Chamorro v 237 W. 54th St., LLC

Annotate this Case
[*1] Chamorro v 237 W. 54th St., LLC 2009 NY Slip Op 52370(U) [25 Misc 3d 1232(A)] Decided on November 12, 2009 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2009
Supreme Court, Kings County

Doris Chamorro, Plaintiff,

against

237 West 54th Street, LLC, FEDEX KINKO'S OFFICE AND PRINT SERVICES, INC., and VERIZON NEW YORK, INC., Defendants.



18345/05



For Plaintiff:

Mallilo & Grossman

163-09 Northern Blvd

Flushing, NY 11358

718-461-6633

For Defendant:

Clyde & Co US LLP

405 Lexington Avenue

New York, NY

212-710-3900

Francois A. Rivera, J.



By notice of motion filed on April 22, 2009, under motion sequence number eleven, defendant Verizon New York, Inc.(hereinafter Verizon), seeks an order pursuant to CPLR §3212 granting summary judgment in its favor on liability and dismissing the complaint. By notice of motion filed on April 21, 2009, under motion sequence number twelve, defendant 237 West 54th Street, L.L.C., (hereinafter West 54th) also seeks an order pursuant to CPLR §3212 dismissing the complaint; and an order granting it common law indemnification over and against Verizon. Plaintiff Doris Chamorro, (hereinafter Chamorro) opposes both motions.

MOTION PAPERS

Verizon's motion [*2]

Verizon's motion papers consists of an affirmation of counsel, and fourteen annexed exhibits labeled A through N. Exhibit A is plaintiff's verified complaint dated May 16, 2005, against defendants West 54th and Fedex Kinko's Office and Print Services, Inc., (hereinafter Fedex) . Exhibit B is West 54th's verified answer. Exhibit C is Fedex's verified answer. Exhibit D is plaintiff's verified complaint dated May 15, 2007 against Verizon. Exhibit E is Verizon's verified answer dated June 20, 2007. Exhibit F is an order of this court dated September 28, 2007, consolidating the instant action with the actions bearing index number 19334/2007. Exhibit G is plaintiff's verified bill of particulars in response to Verizon's demand. Exhibit H is the certified and unsigned deposition transcript of Frank Brancaccio, the area manager of Verizon, conducted on December 9, 2009. Exhibit I is the transcript of plaintiff's deposition conducted on January 30, 2008. Exhibit J is the transcript of plaintiff's deposition conducted on January 11, 2007. Exhibit K is the note of issue filed by the plaintiff. Exhibit L are copies of two color photographs of the accident site. Exhibit M are copies of two black and white photographs of the accident site. Exhibit N is Frank Brancaccio's affidavit.

Plaintiff opposes Verizon's and West 54th's motion for summary judgment with an affirmation of counsel and two annexed exhibits. Exhibit A is plaintiff's affidavit. Exhibit B is the certified and unsigned deposition transcript of Laura Mendez, a senior customer consultant for Fedex, conducted on May 2, 2007.

Verizon replies to plaintiff's opposition with an affirmation of counsel and five annexed exhibits labeled A through E. Exhibit A is an excerpt of plaintiff's deposition conducted on January 11, 2007.Exhibit B is an excerpt of plaintiff's deposition conducted on January 30, 2008.Exhibit C is an excerpt of plaintiff's deposition conducted on January 11, 2007. Exhibit D is an unsigned and uncertified excerpt of the deposition transcripts of Jose Rodriguez, conducted on May 2, 2007. Exhibit E is an excerpt of the deposition transcripts of Frank Brancaccio, conducted on December 9, 2009.

237 West 54th Street, LLC's Motion

West 54th's motion papers consist of an affirmation of counsel and eleven annexed exhibits labeled A through K. Exhibit A is plaintiff's verified complaint dated May 16, 2005. Exhibit B is plaintiff's verified complaint dated May 15, 2007. Exhibit C is West 54th's verified answer. Exhibit D is Fedex's verified answer. Exhibit E is Verizon's verified answer. Exhibit F is an order of this court dated September 28, 2007, consolidating the instant action with the actions bearing index number 19334/2007. Exhibit G are copies of six black and white photographs of the accident site. Exhibit H is the transcript of plaintiff's deposition conducted on January 11, 2007. Exhibit I is the certified and unsigned deposition transcript of Jose Rodriguez, a superintendent, conducted on May 2, 2007. Exhibit J is an order of this court dated May 30, 2008, denying Fedex's motion for summary judgment. Exhibit K is the certified and unsigned deposition transcript of Frank Brancaccio, the area manager of Verizon, conducted on [*3]December 9, 2009.

West 54th replies to plaintiff's opposition with an affirmation of counsel and an annexed excerpt of plaintiff's deposition.

LAW AND APPLICATIONOn a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). If the movant meets this burden, the party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York University, 7 AD3d 415 [1st Dept., 2004]). Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exist (Barr v. County of Albany, 50 NY2d [1960]).

"[L]iability for a dangerous or defective condition on [real] property is generally predicated upon ownership, occupancy, control or special use of the property ... Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Usman v. Alexander's Rego Shopping Center, Inc., 11 AD3d 450 [2nd Dept., 2004]).

"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it" (Starling v. Suffolk County Water Authority, 63 AD3d 822 [2nd Dept., 2009]).

A defendant who moves for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it; to sustain that burden, the defendant must offer some evidence as to when the area in question was last inspected relative to the accident (Arzola v. Boston Properties Ltd. Partnership, 63 AD3d 655 [2nd Dept., 2009]).

On motion for summary judgment to dismiss complaint in trip and fall action based upon lack of notice, defendant is required to make prima facie showing affirmatively establishing absence of notice as matter of law; this burden cannot be satisfied merely by pointing out gaps in the plaintiff's case ( Baines v. G & D Ventures, Inc., 64 AD3d 528 [2nd Dept., 2009]).

VERIZON"S MOTION

Verizon offers three arguments in support of its application for summary judgment in its favor on liability. The first is that Chamorro cannot establish that the sidewalk condition where she fell was as the result of any action or inaction by Verizon. The second is that the alleged defect is open and obvious. The third is that the condition is trivial and, therefore, not actionable.

Verizon does not contend that it did not cause the condition rather it states that plaintiff cannot prove that it caused it. Once again, the movant cannot establish this burden by merely pointing out gaps in the plaintiff's case ( Baines v. G & D Ventures, Inc., 64 AD3d 528 [2nd [*4]Dept., 2009]).

Moving to the second point, Verizon alleges that the defect is open and obvious. The open and obvious nature of an obstacle simply negates the property owner's duty to warn of a hazard; it does not eliminate the property owner's duty to ensure that its property is reasonably safe (Lawson v. Riverbay Corp. ,64 AD3d 445 [1st dept., 2009]). This point, standing alone, is therefore unavailing.

Verizon's third and final point is that the condition is trivial and not actionable. Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury (see Trincere v. County of Suffolk, 90 NY2d 976 [1997]). However, injuries resulting from trivial defects are not actionable (Hahn v. Wilhelm, 54 AD3d 896, 898 [2nd Dept., 2008). There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable; whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury (Trincere v. County of Suffolk, supra).

In determining whether a defect is trivial, the court must examine all of the facts presented, including the "width, depth, elevation, irregularity, and appearance of the defect, along with the 'time, place, and circumstances' of the injury" Trincere v. County of Suffolk, supra 90 NY2d at 978 [1997) quoting Caldwell v. Village of Is.Park, 304 NY 268, 274 [1952]).

Here, Verizon failed to make a prima facie showing of entitlement to judgment as a matter of law. Verizon's submitted two color and two black and white photographs of the accident site to demonstrate the trivial nature of the defect [exhibits L and M]. The photographs of the accident site, however, were of such poor quality, that they were insufficient to demonstrate, as a matter of law, that the alleged condition was too trivial to be actionable ( see, Berry v. Rocking Horse Ranch Corporation, 56 AD3d 711 [2nd Dept. 2008]).

WEST 54TH'S MOTION

West 54th' motion was also premised on the alleged trivial nature of the defect. In support of this contention, it submitted six black and white photographs to demonstrate the trivial nature of the defect [exhibits G]. The photographs of the accident site, however, were of such poor quality, that they were insufficient to demonstrate, as a matter of law, that the alleged condition was too trivial to be actionable. ( see, Berry v. Rocking Horse Ranch Corporation, 56 AD3d 711 [2nd Dept. 2008]). Therefore, West 54th has also failed to make a prima facie showing of entitlement to judgment as a matter of law.

West 54th also seeks an order granting summary judgment in its favor for common law indemnification over and against Verizon. On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). An examination of West 54th's pleading reveals that it has plead two affirmative defenses against the plaintiff and has not plead any cross-claims for indemnification against Verizon. The movant cannot be granted summary judgment on a cause of action that has not been plead. "In order to establish their claim for common-law indemnification, the owners were required to prove not [*5]only that they were not negligent, but also that the proposed indemnitor was responsible for negligence that contributed to the accident ..." (Benedetto v Carrera Realty Corp., 32 AD3d 874, 875 [2nd Dept., 2006]).

Furthermore, at this stage, West 54th did not claim or demonstrate that Verizon was negligent and that it was free of negligence.

Verizon's and West 54th's motions for summary judgment are both denied.

The foregoing constitutes the decision and order of this court.

 1;x

J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.