Restrepo v ABC Properties Equities, LLC

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Restrepo v ABC Properties Equities, LLC 2012 NY Slip Op 33036(U) December 19, 2012 Sup Ct, New York County Docket Number: 103939/10 Judge: Cynthia S. Kern 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. ............ SCANNEDON I212112012 [* 1] - . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: Justice - Index Number : 103939/2010 INDEX NO. RESTREPO, PIEDAD vs. ABC PROPERTIES EQUITIES SEQUENCE NUMBER : 004 MOIION DATE MOTlON SEQ.NO. UMMARY JUDGMENT The following papers, numbered 1 to Notice of MotlonlOrder to Show Cause Answering Affidavits Replying Affldarits ,were read on this motion tolfor -Affldavita -Exhibib IWJ). IWr). IN O W . - Exhibits 1 Upon the foregoing paper$, It is ordered that this motion Is _.*+- \ ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: . . . . . . . . . . . . . . M O T I O ~S GRANTED aDENIED I: 3. CHECK IF APPROPRIATE: ................................................ c SETTLE ORDER ] I.CHECK ONE: 000 NOT POST . . I NONqINAL DISPOSIlION $ OTHER 0GRANTED IN PART 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Index No. 103939110 DECISIONIOIWER -against- ABC PROPERTIES EQUITIES, LLC,NO1 DUE, MC, and EQUITABLE COMPUTER COMPANY, MC. dlwa A CUT ABOVE, Third-Pwrty Plaintiff, I \ -againsti * . Papem Notice ofklotion and Midavits A-Illlex ..................................... rhg Afidavits. ..................................................................... on and Affidavits Annexed.. ......................................... AfEdavits ta Cross-Motion........................................... ..................................................................... .................................................................................. bib..,. yhg Afrldavits. NUmW 1. 2 3 4 5 5 7 [* 3] Plaintiff Piedad Restrep0 commenced the instant action to recover d . PcsMd injuries she allegedly sustained when she slipped and fell on a patch of black ice in h n t of 143 W e t 69 Street, New York, New York (&e building ) in the early morning of Dcncotrrber 23, 2009. Defendant Equitable Computer Company,Inc. d/b/a A Cut Above ( EqdMle ) now moves far an Order pursuant to CPLR 5 32 12 for summary judgment dismissing the complaint on the ground that it did not cause the conditionor have actual or constructive notice of the condition. Defendant NO1 DUE,Inc. ( NOI ) cross-moves for an Order pursuant t CPLR 0 o 32I2 for summary judgment dimissing the complaint on the ground that it was not mpaiwibk for maintaining the sidtwalk w e e piahtiff s accident occurred. D f n a t ABC Properties hr eedn Quities LLC ( ABC )also moves for an Order pursuant to CPLR 0 32 I2 fbr summary j u d m d ~n its third-party claim and cross-claim for contractual indemnity against Equitable. The tnotionS are consolidated for disposition and am resolved as follows. The relevant fmts am as follow. Plaialntificommenced the imtant actioq t mover o damages for personal injuries she allegedly sustained when she slipped and fell on a pfltch of lrrck ice on the sidewalk in front of the building, which was owned by ABC, at appmx$nately :15 am.on December 23,2009, The building is a 40-unit residential building with two dcflmr units leased to two commcrcid tenants. One commercial tenant is Equitable, which a dog grooming salon known as A Cut Above and the second commercial t-t is NOI* which operates a restmant/caf& Plaintiff testified that her accident o c c w d on the sidewalk in t of the building to the left of a tree well, which it is undisputed was located bove. On B motion fors judgment, the movant b a n the burden o f p m w n k sufficient 2 [* 4] c 2 evidence to demonstrate the absence of any material issues offact. See AZvwez v. ProsprPcl Hosp., 68 N.Y.2d 320,324 (1986). Summary judgment should not be g m t @ d where that is any doubt as to the existence of B m t a i d issue of fact. &e Zuckrman v. City o Nav YorR, 49 f N.Y.2d 557,562 (1 980). O c the movant establishes a p i a facie right to judgment as a matter ne rm of law, the burden shifts to the party opposing the motion to produce evidentiary proof in sdmissible form sufficient to require a trial of materid questions of fact on which he tests his claim. Id A defendant who moves for Summary judpent in a slip and fall case has the initial burden of making aprimufacie showing that it did not a w e the condition and that it did not have actual or constructivenotice of the condition. SBB Branhum v. Loews Orpkeum Cima~m, 3 1 A.D.3d 3 19 (1st Dept 2006). Toconstitute canstructive notice, a defect must be visible and apparent and it must exist for a sufficient l q t h of t m prior to the accident to pernit ie defendant s employees to discover and remedy it. Gwdm v Amsrkan Mwwm ofNatwal HMmy, 67 N.Y.2d 836,837-838 (1986). Moreover, a prima facie Msc of negligeme mwt be based on something more than conjecture;m m specul~ltion regarding cawation is inadequate to n the cause of action. Conclwory dlegasions wimpported by evidence we insufEciant to establish the requisite notice for imposition 32 A.D.3d 302,303 (1 Dept 2006). Finally, the mere presence of ice does not wtabhh aegl2gmce on the part of the erltity responsibIb for maintaining the property^'' Lmfi Y Inifid Chatzingb i c e s , Inc., 52 A.D.3d 288,289 (1 Dept 2008). Rather, ?plaintiff must present evidence h m which it may be inferred that the ice on which he slipped was ps-t on the ridewalk for a long enough period of time before the accident that the party responsible for the 3 [* 5] sidewalk would have lrad t m to discover and r m d y the dangerous condition. Id at 289. ie The court frst turns to Equitable s motion for summaryjwilylent. In the instant Won, Equitable has failed t establish its prima facie right t summary judgment as it has failed ta o b show that it did not cause the condition or have actual or constructive notice ofthe condition. Pursuant to the lease Equitable maintains with ABC (the Lmse ), [Equitable] shall, at muitable s] own expense, make dl repairs and replacements to the sidewalks and curbs adjmnt thereto, and keep said sidewalks and curbs free from snow, ice, dirt and rubbish Thw, Equitable is contsactually obligated to c l w the sidewalk in front of its premises. However, Clymem Liddle, the principal of Equitable, restified that snow and ice removal from the sidewalk in front of Equitable s pmdses was handid by h m h g o F e m d e z , the building s suprintcndent, and Louis Alba, the buildingasassistant supcrintcmdent, and that t m was never h a mnverstion with ABC about who was responsible for cleariq the snow and ice ftvrm the h n t of the building, nor was any compensation paid to M .Fmmndez or M .Alba for m r m i n g r r guGh tasks. M .Liddle also testified that she never instructed her staff to clear the sidewalk s despite the fact that the Lease requires Equitable to do SO. Ian D From, the managing agent of e the building, testified that Mr. Fernandez and M .Alba s duties did not include s o and iM r nw ramoval f o the sidewalk i front of the commercial tenants premises and that if they did rm n perform snow and ice removal in front of Equitable s premises, as alleged by M .Liddle, then it s was due to an independent amngement made with Equitable. As neither Quitable nor ABC daim t be the party responsible for clearing snow and ice from the sidewalk in front of o Equitable s premises, neither party hm presened evidence that tho snow and ice in h n t of Equitable s premises w s actually cleared subsequent to the slnowfdl earlier that day. Thus, aa a 4 . . . . .. . [* 6] Equitable has not established its pri judgment must be denied. The court next turns to NOI's ("*~ss-motion summary judgment. In the instant,d o a , for NO1 has established its prinla facie right b summary judgment as it has shown that it was not responsible for clearing the sidewalk in h where plaintift's accident'occurred. Imma Mazella, the owner of NOI's restaumtkaf6, testifid that NO1 only shoveled snow and ice on the sidewalk in front ofthe restaumt/&d putsuant to the lease it maintained with ABC. Ms. Mazella testified that she WBS never responsible for, nor was she ever i f e by Ian De Frowe, n d m the managing agent of the building, that NO1 w s responsible for snow removal m maintenance a d in front of the entire building, including the area where plaintif ¬'s fell. In feSPOnN, plaintiff im failed to raise an issue of fact as to whether NO1 dk condition or had a c t d or t constructive notice of the condition as it is clear plaintjfldid not fall in front of NQI's 1 4 mi= and plaintiff has not shown that NO1 was responsible for c l d n g snow and ice from the sidewalk i front of Equitable's premiss. Thus, NOI's motion for summary]Udgment must n Finally, the cowt turns to ABC's motion for summary judgment on its third-party claim cross-clairn for contractual indemnity against Equitable. In the instant action, established its prima h i e right to summaryjudpent BS it hols shown that the uitable t indemnify ABC. Article 58 of the Lease states: o Indcmnification. Tenant shall indemnify and hold harmless Owwr...and its and their respective pwtners, directors, officers, agents and employees f o and against any and all claims arising rm h r n or i connection with...(d ) any breach ot default by Temt in n the...pwfomance of Tenant's obligations under this lease; together has [* 7] with all costs, expemm and liabilities incurred in or in connection with each such claim of action or ppocetdhg brought thereon, including, without limitation, all attmwys' ftw and expenw. As stated above, Article 30 of the base contractually&ligates Equitable t maintain the o sidewalk in front of its premises h e of snow and.ice. Thus, Equitable must indemnify ABC ftom claims asserted against it by plaintiff arising from Equitable's ncglipnce and breach of the h e . Equitable asserts that ABC is not entitled to indemnification because t e exists an issue hm of fact as to whether Equitable was negligent in failing to properly clear the sidewalk free of maw and ice as M .Fernandez and M .Alba routinely cleared the sidewalk in front of r r 'tsbla's premises. Thw, the court grants a conditional order of indemnification as fallows. ABC's motion for summay judgment on i indemnity against Equitable i granted to the extent thst the jury in the trial of the underlying s ' . action finds Equitable liable based on its failure to c l w the sidewalk in front of its premises. , However, If ABC is found to be liable or in b w h of the Lease for hiling t clear thE d&Wk o infront of Equitable's premises, it will not be CntiW to indmmification f o Wui rm Accordingly, Equitable's morion my judgment i denied, NOI's rn s axy judgment is granted and crass-ddrn far contractual indemnity &gaEnst Equitable is g a n d to the extent und to be negligent and i breach of n d not t be liable. This constitutes the deti o

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