Murphy v City of New York

Annotate this Case

Download PDF

Murphy v City of New York 2023 NY Slip Op 34142(U) November 20, 2023 Supreme Court, New York County Docket Number: Index No. 159044/2019 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. 159044/2019 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 11/22/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO 33M PART Just;ce --------~~~H-•-HHHHHH-•-r- -~- --- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LINDA MURPHY, X INDEX NO. MOTION DATE PlairitJff. 159044/2019 03/23/2023 004 MOTION SEQ. NO. - V - THE CtTY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION. NYC ONE HOLDING LLC,38'8 REAL TY HOLDING LLC DECISION + ORDER ON MOTION Defendant. The following e-filed documents. !isted by NYSCEF document m;mber (Motion 004) 100. 101, 102. 103, 104, 105, 106, 107, 108, 109, 110, 112, 113, 114_ 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 131, 132, 133, 134, 135 JUDGMENT-SUMMARY we re read on tl'l is motion to/for Upon the foregoing documents, and an.er oral argument which took place on August 15, 2023 with Joseph Taylor. Esq. appearing for Plaintiff Linda Murphy CPlaintitT"), Cary :-Josowitz, Esq. aµpearing for Defendant )JYC One Holding LI .C ("NYC One°)) and Stacy I. Mahn ow·, Esq. appearing for Dcfcndan{ 308 Realty 1lolding LLC ("'308 Realti'), Defendant 308 Realty's motion for summary judgment dismissing Plaintiff .s. claims and all cross-claims against 308 Realty is granted, without opposition. Plaintitrs cross-motion for summary judgment on the issue I. cir liab1lily again~( Defendant l\YC One is denied. Background On Scptcm her l 8~ 20 l 9~ Plat mi ff commct1ccd the pre sent act ion to recover damages r·or personal injuries aHcgcdly sustained when she tl'ipped and fell on a cellar door located on the sidcwaik in front of 306 West 40t1 1 Street, New York, New York (the ~iProperty") (NYSCEF Ooc. 1). It is undisputed that NYC One is the o\vncr of the Property (N YSCEF Doc. 116 at p. 7). 308 Realty is not an owner of the subject Property, but rather owns the vacant lot loc;=itcd at 308 West 159044/W19 MURPHY, UNDA vs, CITY OF NEW YORK Motion ~ o. 004 [* 1] 1 of 7 Page 1 of 7 INDEX NO. 159044/2019 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 11/22/2023 40 th Street~ New York~ New York (NYSCEF Doc. l0l at ~,r 10-11). Al the time of Plainlifrs aHeged accident, 308 RcaJt},·) s property at 3 08 West 40 111 Street did not have a cellar door (NYSCEF Doc. 101 at ill 2). On March 23~ 2023) 308 Realty hroughi the instant summary judgment motion for an Order di.'jmi.ssing Plaintiffs claims and a11 cross~claims against 308 Realty (NYSCEf Doc. 100). In support of its motion. 308 Realty filed an Affirmation on March 23, 2023 (NYSC FF Doc. lO J ) • P lainliff does not oppose 3 0 8 Realty's mot ion. On April 4, 2023, Plaintiff filed a crossymotion for an Order granting Pbinti ff summary judgment nn 1hc i s~uc of liabil i Ly ugainst Defendant :-,.JYC One (NYSCEF Doc. 112). Plaintiff filed an Affirmatton in support of her cross-motion on April 4~ 2023 (NYSCEF Doc. l 11 ). l'\YC One file<l (in Affirmation in opposit[on to Plaintiffs cross-motion on \fay l 8. 2023 ( :.J YSCEF Doc. 131 ). Plaintiff filed an AI11rmation in Reply on \.fay 25, 2023 C)iYSCEf Doc. 135). II. Discussion A. Sunrm;y:y Judgment Standard Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficirnt evidence to demonstrate tht: ab::.ence or any material issues of fact.•: ( Vega v Resttmi Cons!. Corp., 18 NY3d 499, 503 [20121). The moving parry·s ·•burden is a heavy one and on a motion for summary judgment, facts mList be viewed in the light most favorable to the non- moving parly.'' (Jacobsen v New York Ciry Ilea/th and lfo.,;ps. Corp., 22 NY3d H24, 8.'H l20l4J). Once this sho\ving is made, the burJrn sh1 n.~ 10 Lhe pan1- opposing the motion to produce ~videntiary proof, in admissible form, sufficient to establish the existence of maLeri.al issues of fact which require a trial (see e.g.. Luckerman v City o/ :Vew York. 49 NY2d 55 7, 562 [ 1980]; Pember/on v New York City "f'r. Auth., 304 AD2d 340, 342 l_l ~L Dept 2003]). Mere conclusions of 159044/2019 MURPHY. LINDA vs. CITY OF NEW YORK Moli on r-.lo. 004 [* 2] Page 2 of 7 2 of 7 INDEX NO. 159044/2019 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 11/22/2023 law or fact are insufficient to defeat a motjon for smmnary judgment (see Banco Popular }·/onh Am. v Victory Taxi Mgt., inc., l >J"Y1J 3 81 l2004 J). B. Defendant 308 Realtv)s Motion for Summan; Jud~ment is Granted 308 Realty's summary judgment motion requests dismissal of PlaintitTs claims and all cross-claims against 308 Realty (NYSCEF Doc. l 00). 308 Realty argues that the "maintenance) repair and responsibility of a defect of the type alleged l by Plaintiff! falls within the exclusive care of the owner of the abutting property'' (NYSCEF Doc. 101 at .- 7). As it is undisplltcd that 308 Realty docs not own the Property abutting the accident location, 308 R~ally contern.l~ that summary judgment is warranted. Section 7-210 of the Administrative Code of the City of New York (the ''Administrative Code") states that ''[i]t shall be the duty of the owner ofrcal property abutting any sidewalk ... lo maintain such sidewalk. in a w(fson.ibly safe condition ... Nol\vithstanding any other provision of law, the mvner of real property abutting any sidewalk ... shall be liable for any injury to property or personal injury ... pro xi mat el y caused hy the faj 1ure or such ov.11er to mai main such side walk in a reasonably safe condition.'' further, the Appellate Division has held that this duty '"is an affinnative~ non-dclcgabl~ obligation, and although a landlol'd can enter into agreements having ihe tenant perform the \Vork of maintaining the stdewalk, the duty to plainli ff remains exclusively \Vith the landlord" ( Choudhry v SwrbuC'ks Corp. 213 A.D3d 521 [1st Dept 2023 l). In this case, Rrjan Law, the Principal of 308 Realty, alleges in his Affidavit that on the date of PJaintiff s alleged acci<lrnt 308 Rl!ally '·JiJ not mvn the premises knov,,rn flS 306 \',/est 4O 1h Street, New York, New York 10018" {NYSCEF Doc. 103 at, 5). Mr. Law further allege'> in his Affidavit that .108 Realty ''has never performed any repairs to the cellar door \vhere the alleged accident occurred, on or before Fcbrnary 23, 2019, or anytime thereafter ... [and] has never made 159044!2019 MURPHY, Ll NDA vs. CITY OF NEW YORK Motion No. 0 04 [* 3] Pagl;!' 3 of 7 3 of 7 INDEX NO. 159044/2019 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 11/22/2023 any use, spcciaJ or othenvise, of the ceJlar door 'where the alleged accident occurred on or before February 23, 2019, or anytime thereafter" (NYSCEF Doc. 103 at 1110-t 1). Further, in its Amended Response to Plaintiffs Notice to Admit, NYC One admits to ownership of 306 West 40m Street, New York, New York adjacent to the sidewalk "...-hen~ Plainti f'r ~ accident allegedly occurred (NYSCEF D0c. 116 ut p. 7). As there JS no qucstjon in the record that 308 Rc:alty di<l not own, repair. control, maintain or make any use of'the location v.-"hcrc Plaintiffs accident allegedly occurred. 308 RcaJty has satisfied its primafacie burden of establishing the absence of' uny material issues of fact In declining w oppose 308 ReaJty)s summary judgment motion, Plaintiff has failed 10 produce evidentiary proof, in admissible fom1, suffic:ienl lo establish 1he existence of material issues of fact \Vhieh require a triul. As such, 308 Rcahy' s motion is granted. and Pla1ntitT':'i claims and aJl cross-clajms against 308 Really ar~ Jismis.'jed. C. Plaintiffs Cross-Motion_ for Summary Judgment against Defern.hmt :-,JYC One Holding LLC is l\ot Prcmmure Pursuant to err .R 3212(.0, a motion for summary judgment may be denied when~ il '·appt:ur[s] from affidavits submitted in opposition to lhc m0Li0n that facts essential to justify opposition may exist but ca.nnol lhen be suited ... \"/hilc the Appellate Division has held thaL '"a motion for summary judgment should be denied as premature where lhe movant has yet to be deposed)) (Fi{fUeroa v City of New York, 126 AD3d 438,439 [1st Dept 2015 j). it is well sculcd that "[a] grant of summary judgment cannot be avoided by a claimed need for discovery unless some cvidcntiary ha.sis is offered to suggest that discovery may lead to relevant evidence': (Bailey v A/ew York City Transit Auth., 270 /\D2d 156 p-,t Dept 2000]). Here, NYC One argues that PJaintiff's cross-motion "•is premature as dcposjtions have not taken plac~ and Plaintiff foiled to address the vast comparalive negligence she has for the 159044/2019 MURPHY, LINDA vs. CITY 01'= NEW VOR~ Moli on r-.lo. 004 [* 4] P.age 4 of 7 4 of 7 INDEX NO. 159044/2019 RECEIVED NYSCEF: 11/22/2023 NYSCEF DOC. NO. 137 happening of this accident'" (NYSCEf Doc. 1J 1 at ii 24). In an effort to meet its burden or showing some evidentiary· ba~is to suggest that discovery may lead to relevant evidence. NYC One further asserts that depositions and post~deposition demands will lead lo relevant evidence in this matter lo establish unequivocally that Plaintiff was comparatively negligent (NYCEr Doc:. 131 at •· 25 ). However, the Court of Appcab has held that !'to obtain partial summary judgment on defendant's liability Ia plainli HJ docs not have to demonstrate the absence of his own comparative fault" (Carlos R.odri""""rLJez, Appetlan(, v City o_(}./ew York, Re.,1"J<mdent., 31 NY3d 312, 323 [1st lJcpt 2018 J). The Court of Appeals ha:'i t·urther he] d a plaintiff may he entitled io summal)' judgment on the issue of a defendant's liability "even assuming there is an issllC of faet regarding his comparative faulf' (Id). Accordingly, even were the Court to accept KYC On~•s argument that further depositions are ne~ded to address the issue of Plainli Ir s comparati vc negligence~ any comparative negligence on Plaintiff'~ part would have no bearing on the issue of liability. As such, in claiming. thm Plainliff s summary judgment mol.inn is premature, NYC One has failed to meet its hurden of shov..ing an cvidcntiary hasis to suggest that discovery may lead to relevant evidence. D. Plai_µtiff's Cross-Motion for Smnq1_a_fY Judgment against Defend.wit ~_ye One Holding I .LC is Deni-;g IL is v,.:ell settled that ··ttJo subject a property owner to liability for a dangerous condition on its premises, a plaintiff must demonstrate that the ov,,ner created, or had actual or constructive notice of the dangerou~ rnndition that precipitated the injury'' (Ceron v Yeshiva Univ. 126 AD3d 6.10, 631 [1st Dept 2015]). 'While it is true that a lando\.vner's duty to maintain their property in a safe condition •·includes pmtecling against or warning or dangerous conditions on the premise" (PilusfJ v Rell At!. Corp., 305 AD2d 68, 70 [1st Depl 2003]), ·"a landowner has no duty to warn 159{144/2019 MURPHY. LINDA vs. CITY OF I\IEW YOR~ Motion No. OM [* 5] Page 5 of 1 5 of 7 INDEX NO. 159044/2019 · NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 11/22/2023 ofan open and obvious danger': (J'agle vJakvb, 97 NY2d 165 12001]). The Appellate Division ha~ held that "fa J condition thal is visible to one reasonably using his or her senses is not inhcrcnny dangerous" (!.anger v 116 f.exin~ton Ave .. fm: __ 92 AD3d 597 [1st De-pt 2012]). Further, it is weU settkd thaL ''whether a dangerous or dckctiv~ condition exists on the property of another so as to create liability dcpl!rnb on the peculiar focts and eircum~tanccs of each case and is gcnerall)· ~ questjon of focl for the jury" ( Trinccrc \! Cmmly (~(Suffolk, 90 NY2d 976, 977 fl 997J). Here, Plaintiff contends that NYC One is ~iful!y Jiable for Plaintjff' s inciJenl and resulting injuries because it caused and created a dangerous condition, had knowledge that the condition was dangerous, took inadequate measures to warn and protect pedestrians of the dungerous condition, and aJlowcd the d(mgerous condition to exist for a period of years upon the sidewalk." (NYSCLF Doc. 113 at ~i 9). In opposition, ~YC One proffers the Expert Report of Dr. Vasiliki Kefala, Ph.D, a senior Bio-Mechanical Engineer, which opines that Plaintiff "should have observed} pcrcci ved, and reacted to fthc J condition on the sidewalk and been able lo avoid a fa] I related to interacting with the elevated plyv.:ood .surface on the sidewalk" (NYSCEF Voe. [ 32 at p. 10). Further, Dr. Kdala's report asserts that ·'[t]hc plywood surface on the ground cellar door would have been visible to an attentive pedestrian" ( hi.). NYC One has presented material issues of fact ris to whether the conditions giving rise to Pl ai 11 ti ff' s accident \.voul d be visible w one rcaso nab Iy using their senses, therefore raising further questions of fact regarding whether the condition that allegedly caused Plaintiffs accident ,vas dangerous. As the question of whether or not a dangerous condition exists is 15904412019- MURPHY, LINDA vs. CrT'T" OF HEW YORK M otron No. il 1)4 [* 6] l'>~ge 6 of 7 6 of 7 INDEX NO. 159044/2019 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 11/22/2023 generally a question of facl ror the jury, Plainliffs cross-motion ror su111mary judgment is denie.d. AccordingJy. it i. hereby, ORDERED that Defendant 308 Realty Holding TJ ,C's motion for summary j udgment dismissing Plaintiff Linda Murphy's claims and all cross~claims against 308 Realty Holding LLC. is gntnted; and it is further ORDER .D lhal Plaintiff I inda Murphy's cros -motion for summary j udgment against LJcfc:ndanl NYC One LLC on the issue of Jiability is denied; and it is further ORDERED that within ten (10 day · of entry, counsel for Defendant 308 Really Holding LLC shal l serve a copy of th is Decision and Order, \.Vilh notice of entry. on aU panies wo thi. c· se~ and it i. further ORDERED that on or before February l 3, 2024, the remaining parties in the case shall su.bmit a propost!d. tatus Confcrenct! Order via e-mail to SFC -Part33-Cl rk(amvcourts.g,ov. If the parties are unable to agrt!e to a proposed Status Conference Order, the parties arc directed to appear for an in~p r~on status conference on February 14. 2024 at 9:30 a.m. in Room 442. 60 Cenlre Street, cv,• York, ew York; and it is further ORDERED that the Clerk Mthe Coult is directed Lo enter judgment ac Lo rdingly. This constitutes the Deci- ion and Ordn ufthe Court. 11120/2023 DATE C:i-tECKONE: CASE OISPOS!=O GRMTED IJ,E Nl lm f\10.N-FIIIIAL DISPOSITION x GRAN'l'£0 IN PA.RT Af' PL.ICA TION: SETTLE ORCl::R SUBMIT ORDE.R CHECK IF A.PPRO PRIA TE : INCLUDES TRANS FERIR EASSIGN FI0UCIA.RY APPOINTMENT 159044f20HI MURPHY , LINDA~ . CITY OF NEWYOR~ Motion No. ,004 [* 7] ~ OTHER ftcfERENCE Page 7 of 7 7 of 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.