1, 2022 (NYSCEF # 17), Memorandum of Law (NYSCEF #20), Statement of Material Facts (NYSCEF #21), Exhibits (NYSCEF #22-28) ............................................. | 16-28 |
| Plaintiff's Attorney Affirmation of William Pager, Esq., in Opposition, affirmed on December 15, 2022 (NYSCEF #30), Response to Statement of Material Facts (NYSCEF #31) ..................... | 30-31 |
| Defendant Net Cost Market's Attorney Sur Reply of David Neil, Esq., affirmed on December 21, 2022 (NYSCEF #33) .......................................................................................... | 33 |
| Motion Sequence #2 | |
| Defendant Net Cost Market's Notice of Motion to Vacate the Default Order, filed January 24, 2023 (NYSCEF #36), Defendant Net Cost Market's Attorney Affirmation of David Neil, Esq., affirmed on January 24, 2023 (NYSCEF #37), Memorandum of Law (NYSCEF #39), Statement I of Material Facts (NYSCEF #40), Exhibits (NYSCEF #41-4 7) .......................................... | 36-47 |
| Plaintiff's Attorney Affirmation of William Pager, Esq., in Opposition, affirmed on March 27, 2023 (NYSCEF #63), Response to Statement of Material Facts (NYSCEF #64), Exhibits (NYSCEF #65-67) ............................................................................................. | 63-67 |
| Motion Sequence #3 | |
| Defendant Neck Road One Realty LLC's Notice of Cross-Motion for Summary Judgment, filed I on February 10, 2023 (NYSCEF #48), Defendant Neck Road One Realty LLC's Attorney Affirmation of Tahesha Gilpin, Esq., affirmed on February 10, 2023 (NYSCEF #49), Exhibits (NYSCEF #50-60) ............................................................................................. | 48-60 |
| Plaintiff's Attorney Affirmation of William Pager, Esq., in Opposition, affirmed on March 27, 2023 (NYSCEF #69) .......................................................................................... | 69 |
This action involves a claim for personal injuries allegedly sustained in a slip and fall accident that occurred on October 21, 2020. Defendant Neck Road One Realty LLC ("landlord") owns the property at 2257 East 16th Street, Brooklyn, New York, and defendant Net Cost Market is the tenant at 2257 East 16th Street ("tenant").
Plaintiff alleges that he was directed by the tenant's employees to walk around a delivery truck and to walk on the sidewalk in front of 2257 East 16th Street. Plaintiff allegedly tripped and fell when his foot got caught on a metal rod protruding from a hole at the edge of either the sidewalk or the curb.
Plaintiff argues, pursuant to the Administrative Code of the City of New York ("Administrative Code"), that both the landlord and the tenant are responsible for the allegedly defective sidewalk and failed to comply with their duty to maintain the sidewalk in a reasonably safe condition. Additionally, plaintiff argues that the failure by both defendants to maintain the sidewalk was a proximate cause of plaintiff s serious and permanent injury.
The tenant, defendant Net Cost Market, moved for summary judgment on September 1, 2022 (Mot. Seq. #1). The motion for summary judgment was then denied on December 21, 2022 for the tenant's failure to appear at oral argument. (NYSCEF #34). The tenant now moves to vacate its default and restore its motion for summary judgment to the calendar (Mot. Seq. #2).
A case dismissed pursuant to CPLR § 3216 may be restored only if defendant can demonstrate both a reasonable excuse for the default and a meritorious cause of action. Rezene v. Williams, 22 A.D.3d 656, 657, 804 N.Y.S.2d 335, 336 (2d Dep't 2005). Horio Realty Corp, v Hunt Point Flower Market Inc., 181 A.D.3d 218 (2d Dep't 2020).
"The court has discretion to accept law office failure as a reasonable excuse (see CPLR § 2005) where the claim is supported by a detailed and credible explanation of the default." Option One Mtge. Corp. v. Rose, 164 A.D.3d 1251, 1252, 82 N.Y.S.3d 116 (2d Dep't 2018).
Here, the tenant's counsel states that the failure to appear at oral argument was caused by an office calendar error. Specifically, Theresa Caruana, the office calendar clerk, stated in an affidavit that the assigned attorney did not communicate that the case required oral argument and that she also checked eLaw the day before the motion was returnable and did not see anything indicating the need for oral argument. (NYSCEF #42). As a result, the oral argument required by the motion was not noted in the calendar system.
The court finds that Ms. Caruana has personal knowledge of the events, and the affidavit is a detailed statement of law office failure. The affidavit sufficiently demonstrates good cause to vacate the default. Furthermore, there are several meritorious defenses based on the answer to the complaint, verified by defendants on April 13, 2021. Accordingly, the motion to vacate defendant Net Cost Market's default and restore its motion for summary judgment (Mot. Seq. #1) is granted.
Defendant Net Cost Market, the tenant, moves for summary judgment (Mot. Seq. #1) and defendant Neck Road One, the landlord, cross-moves for summary judgment (Mot. Seq. #3).
Both the landlord and tenant argue summary judgment should be granted in their favor as plaintiff tripped on a curb and movants are not liable contractually or under the Administrative Code to maintain curbs.
Plaintiff testified at his examination before trial, "I fell on broken curb. The curb was all broken." (NYSCEF #25, p. 23). The defendants also argue that the photograph in which plaintiff identified the defective condition provides evidence that the accident occurred on the curb, not the sidewalk. (NYSCEF #25). The landlord also argues that the tenant is liable under the indemnification provision of the contract.
Plaintiff opposes the motions for summary judgment, arguing that defendants failed to show that they did not own, maintain, or create the defective condition that led to plaintiff s accident, and that they had constructive notice of the condition. (See McKenzie v. Columbus Ctr., LLC, 40 A.D.3d 312, 835 N.Y.S.2d 190 [1st Dep't 2007]; Hunter v. City of New York, 23 A.D.3d 223, 806 N.Y.S.2d 4 [1st Dept 2005]; Curtis v. City of New York, 179 A.D.2d 432, 577 N.Y.S.2d 855 [1st Dep't 1992]). Plaintiff claims that the defective condition was related to the sidewalk, that defendants had a duty to maintain the sidewalk in a reasonably safe condition under Administrative Code § 7-210(a) and (b), and that summary judgment should be denied based on a breach of this duty. As evidence that the accident occurred on the sidewalk, plaintiff cites to the deposition. When first asked whether the accident happened "on the sidewalk, in the roadway, on a curb or something else," plaintiff testified that he "fell on a broken up sidewalk." (NYSCEF #25, p.23).
Pursuant to CPLR § 3212, summary judgment requires a showing that the cause of action or defense demonstrates no triable issue of fact and therefore directs judgment in favor of any party as a matter of law is warranted. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967, 520 N.E.2d 512 (Ct. of Ap. 1988); Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718 (Ct. of Ap. 1980). On such a motion, the evidence will be construed in a light most favorable to the party against whom summary judgment is sought. Spinelli v. Procassini, 258 A.D.2d 577, 686 N.Y.S.2d 446 (2d Dep't 1999).
In New York City, the extent of an owner's duty to maintain the walkways in front of their real property is determined by the Administrative Code. Pursuant to Administrative Code, a real property owner has a duty to maintain the sidewalk abutting their property but does not have a duty to maintain the curb:
Administrative Code § 7-210(a) states, "it shall be the duty of the owner of real property abutting any sidewalk.. .to maintain such sidewalk in a reasonably safe condition." (Emphasis added). Furthermore, "the owner of real property abutting any side walk... shall be liable for any injury... proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." Administrative Code § 7-210(b) (emphasis added). Pursuant to Administrative Code § 19-101 (d), "sidewalk" is defined as the "portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb. "(Emphasis added). Administrative Code § 7-210 "does not shift liability to abutting property owners from the City of New York with respect to a defective condition existing on a curb." Alleyne v. City of New York, 89 A.D.3d 970, 933 N.Y.S.2d 348 (Ct. of Ap. 2011).
After reviewing the record and photographs depicting where plaintiff fell, the court finds the plaintiff was injured on the portion of the walkway that constitutes the curb or street, and not the sidewalk abutting the premises. The photograph shows that the concrete sidewalk appears intact and in a safe condition and that the hole and metal rod are part of either the curb or the street. (NYSCEF #25). Furthermore, while plaintiff initially testified to falling on a broken sidewalk, in response to being asked to clarify whether it was the sidewalk or the curb, he stated "I fell on broken curb. The curb was all broken." (NYSCEF #25, p.23). Accordingly, neither the landlord nor the tenant is liable under the Administrative Code, which impose no duty on landowners to maintain curbs. As movants have no duty to maintain the curb, the issue of whether they had notice of the defective condition is moot.
Under the lease, the landlord and tenant were not responsible for maintaining the curb. The lease states, "Tenant...shall...maintain the Demised Premises, including...the sidewalks adjacent thereto," and makes not mention of the curb. (NYSCEF # 59, p.12).
However, the indemnity clause in the lease states:
Tenant shall indemnify and save harmless Landlord and its agents against and from: any and all claims arising from incidents or accidents, (including, but not limited to "slip and fall") that may occur on or in connection with the sidewalks or curbs in front of or abutting the Demised Premises or the building of which the Demised Premises is a part, the conduct of business in or management (other than by Landlord) of the Demised Premises or any work or thing whatsoever done, or any condition created(other than by Landlord) in or about the Demised Premises, including the sidewalks adjoining same and the parking lot, during the Term of this Lease or during the period of time, if any, prior to the commencement date that Tenant may have been given access to the Demised Premises pursuant to this Lease, or arising from any negligent or otherwise wrongful act or omission of Tenant or any of its subtenants or licensees or its or their employees, agents, or contractors, and all costs, expenses and liabilities incurred in or in connection with each such claim or action or proceeding brought thereon. In case any action or proceeding be brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall resist and defend such action or proceeding by counsel chosen by Tenant who shall be reasonably satisfactory to Landlord. Tenant or its counsel shall keep Landlord fully apprized at all times of the status of such defense. Counsel for Tenant's insurer shall be deemed satisfactory to Landlord
If Landlord, without fault on its part, is made party to any action commenced by or against Tenant, then Tenant shall protect and hold Landlord harmless and shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by Landlord in connection with such action. (NYSCEF # 59, p.43-44) (emphasis added).
Therefore, the tenant is liable to the landlord for cost and expenses and reasonable attorney's fees incurred or paid by the landlord in connection with this action.
Plaintiff also argues the defendants are liable because they made special use of the curb and sidewalk. A defendant's duty to maintain an abutting walkway can be extended through special use. Special use can extend liability to include an area which pedestrians are "directed" if an obstruction defined "plaintiffs path . . . towards the defect in the sidewalk that caused him to fall." Curtis v. City of New York, 179 A.D.2d 432, 577 N.Y.S.2d 855 (Ct. of Ap. 1992).
This theory only applies where a defendant's special use of the walkway "caused or contributed to the allegedly defective condition which resulted in plaintiffs' injuries." Appio v. City of Albany, 144 A.D.2d 869, 534 N.Y.S.2d 811 (Ct. of Ap. 1988). If a plaintiff was directed to take a path based on special use of the walkway, but the defendant's activities did not cause or contribute to the defective condition the plaintiff came into contact with, then the defendants are not liable for the plaintiff s injuries. Curtis v. City of New York, 179 A.D.2d 432, 577 N.Y.S.2d 855 (Ct. of Ap. 1992). |
Plaintiff argues that the tenant's employees specifically directed him to walk around the truck and to take the path with the broken curb. Under the theory of "special use," plaintiff argues that because the tenant "defined" and directed his path which led him into the defective condition, tenant's "duty to maintain" extended beyond the obstructed sidewalk, citing MacLeod v. Pete's Tavern, 218 A.D.2d 551. However, this case was ultimately reversed by the Court of Appeals. MacLeod v. Pete's Tavern, Inc., 87 N.Y.2d 912, 663 N.E.2d 905 (Ct. of Ap. 1996).
The court finds no evidence in the record that the defective curb or metal rod was related to or was caused by the truck parked in front of the property. The defendants' truck parked in front of the sidewalk, or tenant's employees directing plaintiff to walk around said truck, did not constitute special use that caused or contributed to the allegedly defective condition which resulted in plaintiffs injuries. Appio v. City of Albany, 144 A.D.2d 869, 534 N.Y.S.2d 811 (Ct. of Ap. 1988); MacLeod v. Pete's Tavern, Inc., 87 N.Y.2d 912, 663 N.E.2d 905 (Ct. of Ap. 1996).
Based on the foregoing, it is
ORDERED that defendant Net Cost Market (tenant)'s motion to vacate its default (Mot. Seq. #2) is GRANTED; and it is further
ORDERED that Net Cost Market (tenant)'s motion for summary judgment (Mot. Seq. #1) is GRANTED to the extent that it (tenant) is not liable to plaintiff for his injuries and the complaint against Net Cost Market (tenant) is dismissed; and it is further
ORDERED that Neck Road One Realty LLC (landlord)'s motion for summary judgment (Mot. Seq. #3) is GRANTED in its entirety and Net Cost Market (tenant) is liable to Neck Road One Realty LLC (landlord) for cost and expenses and reasonable attorney's fees incurred or paid by the Neck Road One Realty LLC (landlord) in connection with this action; and it is further
ORDERED that the complaint is dismissed and all other requests for relief DENIED. This constitutes the decision and order of the Court.