Opinion
2014-05-8
Devlon WILLIAMS, Plaintiff–Appellant, v. ESOR REALTY CO., et al., Defendants, C.L.B. Check Cashing, Inc., Defendant–Respondent.
Codelia & Socorro, P.C., Bronx (Peter R. Shipman of counsel), for appellant. O'Connor Redd, LLP, Port Chester (Amy Lynn Fenno of counsel), for respondent.
Codelia & Socorro, P.C., Bronx (Peter R. Shipman of counsel), for appellant. O'Connor Redd, LLP, Port Chester (Amy Lynn Fenno of counsel), for respondent.
SAXE, J.P., MOSKOWITZ, FREEDMAN, GISCHE, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered October 4, 2012, which, insofar as appealed from, granted the motion of defendant C.L.B. Check Cashing, Inc. (C.L.B.) for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered June 13, 2013, which, insofar as appealable, denied plaintiff's motion to renew, unanimously dismissed, without costs, as academic.
Defendant tenant C.L.B. failed to establish its entitlement to judgment as a matter of law in this action for personal injuries allegedly sustained by plaintiff when he slipped and fell on a sheet of ice on a private sidewalk located adjacent to C.L.B.'s check cashing store. C.L.B. was located within a lot that also contained a gas station and the alleged cause of the icy condition was water leakage from a drainpipe that ran down the side of the building within which C.L.B. was located.
It is well established that a tenant owes a common-law duty of reasonable care to maintain the demised premises in a reasonably safe condition, independent of any obligation that might be imposed by the existence of a lease ( see DeMatteis v. Sears, Roebuck and Co., 11 A.D.3d 207, 208, 782 N.Y.S.2d 261 [1st Dept.2004];Zito v. 241 Church St. Corp., 223 A.D.2d 353, 355, 636 N.Y.S.2d 40 [1st Dept.1996] ). The fact that nonparty C.L.B.#6 Inc. (C.L.B.#6) was required to maintain the sidewalk under its lease with the landlord is irrelevant to C.L.B.'s common-law duty to maintain the demised premises ( see DeMatteis, 11 A.D.3d at 208, 782 N.Y.S.2d 261;Chadis v. Grand Union Co., 158 A.D.2d 443, 550 N.Y.S.2d 908 [2d Dept.1990] ). Additionally, whether a gas station was also a tenant of the premises is also irrelevant to C.L.B.'s duty ( see Chadis at 444, 550 N.Y.S.2d 908). Because C.L.B. never produced the lease between itself and C.L.B.#6, which might reflect whether the subject sidewalk was part of the demised premises, it failed to establish prima facie that it owed no duty to maintain the subject sidewalk ( cf. Vivas v. VNO Bruckner Plaza LLC, 113 A.D.3d 401, 978 N.Y.S.2d 150 [1st Dept.2014] ).
C.L.B. also failed to establish that it did not create the condition, as it did not submit any evidence showing that it was not the party that installed the subject drainpipe, which allegedly created the icy condition ( see DeMatteis, 11 A.D.3d at 207, 782 N.Y.S.2d 261). Contrary to C.L.B.'s contention, it may reasonably be inferred from plaintiff's testimony and the photographs submitted that the icy condition was attributable to leakage from the pipe ( see Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564, 568, 923 N.Y.S.2d 81 [1st Dept.2011] ). C.L.B. also did not satisfy its burden of establishing lack of constructive notice, as it did not submit any evidence from a store employee showing that employees regularly inspected the sidewalk ( id. at 567, 923 N.Y.S.2d 81). In any event, plaintiff raised a triable issue of fact as to constructive notice by submitting the photographs and his testimony showing that a layer of ice had formed over the entire section of the sidewalk on which he slipped ( id.; Taylor v. Bankers Trust Co., 80 A.D.2d 483, 487–488, 439 N.Y.S.2d 138 [1st Dept.1981] ).
C.L.B.'s argument that plaintiff's negligence in walking on the ice despite having observed it was the sole proximate cause of the accident, is unavailing. The evidence shows that plaintiff did not have a safe alternative route around the ice ( compare Thomas v. City of New York, 16 A.D.3d 203, 790 N.Y.S.2d 663 [1st Dept.2005] ).