Nahar v Socci
Decided on May 1, 2012
Supreme Court, Kings County
Shamsun Nahar, Plaintiff,
Angelo Socci, LORETTA SOCCI and CITIGROUP, INC., Defendants.
Plaintiff Shamsun Nahar was represented by Thomas S. Lobue, Esq. of Ateshoglou & Aiello, P.C. Defendant Citigroup, Inc. was represented by Joseph W. Sands, Esq. of White & McSpedon, P.C.
Jack M. Battaglia, J.
On the liability phase of a bifurcated trial, there was no dispute that, on July 13, 2007, plaintiff Shamsun Nahar tripped and fell on the sidewalk abutting 1200 Liberty Avenue in Brooklyn, at least in part by reason of a defect in the sidewalk, characterized variously as a "hole" or "crack." The property at 1200 Liberty had been occupied since 1974 by a branch of defendant Citigroup Inc., known as "Citibank" in 2007, and had been owned since approximately 1990 by Angelo Socci and Loretta Socci ("the Soccis"), who originally were defendants, but settled with Plaintiff.
In its verdict, the jury determined that defendant Citigroup, the Soccis, and Plaintiff were each negligent in a manner that contributed to Plaintiff's fall. Fault was apportioned 70% to Citigroup, 25% to the Soccis, and 5% to Plaintiff. With this motion pursuant to CPLR 4404 (a), Citigroup asks the Court to set aside the jury's verdict, and enter judgment in favor of Citigroup "as a matter of law."
"For a court to conclude as a matter of law [pursuant to CPLR 4404 (a)] that a jury [*2]verdict is not supported by sufficient evidence . . . [i]t is necessary first to conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." (Cohen v Hallmark Cards, 45 NY2d 493, 499 .) "In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every favorable inference which may properly be drawn from the facts presented, and the facts must be considered in the light most favorable to the nonmovant." (Szczerbiak v Pilat, 90 NY2d 553, 556 .) "If there is a question of fact and it would not be utterly irrational for the jury to reach the result it has determined upon . . . the court may not conclude that the verdict is as a matter of law not supported by the evidence'." (Soto v New York City Tr. Auth., 6 NY3d 487, 492  [quoting Cohen v Hallmark Cards, 45 NY2d at 499].)
The law concerning liability for injury caused by a dangerous condition on a sidewalk changed in New York City during the time 1200 Liberty Avenue has been occupied by Citigroup and owned by the Soccis. Prior to September 14, 2003, the effective date of §7-210 of the Administrative Code of the City of New York ("the New Sidewalk Law"), the City had an "obligation to maintain sidewalks in a reasonably safe condition." (See Garricks v City of New York, 1 NY3d 22, 27 ; see also Rodriguez v City of New York, 12 AD3d 282, 282 [2d Dept 2004].) At the same time, the owner of the property abutting the sidewalk could also be liable for damage or injury caused by a dangerous condition on the sidewalk "where the sidewalk was constructed in a special manner for the benefit of the abutting owner . . . , where the abutting owner affirmatively caused the defect, . . . where the abutting landowner negligently constructed or repaired the sidewalk . . . [,] and where a local ordinance or statute specifically charges an abutting landowner with a duty to repair the sidewalk and imposes liability for injuries resulting from the breach of that duty." (See Hausser v Girunta, 88 NY2d 449, 453 .) Where both the City and the abutting landowner breached their respective duties to members of the public, both could be "made to respond in damages to those injured by the defective condition." (See D'Ambrosio v City of New York, 55 NY2d 454, 463 .)
Effective September 14, 2003, the New Sidewalk Law imposes upon the owner of real property abutting any sidewalk "the duty . . . to maintain such sidewalk in a reasonably safe condition," and provides that the owner "shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." (See Administrative Code of the City of New York §7-210 [a], [b].) There is an exception to owner liability for "one-, two-, or three family residential real property that is . . . in whole or in part, owner occupied, and . . . used exclusively for residential premises." (See Administrative Code of the City of New York §7-210 [b].) The City "shall not be liable for any injury to property or personal injury . . . proximately caused by the failure to maintain sidewalks," except for sidewalks abutting owner-occupied residential properties with three or fewer units, or where the City itself is the owner of the abutting property. (See Administrative Code of the City of New York §7-210 [c].) There is nothing in the New Sidewalk Law, however, that suggests that the City would not be liable where its liability would not be based on a failure to maintain, but rather a breach of its duty not to create a dangerous [*3]condition on a sidewalk, whether it creates the condition with its own employees or a contractor. (See Tumminia v Cruz Constr. Corp., 41 AD3d 585, 586 [2d Dept 2007]; see also Harakidas v City of New York, 86 AD3d 624, 627 [2d Dept 2011].)
The potential liability of a lessee of property, however, has not changed by reason of the New Sidewalk Law. (See Leary v Dallas BBQ, 91 AD3d 519, 519 [1st Dept 2012].) In the absence of a lease that is "so comprehensive and exclusive' as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk" (see Abramson v Eden Farm, Inc., 70 AD3d 514, 514 [1st Dept 2010] [quoting Espinal v Melville Snow Contrs., 98 NY2d 136, 140 (2002)]), the lessee will be liable only if it "created the defective condition, negligently made repairs, or used the sidewalk for a special purpose" (see Berkowitz v Dayton Constr., Inc., 2 AD3d 764, 765 [2d Dept 2003]; see also Collado v Cruz, 81 AD3d 542, 542 [1st Dept 2011]; Biondi v County of Nassau, 49 AD3d 580, 580-81 [2d Dept 2008]; Zito v City of New York, 293 AD2d 469, 469-70 [2d Dept 2002].) Moreover, an out-of-possession landlord is not relieved of its "nondelegable duty to maintain the sidewalk in a reasonably safe condition" (see Reyderman v Meyer Berfond Trust No.1, 90 AD3d 633, 634 [2d Dept 2011]; see also James v Blackmon, 58 AD3d 808, 809 [2d Dept 2011].)
As applied here, for most of the years that Citigroup leased the property at 1200 Liberty Avenue and that the Soccis owned the property, i.e., prior to September 2003, the City was responsible for maintaining the sidewalk in a reasonably safe condition, and the Soccis as owners and Citigroup as lessee would only be liable for injury resulting from a special use, a dangerous condition created, or a negligent repair. From September 2003 until Plaintiff's fall in July 2007, the Soccis were responsible for maintaining the sidewalk in a reasonably safe condition, and Citigroup and the City would only be liable for injury resulting from a special use, a dangerous condition created, or a negligent repair. As will appear, there was insufficient evidence that the lease between the Soccis and Citigroup "comprehensively and exclusively" imposed on Citigroup the responsibility for maintaining the sidewalk (see Ambramson v Eden Farm, Inc., 70 AD3d at 514.)
The jury was, of course, instructed as to the law applicable on July 13, 2007, the date of Plaintiff's fall. The history is important, however, as context for the central factual dispute at trial, which was whether Citigroup negligently repaired the sidewalk in a manner that contributed to Plaintiff's fall, and the central legal question on this motion, which is whether there is sufficient evidence in the record to support the jury's determination that it did.
Four witnesses testified at trial: plaintiff Shamsun Nahar; her daughter, Shaila Rahman; Plaintiff's expert, William Marletta, who described himself as a "safety consultant or safety professional," and who inspected the sidewalk on February 26, 2009; and Edward Gnoza, who was a maintenance field supervisor for Citigroup or its agent from July 2005 through July 13, 2007. Deposition testimony was read of Angelo Socci and of Florian Klusek, a maintenance mechanic for Citigroup or its agent from 2003 until 2010. [*4]
For purposes of this motion, the most significant testimony of Plaintiff and her daughter was their assertions that certain photographs showed the "condition of the sidewalk" as it appeared on July 13, 2007, which was sufficient foundation for the admission of the photographs (see Corsi v Town of Bedford, 58 AD3d 225, 228-29 [2d Dept 2008]), although they were actually admitted by stipulation. Plaintiff also testified as to the precise location and manner of her fall.
Angelo Socci testified in 2010 that he and his wife had not made any repairs to the sidewalk at 1200 Liberty Avenue. Deposition testimony of this type is given probative value on whether an owner made any repair to the sidewalk. (See Mendez v City of New York, 27 AD3d 428, 429 [2d Dept 2006]; Ritts v Teslenko, 276 AD2d 768, 768 [2d Dept 2000].) There was no evidence that the Soccis did, in fact, make any repair to the sidewalk.
Mr. Socci also testified that he thought that Citigroup's lease required that it "take care of the sidewalks." (See Trial Transcript ["T"] at 21.) There was no objection by Defendant to the reading of this testimony. Had there been, the testimony would have been excluded as violative of the best evidence rule. (See Schozer v William Penn Life Ins. Co., 84 NY2d 639, 644-45 ; Kliamovich v Kliamovich, 85 AD3d 867, 869 [2d Dept 2011].) When Mr. Socci was asked whether "the bank had worked on the sidewalk," he responded that "maybe five, six, ten" years before July 2007, "they done all the sidewalks . . . they made all new sidewalks" (T. at 81.) This testimony is not particularly helpful to Plaintiff since, as will appear, Plaintiff's theory of negligent repair is that fill-in or patch-work was done on the sidewalk, whereas proper repair required a replacement of the entire sidewalk flag.
Edward Gnoza testified that, from July 2005 until July 2007, neither he nor anyone under him made any repairs to the sidewalk at 1200 Liberty Avenue. Mr. Gnoza also testified that a records search "for all Citibank work done at this location" turned up only a single document, a work order in November 2004 that is discussed below. (See T. at 134-35.) With a proper foundation, the negative results of a records search can provide evidence that no repair was made. (See Furey v Sayville Union Free School Dist., 36 AD3d 588, 589 [2d Dept 2007]; Rendon v Castle Realty, 28 AD3d 532, 533 [2d Dept 2006].) But there was no foundation here (see Whitfield v City of New York, 16 Misc 3d 1115 [A] [Sup Ct, Kings County 2007], aff'd 48 AD3d 798 [2d Dept 2008]), and the Court gives no probative weight to Mr. Gnoza's testimony about the records search.
For present purposes, the November 2004 work order states little more than that Florian Klusek was assigned to "Repair Sidewalk" at 1200 Liberty Avenue. No specific location on the sidewalk is given, nor is there any description of the condition to be repaired. The "Work Type" is described only as "Carpentry." Mr. Klusek testified at his examination before trial that he had no recollection of repairing the sidewalk at 1200 Liberty Avenue in November 2004 or at any other time, although he also said he "might" have repaired the sidewalk "if there was a meter knocked down, I filled the hole with Quick-Rok, I think, like fast drying stuff" (see T. at 99.) As to work on sidewalks generally, Mr. Klusek was only authorized to "fill up a small hole, small [*5]crack." (See T. at 109.) It was "not [his] job" to do patch work on a sidewalk; but if he did any of that type of work, "that would be very, very small repair. Nothing involving replacing cement or flags or chopping or cutting." (See T. at 171, 172.)
Plaintiff's expert, William Marletta testified, based upon photographs in evidence and his own inspection in February 2009, that repairs had been made to the sidewalk at 1200 Liberty
Avenue. Although an expert is permitted to render an opinion based upon "photographs identified by [a plaintiff] as accurately depicting the condition of the [sidewalk] at the time of the accident" (see Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482 [2d Dept 2007]), neither Plaintiff nor her daughter can be understood as having testified as to the conditions relied upon by the expert in rendering his opinion.
Nonetheless, Mr. Marletta also testified that the condition of the sidewalk as shown in one of the photographs was "by and large the same" when he made his inspection. Moreover, Mr. Marletta identified certain observed conditions as the basis for his opinion that "someone had attempted to repair . . . the sidewalk" (see Fraser v Fertig, 251 AD2d 621, 621-22 [2d Dept 1998].) Specifically, he noted "areas where the concrete is a different color, a different texture and has been filled in" (T. at 149); "there's an area here, there's an area in here, there's an area here, there's filler in here . . . all areas where this patch work, . . . different type of concrete has been filled in in an attempt to repair the crack" (T. at 150); and, "These are all different colors or texture. They're not of the same poor [sic] or material . . . It's a repair that was made." (T. at 152.)
Moreover, "This sidewalk has been repeatedly repaired on more than one occasion . . . Somebody has been repairing this on a regular basis." (T. at 156.) Mr. Marletta could not testify as to when the repairs were made, however, stating at one point that the repairs were made at least five years, and perhaps ten years, prior to Plaintiff's accident (see T. at 165-66), but also that the repairs could have been made in November 2004 (see T. at 167.)
There was no other evidence as to when the allegedly negligent repairs were made, or that defendant Citigroup made them. (See Alekperova v Yuger, 29 AD3d 610, 611 [2d Dept 2006]; Angelo v City of New York, 5 AD3d 707, 708 [ 2d Dept 2004]; Ritts v Teslenko, 276 AD2d at 769].) Although until approximately nine months before Plaintiff's fall, the City of New York was primarily responsible for maintenance and repair of the sidewalk, there was no evidence as to the results of any records search made by the City, at the request of either party, as to any repair the City or a contractor would have made to the sidewalk at 1200 Liberty Avenue at any time before Plaintiff's fall in July 2007. (See Kozma v Biberfeld, 264 AD2d 817, 818 [2d Dept 1999]; Faulk v City of New York, 16 Misc 3d 1108 [A], 2007 NY Slip Op 51346 [U], * 9 [Sup Ct, Kings County 2007].)
Plaintiff contends that defendant Citigroup owed a duty to Plaintiff to maintain the sidewalk at 1200 Liberty Avenue because Citigroup "assumed comprehensively and exclusively' to make all repairs and replacements to the sidewalk at its own expense, . . . has entirely [*6]displaced the landlord's duty to maintain the sidewalk, and by assuming such duty may be liable to pedestrians for injuries sustained by the failure to make necessary and proper repairs." (Affirmation in Opposition ¶ 28.) Whether or not such duty existed is a question of law for the Court. (See Espinal v Melville Snow Contrs., 98 NY2d 136, 138 .) In neither of the cases cited by Plaintiff in support of such a duty (see Abramson v Eden Farm, Inc., 70 AD3d at 514; Giarrantani v We're Assoc., Inc., 29 AD3d 946, 947-48 [2d Dept 2006]), did the court address the question without reference to the provisions of an applicable written lease or management agreement (see also Collado v Cruz, 81 AD3d at 542.)
The deposition testimony of Angelo Socci as to his belief as to the terms of Citigroup's lease for 1200 Liberty, which was executed before Mr. Socci and his wife purchased the property, even as admitted into evidence without objection, is insufficient to establish Citigroup's duty to maintain the property for the benefit of third parties. (See Kreimer v Rockefeller Group, 2 AD3d 407, 408 [2d Dept 2003]; Vasquez v RVA Garage, 238 AD2d 407, 408 [2d Dept 1997]; Buckley v Rockefeller Group, 143 AD2d 623, 623 [2d Dept 1988]; see also Mancuso v J & Velco Co., L.P., 58 AD3d 577, 578 [1st Dept 2009]; Thompson v Corbett, 13 AD3d 1060, 1062 [4th Dept 2004].) There was no acknowledgment by Citigroup that Mr. Socci's characterization of the lease terms was correct (compare Tushaj v Elm Mgt. Assoc., 293 AD2d 44, 45 [1st Dept 2002]), and even if "actual practice" is considered (see Vusaj v Insignia Residential Group, Inc., 50 AD3d 393, 394 [1st Dept 2008]), as will appear, except for a single instance, the evidence as to Citigroup's repair of the sidewalk is all circumstantial. Mr. Socci's testimony that he made no repairs to the sidewalk does not establish that he had no obligation to do so under the lease. (See Vasquez v RVA Garage, 238 AD2d at 408.)
The case was tried, and submitted to the jury, on the theory that defendant Citigroup would be liable to Plaintiff if its negligent repair of the sidewalk caused Plaintiff to fall, and that only the Soccis had a duty to maintain the sidewalk in a reasonably safe condition, whether or not they made any repairs. Plaintiff does not now seek to set aside the verdict on the ground that the jury was not properly instructed. As noted, the jury found that Citigroup and the Soccis were each negligent, allocating the greater fault to Citigroup. If the jury's verdict is to be sustained, it must be on sufficient evidence that Citigroup negligently repaired the sidewalk, and that its negligence was a substantial factor in bringing about Plaintiff's fall.
The next question, then, is whether the jury was given sufficient evidence to conclude that defendant Citigroup made the allegedly negligent repairs to the sidewalk at 1200 Liberty Avenue.
"Plaintiffs need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently remote' or technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence . . . A plaintiff need only prove that it was more likely' . . . or more reasonable' . . . that the alleged injury was caused by the defendant's negligence than by some other agency." (Gayle v City of New York, 92 NY2d 936, 937  [citation omitted].) [*7]
Jury verdicts have been upheld by the Court of Appeals "where it could not be established by direct evidence that the defendant was in fact responsible for the condition causing plaintiff's injury but the probability that under all the circumstances defendant was not responsible was slight." (See Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 205 ; compare Bernstein v City of New York, 69 NY2d 1020, 1021-22 .)
Here, the question becomes whether there was sufficient evidence to conclude that defendant Citigroup not only made repairs to the sidewalk at 1200 Liberty, but made all of the repairs. There is documentary evidence that Mr. Klusek made at least one repair to the sidewalk, but no evidence that Mr. Klusek's repair was a cause in fact of Plaintiff's fall. Similarly, Mr. Marletta's opinion would support a jury determination that more than one repair was made to the sidewalk, but there was no evidence that Citigroup made any particular repair that was a cause in fact of Plaintiff's fall.
Although it is a close question, giving Plaintiff the benefit of every favorable inference, there was sufficient evidence to allow the jury to conclude that defendant Citigroup made all the repairs to the sidewalk that Plaintiff alleges were negligently made. Whether or not Angelo Socci was correct that, as between the Soccis and Citigroup, only Citigroup was responsible for maintenance and repair of the sidewalk, his testimony was definitive that he and his wife made no repairs. Although there is no evidence as to whether the sidewalk was repaired by the City of New York, or under permit from the City (see Sheehy v City of New York, 43 AD3d 336 [1st Dept 2007]), no inference adverse to Plaintiff can be taken, since any such evidence would have been as available to Citigroup as to Plaintiff. And the nature of the repairs to the sidewalk and the materials used, as described by Mr. Marletta, are consistent with Mr. Klusek's testimony as to the repairs he, and presumably others, would have made to the sidewalk.
The questions as to negligence and causation are more problematic, and the answers depend upon the testimony of Plaintiff's expert, William Marletta. First, Mr. Marletta described the conditions he observed on February 26, 2009, and that, the Court will assume despite the questions noted above as to the photographs, were present on July 13, 2007:
" . . . I saw an existing concrete sidewalk that was about nine foot, nine inches from the face of the building to the curb on Liberty. I think it's Liberty Avenue.
I saw a crack which extended from the curb towards the front of the building. It was deteriorated, eroded, cracked, misleveled and it had several repairs to it at the time of my inspection, patches. I saw an area which had been identified as the accident site which had missing concrete, the width of the, I'll call it a hole, was about three and half inches wide.
The crack extended or the missing area of concrete extended for probably about 21 to 24 [*8]inches long. And the depth of the hole from the top surface was about an inch." (T. at 148.)
When asked "whether or not the repairs that were conducted before July 13th, 2007 were conducted within good and accepted safety practices within the City of New York," Mr. Marletta responded:
"In my opinion, the repairs were not proper. They are contrary to the specifications of the City of New York.
City of New York has specifications two dash, I think it's 09, of the title for sidewalks which says that patchwork shall not be permitted, that flags will be replaced, that cracks and repairs and things of this nature need to be replaced by replacing entire flags, repouring the concrete and using that as a repair, that you can't just come in and make surface crack repairs you see here." (T. at 156.)
Mr. Marletta explained: "Patch work is not permitted in the City of New York by the City of New York in repairing a sidewalk because patch work has no strength" (T. at 152); "Making repairs to a known crack . . . is nothing more than a very, very temporary cure for alleviating the hazard . . . it's going to come back . . . it's going to crack" (T. at 152-53); "the patchwork never really stays, it's very weak" (T. at 155.)
There was no testimony from Mr. Marletta that any repair was attempted at the "hole" or "crack" where Plaintiff fell (the "subject defect.") Mr. Marletta's opinion, and Plaintiff's theory as to negligent repair and causation, is based upon §2-09 of the Administrative Code, i.e., if Citigroup had not relied on a patch-work repair to some part of the flag in which the subject defect was found, and instead had replaced the entire flag, the subject defect would not have been present on July 13, 2007. As Plaintiff's counsel argued to the jury, specifically referring to Mr. Marletta's testimony and §2-09:
"If you go out and you go repair a sidewalk, you try to patch it, it's improper. It's negligence. You have to replace the whole flag, all right, the whole flag.
If you take a look at Plaintiff's Exhibit Two - - if I had the pointer, it might be easier. Mr. Sands' argument is, well, you have to show that we created this particular spot where the plaintiff fell, right. The minute Mr. Klusek, according to the law, the ordinance, section 2-09, the minute Klusek or anybody from CitiBank goes out and does any patchwork here, here, here or here or here or here, the right way to do it is to cut the whole flag out and put a new flag in.
There's two flags here. You will see them better when you see the photograph in evidence. When they went out there and did repair work, whether it was patch, Quik-crete, whatever it is, they needed to cut this whole flag out and needed to cut this whole flag out and put two new whole flags in. [*9]
And with two new whole flags in, there's no holes anymore. This accident doesn't happen. And that's why they are responsible. That's why they are responsible.
It's not a matter of we did this patch, okay, we didn't do this patch, okay, we don't do that patch, okay, they needed to repair when they - - when you find that a repair was done and CitiBank did the repair, they needed to cut two flags out and put two flags in this to make them all nice and flat just like the other ones." (T. at 233-34 [emphasis added].)
The serious - -indeed, fatal, difficulty - - with Plaintiff's theory as to negligent repair and causation is that there was no evidence of a failure to comply with the Administrative Code. As the Court instructed the jury:
"Section 2-09 of the rules of the City of New York provide that a person installing or repairing roadway pavements, sidewalks or curbs must comply with certain requirements including All flags containing substantial defects shall be fully replaced. Patching of individual flags is not permitted.'
Substantial defects including, A trip hazard where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth'." (T. at 252.)
Mr. Marletta could not say when the repairs he identified were made, and he did not testify as to the dimensions of any crack at the time it was repaired. The only dimensions given were the dimensions of the subject defect, and even if the subject defect was previously repaired, the dimensions on February 26, 2009 or even July 13, 2007 are not evidence of the dimensions when the allegedly improper repair was made. Mr. Marletta did not testify that the dimensions of
any repaired area on those dates could, with a reasonable degree of engineering certainty, establish the dimensions of the area on any earlier date.
In short, in the absence of the dimensions of any area repaired by Citigroup, there is no evidence that there was a "substantial defect" when the repair was made; in the absence of a "substantial defect," the ordinance does not require that an entire flag be replaced; and in the absence of a requirement that an entire flag be replaced, there is no negligence in failing to do so, and no causal relationship between the repair and Plaintiff's fall.
It is important to stress again that, as a lessee that has not displaced the owner's duty to maintain the sidewalk, Citigroup's liability is limited to a negligent repair that was a substantial factor in bringing about injury. The "duty not to create a defective condition" is "independent" of any duty to maintain the sidewalk in a reasonably safe condition. (See Kiernan v Thompson, 73 NY2d 840, 841 .) The subject defect on the sidewalk at 1200 Liberty Avenue on July 13, 2007 could well be the basis for a determination, such as the jury made, that the Soccis breached their duty to maintain the sidewalk in a reasonably safe condition, but, absent evidence [*10]that the subject defect was the consequence of Citigroup's negligent repair, it cannot be the basis of a determination that Citigroup breached any duty to Plaintiff.
Since there is insufficient evidence to sustain the jury's verdict, it must be set aside, and judgment entered in favor of defendant Citigroup, Inc., dismissing Plaintiff's complaint.
May 1, 2012___________________
Jack M. Battaglia
Justice, Supreme Court