Martoral v City of New York
2012 NY Slip Op 30835(U)
April 3, 2012
Sup Ct, New York County
Docket Number: 111185/08
Judge: Joan M. Kenney
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Index Number 11 11 85/2008
MARTORAL, TERESA L.
SEQUENCE NUMBER : 004
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS Part 8
Teresa L. Martoral,
DECISION AND ORDER
lndex Number: 111185/08
Motion Seq. Nos.: 03 and 04
City of New York, Kaufman Management
Co. LLC, 450 7thAve. Associates, and Starbucks
Recitation, as required by CPLR 2219(a), of the papers considered in review of these
motions to disc.
Pa-pers(Motion Seq. 3)
Notice of Motion, Affirmation
(Motion Scq. 4)
Notice of Motion
APl? 03 2012
CLERKS O ~ I C E
Motion Sequences 003 and 004 are consolidated herein for disposition.
In this personal injury action, defendants, K a u h a n Management Co. LLC, 450 7'h Ave.
Associates (Motion Seq. 004), and Starbucks Corporation (Motion Seq. 003), move for an Order,
pursuant to CPLR 6 32 12, dismissing the complaint.
On May 24,2007 Teresa Martoral was walking out of a Starbucks Coffee Shop
(Starbucks), when she hipped and fell on a part of damaged sidewalk in front of Starbucks.
Defendant, Starbucks Corporation, is a lessee of the space for one of their retail stores at 450 7Ih
A m , New York. NY (the property). Defendant Kaufman Management Co. is an out-of-
possession inanaging agent of the property. Defendant 450 7* Ave. Associates is the owner of the
There is no dispute that the lease agreement that Starbucks had with 450 7* Ave. does not
place any responsibility on Starbucks for the repair andlor maintenance of the sidewalk area. The
lease specifically states that, âLandlord shall maintain and repair the exterior of and the public
portions of the building ...and the structural components of the premises.â (Store iease 1 4).
Defendant Starbucks Corporation argues that they are not liable to plaintiff because: (1)
the NYC Administrative Code, Section 7-210; (2) because it did not construct, repair, andor
maintain the sidewalk in question; and (3) nor were they required to, as per the lease agreement.
Defendants 450 71hAve. Associates and K a u h a n Management Co. claim that the action
must be dismissed because the plaintiff was unable to identify the location of her accident or the
cause of her fall. Additionally, they argue that defendants did not cause or create the alleged
defect as they did not make any prior repairs to the sidewalk or anywhere in front of the store,
and therefore cannot be held liable.
Plaintiff contends that the within motions must be denied because: (1) defendants were on
constructive riotice of the alleged dangerous condition of the sidewalk defect; and (2) there are
triable issues of fact to be considered.
Pursuant to CPLR 3212(b), âa motion for summary judgment shall be supported by
affidavit, by a copy of the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the
material facts; and it shall show that there is no defense to the cause of action or that the cause of
action of defense has no merit. The motion shall be granted if, upon all the papers and proof
submitted, the cause of action or defense shall be established sufficiently to warrant the court as a
matter of law in directing judgment in favor of any party. Except as provided in 3212(c) of this
rule the motion shall be denied if any party shall show facts sufficient to require a trial of any
issue of fact. If it shall appear that any party other than the moving party is entitled to a summary
judgment, the court may grant such judgment without the necessity of a cross-motion."
The rule governing summary judgment is well established: "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 eliminate any material issues of fact fiom the case."
(Winegrad v New York University Medical Center, 64 NY2d 85 1 [19851; Torterello v Carlin,
260 Ad2d 201 [ 1" Dept 19991).
In ordcr to establish a prima facie case of negligence in a trip and fall action, a plaintiff
must demonstrate that a defendant either created a dangerous condition, or had actual and/or
constructive notice of the defective condition alleged (see Judith U.
Arnold v New York City
Housing Authority, 296 AD2d 355 [ 1st Dept 20021). A genuine issue of material fact exists when
defendant fails to establish that it did not have actual or constructive notice of a watery or
hazardous condition. (Aviles v. 2333 1." Corp., 66 A.D.3d 432, 887 N.Y.S.2d 18 [l" Dept. 20091;
Baez-Sharp v. New York City Tr. Auth., 38 A,D.3d 229,830 N.Y.S.2d 555 [Ist Dept. 20071). In
B a a , the Court stated that defendant "failed in its initial burden, as movant, to establish, as a
malter of law, that it did not create and did not have actual or constructive notice of the watery
and hazardous condition.â
The NYC Administrative Code, Section 7-210, titled Liability of Real Property Owner
For Failure to Maintain Sidewalk in a Reasonably Safe Condition, states as follows:
a. 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.
b. Notwithstanding any other provision of law, the owner of real property abutting
any sidewalk, including, but not limited to, the intersection quadrant for comer
property, shall be liable for any injury to property or personal injury, including
death, proximately caused by the failure of such owner to maintain such sidewalk
in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably
safe condition shall include, but not be limited to, the negligent failure to install,
construct, reconstruct, repave, repair or replace defective sidewalk flags and the
negligent failure to remove snow, ice, dirt or other material from the sidewalk...
(New York City, N.Y., Code sec. 7-210)
âA managing agent not in complete and exclusive control is not liable for mere
nonfeasance.â This is a burden the plaintiff must prove. (see, Dempsey v. Ah. Ebo Associates,
Inc., 262 A.D.2d 229,692 N.Y.S.2d344 [lâ Dept. 19991).
Here, Starbucks is merely a lessee, not the owner of the building, thus not liable per the
NYC Administrative Code. Further, Starbucksâ lease agreement does not place any burden on
them to maintain the sidewalk. Therefore, Starbucks cannot be held liable for personal injuries
sustained on the sidewalk adjacent to their store. Additionally, plaintiff gives no proof that
Kaufinan Management had âcomplete and exclusive controlâ over the Starbucks premises, and as
such, Kaufman cannot be held liable. (See also, Gardner v. 1111 Corp., 286 A.D. 110, 141
N.Y.S.2d 552 [lot
Dept. 19551; and Hakim v. 65 f h Ave., LLC, 42 A.D.3d 374,840 N.Y.S.2d 323
[ 1ItDept. 20071).
Defendant 450 7* Ave. mserts that they should also be relieved of liability in this action
because plaintiff cannot identi@ the location of her accident. Plaintiff, however, stated at her
deposition that âthe sidewalk was damaged where [she] fell.â (Martoral transcript at 32). This
disagreement leads ta a factual dispute, not allowing for summary judgment in the defendantâs
favor. As such, defendant 450 7* Ave. will remain in the action. By their very nature, negligence
cases do not lend themselves to summary judgment because the issue of whether the defendant
(or plaintiff) acted reasonably under the circumstances is rarely an issue that can be decided as R
matter of law (Ugirrrizcr v. Schrnieder, 46 N.Y.2d 471  ). Accordingly, it is hereby
ORDERED that defendant Starbucks Corporationâs motion for summaryjudgment
dismissing the complaint, is granted; and it is further
ORDERED that defendant Kaufman Management Co.âs motion for summary .judgment
dismissing the complaint, is granted; and it is further
ORDERED that defendant 450
Ave. Associatesâ motion for summary judgment
dismissing the complaint, is denied, in its entirety; and it is further
ORDERED that the remaining parties proceed to mediation, forthwith
Dated: March 28,2012
Joan M. Kenney, J.S.C.
COUNTY CLERKâS OFFICE