Montalvo v Kissena Beverage, Inc.

[*1] Montalvo v Kissena Beverage, Inc. 2016 NY Slip Op 51333(U) Decided on September 16, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2016
Supreme Court, Queens County

John Montalvo, Plaintiff,

against

Kissena Beverage, Inc., MUTUAL HOLDINGS LLC, and JPMORGAN CHASE BANK, N.A., Defendants.



7542/2014
Robert J. McDonald, J.

The following papers numbered 1 to 21 read on this motion by defendant KISSENA BEVERAGE, INC. for an order pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing plaintiff's complaint and all cross-claims made against it; and on this cross-motion by defendant MUTUAL HOLDINGS LLC for an order pursuant to CPLR 3212, granting summary judgment in favor of said defendant on its cross-claims for contractual indemnification and failure to procure insurance against defendant Kissena Beverage, Inc.:

Papers Numbered

Notice of Motion-Affirmation-Exhibits 1-4

Mutual Holdings LLC's Affirmation in Opposition-Exhibits 5-7

Plaintiff's Affirmation in Opposition 8-9

Notice of Cross-Motion-Affirmation-Exhibits 10-13

Kissena Beverage, Inc.'s Reply Affirmations (2) 14-17

Kissena Beverage, Inc's Affirmation in Opposition 18-19

Mutual Holding LLC's Reply Affirmation 20-21

This is an action to recover damages for personal injuries sustained by plaintiff on June 6, 2011 when the front left caster wheel of his wheelchair became stuck on a piece of pipe sticking out of the sidewalk at or near 155-17 Kissena Boulevard, Queens County, New York, causing him to fall. Defendant Mutual Holdings LLC (Mutual Holdings) is the landlord of the premises at 156-17 73rd Avenue, Flushing, New York. Defendant Kissena Beverage, Inc. (Kissena) and defendant JPMorgan Chase Bank, N.A. (Chase) were the tenants at all relevant times.

Plaintiff commenced this action on May 13, 2014 by filing a summons and verified complaint. Kissena joined issue by service of a verified answer with cross-claims dated October 3, 2014. Mutual Holdings joined issue by service of a verified answer with cross-claims dated July 23, 2014. Chase joined issue by service of a verified answer with cross-claims dated June [*2]10, 2014.

Initially, this Court notes that both the motion and cross-motion for summary judgment are untimely. However, this Court finds that the parties have demonstrated good cause for the delay in making the motions as the Note of Issue was filed while substantial discovery was outstanding including the independent medical examination of plaintiff and defendants' examinations before trial. Accordingly, this Court will decide the late summary judgment motions herein (see Brill v City of New York, 2 NY3d 648 [2004]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000]; Quinlan v Kaufman, 258 AD2d 453 [2d Dept. 1999]).

In support of the motion, Kissena submits an affirmation from counsel, Claude N. Grammatico, Esq.; a copy of the pleadings; a copy of the bill of particulars; a copy of the note of issue along with a letter from plaintiff's counsel dated December 17, 2015; a copy of the lease between Kissena and Mutual Holdings; a copy of the transcript of the examination before trial of plaintiff; color copies of photographs of the subject area; and a copy of the transcript of the examination before trial of defendant Kissena by Young Lee. Counsel contends that Kissena is entitled to summary judgment on the grounds that it had no obligation to maintain the subject location, did not cause or create the subject condition, and did not make special use of the subject area.

Plaintiff and Mutual Holdings both oppose the motion for summary judgment setting forth the same arguments. Plaintiff submits an affirmation from counsel, Adam W. Scheinbach, Esq., contending that triable issues of fact exist including whether Kissena was responsible for maintaining the subject area. Mutual Holdings submits an affirmation from counsel, Patricia H. Seegers, Esq., contending same, and also cross-moves for summary judgment on its cross-claim against Kissena arguing that Mutual Holdings is entitled to contractual indemnification against Kissena for plaintiff's claim and any cross-claim of defendant Chase. Mutual Holdings also submits the affidavit of Saeed Amirian, a member of Mutual Holdings.

On August 11, 2015 plaintiff appeared for a deposition. He testified that the incident occurred on June 6, 2011, at approximately 4:45 p.m., where the parking lot meets the sidewalk next to the Chase bank. He had parked his truck in a disabled parking spot close to the chain-link fence located on the sidewalk of 73rd Avenue. There was an opening in the fence to allow vehicles to pass into and out of the parking lot and a break in the fence to allow pedestrians in and out of the parking lot. He went into Chase without any problems. When he exited Chase, the left caster wheel of his wheelchair became stuck on a piece of pipe sticking out of the sidewalk. When his wheelchair stopped moving, he fell out and onto the sidewalk. He never saw the wheel strike the pipe. After he fell, he saw that his wheels' caster was broken, but still attached. The pipe was sticking up approximately one-inch out of the sidewalk.

Young Lee for defendant Kissena appeared for a deposition on November 3, 2015. He testified that he ran Kissena with his wife from 2008 to 2013. He personally cleaned the sidewalk adjacent to Kissena everyday with a broom, pickup, and water. He never performed any work on the fence adjacent to the Chase building. He never saw anything that would cause a person trip in the subject area. He walked through the fence, never tripped, and never saw anyone else trip. He never spoke with anyone about the subject pipe, never reported that someone tripped on it, and never complained to the landlord about it. He never spoke with anyone at Chase concerning the fence, sidewalk, or parking lot. Kissena was never issued any complaints or orders concerning [*3]the sidewalk from the City of New York. Mutual Holdings performed work on the subject area prior to plaintiff's fall. Mutual Holdings remodeled the premises prior to Chase's tenancy. Mutual Holdings also made the fence longer because Chase complained about it, and refilled the sidewalk on 73rd Avenue approximately six to seven years ago, prior to lengthening the fence.

Saeed Amirian for Mutual Holdings submits an affidavit, dated June 15, 2016, in opposition to the motion and in support of the cross-motion. He affirms that Mutual Holdings purchased the property known as 156-17 73rd Avenue, Flushing, NY in 2009 and assumed the lease with Kissena. Kissena was the tenant on the date of the subject incident. Pursuant to the lease, Kissena was to obtain insurance protecting Mutual Holdings against any injury to a third-party at the premises. The insurance policy was to include coverage for sidewalks and parking areas. Kissena was responsible for repair and maintenance of the property surrounding the demised premises including the sidewalks. Prior to the date of the incident, Mutual Holdings did not perform any repairs in the parking lot of the premises, did not receive any complaints concerning the parking lot of the premises, and was not aware of any accidents that occurred in the parking lot of the premises.

The lease agreement between Mutual Holdings and Kissena provides, in pertinent part, at Paragraph 45 of the Rider to the Lease that: "Landlord shall not be required to furnish any services or facilities or to make any repairs or alterations in or to the demised premises. Tenant hereby assumes the full and sole responsibility for the condition, operation, repair, maintenance and management of the demised premises."

Paragraph 46 of the Rider to the Lease provides that: "The tenant will be solely responsible for the proper repair and maintenance. . . of the demised premises. . . and the property surrounding the demised premises including sidewalks."

Paragraph 60 of the Rider to the Lease provides that: "The sidewalks and entrances of the demised premises shall not be obstructed by the Tenant and the Tenant shall keep same free from ice, snow, debris, refuse and in addition, make all repairs and replacements thereto which may become necessary as a consequence of the fault or negligence on the part of the Tenant."

Paragraph 40 of the Rider to the Lease provides that: "The Tenant agrees that it will at its own cost and expense obtain and maintain liability insurance protecting Tenant as well as the Landlord against injury or damage to third persons. . . The Tenant shall furnish the Landlord with a policy of insurance protecting the Landlord against such liability, which policy shall include coverage for sidewalks, parking areas, entrances and signs."

The law concerning liability for injury caused by a dangerous condition on a sidewalk is governed by New York City Administrative Code § 7-210 which provides that:

"It shall be the duty of the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition . . . [and] the owner of real property abutting any sidewalk . . . 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."

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" (Abramson v Eden Farm, Inc., 70 AD3d 514 [1st Dept. 2010], quoting Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]), the lessee will be liable only if it "created the defective condition, negligently [*4]made repairs, or used the sidewalk for a special purpose" ( Berkowitz v Dayton Constr., Inc., 2 AD3d 764 [2d Dept. 2003]; see Biondi v County of Nassau, 49 AD3d 580 [2d Dept. 2008]; Zito v City of New York, 293 AD2d 469 [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 v Thompson, 73 NY2d 840 [1988]). Provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as the plaintiff herein (see Collado v Cruz, 81 AD3d 542 [1st Dept. 2011]; Tucciarone v Windsor Owners Corp., 306 AD2d 162 [1st Dept. 2003]).

A movant for summary judgment must make a prima facie showing of entitlement by demonstrating that there are no material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the movant satisfies this burden, then the burden shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact (see Zuckerman v City of NY, 49 NY2d 557 [1980]). All reasonable inferences will be drawn in favor of the non-moving party (see Dauman Displays v Masturzo, 168 AD2d 204 (1st Dept. 1990). "Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied" (Daliendo v Johnson, 147 AD2d 312 [2d Dept. 1989]).

Negligence arises from a duty, a breach thereof, and an injury proximately caused thereby (see Kenney v City of New York, 30 AD3d 261 [1st Dept. 2006]). Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff, and in the absence of a duty, there is no breach and without a breach there is no liability (see Chahales v Westchester Joint Water Works, 47 AD3d 610 [2d Dept. 2008]).

As applied here, Mutual Holdings, as the owner of the subject premises, was responsible for maintaining the sidewalk in a reasonably safe condition. The Lease between Mutual Holdings and Kissena does not create a duty which runs from Kissena to plaintiff (see Collado v Cruz, 81 AD3d 542 [1st Dept. 2011]; Otero v City of New York, 213 AD2d 339 [1st Dept. 1995]). Thus, assuming the incident occurred on Kissena's demised premises, Kissena could be liable to plaintiff only if it actually created the condition that caused plaintiff's injuries, made repairs to the sidewalk or parking lot prior to the incident, or caused the defect to occur by some special use of the sidewalk. Based on Mr. Lee's testimony that he never performed any work on the subject area, and as no evidence in opposition has been put forth demonstrating that Kissena created the condition, made repairs to the subject area, or caused the condition by some special use, Kissena did not owe a duty to plaintiff. Thus, Kissena's motion for summary judgment dismissing plaintiff's complaint as against it must be granted.

However, Kissena may be held liable to Mutual Holdings for damages resulting from a violation of Paragraph 46 of the Rider to the Lease, which imposed on Kissena the obligation to repair and maintain the sidewalks surrounding its demised premises. Although Kissena contends that the "demised premises" only consist of Exhibit A annexed to the Lease, which is a drawing of the Kissena Beverage store, this Court finds that a reasonable jury could conclude that the "demised premises" do include the sidewalk and parking lot where the incident occurred. Thus, there are triable issues of fact including, inter alia, whether the area where plaintiff fell is part of Kissena's demised premises. Accordingly, that branch of Kissena's motion seeking to dismiss any and all cross-claims asserted against it is denied.

Regarding the cross-motion for contractual indemnification and for failure to procure insurance, the Lease provides that Kissena would, at its own expense, obtain and maintain liability insurance protecting the tenant and the landlord against injury or damage to third persons. Moreover, the Lease provides that the insurance policy shall include coverage for sidewalks and parking areas. In opposition, Kissena has failed to provide any evidence that it procured the insurance required by the Lease. However, as there is an issue of fact as to whether Kissena was liable for repairing and maintaining the subject area, Mutual Holdings is entitled to conditional contractual indemnification as against Kissena.

Accordingly, based upon the foregoing, it is hereby,

ORDERED, that the branch of the motion by defendant KISSENA BEVERAGE, INC. for an order pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing plaintiff's complaint is granted; and it is further

ORDERED, that the branch of the motion by defendant KISSENA BEVERAGE, INC. for an order pursuant to CPLR 3212, granting summary judgment in favor of said defendant on all cross-claims is denied; and it is further

ORDERED, that the cross-motion by MUTUAL HOLDINGS LLC for an order pursuant to CPLR 3212, granting summary judgment in favor of said defendant on its cross-claims for conditional contractual indemnification and failure to procure insurance as against Kissena Beverage, Inc. is granted.

Dated: September 16, 2016

Long Island City, NY

ROBERT J. MCDONALD

J.S.C.