Calise v Millennium Partners

[*1] Calise v Millennium Partners 2010 NY Slip Op 50208(U) [26 Misc 3d 1222(A)] Decided on February 1, 2010 Supreme Court, New York County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2010
Supreme Court, New York County

Linda Calise, Plaintiff,

against

Millennium Partners C/O MILLENNIUM PARTNERS, LLC and CONSOLIDATED EDISON, INC., Defendants.



100189/07



For Defendant Millennium Partners Management

c/o Millennium Partners, LLC:

Angela Lurie Milch, Esq.

Smith Mazure Director Wilkens Young & Yagerman, P.C.

111 John Street, 20th Floor

New York, New York 10038-3198

For Plaintiff:

Robert D. Becker, Esq.

Becker & D'Agostino, P.C.

880 Third Avenue

New York, New York 10022

Karen S. Smith, J.

The motion by defendant Millennium Partners Management c/o Millennium Partners, LLC for summary judgment dismissing plaintiff's complaint as against it pursuant to CPLR § 3212, is granted for the reasons stated more fully below.

Plaintiff commenced this action to recover for injuries allegedly suffered when she was caused to trip and fall by a piece of metal protruding from the public sidewalk abutting the premises known as 155 West 66th Street, New York, New York on November 3, 2006. Plaintiff alleges that defendant Millennium Partners Management c/o Millennium Partners, LLC ("Millennium") owned the property abutting the sidewalk where the defect existed. Millennium commenced a third-party action against the City of New York and Consolidated Edison, Inc., and thereafter plaintiff moved to amend the complaint to assert a direct claim against Consolidated Edison, Inc., which motion was granted. Millennium now moves for summary judgment, dismissing the complaint as against it, pursuant to CPLR § 3212. Plaintiff opposes the motion.

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ...." (Alvarez v Prospect Hospital et al., 68 NY2d 320,324 [1987]). Once the movant has made such a showing the burden shifts to the party opposing the motion to produce evidence in an admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action. (Zuckerman v City of New York, 49 NY2d 557 [1980]).

According to Millennium, the defect in question was originally a sign post bearing a "No Parking" or "No Standing" sign and designating the area as a hotel loading and unloading zone. There does not appear to be any dispute that the sign was originally installed by the City of New York, although the date of installation could not conclusively be stated from the records testified to by Joseph Farina, a Department of Transportation witness. Tennant testified that for at least three years preceding plaintiff's accident, neither Millennium nor Phillips Club had done any work on the sidewalk in front of the premises. He also testified that he personally observed the "No Parking" sign in question on a regular basis until some time in late 2005 or early 2006. It was at that time that defendant Consolidated Edison, Inc. was doing work installing a vault below the sidewalk. Tennant testified, and also asserts in his affidavit, that no one employed by [*2]or affiliated with the premises, Phillips Club or Millennium removed the sign post in question, but that the sign was removed while Consolidated Edison was conducting its work. According to Tennant, while he did not observe the removal of the sign, Consolidated Edison had closed off the area where the sign was located and when he came to work the following day, the sign was gone. He also testified that he contacted the City of New York at some point after Consolidated Edison finished work in the area, probably in early 2006, and informed the Department of Transportation that the sign was missing. As of the date of Tennant's EBT, the sign still had not been repaired or replaced.

Pursuant to New York City Administrative Code § 7-210, effective in 2003, liability for injuries caused by sidewalk defects was shifted from the City of New York to abutting land owners, with some notable exceptions. As an initial matter, Millennium denied ownership of the premises in its answer and Tennant explained that the property was developed by Millennium and is now managed by Phillips Club, his employer. The building is operated as a condominium building, with "fractional time shares" sold to several hundred owners. Although Millennium owns some commercial space on the premises, it maintains that it is not an abutting land owner for purposes of Administrative Code § 7-210.

Even if it is considered an abutting land owner, Millennium argues, Administrative Code § 7-210 does not shift liability for sign posts installed by and maintained by the City of New York to abutting land owners. Millennium points to a Kings County, Supreme Court decision entitled King v Alltom Properties, Inc. (16 Misc 3d 1125(A), 2007 NY Slip Op 51570(U) [June 26, 2007]), in which that court dismissed the notion that items such as sign posts and light posts, which the City has an obligation to maintain pursuant to New York City Charter § 2903(a)(2),[FN1] would suddenly become the responsibility of the abutting land owner when they become defective.

Plaintiff opposes the motion, arguing that the King case is distinguishable and should not be followed here. First, plaintiff alleges that the defect in question here stemmed from a "special use" of the sidewalk by the defendant and, therefore, it does not fall neatly into the factual analysis of the King case. Second, plaintiff contends that the reasoning in King is flawed and should not be followed here. Finally, plaintiff points out that King is from the Second Department and is from a court of concurrent jurisdiction, and therefore not binding on this Court. It should be noted that plaintiff does not argue, and there is no evidence in the record to indicate, that Millennium caused or created the defective condition.

Prior to Administrative Code § 7-210 shifting general liability to land owners for defective sidewalk conditions, a land owner could still be held liable in circumstances where it caused or created the defect or where it put the area of the public sidewalk to a "special use," such that it now has a duty to maintain that area in a reasonably safe condition. (Rodriguez v City of New York, et al., 12 AD3d 282 [1st Dept 2004]). "The principal of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, 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, [*3]to maintain the part so used in a reasonably safe condition to avoid injury to others." (Balsam v Delma Engineering Corp., 139 AD2d 292, 298 [1st Dept 1998]). Plaintiff contends that the sign post, because it originally bore a sign restricting traffic in the area for the benefit of the abutting land owner(s) and guests, constitutes a special use of the sidewalk which created a duty on the part of the land owner(s) to maintain the sign post in a reasonably safe condition.

Plaintiff has cited to no case, and this Court knows of no case, in which an abutting land owner has been held liable for the dangerous condition of an item installed and maintained by the City of New York, under the theory of special use. The theory of special use has generally been used to impart a duty where the abutting land owner itself has installed an object in the sidewalk or street or otherwise obtained some variance in the construction thereof. (Balsam v Delma Engineering Corp., id.; see also, Santorelli v. New York, 77 AD2d 825 [1st Dept 1980] [defective oil filler cap installed by defendant in sidewalk and leading to defendant's boiler is special use of sidewalk]; Wylie v New York, 286 AD 720 [1st Dept 1955] [ramp or driveway built into sidewalk constitutes special use]; Nickelsburg v. New York, 263 AD 625 [1st Dept 1942] [steel bars imbedded into sidewalk by previous owner create responsibility that runs with the land and constitutes special use]). Here, the sign was installed by the City of New York and exclusive responsibility for maintaining or removing the sign appears to lie with the City of New York Department of Transportation, pursuant to New York City Charter § 2903(a)(2). It is the City of New York, not Millennium, who has the responsibility for regulating parking and traffic and Millennium had no power to either install a "No Parking" or "No Standing" sign or to remove such a sign that was installed by the City. That some benefit may have flowed to Millennium is not the determinative factor. There must be control over the installed object in order to impute liability to Millennium under a theory of special use, and that has not been shown here.

Plaintiff also argues that the reasoning found in King v Alltom Properties, Inc. is faulty, specifically because the King court makes no distinction between defective "hardware" that could not be easily fixed, such as a broken fire hydrant which might interfere with public works infrastructure, and a simple leveling of a sign post stub that was not flush with the sidewalk. This argument betrays plaintiff's clear misunderstanding of the King court's ruling. The court did not find that the defendant in that case was not liable because it would be too difficult for the defendant to remedy the "hardware." Rather, because Administrative Code § 7-210 does not explicitly address this issue, the court examined the relevant sections of the Administrative Code that might address the kind of defect found here, and determined that a defective sign post was not the kind of "hardware" referred to in Administrative Code § 19-147(d), which refers to "hole (manhole) covers, castings, and other street hardware" required to be flush with the surrounding street. That a broken fire hydrant may be more complex to fix than a broken sign post, which plaintiff argues with no admissible evidence in support "requires only low-tech tools and materials for repair" and that any "skilled person with masonry tools or a hacksaw can level or eliminate the stub," is of no moment where the abutting land owner has no duty to repair the defect or control over the sign post in the first instance.

Finally, plaintiff urges this Court to reject the reasoning of the King court as non-binding and only persuasive reasoning from a court of concurrent jurisdiction in another Appellate Division. Plaintiff overlooks the several cases in this department, however, that have relied on and adopted the reasoning and holding of the King decision. This Court relied on King in [*4]granting defendant's motion for summary judgment after oral argument in Smith v 125th Street Gateway Ventures (Index No. 105971/05, March 2, 2009, Hon. Karen S. Smith), a case which also involved a removed sign post which originally displayed a "No Parking" sign that was cut down and not flush with the sidewalk, but which was not installed by or removed by the defendant. In Raleigh v Broadway 48th-49th Street, LLC (2008 NY Slip Op 31682[U], New York County, June 17, 2008, Hon. Paul George Feinman), the court relied on King in its analysis of a protruding portion of a removed sign post outside a hotel, and denied summary judgment only because ownership of the sign post remained an issue. Such is not the case here, where the City's own witness testified that the sign was City-owned. Finally, in Sehnert v New York City Transit Authority (2009 NY Slip Op 32807[U], New York County, November 25, 2009, Hon. Harold Beeler), Justice Beeler cited to King in support of the proposition that "[g]enerally, liability for a city sign post lies with the City, and not with the landlord or tenant."

Plaintiff has failed to raise an issue of fact to rebut the prima facie showing made by Millennium that, as a matter of law, it is not liable for the defective condition of a city-owned and maintained sign post. As such, the plaintiff's complaint as against Millennium is dismissed in its entirety. Naturally, Millennium's third-party complaint against third-party defendants Consolidated Edison, Inc. and the City of New York will also be dismissed. However, in its answer to plaintiff's amended complaint, Consolidated Edison, Inc. asserted a cross-claim against co-third-party defendant City of New York. This cross-claim is hereby converted to a second third-party claim (delineated by the parties as a "fourth-party" action) and the City of New York shall be added as a second-third-party defendant (Index No. 590931/09).

Accordingly it is,

ORDERED that this motion by defendant/third-party plaintiff Millennium Partners c/o Millennium Partners, LLC, for an order dismissing plaintiff's complaint and all cross-claims as against it pursuant to CPLR § 3212, is granted; it is further

ORDERED that upon service of a copy of this decision and order, the Clerk of the Court is directed to enter judgment in favor of defendant Millennium Partners c/o Millennium Partners, LLC, dismissing plaintiff's complaint and all cross-claims as against it only; it is further

ORDERED that the third-party complaint, under third-party index number 590477/07, is dismissed; it is further

ORDERED that the cross-claim asserted by defendant/second-third-party plaintiff Consolidated Edison, Inc. against third-party defendant City of New York is converted to a second third-party complaint and the City of New York shall become a second third-party defendant under second third-party Index No. 590477/07; it is further

ORDERED that second third-party defendant City of New York interpose an answer to the second third-party claims against it within 30 days of service of a copy of this decision and order with notice of entry; it is further

ORDERED that movant serve a copy of this decision and order with notice of entry upon all parties to the action and second third-party action, and upon the Clerk of the Court (60 Centre Street) and the Clerk of the Trial Support Office (60 Centre Street), within 20 days of entry hereof; it is further

ORDERED that upon service of a copy of this decision and order with notice of entry, the Clerk of the Trial Support Office is directed to amend the caption of the second third-party action bearing index number 590931/09 to reflect the following:  1;

X

Consolidated Edison Company of New York, Inc.,

Second Third-Party Plaintiff,

-against-

Safeway Construction Enterprises, Inc., Roadway

Contracting, Inc., and The City of New York

Second Third-Party Defendants.  1;

X.

The foregoing constitutes the decision and order of this court.

Dated:February 1, 2010

ENTER:

____________________________

Hon. Karen S. Smith,J.S.C. Footnotes

Footnote 1:The New York City Department of Transportation is directed to "control, install and maintain . . . any and all signs, signals, marking, and similar devices . . . for guiding, directing or otherwise regulating and controlling vehicular and pedestrian traffic in the streets."