Evans v TD Bank, N.A.
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Evans v TD Bank, N.A. 2014 NY Slip Op 33306(U) December 16, 2014 Supreme Court, New York County Docket Number: 159582/13 Judge: Donna M. Mills 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 CITY OF NEW YORK COUNTY OF NEW YORK: PART 58 ---------------------------------- x ROSA EVANS, Plaintiff, Index No.: 159582/13 -againstDECISION AND ORDER TD BANK, N.A. d/b/a TD BANK, HUSA MANAGEMENT CO., LLC, HUSA OPERATING CO., LLC, HUSA MANAGING MEMBER, INC., COMMONWEALTH LOCAL DEVELOPMENT CORP., GOTHAM ORGANIZATION INC., HCC REALTY FUNDING CORP. and GRID PROPERTIES, INC., Defendants. -----------------------------------x MIL~S, J. FACTUAL BACKGROUND This is an action to recover for personal injuries allegedly sustained by plaintiff Rosa Evans on August 29, 2012, when she all~gedly tripped and fell due to a sidewalk abnormality, specifically, pavers that were allegedly improperly built and/or repaired in front of the premises located at 300 West 125'h Street in the county of New York. Plaintiff avers that TD Bank negligently allowed the sidewalk adjacent to its store to become a hazardous condition. The compla{nt also alleges causes of action against several real estate companies, including the store's landlord (collectively "HUSAn). Defendant TD Bank moves for summary judgment on its crossclaims for contractual indemnification against HUSA for reimbursement of TD Bank's defense costs and attorneys' fees [* 2] incurred in this lawsuit, and dismissal of all cross-claims against TD Bank. Plaintiff and defendant HUSA both oppose the motion on the ground that the motion is premature as no discovery has taken place. DISCUSSION "The proponent of a summary judgment motion must make a prim~ facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any m~terial issues of fact from the case [internal quotation marks and citation omitted]." (1st Dept 2006). Santiago v Filstein, 35 AD3d 184, 185-186 The burden then shifts to the motion's opponent to "present facts in admissible form sufficient to raise a genuine, triable issue of fact." of Art, 27 AD3d 227, 228 New York, Mazurek v Metropolitan Museum (1st Dept 2006); see Zuckerman v City of 49 NY2d 557, 562 (1980). If there is any doubt as to ·the. existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978). In this action for personal injuries, plaintiff alleges that she tripped and fell over a defective sidewalk in front of TD Bank, where TD Bank is a tena_'nt. However, the law is clear that as a tenant of the premises, not an abutting landowner, TD Bank ha~ no statutory obligation to maintain the public sidewalk ' adjacent to its store (Administrative Code of City of NY see Rothstein v 400 E. 54th St. Co., 51 AD3d 431 [2008]). § 7-210; [* 3] Accordingly, this court finds that TD Bank, as a tenant, made a prima facie showing of entitlement to judgment as a matter of law. TD Bank submitted sufficient evidence to demonstrate, prima facie, that it did not create the alleged defect nor make special use of the sidewalk. Further, under the terms 0£ the 2003 lease between TD Bank and HUSA, TD Bank has no obligation to maintain the sidewalk (see Collado v Cruz, 81 AD3d 542 [1st Dept 2011]). In opposition to the motion, plaintiff and HUSA both argue that the motion is premature in that no discovery has been held to date and that it is too early in the litigation process to permit TD Bank to escape liability for the subject accident: "A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supportin~ the oppbsing party's position may exist but cannot then be stated" (Matter of Fascigliqne, 3212[f]. A party's " 73 AD3d 769, 770 [2010]; see CPLR 'mere hope or speculation that evidenc~ sufficient to defeat a motion for summary judgment may be uncovered' by further discovery is an denying the motion" (Woodard v Thomas, ~nsufficient basis for 77 AD3d 738, 740 [20~0]). Theplaintiff and co-defendants "failed to demonstrate that discovery may lead to relevant evidence or that the facts essential to justify opposition to the motion were. exclusively within the knowledge and control of the TD Banks defendant 3 [* 4] (Boorstein v 1261 43th St. Condominium, 96 AD3d 703, 704 [2012]; see CPLR 3212 [f]). Here, it is undisputed that at the time of plaintiff's incident, TD Bank was the tenant of the premises abatting the sidewalk on which plaintiff fell and that TD Bank was not the abutting landowner. Although TD Bank may have been required pursuant to the lease to clean the sidewalk, TD Bank was not required to repair the sidewalk and keep it free of structural defects. Therefore, in the absence of any duty to maintain the sidewalk, and in the absence of any proof that TD Bank made "special use" or repair of such sidewalk, TD Bank established it's entitled to summary dismissal of the complaint as asserted against it. CONCLUSION Based on the foregoing, it is hereby ORDERED that the def~ndant TD Bank's motion for summary judgment is granted and the complaint and all cross claims are dismissed as against this defendant with costs and disbursements to this defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that TD Bank's cross-claims for contractual indemnification and common-law indemnification against HUSA for reimbursement of TD Bank's defense costs and attorneys' incurred in this lawsuit is granted; and it is further 4 fees [* 5] ORDERED that the Clerk is directed to enter judgment in favor of TD Bank; and it is further ORDERED that the action is severed ad continued against the remaining defendants. DONNA u. M\u.&. J.S.C. 5
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