Pichardo v 701 W. 180th St., L.L.C.
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Pichardo v 701 W. 180th St., L.L.C. 2012 NY Slip Op 30713(U) March 20, 2012 Supreme Court, New York County Docket Number: 108091/09 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 312312012 [* 1] - ~ . . - . Index Number : 10809112009 I I PICHARDO, ONNY vs . 701 W180TH STREET 1.1.C. L I I I I 'I I I MAR 23 2012 ~ [* 2] Supreme Court of the S a e of New York tt County of New York: Part 10 X -I - ----1----- DecisionlOrder Index No.: 108091/09 Seq. No. : 003,004 ONNY PICHARDO, Plaintiff, -against- 701 W 180TH STREET, L.L.C. and CITIBANK, N.A., Present: Hon. Judith J. G ische J.S.C. Defendants. -----X Recitation, as required by CPLR 2210 [a], o the papers considered in the review of this f (these) motion@): --__________I___________m___r Sen 003 (by: Citibank, N.A.) Defs n/m [3212] SAM affirm, exha. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2 w/ Pltf s opp. w/ JB affirm, OP amid, exhs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Defs reply w/ SAM affirm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FILED Sea 004 (by: 701 W f8Mh Street, LLC) D e f s nlm [3212] w/ PHP affirm, exhs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2 PWps opp.w/ JBaffirrn, EP afftd, exhs. . . . . . . . . . . . . . . . MAR- 2 3 2012- - - . .* 3 m * v I Defsopp. wlSAM affirm, exhs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 Def B reply wlPHP affirm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~~ -- NEW YORK _____________-__II- --mwCmKSQF. ¬lGL ___-- Hon. Judith J. Gische. J.S.C.: Upon the fomguing papers, the decision and order of the court is as follows: This i a negligence action arising from a trip and fall in which plaintiff, Onny s Pichardo ( Pichardo or plaintiff ),allegedly sustained personal injuries. Defendants are 701 West 180th Street, LLC ( 701 ) and Citibank, N.A. ( Citibank ) (collectivety defendants ). Issue has been joined and derendants now separately seek summary judgment dismissing plaintiffs claims against them. Plaintiff opposes both motions. Since - Page 1 of I 1 - [* 3] these motions were timely brought after plaintiff filed his note of issue, they Will be considered on the merits. CPLR 5 3212, Brill v. City of New York, 2 N.Y.3d 648 (2004). The motions are consolidated for consideration and determination in this single decisiodorder that follows. Summary of the Facts The following facts are undisputed unless othenvise indicated: Onnv Pichardo Plaintiff was deposed and at his examin8atIon before trial ("EBT) testified that he sustained injuries as a result o a trip on a broken sidewalk, at 1:00 am on October 15, f 2007, while walking uptown on Broadway, between 180'" and 181" Street. PlaintifTs right foot tripped, then his right hand went fowmrd onto the ground, then his upper bcdy went forward onto the ground. He described the broken sidewalk as follows: "It has plenty of broken pieces [of glass], one sidewalk was lower that the other sidewalk, like an inch higher, that caused me to trip." Plaintiff Identtfled a Citibank branch on the side of the street where he fell, estimating he was about eight feet from the storefronts to his left. After he fell, plaintiff looked to where he fell and noticed that the sidewalk was broken and that there was broken glass on the sidewalk. Plaintiff attributed the cause of his fall to the broken sidewalk. At the EBT, plaintiff identified photographs of the alleged defect taken by his lawyer, demonstrating a height differential of approximately an inch, with jagged edges. (Def. Ex. B, C.) Plaintiffdescribed the broken glms as follows: "it was like the bottom part, you see the bottom part of the4t's like thick, the bottom part of a bottle...like haif of It and little pieces." [* 4] Although present in the photographs, plaintiff testified that the tables and bins shown on the photographs, marked as Defendant s Exhibit I at the deposition, were not present was the time of his accident. Nor was there any garbage placed for pickup by the Sanitation Department at the time of the alleged fall, On the evening of the alleged accident, Plaintiff was walking home from a school party at a church, with his brother, sister and girlfriend. The traffic was to his right and his companions were to his left. Plaintiff was not under the Influence of an substance, the weather was clear and there was no rain. Plaintiff described the evening as being dark, scrmewhere between pitch black and broad daylight, because there was light illuminating from the Citibank. Savatino Paqano Savatino Pagano, a fleld managerfor JoaiisLang LaSalle (a management company that does maintenance work for Citibank), testifilsd on behalf of Citibank. Mr. Pagano was not the field manager of the Citibank branch at issue at the time of the alleged accident. Maintenance of the premises was conducted as a quarterly inspection and consisted of visiting the branch, iooking to see ifthere i anything unusual involving inspecting lights, s deaning, and repairs. and also included inspecting the sidewalk in front of the buildingMr. Pagano did not know whether the sidewalk, as depicted in pictures, looked different from his inspections of the premises. At the time his deposition was taken, Mr. Pagano had only twice visited this Citibank location. Prior to his deposition, Mr. Pagano asked one of his affiliates, Tito Mesias, to search the records for this Citlbank, but no records of repair were found for that location. However, Mr. Pagano did not know what records Mr. Mesias searched, nor what period of time was used for the record search. -Page3of 11 - [* 5] Tito Mesias Citibank provided the affidavit of Tito MeEdas, in which he states, that there were no sidewalk repairs on the premises prior to plaintiffs accident and that Citibank has no record of any other accidents or complaints pertaining to the sidewalk. lkdamkm Nelson Lora works for Stellar management ('Stellar") as a superintendent for 701 West 180* Street. Mr. Lora has been the superintendent for the building for over 14years, including on the date of the alleged accident. He stated that in those 14 years he did not see anything wrong, ie. "big holes o anything like that," on the sidewalk on Broadway. He r admitted that he looked over the sidewalk in front of the entrance for residential tenants, on West 180'"S r e , t e t occasionally, to see if It neaded repairwork. The residential entrance was not, however, where plaintiff claims to have fallen. According to Mr. Lora, it was not his responsibility to dean the Broadway portion of the building. He stated that each business owner was responsible for cleaning the front sidewalk outside its storefront. Street side of the Although there was repair work done to the sidewalk on the West 180th building, Mr. Lora testified that the work did not extend onto the Broadway side. Mr. Lorn claimed he did not know anything about the October 13, 2007 alleged accident. Edward Pichar& Edward Pichardo is the plaintiffs brother and a non-party witness in this matter. According to Edward, the accldent occurred "between Citibank and the Chinese place that was there.* He attributed the cause of the plaintiff's accident to the sidewalk being *messed up, cracked up, some holes." Edward did not remember seeing any garbage on the sidewalk or on the curb at the time of the accident. Although there was broken glass - Page 4 of 11 - [* 6] bottle on the sidewalk, he did not notice it until after plaintiff fell. Edward testified that on a number of occasions he'd noticed that the sidewalk was defective, and that this same defect that has 'been there for years" caused plaintiff to fall. Furthermore, Edward testified that he witnessed another person fall on thesidewalk defect approximately one year before plaintiff did. Summary of the Arguments 101 West lWh t r a S 701 claims that it is entitled to summary judgment dismissing all plaintiffs claims and all cross claims asserted against it because: [l] plaintiff and defendant testified that both the portion of the unsafe sidewalk is Imated on Cltibank's property, [2] the defective sidewalk was not the proximate cause of the injury, and [3] 701 did not have notice of any dangerous condition, nor did it create any dangerous conditionwhich caused this accident. Citibank Citibank claims that It is entitled to surnmaryjudgmant dismissfng all plalntlffs claims and all cross claims asserted against it because [l] evidence demonstrates that there the was no theory of liability upon which the plaintilT can prevail and that there is no issue of fact to present to the trier o fact in this case:[Z] alleged defect is trivial in nature, and f the thus, not actionable; 131 the condition on the sidewalk was not the proximate cause of plaintiffs InJurias and merely furnished the condition for the alleged accident; and [4] Citibank did not have notice ofany dangerous condition, nor did it create any dangerous condition which caused this accident. Plaintiff Plaintiff claims that Citibank has failed to meet its burden [j] as the movant for -PageSofll- [* 7] summary judgment; 13 of proving that it didn t have notice of the defective condition; [3] 2 that the sidewalk defect was de minimus; arid [4] that the sidewalk defect was the proximate cause of plaintiffs injurles. Plaintiff claims that 701 has also failed to meet its burden 88 movant for summary judgment because there are outstanding questions of fact [l] as to whether the sidewalk defect which caused plaintiff to trip and fall wa!r abutting the Citibank branch or abutting Golden Star, the Chinese restaurant located in the 701 building on the Broadway side, [Z] as to whether 701 had the duty of maintaining the sidewalk located on the Broadway side, and [3] that the broken glass also present on the sidewalk was not a superseding muse ofplaintiffs injuries under New York law and thalt would relieve defendants of their liability arising from thelr negligent maintenance of the sidewalk. Dlscusslon A movant seeking summary judgment in its favor must make a prima fade showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Wjnearaid v. New York Univ. Med. .; 64N.Y.Zd 851, 853 (1985). Since here the moving parlies are the defendants, to prevail on its motion, each one must establish its defenses as a matter o law. Friends of Animals v, f Associated Fur Mfrs., 48 N.Y.2d 1065 (1979). Only if defendants meet this initial burden does it then shift to the opponent (here, plaintiff) who then must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial, and therefore, the denial of defmdant s motion. Zuckerrnar, v. Citv of N ew York, 49 N.Y.2d 557 (1980). This motion is predicated primarily on three defenses. The first defense,raised only by Citibank, is that any defect in the sidewalk where plaintiff fell is too trivial to be Page6 of 11 - [* 8] actionable, and therefore, there is no issue of fact for the jury to decide. W u s v, Narndor. lnc., 48 A.D.3d 373 (1st Dept. 2007); Britt0 v Great Atl. & Pac. Tea Go.. Inc., 21 A.D.3d 436,436(2d Dept. 2005); CQrradov, Citv of NeW YO&, 6 A.D.3d 380 (2nd Dept. 2004). The second defense mounted by both defendants is that they dld not create, nor have notice of, a dangerous condition on the sidewalk in front of its building. Seclretti v. $horensbjn Companv East, LP, 256A.D.2d 234 (1stOept 1998); Britto v Great At1. & Pac. Tea Co,. InL, 21 A.D.3d 436,430 (2d Dept. 2005). The third defense postulated is that it was not foreseeable that plaintiff, upon tripping, would cut his hand on the glass strewn on the sidewalk. Derdiarian v. Felix C9ntr. C Q ~ P N.Y.2d 308,315(1980); Boden ., 51 'ckv. RY Manasement Co., Inc., 71 A.D.3d 144, 147 (1st Dept. 2009). TtMal Defect While differences in elevation on a sidewalk of approximately one inch have been held by the First Departmentto ke non-actionablle (IMorales v. Riverbav Gorp., 226 A.D.2d 2 1 [ 1st Dept. 19961). there is no minimal dimension test or "per se rule"that would render 7 a hole or defect of a certain size either actionable or inactionable, as a matter of law (Jrincere v. Countv Qf $lrffQlk 90 N.Y.2d 976 [1W7]), When deciding whether a sidewalk I defect is actionable, the courts have considered the particular facts and circumstances of each case, including the wldth, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstanceof the injurythat is alleged. Tn 'ncerev. Counhr of S~~ffolk, N.Y.2d at 977 and 90 978;Mlarcw v. Namdor. Inc., 46A.D.3d at 374. Though photographs of the alleged defect may be insuflicient to demonstrate that, as a matter of law, the defect is too trivial to be actionable, they may be examined by the court to see if there are factual disputes to be tried. Corrado v, Citv of New York, 6 A.D.3d 380 (2nd -Page 7of 11 - [* 9] Dept. 2004). UNmately, "whether a dangerous crrdefective condition exists an the property of another so as to create liability depends on the particular facts and circumstances of each case and is generally a question of fact for the jury (Trlncere v Countv of Suffolk, 90 N.Y.2d at 977 [internal quotation marks and citation omitted]). Citibank has failed to prove that the defect in the sidewalk is so trivial that it is inactionable. Plaintiff has provided photographs depicting the crack as at least an inch deep and is approximately a few feet wide. Defendant offers no affirmative measurements of the crack. The crack is easily visible in the photographs that both plaintiff and defendant have attached to their moving and reply papers. These are the same photos that defendant asked plaintiff questions about at his deposition. Closeup photos show an irregular, jagged edge to the crack running perpendicular to the direction that plaintiff was walking in when the accident occurred. A reasonable jury could conclude that the crack or crevice was deep enough to cause plaintiff to trip. Therefore, not only has Citibank failed to prove its entitlement to summary judgment as a matter of law, but even ifit dld, there i a factual dispute that must be put to the jury to decide. s The First Department has consistently slated that : A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstanms, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk (Bassov, Miller,40 N.Y.2d 233,241 [1976];Branhamv. Loews Omheurn Cinemas. Inc, ,31A.D.3d 319,322 [lst Dept. 20061, 8Hd. 8 N.Y.3d 931 [2007]).In order to recover damages for an alleged breach of this duty, the pkiintiff must first demonstrate that t h e defendant created or had actual or constructive notice of the hazardous condition which precipitated the injury peck v. J.J.A. HQIdins Gorp,, 12 A.D.3d 238,240 [lst Dept. 20041, -Page8of11 - [* 10] Iv. denied 4 N.Y.3d 705 [2005]).The plaintiff must also show that the defendant's negligence was a proximate cause of the injuries. To do so, the negligence must be a substanthl cause of the events which produced the injury perdiarian v. Felix Contr. Corn. , 5 1 N.Y.2d 308,315 1[1980J). Boderid v. RY Manaqement Go.. Inc., 71 A.D.9d 144, 147 (1st Dept. 2009). Viewing the evidence in the light rnosl: favorable to plaintiffs and drawing all reasonable inferences in their favor (Boderick v. RY Marlammgnt Co., Inc., 71 A.D.3d 144, 147 (Ast Dept. 2000)citing Bovd v. Rome Realtv Leasinq Ltd. Partnership, 21 A.D.3d g20, 921 [2005]), Court finds that there are triable issues o fact as to whether defendants the f had notice of the defective sidewalk, and whether their failure to maintain the sidewalk in a safe condition proximately caused the plaintifts' injuries. Although there is no evidence of complairits (actual notice) to Citlbank or 701 about the crack prior to the date of the accident, the defendants have failed to provethat they did not have constructive notice of a dangerous corrdition. First of all, it is not important (for the purposes of this motion) whether the crack is directly in front of Citibank or somewhere between the two stores which are at street level. Defendants have a nondelegable duty to maintain the sidewalk area in front of its building in "a reasonably safe condition." NYC Admln. Code 5 7-210 (a), (b). Furthermore, the Chinese restaurant is a tenant of 701 (also known as 4727 Broadway) and the Citibank atr branch is located at 4728 Broadway. No testimony or documents proffered in this m t e by the defendants have refuted plaintiff and Edw,ardPichardo'stestimony that the Incident occurred between the two properties. The photographs that the parties have atlached to their motions show a crack that is fairly wide and visible at a distance. Although evidence has been introduced, through -Page 9 of '11 - [* 11] the testimony of Savatino Pagano and affidavit of Tito Mesiag,that the sidewalk in question was inspected quarterly by the maintenance and management company of Citibank,there is no evidence that the crack was not present prior to plaintiffa accident. The deposition of Mr. Lora, the superintendent of 701, does not concluslvely establish that the crack was not present prior to plaintiffs accident since he does not inspect or maintain that side of the building. In any event, plaintiff and Edward Pichardo s testimony and affidavits raise a triable issue of fact whether the defendants kept the sidewalk area in front of its building in a reasonably safe condition and whether the crack was present for a sufficient period of time so as to afford defendant constructive notice of a dangerous conditions. Specifically, Edward Pichardo testified about tho condition existing for a sufficient period of time for defendants to have discovered and corrected. The material issues of fact preclude the grant of summary Judgmentto the defendant. Proximate Cause 70 carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant s negligence was a substantial cause ofthe events which produced the injury... [but] need not demonstrate, however, that the precise manner in which the accident happened, or the extent of injuries, was foreseeable.. ..Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve. Perdiarian v. Felix Contr, C O J ~ , N.Y.2d 308, 315 [1980]) (internal 51 citations omitted). An injury is a foreseeable consequenoe of trip and fall on a defective sidewalk. Furthermore, an injury could occur in numerous ways and glass on a sidewalk could affect how the accident occurs and the extent of said injuries. In any event, there -Page 10of 11 - [* 12] may be more than one proximate cause of an accident, so that even if the glass "caused" plaintiffs injuries. the defective sidewalk may also be found to be a cause. (Sweet v. Perkins, 196 N.Y. 482 [1909]). Conclusion Defendants, Citibank, N.A. and 701 West 180th Street, have failed to prove their defenses and are, therefore, not entitled to summary judgment. Plaintiff, Onny Pichardo, has, in any event, raised issues of fact for the jury to decide. Defendants motions for summary judgment dismissing the claims and cross claims are denied in their entirety. ORDERED that defendant, 701 West 180th Street, LLC's, motion for summary judgment is denied; and it is further ORDERED that defendant, Cltibank. N.A.'s, motion for summary judgment Is denied; and it is further ORDERED that plaintiff, Onny Pichardo, shall serve a copy of this decisionlorder on the office of trial support so this case can be scheduled for trial; and it is further ORDERED that any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied; and it is further ORDERED that this constitutes the deci!sion and order of the court Dated: New Yak, New York March 2012 A -Page 11 of 11 -
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