St. Germain v Seaman

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St. Germain v Seaman 2021 NY Slip Op 31702(U) May 19, 2021 Supreme Court, New York County Docket Number: 158114/2015 Judge: Suzanne J. Adams 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 05/19/2021 11:03 AM NYSCEF DOC. NO. 408 INDEX NO. 158114/2015 RECEIVED NYSCEF: 05/19/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY . PRESENT: HON.SUZANNEJ.ADAMS PART IAS MOTION 21 Justice .----------------------------------------------------------------------------X INDEX NO. 158114/2015 ADELQUINE ST. GERMAIN, MOTION DATE 04/14/2021 Plaintiff, MOTION SEQ. NO. 006 -vREBECCA SEAMAN AKA REBECCA DIANE COLIN, EVA USDAN & SAMUEL FLUG COLIN 2004 LEGACY TRUST, THE NEW YORK CITY TRANSIT AUTHORITY, HSBC BANK USA, NATIONAL ASSOCIATION, JONES LANG LASALLE AMERICAS, INC., PIPESTONE PROPERTY SERVICES LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 006) 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 309, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 341, 342, 345, 351, 363, 364, 399,400,401,403 . SUMMARY JUDGMENT(AFTER JOINDER were read on this motion to/for Upon the foregoing documents, and oral argument having been heard via videoconference on April 20, 2021, it is ordered that the motion for summary judgment of defendant Jones Lang LaSalle Americas, Inc. ("JLL") is granted to the extent set forth below. This personal injury matter arises out of an incident that occurred on March 2, 2015, at approximately 4:40 a.m. at or near the comer of 14th Street and Sixth Avenue in Manhattan. Plaintiff alleges that she slipped and fell in front of and/or around the entrance to the F Train subway station located on that comer, due to an icy or slippery condition in said area. Defendants Rebeca Colin Seaman a/k/a Rebecca Diane Colin, Eva Usdan & Samuel Flug Colin 2004 Legacy Trust (collectively, the "Colin Defendants") own the property known as 531537 Sixth Avenue, also known as 101 West 141h Street, which is at the same comer as the F Train 158114/2015 ST. GERMAIN, ADELQUINE vs. SEAMAN AKA REBECCA DIANE 1 of 4 •11-+;"'" tJ:n nnR Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 05/19/2021 11:03 AM NYSCEF DOC. NO. 408 INDEX NO. 158114/2015 RECEIVED NYSCEF: 05/19/2021 station at issue. The property was leased to defendant HSBC Bank USA National Association ("HSBC"), their tenant, who in turn retained JLL as its property manager. JLL thereafter contracted with defendant Pipestone Property Services, LLC ("Pipestone") to provide snow and ice removal, including at the 531-53 7 Sixth Avenue location. JLL now moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims as against it, and for summary judgment as against Pipestone on its cross-claim for contractual indemnification. Plaintiff and defendant New York City Transit Authority ("NYCT A") oppose the motion, and HSBC and Pipestone partially oppose the motion. (In separate motion sequences, the Colin Defendants, HSBC and NYCTA all move, and Pipestone cross-moves, for summary judgment dismissing the complaint and the cross-claims respectively asserted as against them. These motions are being d~cided separately and concurrently with the instant motion.) It is well-settled that "the proponent of a summary judgment motion must make a J?rirna facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986) (citing Winegradv. New York University Medical Center, 64 N.Y.2d 851 (1985) ). If such a showing is made, then a party opposing the motion must "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or. tender an acceptable excuse for his failure ... to do [so]." Zuckerman v. City of New York, 49 N.Y.2d 557, 560 (1980). See also Winegrad, 64 N.Y.2d at 853. Here, the evidence before the court establishes as a matter of law that NYCT A, not JLL, was responsible for maintaining the area at issue herein. It is not disputed that plaintiff testified she fell in the area indicated in the photograph marked at her deposition, which is the street-level landing of the stairway leading to the subway station in question. (Affirmation in Support, 158114/2015 ST. GERMAIN, ADELQUINE vs. SEAMAN AKA REBECCA DIANE Motion No. 006 2 of 4 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 05/19/2021 11:03 AM NYSCEF DOC. NO. 408 Exhibit H, NYSCEF #291) INDEX NO. 158114/2015 RECEIVED NYSCEF: 05/19/2021 The deposition testimony of NYCTA's witness, Zaire Stevens, established that NYCTA was responsible for cleaning and maintaining -the three-foot area of the landing from the top of the stairway at the street level. (Affirmation in Support, Exhibit G, NYSCEF #290, pp. 20-21) Ms. Stevens marked a photograph at her deposition to indicate the area she was responsible for cleaning, and it clearly encompasses the area where plaintiff claims she fell. (Affirmation in Support, Exhibit H, NYSCEF #291) It has been long acknowledged by the courts that areas incidental to or necessary for the operation of a subway station are considered '"lease property' within the meaning of the 1953 lease in which the City [of New York] relinquished possession and control of all of its transit facilities to [NYCTA]." McGuire. v. City of New York, 211 A.D.2d 428, 429 (1st Dep't 1995). NYCTA thus has a duty to, inter alia, safely maintain the means of ingress and egress to its system. Echevarria. v. New York City Tr. Auth., 45 A.D.3d 492, 429 (1st Dep't 2005). Further, the installation of a subway entrance is considered a "special use" of that area by NYCTA, thereby obligating NY CTA to maintain it in a reasonably safe condition. Weiskopf v. City of New York, 5 A.D.3d 202, 203 (l5t Dep't 2004). See also Mitchell v. 350 W 125 Street Corp., 53 Misc. 3d 1219(A) (Sup. Ct. N.Y. County 2016). Therefore, JLL did not have a responsibility, pursuant to its contractual arrangement with HSBC, to remove snow or ice from the area at issue, and as such did not owe a duty of care to plaintiff. It follows that because JLL was not responsible for cleaning or maintaining the area where plaintiff alleges she fell, there is no basis for its indemnification by Pipestone for any purported failure to remove snow or ice from the area. Accordingly, it is hereby 158114/2015 ST. GERMAIN, ADELQUINE vs. SEAMAN AKA REBECCA DIANE Motion No. 006 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 05/19/2021 11:03 AM NYSCEF DOC. NO. 408 INDEX NO. 158114/2015 RECEIVED NYSCEF: 05/19/2021 ORDERED that JLL's motion for summary judgment dismissing the complaint herein is granted and the complaint and all cross-claims and counterclaims are dismissed in their entirety as against JLL, and the Clerk is directed to enter judgment accordingly in favor of JLL; and it is further ORDERED that the remainder of JLL's motion is denied; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for JLL shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on the court's website at the address www.nycourts.gov/supctmanh). This constitutes the decision and order of the court. 5/19/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: SUZA:iJADAMS, J.S.C. ~ CASE DISPOSED GRANTED SETTLE ORDER D NON-FINAL DISPOSITION DENIED GRANTED IN PART · SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158114/2015 ST. GERMAIN, ADELQUINE vs. SEAMAN AKA REBECCA DIANE Motion No. 006 4 of 4 D D OTHER REFERENCE . Page 4of4

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