Correa-Richardson v Metropolitan Transp. Auth.

[*1] Correa-Richardson v Metropolitan Transp. Auth. 2011 NY Slip Op 51516(U) Decided on July 26, 2011 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2011
Supreme Court, New York County

Ivelisse Correa-Richardson and DEREK RICHARDSON, Plaintiff,

against

Metropolitan Transportation Authority, S3 TUNNEL CONSTRUCTION AJV, a joint venture between SKANSKA USA CIVIL, INC., J.F. SHEA CONSTRUCTION, INC., INC, SCHIAVONE CONSTRUCTION CO., INC., SKANSKA USA CIVIL INC., J.F. SHEA CONSTRUCTION, INC., SCHIAVONE CONSTRUCTION CO., INC., MAJOR SEWER & WATER CONTRACTORS, INC., OCEAN AQUAMARINE CORP., Individually and d/b/a TACO BELL, PAUL AND NANCY ARZANIPOUR LLC, CITY OF NEW YORK, AND NEW YORK CITY TRANSIT AUTHORITY, Defendants.



116034/2008

 

For Plaintiffs

Stacey Haskel, Esq.

Law Offices of Michael S. Lamonsoff, PLLC

80 Maiden Lane, 12th Fl

New York, NY 10038

(212) 962-1020

For defendant Paul and Nancy Arzanipour LLC

Lee-David Weiner, Esq.

Russo, Keane & Toner, LLP

33 Whitehall St, 16th Fl

New York, NY 10004

(212) 482-0001

For defendant Ocean Acquamarine Corp.

Otto Cheng, Esq. Milber Makris Plousardis & Seiden, LLP

3 Barker Avenue, 6th Fl

White Plains, NY 10601

(914) 681-8700

For defendants Metropolitan Transportation Authority, S3 Tunnel Construction AJV, a joint venture between Skanska USA Civil, Inc., J.F. Shea Construction, Inc., Inc, Schiavone Construction Co., Inc., Skanska USA Civil Inc., J.F. Shea Construction, Inc., Schiavone Construction Co., Inc., City of New York, and New York City Transit Authority:

Thomas A. Noss, Esq.

Lester Schwab Katz & Dwyer, LLP

120 Broadway

New York, NY 10271

(212) 964-6611

Michael D. Stallman, J.

In this personal injury action, plaintiff Ivelisse Correa-Richardson alleges that, on December 11, 2007, she fell while exiting a Taco Bell restaurant located at 1825 Second Avenue in Manhattan. Correa-Richardson asserts that, while taking the first step out of the Taco Bell restaurant with her left foot, her left foot landed on a wooden cover in the sidewalk outside and twisted, causing her to fall.

Correa-Richardson and her husband, who asserts a derivative cause of action, commenced this action against the owner of the premises, defendant Paul and Nancy Arzanipour LLC; against the tenant that operates the Taco Bell restaurant, defendant Ocean Aquamarine Corp.; against the contractors that allegedly performed construction work on the sidewalk in connection with the Second Avenue subway construction project;[FN1] against the Metropolitan Transportation Authority and New York City Transit Authority; and against the City of New York.

Paul and Nancy Arzanipour LLC (Arzanipour), the owner, moves for summary judgment dismissing the action as against it (Motion Seq. No. 005). Ocean Aquamarine Corp. (Ocean/Taco Bell), the tenant, separately moves for summary judgment dismissing the action as against it (Motion Seq. No. 006). All the other defendants (collectively, MTA/S3) cross-move for summary judgment dismissing the complaint as against them. Plaintiffs oppose the motions and the cross motion.

This decision address both motions and the cross motion.

DISCUSSION

The standards of summary judgment are well settled. [*2] "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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action."

(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986][internal citations omitted].)

At her deposition, Correa-Richardson testified that, on December 11, 2007, during her lunch break, she went to the Taco Bell restaurant on Second Avenue, between East 94th Street and East 95th Street. (Weiner Affirm., Ex D [Correa-Richardson EBT], at 77.) She testified that she had entered the restaurant, had ordered her lunch, had eaten some of it, and was leaving the restaurant with a drink in her hand and leftovers. (Id. at 90.) According to Correa-Richardson, she took her first step out of the Taco Bell restaurant with her left foot, which landed on "a square piece . . . [s]ome type of lid, covering." (Id., at 8-9.) She stated, "I stepped onto it and that is how I fell" and "That first step, my ankle just twisted like that and I ended up falling. As soon as I stepped on that thing." (Id. at 8, 94.) Correa-Richardson stated, "I think because it made my step unlevel." (Id. at 36.) She also testified that she had seen this square piece beforehand when she entered the Taco Bell restaurant. (Id. at 95.)

MTA/S3 admit that employees of Skanska, a construction company performing work on the Second Avenue subway project (and one of the MTA/S3 defendants), installed the square piece of plywood in the sidewalk, based on the deposition testimony of Ronald Knott, an employee of Skanska USA Civil Northeast. (Noss Affirm. ¶ 7; Cheng Affirm., Ex G [Knott EBT, at26].) The plywood covered a hole that had been drilled to allow concrete and grout to fill in basement voids under the street, which fill provided stability and shoring to businesses along Second Avenue, while excavation proceeded in the middle of the Avenue (Noss Affirm. ¶ 7.) According to an incident report shown to Knott at his deposition, the piece of plywood was "chamfered," which Knott explained as "cut on an angle on the edges of the plywood on all four sides," "so that it's not a firm edge so people can trip on." (Knott EBT, at 67-68.)

Arzanipour and Ocean/Taco Bell both argue that they have no liability because they did not cause or create the condition that allegedly caused Correa-Richardson to fall. Correa-Richardson argues that Arzanipour owed her a duty of care by virtue of Section 7-210 of the Administrative Code of the City of New York, and a non-delegable duty to keep the premises reasonably safe. She further argues that Ocean/Taco Bell had a duty to warn and a duty to keep the premises reasonably safe as well.

Under well-accepted principles of common law existing prior to 2003, a municipality, not an abutting landowner, was generally liable for injuries resulting from dangerous and defective conditions of public sidewalks. (Roark v Hunting, 24 NY2d 470, 475 [1969].) The owner or occupier of abutting property owed no duty under common law to keep the sidewalk in a safe [*3]condition. (Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d 725, 726 [2d Dept 2003].)[FN2] However, abutting landowners (or lessees) would become liable where the sidewalk was constructed in a special manner for their benefit; where they affirmatively caused the defect; where they negligently constructed or repaired the sidewalk; or where a local ordinance or statute specifically charged them with a duty to maintain and repair the sidewalks, and imposes liability for injuries resulting from the breach of that duty. (Hausser v Giunta, 88 NY2d 449, 453 [1996]; Roark v Hunting, 24 NY2d 470, supra.)

Effective September 14, 2003, Administrative Code § 7-210 shifted responsibility for sidewalk maintenance and liability for injuries arising from a defective sidewalk, from the City of New York to the owner of the real property which abuts the defective sidewalk, with several exceptions not relevant here. Administrative Code § 7-210 (a) states, "It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition."[FN3] "Section 7-210 does not define the term sidewalk. . . .'" (Vucetovic v Epsom Downs, 10 NY3d 517, 521 [2008].) However, as Arzanipour indicates, the Appellate Division, Second Department ruled that "plywood boards affixed to the sidewalk by NYCTA [the New York City Transit Authority] were not part of the sidewalk' for purposes of liability under Administrative Code § 7-210," citing Vucetovic. (Smirnova v City of New York, 64 AD3d 641, 642 [2d Dept 2009].) The Court agrees with Arzanipour that Smirnova is controlling. Put somewhat differently, when the City, a public authority, or a contractor working for one of them places such construction-related fixtures on the sidewalk, the abutting landowner is not responsible for maintaining them.

MTA/S3 argue that Smirnova is distinguishable because the plywood cover in Smirnova covered a grate, and courts have ruled that the owner of a sidewalk grate, rather than the abutting premises owner, is responsible for maintenance and repair of the sidewalk grate and any defects contained within a 12-inch zone around the grate, pursuant to the Rules of New York City Department of Transportation Highway (34 RCNY) § 2-07. (Hurley v Related Management Co., 74 AD3d 648, 649 [1st Dept 2010]); see also Cruz v New York City Tr. Auth.,19 AD3d 130, 131 [1st Dept 2005].)

MTA/S3's reliance upon 34 RCNY § 2-07 to distinguish Smirnova from this case is misplaced. 34 RCNY § 2-07 applies not only to grates installed in a sidewalk, but also to covers installed in a sidewalk. Section 2-07 (b) (1), states, "The owners of covers or gratings on a street are [*4]responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware." (emphasis supplied.) "Notably, 34RCNY 2-01 expressly defines the term street' as including a sidewalk.'" (Cruz,19 AD3d at 131.) Here, MTA/S3 admits that the plywood square "covered a hole that had been drilled to allow concrete and grout to fill in basement voids under the street . . ." (Noss Affirm. ¶ 7.)

Therefore, the plywood square cover installed in the sidewalk in this case was not part of "sidewalk" that the abutting property owner had a duty to maintain in reasonably safe condition pursuant to Administrative Code § 7-210.To the extent that MTA/S3 argues that King v Altom Properties, Inc. (16 Misc 3d 1125 [A][Sup Ct, Kings County 2007]) supports their argument that the property owner has the duty to maintain an object imbedded in the sidewalk, Smirnova is controlling.

Because the plywood cover is not part of the "sidewalk" under Administrative Code § 7-210, and because the owner has no duty under the common law to maintain the abutting sidewalk, except in cases which do not apply here, Arzanipour is granted summary judgment dismissing the action as against it. It is unnecessary for the Court to address Arzanipour's and MTA/S3's conflicting contentions as to whether MTA/S3 removed the original sidewalk abutting the entrance to the Taco Bell restaurant. The Court does not consider MTA/S3's unauthorized Affirmation in Sur-Reply.

Dismissal of the complaint as against Arzanipour necessarily results in dismissal of the cross claims of the co-defendants against Arzanipour seeking contribution and common-law indemnification and contribution, and results in dismissal of Arzanipour's own first cross claim against co-defendants for common-law indemnification and contribution.

It is undisputed that Ocean/Taco Bell, the tenant, did not create the condition, i.e., install the plywood cover. Plaintiffs fail to raise a triable issue of fact as to whether Ocean/Taco made a "special use" of the sidewalk where the plywood cover was installed. There is no evidence that Ocean/Taco Bell "derive[d] a special benefit from that [public property] unrelated to the public use." (Kaufman v Silver, 90 NY2d 204, 207 [1997].) Contrary to plaintiffs' argument, "Provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as plaintiff." (Collado v Cruz, 81 AD3d 542, 542 [1st Dept 2011].)

The Court rejects plaintiffs' argument that Ocean/Taco Bell had a duty to warn Correa-Richardson of the plywood square. "While property owners and business proprietors have a duty to maintain their premises in reasonably safe condition, which duty includes eliminating, protecting against, or warning of dangerous, defective, or otherwise hazardous conditions, there is no duty to protect or warn against conditions that are in plain view, open, obvious, and readily observable by those employing the reasonable use of their senses.'"

(Pinero v Rite Aid of New York, Inc., 294 AD2d 251, 252 [1st Dept 2002][internal citations omitted], affd 99 NY2d 541 [2002]; see also Tagle v Jakob, 97 NY2d 165, 169 [2001]["a landowner has no duty to warn of an open and obvious danger']; Rivas v Crotona Estates Hous. Dev. Fund Co., Inc., 74 AD3d 541 [1st Dept 2010].) Here, plaintiff testified at her deposition that she had seen this square plywood cover before she entered the Taco Bell restaurant. (Id. at 95.) The photos of the plywood square that are part of the record depict an open an obvious condition. (Weiner Affirm., Ex K; Haskel Opp. Affirm., Ex A.) Therefore, Ocean/Taco Bell is granted summary judgment [*5]dismissing the action dismissing the action as against it.

Dismissal of the complaint as against Ocean/Taco Bell necessarily results in dismissal of the cross claims of the co-defendants against Ocean/Taco Bell seeking contribution and common-law indemnification and contribution, and in dismissal of Ocean/Taco Bell's own cross claims against co-defendants for common-law indemnification and contribution.

As to MTA/S3's cross motion, they argue that any alleged defect of the square plywood cover is trivial, When asked at her deposition to "estimate how much of a raised edge there is" on the plywood square, Correa-Richardson'answered, "I have no idea. May be an inch, I don't know." (Correa-Richardson EBT, at 36.) MTA/S3 also point out that Correa-Richardson testified that, when she stepped down with her left foot onto the plywood cover, "it appeared to be solid, not moving;" and that she did not feel the wooden cover move in any way.(Id. at 95-96.)

MTA/S3 have not their prima facie burden of establishing that any defects of the plywood cover were trivial as a matter of law.[FN4] The measurement of the height of the edge of the cover is based on Correa-Richardson's guess. In any event, "[w]hether a defect in a sidewalk or step is trivial is generally a matter for a jury, and a mechanistic disposition of a case based exclusively on the dimension of the ... defect is unacceptable.'" Dominguez v OCG, IV, LLC, 82 AD3d 434, 434 [1st Dept 2011], citing Trincere v County of Suffolk, 90 NY2d 976, 977—978 [1997].) Therefore, MTA/S3 are not entitled to summary judgment dismissing the complaint as against them.

Finally, so much of plaintiffs' first cause of action that alleges that defendants are liable based on a violation of "title 23 of the NYCRR § 1.7" (Werner Affirm. Ex D [Bill of Particulars ¶ 19]) is dismissed. 12 NYCRR 23-1.3 states, "This Part (rule) [Part 23] applies to persons employed in construction, demolition and excavation operations, to their employers and to the owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work. This Part (rule) also applies to persons lawfully frequenting the areas of construction, demolition and excavation operations."

12 NYCRR 23-1.4 (b) (39) defines "persons lawfully frequenting" as "[a]ny person exercising a lawful right of presence or passage in an area." However, as MTA/S3 point out, because Correa-Richardson was not an "employee" or "employed" at this site, was not a "mechanic, workingman or laborer working for another for hire" (Labor Law § 2 [5]), nor one "permitted or suffered to work" (Labor Law § 2 [7]) at the place where accident allegedly occurred, she "cannot be considered to have been within the class of persons employed therein or lawfully frequenting' the premises entitled to the protection afforded by the "flat and unvarying duty" imposed by the Labor Law." (Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577 [1990].) Therefore, Part 23 of the Industrial Code does not apply to Correa-Richardson.

CONCLUSION

Accordingly, it is hereby

ORDERED that the motion for summary judgment by defendant Ocean Aquamarine Corp., individually and d/b/a Taco Bell (Motion Seq. No. 005) is granted, the complaint is severed and [*6]dismissed as against this defendant with costs and disbursements to this defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; , and it is further

ORDERED that the motion for summary judgment by defendant Paul and Nancy Arzanipour LLC (Motion Seq. No. 006) is granted, the complaint is severed and dismissed as against this defendant with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of defendants Paul and Nancy Arzanipour LLC, and Ocean Aquamarine Corp., individually and d/b/a Taco Bell, accordingly; and it is further

ORDERED that the cross claims of defendant Ocean Aquamarine Corp., individually and d/b/a Taco Bell's cross claims against all co-defendants are dismissed; and it is further

ORDERED that the first cross claim of defendant Paul and Nancy Arzanipour LLC is dismissed against all co-defendants is dismissed; and it is further

ORDERED that the cross motion for summary judgment by Defendants Metropolitan Transportation Authority, S3 Tunnel Construction AJV, a joint venture between Skanska USA Civil, Inc., J.F. Shea Construction, Inc., Inc, Schiavone Construction Co., Inc., Skanska USA Civil Inc., J.F. Shea Construction, Inc., Schiavone Construction Co., Inc., City of New York, and New York City Transit Authority, is granted only to the extent that so much of plaintiffs' first cause of action that alleges that defendants are liable based on a violation of "title 23 of the NYCRR § 1.7" is dismissed; and it is further

ORDERED that the remainder of the action shall continue.

Dated: 7/26/11New York, New YorkENTER:

/s/

J.S.C. Footnotes

Footnote 1: According to Arzanipour, the action was discontinued as against defendant Major Sewer & Water Contractors, Inc.

Footnote 2: Accordingly, contrary to plaintiffs' argument, the abutting public sidewalk is not within the scope of the owner's common-law duty to maintain the "premises" reasonably safe, because the abutting public sidewalk is not part of the owner's "premises."

Footnote 3: "Prior to the adoption of section 7-210, property owners in New York City had a statutory duty both to install, construct, repave, reconstruct and repair the sidewalk flags in front of or abutting such property' and to remove the snow or ice, dirt, or other material from the sidewalk.' Failure to comply with these directives resulted in fines or an obligation to reimburse the City for its expenses incurred in performing the necessary work, but not tort liability."

(Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 519-520 [2008].)

Footnote 4: Nothing in the Court's discussion of MTA/S3's argument should be construed as a finding that the square plywood cover had, in fact, a defect.