Dixon v Corner Table Rest., Inc.

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Dixon v Corner Table Rest., Inc. 2012 NY Slip Op 33022(U) December 17, 2012 Supreme Court, New York County Docket Number: 101993/11 Judge: Joan A. Madden 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. SCANNED ON I212012012 [* 1] SUPREME COURT OF THE STATE 0 NEW YORK COUNTY ORK Index Number : 101993/2011 DIXON, PATRICIA vs. - INDEX NO. MOTION DATE CORNER TABLE RESTAURANTS SEQUENCE NUMBER : 001 MOWON SEQ. NO. SUMMARY JUDGMENT The following papem, numbered 1 to ,were read on this motion M o r Notice of MotionlOrder to Show Cause -Affidavits Answerlng Affidavits - Exhibits -Exhibib INo(s). IWs). IW a ) . Replying Affldavits Upon the foregoing papem, it is ordered that this motion Is h k b d b 4 C / n C f ' h ~ D C C ' S I u v t. ' of& A d d lw ' Ir r& L, ' DEC 1 9 2012 Dated: z / J6 ....................................................... 0CASE DiSPQSED ............. ..MOTION is: GRANTED &NED TE: ................................................ 0S E ~ L E GRANTED IN P FIDUCIARY APPOINTMENT 'L-u [* 2] -againstCORNER TABLE RESTAURANT, LLC, LH HOSPITALITY LLC and ROCINANTE CORP., each individually and d/b/a JANE, In this personal injury action, defendants Comer Table Restaurant, LLC and LH Hospitality, LLC (together the moving defendants ) move for summary judgment dismissing the complaint against them, Plaintiff and defendant Rocinante Corp. ( Rocinante ) each oppose the motion, which is denied for the reasons below. BACKGROUND This is a personal injury action arising out of a trip and fall incident on December 22, 2010, near 100 West Houston Street, New York, NY outside the Jane Restaurant (hereafter the Restaurant ), Defendants Corner Table Restaurants and LH Hospitality respectively operate and manage the Restaurant, Defendant Rocinante owns the building where the Restaurant is located. The incident occurred on an exterior metal platform in front of the Restaurant that meets the sidewalk in an area in front of the entrance door. Plaintiff testified that she stepped into a hole on the platform and fell on her nose. She also testified that the area where she fell was dark due to a shadow created by he Restaurant s awning. The moving defendants argue that they are entitled to summaryjudgment as the 1 . .. . . ~. .. - [* 3] Restaurant does not use the platform which is part of the public sidewalk and therefore the restaurant is not responsible for it. The moving defendants also argue that the platform is not part of their demised premises and that they leased only the ground floor and the basement of the Restaurant. The moving defendants point out that its lease agreement makes Rocinante responsible for public portions of the building both interior and exterior. The moving defendants further argue that they are entitled to summary judgment as they did not create or have constructive or actual notice of any dangerous condition on the platform, and there was no hazardous condition as the height differential constituting the alleged defect is insufficient. Plaintiff and Rocinante each oppose the motion, In support of its opposition, Rocinante points to evidence that Restaurant used the platform on a daily basis providing a means to enter and exit the restaurant, that the Restaurant put benches on the platform which were present on accident date, and that Restaurant employees cleaned the platform. Rocinante also points to plaintiffs testimony that there was a shadow created by the Restaurant awning that made platform dark. Plaintiff also argues that the restaurants use of the platform constituted a special use, and that the lack of lighting, the color of the platform and its proximity to the sidewalk created optical confusion and a hazard. DISCUSSION On a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Wingard v. New York Univ. Med. Center, 64 N.Y.2d 85 1, 852 (1985), Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 2 [* 4] (1986). The owner or possessor of a property has a duty to maintain the property in a reasonably safe condition and may be held liable for injuries arising from a dangerous condition on the property if such owner or possessor either created the condition, or has actual or constructive notice of it and a reasonable time within which to remedy it. Freidah v. Hamlet Golf and Countrv Club, 272 A.D.2d 572, 573 (2 dDep t 2000); see also O Connor-Miele v. Barhite & Holzinger. Inc., 234 A.D.2d 106 (lstDep t 1996). Whether a dangerous or defective condition . . . create[s] liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury. Trincere v. Countv of Suffolk, 90 N.Y.2d 976, 977 (1997), citing Guerrieri v. Summa,193 A.D.2d 647 (2d Dept. 1993). However, trivial defects on a walkway not constituting a trap or nuisance, as a consequence of which a pedestrian might . , . trip, are not actionable. Morales v. Riverbav Cog., 226 A.D.2d 271 (1 st Dept. 1996). In determining whether an alleged defect is trivial as a matter of law, the court must examine all the facts presented, including the width, depth, elevation, irregularity and appearance of the alleged defect, along with the time, place and circumstances of the injury, and whether it constitutes a trap or snare. Trincere v. Countv of Suffolk 90 N.Y.2d at 977, citing Caldwell v. Vill. of Isl. Park,304 N.Y. 268 (1952). 7 Whether a dangerous or defective condition.. .creates liability depends on the peculiar facts and circumstances of each case and is generally a question for the jury,)) Trincere v. County of Suffolk, 90 N.Y.2d 976, 977 (1997), citing Suerrieri v. Summa, 193 A.D.2d 647 (2d Dept. 1993). Here, there are issues of fact as to whether the purported lack of lighting, the color of the platform, and its proximity to the sidewalk created optical confusion and a hazard, Next, although it appears that the platform was not part of the premises leased by the 3 [* 5] Restaurant, the Restaurant may be held liable for a defect in the platform under the special use doctrine, "The principle of special use ... imposes an obligation on the abutting landowner (or occupier), where he puts part of a public way to a special use for his own benefit, and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others." See, Balsam v Delma Engineerinp, Corn., 139 A.D.2d 292, 298, appeal dismissed in part. denied in part, 73 N.Y.2d 783 (1 988)(citation omitted); see, also, Kaufman v Silver, 90 N.Y.2d 204,207 (1997). Here, the Restaurant's use of the platform as a means of entering and exiting the Restaurant and the Restaurant's placement of benches on the platform are sufficient to give rise to a duty based on special use of the platform. Furthermore, the record presents issues of fact as to whether Dixon fell as a result of a lack of lighting on the platform, a condition arguably created by the Restaurant's awning. Freidah v. Hamlet Golf and Countrv Club, 272 A.D.2d at 573. Finally, given the location of the alleged defect in front of the Restaurant, factual issues exist as to whether the Restaurant had actual or constructive notice the defect. See generally, Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). In view of the above, it is ORDERED that the motion by defendants Corner Table Restaurant, LLC and LH Hospitality, LLC for summary judgment dismissing the complaint against it is denied. DATED: Decembej 9 / J.S.C. FILED DEC 1 9 2012 4

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