Colon v 36 Rivington St., Inc.

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Colon v 36 Rivington St., Inc. 2012 NY Slip Op 31303(U) May 14, 2012 Sup Ct, NY County Docket Number: 108714/09 Judge: Barbara Jaffe 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY / PRESENT: --I/.,F' 6-c- PART 5 L Justice Index Number : 108714/2009 COLON, EUSEBIA vs. 36 RlVlNGTON STREET, INC. SEQUENCE NUMBER : 005 SUMMARY JUDGMENT INDEX NO. MOTION DATE & Lp The following papers, numbared 1 t o MOTION SEQ. NO. ODY MOTION GAL. NO. were read on thls motion tolfor Notice of Motlonl Order to Show Cause - Affidavits - Exhibits Answerlng Affldavlts - Exhibits I I 2,3 L eplying Affidavits :toss-Motion: ... PAPERS NUMBERER d e s 0 No lpon the foregoing papers, It Is ordered that this motion FILED MAY 17 2012 NEW YORK COUNTY CLERKS OFFICE Dated: J. S. C. J.S.C. Check one: Ll FINAL DISPOSITION M 0 N - F AL DISPOSITION Check if appropriate: DO NOT POST [3 REFERENCE n 0 SUBMIT ORDER/JUDG. 0 SETTLE ORDER /J"DG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 1087 14/09 Plaintiff, -against- 36 RIVINGTON STREET, INC., HUI S REALTY, INC., RICH MANSION CONDOMINIUM, INDOCHINA SINO-AMERICAN SENIOR CITIZEN CENTER, OLSON S CREATIVE LANDSCAPING, INC,, DOE CORPORATION, INC. d/b/a OLSON S CREATIVE LANDSCAPING, Motion Date: Motion Seq. Nos.: Motion Cal. Nos.: 1/10/12 005, DECISION AND ORDER FILED BARBAR4 JAFFE, J.S.C.: For plaintiff: Frank V. Kelly, Esq. Law Office of William Gallina 1250 Waters Place Suite 708 Bronx, NY 10461 7 18-892-0400 For Hui s: John J. Bruno, Esq. Harvey Gladstein & Ptners. LLC 110 Wall Street New York, N Y 10005 212-952-1 I 11 Daniel Goldfarb, Esq. Law Office of James Toomey 485 Lexington Ave. New Y ork,NY 10017 212-440-2350 For Indochina: Richard O Connell, Esq. Law Office of Charles J. Sicgel 40 Wall Street New York,NY 10005 917-778-6600 By notice of motion dated August 10,20 11, defendants Olson s Creative Landscaping, Olson s Creative Landscaping, Inc., and Doe Corporation, Inc. d/b/a Olson s Creative Landscaping (collectively Olson s) move pursuant to CPLR 3212 for an order dismissing the complaint and all cross-claims against it. Defendants Hui s Realty, Inc. and Rich Mansion Condominium (collectively Hui s) and plaintiff oppose. By notice of motion dated September 1,20 11, defendant Indochina Sino-American Senior Citizen Center (Indochina) moves pursuant to CPLR 3212 for an order dismissing the [* 3] complaint. Hui s and plaintiff oppose. By notice of motion dated September 2,201 1, Hui s moves for an order: (1) compelling Olson s Creative Landscaping, Inc. to respond to their July 22,201 1 notice of discovery; (2) compelling Indochina to produce a witness to give testimony at an examination before trial (EBT) or, in the alternative, to preclude it from offering any testimony at trial; and (3) granting them leave to serve an amended answer asserting cross-claims against Olson s. Olson s and Indochina oppose. By notice of motion dated September 13,201 1, Hui s moves pursuant to CPLR 3212 for an order dismissing the complaint. Plaintiff opposes. A party seeking summary judgment must demonstrate, prima facie, entitlement to judgment as a matter of law by presenting sufficient evidence to negate my material issues of fact. (Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the movant meets this burden, the opponent must rebut the prima facie showing by submitting admissible evidence, demonstrating the existence of factual issues that require trial, (Bethlehem Steel Corp. v Solow, 51 NY2d 870,872 [1980]; Zuckerrnan v Ct @New York,49 NY2d 557,562 [l980]). iy I. Hull $ MOTION FOR SUMMARY JUDGMENT Pursuant to New York City Administrative Code 5 16- 123(a), [elvery owner, lessee, tenant, occupant, or other person having charge of any property abutting a sidewalk must remove snow and ice from the sidewalk within four hours after the snow ceases to fall, although the time between 9:OO p.m. and 7:OO a.m. is not included in the four-hour period. Here, at 1O:OO a.m. on January 11,2009, plaintiff slipped on snow and ice on the sidewalk adjacent to 36-38 Rivington Street, also known as 168-170 Forsyth Street, in 2 [* 4] Manhattan. (Affirmation of John J. Bruno, Esq. [Bruno Aff.], dated Sept. 13,2011, Exhs. A, F, G). The certified climatological data submitted by Hui s, which constitute prima facie evidence of the weather conditions before plaintiff s accident (CPLR 4528), reflect that rain and freezing rain fell on January 6 and 7, that temperatures rose above freezing and there was no precipitation on January 8 and 9, that freezing rain, rain, and snow fell between 1:00 and 11:00 p.m. on January 10, and that rain and freezing rain fell between 2:OO and 7 : O O a.m. on January 1 1. (Id., Exh. I). Hui s has thus demonstrated, prima facie, that it had no obligation to remove the ice and snow until 11:00 a.m. and may not be held liable for plaintiffs injuries. (See Krinsky v Fortunato, 82 AD3d 409 [ lstDept 201 11 [defendants not liable for plaintiffs injuries where she testified that snow had stopped falling 30 to 45 minutes before accident]; Rodriguez v New York C i v Hous. Auth., 52 AD3d 299 [l Dept ZOOS] [where plaintiff, who slipped on snow and ice on sidewalk at 8:20 am., testified that snow was not falling at that time, defendant not obligated to remove snow and ice until 11:OO a.m.]; Karpilovshwya v Badiner, 2009 WL 6700535 [Sup Ct, Kings County 20091 [even if plaintiffs weather report reflecting that snow stopped falling at 7:OO a.m. is credited, as accident occurred at 10:30 a.m., defendant not liable]). Plaintiffs testimony that the snow and ice had been on the sidewalk for the whole weekend raises no triable factual issues, as she subsequently clarified that it had been more than a week since she had been to the accident site, that she saw no ice or snow then, that she did not notice the snow and ice until after she fell, and that the snow was fresh. (Bruno Aff., Exh. G). In any event, the climatological data demonstrate an intervening thaw between the storm on January 6 and 7 and the storm that occurred just before plaintiffs accident, and plaintiff only speculates as to whether the snow and ice on which she slipped was from the previous storm. 3 [* 5] (See Lenti v Initial Cleaning Servs., 52 AD3d 288 [ 1 Dept 20081 [where plaintiff slipped at 7:45 a.m., and climatological data reflected that snow fell at 2:OO a.m. and between 4:OO and 6 : O O a.m., snowfall earlier in week and plaintiffs testimony that he saw patches of ice three days earlier insufficient to raise triable factual issue as to notice]; Bonney v City ofNew York, 41 AD3d 404 [2d Dept 20071 [plaintiff s speculation as to whether ice on which she slipped was longstanding insufficient to raise triable factual issues as to whether City had notice of ice, as City offered climatological evidence demonstrating intervening thaw between snow storm and accident)). In light of this determination, whether Hui s is entitled to summary judgment based on the accident location need not be considered. II. OJ,$ON $ MOTION FQR SUMMARY J U D G m To state aprima facie claim of negligence, a plaintiff must show a duty owed, a breach, and proximate cause. (Kenney v City ofNew York, 30 AD3d 261,262 [lnt Dept 20061). Liability for a dangerous condition is generally predicated on [ ] ownership, control or a special use of the property. (Lopez v AlliedAmusement Shows, Inc., 83 AD3d 519,519 [l Dept 201 11; Balsam v Delma Eng g Corp., 139 AD2d 292,296 [ 1 Dept 19881). Nonetheless, an independent contractor that performs work at an accident location may owe a duty to a non-contracting plaintiff if, as relevant here, it fails to exercise reasonable care in the performance of its duties, thereby launch[ing] a force or instrument of harm. (Espinal v Mlil Snow Contractors, Inc., evle 98 NY2d 136, 140 [2002]). Consequently, in determining whether a contractor owed a duty to a plaintiff, whether the contractor negligently created or exacerbated a dangerous condition must be determined. (Id, at 142). 4 [* 6] Here, plaintiff fell in or around a tree well on which Olson s performed repairs pursuant to a contract with City, which included the installation of a tree gator, a device that facilitates watering. A witness for Olson s testified, however, that documentation related to its contract with City reflects that there existed no problems with the tree well and that Olson s was fully paid for its work under the contract. (Affirmation of Daniel M. Goldfarb, Esq., dated Aug. 10, 201 1, Exh. J). Absent any evidence that Olson s otherwise failed to exercise reasonable care in completing its contractual obligations, it has demonstrated, prima facie, that it owed no duty to plaintiff. As the witness for Olson s testified that tree gators are filled with water between May and October 3 1 only (id), plaintiffs assertion that the tree gator contributed to the ice and snow accumulation is speculative and does not raise a triable issue of fact. (See Fernandez v 707, Inc., 85 AD3d 539 [lst Dept 201 11 [where abutting property owner hired contractor to build sidewalk and tree well, and plaintiff tripped over tree well, contractor entitled to summary judgment, as its representative testified tree well was level with sidewalk when work was complete, property owner had no problem with work, and no evidence offered demonstrating that contractor breached its contractual obligations]). In establishing that it may not be held liable for plaintiffs injuries, Olson s has also demonstrated entitlement to summary judgment on any cross-claims for common law indemnification and contribution. (Jalkran v Shoppers Jumaica, LLC, 85 AD3d 864 [2d Dept 201 11 [where contractor demonstrated that it did not owe duty to plaintiff pursuant to Espinal, and thus, that the accident was not due solely to its own negligence, contractor entitled to summary judgment on property owner s cross-claim for common law indemnification]). 5 [* 7] JIL MDQCHINA S MOTION FOR SUMMARY JUDGMENT As an occupant of the building, Indochina is subject to the obligation set forth in Administrative Code 5 16-123(a). Therefore, it is entitled to summary judgment on plaintiffs claims regardless of whether it was contractually obligated to remove snow and ice from the sidewalk. (See supra, I). IV. HUI S MOTION TO COMPEL AND TO AMEND A. Compel Olson s remonge to July 22.201 1 notice of disCQvery As Olson s provides evidence that it served Hui s with its response on September 27, 201 1 (Affirmation of Daniel M. Goldfarb, Esq., in Opposition, dated Sept. 26,201 1, Exh. A), absent any argument that its response is insufficient, this portion of the motion is denied as moot. B. Compel Indochma s witne:ss to appear for examination before tri.4 4 , * As both Hui s and Indochina have demonstrated entitlement to summary judgment, this portion of Hui s motion is denied as moot. W Pursuant to CPLR 3025(b), a party may amend its pleadings at any time by leave of court, which shall be freely given upon such terms as may be just . . . . It is well-settled that leave to amend pleadings under this section should be liberally granted unless the amendment plainly lacks merit or would prejudice or surprise the other parties. (MBIA h s Corp. v Greystone & Co., n. 74 AD3d 499,499 [lst Dept 20101). As 01son7shas demonstrated entitlement to summary judgment on all cross-claims against for common law indemnification and contribution (see supra, I.), Hui s amendment is meritless. 6 [* 8] Accordingly, it is hereby OmERED, that defendants Hui s Realty, Inc. and Rich Mansion Condominium s motion for an order dismissing the complaint is granted, and the complaint is hereby severed and dismissed as against defendants Hui s Realty, Inc. and Rich Mansion Condominium; and it is further ORDERED, that defendants Olson s Creative Landscaping, Olson s Creative Landscaping, Inc., and Doe Corporation, Inc. d/b/a Olson s Creative Landscaping s motion for an order dismissing the complaint and all cross-claims against them is granted, and the complaint is hereby severed and dismissed as against defendants Olson s Creative Landscaping, Olson s Creative Landscaping, Inc., and Doe Corporation, Inc. d/b/a Olson s Creative Landscaping; and it is further ORDERED, that defendant Indochina Sino-American Senior Citizen Center s motion for an order dismissing the complaint is granted, and the complaint is hereby severed and dismissed as against defendant Indochina Sino-American Senior Center; and it is further ORDERED, that defendants Hui s Realty, Inc. and Rich Mansion Condominium s motion for an order compelling Olson s to respond to their July 22,201 1 notice of discovery is denied as moot; and it is further ORDERED, that defendants Hui s Realty, Inc. and Rich Mansion Condominium s motion for an order compelling Indochina to produce a witness to give testimony at an EBT is denied as moot; and it is further ORDERED, that defendants Hui s Realty, Inc. and Rich Mansion Condominium s 7 [* 9] motion for an order granting them leave to serve an amended answer asserting cross-claims against Olson's is denied. ENTER: DATED: May 14,2012 New York, New York J.S.C, NEW YORK COUNTY CLERK'S OFFICE 8

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