Siuzdak v Killowen, Inc.

[*1] Siuzdak v Killowen, Inc. 2012 NY Slip Op 51693(U) Decided on August 27, 2012 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 27, 2012
Supreme Court, Kings County

Maria Siuzdak and Wladyslaw Siuzdak, Plaintiffs,

against

Killowen, Inc. d/b/a/ KEG & LANTERN, ALON COHEN and BARBARA BARON-COHEN, Defendants.



7177/2010



Plaintiff's Attorney: Lurie, Ilchert, MacDonnell & Ryan, LLP, 475 Park Avenue South, Room 2800, New York, NY 10016

Defendant Keg & Lantern's Attorney: Gregory S. Katz, Esq., Lewis Brisbois Bisgaard & Smith, LLC, 77 Water Street, 21st Floor, New York, NY 10005

Defendant Alon Cohen's and Barbara Baron-Cohen's Attorney: Russo, Keane & Toner, LLP, 33 Whitehall Street, 16th Floor, New York, NY 10004

David Schmidt, J.

In this action for negligence, defendant Killowen Inc. d/b/a Keg & Lantern (Keg & Lantern) moves, pursuant to CPLR 3212, for an order dismissing the complaint and all cross claims asserted against it. Defendants Alon Cohen and Barbara Baron-Cohen (the Cohens) cross-move for an order, dismissing the complaint and all cross claims asserted against them, and granting them summary judgment on their cross claims for common-law indemnification against Keg & Lantern.

The complaint, supplemented by the bill off particulars, alleges that on February 11, 2010, at approximately 8:40 a.m., plaintiff Maria Siuzdak (Siuzdak) was injured when she slipped and fell on snow and/or ice while walking on the sidewalk in front of the premises located at 95-97 Avenue, Brooklyn, New York.[FN1] At the time of the accident, the premises was owned by the Cohens and was leased to Keg & Lantern.

For the following reasons, the motion is denied and the cross motion is granted in part and denied in part.

[*2]I.The Relevant Evidence

A.Weather Records

The record, in the form of meteorological reports, shows that on February 10, 2010, the day before plaintiff's accident, there was a snowstorm in the New York City area. Snow began to fall at 2:00 a.m. and the storm ended at approximately 11:05 p.m., depositing ten inches of snow.

B.Deposition Testimony

Plaintiff, at her deposition, testified that her accident occurred on February 11, 2010 at approximately 8:45 a.m., when she fell on ice that was located on the sidewalk in front of the Keg and Lantern. She further testified that a sheet of ice covered the entire area of the sidewalk in front of the Keg & Lantern. Plaintiff did not see any snow on the sheet of ice, though she did see snow piled up into mounds just outside of that area.

Kieran Breen, the owner of Keg and Lantern also testified at a deposition. Besides being the sole owner, Breen stated that he manages the bar, is there 7 days a week, and would normally arrive at about 5:00 p.m. and leave at about 10:00 p.m.. On February 10th and 11th, Keg & Lantern's business hours were from 11:00 a.m. to 1:00 a.m. of the next day. He averred that the Keg & Lantern kitchen staff were in charge of snow and ice removal, and were instructed to shovel snow and salt the sidewalk, when necessary. Although he was at the bar on February 10, 2010, the day of the snowstorm, Breen did not remember seeing any of his employees remove snow from the sidewalk and could not recall the condition of the sidewalk at the time he left the bar. However, when he was notified about the lawsuit, Breen investigated and was informed by one of his employees, a cook named George, that Daniel Mundo, a porter for Keg & Lantern, had shoveled snow from the sidewalk between 9:00 a.m. and 1:00 p.m. on the day of the storm. George told Breen that, after Mundo left at 1:00 p.m., he took over and shoveled snow every 30 minutes until 6:00 p.m., when his shift concluded. Breen was also told (again, by George) that after George left, bar employees Victor and Franscisco continued to shovel snow until 1:00 a.m. (approximately two hours after it stopped snowing) and that salt was applied to the sidewalk each time the bar's employees shoveled. Breen was told that Keg & Lantern employees shoveled and salted the exact portion of the sidewalk that plaintiff claims was covered in ice.

At his deposition, Alon Cohen testified that he, along with his wife Barbara Baron-Cohen, own the premises at 95-97 Nassau Avenue, which is comprised of 12 residential apartments and three commercial tenants. Cohen testified that, pursuant to their leases, the commercial tenants were responsible to remove snow from the sidewalk during regular business hours. If it snowed overnight, he would wait for the commercial tenant to come to the premises to remove snow from the sidewalk. He also stated that he told Breen that it was Keg & Lantern's responsibility to keep the sidewalk clean in front of the bar at all times. Cohen acknowledged that he had a full-time superintendent, Krystyna Solwesko, who lived in the building. According to Cohen, Ms. Solwesko was not responsible for snow removal at the premises but was supposed to keep him informed if there were any problems with respect to the commercial tenants' maintenance of the sidewalk area in front of the premises.

C.The Lease

Paragraph 12 of the lease between Keg & Lantern and the Cohens states that "tenant will be responsible for maintaining the front entrance and sidewalk directly leading to the tenant's restaurant/bar and clean and clear from litter, snow and ice removal during tenant's regular [*3]business hours."

II.Discussion

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).

A.Keg & Lantern's Motion

"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff . . . [L]iability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or special use of the property." Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 (2d Dept 2005) (internal quotation marks and citations omitted).

Pertinent to this motion, "[a] defendant who moves for summary judgment in a slip-and- fall case has the initial burden of making a prima facie showing that it neither created the hazard condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." Mantzoutsos v 150 St. Produce Corp., 76 AD3d 549, 549 (2d Dept 2010) (citations omitted). Only if the "defendant has satisfied [this] threshold burden will the court examine the sufficiency of the plaintiff's opposition." Doherty v Smithtown Cent. School Dist., 49 AD3d 801, 801-02 (2d Dept 2008) (citations omitted).

In support of its motion, Keg & Lantern contends that it did not owe a duty to Siuzdak at the time of the accident and, therefore, cannot be held liable for Siuzdak's injuries. Keg & Lantern advances three arguments as to why it had no duty to plaintiff.

First, Keg & Lantern argues that under the lease agreement between it and the Cohens, it was only obligated to clear the ice and snow during "regular business hours." According to what Breen was told, Keg & Lantern employees cleared the sidewalk in front of the bar of snow throughout the day of the storm until 1:00 a.m., which was the close of business. Thus, Keg & Lantern was not under any further duty to clear the sidewalk until 11:00 a.m. on February 11th, the time at which Keg & Lantern resumed business operations, and well after the time of plaintiff's accident.

Second, Keg & Lantern asserts that it did not have a duty under the New York City Administrative Code to clear snow at the time of the accident. New York Administrative Code § 16-123 provides, in pertinent part, that:

[e]very owner, lessee . . . or other person, having charge of any building or lot of ground in the city, abutting upon any street where the sidewalk is paved, shall, within four hours after the snow ceases to fall . . . remove the snow or ice, dirt, or other material from the sidewalk and gutter, the time between nine post meridian and seven ante meridian not being included in the above period of four hours. [*4]

Since the snow ended during the overnight hours, Keg & Lantern argues that, pursuant to the Code, it had four hours after the snowfall stopped to remove snow and ice from the sidewalk, not including the hours between 9:00 p.m. and 7:00 a.m.. Thus, plaintiff's injury occurred during the four-hour window created by the statute and, as such, Keg & Lantern did not owe a duty to Siuzdak at the time of the accident. See Rodriguez v New York City Hous. Auth., 52 AD3d 299, 300 (1st Dept 2008).

Finally, Keg & Lantern argues that it is not liable for Siuzdak's accident under the "storm in progress" doctrine. Under this doctrine, a defendant is not liable for injuries sustained from icy and snowy conditions that occur during a storm, or for a reasonable amount of time after a storm has passed. According to Keg & Lantern, a reasonable amount of time had not yet passed since the conclusion of the storm, and its obligation to clean the snow had not yet commenced at the time of plaintiff's accident.

None of these arguments, however, have any bearing on plaintiff's claim. Plaintiff is not alleging that Keg & Lantern failed to timely remove the accumulation of snow and ice. Rather, plaintiff claims that the defendants are liable because Keg & Lantern's snow removal efforts, which, admittedly, continued for about two hours after the storm was over, made the sidewalk more dangerous.

"[O]nce a property owner undertakes to remove the snow or ice from the sidewalk, he or she must do so with reasonable care, and liability may result if it is shown that they made the sidewalk more hazardous." Friedman v Stauber, 18 AD3d 606, 607 (2d Dept 2005). Thus, to succeed on its motion, Keg & Lantern has the initial burden of making a prima facie showing that its snow removal efforts did not create or exacerbate the allegedly dangerous condition on the sidewalk. See Schwint v Bank St. Commons, LLC, 74 AD3d 1312, 1313 (2d Dept 2010).

In this regard, Keg & Lantern relies principally upon its interpretation of Breen's testimony. As Keg & Lantern portrays it (see affirmation of Gregory S. Katz, dated Dec. 14, 2011 [Katz aff.], ¶¶ 18-19), Breen testified that: (i) he observed his employees removing snow from the sidewalk and the sidewalk was clear when he left the bar at around 10:00 p.m., (ii) Keg & Lantern's employees shoveled the sidewalk every half hour and put salt out on the sidewalk, and (iii) this activity continued until 1:00 a.m. when the bar closed. It is Keg & Lantern's contention that this testimony is sufficient to establish that its snow-removal efforts did not create or exacerbate the allegedly dangerous condition on the sidewalk. Keg & Lantern is wrong.

Contrary to Keg & Lantern's characterization, Breen testified that he had no recollection of his employees' snow removal efforts on February 10th. See Katz aff., Ex. D, at 29. Furthermore, Breen acknowledged that his testimony concerning Keg & Lantern's snow removal efforts over the course of the day (as opposed to its general practices and procedures) was not based on first-hand knowledge, but was based solely onhearsay statements made by employees whose last names he did not know, who no longer were employed by him and could not be contacted because he did not know their addresses.

Accordingly, Keg & Lantern has not established its entitlement to judgment as a matter of law on the issue of its possible negligence in snow removal at the premises; to wit, whether as a result of its efforts, a more dangerous condition was created — the icy patch — than if it had not been cleaned at all. [*5]

Although this is a sufficient reason to deny Keg & Lantern's motion, the court notes that plaintiff has submitted an affidavit averring that, based on her own experience, she saw no evidence that any salt treatment had been applied to the ground. Furthermore, Siuzdak submits the affidavit of Stanley H. Fein, a licensed engineer, to support her position that Keg & Lantern failed to place de-icing material and clear the snow properly. In his affidavit, Mr. Fein attests that, in his expert opinion, salt had not been applied to the sidewalk in front of the subject premises the night before plaintiff's accident. Thus, even if Keg & Lantern had satisfied its initial burden (and, as the court has concluded, it has not), plaintiff has raised a triable issue of fact with respect to the issue of whether Keg & Lantern's snow removal efforts created a more dangerous condition.

Nevertheless, defendants assail Fein's affidavit, arguing that it cannot be considered in determining the motion since it was not proffered until almost three months after the note of issue was filed and was elicited solely to oppose the motion. See Colon v Chelsea Piers Mgt., Inc., 50 AD3d 616, 617 (2d Dept 2009). In addition, Keg & Lantern argues that, even if the court determines that the affidavit can be considered on this motion, it has no probative value because it is not supported by facts and contains impermissible legal conclusions, rather than factual conclusions. Neither of Keg & Lantern's arguments persuade.

In the first instance, "CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party." Browne v Smith, 65 AD3d 996, 997 (2d Dept 2009), quoting Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710 (2d Dept 2007).

Here, there is no evidence that plaintiff's failure to disclose her expert was intentional or willful and there was no showing of prejudice to defendants. Hayden v Gordon, 91 AD3d 819, 820 (2d Dept 2012) (holding that "Supreme Court did not improvidently exercise its discretion in considering the expert affidavit submitted by the plaintiffs, since there was no evidence that the failure to disclose the identity of their expert witness pursuant to CPLR 3101(d)(1)(i) was intentional or willful, and there was no showing of prejudice to the appellant").

Moreover, pursuant to the statute, plaintiff has demonstrated "good cause" for the late 3101(d) notice for her expert, first served on January 3, 2012. See PG & D Realty Corp. v Commonwealth Land Title Insurance Co., 25 Misc 3d 1239(A), 2009 NY Slip Op 52495(U), *3 (Sup Ct, Nassau County 2009) (limiting the holding of Construction by Singletree Inc. v Lowe, 55 AD3d 861[2d Dept 2008], and its progeny, to cases where the plaintiff offers no valid excuse for his or her delay in identifying the expert).[FN2] In this connection, although the note of issue was [*6]filed on October 14, 2011, Keg & Lantern was not deposed until November 14, 2011, one month later. Until that time, plaintiff was unaware that Keg & Lantern's position was that it had properly cleaned and treated the sidewalk with salt, and that she would need to retain an expert to rebut Breen's testimony on this point. Under these circumstances, the late notice is not, by itself, a sufficient reason to prevent the court from considering the Fein affidavit.[FN3]

In addition, the court's review of the Fein affidavit does not reveal the infirmities Keg and Lantern attributes to it. Numerous paragraphs, including paragraphs 5, 8 and 9, set out the facts and data on which Mr. Fein bases his expert opinion. His factual conclusion based on this data is expressed in paragraph 7 of his affidavit, namely, that: (i) salt had not been placed on the sidewalk, (ii) had it been applied, the sheet of ice on which plaintiff slipped would not have formed, and (iii) the removal of the snow without salt made the sidewalk more dangerous than if the snow had not been removed. Therefore, the expert was testifying not to a legal conclusion, but was rather testifying to a factual conclusion, i.e., that cleaning the snow without placing de-icing agents created a more dangerous situation.[FN4]

In sum, the expert affidavit can be considered by the court. As the testimony therein raises a triable issue of fact as to what Keg & Lantern's snow removal efforts consisted of, it provides an independent reason to deny the motion.

B.The Cohens' Cross Motion

1.Dismissal of the Complaint

In support of their summary judgment motion to dismiss the complaint, the Cohens argue that they did not owe any duty of care to Siuzdak at the time of the accident. As did Keg & Lantern (supra), the Cohens argue that, pursuant to New York City Administrative Code § 16-123, they had until 11:00 a.m. to clear the sidewalk.

However, for the reasons discussed earlier, there still remains a question of fact as to whether Keg & Lantern improperly cleared the snow by failing to place de-icing material on the sidewalk. Therefore, to the extent that the Cohens' cross motion seeks summary judgment in their favor based on New York City Administrative Code § 16-123, it is denied.

2.Indemnification from Keg & Lantern

Given that the court has concluded that a fact finder could find that plaintiff's claims are viable, the Cohens are entitled to seek indemnification under the terms of the lease agreement for Keg & Lantern.

Although, New York City Administrative Code § 2-710, which imposes a duty to keep sidewalks safe for pedestrians, applies only to landlords and is non-delegable, a tenant could be liable for damages that result from a violation of a lease provision. Collado v Cruz, 81AD3d 542, 542-43 (1st Dept 2011). Here, pursuant to the plain language of the lease, Keg & Lantern was responsible to clear the snow during its business hours. Therefore, if it is ultimately [*7]determined that the Keg & Lantern improperly cleaned the snow by failing to place de-icing material on the street, Keg & Lantern can be liable to indemnify the Cohens for any judgments entered against them on account of the accident. Lubell v Stonegate at Ardsley Home Owners Assn., Inc., 79 AD3d 1102, 1103-04 (2d Dept 2010).

Accordingly, that branch of the Cohens' cross motion seeking common-law indemnification from Keg & Lantern, is granted.

Accordingly, it is

ORDERED that defendant Killowen Inc. d/b/a Keg & Lantern's motion for summary judgment to dismiss the complaint, is denied; and it is further

ORDERED that the branch of defendants Alon Cohen's and Barbara Baron-Cohen's cross motion for summary judgment to dismiss the complaint, is denied; and it is further

ORDERED that the branch of defendants Alon Cohen's and Barbara Baron-Cohen's cross motion for summary judgment on its cross claims for indemnification against defendant Killowen Inc. d/b/a Keg & Lantern, is granted.

Dated:August 27, 2012

ENTER:

_______________________

J.S.C. Footnotes

Footnote 1: At plaintiff's deposition, counsel for plaintiff stated that the portion of the action brought on behalf of Wladyslaw Siuzdak, for loss of services, would be discontinued with prejudice.

Footnote 2: Recognizing the cloud of uncertainty that has enveloped the law of timeliness of expert disclosure since Singletree, Justice Battaglia, in a recent slip opinion, provides an excellent analysis of post-Singletree decisions in the Second Department. See Herrera v Lever, 34 Misc 3d 1239(A), 2012 NY Slip Op 50477(U), *2-3 (Sup Ct, Kings County 2012). Notably, Justice Battaglia recognizes that, although there have been cases that mechanically apply Singletree as a bright-line rule with draconian results, there is a growing number of cases that permit expert testimony where there is post-note disclosure and the proffering party shows "good cause" or "valid excuse" for the late disclosure. Id.

Footnote 3: In the court's view, plaintiff's refusal to vacate the note of issue does not alter the outcome.

Footnote 4: To the extent that paragraph 11of the Fein affidavit can be read to contain a legal conclusion, the court will disregard it.