Zorin v City of New York

[*1] Zorin v City of New York 2014 NY Slip Op 50135(U) Decided on February 6, 2014 Supreme Court, Queens County Flug, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2014
Supreme Court, Queens County

Polina Zorin, Plaintiff(s),

against

The City of New York, B.F., ASSOCIATES, LLC, STORAGE DELUXE ENTERPRISES, LLC, NATIONAL GRID ENERGY MANAGEMENT, LLC, KEYSPAN ENERGY CORPORATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., DELTA GENERAL CONTRACTING & MANAGEMENT, CORP., PRATT BROTHERS, INC., AND TIME WARNER ENTERTAINMENT COMPANY, L.P., Defendant(s).



264022011

Phyllis Orlikoff Flug, J.

The following papers numbered 1 through 56 read on this motion

Notice of Motion1 - 24

Notice of Cross Motion25 - 28

Answering Affidavits29 - 44

Reply Affidavits45 - 56

Defendant, Storage Deluxe Enterprises, LLC (Storage Deluxe), seeks for summary judgment in its favor pursuant to CPLR 3212; Defendant, Consolidated Edison Company of New York, Inc. (Con Ed), also seeks for summary judgment pursuant to CPLR 3212; Defendant, Delta General [*2]Contracting & Management Corp. (Delta), seeks for summary judgment in its favor dismissing plaintiff's negligence claim and dismissing the cross claims against Delta; Defendant, Pratt Brothers, Inc., seeks for summary judgment in its favor pursuant to CPLR 3212; Defendant, The City of New York (The City), seeks for summary judgment in its favor pursuant to CPLR 3212; and Defendant, Hylan Datacom & Electrical, Inc. (Hylan), cross moves to dismiss the third-party complaint and all cross claims against it.

Plaintiff seeks damages for personal injuries sustained when she tripped and fell over an alleged defect on a public sidewalk abutting premises at 38-01 47th Avenue, in Queens, New York. The accident occurred on December 9, 2010. At that time, the premises were leased to Storage Deluxe and, pursuant to the terms of its lease, Storage Deluxe was responsible for repair of the sidewalk. In or about 2007 and 2008, Storage Deluxe hired Delta to repair a portion of the sidewalk. Plaintiff also alleges that various other entities performed work at the subject site at some point in time relevant to the date of the subject accident. As noted above, the defendants move and cross move for summary judgment in their favor on the ground that, inter alia, they did not perform work at the location of the subject accident. Plaintiff opposes the motions and cross motion.

Generally

Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it ( see Mei Xiao Guo v Quong Big Realty Corp., 81 AD3d 610, 610—611 [2d Dept. 2011]; Melnikov v 249 Brighton Corp., 72 AD3d 760 [2d Dept. 2010]). However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation ( see Ash v City of New York, Trump Village Section 3, Inc., 109 AD3d 854 [2d Dept. 2013]; McFadden v 726 Liberty Corp., 89 AD3d 1067, 1067 [2d Dept. 2011]; Patrick v Costco Wholesale Corp., 77 AD3d 810 [2d Dept. 2010]; Blochl v RT Long Is. Franchise, LLC, 70 AD3d 993, 993 [2d Dept. 2010]; Miller v 7—Eleven, Inc., 70 AD3d 791, 791 [2d Dept. 2010]).

" [A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation' " ( Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286, 1287 [2d Dept. 2011] quoting Rajwan v 109—23 Owners Corp., 82 AD3d 1199, 1200 [2d Dept. 2011] [internal quotation marks omitted]; see Aguilar v Anthony, 80 AD3d 544, 545 [2d Dept. 2011]). Although "[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident, ... mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action" ( Costantino v Webel, 57 AD3d 472, 472 [2d Dept. 2008]; see Louman v Town of Greenburgh, 60 AD3d 915, 916 [2d Dept. 2009]). Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation ( see Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d at 1287; [*3]Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434, 435 [2d Dept. 2006]).

Movant relies on plaintiff's deposition when she testified that she did not see the pothole prior to falling and did not feel her foot inside the hole or remember making contact with the pothole before she fell. It wasn't until after she was assisted up by her co-worker, Yevgeniya Kotlyerskaya, who was present at the time of plaintiff's fall, that she observed the pothole. Kotlyerskaya, also testified that she did not see the pothole until after plaintiff fell and after she helped plaintiff up.

In opposition, however, plaintiff submitted the 50-h hearing minutes in which she identified a photograph of the sidewalk defect and testified that it caused her to fall. This testimony is sufficient to raise a triable issue of fact as to whether the sidewalk depression was a proximate cause of plaintiff's injuries (see Boudreau-Grillo v Ramirez, 74 AD3d 1265 [2010]; Antonia v Srour, 69 AD3d 666 [2010]; Asaro v Montalvo, 26 AD3d 306 [2006]; Viscusi v Fenner, 10 AD3d 361 [2004]). Plaintiff's discrepancies in her sworn testimony only raise credibility issues, which may not be summarily resolved on this summary judgment motion ( Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]; see Silva v FC Beekman Assoc., LLC, 92 AD3d 754, 756 [2d Dept. 2012]). Furthermore, in order to survive defendants' motions for summary judgment, plaintiff is not required to state for certain that she knew exactly what she tripped over the very instant that she tripped over it (see Giantomasso v City of New York, 55 AD3d 502 [1st Dept. 2008]). Thus, to the extent that plaintiff's deposition testimony in this regard was vague or inconsistent with her section 50—h testimony, a credibility issue is raised to be decided by the jury, not the court on a motion for summary judgment.

Motion by Time Warner Cable

The branches of the motion by Time Warner Cable which are for summary judgment in its favor dismissing all claims and cross claims against it; and for summary judgment on its claims against Hylan for costs associated with defending this action, are granted.

It is well settled that "[w]here a defendant is the proponent of a motion for summary judgment, it has the burden of establishing that there are no material issues of fact in dispute and thus that it is entitled to judgment as a matter of law" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the defendant demonstrates its entitlement to summary judgment, the burden then shifts to the plaintiff to present facts, in admissible form, demonstrating that genuine, triable issues exist precluding the granting of summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendant, Time Warner Cable has submitted the depositions of plaintiff, Yevgeniya Kotlyerskaya and Patricia Molloy, plaintiff's notice of claim, verified bill of particulars, and photographs of the location of the incident, as well as a work order for the area where Hylan's work was actually performed. Combined, these documents show that neither Time Warner Cable nor its agent Hylan had performed work where plaintiff allegedly fell (see Flores v City of New York, 29 AD3d 356 [2006]; Robinson v City of New York, 18 AD3d 255 [2005]). Time Warner Cable thus demonstrated that, on the merits, it is entitled to judgment as a matter of law.

In opposition, plaintiff failed to demonstrate the existence of a triable issue of fact (see [*4]Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Puello v City of New York, 35 AD3d 294 [2006]; Flores v City of New York, 29 AD3d 356, 359 [2006]; Gaines v Shell-Mar Foods, Inc., 21 AD3d 986, 987 [2005]; Robinson v City of New York, 18 AD3d 255 [2005]).

Plaintiff's contention that the motion for summary judgment is premature because she has not fully completed discovery is without merit. The plaintiff failed to indicate the existence of any material fact which would show that Time Warner Cable in any way contributed to the happening of the plaintiff's accident and would thereby justify denial of this defendant's motion.

The branch of the motion by Time Warner Cable which is for contractual and common-law indemnity from Hylan, is granted. The subject indemnification clause provides that Hylan shall "defend, indemnify and hold harmless" [Time Warner Cable] from: claims, demands, damages, costs and expenses (including without limitation reasonable attorneys' fees, court and other proceeding costs and all other costs incurred to enforce the indemnity granted in this Section), losses, liabilities, causes of action at law or in equity (including, without limitation, injury to or death of any person(s) and damage to or destruction of property) threatened, brought or instituted, arising out of or in any way connected with the acts or omissions of Contractor [Hylan], its employees, agents, representatives, or consultants in the performance of the Work"

Such language is clear and unambiguous, and, pursuant thereto, Hylan is required to indemnify Time Warner Cable for the costs it incurs in defending itself against plaintiff's claims, including reasonable attorneys' fees (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]; Espinal v City of New York, 107 AD3d 411 [2013]).

Motion by Con Edison

The motion by Con Ed for summary judgment in its favor is granted, as unopposed and otherwise on the merits. The undisputed record indicates that Con Ed did not perform work where plaintiff allegedly fell (see Flores v City of New York, supra; Robinson v City of New York, supra).

Motion by Delta

The motion by Delta for summary judgment in its favor dismissing all claims and cross claims against it is denied.

A contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk (Brown v Welsbach Corp., 301 NY 202, 205 [1950]; Cohen v Schachter, 51 AD3d 847, 848 [2008]; Cino v City of New York, 49 AD3d 796, 797 [2008]; Gurriell v Town of Huntington, 129 AD2d 768, 770 [1987]).

Delta has submitted evidence that it did not perform any work on the portion of the roadway where the accident occurred, and did not create the allegedly defective condition which caused the plaintiff's injuries. Shahid Mahmood, the owner of Delta testified on behalf of Delta that the company completed work in the vicinity of 38-01 47th Avenue on the sidewalks of the Storage [*5]Deluxe building after being contacted by Storage Deluxe, in 2008 (two years prior to plaintiff's accident). Mahmood testified that Delta's work consisted of only a repair to the sidewalks on half of the block that did not include the corners.

In opposition, plaintiff raises a triable issue of fact as to whether Delta performed work within the area of the sidewalk where the accident occurred (see Elkman v Consolidated Edison of NY, 71 AD3d 817 [2010]). Plaintiff points to Delta's testimony that in September, 2008, it replaced tiles of the walkway pad of a handicap ramp on the northeast corner of the intersection of 38th Street and 47th Avenue. This is the precise corner containing the hole, located mere inches from the ramp pads, on which plaintiff tripped.

Motion by the Pratt Brothers, Inc.

The motion by the Pratt Brothers for summary judgment in its favor dismissing all claims and cross claims against it, is granted as unopposed, and otherwise on the merits as the undisputed record indicates that milling work performed by Pratt was confined to the street, as opposed to the sidewalk where plaintiff alleged tripped and fell (see Sand v City of New York, 83 AD3d 923 [2d Dept. 2011]).

Motion by the City

The motion by the City for summary judgment in its favor, dismissing all claims and cross claims against it, is denied.

Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies ( see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Miller v Village of E. Hampton, 98 AD3d 1007, 1008 [2012]; De La Reguera v City of Mount Vernon, 74 AD3d 1127, 1127 [2010]; Schleif v City of New York, 60 AD3d 926, 927—928 [2009]). The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality ( see Amabile v City of Buffalo, 93 NY2d at 474; Poirier v City of Schenectady, 85 NY2d 310, 314—315).

The plaintiff alleged in her notice of claim, complaint, and bill of particulars that the City affirmatively created the dangerous condition which caused the accident through various specified acts of negligence (see Braver v Village of Cedarhurst, 94 AD3d 933 [2012]). Under these circumstances, the City was required to eliminate all triable issues of fact as to whether it affirmatively created the alleged dangerous to sustain its prima facie burden (see id.; cf. Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003 [2011]; Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045 [2010]). Since the City failed to do so, it's motion for summary judgment is denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Hill v Fence Man, Inc., 78 AD3d 1002, 1004-1005 [2010]).

Motion by Storage Deluxe [*6]

The motion by Storage Deluxe for summary judgment in its favor is denied. Storage Deluxe merely asserts that plaintiff is speculating as to the cause of her accident, and cannot support her claim that she tripped over a depression/pothole in the sidewalk. The court has previously addressed the claim by several defendants that plaintiff cannot identify the cause of her fall. Thus, the argument fails with regard to Storage Deluxe, as well.

Storage Deluxe also failed to address the issue of its absence of notice of the alleged defect (Goldman v Waldbaum, Inc., 248 AD2d 436, 437 [1998]; see Martinez v Khaimov, 74 AD3d at 1033 [2010]).

Cross Motion by Hylan

The cross motion by Hylan to dismiss the third-party complaint, is denied. Hylan argues that the indemnification clause in the contract does not broadly provide indemnity to Time Warner, but rather, the contractual indemnity provisions are only triggered with a showing that the plaintiff's injuries were caused by acts or omissions of Hylan, and that a finding of fault is required in order for Hylan to indemnify Time Warner. This court does not agree.

Pursuant to the language of the contract between Time Warner and Hylan, Hylan is required to indemnify Time Warner for the costs it incurred in defending itself against plaintiff's claims, including reasonable attorneys' fees (see Espinalv the City of New York, supra; Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]).

Conclusion

The branches of the motion by Time Warner Cable for summary judgment in its favor dismissing all claims and cross claims against it, and for summary judgment on its claims against Hylan for costs associated with defending this action, are granted.

The motion by Con Ed for summary judgment in its favor is granted.

The motion by Delta for summary judgment in its favor dismissing all claims and cross claims against it is denied.

The motion by the Pratt Brothers for summary judgment in its favor dismissing all claims and cross claims against it, is granted.

The motion by the City for summary judgment in its favor, dismissing all claims and cross claims against it, is denied.

The motion by Storage Deluxe for summary judgment in its favor is denied.

The cross motion by Hylan to dismiss the third-party complaint, is denied. [*7]

Dated: February 6, 2014

J.S.C.