Liss v City of New York

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Liss v City of New York 2023 NY Slip Op 34237(U) December 6, 2023 Supreme Court, New York County Docket Number: Index No. 154896/2023 Judge: Nicholas W. Moyne Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. NICHOLAS W. MOYNE ~;....;:;...;...;;..;_;..;;..;;_;;;...;;...;;..=...;;;=-.;;..::;......;;;..;;..:_:..:..:...::;....:...;;..:..='------- PART 52 Justice: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.,.c__ _ x 154896/2023 INDEX NO. ROCHELLE LISS, 07/26/2023 MOTION DATE Plaintiff, · MOTION SEQ. NO. 001 ----'--'---~ -v - . THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, ROOSEVELT ISLAND OPERATING CORPORATION, AND GRENADIER REAL TY CORP. DECISION + ORDER ON MOTION Defendant.. ----------------------------~---------·---·____:x:'. The following e-filed documents, listed by NYSCEF document ·number (Motion- 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,2j,24,25,25,27,28 ~ C •; " , • DISMISS were read on this motion to/for - Upon the foregoing documents, it is This is an action by plaintiff, Rochelle Liss, to recover for personal 'injuries allegedly· . ' . • -1 sustained on October 28,,2022, when she was walking -on the sidewalk loc·ated between 2 River . . "' ·. . .--~ . Road and Public School/Intermediate School 217 on Rooseve\tlsland and was caused to trip and fall as a result of an uneven, broken, missing, unleveled and/or raised dangerous and defective condition on the sidewalk and/or cobblestones.)_-· Defendant Grenadier Realty Corp. -(~'Grenadier"), in.·lieu olan answer, mov~s'for an order pursuant to CPLR §§ 321 i {a)(l) and (7) dismissing the co~piaint and all cross-claims on the grounds that it did not own, 'manage, ~aintain, or hive any involvement\Vith the premises . . where the all~ged accident o~cuhed: G~enadier, pursuant to CPLR § 8303-a ahd Uniform Rules- of Court§ 130-1.l, is seeking costs,fees, and sa:iictions against plaintiffs counseLfor the' - 154896/2023 LISS, ROCHELLE vs. THE CITY OF NEW YORK ET AL Motion 001 . No. [* 1] Page 1 of7 INDEX NO. 154896/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 12/06/2023 commencement of a frivolous action. Alternatively, if the subject motion is denied, Grenadier is requesting to interpose an answer within 30 days of the date of this decision. Defendant Roosevelt Island Operating Corporation ("RIOC") and the plaintiff oppose the motion as pre-mature, contending there are questions of fact as to whether Grenadier owed a duty that precludes dismissal. CPLR 3211 § § (a)(l) and (a)(7): On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, accord plaintiffs the benefit of every favorable inference, and determine whether the facts alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87 [1994]). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v Ginzburg, 43 NY2d 268,275 [1977]). To prevail on a motion to dismiss pursuant to CPLR § 3211 (a)(l), the defendant must show that the documentary evidence conclusively refutes the plaintiffs allegations, establishing a defense as a matter oflaw (AG Capital Funding Partners, L.P. v State St. Bank and Tr. Co., 5 NY3d 582, 591 [2005]). Discussion: Plaintiff is asserting claims of negligence based on the alleged dangerous or defective condition of the sidewalk and/or cobblestones located between 2 River Road and Public School/Intermediate School 217 (complaint at 24). A defendant may only be liable in negligence for the breach of a duty of care owed to the plaintiff; if the defendant owes no duty, the action must fail (Darby v Compagnie Natl. Air France, 96 NY2d 343,347 [2001]). Therefore, a threshold question in torts cases is whether the alleged tortfeasor owed a duty of care to the injured party (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002]). [* 2] 154896/2023 LISS, ROCHELLE vs. THE CITY OF NEWY©R~i=TAL Motion No. 001 Page 2 of 7 NYSCEF DOC. NO. 29 Accordingly, "[l]iability for a dangerolis ccindition on property may only'be pred_icated upon occupancy, ownership, control or'special use of such premises" (Jackson V Bd ofEduc. of City of New York; 30 AD3d 57, 60 [l'st'Dept2006],"quoting {Jibbs;v-Port Auth.' ofNew York, 17' AD3d 252, 254 [1st Dept·2005]). · ·Grenadiercontends that as itdid not own, manage, ma1ntain,'or have any involvement with the alleged accident'premisd, it did not owe the plaintiff a duty and ·cannot be held liable. . ' To demonstrate that it.has no ielatimiship to the premises 'or:accident location, Grenadier submits the following items as "documentary evidence'': ( l)' Google Street Image of tlie area between 2 River Road hnd Publi~·School/Infern{ediate Scho~l 217; 645 Main Street (exhibit B); (2) an· · · affidavit by Grenadier's property mari:ager.[Bria"u Weisberg,·submitted in response to plaintiff's application for pre-action discovery,·commenced under a separateindex No. 160779/2022 (exhibit G) and; (3)additioi1al'Google Maps images depictihg2 River Road and 645 Main Street (exhibitH):_. ,The evidence submitted.in support of the inotioninust be documentary or the motion must be denied {Cives Corp. v·GeorgeA. Fuller·<;:o.i1nc., 97 AD3d 713,714 '[2d:Dept 2012], relying onFontanetta-v Doe, 73 AD3d 78:'84{:id Dept 2010]). For evidence to qualify'as docun'ientary, it must be unambiguous,:authentic; and undeniable'(Attias v Costiera, 120AD3d· a~ documents stichas mortgages;-deeds, 1281, 1282 [2d Dept 2014]). Judiciahecords; as weli contracts, and any other papers, the conteritsof which'are essentially undeniable;·would qualify -as documentary evidence~in the proper case (Fontanetta vDoe, 73 AD3d 78, 84-85 [2d Dept 2010]). Grenadier contends that "the well-documented public record Google Street· views, which • . • .,. -:>;,,_ \: i • ,; ;'I h :• ~ i th • ~ : I . t ,$ " ;._ , • ' • .,J ~J;i . • • ., ., •• are admissible pursuant to the CPLR and affidavit of Brian Weisb~rg, show that defendant . ' 154896/2023 LISS, ROCHELLE Motion No. 001 [* 3] vs: THE CITY OF NEW YORK ET AL • -<: , Page 3 of 7. 1 INDEX NO. 154896/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 12/06/2023 Grenadier did not own the sidewalk/driveway adjacent to the subject property on the date of the accident, warrants dismissal" (Grenadier memo of law at 4). An image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, is admissible in evidence if it indicates the date the material was created and subject to a challenge that it does not fairly and accurately portray that which it is being offered to prove (CPLR 4532-b) 1• However, the Google Maps and/or Street View image cannot be said to be unambiguous, of undisputed authenticity, or essentially unassailable so as to constitute documentary evidence (see Norment v Interfaith Ctr. of New York, 98 AD3d 955, 955 [2d Dept 2012]). Exhibit Bis a Google Street View image that Grenadier claims depicts the cobblestone area between 2 River Road and Public School/Intermediate School 217, which is located at 645 Main Street, as a private driveway belonging to the school (affirmation of defendant Grenadier's counsel ,i 7). However, the location on the Google Street View image is labeled as "676 Main St", not 645 Main Street, and there is nothing in the image to indicate the location is that which Grenadier claims it is (NYSCEF Doc. No. 14). Additionally, the Google Maps and images, annexed as Exhibit H, do not comply with statutory requirements as they fail to include the date the materials were created and the contents of these "maps" are ambiguous and/or subject to denial or challenge (NYSCEF Doc. No. 20). Additionally, factual affidavits and deposition testimony do not constitute the type of documentary evidence that may be considered on a motion pursuant to CPLR 321 l(a) (1) (Correa v Orient-Express Hotels, Inc., 84 AD3d 651 [1st Dept 2011]). Therefore, the affidavit of 1 CPLR 4532-b has additional notice and exchange requirements and absent an objection, the statute permits that a court may take judicial notice and admit the map, image, or information into evidence (CPLR 4532-b; see Rodriguez v The City of New York [NY Sup Ct, Bronx County 2021 ]). It is unclear if these statutory requirements were complied with in this instance. [* 4] 154896/2023 LISS, ROCHELLE vs. THE CITY OF NEWY(l)RR€TAL Motion No. 001 Page 4 of 7 Grenadier's property manager Brian Weisberg is not documentary evidenc_e for purposes of CPLR 321 l(a)(l) (see Manglani vCity ofNew York, 209AD3d 563 [1st Dept 2022][affidavit of defendant's managing agent was insufficientto 'establish a defense as a matter of law because it was not conclusive documentary evidence]). However, "an affidavit from an individual, even if the person has no personal knowl~dge oftlie facts, may·properly serve as the vehicle for the submission of acceptable attachments whi2h provide evidentia:ry proof in admissible form;-like documentary evidence. In such situations,· the affidavit itselfis,ncit considered evidence; it merely serves as·a: vehicle fo,iiitrodµce documentary evidence to the.~ourt'' (Basis _Yield Alpha,. Fund (Master) v'Goldman Sachs Group, Irie., l 15'AD3d 128, 'l-34·n·4-[lstbept-2014]). "[T]he: affidavit must nevertheless 'constitute a proper foundation for the admissio~ of the records"; (Doe v Intercontinental Hotels Group, PLC,-193-AD3d 410 [lst'0ept 2021] quoting HSBCBank .USA, NA. v. Greene, 190 A:D'.3d'417,418,,B9 N.Y·.S.3d ·188 [l'st Dept. 2021]) . The affidavit of ' Brian Weisberg, prepared in opposition to the piaintiff?·s request for pre-action discovery and made under a separate Index Numbh/is insufficient as a means·to introduce the Google Maps ·, and/or Street View image; The Google Maps·and/or·Google StfJet View "documents" were not annexed to Weisberg's affidavit(see Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410 . . . I [1st Dept 2021]). Notwithstarid1ng, Weisberg's affidavit fails to demonstrate sufficient: knowledge of the contents of the Maps and/or Street View-image: fails to authentfoate them, nor . ' explain any ~ignificance thereof(see· Bou v Llamoza, 173 AD3d 575, 576[1st-Dept-2019]). In ·, fact; this affidavitco-ntains no· mention 6rteforence to proffered Google Maps and/or Street View image at all. As such~ Grenadier has failed to·provide·documentary evidence of a type that-may" be considered on a CPLR 321l(a)(l) motion (see·Fontanetta v Doe/73 AD3d 78, -g4 [2d Dept 2010]). 154896/2023 LISS, ROCHELLE vs. THE CITY OF NEW.YORK Motion No. 001 · [* 5] ET AL Page 5 of7' INDEX NO. 154896/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 12/06/2023 In any event, these submissions fail to conclusively establish a defense as the vague contents do not irrefutably establish that Grenadier did not occupy, own, operate, or use, the premises in which the plaintiff allegedly fell (Correa v Orient-Express Hotels, Inc., 84 AD3d 651 [1st Dept 2011]). Nor does any of the conclusory information provided within the affidavit, Google Maps and/or Street View image, demonstrate as a matter of law that the sidewalk and/or cobblestones where the accident allegedly occurred belonged to co-defendants the City of New York and RIOC. Considering that, "[t]he documents relied upon must "definitively dispose of [the] plaintiff's claim" (Art and Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436,438 [1st Dept 2014] quoting Blonder & Co., Inc. v Citibank, NA., 28 AD3d 180, 182 [1st Dept 2006]), dismissal at this stage is unwarranted. Similarly, under the CPLR 321 l(a)(7) standard, dismissal at this stage is unwarranted as plaintiff has a viable cause of action for negligence against Grenadier. Even when considering the evidentiary material, Grenadier has failed to demonstrate that there are no questions of fact regarding a duty through its ownership and control of the accident location (see Guggenheimer v Ginzburg, 43 NY2d 268,275 [1977]). Grenadier's evidentiary submissions demonstrate that there are outstanding issues of fact. The affidavit of Brian Weisberg includes that "[d]efendant Grenadier is the managing agent for Roosevelt Island Associates, which owns the property at 2 River Road" (exhibit G ,r 3). Additionally, by Grenadier's own admission, "the location of plaintiff's alleged accident is unclear" (affirmation of defendant Grenadier's counsel ,r 17). As the location of the accident is unclear, absent any discovery on the issue, and plaintiff alleged that the accident occurred on the sidewalk located between 2 River Road and Public School/Intermediate School 217, it cannot be said as a matter of law that Grenadier did not owe the plaintiff a duty. Therefore, Grenadier's motion to dismiss is denied. [* 6] 154896/2023 LISS, ROCHELLE vs. THE CITY OF NEW YO>Rlii!:iET'AL Motion No. 001 Page 6 of 7 7 of 7 Conclusion: For the reasons set forth herein above, it is hereby ORDERED that the motion to dismiss the complaint and all cross-claims is denied; and it is further ORDERED that the portion of the motion seeking to impose legal fees, costs and sanctions for commencing a frivolous action is denied; and it is further ORDERED that the portion of the motion seeking thirty days to interpose an answer is granted and defendant is directed to serve an answer to the complaint within 30 days after service of a copy of this order with notice of entry; and it is further ORDERED that counsel are directed to appear for a preliminary conference in Room 103, 80 Centre Street, Ne~ York, New York, on February 28, 2024, at 2:00 PM. This constitutes the decision and order of the court. ~~J:), 12/6/2023 NICHOLAS W. MOYNE, J.S.C. DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED NON-FINAL DIS.POSITION DENIED SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 154896/2023 LISS, ROCHELLE vs. THE CITY OF NEW YORK ET AL Motion No. 001 [* 7] GRANTED IN PART OTHER [J REFERi:NCE Page 7 of7

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