Martoral v City of New York

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Martoral v City of New York 2012 NY Slip Op 30835(U) April 3, 2012 Sup Ct, New York County Docket Number: 111185/08 Judge: Joan M. Kenney 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. SCANNED ON41312012 [* 1] 7 Index Number 11 11 85/2008 MARTORAL, TERESA L. -- Justice . ' VS , KAUFMANMANAGEMENT SEQUENCE NUMBER : 004 SUMMARY JUDGMENT t [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS Part 8 ____1_---------___1_---------------------------------------"----------- X Teresa L. Martoral, Plaintiff, DECISION AND ORDER lndex Number: 111185/08 Motion Seq. Nos.: 03 and 04 -against- City of New York, Kaufman Management Co. LLC, 450 7thAve. Associates, and Starbucks Corporation, Defendant. Recitation, as required by CPLR 2219(a), of the papers considered in review of these motions to disc. I Pa-pers(Motion Seq. 3) Notice of Motion, Affirmation Exhibits Opposition, Exhibits Reply (Motion Scq. 4) Notice of Motion Affirmation, Exhibits Opposition, Exhibits Reply FILED Numbered 1-2 3-1 1 12-15 16 APl? 03 2012 NEW YORK CLERKS O ~ I C E 1 2-14 15-17 18 Motion Sequences 003 and 004 are consolidated herein for disposition. In this personal injury action, defendants, K a u h a n Management Co. LLC, 450 7'h Ave. Associates (Motion Seq. 004), and Starbucks Corporation (Motion Seq. 003), move for an Order, pursuant to CPLR 6 32 12, dismissing the complaint. Fwctual Background On May 24,2007 Teresa Martoral was walking out of a Starbucks Coffee Shop (Starbucks), when she hipped and fell on a part of damaged sidewalk in front of Starbucks. [* 3] ~ Defendant, Starbucks Corporation, is a lessee of the space for one of their retail stores at 450 7Ih A m , New York. NY (the property). Defendant Kaufman Management Co. is an out-of- possession inanaging agent of the property. Defendant 450 7* Ave. Associates is the owner of the property. There is no dispute that the lease agreement that Starbucks had with 450 7* Ave. does not place any responsibility on Starbucks for the repair andlor maintenance of the sidewalk area. The lease specifically states that, Landlord shall maintain and repair the exterior of and the public portions of the building ...and the structural components of the premises. (Store iease 1 4). 1 Areumentl Defendant Starbucks Corporation argues that they are not liable to plaintiff because: (1) the NYC Administrative Code, Section 7-210; (2) because it did not construct, repair, andor maintain the sidewalk in question; and (3) nor were they required to, as per the lease agreement. Defendants 450 71hAve. Associates and K a u h a n Management Co. claim that the action must be dismissed because the plaintiff was unable to identify the location of her accident or the cause of her fall. Additionally, they argue that defendants did not cause or create the alleged defect as they did not make any prior repairs to the sidewalk or anywhere in front of the store, and therefore cannot be held liable. Plaintiff contends that the within motions must be denied because: (1) defendants were on constructive riotice of the alleged dangerous condition of the sidewalk defect; and (2) there are triable issues of fact to be considered. Discussion Pursuant to CPLR 3212(b), a motion for summary judgment shall be supported by 2 [* 4] affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action of defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in 3212(c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion." The rule governing summary judgment is well established: "The 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 eliminate any material issues of fact fiom the case." (Winegrad v New York University Medical Center, 64 NY2d 85 1 [19851; Torterello v Carlin, 260 Ad2d 201 [ 1" Dept 19991). In ordcr to establish a prima facie case of negligence in a trip and fall action, a plaintiff must demonstrate that a defendant either created a dangerous condition, or had actual and/or constructive notice of the defective condition alleged (see Judith U. Arnold v New York City Housing Authority, 296 AD2d 355 [ 1st Dept 20021). A genuine issue of material fact exists when defendant fails to establish that it did not have actual or constructive notice of a watery or hazardous condition. (Aviles v. 2333 1." Corp., 66 A.D.3d 432, 887 N.Y.S.2d 18 [l" Dept. 20091; Baez-Sharp v. New York City Tr. Auth., 38 A,D.3d 229,830 N.Y.S.2d 555 [Ist Dept. 20071). In B a a , the Court stated that defendant "failed in its initial burden, as movant, to establish, as a 3 [* 5] malter of law, that it did not create and did not have actual or constructive notice of the watery and hazardous condition. The NYC Administrative Code, Section 7-210, titled Liability of Real Property Owner For Failure to Maintain Sidewalk in a Reasonably Safe Condition, states as follows: a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition. b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for comer property, 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. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk... (New York City, N.Y., Code sec. 7-210) A managing agent not in complete and exclusive control is not liable for mere nonfeasance. This is a burden the plaintiff must prove. (see, Dempsey v. Ah. Ebo Associates, Inc., 262 A.D.2d 229,692 N.Y.S.2d344 [l Dept. 19991). Here, Starbucks is merely a lessee, not the owner of the building, thus not liable per the NYC Administrative Code. Further, Starbucks lease agreement does not place any burden on them to maintain the sidewalk. Therefore, Starbucks cannot be held liable for personal injuries sustained on the sidewalk adjacent to their store. Additionally, plaintiff gives no proof that Kaufinan Management had complete and exclusive control over the Starbucks premises, and as such, Kaufman cannot be held liable. (See also, Gardner v. 1111 Corp., 286 A.D. 110, 141 N.Y.S.2d 552 [lot Dept. 19551; and Hakim v. 65 f h Ave., LLC, 42 A.D.3d 374,840 N.Y.S.2d 323 [ 1ItDept. 20071). 4 [* 6] Defendant 450 7* Ave. mserts that they should also be relieved of liability in this action because plaintiff cannot identi@ the location of her accident. Plaintiff, however, stated at her deposition that the sidewalk was damaged where [she] fell. (Martoral transcript at 32). This disagreement leads ta a factual dispute, not allowing for summary judgment in the defendant s favor. As such, defendant 450 7* Ave. will remain in the action. By their very nature, negligence cases do not lend themselves to summary judgment because the issue of whether the defendant (or plaintiff) acted reasonably under the circumstances is rarely an issue that can be decided as R matter of law (Ugirrrizcr v. Schrnieder, 46 N.Y.2d 471 [1979] ). Accordingly, it is hereby ORDERED that defendant Starbucks Corporation s motion for summaryjudgment dismissing the complaint, is granted; and it is further ORDERED that defendant Kaufman Management Co. s motion for summary .judgment dismissing the complaint, is granted; and it is further ORDERED that defendant 450 Ave. Associates motion for summary judgment dismissing the complaint, is denied, in its entirety; and it is further ORDERED that the remaining parties proceed to mediation, forthwith Dated: March 28,2012 ENTER: V Joan M. Kenney, J.S.C. NEW YORK COUNTY CLERK S OFFICE 5

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