Mercado v Sirius, LLC

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Mercado v Sirius, LLC 2012 NY Slip Op 32093(U) August 1, 2012 Supreme Court, New York County Docket Number: 100277/11 Judge: Joan M. Kenney 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. NNED ON 81812012 [* 1] I SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART I Index Number : 1002?7/2011 - MERCADO, LYDIA vs. SIRIUS, LLC, ANSONIA SEQUENCE NUMBER 007 SUMMARY JUDQMENT I - I A [* 2] FILED AUG 0 8 2012 SUPREME COURT O F THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS Part 8 NEW YORK COUNTY CLERKS OFFICE -against- , DECISION AND ORDER I n d e x Number.: 1 0 0 2 7 7 / 1 1 Motion S e q . No.: 001 S i r i u s , LLC, Ansonia Realty, LLC, S t a h l Real E s t a t e Company and T h e North Face, Defendants. X --------------------____________I_____ KENNEY, JOAN M., J' . R e c i t a t i o n , as required by CPLR 2 2 1 9 ( a ) , of t h e papers considered i n review o f t h i s motion t o dismiss. Ndrsrd Baprrs Notice of Motion, Affirmation, and Exhibits Opposition Affirmation, and Exhibits Reply Affirmation, Exhibits 1-10 11-13 14-18 In this personal i n j u r y action, d e f e n d a n t , The N o r t h Face, moves for an pursuant Order, to CPLR 3212, dismissing the complaint. Fagtual Qpqkg round On December 29, 2010, plaintiff Lydia Mercado was w a l k i n g in a n e a s t e r l y direction on West 73rd S t r e e t within t h e c i t y , county, and s t a t e of New York. P l a i n t i f f alleges t h a t h e r heel got trapped in a c r a c k / h o l e in the sidewalk, w h i c h was a l s o made slippery with snow a n d ice. (the a c c i d e n t ) . As a As a resultt she tripped and fell consequence of the accident, p l a i n t i f f This d e c i s i o n c o u l d not have been w r i t t e n without the assistance of Dannielle O'Too1e. [* 3] claims she sustained a fracture to her left a n k l e , as well as a number of damages consequential (Mercado EBT 12g). at The accident took p l a c e alongside a p r o p e r t y known a s "The Ansonia" (the building), immediately In f r o n t af (the sidewalk). See id. the N o r t h Defendant North Face ground tenants in the building. Face store i s one of T h s co-defendants the are Sirius, LLC and Ansonia Realty, LLC, companies engaged in the business of owning and managing r e a l estate, including The Ansonia. The written l e a s e agreement and The Ansonia that states ( t h e lease) between N o r t h Face landlord the is resppnaible for maintaining the sidewalk, and it I s undisputed that The Ansonia is responsible for repairing any c r a c k s or h o l e s in the s i d e w a l k (Store Lease ¶ 30). The lease also states that if demised premises are Tenant's own expense, keep s a i d sidewalks and c u r b s f r e e from on situated the street floor, "Tenant shall at snow, ice, dirt and rubbish, to the e x t e n t the condominium board does not keep the sidewalks f r e e of snow, i c e and rubbish." See id. It is u n d i s p u t e d that on December 26, 2010, a v e r y large snowstorm streets occurred of New that York left a City (the large amount storm). of North snow on the Face's store manager testified a t his EBT that The Ansonia had always removed the snow from the sidewalk. Face has never possessed Additionally, h e stated that North equipment 2 or supplies for snow/ice [* 4] removal, and its employees h a v e never a s s i s t e d In snow removal from the sldewalk, or a f t e r t h e storm ( M a r t i n o EBT a t Face s t a t e s t h a t the a c c i d e n t took p l a c e North Further, 10). before within a n a r e a barricaded o f f by c a u t i o n tape, put there by The Ansonia * Lippman, deposed, asserted that efforts removal snow vice-president a North Sirius,. LLC Face employees that and of was assisted have the l e a s e p l a c e s who in removal snow responsibility on the g r o u n d tenants (Lippman EBT at 55; Store Plaintiff's testimony was d e w i d of a n y reference Lease ¶ 3 0 ) . to a barricade and the e x a c t location of the a l l e g e d barricade is unknown prepared (Mercado E B T i by The Ansonia Gede EBT g t 57). c a u t i o n tape had been indicates that trampled and/or r i p p e d down The accident report (Exhibit G "Ansonia House Security Report") North Face argues that i t is not liable because: a c c i d e n t was the damaged s i d e w a l k , caused by ( 2 ) although p l a i n t i f f responsible to repair: which (1) the it is n o t s t a t e s there were patches of snow/ice t h a t may have c r e a t e d a slippery condition, it is unclear if this contributed the to accident or if p l a i n t i f f lost her balance when h e r h e e l got s t u c k i n t h e h o l e ; and (3) arguendo, contributed because The to even the Ansonia if a accident, slippery North affirmatively > 3 condition Face assumed is existed not control and responsible over the [* 5] snow/ice removal from the s u b j e c t sidewalk, including allegedly placing a barricade a r o u n d t h e area where the accident o c c u r r e d . Co-defendants a r g u e that t h e motion must be d e n i e d because: (1) t h e p r o x i m a t e cause of fall plaintiff's is disputed; (2) N o r t h Face is responsible f o r snow removal p u r s u a n t to t h e terms of the and lease; (3) questions assistance p r o v i d e d by N o r t h of fact remain about any Face for t h e removal of snow and i c e (Lippman EBT a t 55; S t o r e Lease ¶ 30). Plaintiff contends that the motion must be d e n i e d because: (1) it is uncontroverted t h a t a dangerous condition was created when a p a t h was made in the snow and ice on t h e sidewalk by one of t h e defendants where plaintiff alleges s h e f e l l ; and ( 2 ) t h e c o n t r a d i c t o r y testimony from t h e parties r e g a r d i n g N o r t h Face's a l l e g e d responsibilities for snow removal c r e a t e f a c t u a l issues which do not w a r r a n t summary judgment. Piscwqibn to CPLR 3212(b), " a motion f o r summary judgment Pursuant s h a l l be supported b y a f f i d a v i t , by other pxoof, available admissions. such by a copy of the p l e a d i n g s and as and depositions written The affidavit shall be by a person h a v i n g knowledge of the f a c t s ; it shall r e c i t e all the material facts; and it s h a l l show that there is no d e f e n s e to t h e cause of a c t i o n or that the cause of action shall be g r a n t e d i f , or d e f e n s e l a c k s merit. upon a l l t h e p a p e r s and p r o o f 4 The motion submitted, [* 6] t h e cause of a c t i o n o r d e f e n s e shall be established s u f f i c i e n t l y t o warrant the c o u r t a s a matter of law in d i r e c t i n g judgment i n f a v o r of any p a r t y . ' ' The rule governing proponent "The 851 1999). well established: of a summary judgment motion must make a prima sufficient See Winegrad v NYU Tortorello v C a r l i n , (1985); law, a n y material issues evidence to eliminate ,of f a c t from the c a s e . " NY2d is of entitlement to judgment a s a matter of f a c i e showing tendering summary judgment Medical Center, 6 4 If movant fails to meet this b u r d e n , 1lSt Dept. 201 AD2d 260 t h e m o t i w should be denied even if t h e papers in opposition are ingdeguate. See P a s t o r i z a v S t a t e , 108 AD2d 605 (1" D e p t . 1 9 8 5 ) . T h e c o u r t must not weigh the credibility of witnesses unless it clearly a p p e a r s that the issues are f e i g n e d a n d n o t g e n u i n e and any c o n f l i c t i n t h e testimony or e v i d e n c e presented r a i s e s an issue of fact. See 6243 Jericho Realty Corp. v Autozone, Inc., 2 7 A D 3 d 4 4 7 , 449 (2nd Dept. 2 0 0 6 ) . To establish a prima facie case of n e g l i g e n c e i n a t r i p and fall a c t i o n , either created constructive Arnold a plaintiff a notice must dangerous of demonstrate condition, or had the alleged defective v NYC H o u s i n g A u t h . , 296 AD2d that 355 a defendant actual and/or condition. ( l s tDept. 2002). See A g e n u i n e issue of material fact exists when a defendant f a i l s t o show that it d i d not have actual or constructive notice of 5 a [* 7] hazardous condition. See Aviles v 233 19' Dept. 2009): B a e z - S h a r p v NYC T r . A u t h . , 2007). is Pac. (lot Dept. of time prior it h a s existed for a s u f f i c i e n t and accident to t h e 2 5 2 AD2d 3 8 4 T e a Co., to permit defendant's See Strowrnan v employees to discover a n d remedy it. & 38 AD3d 2 2 9 Constructive notice arises when the d e f e c t i v e condition visible a n d apparent, length Corp., 6 6 AD3d 432 ( l a t Great A t l . (lat Dept. 1 9 9 8 ) . Negligence cases a r e n o t normally r i p e f o r summary judgment because t h e existence of negligence is typically a question for j u r y determination. See V i l l o c h v. L l n d g s e n , 2 6 9 AD2d 271 ( l m t Dept. 2 0 0 0 ) . North Face claims t h a t the crack/hole the praxirnate c a u a e of t h e accident, responsible for this defect. i n t h e sidewalk was and that The Aasonia is P l a i n t i f f states t h a t t h e accident was caused b e c a u s e of the crack/hole in the sidewalk and t h e snow/ice i n t h e immediate v i c i n i t y (Mercado EBT at 5 6 ) . Since the proximate cause of the a c c i d e n t is contested, dismissal is not warranted. North Face's c l a i m t h a t it d i d not have any notice of the alleged d e f e c t i v e condition cannot be sustained. N o r t h Face's defense is grounded in the notion that The Ansonia controlled the p r o c e s s by which (Martino EBT a t 10). snow/ice was North Face's removed from the sidewalk s t o r e manager testified that its employees n e v e r assisted in the removal of snow and i c e . Further, North Face doesn't possess any equipment nor supplies 6 [* 8] to effectuate snow/ice r e m o v a l . These assertions a r e See id. d i r e c t l y contradicted by Lippman s testimony and the l a n g u a g e of the l e a s e (Lippman EBT at 55; S t o r e Lease 30). ¶ The lease s t a t e s that N o r t h f a c e is responsible for snow/ice removal not performed by the landlord (Store Lease ¶ 30). Being unprepared is n o t a v a l i d defense, and constructive n o t i c e can be assumed because the accident happened t h r e e days s u b s e q u e n t to t h e storm, which is a s u f f i c i e n t amount of time f o r notice to N o r t h Face should a n d / o r be attributable. could have known of the condition of the sidewalk had its employees i n s p e c t e d the sidewalk a s r e q u i r e d b y t h e lease within these t h r e e days. See id. Lippman t e s t i f i e d that North Face s employees have, in t h e assisted past, In snow removal e f f o r t s (Lippman EBT at 55). This conflicting testimony creates t r i a b l e issues of fact t o be determined b y a j u r y . Finally, North Face maintains the a c c i d e n t occurred that within a taped off area erected b y The Ansonia. testimony does exact location not of make the any reference to barricade alleged Plaintiff s any b a r r i c a d e , the and the is unknown, a c c i d e n t r e p o r t p r e p a r e d by The Ansonia s t a t e s that t h e caution tape had been trarnpled/ripped down (Mercado EBT; Gede EBT at 5 7 ; Exhibit G Ansonia House Security R e p o r t ) . 7 These contested [* 9] factual assertions also make summary judgment inappropriate. Accordingly, it i s ORDERED, that defendants' summary judgment motion, is denied, in its e n t i r e t y ; and it is f u r t h e r ORDERED t h a t the p a r t i e s proceed to mediation, f o r t h w i t h . Dated: August 1, 2 0 1 2 ENTER: FILED h 08 2012 8

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