Kumar v PI Assoc. LLC

[*1] Kumar v PI Assoc. LLC 2013 NY Slip Op 51792(U) Decided on October 23, 2013 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2013
Supreme Court, Queens County

Bhanmattie Rajkumar Kumar, Plaintiff,

against

PI Associates LLC, CAPITAL ONE BANK AND PRETTY GIRL, Defendants.



26568/11

Robert J. McDonald, J.

Upon the foregoing papers the motion is determined as follows:

Plaintiff Bhanmattie Rajkumar Kumar alleges that she sustained personal injuries on November 19, 2011, when she tripped and fell on the sidewalk abutting the premises known as 136-21, Roosevelt Avenue, Flushing, New York. Defendant Pi Associates LLC is the owner of [*2]the adjoining real property, and Capital One Bank and Pretty Girl each occupied separate premises which have the single address of 136-21 Roosevelt Avenue, Flushing, New York.

The premises now occupied by Capital One Bank was previously owned by the Long Island Savings Bank, FSB. The Long Island Savings Bank entered into a lease agreement with Home Savings of America, FSB dated September 3, 1993. On April 23, 1998, Pi Associates LLC, as successor to the landlord Long Island Savings Bank, FSB, entered into an extension and modification of said lease with Greenpoint Bank, successor to Home Savings of America, FSB, at which time the tenant bank surrendered some portion of the demised premises and agreed to construct a wall separating the demised premises from the surrendered space. Pi Associates LLC, thereafter entered into a modification of its lease with Greenpoint Bank, further reducing the size of the demised premises.

Paragraph 9 (B) of the original lease agreement provides that the landlord is to make all repairs to the exterior of the demised premises and "to the sidewalks and curbs". The two modifications agreements confirmed and ratified the terms, covenants and conditions of the original lease, so that the provision setting forth the landlord's obligation to repair the exterior of the demised premises, to the sidewalks and curbs, remained in effect. It is undisputed that Capitol One Bank is the successor to the Greenpoint Bank, and that the lease agreement, as extended and modified remains in force.

Pi Associates LLC also entered into a lease agreement with White Plains Sportswear Corp., dated April 18, 2000, for the period of April 18, 2000 to April 30, 2010, whereby it leased a portion of the first floor and a part of the basement of the premises located at 136-21 Roosevelt Avenue, Flushing, New York. White Plains Sportswear Corp. assigned the lease to Roosevelt Fashion Corp. on June 29, 2000, and said lease was renewed for the period of May 1, 2010 to April 30, 2015. It is undisputed that the premises leased by Roosevelt Fashion [sic] Corp. was occupied by Pretty Girl at the time of the plaintiff's accident, and that Roosevelt Fashions Corp. was doing business at that location as Pretty Girl.

Plaintiff commenced the within action against Pi Associates LLC, Capital One Bank and Pretty Girl on November 23, 2011, and alleges in the verified complaint a single cause of action for negligence. Defendant Pi Associates LLC served an answer and interposed eight affirmative defenses and cross claims against the co-defendants for common law indemnification, contractual indemnification, and breach of contract based upon the alleged failure to procure insurance. Capital One Bank served a verified answer and interposed six affirmative defenses and cross claims against the co-defendants for common law indemnification, contribution, contractual indemnification, and for insurance coverage. Roosevelt Fashions Corp., d/b/a Pretty Girl served a verified answer and interposed seven affirmative defenses and cross claims against the co-defendants for contribution, common law indemnification, contractual indemnification, and for breach of contract based upon an alleged failure to procure insurance.

Ms. Kumar stated at her deposition that she was walking to the Capital One Bank, and [*3]was looking straight ahead of her, when the toes of her left foot became caught in hole in the sidewalk causing her to fall. Ms. Kumar stated that she fell before she got to the bank, that was were Capital One Bank and Pretty Girl [a clothing store] "kind of meet". (Tr 43) When asked if she finished "walking past Pretty Girl and then fell just where the Pretty Girl property line met up with the Capital One Bank", she stated that she "wouldn't be able to say" (Tr. 44). She stated that two individuals picked her up, and a chair was brought out for her to sit on, while she waited for her son, and an ambulance to arrive. She stated that while she was sitting on a chair she noticed that a triangular piece of the sidewalk, approximately 6" x 6" was broken and missing. As a result of the fall Ms. Kumar sustained a broken femur and had emergency surgery. Photographs of the broken sidewalk were submitted at the deposition and Ms. Kumar identified the area where she fell.

Vera Penn, appeared at a deposition on behalf of Pi Associates LLC. Ms. Penn stated that she was a bookkeeper employed by Pi Capital Partners, the management office for Pi Associates LLC, and that she negotiated leases with tenants on behalf of Pi Associates LLC. She stated that Pi Associates LLC is the owner of the building know as 136-21 Roosevelt Avenue, and that she visited the premises a "couple of times a year" (Tr 14); that she did not know who from Pi Associates LLC or Pi Capital Partners was responsible for inspecting the real property; that she did not know if any work was done to the abutting sidewalk prior to the plaintiff's accident; that Pi Capital Partners employed five doorman or building supers who performed daily cleaning in front of the bank, but not in front of the portion occupied by Pretty Girl. She stated that predecessor banks to Capital One Bank was a tenant at the subject property prior to its purchase by Pi Associates LLC. Photographs were submitted at the deposition and Ms. Penn identified the "chipped out", "uneven" sidewalk. She stated that she had never paid any attention to that portion of the sidewalk during any walks around the exterior of the building prior to the date of plaintiff's accident. Ms. Penn stated that she had never been specifically notified as to where the accident occurred. She and stated that if the location where the accident occurred "belongs to the bank, then as landlord we are responsible. If it belongs to Pretty Girl, then Pretty Girl is responsible for it" based upon the lease (Tr 34). Ms. Penn stated that she did not receive any complaints from the bank about the condition of the sidewalk; that she did not have any personal knowledge that the sidewalk was caused by Pretty Girl; that she did not ask Pretty Girl's principal's to make any repairs to the sidewalk abutting their premises; and that one of the doormen informed her sometime in 2012 that Pretty Girl had fixed the sidewalk.

Victor Lavy, Pretty Girl's district manager, testified at his deposition that at the time of the accident, the Pretty Girl store was operated by Roosevelt Fashion; that he went to the store location once a week, every two weeks; that merchandise may have been placed outside the store on the sidewalk; that the employees at the store were responsible for cleaning the sidewalk in front of the store; that he did not know who was responsible for repairing the sidewalk in front of the store; that Pretty Girl was responsible for removing snow from the sidewalk in front of the store; that he did not remember if any complaints had been made in connection with the sidewalk in front of the store and that if complaints had been made they would not have been documented in any way; that Pretty Girl did not make any repairs to the sidewalk prior to the date of the [*4]accident; that merchandise was delivered to the store by truck which would be unloaded in front of the store and brought in by either a hand truck or dolly; and that deliveries were made three or four times a week. Photographs depicting the broken sidewalk were presented at the deposition. Mr. Lavy stated the he did not know if the broken sidewalk was" in front of Pretty Girl or someplace else (Tr 30) and that he didn't who would be responsible for fixing the sidewalk. He stated that he did not know how the sidewalk came to be in the condition depicted in the photograph (Tr 31). and did not know if it had been repaired or patched (Tr 41) or who performed the repair (Tr 45). Mr. Lavy stated that he did not pay attention to the condition of the sidewalk when he visited the premises.

Velinda Miranda, an assistant manager at the subject Pretty Girl store, testified that the crack in the sidewalk was located in between Pretty Girl and Capital One Bank; that she was aware of the crack in the sidewalk but did not report it to anyone; that she did not witness the plaintiff's accident; that Pretty Girl placed clothing racks on the sidewalk but did not place anything in the area of the cracked sidewalk; that at the time of her January 25, 2013 deposition she had worked at Pretty Girl for approximately four years and that the crack was there when she first started working; and that the crack has been repaired since the previous summer, but that she did not know who had performed the repair.

Theodore Pietra, was deposed on behalf of Capital One Bank. Mr. Pietra is employed by C.BR.E., the facilities manager for Capital One Bank. He stated that C.B.R.E. has been the facilities manager since January 2011, pursuant to a contract. He stated that he is the Regional Director Facilities Northeast Region Capital One account, and that he had been employed by C.B.R.E. since August 28, 2012. He stated that he had never visited the Capital One Bank premises located at 136-21 Roosevelt Avenue, and was not aware of the property lines. Mr. Pietra stated that a C.B.R.E. maintenance technician would visit the bank premises twice a month and inspect the premises and that the technician would use a form checklist. He stated that he did not know whether, as of November 19, 2011, the checklist included the exterior of the premises; that photographs were occasionally taken during inspections, but that videos were normally not taken; and that the supervising facilities manager for the subject Capital One Bank location would also perform an annual inspection of the site and utilize a form check list. He stated that on November 19, 2011 he did not know whether the maintenance technician or anyone from Capital One Bank would inspect the public sidewalks. Mr. Pietra stated that he did not know if anyone from Capital One Bank would also perform any inspections of the bank premises or exterior. He stated that the current C.B.R.E. check list includes inspection the exterior of the premises, and the abutting sidewalk; and that the sidewalk would be checked for cleanliness and damage. He stated that the checklists are electronically filed. He stated that based upon the information provided by counsel, that as of November 19, 2011, the landlord of the subject premises was responsible for snow removal from the public sidewalk, and that the landlord was responsible for repairing the sidewalks. Mr. Pietra, however, had not read the subject lease.

The law concerning liability for injury caused by a dangerous condition on a sidewalk changed in New York City during the time 136-21 Roosevelt Avenue was occupied by Pretty [*5]Girl and owned by Pi Associates. Prior to September 14, 2003, the effective date of §7-210 of the Administrative Code of the City of New York ("the New Sidewalk Law"), the City had an "obligation to maintain sidewalks in a reasonably safe condition." (See Garricks v City of New York, 1 NY3d 22, 27 [2003]; see also Rodriguez v City of New York, 12 AD3d 282, 282 [2d Dept 2004]), At the same time, the owner of the property abutting the sidewalk could also be liable for damage or injury caused by a dangerous condition on the sidewalk "where the sidewalk was constructed in a special manner for the benefit of the abutting owner . . . , where the abutting owner affirmatively caused the defect, . . . where the abutting landowner negligently constructed or repaired the sidewalk . . . [ ,] and where a local ordinance or statute specifically charges an abutting landowner with a duty to repair the sidewalk and imposes liability for injuries resulting from the breach of that duty." (See Hausser v Giunta, 88 NY2d 449, 453 [1996]), Where both the City and the abutting landowner breached their respective duties to members of the public, both could be "made to respond in damages to those injured by the defective condition." (See D'Ambrosio v City of New York, 55 NY2d 454, 463 [1982]),

Effective September 14, 2003, the New Sidewalk Law imposes upon the owner of real property abutting any sidewalk "the duty . . . to maintain such sidewalk in a reasonably safe condition," and provides that the owner "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." (See Administrative Code of the City of New York §7-210 [a], [b]), There is an exception to owner liability for "one-, two-, or three family residential real property that is . . . in whole or in part, owner occupied, and . . . used exclusively for residential premises." (See Administrative Code of the City of New York §7-210 [b]). The City "shall not be liable for any injury to property or personal injury . . . proximately caused by the failure to maintain sidewalks," except for sidewalks abutting owner-occupied residential properties with three or fewer units, or where the City itself is the owner of the abutting property. (See Administrative Code of the City of New York §7-210 [c]). There is nothing in the New Sidewalk Law, however, that suggests that the City would not be liable where its liability would not be based on a failure to maintain, but rather a breach of its duty not to create a dangerous condition on a sidewalk, whether it creates the condition with its own employees or a contractor. (See Tumminia v Cruz Constr. Corp., 41 AD3d 585, 586 [2d Dept 2007]; see also Harakidas v City of New York, 86 AD3d 624, 627, [2d Dept 2011]),

The potential liability of a lessee of property, however, has not changed by reason of the New Sidewalk Law. (See Leary v Dallas BBQ, 91 AD3d 519, 519 [1st Dept 2012]), In the absence of a lease that is " so comprehensive and exclusive' as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk" (See Abramson v Eden Farm, Inc., 70 AD3d 514, 514 [1st Dept 2010] [quoting Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [ 2002]), the lessee will be liable only if it "created the defective condition, negligently made repairs, or used the sidewalk for a special purpose" (See Berkowitz v Dayton Constr., Inc., 2 AD3d 764, 765 [2d Dept 2003]; see also Collado v Cruz, 81 AD3d 542, 542 [1st Dept 2011]; Biondi v County of Nassau, 49 AD3d 580, 580-81 [2d Dept 2008]; Zito v City of New York, 293 AD2d 469, 469-70 [2d Dept 2002]), The "duty not to create a defective condition" is "independent" of any duty to maintain the sidewalk in a reasonably safe condition. (See Kiernan [*6]v Thompson, 73 NY2d 840, 841 [1988]). Moreover, an out-of-possession landlord is not relieved of its "nondelegable duty to maintain the sidewalk in a reasonably safe condition." (See Reyderman v Meyer Berfond Trust No.1, 90 AD3d 633, 634 [2d Dept 2011]; see also James v Blackmon, 58 AD3d 808, 809 [2d Dept 2011]). A party seeking summary judgment must demonstrate, prima facie, that it is entitled to judgment as a matter of law, by presenting sufficient evidence to negate any material issues of fact. (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 314 [2004]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), If the movant meets this burden, the opponent must offer admissible evidence to demonstrate the existence of factual issues that require a trial. (Zuckerman v City of New York, 49 NY2d 557, 5625 [1980]), If the movant does not meet this burden, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 NY2d at 853.) A defendant moving for summary judgment must negate, prima facie, an essential element of the plaintiff's cause of action. (Rosabella v Metro. Trans. Auth., 23 AD3d 365, 366 [2d Dept 2005]), Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable. (Forrest, 3 NY3d 314.) Moreover, to sustain its burden, a movant cannot simply reveal gaps in its opponent's case, rather it must "affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004], quoting George Larkin Trucking Co. v Lisbon Tire Mart, Inc., 185 AD2d 614, 615 [4th Dept 1992]),

Negligence arises from a duty, a breach thereof, and an injury proximately caused thereby. (Kenney v City of New York, 30 AD3d 261, 262 [1st Dept 2006]), A lessee is liable for those conditions which exist within the area leased, but is not liable for conditions outside the demised premises over which it does not posses, maintain, or control. (Hoberman v Kids R Us, Inc., 187 AD2d 187, 190 [1st Dept 1993]), Owners, not tenants, have a nondelegable duty to maintain abutting sidewalks in "reasonably safe condition." (Administrative Code of the City of New York § 7-210). Therefore, in an action for personal injuries arising from a defective or dangerous sidewalk condition, a tenant demonstrates its entitlement to summary judgment by submitting evidence that it neither negligently repaired the sidewalk nor caused the dangerous condition by some special use of the sidewalk or otherwise. (Taubenfeld v Starbucks Corp., 48 AD3d 310, 311 [1st Dept 2008], leave denied 10 NY3d 713 [2008]), Here, plaintiff does not claim that the defendants negligently repaired the sidewalk and Capital One Bank, as a tenant, had no duty to maintain or repair the abutting public Capital One Bank asserts that the subject broken sidewalk fell, is located in front of Pretty Girl's premises and not the premises occupied by the bank. In support of this claim Capital One Bank seeks to rely upon photographs submitted at the parties' depositions. These photographs, however, do not conclusively establish that the defective sidewalk was located solely in front of the premises occupied by Pretty Girl. The amount of square footage at premises located at 136-21 Roosevelt Avenue that was leased to the predecessor bank was reduced and divided by a wall, so that a portion of the space created a new street front space that was occupied by Pretty Girl. These two spaces share an single address and no documentary evidence has been submitted which [*7]establishes the exterior dimensions of each street front space. Therefore, contrary to Capital One Bank's assertion, the evidence presented does not establish that the accident occurred solely on a portion of the sidewalk abutting Pretty Girl's premises.

The court further finds that Capital One Bank failed to proffer any evidence in support of its counsel's claim that it did not create the defective condition, and therefore it has not established prima facie, that it owes no duty to plaintiff. (cf. Leary v Dallas BBQ, 91 AD3d 519 [1st Dept 2012]; Hines v City of New York, 43 AD3d 869, 870 [2d Dept 2007]; Rodgers v City of New York, 34 AD3d 555, 556 [2d Dept 2006]; Berkowitz v Dayton Constr., Inc., 2 AD3d 764, 765-766 [2d Dept 2003]), Therefore, that branch of Capital One Bank's motion which seeks summary judgment dismissing the complaint and all cross claims, is denied.

Capital One Bank and Pi Associates LLC have asserted cross claims against one another for contractual indemnification.Paragraph 43 of the original lease agreement entitled "Indemnification", taken as a whole contains reciprocal indemnification provision. These provisions presupposes that only one parties is being sued as a result of some claim, with the result that the second party makes a demand to be defended. In this instance plaintiff named both parties from the outset. Therefore, each defendant under the lease is demanding the other should defend and indemnify them, rendering this provision meaningless. (See Okowsky v Cord Meyer Dev., 22 Misc 3d 1122 [A], [Supreme Court, Queens County, 2009]), therefore, that branch of defendant's motion which seeks, in the alternative, summary judgment on its cross claim for contractual indemnification is denied.

Accordingly, defendant Capital One Bank's motion for summary judgment dismissing the complaint and all cross claims, and in the alternative for summary judgment on its cross claim against Pi Associates LLC for contractual indemnification, is denied.

Dated: Long Island City, NY

October 23, 2013

ROBERT J. McDONALD

J.S.C.