Ahmad-Pai v South St. Seaport L.P.

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Ahmad-Pai v South St. Seaport L.P. 2018 NY Slip Op 33054(U) November 29, 2018 Supreme Court, New York County Docket Number: 158135/2013 Judge: Kelly A. O'Neill Levy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 12/04/2018 09:28 AM NYSCEF DOC. NO. 157 INDEX NO. 158135/2013 RECEIVED NYSCEF: 12/04/2018 KELLY O'NEILL LEVY JSC SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 19 -----------------------------------------------------------------------------------x ALI AHMAD-P Al, 158135/2013 Plaintiff, 09/12/2018 -vSOUTH STREET SEAPORT LIMITED PARTNERSHIP, THE HOW ARD HUGHES CORPORATION, Defendants. OTION SEQ. NO. 004,005 ECISION AND ORDER -----------------------------------------------------------------------------------x SOUTH STREET SEAPORT LIMITED PARTNERSHIP, THE HOWARD HUGHES CORPORATION, Third-Party Plaintiffs, -vGCA SERVICES GROUP OF NORTH CAROLINA, INC., Third-Party Defendant. -----------------------------------------------------------------------------------x The following e-filed documents, listed by NYSCEF document number ( otion 004) 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 132, 136, 137, 138, 139, 140, 141, 1 2, 143, 144, 145, 146, 147, 148, 149, 151, 152, 153 Y JUDGMENT were read on this motion to/for The following e-filed documents, listed by NYSCEF document number ( otion 005) 104, 105, 106, 107, 108, 109,110,111, 112, 113, 114, 115, 116, 117, 118, 119, 120,121, 122,123, 14,125, 126,127, 128, 129, 130, 131, 133, 134, 135, 150, 154, 155 were read on this motion to/for HON. KELLY O'NEILL LEVY: Motion sequence numbers 004 and 005 are hereby cons lidated for disposition. This is a personal injury action arising from an alleged iking accident. Third-party defendant GCA Services Group of North C olina, Inc. (hereinafter, GCA) moves for an order (mot. seq. 004), pursuant to CPLR § 3212, ranting summary judgment in its 158135/2013 AHMAD-PAI, ALI v. SOUTH STREET SEAPORT LIMITED Motion No. 004, 005 2 of 8 Page 1of7 [*FILED: 2] NEW YORK COUNTY CLERK 12/04/2018 09:28 AM NYSCEF DOC. NO. 157 INDEX NO. 158135/2013 RECEIVED NYSCEF: 12/04/2018 favor and dismissing the third-party complaint. Plaintiff Ali ad-Pai partially opposes. Defendants South Street Seaport Limited Partnership (hereina er, SSSLP) and The Howard Hughes Corporation (hereinafter, HHC) oppose and move for order (mot. seq. 005), pursuant to CPLR § 3212, (1) granting summary judgment in their favo and dismissing the complaint, (2) granting summary judgment dismissing GCA's counterclaims, (3) granting conditional summar)r judgment on their contractual indemnity claim, and (4) grantin summary judgment on their contractual indemnity claim for attorney's fees and costs. Plai tiff opposes. BACKGROUND On May 9, 2013, at approximately 4:00 p.m., plaintiff as riding his bicycle on the designated bike path adjacent to the South Street Seaport in M attan (hereinafter, the bike path). Plaintiff alleges the front tire of his bicycle got caught i a lip, or a mis-leveled edge, on the bike path with a height differential of 2-3 inches, causing hi to fall from his bike onto the ground [Plaintiff tr. (ex. C to the Toquica aff.) at 88, 92-93, 10 -109]. Plaintiff had biked on the bike path almost daily for several years prior to the accident (i at 59). Plaintiff alleges that he was biking at a nominal speed at the time of the accident (id. at 89). New York City owns the South Street Seaport [Deposif on of William Flemm, Senior Operations Manager at HHC (ex. H to the Toquica aff.) at 12-1 , 53]. In the 1980s, New York City leased a portion of the South Street Seaport to SSSLP too erate a retail shopping mall on Pier 17 [Lease (ex. J to the Caruana aff.)]. The bike path was n t part of SSSLP's leasehold (Flemm tr. at 53-54). In 2009, the New York City Economic D velopment Corporation designed and built the bike path as part of the East River Waterfront Espl ade and Piers Project. New York City owns the bike path and the New York City Parks De artment maintains and controls the bike path.(id.). 15813512013 AHMAD-PAI, ALI v. SOUTH STREET SEAPORT LIMITED Motion No. 004, 005 3 of 8 Page 2 of7 [*FILED: 3] NEW YORK COUNTY CLERK 12/04/2018 09:28 AM NYSCEF DOC. NO. 157 INDEX NO. 158135/2013 RECEIVED NYSCEF: 12/04/2018 HHC is a real estate development company that owns SSLP. SSSLP entered into a Master Services Agreement with GCA for the performance of anitorial and maintenance services for the leased property [Master Services Agreement ( x. M to the Toquica aff.)]. The Master Services Agreement does not include coverage for the ike path and GCA was not responsible for maintaining or inspecting the bike path [id. at 1 , 14; Deposition of Michael Scharf, Regional Manager for GCA (ex. I to the Toquica aff.) t 18, 20, 27]. DISCUSSION On a summary judgment motion, the moving party has he burden of offering sufficient evidence to make a prima facie showing that there is no triable material issue of fact. Jacobsen v. NY City Health & Hasps. Corp., 22 N.Y.3d 824, 833 (2014 . Once the movant makes that showing, the burden shifts to the non-moving party to establish through evidentiary proof in admissible form, that material factual issues exist. Zuckerman . City of New York, 49 N.Y.2d 557, 562 (1980). In determining a motion for summary judgm nt, the court must view the evidence in the light most favorable to the non-moving party. enderson v. City ofNew York, 178 A.D.2d 129, 130 (1st Dep't 1997). The court's function o a motion for summary judgment is issue-finding, rather than making credibility determinations r factual findings. Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012). GCA asserts that the bike path, was not owned, leased, perated, maintained, or supervised by defendants, and thus the bike path was not an are that GCA was responsible to maintain. Plaintiff contends that defendants' special use of the ike path is in dispute and that GCA' s duty to maintain the bike path runs with the area of spe ial use. Defendants maintain that they did not own, control, or make special use of the bike path d that defendants did not derive an exclusive benefit from the bike path. Defendants assert that he recreational use statute, 158135/2013 AHMAD-PAI, ALI v. SOUTH STREET SEAPORT LIMITED Motion No. 004, 005 4 of 8 Page 3 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 12/04/2018 09:28 AM NYSCEF DOC. NO. 157 INDEX NO. 158135/2013 RECEIVED NYSCEF: 12/04/2018 General Obligations Law § 9-103, bars this action. Plaintiff ar ues that issues of fact exist over whether defendants' use of the bike path constitutes special us and that the recreational use statute is not applicable to this action. It is undisputed that the bike path was not owned or lea ed by defendants. The bike path was not included in SSSLP's leasehold or in the Master Servic s Agreement. The special use doctrine imposes liability on a possesso of land for injuries on a public way where a municipality has been given authority to interfere "th the public way solely for private use and "in no way connected with the public use." Ka ifman v. Silver, 90 N.Y.2d 204, 207 ( 1997). The structure must be for the landowner.' s sole be efit. Id. Imposition of a duty to repair or maintain use of a structure or installation located on adjacent property under the special use doctrine is premised upon existence of an abutting l d occupier's access to and ability to exercise control over the structure or installation. Id. t 207-208. Special use cases typically involve the installation of some object in the sidewalk or a variance in the construction of the sidewalk intended specifically for the benefit of no one o her than those on or using the owner's land. See, e.g., Granville v. City of New York, 211 A. . 2d 195, 197 (1st Dep't 1995) (involving a concrete step mounted on the sidewalk beneath th elevated doorway of a restaurant); Santorelli v. City ofNew York, 77 A.D.2d 825, 826 (1st Dep't 1980) (involving a heating oil filler cap in the sidewalk); Nickelsburg v. City ofNe York, 263 A.D. 625, 626 (1st Dep't 1942) (involving iron bars that were embedded in the sid walk to facilitate removal of refuse). Here, in contrast, there is no such object in the bike pa or a variance in the construction of the bike path intended for the benefit of defendants. There is no evidence that the bike path was created for defendants' benefit as to impose a duty on defe dants to maintain and repair the 15813512013 AHMAD-PAI, ALI Motion No. 004, 005 v. SOUTH STREET SEAPORT LIMITED 5 of 8 Page4 of 7 [*FILED: 5] NEW YORK COUNTY CLERK 12/04/2018 09:28 AM NYSCEF DOC. NO. 157 INDEX NO. 158135/2013 RECEIVED NYSCEF: 12/04/2018 bike path. Even if pedestrians would use the bike path to acce s and patronize the stores on Pier 17, this would not establish a special use. The bike path was t constructed for defendants' exclusive use or benefit, or at their request. It was constructed for the recreational use of the public. There is no evidence that defendants were able to exer ise any control over the bike path. Moreover, liability in this case based on special use wou d place on every homeowner and commercial establishment a duty to maintain an abutting bicyc e path whenever it could be shown that they reap a special benefit from the use of the bicy le path. See Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 299 (1st Dep't 1988) (the court efused to invoke the special use doctrine where the plaintiff claimed that the defendant gas stati n made special use and obtained commercial benefit of the public street because its customers u ed the street to wait in line for an available gas pump). Thus, the special use doctrine does not a ply to this case. The recreational use statute, General Obligations Law § 9-103, grants immunity from liability for ordinary negligence to owners of property who pe it members of the public to come on their property to engage in one of several enumerated ecreational activities. Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 42 (1989). While plai tiff was engaged in bicycle riding, which is an enumerated recreational activity, the recreat onal use statute does not apply here because defendants are not the owners or lessees of the bi e path. Therefore, the recreational use statute likewise does not apply to this case. Therefore, in the absence of any material, triable issues f fact, and since the bike path was not owned, leased, operated, maintained, or supervised by efendants, and it was not an area that GCA was responsible to maintain, the court grants GCA an defendants' respective motions for summary judgment on liability, dismissing the action and th rd-party action. The branches of defendants' motion regarding contractual indemnity, attorneys' ees, and costs are moot. 15813512013 AHMAD-PAI, ALI v. SOUTH STREET SEAPORT LIMITED Motion No. 004, 005 6 of 8 Page 5 of7 [*FILED: 6] NEW YORK COUNTY CLERK 12/04/2018 09:28 AM NYSCEF DOC. NO. 157 INDEX NO. 158135/2013 RECEIVED NYSCEF: 12/04/2018 CONCLUSION AND ORD For the foregoing reasons, it is hereby, ORDERED, that third-party defendant GCA Services roup of North Carolina, Inc.'s motion for an order (mot. seq. 004), pursuant to CPLR § 3212, granting summary judgment in its favor and dismissing the third-party complaint is granted; and i is further ORDERED, that the branch of defendants South Stree Seaport Limited Partnership and The Howard Hughes Corporation's motion for an order (mot. s q. 005), pursuant to CPLR § 3212, granting summary judgment in their favor and dismissin the complaint is granted; and it is further ORDERED, that the branch of defendants South Street Seaport Limited Partnership and The Howard Hughes Corporation's motion for an order (mot. s q. 005), pursuant to CPLR § 3212, granting summary judgment dismissing GCA's counterc aims is granted; and it is further ORDERED, that the branch of defendants South Street Seaport Limited Partnership and The Howard Hughes Corporation's motion for an order (mot. s q. 005), pursuant to CPLR § 3212, granting conditional summary judgment on their contract al indemnity claim is moot; and it is further ORDERED, that the branch of defendants South Street Seaport Limited Partnership and The Howard Hughes Corporation's motion for an order (mot. s q. 005), pursuant to CPLR § 3212, granting summary judgment on their contractual indemni claim for attorney's fees and costs is moot; and it is further 15813512013 AHMAD-PAI, ALI Motion No. 004, 005 v. SOUTH STREET SEAPORT LIMITED 7 of 8 Page 6 of 7 [*FILED: 7] NEW YORK COUNTY CLERK 12/04/2018 09:28 AM NYSCEF DOC. NO. 157 INDEX NO. 158135/2013 RECEIVED NYSCEF: 12/04/2018 ORDERED, that the complaint and third-party compl int are dismissed. The Clerk is directed to enter judgment accordingly. This constitutes the decision and order of the court. CHECK ONE: CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ 158135/2013 AHMAD-PAI, ALI v. SOUTH STREET SEAPORT LIMITED Motion No. 004, 005 8 of 8 NON- INAL DISPOSITION GRA TED IN PART SUB ITORDER FIDU IARY APPOINTMENT D OTHER D REFERENCE Page 7 of7