Kosinska v Hoodz Kitchen Exhaust Cleaning

[*1] Kosinska v Hoodz Kitchen Exhaust Cleaning 2019 NY Slip Op 51201(U) Decided on February 15, 2019 Supreme Court, New York County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2019
Supreme Court, New York County

Grazyna Kosinska, Plaintiff,

against

Hoodz Kitchen Exhaust Cleaning a/k/a Hoodz of Hell's Kitchen, Tonic Bar and Restaurant a/k/a Tonic Bar, a/k/a Tonic, a/k/a Tonic Times Square, 727 7th Ave Associates LLC, and John Doe, Defendants.



150312/2013



For Plaintiff

Daniel B. Faizakoff Esq.

Ripal Gajjar Esq.

1 Penn Plaza, New York, NY 10119

For Defendant Hoodz Kitchen Exhaust Cleaning

Kenneth Mastellone Esq.

Buratti, Rothenberg & Burns

1133 Westchester Avenue, White Plains, NY 10604
Lucy Billings, J.

I. UNDISPUTED FACTS

Plaintiff suffered personal injuries on the morning of September 10, 2012, when she tripped on industrial hoses running across the sidewalk abutting defendant Tonic Bar and Restaurant at 727 7th Avenue, New York County. Tonic Bar and Restaurant had hired defendant Hoodz Kitchen Exhaust Cleaning to clean the restaurant's kitchen exhaust fans on the morning of September 10, 2012. Hoodz Kitchen Exhaust Cleaning's employees parked a truck equipped with water pumps outside the premises and ran hoses from the truck across the sidewalk to the interior of the premises. Plaintiff, who was walking with her husband Waldenar Kosinski, attempted to traverse the sidewalk by placing her right foot between the hoses, but, as she attempted to step ahead with her left foot, she felt one or more hoses pulling on her right foot, lost her balance, and fell to the ground.

II. PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff now moves for summary judgment on her claim that defendant Hoodz Kitchen Exhaust Cleaning was negligent in performing its work unsafely and creating an unsafe condition on the sidewalk. C.P.L.R. § 3212(b) and (e).

A. Applicable Standards

To obtain summary judgment, plaintiff must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039, 1043 (2016); [*2]Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 NY3d 728, 734 (2014); Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012). If plaintiff satisfies this standard, the burden shifts to Hoodz Kitchen Exhaust Cleaning to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 NY3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 NY3d at 49; Morales v. D & A Food Serv., 10 NY3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004). In evaluating the evidence for purposes of plaintiff's motion, the court construes the evidence in the light most favorable to Hoodz Kitchen Exhaust Cleaning. De Lourdes Torres v. Jones, 26 NY3d at 763; Vega v. Restani Constr. Corp., 18 NY3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004).

To establish Hoodz Kitchen Exhaust Cleaning's liability for plaintiff's injuries, plaintiff must demonstrate that Hoodz Kitchen Exhaust Cleaning owed her a duty of reasonable care, breached that duty, and through its breach proximately caused her injury. E.g., Solomon by Solomon v. City of New York, 66 NY2d 1026, 1027 (1985); Elmaliach v. Bank of China Ltd., 110 AD3d 192, 199 (1st Dep't 2013). Although Hoodz Kitchen Exhaust Cleaning was carrying out a contractual duty in performing work for Tonic Bar and Restaurant, the contractor was required to exercise reasonable care in performing those duties so as not to endanger anyone and may be liable for plaintiff's injuries if the contractor "launche[d] a force or instrument of harm." Espinal v. Melville Snow Contrs., 98 NY2d 136, 140 (2002); Farrugia v. 1440 Broadway Assoc., 163 AD3d 452, 455 (1st Dep't 2018); Brown v. Garda CL Atl., Inc., 150 AD3d 542, 543 (1st Dep't 2017). Whether any dangerous condition that Hoodz Kitchen Exhaust Cleaning created was open and obvious is irrelevant to its duty to keep its work area reasonably safe for passersby. Farrugia v. 1440 Broadway Assoc., 163 AD3d at 454; Derix v. Port Auth. of NY & N.J., 162 AD3d 522, 522 (1st Dep't 2018); Polini v. Schindler El. Corp., 146 AD3d 536, 536 (1st Dep't 2017); Johnson-Glover v. Fu Jun Hao Inc., 138 AD3d 499, 500 (1st Dep't 2016).

B. Plaintiff Meets Her Burden.

Plaintiff presents Hoodz Kitchen Exhaust Cleaning's work order, authenticated by its witness' deposition testimony, showing that its employees performed kitchen exhaust cleaning services at defendant Tonic Bar and Restaurant on the morning of September 10, 2012, from 5:00 to 8:30 a.m. Aff. of Daniel B. Faizakoff Ex. E, at 44-45, 53-54, Ex. F. When performing these services, Hoodz Kitchen Exhaust Cleaning owed a duty not to create an unsafe condition. Espinal v. Melville Snow Contrs., 98 NY2d at 140; Farrugia v. 1440 Broadway Assoc., 163 AD3d at 455; Brown v. Garda CL Atl., Inc., 150 AD3d at 542-43; Cornell v. 360 W. 51st St. Realty, LLC, 51 AD3d 469, 470 (1st Dep't 2008).

Plaintiff testified at her deposition that she observed a truck parked outside Tonic Bar and Restaurant and hoses running across the sidewalk in front of the restaurant at approximately 7:45 a.m. September 10, 2012. Faizakoff Aff. Ex. C, at 11, 51, 60-61. Plaintiff's husband also testified at his deposition that he observed these hoses running across the sidewalk and that they ran from the truck into the restaurant. Faizakoff Aff. Ex. D, at 27, 30, 35-36. The deposition testimony by Hoodz Kitchen Exhaust Cleaning's owner in September 2012, Russell Efron, corroborates both plaintiff's and her husband's account. Efron admitted that Hoodz Kitchen Exhaust Cleaning employees used water hoses connected to a pump in their employer's truck to perform their cleaning and always ran the hoses from the truck across the sidewalk into the premises to be cleaned. Faizakoff Aff. Ex. E, at 17, 33. This testimony establishes that Hoodz Kitchen Exhaust Cleaning launched an instrument of harm by running hoses across the sidewalk into Tonic Bar and Restaurant, thus performing work unsafely and creating an unsafe condition on the sidewalk.

As set forth above, plaintiff testified that she attempted to traverse the sidewalk by stepping between the hoses with her right foot, but, as she attempted take her next step with her left foot, a pulling sensation on her right foot caused her to fall. Faizakoff Aff. Ex. C, at 60-61, 67-68, 98. Plaintiff further testified that, after she fell, her right foot remained tangled in the [*3]hoses. Id. at 99. Plaintiff thus establishes that Hoodz Kitchen Exhaust Cleaning's failure to perform its kitchen cleaning service for Tonic Bar and Restaurant in a reasonably safe manner and to keep the sidewalk in a reasonably safe condition caused plaintiff to fall and suffer injury. Derix v. Port Auth. of NY & N.J., 162 AD3d at 522. See Farrugia v. 1440 Broadway Assoc., 163 AD3d at 455; Brown v. Garda CL Atl., Inc., 150 AD3d at 542-43; Sweeney v. Riverbay Corp., 76 AD3d 847, 847 (1st Dep't 2010); Grant v. Caprice Mgt. Corp., 43 AD3d 708, 709 (1st Dep't 2007).

C. Hoodz Kitchen Exhaust Cleaning's Rebuttal

Hoodz Kitchen Exhaust Cleaning does not dispute its control over the hoses running across the sidewalk where plaintiff fell or her account of her fall. Instead Hoodz Kitchen Exhaust Cleaning maintains that plaintiff failed to present any evidence that the hoses moved, causing her to fall. Plaintiff testified, however, that, as she planted her right foot between the hoses and attempted to step with her left foot, she felt the hoses pulling on her right ankle, which caused her to fall. Faizakoff Aff. Ex. C, at 67-68, 98. Hoodz Kitchen Exhaust Cleaning presents no evidence contradicting plaintiff's testimony. Moreover, even if Hoodz Kitchen Exhaust Cleaning's employees did not move the hoses, or even if the hoses did not move at all, without any warning, marking, or barrier, they still posed a tripping hazard across the sidewalk. Sweeney v. Riverbay Corp., 76 AD3d at 847.

Hoodz Kitchen Exhaust Cleaning also maintains that it is not liable for any dangerous condition because the hoses were readily apparent, so that any danger they created was open and obvious. The fact that a danger may be open and obvious does not negate Hoodz Kitchen Exhaust Cleaning's duty to perform its work reasonably safely and is relevant only to plaintiff's comparative fault. Farrugia v. 1440 Broadway Assoc., 163 AD3d at 455; Derix v. Port Auth. of NY & N.J., 162 AD3d at 522; Socorro v. New York Presbyt. Weill Cornell Med. Ctr., 160 AD3d 544, 545 (1st Dep't 2018); Johnson-Glover v. Fu Jun Hao Inc., 138 AD3d at 500. Plaintiff need not establish that she was free from comparative fault to obtain summary judgment on defendant Hoodz Kitchen Exhaust Cleaning's liability. Rodriguez v. City of New York, 31 NY3d 312, 325 (2018); Derix v. Port Auth. of NY & N.J., 162 AD3d at 522.

III. CONCLUSION

Consequently, for all the reasons explained above, the court grants plaintiff's motion for summary judgment on her claim that defendant Hoodz Kitchen Exhaust Cleaning was negligent in performing its work unsafely, creating an unsafe condition on the sidewalk where she was walking, and causing her injury. C.P.L.R. § 3212(b) and (e). This decision constitutes the court's order and judgment on defendant Hoodz Kitchen Exhaust Cleaning's liability to plaintiff.

DATED: February 15, 2019

LUCY BILLINGS, J.S.C.