Wilson v Phido Co Inc.

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Wilson v Phido Co Inc. 2022 NY Slip Op 33121(U) September 19, 2022 Supreme Court, New York County Docket Number: Index No. 150701/2019 Judge: Lori S. Sattler 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 NO. 150701/2019 FILED: NEW YORK COUNTY CLERK 09/19/2022 03:06 PM NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 09/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 02TR -----------------------------------------------------------------------------------X WAYNE WILSON, INDEX NO. Plaintiff, MOTION DATE 150701/2019 07/27/2022 -vPHIDO CO INC.,1638-1640 YORK LLC,1638-40 YORK AVENUE, LLC, MOTION SEQ. NO. 003 DECISION + ORDER ON MOTION Defendant. -----------------------------------------------------------------------------------X 1638-40 YORK AVENUE, LLC Third-Party Index No. 595967/2019 Plaintiff, -againstCARRERA RS LLC, 500A EAST 87TH STREET, LLC, PARK 87 CONDOMINIUM Defendant. --------------------------------------------------------------------------------X HON. LORI S. SATTLER: The following e-filed documents, listed by NYSCEF document number (Motion 003) 93, 94, 95, 96, 97, 98, 100, 101, 102, 103 REARGUMENT/RECONSIDERATION were read on this motion to/for . In this premises liability action, defendant Phido Co Inc. (“Phido”) moves for an order pursuant to CPLR 2221(d) granting reargument of the Court’s Decision and Order of April 8, 2022, for reversal of the Court’s Decision and Order, and for issuance of an order granting Phido’s motion for summary judgment. Plaintiff Wayne Wilson (“Plaintiff”) opposes the motion. The facts relevant to the present motion are as follows. Plaintiff, while working as a local manager for nonparty Verizon, was dispatched to oversee Verizon technicians who were 150701/2019 WILSON, WAYNE vs. PHIDO CO INC. Motion No. 003 [* 1] Page 1 of 5 1 of 5 FILED: NEW YORK COUNTY CLERK 09/19/2022 03:06 PM NYSCEF DOC. NO. 104 INDEX NO. 150701/2019 RECEIVED NYSCEF: 09/19/2022 performing work on equipment behind a condemned building located next to Defendant’s property. The Verizon personnel obtained permission from Defendant’s employee to use the rear of Defendant’s building located at 1634-34 York Avenue, New York, New York (“the premises”) after finding that they were unable to access the equipment through the condemned building. The back of the premises was separated from the yard in which the equipment was located by a 12- to 14-foot cinderblock wall. Defendant’s employee told the Verizon personnel that the neighboring property could be accessed by using a fire escape ladder to climb over the wall. The dividing wall was covered with bird spikes that had been installed by Defendant’s employees. Plaintiff states that he arrived at the job site after the technicians and that they repeated the employee’s instruction to access the job site by climbing over the dividing wall. Plaintiff successfully accessed the neighboring yard in this manner. However, Plaintiff’s bootlace caught on one of the bird spikes as he climbed over the dividing wall to leave the site. This caused him to fall and suffer injuries. Plaintiff commenced this action on January 23, 2019. Defendant moved for summary judgment dismissing Plaintiff’s claims on December 17, 2021. In support of its summary judgment motion, Defendant argued, in relevant part, that the dividing wall was not intended as a public walkway and that it therefore owed no duty to persons injured while climbing over it. In a Decision and Order dated April 8, 2022, the Court denied Defendant’s motion for summary judgment (NYSCEF Doc. No. 90). The Court found that Defendant owed a duty to Plaintiff to maintain its property in a reasonably safe condition, that this duty extended to the dividing wall because Defendant’s employee had told the Verizon personnel that they could climb the wall to 150701/2019 WILSON, WAYNE vs. PHIDO CO INC. Motion No. 003 [* 2] Page 2 of 5 2 of 5 FILED: NEW YORK COUNTY CLERK 09/19/2022 03:06 PM NYSCEF DOC. NO. 104 INDEX NO. 150701/2019 RECEIVED NYSCEF: 09/19/2022 access the neighboring yard, and that an injury such as Plaintiff’s was a reasonably foreseeable risk. Defendant now moves to reargue its motion for summary judgment under CPLR 2221(d). The CPLR provides that a “motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]; see also New Universe Inc. v Ito, 190 AD3d 426 [1st Dept 2021]). Here, Defendant argues that the Court “has misapprehended both the law and the facts with respect to the issue of duty and foreseeability and the characterizing of the presence of the bird spikes on the parapet wall as a ‘dangerous condition’” (NYSCEF Doc. No. 94, Defendant aff ¶ 11). Defendant maintains that the Court was incorrect in concluding that the bird spikes were a reasonably foreseeable risk because they had been installed on the wall for 20 to 30 years and nobody had been injured by or because of them. Defendant further argues that the Court improperly ignored its citations to two appellate cases, Reed v 64 JWB, LLC, 171 AD3d 1228 (2d Dept 2019) and Moran v State Duct Corp., 41 AD3d 440 (2d Dept 2007). In its prior decision, the Court found that Defendant failed to show a lack of dispute of material facts with respect to whether Plaintiff’s injury was a reasonably foreseeable risk. In support of its finding, the Court noted that Defendants had previously allowed Verizon employees to use the premises to access the adjoining property and the alleged instruction by Defendant’s employee for the Verizon technicians to climb over the dividing wall on the day of the accident. The Court rejected Defendant’s argument that the accident was unforeseeable as a matter of law. Defendant merely restates this rejected argument in favor of its motion to reargue and the Court accordingly denies this branch of Defendant’s motion. 150701/2019 WILSON, WAYNE vs. PHIDO CO INC. Motion No. 003 [* 3] Page 3 of 5 3 of 5 FILED: NEW YORK COUNTY CLERK 09/19/2022 03:06 PM NYSCEF DOC. NO. 104 INDEX NO. 150701/2019 RECEIVED NYSCEF: 09/19/2022 The second prong of Defendant’s motion is similarly unpersuasive. Defendant insists that Reed and Moran, two Second Department cases relating to the scope of a property owner’s liability for unremoved snow, support its position that it had no duty of care to Plaintiff with respect to the dividing wall (see Reed, 171 AD3d at 1228 [holding that defendant owed no duty of care for injury caused by hole on snow-covered median because the hole was a latent defect and the median was not intended as a public walkway]; Moran, 41 AD3d 440 [defendant entitled to summary judgment because it “had no duty to maintain free of debris and snow an unpaved area that was not intended to be a public walkway”]). These decisions are readily distinguishable from the present case. Reed and Moran concern the extent of a property owner’s duty to remove snow from their property in order to maintain their premises in a reasonably safe condition. In this case, the bird spikes installed by Defendant on top of the parapet wall were the allegedly dangerous condition, not a transitory natural hazard such as snow. Furthermore, Plaintiff alleges that Defendant’s employee told the Verizon personnel to climb over the wall to access the neighboring yard by climbing the dividing wall, a fact not presented in Reed and Moran. The Court of Appeals has held that a property owner owes a duty to exercise reasonable care in maintaining its property in a reasonably safe condition under the circumstances (Powers v 31 E 31 LLC, 24 NY3d 84, 94 [2014]) and that this duty applies “whether the property is open to the public or not” (Peralta v Henriquez, 100 NY2d 139, 144 [2003]). Here, there is an issue of material fact with respect to whether Defendant maintained its property in a reasonably safe condition under the circumstances with respect to the presence of bird spikes on top of the wall that Defendant’s employee told guests on the property to climb. Defendant fails to show that the 150701/2019 WILSON, WAYNE vs. PHIDO CO INC. Motion No. 003 [* 4] Page 4 of 5 4 of 5 INDEX NO. 150701/2019 FILED: NEW YORK COUNTY CLERK 09/19/2022 03:06 PM NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 09/19/2022 Court overlooked these issues of law on the prior motion and consequently declines to reverse its prior decision. Accordingly, it is hereby: ORDERED that defendant Phido, Inc.’s motion to reargue is denied. 9/19/2022 DATE CHECK ONE: $SIG$ LORI S. SATTLER, J.S.C. CASE DISPOSED GRANTED X • DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 150701/2019 WILSON, WAYNE vs. PHIDO CO INC. Motion No. 003 [* 5] ~ X NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page 5 of 5 5 of 5

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