Arkin v Consolidated Edison Co. of NY, Inc.

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Arkin v Consolidated Edison Co. of NY, Inc. 2012 NY Slip Op 32950(U) December 12, 2012 Sup Ct, New York County Docket Number: 110906/10 Judge: Michael D. Stallman 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. ANNED ON 121171201 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justice Index Number : 110906/2010 ARKIN, IRENE vs. CONSOLIDATED EDISON SEQUENCE NUMBER : 004 INDEX NO. 110906110 MOTION DATE 10115112 MOTION SEQ. NO. 004 SUMMARY JUDGMENT The following papers, numbered Ito partial summary judgment 10 were read on this motion for summary judgment and cross motion for Notice of Motion; Affirmation - Exhibits A-H [Affirmation]-I [Affidavit]J [Affidavit]-K-L I No(s). I; 2-5 Notice of Cross Motion- Affirmation - Exhibits A-N [Affirmation] I No(s). I No(s). INo(s)" 6-8 Affirmation in Opposition to Cross Motion Replying Affirmation - Exhibits A-B [Affidavit]-C __ - Exhibits 9-10 Upon the foregoing papers, it is ordered that this motion is decided in accordance with the annexed memorandum decision and order. # / Dated: , J.S.C. New York, N e 4 'Cork 1. Check one: ................................................................ 2. Check if appropriate: ............................ MOTION IS: 3. Check if appropriate: ................................................ u x CASE DISPOSED GRANTED DENIED !A SETTLE ORDER n X NON-FINAL DISPOSITION GRANTED IN PART 1r-l r_I] SUBMIT ORDER OTHER [* 2] Plaintiff, Index No. 110906A 0 I -V- Decision and Order CONSOLIDATET) EDISON COMPANY OF NEW YORK, INC., CONSOLIDATED EDISON, INC., THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, MOSCOT OPTICAL CORP., JES DELANCEY ORCHARD, LLC, SOL I MOSCOT, INC., and PHYSICAL HOLDING, INCI - ".* b. .-+ --.-"C*.-4- ~ In this personal injury action arising out of a trip and fall over a sidewalk grate, defendant City of New York (City) moves for summary judgment dismissing all claims and cross claims against it (motion sequence 004); plaintiff cross-moves for partial summary judgment as to liability against defendant JES Delancey Orchard LLC (JES) and also opposes City's motion. Defendant JES also moves for summary judgment dismissing all claims and cross claims as against it (motion sequence 005) and plaintiff opposes. Defendant New York City Transit Authority (NYCTA) also moves for summary judgment dismissing all claims and cross claims as against it (motion sequence 006), and plaintiff has submitted a Page 1 of 9 [* 3] limited opposition. Plaintiff moves for partial summary judgment on the issue of liability as against Consolidated Edison Company of New York, Inc. and Consolidated Edison, Inc. (collectively, ConEd) (motion sequence 007). This decision addresses all four motions. BACKGROUND On September 9, 2009, plaintiff allegedly tripped and fell over a defect in the sidewalk adjacent to a grating. The defect was on the sidewalk abutting 1 3 4- 116 Orchard Street, between Delancey Street and Rivington Street, in New York, New York. As a result of the alleged accident plaintiff sustained injuries. At her deposition, plaintiff was asked to mark a photo of the subject area. (Goldberg Affirmation, Ex. 0.) Plaintiff marked a spot that is within twelve inches of the grating. (DiMartini Reply Affirmation, Ex. B.) Plaintiff commenced this action against Consolidated Edison Company of New York, Inc., Consolidated Edison, Inc., The City of New York, Metropolitan Transportation Authority and the New Yorlr City Transit Authority. Plaintiff served an amended summons and complaint on Moscot Optical Corp. (Moscot) and JES Delancey Orchard LLC. Defendants City, JES and NYCTA now separately move for summary judgment dismissing the complaint and all cross claims as against them. Plaintiff cross-moves for summary judgment in her favor as to liability as against defendant JES and separately moves Page2of 9 [* 4] for summary judgment in her favor as to liability as against defendant ConEd. DISCUSSION Motion Sequence 004 Defendant City has met its prima facie burden for establishing judgment as a matter of law. Pursuant to 5 7-210 (b) of the Administrative Code of the City of New York, the owner of real property abutting any sidewalk...shall be liable for any injury to property or personal injury...proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Therefore, the City is not responsible for maintaining or repairing the subject sidewalk, Furthermore, plaintiffs accident allegedly occurred adjacent to a grating in the sidewalk. Pursuant to 34 RCNY § 2-07 (b) (1) the owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware. Furthermore, 34 RCNY 8 2-07 (b) (2) states that [tlhe owners of covers or gratings shall replace or repair any cover or grating found to be defective and shall repair any defective street condition found within an area extending twelve inches outward from the perimeter of the cover or grating. ConEd has admitted ownership of the grating at issue and the responsibility for maintenance and rcpair of the subject grate. (Bauinrin Affirmation, Ex. K, L.) Therefore, the City has no Page 3 of 9 [* 5] responsibility for maintenance or repair of the subject area. Plaintiff has not met her prima facie burden for judgment in her favor as a matter of law against JES on the issue of liability. Plaintiff has not shown that JES owned or had the responsibility to maintain the subject area surrounding the sidewalk grate. Although 5 7-2 10 of the Administrative Code of the City of New York places responsibility for maintenance and repair of the sidewalk on the abutting property owner, 34 RCNY 4 2-07 (b) places responsibility for maintenance and repair of gratings and twelve inches surrounding the grating in the sidewalk on the owners of such gratings. Plaintiff has not shown that JES owned the subject grating. Furthermore, ConEd admitted to owing the subject grate and l o having the responsibility to repair and maintain the grating and the twelve inches surrounding the grating. (DiMartini Affirmation in Opposition, Ex. B.) Therefore, JES is not responsible for maintaining the area of the alleged defect . Motion Sequence 005 Defendant JES has met its prima facie burden for establishing judgment as a matter of law. JES has shown that it is not responsible for the subject sidewalk defect even though it owns the property abutting the sidewalk where the alleged accident occurred. Pursuant to 5 7-210 of the Administrative Code of the City of Page 4 of 9 [* 6] New York, the abutting property owner is responsible for maintenance and repair of any sidewalk defects. However, pursuant to 34 RCNY (5 2-07 (b) the responsibility for maintenance and repair of the grating and twelve inches surrounding the perimeter of a sidewalk grating is on the owner of the grating. In this case, plaintiff allegedly tripped on a defect that was within the twelve inch perimeter surrounding a grating. (DiMartini Affirmation, Ex. K.) ConEd has admitted to ownership of the subject grating and to the responsibility of maintenance and repair of the grating. (Id., Ex. I,) Therefore, defendant JES had no responsibility to maintain the area of the alleged defect. Plaintiff argues that the abutting property owner s duty to maintain and repair the sidewalk is non-delegable to the owner of a sidewalk grating. However, [als the undisputed owner of the subject grate, Con Edison had exclusive maintenance responsibility over the grate and the area extending 12 inches outward from the perimeter of the grate, which included the alleged sidewalk defect that caused plaintiffs fall. (Lewis v Civ of New York, 89 AD3d 410,411 [Ist Dept 201 11.) Moreover, $ 7-2 10 of the Administrative Code of the City of New York does not impose liability upon a property owner for failure to maintain a sidewalk grate in a reasonably safe condition. (Hurley v Related Mgt. Co., 74 AD3D 648, 649 [lstDept 20101.) Plaintiff also argues that the summary judgment Page 5 of 9 [* 7] motion is premature, and more discovery is necessary. However, the motion is not premature. ConEd has already admitted ownership of the grate and responsibility for maintenance and repair of the grate and twelve inches surrounding it. Motion Sequence 006 The NYCTA has met its prima facie burden for establishing judgment as a matter of law. It has shown that it does not own the subject grating, and therefore does not have the responsibility for maintenance and repair of it or the twelve inches surrounding it. The NYCTA has submitted an affidavit by Carmelite Cadet, a civil engineer employed by the NYCTA. Ms, Cadet avers that [tlhe New York City Transit Authority docs not own, operate, maintain, repair, inspect, service or control the sidewalk vault/grating at [the subject] location. (Shufer Affirmation, Ex. K at 7 6.) Moreover, ConEd has admitted to owning the subject grating and therefore, also having the duty to maintain and repair the grating and twelve inches surrounding the perimeter of the grating. (Id., Ex. I, J.) Therefore, thc NYCTA had no duty to maintain the subject area in a reasonably safe condition and cannot be held liable for plaintiff s alleged injuries. Pursuant to CPLR 32 12 (b), the Metropolitan Transportation Authority (MTA) is granted reverse summary judgment for the same reasons that summary judgment was granted to the NYCTA. Page 6 of 9 [* 8] Plaintiff does not oppose the NYCTA s motion except to rcquest the Court limit relief to summary judgment, and not grant a stay. However, discovery is automatically stayed during the pendency of a substantive motion. Motion Sequence 007 Pursuant to 34 RCNY 8 2-07 (b), the owners of sidewalk gratings are responsible for maintenance and repair of the gratings and the twclve inches surrounding the grating. According to photographs plaintiff marked at her deposition, plaintiff alleges she tripped within twelve inches of the subject grating. (Goldberg Affirmation, Ex. P.) ConEd has admitted to owing the subject grating and to having the duty of maintenance and repair of the grating and twelve inches surrounding the grating. (Id,, Ex. P, Q.) ConEd does not oppose plaintifFs motion. Therefore, plaintiff is granted summary judgment in her favor as to liability as against ConEd. CONCLUSION Accordingly it is hereby ORDERED that the motion for suininary judgment by defendant City of New York is granted and the complaint and all cross claims are dismissed in their entirety as against said defendant with costs and disbursements to said defendant as taxed by the Clerk of the Court; and it is further Page 7 of 9 [* 9] ORDERED that the cross motion by plaintiff for partial summary judgmcnt as against defendant JES Delanccy Orchard LLC is denied; and it is further OIWERED that the motion for summary judgment by defendant JES Delancey Orchard LLC is granted and the complaint and all cross claims are dismissed in their entirety as against said defendant with costs and disbursements to said defendant as taxed by the Clerk of the Court; and it is further ORDERED that the motion for summary judgment by defendant New York City Transit Authority is granted to the extent that the complaint and all cross claims are dismissed in their entirety as against said defendant with costs and disbursements to said defendant as taxed by the Clerk of the Court; and it is further ORDERED that the Metropolitan Transportation Authority is granted reverse summary judgment and the complaint and all cross claims are dismissed in their entirety as against said defendant with costs and disbursements to said defendant as taxed by the Clerk of the Court; and it is further ORDERED that the action is severed and continued as against the remaining defendants; and it is further ORDERED that plaintiffs motion for partial summary judgment as to liability against defendants Consolidated Edison Company of New York, Inc. and Page 8 of 9 [* 10] Consolidated Edison, Inc. is granted and the only triable issues of fact remaining relate to the amount of damages to which plaintiff is entitled; and it is further ORDERED that an immediate trial of the aforesaid issues of fact shall be had before the court; and it is further ORDERED that the plaintiff shall, within 20 days froin entry of this order, serve a copy of this order with notice of entry upon counsel for all parties hereto and upon the Clerk of the Trial Support Office and shall serve and file with said Clerk a note of issue and statement of readiness and shall pay the fee therefor, and said Clerk shall cause the matter to be placed upon the calendar for such trial; and it is further ORDERED that this action is respectfully referred the to Trial Support Office for transfer to a General Part, as the New York City Transit Authority is no longer a party to the action; and it is further ORDERED that the Clerk is directed to enter judgrn&t in defendants favor ED \ \< accordingly. \ Dated: December 1 5 0 1 2 New York, NY \* I 1%

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