Opinion
Index No. 515089/2017 Motion Seq. 4
02-06-2024
LESLIE ROSADO Plaintiff(s) v. CONSOLIDATED EDISON COMPANY OF NEW YORK INC., VANDERBILT ASSOCIATES OWNER LP, VANDERBILT ASSOCIATES LLC, GREENPOINT GOLDMAN SM LLC &THE CITY OF NEW YORK Defendant(s)
Unpublished Opinion
PRESENT: HON. INGRID JOSEPH, J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS.
ORDER
Hon. Ingrild Joseph J.S.C.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Memo in Support/Affidavits/Affirmations/ Exhibits Annexed/Reply........... 95-122; 137-138
Memo in Opposition/Affidavits /Affirmations/Exhibits Annexed............ 123-125
Memo in Opposition/Affidavits /Affirmations/Exhibits Annexed............ 127-136
In this action, Vanderbilt Associates Owner LP ("Vanderbilt") and Greenpoint Goldman SM LLC ("Greenpoint") move (Motion Seq. 4) pursuant to CPLR § 3212 for summary judgment dismissing Leslie Rosado's ("Plaintiff") complaint as against them in its entirety, as well as any and all cross-claims asserted. Additionally, Vanderbilt and Greenpoint move pursuant to CPLR § 3212 for summary judgment with respect to their cross-claims for common law indemnification against Consolidated Edison Company of New York Inc. ("Con Edison"). Plaintiff and Con Edison have opposed the motion.
This matter arises out of a trip-ahd-fall which allegedly occurred on August 16, 2016, wherein Plaintiff claims that her left toe jgot caught in a metal grate located on the sidewalk adjacent to the building located at 470 Vanderbilt Ave/495 Clermont Ave Brooklyn, New York 11238 (the "Subject Premises"). It is undisputed that Vanderbilt is the owner of the Subject Premises, and that Con Edison is the owner of the metal grate located on the sidewalk.
In support of its motion, Vanderbilt and Greenpoint argue that they have established entitlement to summary judgment because they did not have a duty to maintain or repair the metal grate that caused Plaintiff s fall, nor did it create the defective condition, or have exclusive control of or derive an exclusive benefit from the metal grate that would warrant'liability under the Special Use Doctrine. Vanderbilt and Greenpoint contend that while Administrative Code § 7-210 generally imposes liability for injuries resulting from negligent sidewalk repair on abutting property owners, 34 RCNY § 2-07 places the responsibility for the upkeep and maintenance of a sidewalk grate on the owner of the grate, which in this instance is Con Edison. Vanderbilt and Greenpoint state that Con Edison conceded ownership and maintenance of the grate via its Reply to Vanderbilt's Notice to Admit. Vanderbilt argues alternatively that, in the event that the court does not dismiss Plaintiffs complaint and any and all cross-claims, that it is entitled to common law indemnification and reimbursement from Con Edison because in cases dealing with premises liability, courts have held that where an owner did not direct or control the work, it is entitled to common law indemnify from the negligent party that did have control over the work and supplied materials necessary to perform that work. In support of their motion, Vanderbilt and Greenpoint also submit EBT transcripts of Plaintiff, Jennifer Grimm ("Grimm"), Senior Specialist at Con Edison, Filippo Casoria ("Casoria"), a Distribution A Mechanic at Con Edison, and Luis DeJesus ("DeJesus"), the Property Manager for the Subject Premises, as well as photographs marked during Plaintiffs EBT and video footage of the accident.
In opposition, Con Edison argues that there are still questions of fact as to whether the cause of the accident was a sidewalk condition which, Defendant as an abutting landowner would be responsible for, or a grating condition which, Con Edison, as the owner of the grate, would be responsible for. Additionally, Con Edison states that there is a question of fact as to whether Vanderbilt and Greenpoint caused Plaintiffs accident by obstructing the sidewalk, thereby directing pedestrian traffic onto the location of the accident. Con Edison cites to Plaintiffs and De Jesus' testimony wherein they testified that sidewalk construction work was being performed at the time of the accident and that Vanderbilt had barricades erected along the sidewalk. Con Edison also cites to Plaintiffs testimony wherein she states that due to the barricades and the contractor's working at the time of the accident, that she was forced to walk over the grate. Con Edison also asserts that there is a question of fact as to whether Vanderbilt or its contractors may have created the defective condition because DeJesus testified that a portion of the sidewalk in the area of the grate was previously replaced by contractors hired by Vanderbilt. Additionally, Con Edison argues that because the submitted video of the accident is taken from a distance, the causality of Plaintiff s fall is not readily apparent, and any conclusions made should be decided by a jury.
In opposition, Plaintiff argues that there is a question of fact as to whether the Special Use Doctrine is applicable, making the moving Defendants liable for Plaintiffs injuries. Plaintiff asserts that Vanderbilt enjoyed an exclusive benefit from the sidewalk transformer vaults under the grates which provide electricity to the Subject Premises. Additionally, Plaintiff argues that moving Defendants failed to make a prima facie showing of the last inspection of the metal grate or lack of notice of any defect and therefore have failed to meet their burden of proof. Plaintiff cites Casoria's EBT testimony that there was a significant gap between the sections of grating that was possibly caused by a snow plow blade, months prior to the accident that required fixing.
It is well established that "the proponent of a summary judgment motion 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" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; Zapata v Buitriago, 107 A.D.3d 977 [2d Dept 2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]).
Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable (Elzer v Nassau County, 111 A.D.2d 212, [2d Dept 1985]; Steven v Parker, 99 A.D.2d 649, [2d Dept 1984]; Galeta v New York News, Inc., 95 A.D.2d 325, [1st Dept 1983]). When deciding a summary judgment motion, the Court must construe facts in the light most favorable to the non-moving party (Marine Midland Bank N.A. v Dino &Artie's Automatic Transmission Co., 168 A.D.2d 610 [2d Dept 1990]; Rebecchi v Whitemore, 172 A.D.2d 600 [2d Dept 1991]). To be entitled to summary judgment on the issue of liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence (Rodriguez v City of New York, 31 N.Y.3d 312 [2018]; Higashi v M &R Scarsdale Restaurant, LLC, 176 A.D.3d 788 [2d Dept 2019]; Webb v Scharf, 191 A.D.3d 1353 [4th Dept 2021]).
In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the condition that allegedly caused the accident nor had actual or constructive notice of its existence (Cosme v New York City Department of Education, 221 A.D.3d 875 [2d Dept. 2023]; Caban v Kem Realty, LLC, 172 A.D.3d 1302 [2d Dept. 2019]; Muhammad v St. Rose of Limas R.C. Church, 163 A.D.3d 693 [2d Dept. 2018]; Kyte v Mid-Hudson Wendico, Inc., 131 A.D.3d 452 [2d Dept. 2015]). To establish constructive notice, a dangerous condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it (Cosme at 859; Gordon v American Museum of Natural History, Cl N.Y.2d 836 [1986]). To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiffs accident (Id:, Tuck v Surrey Carlton Housing Development Fund Corp., 208 A.D.3d 1383 [2d Dept. 2022]). Constructive notice will not be imputed where the defect is latent, i.e., where, the defect is of such a nature that it would not be discoverable even upon a reasonable inspection" (Lee v Bethel First Pentecostal Church of America, Inc., 304 A.D.2d 798 [2d Dept. 2003]; Ferris v. County of Suffolk, 174 A.D.2d 70 [2d Dept. 1992]). The failure to make a diligent inspection constitutes negligence only if such an inspection would have disclosed the reasonable inspection" (Lee v Bethel First Pentecostal Church of America, Inc., 304 A.D.2d 798 [2d Dept. 2003]; Ferris v. County of Suffolk, 174 A.D.2d 70 [2d Dept. 1992]). The failure to make a diligent inspection constitutes negligence only if such an inspection would have disclosed the defect (Monroe v. City of New York, 67 A.D.2d 89 [2d Dept. 1979]; see Pittel v. Town of Hempstead, 154 A.D.2d 581 [2d Dept. 1989]).
Administrative Code § 7-210, generally imposes liability for injuries resulting from negligent sidewalk repair and maintenance on the abutting property owner (McCalla v Piris-Fraser, 221 A.D.3d 69 [2d Dept. 2023]; Buonviaggio v Parkside Assoc., 120 A.D.3d 460 [2d Dept. 2014]). 34 RCNY § 2-07, however, imposes the duty of maintenance and repair of a sidewalk grate on the owner of the grate. Additionally, 34 RCNY § 2-07(b)(1)-(2) provide that the owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware and to make any necessary repairs (see also Shehata v City of New York, 128 A.D.3d 944 [2d Dept. 2015]; Flynn v City of New York, 84 A.D.3d 1018 [2d Dept. 2011]; Storper v Kobe Club, 76 A.D.3d 426 [1st Dept. 201]). 34 RCNY 2-01 includes a "sidewalk" within the definition of "street."
Exceptions to a grate owner's duty of maintenance and repair arise in instances where abutting landowner actually created the dangerous condition, made negligent repairs that caused the condition, or created the dangerous condition through a special use of the sidewalk, or violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk (Buonviaggio at 461; Crawford v. City of New York, 98 A.D.3d 935 [2d Dept. 2012]; Smirnova v. City of New York, 64 A.D.3d 641 [2d Dept. 2009]). The principle of the special use doctrine imposes liability on an abutting landowner where the landowner derives a special benefit from public property unrelated to the public's use of said property (see Kaufman v Silver, 90 N.Y.2d 204 [1997]; Breland v Bayridge Air Rights, Inc., 65 A.D.3d 559 [2d Dept. 2009]; Petty v Dumont, A.D.3d 466 [1st Dept. 2010]). Consequently, the landowner obtaining the benefit is required to maintain the property in a reasonably safe condition to avoid injury to others. (Kaufman at 207; Breland v Bayridge Air Rights, Inc., 65 A.D.3d 559 [2d Dept. 2009]; Petty v Dumont, 11 A.D.3d 466 [1st Dept. 2010]). Imposition of the duty to repair or maintain a special use located on adjacent property is necessarily premised, however, upon the existence of the abutting land occupier's access to and ability to exercise control over the special use structure or installation. (Kaufan at 208; Breland at 560; Petty at 468). This is so regardless of whether or not the private landowner installed the structure (Trustees of Village of Canandaigua v Foster, 156 NY 354 [1898]).
Here the court finds that it is undisputed that Con Edison owned the subject grate which Plaintiff fell, and that Con Edison and Plaintiff have failed to establish that Vanderbilt and Greenpoint are liable under the special use doctrine. In his EBT, Con Edison's witness Grimm testified that it is probable that the transformers in the vaults under the grate serviced multiple buildings and not just the Subject Premises. Likewise, Casoria testified that he was unsure whether the alleged vault serviced the Subject Premises since there are multiple vaults underneath the grates, or if those vaults provided electricity only to the Subject Premises and not also to other buildings. Furthermore, Casoria testified that he was unable to confirm with certainty that the vault that was listed on the CINE Report and affiliated with the Subject Premises was actually covered by the metal grate that Plaintiff tripped on. Accordingly, Con Edison and Plaintiff have failed to rebut Vanderbilt and Greenpoint's claim that it did not receive an exclusive benefit from the transformers in the vaults underneath the grate.
Grimm Dep. Page 30 lines 3-11
Casoria Dep. Page 22 lines 2-25; 23 lines 4-11; 70 lines 3-25; 71 lines 11-25; 72 6-11.
Casoria Dep. Page 66 lines 3-7.
Furthermore, as evidenced by her EBTs, Plaintiff was able to identify and mark the location of her fall on the metal grating belonging to Con Edison. Under, 34 RCNY § 2-07, the duty of maintenance and repair of a sidewalk grate and the area extending twelve inches outward from the perimeter of the hardware would be imposed on Con Edison. Both DeJesus and Casoria testified that the gap in the metal grate was a significant enough and identifiable condition that would require immediate repair. Additionally, in his EBT, Casoria testified that any defects to the grate were the responsibility of Con Edison. Moreover, DeJesus testified that on the date of the accident, while construction work was being performed on portions of the sidewalk abutting the Subject Premises, there was no work being performed on the metal grate itself. Thus, in opposition, Con Edison and Plaintiff, have failed to proffer admissible evidence that Vanderbilt or Greenpoint had either a duty to repair and maintain the grate or had access and control over repairs and maintenance of the grate. Thus, the issues of constructive notice and that Vanderbilt failed to submit inspection records for the grate, are moot.
DeJesus Dep. Page 22 lines 6-9; 23 lines 12-16. Casoria Dep. Page 18 lines 3-16; 19 lines 8-23; 38 lines 17-22; 53 lines 6-23.
Casoria Dep. Page 13 lines 3-10; 17 lines 14-20; 18 lines 3-16; 27 lines 2-17; 41 lines 21-25; 53 lines 24-25; 54 lines 2-6.
DeJesus Dep. Page 27 lines 7-15.
The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party (Curreri v Heritage Prop. Inv. Trust, Inc., 48 A.D.3d 505, 507). In order to establish a claim for common-law indemnification, a party must prove not only that it was not negligent, but also that the proposed indemnitor's actual negligence contributed to the accident, or in the absence of any negligence, that the indemnitor had the authority to direct, supervise, and control the work giving rise to the injury (Mohan v Atlantic Ct., LLC, 134 A.D.3d 1075, 1078-1079 [2nd Dept 2015]; Hart v Commack Hotel, LLC, 85 A.D.3d 1117, 1118-1119 [2nd Dept 2011]). Where a defendant's alleged liability is purely statutory and vicarious, conditional summary judgment in that defendant's favor on the basis of common-law indemnification is premature absent proof, as a matter of law, that the party from whom indemnification is sought was negligent or had authority to direct, supervise, and control the work giving rise to the plaintiffs injury (McDonnell v Sandaro Realty, Inc., 165 A.D.3d 1090, 1097-1098 [2nd Dept 2018]; Shaughnessy v Hutington Hosp. Assn., 147 A.D.3d 994, 999 [2nd Dept 2017]).
Here, the court finds that Vanderbilt and Greenpoint have satisfied its burden for entitlement to common-law indemnification.
Accordingly, it is hereby, ORDERED, that Defendants Vanderbilt Associates Owner and Greenpoint Goldman SM LLC's motion (Motion Seq. 4) for summary judgment pursuant to CPLR § 3212 dismissing Plaintiff Leslie Rosado's complaint as against them in its entirety, as well as any and all crossclaims is granted, and it is further, ORDERED that that branch of Vanderbilt Associates Owner and Greenpoint Goldman SM LLC's motion for common law indemnification against Consolidated Edison Company of New York Inc. is granted.
This constitutes the decision and order of the court.