Suazo v Friedman's 31st St., LLC

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Suazo v Friedman's 31st St., LLC 2021 NY Slip Op 30532(U) February 26, 2021 Supreme Court, New York County Docket Number: 155028/2019 Judge: Lyle E. Frank 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 02/26/2021 12:39 P~ NYSCEF DOC. NO. 57 INDEX NO. 155028/2019 RECEIVED NYSCEF: 02/26/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LYLE E. FRANK IAS MOTION 52EFM Justice ----------------------------------------------------------------- ----------------X INDEX NO. ADA SUAZO, Plaintiff, 155028/2019 MOTION DATE N/A MOTION SEQ. NO. 002 -vFRIEDMAN'S 31ST STREET, LLC,PHILLIPS FOOD 35 LLC,PHILLIPS FOODS LLC,VANBARTON GROUP LLC,VANBARTON SERVICES LLC,VANBARTON SERVICES NY LLC,VBGO PENN PLAZA FEE LLC,VBGO PENN PLAZA LLC,THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X VANBARTON GROUP LLC, VANBARTON SERVICES LLC, VANBARTON SERVICES NY LLC, VBGO PENN PLAZA FEE LLC, VBGO PENN PLAZA LLC Third-Party Index No. 595794/2019 Plaintiff, -againstQUALITY BUILDING SERVICES CORP. Defendant. --------------------------------------------------------------------------------x The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37,38,39,40,41,48,49,50,51,52,54,55,56 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, the decision of the Court is as follows: This action arises out of injuries allegedly sustained by plaintiff on February 22, 2018. Plaintiff alleges she slipped and fell on the sidewalk adjacent to Friedman's Restaurant located at 132 West 31st Street in New York County. Defendant/Third-party plaintiff moves for summary judgment on the grounds that the condition that plaintiff alleges caused her accident is not Page 1 of4 155028/2019 Motion No. 002 1 of 4 [*[FILED: 2] NEW YORK COUNTY CLERK 02/26/2021 12:39 NYSCEF DOC. NO. 57 INDEX NO. 155028/2019 P~ RECEIVED NYSCEF: 02/26/2021 actionable. Plaintiff opposes the instant motion. Based on the reasons set forth below, the motion is granted, and the complaint is dismissed in its entirety. Summary Judgment Standard Summary Judgment should not be granted where there is any doubt as to the existence of a material issue of fact. Zuckerman v City of New York, 49 NY2d 557, 562 [1980]. The function of the court when presented with a motion for Summary Judgment is one of issue finding, not issue determination. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Weiner v Ga-Ro Die Cutting, Inc., 104 AD2d 331, [1st Dept 1984] aff'd 65 NY2d 732 [1985]. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter oflaw. Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v New York University Medical Center, 64 NY2d 851 [1985]. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized in a light most favorable to the non-moving party. Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]. Summary judgment will only be granted if there are no material, triable issues of fact Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]. Plaintiff testified at a hearing, pursuant to General Municipal Law §50-h. See NYSCEF doc. 40. Plaintiff testified in relevant part that at the time of the incident it was lightly raining. Id 155028/2019 Motion No. 002 Page 2 of 4 2 of 4 [*[FILED: 3] NEW YORK COUNTY CLERK 02/26/2021 12:39 P~ NYSCEF DOC. NO. 57 INDEX NO. 155028/2019 RECEIVED NYSCEF: 02/26/2021 at 7: 10-14. Plaintiff further testified that the sidewalk where she fell was caused to be slippery by water, and that her body was wet after the fall. Id at 15: 14-18, 16:3-4. Discussion In support of its motion defendant/third-party plaintiff, cites to plaintiff's 50h testimony to establish its prima facie case. Movant contends that a wet sidewalk, while it is raining is not an actionable condition. The Court agrees, as "the mere fact that the driveway apron was wet from the rain is insufficient to establish a dangerous condition" Richardson v Campanelli, 297 AD2d 794 [2d Dept 2002] internal citations omitted. Contrary to plaintiff's contentions at oral argument, movant was not required to attach a climatological report to prove that it was in fact raining; plaintiff's own testimony was sufficient to establish that fact. In opposition, plaintiff attempt to dispute her own testimony with an uncertified record from timeanddate.com, is insufficient to create a question of fact. Although not raised in the opposition papers, during oral argument, plaintiff attempted to create an issue of fact by citing to her Notice of Claim and Verified Complaint, wherein among a plethora of other allegations, plaintiff claims black ice caused her accident. The Court does not find that plaintiff's pleadings create an issue fact as her testimony, which was taken for the purpose to amplify her pleadings, specifically identifies the cause of her accident. Plaintiff has failed to rebut movants initial showing that condition is not a dangerous condition as a matter oflaw. It is well established that the Court "may search the record and grant summary judgment to any nonmoving party without the necessity of a cross motion" (Maggio v 24 W 57 APF, LLC, 134 AD3d 621, 628 [1st Dept 2015]). After searching the record, the non-movants are equally entitled to judgment as a matter oflaw as it is established that the condition complained of is actionable. 155028/2019 Motion No. 002 Page 3 of 4 3 of 4 [*!FILED: 4] NEW YORK COUNTY CLERK 02/26/2021 12:39 PMI NYSCEF DOC. NO. 57 INDEX NO. 155028/2019 RECEIVED NYSCEF: 02/26/2021 Accordingly, it is hereby ORDERED that the plaintiff's complaint is dismissed in its entirety, and the Clerk of the Court is directed to enter judgment accordingly. 2/26/2021 DATE CHECK ONE: LYLE E. FRANK, J.S.C. CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 155028/2019 Motion No. 002 ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page4 of 4 4 of 4

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