Maldonado v Tip Top Mgt., Inc.

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Maldonado v Tip Top Mgt., Inc. 2013 NY Slip Op 32220(U) September 18, 2013 Supreme Court, New York County Docket Number: 106646/11 Judge: Joan M. Kenney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 912012013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JOAN M. KE PRESENT: * . . .* . s*ri * PART Justice IIW 1 ~ ~ m. Index Number : 106646/2011 MALDONADO, NANCY INDEX NO. VS. MOTION DATE TIP TOP MANAGEMENT SEQUENCE NUMBER : 002 - :I MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to a ,were read on this motion tOlfOr b Notice of MotionlOrder to Show Cause -Affidavits - Exhibits &ce o$ CpU +Q@ SEP 2 0 2013 NEW YORK COUNtYCLERe MQTIQN IS DECIDED I ACCORDANCE N WlTW THE ATTACHED MEMORANDUM DECISIW -* . - ' .. A E z sx 0: z 9 I s W I c n K s ,J.S.C. Y O A N M. KENNEY I ..................................................................... CASE DISPOSED 0DENIED 2. CHECK AS APPROPRIATE: ............. .MOTION IS: c GRANTED ] 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1. CHECK ONE: c DO NOT POST ] W-FI~L-OSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, DECISION AND ORDER Index Number: 106646/11 Motion Seq. No.: 002 -againstTip Top Management, Inc., and Rey Food Corp. D/B/A Rey s Deli Grocery, KENNEY, JOAN M., J. Recitation, as required by CPLR 22 19(a), of th motion for summary judgment. Papers SEP 2 0 2013 Notice of Motion, Affirmation, and Exhibits Notice of Cross-Motion, Affrmation/Opposition, ExhibiNEW VoRK Opposition to Cross/Reply Affirmation and E m N . r ) . cLE Reply to Cross Ics- .- 4 1-13 14-19 20-25 26 In this personal injury action, defendant, Rey Food Corp. D/B/A Rey s Deli Grocery (Rey s), moves for an Order, pursuant to CPLR 3212, dismissing plaintips complaint. Plaintiff, Nancy Maldonado, moves for an Order, pursuant to CPLR 3212, granting summary judgment against Rey. Factual Bacbround On or about March 8, 201 1,plaintiff was exiting Rey s Deli Grocery, located at 740 loth Ave., New York, NY, when she was caused to trip and fall on the steps located on the outside of the store (the accident). At her deposition, plaintiff claimed her fall was caused by a cracked and/or damaged step on the outside of Rey s. The owner of the property where Rey s was located is Tip Top [* 3] Management, Inc. (Tip Top). Both Rey s and plaintiff have received default judgments against Tip Top. Rey s stated in their moving papers that there has not been a written lease between them and Tip Top since 2006, but that the exterior of the property was the responsibility of Tip Top to maintain. Aryuments Defendant Rey s claims that they owed no duty of care with respect to the step where the accident happened, as that is the statutory responsibility of Tip Top. Plaintiff maintains that Rey s did owe them a duty of care, and that Rey s had actual and constructive notice of the alleged defective/dangerous condition. Discussion Pursuant to CPLR 3212(b), a motion for summary judgment shall be supported by 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 subdivision 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 2 [* 4] 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; Tortorello v Carlin, 260 AD2d 201 [ 1st Dept 19991). New York City Administrative Code Article 301 $28-301.l, which states, in pertinent part: Owner s Responsibilities All buildings and all parts thereof and all other structures shall be maintained in a safe condition. All service equipment, means of egress, materials, devices, and safeguards that are required in a building by the provisions of this code, the 1968 building code or other applicable laws or rules, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working condition...The owner shall be responsible at all times to maintain the building and its facilities and all other structures regulated by this code in a safe and code-compliant manner and shall comply with the inspection and maintenance requirements of this chapter. Tip Top is designated as the owner on the deed. (Moving papers, Ex. K). Without a lease specifying that Rey s is responsible for the maintenance of the egress, the Administrative Code is controlling and therefore Tip Top is responsible for maintaining the means of egress (ie. the alleged damaged steps). Moreover, the case law provided by plaintiff (Howard v Alexandra Dept. 201 11) is not applicable here because plaintiff cannot dispute that Rest., 84 AD3d 498 [lst there was no least between Rey s and the owner of the premises, Tip Top. Accordingly, it is hereby ORDERED, that defendant Rey Food Corp. D/B/A Rey s Deli Grocery s motion, is granted, in its entirety; and it is further ORDERED, that plaintiffs cross-motion, is denied, as moot; and it is further 3 [* 5] ORDERED, that the Clerk of the Court shall enter judgment in favor of defendant Rey Food Corp. D/B/A Rey s Deli Grocery and against plaintiff; and it is further ORDERED, that plaintiff proceed with an assessment of damages hearing against Tip with this Court s Order dated February 17,2012. Dated: Joan M. Kenney, J.S.C. 4

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