Jones v Olamar Food Corp.
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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 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. I lNED ON411712012 [* 1] f SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ? I YORK PRESENT: PART J.S.C. . c Jll&tk@ Index Number : 106Q78/2009 JONES, CAROLYN vs . OIAMAR FOOD CORP SEQUENCE NUMBER : 008 INDEX NO. MOTION DATE MOTION SEQ NO. SUMMARY JUDGMENT The following p p m , numbered 1 to ,were read on thlr motlon tohr Notlce of MotlonlOrdrr to Shew Caure -Affldavlk Amwerlng Atndavlb - &hlbb -Exhlblb \ Replylng Affldwltm INo(8). INo(r). INO(@). Upon the foregolng papers, It I o M o d that thb motlon Is s I' , I t I I I6 I I 0ORANTED IN PART .............. MOTION IS: 0QRANTED ~ZDENIED r]SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SEllLE ORDER 2. CHECK AS APPROPRIATE: I OTHEI +- 0DO NOT POST FIDUCIARY APPOINTMENT REFERENC I I i 1 I I , ' I I [* 2] CAROLYN JONES, Plaintiff, INDEX NO. 106978/09 -against- 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., 1968 2ND 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- claims. 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 ahta. 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 [* 3] 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 u m contention that plaintiff s current injuries were not proximately caused by her fall in December 2006. D r n the 1990 s plaintiff had sustained various sports-related injuries which resulted uig 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 -2- [* 4] 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 -3 - [* 5] [19781; Wfnegradv New York University Medical Center, 64 NY2d 85 1, 853 [19851). I view of n 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 a 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 anan 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. lmr 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 anan rm abutting landowners wt respect to sidewalk accidents occurring on or after September 14,2003* ih 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 -4- [* 6] 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, see 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 ely h, 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 ut 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 f -5- [* 7] 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 elys . 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 -6- [* 8] 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 US.C. -7-
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