Perez v Zumbach Sports Cars, Ltd.

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Perez v Zumbach Sports Cars, Ltd. 2011 NY Slip Op 33442(U) December 21, 2011 Sup Ct, NY County Docket Number: 111103/07 Judge: Saliann Scarpulla 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. [* 1] UEDON I212712011 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY ,..-- - \. r--t PRESENT: (&.J-L,~ -. L, -) C!d.q&LL PART - IC/ ,<--'&--- - Index Number. 11 1103/2007 INDEX NO, PEREZ, ONEIDA MOTION DATE /I ZUMBACH SPORTS CARS MOTION SEQ. NO. SEQUENCE NUMBER : 003 MOTION CAL. NO. - SUMMARY JUDGMENT L - ~ - Notice of Motion/ Order to Show Cause Answering Affidavits - - 2 I1 this motion to/for 1 - Affidavits - PAPERS NUMBERED Exhibits ... Exhibits Replying Affidavits DEC 23 2011 NEW YORK COUNTY CLERKS OFFICE k :heck one: FINAL DISPOSITION Check if appropriate: fl 9 DO NOT POST I SUBMIT ORDER/ JUDG. J SALIANN S~ARP&! ¬A NON-FINAL DISPOSITION I_? REFERENCE n SETTLE ORDER/ JUDG. [* 2] Index No.: 11 1103/07 Submission Date: 8/17/11 - against- ZUMBACH SPORTS CARS, LTD., MELVIN FRIEDLAND, LAWRENCE FRIEDLAND AND LARSTKAND CORPORA I ION, DECISTQN AND ORDER Defendants. For Defcndant Zurnbach Sports Cars., Lld.: The Law Offices of Edward Garfinkel 12 Metrotech Cenlcr, 28 Floor Brooklyn, N Y 11201 For Plaintiff Parkcr Waichmaii Alonso LLP 6 IIarbor Park Drive Port Washington, NY 1 1050 For Defendants Mclvin Friedland, Lawrence Friedland and Larstmnd Corporation: Wilson, Elser, Moskowitz, Edelman & Dicker LLP 3 Gannctt Drive White Plains, NY 10604 FILED DEC 23 2011 Papers considered in review of this motion for summary judgment and cross motion : NEW YORK C O U N n CLERK S OFFICE Notice ofMolion . . . . . . . . . . . . 1 Notice of Cross Motion . . . . . . . 2 AfTs in Opp . . . . . . . . . . . . . . . . 3 , 4 Replies.. . . . . . . . . . . . . . . . . , 5 , 6 HON. SALIANN SCARPULIA, J.: In this action to recovcr damages for personal injuries, defendant Zurnbach Sports Cars, Ltd. ( Zumbach ) moves for summary judgment dismissing the complaint and any cross claims asserted against it and defendants Melvin Friedland, Lawrence Friedland and Larstrand Corporation (collectively referred to as Fricdland ) cross move for summary judgment dismissing the complaint insofar as asserted against them. 1 [* 3] Plaintiff Oneida Perez ( Perez ) commenced this action in or about October 2008 seeking to recover damages for injuries she sustained to her lcft ankle on March 19,2007 when she slipped on an icy sidewalk adjacent to 629 West 541h Street. Defcndants Melvin Friedland and Lawrence Friedland owned the building locatcd at 629 West 54thStreet, defendant Larstrand Corporation inanaged the building, and Zumbach leased a portion of the premises from the owners. According to thc allegations or her complaint, Perez slipped in the area of the southwest portion at or near the third garage door in a westerly direction from thc end of the building. She alleged lhat ice and snow were negligently removed from the area of the sidewalk where she fell. At a deposition, she specified and marked the area of her fall with an X on several photographs taken of the subject location. Zumbach s president John Mender ( Mender ) testified at an examination before trial that the marked area on the photographs shows the bay to the left of our store, open bay, opcn door, to the left side of our entrance, and one closed bay to the right side of our entrance. He cxplaincd that the marked area was on the front of the unloading platform, which Zumbach has nothing to do with it. He further explained that the X in the photograph is in front of the door used by the owner of the building. Mender explained that Zumbach did not usc that area, and did not remove ice and snow in front of or adjacent to that door used by the owner, as the owner did its own snow and ice removal. 2 [* 4] Larstrand s managing agent Peter Giga ( Giga ) testified at an examination before trial that the area marked by the X was on the portion of the sidewalk utilized by the owner. Hc testiikd that hc first heard of the accident from an employee Ismael Pena ( Pena ) who did not witness the accident, but saw Perez laying on the ground after she fell. Giga explained that Pena told him that Perez did not fall in the area marked by the X and that Zurnbach had not shoveled any portion of its sidewalk. Hu claims that Pena spoke to Perez and saw her on the ground between the middle garage door, which is the service area for Zumbach, and the next westerly garage door, right between the two doors. He explained that the owner was responsible for removing snow and ice from the sidewalk in front of the first and third garage doors and pursuant to its lease agreement for the premises, Zumbach was responsible for snow and ice rcinoval from thc sidewalks in front of its garage door. Pena testified at an examination before trial that when he responded to thc scene of the accident, Perez was no longer there. Pena maintained that hc never saw or spoke to Perez and does not know who saw her fall. He took photographs of the scene of the accident. IIe was told, by someone, that Perez fell on the sidewalk in front of thc furthest right hand sidc of the garage door leading to Zumbach s garage. IIe testified that it was Zumbach s responsibility to clear that portion of the sidewalk and it did not appear as if any snow had been rcinoved from that area that day. Pena hrther testified that the area on 3 [* 5] the photograph marked by the X was in front of the owner s garage door, and the owner removed snow and ice from that area during the time of March 2007. Zumbach now moves for sumnary judgment dismissing the complaint and cross claims asserted against it, arguing that it is undisputed that thc owners, and not Zumbach, werc responsible for inaintcnance and snow removal in the area of Perez s Fill. Friedland cross moves for surninary judgment dismissing the complaint insofar as asserted against it. Freidland maintains that Giga s examination bcfore trial testimony establishes that Percz fell in front ol Zumbach s property. Friedland also maintains that the photographs taken by Pena of the subject arca after the accident dupict Zumbach employees removing snow and ice from the area of the fall and as such, Zumbach demonstrated doininion and control over the sub-ject area. Friedland argues that pursuant to the lease for the premises, Zumbach was required to indemnify and hold Friedland harmless against and from any accident, injury, or damage to any person ...in or about the demised premises or any part thereof. ..or any sidewalk.. .adjacent thereto, and in fact, Friedland tendered its defense and indemnification to Zumbach, which Zurnbach originally accepted. Further, Friedland was merely an out of posscssion landlord, and Zuinbach was responsible for maintenance of the subject sidewalk. 4 [* 6] In opposition to both motions, Perez first argucs that as-owner of the premises, Friedland owes a non-delegable duty to kcep the adjacent sidewalk in good repair pursuant to Administrative Code 57-2 10. Perez further argues that the photographs laken by Pcna of thc area of her fall raise an issue of fact as to the exact location of her fall, sufficient to defeat both summary judgment motions. She subinits an affidavit in which she states, the exact location of my accident on the sidewalk on West 5Sth Street, whether it was directly in front o ¬the second garage or third garage or in between the two, shouldn t make any difference. The photographs ...all depict the area where my accident occurred on March 19, 2007. Discussion A movant seeking summary judgment must make aprima jhcie showing of entitlement to judgment as a matter of law, offering sufiicient evidence to eliminate any material issues of faact, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1 985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. City of New York,49 N.Y.2d 557 (1980). The Court finds that Zuinbach has met its burden of establishing entitlement to judgtnent as a matter of law. In support of its motion, Zuinbach submits (1) Perez s testimony identi@ing and describing the location of her fall on the sidewalk; (2) photographs marked by Perez depicting the exact location of her fall; and (3) testimony 5 [* 7] from Mender and G i g indicating that the area marked by Perez on the photographs was Friedland s responsibility. Perez attempts to raise an issue of fact as to the location of her la11 by submitting an affidavit and referencing thc photographs taken by Pcna of the area or Perez s fdl. However, the photographs taken by Pcna depict the exact same area presented in the photographs marked by Perez. Percz s affidavit indicating that the exact location of her fall should not make any dif ¬erence is disingenuous and does not raisc any issue of fact as to thc location of her fall, as she does not specif y or mark any location different from thc one that shc had marked in the original photograph and gave testimony about. Her affidavit only attempts to create a feigned issue of fact which is insufficient to defeat a motion Sur summaryjudgment. See Gogos v Modell s Sporting Goods, h c . , 87 A.D.3d 248 ( I st Dept. 201 1); Garciu-Martinez v City of New York, 68 A.D.3d 428 (lqt Dept. 2009). The Court further finds that Friedland fails to meet its burden of establishing entitlement to judgmcnt as a matter of law. In support of its cross motion, it argues that Perez fell on the sidewalk in front olZumbach s premises and refers to the terms of Zumbach s lease agreement for its premises, arguing that Zumbach was responsible for maintenance of that sidewalk. Friedland refers to Giga s testimony in which he claims that Pena told him that he saw and spoke to P e r u on the date ofthe accidont, and that he saw her laying on the unshoveled ground between the middle garagc door, which is the service area for 6 [* 8] Zumbach, and the next westerly garage door. However, Pena clearly testified that he did not speak to or sce Perez on thc date of thc accident and any information hc had about her fall was from a conversation he had with an unidentified person. Perez clearly and unequivocally identified the location of her Fill and any reference to an unidentified person s opinion as to the location of her accident is insufficient to raise any material issue of fact. As such, pursuant to the lease agrecment and Gigs s testimony, Zumbach was only responsible for maintenance of the sidewalk in front of its garage door and leased property. No evidence was submitted to establish that Zumbach was responsible for maintenance of any other portion of the sidewalk. To the contrary, Giga and Mender both testified that the owner was responsible for the maintenance of the sidewalk in front of its premises. Perez clearly testified and identified on a photograph that she fell on the sidewalk in front of the owner s property, not Zuinbach s. In accordance with the loregoing, it is hereby OKDERED that defendant Zumbach Sports Cars Ltd. s motion for summary judgment dismissing the complaint and any cross claims insofar as asserted against it is granted, and the complaint and cross claims insofar as asserted against it are dismissed; and it is further 7 [* 9] OKDlXED that defcndants Melvin Friedland, Lawrence Friedland and Larstrand Corporation s cross motion for suinmary judgment dismissing the complaint insofar as asserted against them is denied. This constitutes the decision and order of the Court. Dated: FILED New York, New York December &) ,201 1 ENTER: DEC 23 2011 LERK S OFFICE 8

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