Jones v Olamar Food Corp.
2012 NY Slip Op 31004(U)
April 17, 2012
Sup Ct, New York County
Docket Number: 106978/09
Judge: Louis B. York
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Index Number : 106Q78/2009
OIAMAR FOOD CORP
SEQUENCE NUMBER : 008
MOTION SEQ NO.
The following p p m , numbered 1 to
,were read on thlr motlon tohr
Notlce of MotlonlOrdrr to Shew Caure -Affldavlk
Upon the foregolng papers, It I o M o d that thb motlon Is
0ORANTED IN PART
.............. MOTION IS: 0QRANTED ~ZDENIED
3. CHECK IF APPROPRIATE: ................................................
2. CHECK AS APPROPRIATE:
0DO NOT POST
OLAMAR FOOD CORP.,
MORTON WILLIAMS ASSOCIATED
SUPERMARKETS, INC., ASSOCIATED SUPERMARKET,
OLAMAR FOOD CORP. d/b/a ASSOCIATED SUPERMARKET,
MORTON WJLLIAMS ASSOCIATED SUPERMARKETS, INC.
d/b/a ASSOCIATED SUPERMARKET, 1968 SECOND REALTY
COW., 1968 SECOND AVENUE REALTY CORP.,
AVENUE REALTY LLC and 1968 REALTY COW.,
LOUIS B. YORK, J.:
Motions seq. nos. 006 and 007 are
In motion seq. no. 006, defendant Olamar Food Corp. d/b/a Associated Supermarket
(“Olamar”) moves for summary judgment pursuant to CPLR 3212.
In motion seq. no. 007, defendant 1968 2nd Avenue Realty LLC (“Realty”) moves for
summary judgment pursuant to CPLR 3212 dismissing the complaint and “any and all cross-
Plaintiff brought this action to recover for personal injuries she allegedly sustained as a
result of a fall on the evening of December 18,2006, when she tripped on a raised crack in the
sidewalk outside the Associated Supermarket on Second Avenue and 101st Street in M n a t n
The two-story building on which the supermarket was located was owned by Realty. Olamar,
which did business as Associated, leased the first floor of the building pursuant to a written lease
with Realty dated August 3 1, 1999. Plaintiff had shopped at the supermarket. She exited the
store carrying two bags of groceries and turned left on Second Avenue where she tripped and fell.
Olamar premises its motion for s m wjudgment (seq. no. 006) solely on the
contention that plaintiff’s current injuries were not proximately caused by her fall in December
D r n the 1990’s plaintiff had sustained various sports-related injuries which resulted
in her having surgery on both knees. At her deposition, plaintiff testified that those earlier
injuries caused her right knee to buckle approximately once a month. According to plaintiff, the
fall in 2006 caused further injury to the right knee, which plaintiff avers caused her severe pain
and made her right knee buckle much more frequently after the accident. In July 2008, her right
knee gave way and she fell, landing on her left knee, which required arthroscopic surgery as a
result of that fall. In this action, plaintiff seeks to recover damages for the injuries she sustained
to her left knee in the July 2008 fall, which she contends was a direct result of the injuries she
sustained to her right knee in the December 2006 fall.
Olamar argues that the injuries to plaintiffs left knee me too remote to be proximately
caused by a fall which occurred more than a year and a half earlier, and that plaintiff has failed to
meet her burden of proving that causation. Olamar,relying on Southwe21 v Riverdale Transit
Corp. (149 AD2d 385 [lst Dept 1989]), further argues that it is for the court, not the jury, to
decide whether Olamar’s act or omission in December 2006 caused plaintiff to fall in July 2008.
The court disagrees with Olamar’s basic premises. Plaintiff has the burden of proving
causality at trial, not in this motion. Although the grant of summary judgment is the procedural
equivalent of a trial (see Falk v. Goodman,7 NY2d 87,91 [ 1959]), when a defendant moves for
summary judgment dismissing the plaintiffs complaint, it is the defendant, not plaintiff, who
bears the burden of proof. “The rule governing summary judgment is well established: The
proponent of a summary judgment motion must make aprima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact
from the case ..., and such showing must be made by producing evidentiary proof in admissible
form.... [Rlegardless of the sufficiency of the opposing papers, in the absence of admissible
evidence sufficient to preclude any material issue of fact, summary judgment is unavailable”
(Tortorello v. Carlin, 260 AD2d 20 1,205 [ 1st Dept 19991, citations omitted). Not until the
movant meets that initial burden does the opposing party acquire the burden “to produce
sufficient evidence of the existence of a material issue of fact requiring a trial of the action” (see
Grossman v. Amalgamated Housing Corporation, 298 AD2d 224,226 [ 1st Dept 20021).
It is also for the jury, not the court, to decide the question of proximate cause in this
case. The court may find as a matter of law that injuries are caused by a second, intervening act
in clear-cut cases of two separate and independent events such as the two distinut car accidents in
Southwell v Riverdale Transit Corp., supra, or a burn caused by spilled hot water which was
boiled because the landlord failed to provide heat or hot water (see Horn v Hires, 84 AD3d 1025
[2d Dept 201 11). However, this is not such a case. Here, no reason other than plaintiffs injured
right knee is given for the second fall, and at any rate “foreseeability and causation ... are issues
generally and more suitably entrusted to fact finder adjudication” (Palka v Servicemaster
Management Services Corporation, 83 NY2d 579,585 (19941).
“[S]ummary judgment is a drastic remedy and should not be granted where there is any
doubt as to the existence of a triable issue” (RorubaExtruders v Ceppos, 46 NY2d 223,23 1
[19781; Wfnegradv New York University Medical Center, 64 NY2d 85 1, 853 [19851). I view of
the medical evidence submitted by plaintiff, this court cannot say as a matter of law that
plaintiffs second injury w s not caused by the first any more than Olamar can prove in this
motion that there is no material question of fact with respect to the issue of causation.
Realty’s motion for summary judgment is grounded on the argument that Realty was
an out-of possession owner and its tenant, Olamar,had explicitly assumed responsibility for
maintenance and repair of the abutting sidewalk in its written lease for the property (see Realty’s
exhibit H). Realty contends that since it had not effected my repairs to the sidewalk and had no
actual or constructive notice of m y defect thereon, there is no basis for it to be liable to plaintiff.
Finally, Realty adopts Olamar’s reasoning and argument with respect to proximate cause.
In opposition, plaintiff argues that the duty to m i t i an abutting sidewalk placed on
the building’s owner by Section 7-2 10 of the Administrative Code of the City of New York is a
non-delegable duty which Realty cannot elude by transferring it to O a a in the lease.
Section 5 7-201 of the Administrative Code shifts the common-law tort liability for
failure to m i t i the sidewalk in a reasonably safe condition away f o the City and onto
abutting landowners wt respect to sidewalk accidents occurring on or after September 14,2003*
Nonetheless, plaintiff is only partially correct in arguing that an owner cannot avoid liability
because its duty is non-delegable. The general rule is that an owner may transfer its liability to a
tenant if the lease between the parties does not contain a right of re-entry. “[L]iability will attach
to a landlord out of possession ... where the owner of a leased commercial building, who’ retains
the right to reenter and inspect and to make needed repairs at the tenant’s expense, had a statutory
duty to properly maintain the premises” (Russo v 491 West Street Corp., 176 AD2d 672,672 [1st
Dept 19911, citations omitted). In the lease at bar, Realty retained the right to re-enter to inspect
and effect repairs (Realty’s exhibit H, f 13), so it may still be held liable to plaintiff.
To state a primafacie case of negligence against Realty, plaintiff must demonstrate the
traditional tort elements, a duty owed to her by Realty, breach of that duty and a resulting injury
(see Gaetu v. CiQ ofNew York, 213 AD2d 509,510 [2d Dept 19951). As discussed above,
Realty’s duty to plaintiff flows from Admin. Code 0 7-2 10. To establish a breach of that duty
plaintiff must show that Realty either created the sidewalk condition which caused plaintiffs
accident or had actual or constructive notice of that condition (id; also Voss v D&C Parking,
299 AD2d 346 [2d Dept 20021) or that it negligently failed to perform its affirmative duty to
remedy that condition (Administrative Code 5 7-210).
There is no indication that Realty had actual knowledge of the defect. Plaintiff, a
regular customer of Associated, averred that she had not noticed the sidewalk crack before her
fall. Realty’sdeponent, its principal Azam Mohammed, testified that Realty had never made
repairs to the sidewalk abutting the building and had not received any complaints about it prior to
plaintiffs accident, and he personally had never noticed the sidewalk defect (see EBT at
Realty’s exhibit G). Plaintiff has not adduced any evidence to the contrary, and her argument
that R a t cannot meet its moving burden by proving a negative is at best speculative. T u in
order to establish liability against Realty, plaintiff must show that it had constructive notice.
“Constructive notice requires that the defect be visible and apparent, and it m s exist
for a sufficient length of time prior to the incident so as to permit a defendant’semployees to
discover and remedy it” (Meyers v. Haskins, 140 AD2d 923,924 [3d Dept 19881, citing Gordon
v. AmerfcanMuseum o Natural History, 67 NY2d 836,837 [ 19741). Plaintiff again argues that
Realty’s mere denial of any kind of notice about the sidewalk defect cannot meet its moving
burden, especially since according to Realty prior to plaintiffs accident it never conducted
regular inspections of the sidewalk (see Werny v Roberts Plywood Co., 40 AD3d 977 [2d Dept
20071; Ferrara v JetBZue Airway Corp.,27 AD3d 244 [ 1st Dept 20071). Plaintiff contends that
the only way for Realty to meet its burden on this motion is to show through a regular inspection
that the sidewalk defect did not exist a relatively short time prior to plaintiff’s accident. In
support of her contention that Realty had constructive notice of the defect plaintiff proffers a Big
Apple Pothole map showing the sidewalk depression existed three years prior to her fall, which is
a sufficient period togo to the jury on the issue od constructive notice (see plaintiffs exhibit K).
Based on the foregoing, the court finds that there is a triable issue of fact as to whether Realty
had constructive notice of the sidewalk defect.
In the second branch of its motion, Realty seeks relief against Olamar. The notice of
motion states that Realty seeks dismissal of “any and all cross-claims.” Similarly, R a t ’
counsel concludes her supporting affidavit with the request that the court grant Realty’s motion
“dismissing ... any and all counterclaims asserted herein.” The problem is that Olamar has
asserted no cross-claims or “counterclaims” against Realty. Not surp+ingly, Olamar has not
opposed Realty’s motion. It appears that what Realty is really seeking is affirmative relief the
grant of summary judgment on its own cross-claims for breach of contract and a claimover
against Olamar. Given the aforementioned infirmities in Realty’s moving papers, however, such
relief will not be granted at this juncture.
Accordingly, Olamar’s motion (seq. no. 006) for summary judgment pursuant to
CPLR 3212 is denied in its entirety. Realty’s motion (seq. no. 007) for summary judgment is
denied to the extent that it seeks dismissal of plaintiffs complaint as against Realty. That branch
of Realty’s motion which seeks relief against Olamar is denied without prejudice to renewal at
the appropriate time upon proper papers.
This decision constitutes the order of the court.
DATED: April &2012