Torres v City of New York

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Torres v City of New York 2013 NY Slip Op 32687(U) October 21, 2013 Sup Ct, New York County Docket Number: 105711/10 Judge: Geoffrey D. Wright 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Justice MOTION DATE _ __ ·If· MOTION SEQ. NO. ,)() "} _ _J:__ ,were read on this motion to/for flt (,{ l'tj \...{ /Y\.f fl f Notice of Motion/Order to Show Cause -Affidavits - Exhibits I No(s)._ _ _ _ __ I '"?:> Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). -'2, - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 1No(s). _ _ _ _ __ The following papers, numbered 1 to Upon the foregoing papers, lJ ~ ,fh it Is ordered that this motion is a11n-ty. <£/ furc Iv ol.e t< cDcl //1 0V C< .) /U/"\ ' FILED \ ~ GB()fF!lEY 0 , w1.1tan Dated: / 0 !'1-/ / /~ 1. CHECI< ONE: ..................................................................... A..JSf' - - - - - - - - - - - ' J.S.C. 0 JR CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: GRANTED 3. CHECK IF APPROPRIATE: ............................................... . SETTLE ORDER DO NOT POST DEN!ED NON-FINAL DISPOSITION GRANTED IN PART SUBM!T ORDER OTHER [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x MIGUEL ANGEL TORRES, Plaintiffs -againstTHE CITY OF NEW YORK and VALERISSERVICE STATION, INC., Defendants. Index # 105711/l 0 DECISION/ORDER Present: Hon. Geoffrey D. Wright -------------------------------------------------------------------x Acting Justice Supreme Court RECITATION, AS REQUIRED BY CPLR 2219(A), of the papers considered in the review of this Motion/Order for summary judgment. PAPERS FIL ENDBE Notice of Motion and Affidavits Annexed...... 1 Order to Show Cause and Affidavits Annexed OCT 2 9 2 ---Answ~ring Affid~vits ...................... ............... ''NEW YORK 2, 3 Rep~y~ng Affidavits ......... ····· .............. COUNTY Exh1b1ts ............................................................ . Other.................. cross-motion.......................... . ~,....-;:----t- ~ cL.ERK'&GFFIC!- Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Defendant, Valeris Service Station, Inc., ("V aleris") moves for reargument of its motion for summary judgment pursuant to CPLR 222l(d) and CPLR 3212. By an Order of this court dated June 20, 2013, the court denied their motion for summary judgment. Plaintiff and the City of New York oppose the motion to reargue. They argue that the motion to reargue is nothing more than a rehash of the original motion for summary judgment and therefore should be denied. This is an action for personal injuries arising out of a slip and fall accident that occurred on March 4, 2009 at the southwest comer, East 2"d Street and Avenue C, New York County. Plaintiff, Miguel Torres ("Plaintiff') alleges that he slipped and fell on a pedestrian ramp and subsequently was injured by a curb guard that was bent away from the curb. In my decision, I held in pertinent part: The photographic evidence submitted by plaintiff demonstrates that there is a triable issue of fact regarding whether Valeris' sidewalk cleaning methods contributed to a buildup of snow that the plaintiff allegedly slipped and fell on. [* 3] Val eris argues that the Court misapprehended or overlooked specific matters of fact or law when deciding the motion for summary judgment. It is well settled that a motion for reargument pursuant to CPLR 2221 (d)(2) "addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (internal citations omitted)." Foley v Roche, 68 AD2d 558 [1st Dept 1979]; Ito v 324 East 9th Street Corp., 49 AD3d 816, 817 [2d Dept 2008]; Mangine v Keller, 182AD2d476 [1st Dept 1992] Valeris argues that the Court did not review their Reply Affirmation in further support of its motion for summary judgment. Valeris bases this claim on the recitation of the papers on this Courts Decision and Order. In addition they assert that the Court's interpretation of the photographic evidence did not take the Plaintiffs testimony into consideration. During his deposition, Plaintiff specifically identified the location of the snow and/or ice condition which caused him to fall. Plaintiff marked a photograph with a blue dot identifying the precise location where he slipped. The area that Plaintiff marked was clearly within the pedestrian ramp. The pedestrian ramp that Plaintiff alleges that he slipped and fell on is not the property of Valeris because a pedestrian ramp is not part of the sidewalk. See Ortiz v. City of New York. et al., 67 A.D.3d 21 (App. Div. pt Dept., 2009) (reversed on other grounds). The "comer intersection quadrant" mentioned in Section 7-201(a) and 7-210(b) of the New York City Administrative Code refers to the part of the sidewalk that is not directly faced by either of the sides of a building whose two sides form a 90 degree angle, but, as per Ortiz, does not include the pedestrian ramp. As a result of his slip and fall, Plaintiff cut his leg on a piece of metal that was hanging off the curb at the comer. This protruding piece of metal was later repaired by the City. Plaintiff testified that immediately after the accident, he gave a "boy" $10.00 to go to a local store to purchase a disposable camera. The pictures that were taken depicted the conditions of the area as it existed when the accident occurred. A closer review of the pictures depict a small amount of snow which existed on the pedestrian ramp and on the street surrounding the protruding metal piece, neither of which Valeris would have responsibility for. There does not appear to be any snow on the sidewalk, and as previously discussed, Plaintiff identified the location where he slipped as being in the pedestrian ramp. Accordingly, it is ORDERED that the motion to re-argue is granted and upon reargument, it is ORDERED that the motion for summary judgment is granted. This constitutes Fdl°tne1 or of, Court QC1 2 9 2013 l Dated: October 21, 2013 GEOFFJ! t!.. EY D. !VRIGlf:r NEW YORK JUDGE GEOFFAlJSV. WRIGHT COUNTY Ci.J:HK'S O~A5ing Justice of the Supreme Court ; ...... ·~.._ ... ,. ~· .~ ~

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