Bullock v 1585 Realty Co. U.C.

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Bullock v 1585 Realty Co. U.C. 2020 NY Slip Op 32104(U) June 30, 2020 Supreme Court, New York County Docket Number: 150073/2017 Judge: David Benjamin Cohen 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. INDEX COUNTY NO. 150073/2017 [*FILED: 1] NEW YORK CLERK NYSCEF DOC. RECEIVED NO. 43 NYSCEF: 07/01/2020 SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PRESENT: PART HON. DAVID BENJAMIN COHEN IA8 MOTtoN 51EFM JustJc• x JACQUELINE SUL.LOCK. INDEX NO. MOTtOH DAU Plaintiff, MOTION SEQ. HO. 1585 REALTY COMPANY U.C., 1582 FIRST AVENUE WINE & LIQUOR INC. 150073/2017 12A:i3120UI 001 DECISION+ ORDER ON MOTION Defendant. The following e·fi*I doctlmeots, listed by NYSCEF document number (Motion 001) 24. 25, 26, 27, 28, 29. 30, 31, 32, 33, 34, 35, 38, 37, 38, 39, 40, 4 1 DISMISSAL were read on 1his motk>n totfor Defendant 1582 First Avenue Wine & Liquor lnc.'s ("Wine &. Liquor") motion for summary judgment is granted in part. On November 30, 2016, al approximately I 00 pm ,. plaintiff Jacqueline Bullock wu injured when she uipped and fell on the s.idewi.lk in the vicinity of the sidewalk vaultlcdlardoors in front of Wine & Liquor located at IS85 Firs1 Avenue bttwetn s2oc1 and 83'iJ Street Defendant 1585 Realty Coropany LLC (" 1585 Realty") owns the commercial space leased 10 Wine&. Liquor. Plaintiff testified at her deposition tha1 she fell oo the steel grate plateorttie cellar doors in front of Wine & Liquor, landing on her left elbow She saw the cdlar doors before the incident and indicated there were pedestrians around her at tbe time, including one walking towards her. There was a light rain at the time. but the sidewalk was not wet or slippery. Plaintiff was wearing flat, rain/saow ~ and holding an umbrella over her head, in her right ha.od The pedestrian traffic was heavy, and plaintiff was walking by herself Although she had previous.ly frequented PAfl:1al 8 1 of 8 INDEX COUNTY NO. 150073/2017 [*FILED: 2] NEW YORK CLERK NYSCEF DOC.RECEIVED NO. 43 NYSCEF: 07/01/2020 the area. plaintiff stated that at the time of the incidem there were delivery men, in addition to a truck, dolly, and boxes, in fmnt of the liquor store making deliveries to Wine & LiqUOf, The sidewalk was narrow and the delivery men unloading 1he boxes from the 1ruck were closer to the o.ut. Some of the boxes were on the sidewalk. while others were On thcdoUy. Plaintiff' wanted 10 avoid the delivery men, so she moved right towards the buildings and walked closer to the cellar doors in front of Wine & Liquor' s s1ore. There was a tree well near the corb where the delivery truck: was parked ln describing the momenl that she fell, plainti ff Stated: ..The toe pan of my footwear goc caught in a gap, if you will or depression .. Thceellar door had a sharp raised comer edge and it was not flushed, beca1.1se there was broken concrete under it, and it was high enough 1hat it caught the toe ponion in the footwear, of course " Lewis Trencher-, lhe property manager of 1585 First Avenue, was deposed on beha1fof 1585 Realty He testified that they hired Milbrook Properties 10 assist 'With management of lSSS Firs1 Avenue Trencher further disclosed that sidewalk repairs i_o front of Wine & Liquor's store were the responsibility oflhe super and managing agent (on behalf of the landlord), and Wine & Liquor would contact Mllbrook if any property is.sues arose. Trencher also named two individuals from Milbrook who were responsible for physically being at the property and dealing with issues such as repairs, operation of property. e1e Paragraph 4 of the lease between 1585 Realty and Wine & Liquor sta1es: "Ownu shall maintain and repair the ptiblic portions of the building, both exterior and interior Tenant shaJL, throughout the 1erm of the lease. take good care of the demised premises including the sidewalks adjaceJ\t thereto, and itt sole cost and expense make all non·structural repairs thereto " The lease also states in Paragraph 14 that no vaults (i.e_the cellar doors) were part of the lease. 1S00'73iZ011 BULLOCK. JACQUEUNE n. I SH Really COMPAHV LLC. Modan Ho. 001 2 of 8 P-ite 2 of l 150073/2017 [*FILED: 3] NEW INDEX YORKNO.COUNTY CLER NYSCEF DOC. RECEIVED NO. 43NYSCEF: 07/01/2020 The lc:ue rider al Paragraph SS provides 1ha1 the "tenant covenants and agreei to clean and m1in1ain 1he store front portion of the demised premises." P11flgraph 66 mtes th81, "Tenant shall be ~ponsiblc fOI' the niaintcnance and cleanlin~ of111 doors, frames, dOOr frames and .strttt enU'lt\Ce and slll.irways and passageways leading to or from 1hc demised premises" Finally, Paragraph 87 requires the lenanl ~to mainlain in good order and condition a.od tcpa.ir the aterio.of the demised premises . ." ln the in.Mant morion. Wine & Liquor moved for summlf)' judgment seeking dismissal of plaintiff' s complain1 and !SSS Realty's cross-claim seeking indemnification againsi tS8S Realty Wine & Liquor claims that it is entitled to judgment as a m11.t1croflaw u it owed no duty 1otht plaintiff and did nOl have an exclusive and comprehensive agreement to maintain andfor repair the portion of lhc sidewalk on which the plamtifftrippcd Wine&:. Liquor also arguei that it never made special use of the sidewalk In their Affirmation in Reply, Wine&:. Liquor presented where plaintiff fell as undisputed Wine & Liquor interpreted plaintlffto mean she s:1epped on the cellar doors (excluded from lhe lease), thus lSSS Realty rctairung their original responsi'bilities for plaintiff"s injuries 1585 Realty and plainlirfarguc. that summary judgment is inappropri.1te because the lease and rider dcmonsln!te 1ha1 Wine & Liquoc did have an e:x<:lusive duty to maintain and/or repair the sidewalk Plaintiff also claims lh.tt e-;en if the lease does not establish a cicar duty on the pan of Wine & Liquor, the lease slill flises m1terial issues of fact. Both parties alw coo1end that Wine & Liquor made special use of the sidewalk. Summlf)' judgment is a drasti<: remedy that should not be granted where there exists a triable inue of fa<:t (Rot11tr v E/01.·u:, 198 AD2d 184 {1st Dept 1993), Jm1:gra1ed l..ogistics Consu/tll11ts vFida1a Corp., IJI AD2dJ38 [1st Dept 1987D, This burden isahe.avy one, and alJ ....... .., llOD7ll2017 l!lt.U.OCl(,.MoCQUEUHEn.1MS~COW'A.NTlLC. 3 of 8 ....,.Jofl NO. COUNTY 150073/2017 [*FILED: 4] NEWINDEX YORK CLE NYSCEF DOC. RECEIVED NO. 43 NYSCEF: 07/01/2020 facts must be viewed in ligh1 favorable to lhe non-moving party (Jermuck Appml:;<r s 1 wKl Auct10f1nrs, Ir.:. Ct»ldon11mum I' /~ale fl109.t Rabl:JJtkh, 22 NV3d 470 120131~ RoJ,.,gue: I'. Purkhdttr Inc., 178 A02d 231 (1st Dept 19911) The moving party musl etllbllsh ~/Jt &J"llllQ jam caseMlowing that it is mtitled tojudgn1ent u a m1ttetorl1w (A/l'OTet "Pros11ec1 Hrup.,68 NY2d 320 (19861). ~ p(oponentof 1 summit)' judgment motion makes apl'imafaci~ 1.howing. by tendering 5ufficicnt evidence toelimin.atc any material issuetoffact from the case (Wmegrad vN~ Yor-k Univ, Med Ctr,, 64 NY2d 851 [19S5J) Once the movingputy twi demonstrated its pmnafoete sbomns, the burden then .shifts totbc non-moving party todemonsmue by adm1s5'ble evidence the exu~Cflce of 11riable i»Ue of fact nece»itating a trial (Jacob.kn"' N~ Ynr* Ciry Hw11Jt and Hospaal.JCor,1. , 22 NY3d 124 {2014], Alvart:, 68 NY2d at 324. Z"'·lcerman 11 City of New York, 49NY2d 557 (1980)) Administrative Code§ 7-210{enac.tcd in 2003) imposes a non-dtlcgable duty on property OWTlffS IQ maintain and repair the lidewalkabutting their property in 1 reuonably sarecondidon. This is true regardJeg of whether 1.he propeny owner hlllll transferred posseuiOll of the premises- to a lessoe or maintenance agreement 10 • third pany (sec Xim1g F11 He v. Troon Mgmt., Inc.• J 4 NY3d 167 [2019)) Administrative Code§ 7-210, in penincn1 pm, s-1a1cs. "lt shall be 1.he dury of the owner of real property ahunrng &ny sidewalk . to maintain such sidewalk in a reasonably safe condition. Notwithstanding any other provision of law. die owner of real propeny abutting any sidewalk shill be lilble for any injury topropcrtyorpenonal injuryn (NY, Code§ 7·210, New YOO City, .N.Y.) Acoordingly, Administrative Code§ 7-210 does not impose any duty on1 tenant, the propeoy ownes- is liable for injuries resulting from violation of§ 7-2 10. Here, there is no triable iS!UC of fact regarding whether Wme & Liquor had 1 duty to 1.he plaintiff, l>e$pite 1585 Realty and plaintiff's arguments ro the contrary. the ltasc i)ctween Wine 4 of 8 NO. COUNTY 150073/2017 [*FILED: 5] NEWINDEX YORK CLE NYSCEF DOC. RECEIVED NO. 43 NYSCEF: 07/01/2020 & Liquor and !SSS Realty was noc ..so comprchtflslve and eiiclusivo" in regard lo tidewalk maintenance as to entirely displlCC 158.S Realty'~ duty IO n11in1ain the liduwallt Neither Pangraph 4 ot lhe lease, nor other $(.'(:lions of tbc lease malte (cpairs and maintenance the er.elusive responsibility (If WiM &. LlquM As tho lease does noi sh(rw 1h11Wine & Liquor had an Cllclusive duty 10 maintain the sid<l~·alk, Wine&. Liquor had no dury to I.he plaintiff (kt Collado v. Cruz, 81 ADJd S42 {1$1 Dept 201 JJ[holding thal provilioos of a lcuc obligating a tenant to repair the sidewalk do not iml>QSC on the tenant a duty IO a lhird party]; su also Toms v. ViJto Rlalty C-Orp., 106 AD3d 64S, 646 [1st Dept 2013ll'"'The provisions of the tenant's lease obligaling it LO repair the sidewalk could not be enfocecd throl.lgh the main acboo"D Simililrly. the provisions con!Ained in the rider do not rise 10 the level of being ..so comprehensive and exclusive" as to entirely displace ISSS Realty's duty As r.he lease and rider do not impan Wine & Liqucw- with the exclusive duly to malnlain the sidewalk. Wine&. Llquor owes no duty to the plaintiff (see al.'IO Jlsi1 v, City<>/ New YOrk, 14.S ADJd 759, 760 [2d Dept 2016][""As 1 genen:J rule, thcJ)f'(Wisionsof1 leascobligating a tenant to repair the sidewalk do not impose on the 1enan1aduty10 a t:hlrd panyi) MorCO\·er, Trtnchtt cxphcilly stated that if lhece wa$ tin in:ue with .sidewalk, Wine & Llquoc was to contact the managing agent who had I.he responsibility of physically being at the propttty and attending to coordinating repairs Therefore. the le.ase and rider, and Trencher's testimony all dcmonJtn.te I.hat Wine &. Liquor's sidewalk fe$pQll.Sibilitics were not exclusive Summary judgment should also be granted in favor of Wine&. Liquot bccause Wine & Liquor did not cause the condition or mtke sped al use of the sidewalk (~e Kellogg"'· All Sfflnt.J Hoos. IN1•. Fund Ca., 146 ADJd 615 [Isl Dept :20J7J(findif18 th.at a tenant cannot be held liable to a third party in tort ab!lellt a showing that it affirmativdy caused o r created 1he defect which IS001JIZ011 8U..LOCK,JACQU!UHl!-11UAllllll)1COW>ANTLLC. Mcll!onMa.001 5 of 8 ... sou 150073/2017 [*FILED: 6] NEW INDEX YORKNO. COUNTY CLERK NYSCEF DOC. RECEIVED NO. 43NYSCEF: 07/01/2020 caused the plaintiff to uip or the tenant made 1 "'spcc:ial use" out of the sidewalk for its Owfl bencfi1)) There is no dispute lhat lhe condition wa.s not caused by Wine&: Liquor. However, 1585 Realty and plaintiff argue that Wine&. Uquor made special use of the sidewalk ISSS Realty argues I.hat Wine& Liquor attained illl excl usive benefit through their sidewalk use(i .e allowin3delivecy personnel to unload liquor boxes on the sidewalk). Specifically, plaintiff tCSfified that she walked closer to the buildings and celltr doors in front of Wine & Liquor's store to avoid the delivery men. 1585 Realty and plaintiff both argue th11.tsince1hc vauh dQOrsJed tolhe basement (which Wa$ part of the. le:ue), Wine & Liquor made special use of the cellar door ..The principle of special we, a narrow exception to the gene:ral rule, imposes an obligarioo on the abutting landowner. where.he puu part of a public way to a special use for his own benefit and the pvt used is subjea to his control, to maintain lhc part $0 used in a reasonably ~e COl'ldition to avoid injwy to othea.. Speaal use cases usually involve the inRtallation of some object in the sidewalk or street or- $Ol1le v&riance in 1hc coru1ruction thereof"' (.we l:lemande: "'· Orti:., 16.S ADld 559, 559-60 lht Dept 2018), quoting Balsam v Delma Eng'g COl'p.• 139 AD2d 292 (1st Dept 19881). Examples ofJpecial use include· a res11Uran1 wing the sidewalk for tables and chairs (raubenfefdvSlorbuc/cs Corp., 48 AD3d 310 [1st Dept 20081), railroad track.s imbedded in the public 5treel (J&yuv CSXTro11sp., Inc... 19 AD3d 193. 195 [l st Dept 2005]), concrete barriers diverting foot traffic (Petty v Dllmot1t, 77 A.Old 466 {lst Dept 2010]). and lhc parking of a temporary boiler on the street (81'1l v. C.ryof N.Y., 104 Ad3d 484 (1st Otpt 2013D. Here. 1he argument is that a delivCf)' look up space on the sidewalk.. The First Oepartmen1 fw explicitly held that the occasionAl use oflhe side of the store for deliveries does not constitute a special use as that term has been construed (Rodrigi1e: v City ofNew York. 48 15«17Stt017 tllLLOCK, JACQUELINE"'· IYI JWltyCOti9'""1 UC. McdoftNo.001 6 of 8 NO. COUNTY 150073/2017 [*FILED: 7] NEWINDEX YORK CLE NYSCEF DOC. RECEIVED NO. 43 NYSCEF: 07/01/2020 ADJd 298 ('!st Oepl 20081). Further, 10 the exteal thal pl•inlifTneeded IO walk around the boxeJ and divencd her path towards Che vault, 1his is also nQt special u!lt (.we' Taulw11/tdd, ~"NJ}f'(l) The lf}!ument that Wine & Liquor madt Jpeeial ute of tho vauJ1doors lhrOUW! thtir use of the basement is witho1.11 roorit. 11 is undispu1cc! 1ha1 Wine&. Liquor nevet mlldeuse of the vai.ih doora (and lhat the v1iult dOOt"s ate excluded from the leaie) Wine &. Liquor never acuased the buement through the vault doors 1J1d only accessed the basement through an indoor staircase Jn fact, Wine&. Liquor stated, and it was noc disputod, that the vault doon were locked, and they did not have access Acoordingly. u Wine & Liquor had oodu1y 10 plaintiff, theiroblig.ation to repair the s.idewalk was not exclusive, they did ooccrtattthcCOfldition oo the sidewalk and did not make special U$Cofthe sidewalk or vault (which was exduded from the lea.se), Wine & Liquor' s motion for sumnwy judgment&! to plaintiff is granted Lastly, Wine &. Liquor's motion for summlll")" judgmct11 seeking common law and conrractual indemnitiution again.I\ IS8S Realty i• denied A landowner may maintain an indemnification action against a teniiU\t whowen1omain1ain the property (Xiang Fu He l'. TrQOn Mgmt. , Inc. , 3_. NYld 167(2019);.sec olso WtJtlv.JCNYC, I.LC. 133 AOJd SS1 [Isl Dept 20IS] Here, 1hc k..ue includes indemnificatioo and h<old harmleu clauk::I Moreover. there is still a triableissueoffactas to where the plaintiff stepped Specifically, although Winek Liquor's reads plainciff's st:atemenl 10 mClft that she stepped on the vault doocs (which are excluded from the Jeuc), 1he $tatement can also be R!ad that she stepped oa sidewalk The depositioa testimony was not clear u to the p.-cci!it location and cause for her fall Accordingly, summaiy judgment on the indemnifica tioa claim is denied. For the above n:uons, it is hcrdiy ORDERFD that Wine &. Liquor' s mouoo for wmmaty judgment againsl plainblT is gramcd and piaintifrs claims against Wine & Uquor are dismissed; and it i$ funher 19007Jt2t17 llOUDCl(,~VL15H lhl'fYCOM"MYllC. Malloft N0..001 7 of 8 hgil 7 on NO.COUNTY 150073/2017 [*FILED: 8] NEWINDEX YORK CLER NYSCEF DOC. RECEIVED NO. 43 NYSCEF: 07/01/2020 ORDERED Um Wine&. LlqlJO('l motioo ror .ummary}ud,Wntntdlsmi11ing 1$15 Reahy'1 emu-cl aim rOI' lndemnilkation is denied OAT!: 8 of 8

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