Brinkmann v Herald Ctr. Dept. Store of N.Y. LLC

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Brinkmann v Herald Ctr. Dept. Store of N.Y. LLC 2022 NY Slip Op 33566(U) October 18, 2022 Supreme Court, New York County Docket Number: Index No. 154479/2020 Judge: Mary V. Rosado 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. 154479/2020 FILED: NEW YORK COUNTY CLERK 10/18/2022 04:49 PM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/18/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 33 PART HON. MARYV. ROSADO Justice ---------------------------~- -------X INDEX NO. LISA BRINKMANN MOTION DATE Plaintiff, MOTION SEQ. NO. 154479/2020 06/07/2022 001 - V - HERALD CENTER DEPARTMENT STORE OF NEW YORK LLC, DECISION + ORDER ON MOTION Defendant. ----------X I The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20,21,22, 23,24,25,26,27,28,29, 30, 31,32, 33, 34,35, 36, ~7. 38, 39,40, 41,42 were read on this motion to/for JUDGMENT - SUMMARY Upon the foregoing documents, and oral argumenqwhich took place on August 9, 2022 where Christopher G. Conway, Esq. appeared for Plaintiff Lisa Brinkmann ("Plaintiff') and , Sylvester Yavana, Esq. appeared for Defend~nt Herald Center Department Store of New York LLC ("Defendant"), Plaintiffs motion for partial summary judgment. on the issue of liability is granted. I. Factual and Procedural Background Plaintiff is seeking compensation for 'alleged injuries sustained from a slip and fall on a sidewalk owned by Defendant (NYSCEF Doc. 1). The note of issue was filed on May 12, 2022, and Plaintiff now seeks partial summary judgment on the issue of liability (NYSCEF Docs. 1415). Defendant owns the building located at 1293 Broadway, New York, New York (the ' "Building") (NYSCEF Doc. 5). The Building is also known as Macy's Herald Square. Plaintiff claims she was walking on the sidewalk in front of the Bdilding on January 29, 2020, when she [* 1] 154479/2020 BRINKMANN, LISA vs. HERALD CENTER DEPARTMENT · Motion No. 001 1 of 6 Page 1 of 6 FILED: NEW YORK COUNTY CLERK 10/18/2022 04:49 PM NYSCEF DOC. NO. 43 INDEX NO. 154479/2020 RECEIVED NYSCEF: 10/18/2022 fell on West 34th Street between Sixth and Seventh Avenud (NYSCEF Doc. 19 at page 35, lines I 4-9). The cause of the fall is alleged to be a triangular shaped hole in the sidewalk (id. at page 38, j lines 4-10). During her deposition, Plaintiff testified that she fell "to the right of the H&M Store . . (id. at page 36, lines 5-6). She provided further detail of the location of the fall by testifying that the triangular shaped hole was to the right of a:subway station (id. at page 42 lines 19-21 ). ~ ' The deposition of Joe Menendez ("Mr. Menendez"), was taken. (NYSCEF Doc. 21 ). Mr. Menendez testified that he is the chief engineer of Defenda,nt (id. at page 20, line 5). While Mr. Menendez states he is responsible for overseeing the operat~ons of the property, his role does not include inspections or maintenance of the sidewalks located adjacent to department stores (id. page I 20, lines 2-17). As such, there are no repo~s or logs kept on the conditions of the sidewalks adjacent to the Building (id.). There were ijO formal inspections, procedures, or protocol for . . i inspecting the sidewalks at the time of Plaintiffs alleged fall (id. at page 17 lines 7-11 ). Instead, Mr. Menendez testified that "If there is a complaint or I see.something that I notice, I will patch it j if necessary" (id. at page 13, lines 3-5). Mr. Menendez has no formal training related to sidewalk ~ : maintenance (id. at page 14, line 12). When shown a photo of the sidewalk with the triangµlar hole where Plaintiff allegedly fell, Mr. Menendez testified that he most likely had done patchwork on the triangular hole depicted in ., the photo (id.at page 32 lines 16-25; page 35~36). Mr. Menendez also testified that the triangular hole depicted in the photo was in between a Verizon Store ~nd H&M store (id. at page 35 line 17. l 21). Mr. Menendez further testified that the triangular hole depicted in the photo shown to him was near a subway, substantiating Plaintiffs version of the fall (id. at page 32 lines 16-25). Mr. Menendez testified that based on the materials he used to do patchwork, the patchwork would 154479/2020 BRINKMANN, LISA vs. HERALD CENTER DEPARTMENT Motion No. 001 [* 2] 2 of 6 Page 2 of 6 INDEX NO. 154479/2020 FILED: NEW YORK COUNTY CLERK 10/18/2022 04:49 PM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/18/2022 to cold (id. at page eventually erode due to expansion because of the change in \veather from hot 40 lines 18-23). it of Adam · In support of its motion for summary judgment, Plaintiff submitted the affidav been a licensed C. Cassel, P.E., DFE ("Mr. Cassel") (NYSCEF Doc. 23). Mr. Cassel has ted thousands of professional engineer in New York since 201J and testified that he has conduc ! and other clients to forensic investigations for insurance carriers, building owners, attorneys, Cassel observed the determine the causes of accidents related to premises liabiliJy (id. at 12). Mr. at 1 7). Mr. Cassel area where Plainti ff reportedly fell and observ~d a triangular shaped cavity (id. found that the cavity and patch work done on said cavity created an uneven conditi on with a height height differential differential between 5/8 and 1-1/4 inches high (id.). Mr. Castel testified that this Highway Rules and violated §2-09(f)(5)(iv) of the New York City Depart ment of Transportation laws state that a trip §19-152 of the New York City Administrative Code (id. at 19). Both of those tial defect. Based hazard where the height differential is greater than or equal io ½ inch is a substan triangular cavity on the statutory definitions and Mr. Cassel'~ measurements, he classified the . d that the defective where Plaintiff fell to be a substantial defect (id. at 1 I 0). Mr.. Cassel also testifie 1i condition existed for several years as a result of a failure tb maintain the sidewalk in a good and the existence of the safe condition (id at 111). Indeed, images from both 2014 and 2020 showed sidewalk defect (id.). II. Discussion A. Standa rd party has "Summary judgme nt is a drastic remedy, to be grfted only where the moving offact. " (Vega v tendered sufficient evidence to demonstrate the absence of any material issues n is a heavy one and Restan i Const. Corp., 18 NY3d 499,50 3 [2012]). The moving party's "burde 154479/2020 BRINKM ANN, LISA vs. HERALD CENTER DEPARTMENT Motion No. 001 [* 3] 3 of 6 Page 3 of6 INDEX NO. 154479/2020 FILED: NEW YORK COUNTY CLERK 10/18/2022 04:49 PM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/18/2022 on a motion for summary judgment, facts must be viewed irl the light most favorable to the noni moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact J which require a trial. See e.g., Zuckerman 'v City of Ne;v York, 49 NY2d 557, 562 [1980];· Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [l st Dept 2003]). Mere conclusions of I law or fact are insufficient to defeat a motion for summary: judgment (see Banco Popular North Am. v Victory Taxi Mgt., Inc. , 1 NY3d 381 [2004]). To show prima facie entitlement to summary judgment on a premises liability action, a Plaintiff must show that a dangerous or defective conditio11 existed, and that the defendant either created the condition or had actual or constructive notice o£it (Lemonda v Sutton, 268 AD2d 383, J 384 [1st Dept 2000]). Constructive notice is generally found when the dangerous condition is visible and apparent and exists for a sufficient period to ;afford a defendant an opportunity to discover and remedy the condition (Velocci ~ Stop and Shop, 188 AD3d 436 [1st Dept 2020]). A ' defendant demonstrates lack of constructive notice by producing evidence of its maintenance activities on the day of the accident, and specifically thaMhe dangerous condition did not exist when the area was last inspected or cleaned before plaintiff fell (Gomez v JC Penny Corp., Inc., 113 AD3d 571, 571-572 [1st Dept 2014]). "Reference to a generalized inspection practice 'is • t condition of the sidewalk prior to the accident'" (Trinidad JCatsimatidis, 190 AD3d 444 [ I st Dept I 2021] quoting Simpson v City ofNew York, 126 AD3d 640~ 641 [1st Dept 2015]). multiple applicable sidewalk statutes and safety standards, is uncontroverted. Defendant's agent, 154479/2020 BRINKMANN, LISA vs. HERALD CENTER DEPARTMENT Motion No. 001 4 of 6 I l Plaintiff's expert affidavit, which shows the size 0f the trip hazard to be in violation of [* 4] ' II insufficient to satisfy defendant['s] burden of establishing that [it] lacked notice of the alleged Page 4 of 6 Il FILED: NEW YORK COUNTY CLERK 10/18/2022 04:49 PM NYSCEF DOC. NO. 43 INDEX NO. 154479/2020 RECEIVED NYSCEF: 10/18/2022 Mr. Menendez, also claimed that he most likely cond~cted patchwork on the trip hazard, and that it is likely the patchwork done would be worn down over time due to the weather, thereby ' establishing Defendant's notice of the defective condition. Further, even if Defendant did not have . I actual notice of the defective condition, Defendant has not opposed Plaintiffs expert affidavit which shows a photo indicating the trip hazard. has existed s\nce at least 2014. Therefore, Plaintiff has shown its prima facie entitlement to summary judgment by showing that: Defendant owed plaintiff a duty to maintain its sidewalk in a safe manner; Defendant breached that duty by allowing a trip hazard to form; Defendant had actual or constructive potice of the trip hazard, and Plaintiff was injured as a result of the trip hazard. The!burden now shifts to Defendant to show a genuine I material issue of fact which would warrant denying Plaintiffs motion for partial summary judgment. Defendant attempts to assert an issue of fact by pointing out that in her written discovery responses, Plaintiff claims she fell in front of a Verizon, but at her deposition she testified she fell "to the right of H&M." The Court finds this is insufficient to deny summary judgment. The record ij reflects that the Verizon and H&M are right r,iext to one another, and if you are facing the H&M, the Verizon is to the right of the H&M. Therefore, Plaintiffs written discovery responses and her deposition testimony are not inconsistent with one another. (Lopez v I 675 Realty, ---N.Y.S.3d---, ' 2022 NY Slip Op. 05500 at * 1 [l st Dept 202:2] [granting plaintiff summary judgment on liability in sidewalk trip and fall action on the issue :of liability an,d disregarq.ing defendant's contention that plaintiffs 50-h and deposition testimonies as inconsistent]). Moreover, since . both H&M and . Verizon are tenants of Defendant, Defendant still owns the -~idewalk in front of both stores and has ' . a non-delegable duty to repair and maintain said sidewalk. . ! 154479/2020 BRINKMANN, LISA vs. HERALD CENTER DEPARTMENT Motion No. 001 · [* 5] 5 of 6 Page 5 of 6 INDEX NO. 154479/2020 FILED: NEW YORK COUNTY CLERK 10/18/2022 04:49 PM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/18/2022 Defendant also asserts that summary judgment sliould be denied because Plaintiffs I credibility is questionable since she waited until she got to New Jersey to seek medical treatment. The Court finds that Plaintiffs decision to seek medical treatment later goes to Plaintiffs pain and ' suffering, and since this is a motion for summary judgment pnly on the issue of liability, when or where Plaintiff decided to get medical treatment does not bfar on whether Defendant is liable to Plaintiff for her alleged injuries. Accordingly, it is hereby • judgment on the issue of liability ORDERED that Plaintiffs motion for partial summary is granted. This constitutes the decision and ordef of the Court. 10/18/2022 DATE N. MARY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED x GRANTED • x DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 154479/2020 BRINKMANN, LISA vs. HERALD CENTER DEPARTMENT Motion No. 001 [* 6] NON-FINAL DISPOSITION 6 of 6 • • OTHER REFERENCE Page 6 of 6

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