Opinion
Index Number 706609 2018
01-22-2021
ANNETTE KIRLEW JONES Plaintiff(s) v. BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., JAMAICA AVENUE ASSETS LLC, JAMAICA AVENUE REALTY ASSOCIATES LLC, CBRE, INC., BRIGHTVIEW ENTERPRISE SOLUTIONS, LLC and TARR'S SNOW REMOVAL, LLC. Defendant(s)
NYSCEF DOC. NO. 248 Short Form Order Present: HONORABLE MARGUERITE A. GRAYS Justice Motion Date August 18, 2020 Motion Ca. No. Motion Seq. No. 8
The following papers numbered EF206 - EF247 read on this motion by defendants Bank of America Corporation, Bank of America, N.A., Jamaica Avenue Assets LLC, Jamaica Avenue Realty Associates, LLC, CBRE, Inc., Brightview Enterprise Solutions, LLC, and Tarr's Snow Removal, LLC (collectively, defendants) for an Order pursuant to CPLR §3212, granting defendants summary judgment dismissing the complaint.
| PapersNumbered | |
|---|---|
| Notice of Motion - Affirmation - Exhibits | EF206-EF228 |
| Answering Affirmation - Exhibits | EF229-EF246 |
| Reply Affirmation | EF247 |
Upon the foregoing papers, it is ordered that defendants' motion is determined as follows:
On April 30, 2018, plaintiff alleges she was walking on the public sidewalk in front of defendants', Bank of America (collectively, BoA), branch at 164-22 Jamaica Avenue, when she slipped and fell due to a "one foot high mound of snow" located on the sidewalk, causing her to sustain injuries. It had snowed approximately eleven inches the previous day. Plaintiff claimed the sidewalk had been cleared, with snow piled up near the curb, but there was still some "snow and ice" in spots. Plaintiff did not take photographs of the sidewalk on that day, but requested, and received, surveillance video taken from BoAs' lobby camera. Plaintiff alleges that defendants were negligent in, among other things, creating the hazardous and dangerous snow mound condition, or in failing to correct said condition, which negligence caused her injuries.
Defendants, Jamaica Avenue Assets, LLC, and Jamaica Avenue Realty Associates, LLC (collectively, Jamaica Avenue defendants), were the owners of the subject property, which was leased to the BoA defendants. BoA contracted with defendant, CBRE, Inc. (CBRE) to manage the location, including the responsibility for snow removal. CBRE contracted with defendant, Brightview Enterprise Solutions, LLC (Brightview) to handle the snow removal, and Brightview sub-contracted with defendant, Tarr's Snow Removal, LLC (Tarr's) to perform the snow removal. All defendants move for summary judgment dismissing plaintiff's complaint. Plaintiff opposes the motion.
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; see Schmitt v Medford Kidney Center, 121 AD3d 1088 [2014]; Zapata v Buitriago, 107 AD3d 977 [2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]). On defendants' motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving plaintiff (see Monroy v Lexington Operating Partners, LLC, 179 AD3d 1053 [2020]; Rivera v Town of Wappinger, 164 AD3d 932 [2018]: Boulos v Lerner-Harrington, 124 AD3d 709 [2015]). Credibility issues regarding the circumstances of the subject transactions require resolution by the trier of fact (see Bravo v Vargas, 113 AD3d 579 [2014]; Martin v Cartledge, 102 AD3d 841 [2013]), and the denial of summary judgment.
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 AD3d 683, 685 [2009]; Santiago v Joyce, 127 AD3d 954 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is 'arguable' [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see also, Rotuba Extruders v.Ceppos, 46 NY2d 223 [1978]; Andre v. Pomeroy, 35 NY2d 361 [1974]; Stukas v. Streiter, 83 AD3d 18 [2011]; Dykeman v. Heht, 52 AD3d 767 [2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 AD3d 927 [2014]), citing Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2002]; see Charlery v Allied Transit Corp., 163 AD3 914 [2018]; Chimbo v Bolivar, 142 AD3d 944 [2016]; Bravo v Vargas, 113 AD3d 579 [2014])). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 NY2d 851 [1985]).
Initially, all defendants contend that summary judgment is warranted as plaintiff's actions were the sole proximate cause of her injuries, as she testified that she had "both feet" on a "mound of snow," estimated as being "one foot high," when she fell. She also asserted that the mound of snow "could have been" where the snow had been piled up near the curb, and there was a shoveled path on the sidewalk. While "a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" (Ash v City of New York, 109 AD3d 854, 855 [2013]; see Croshier v New Horizons Resources, Inc., 185 AD3d 780 [2020]; Rivera v Waterview Towers, Inc., 181 AD3d 844 [2020]; Mallen v Dekalb Corp., 181 AD3d 669 [2020]), respondents herein have failed to do so. In the case at bar, plaintiff has identified the alleged cause of her fall, i.e., the "mound of snow," and has identified, on a photograph, the locus of the accident. Although such photograph did not depict the actual "mound of snow," such testimony affords an issue of credibility for the trier of fact at a trial of this action.
"There can be more than one proximate cause of an accident, and generally it is for the trier of fact to determine the issue of proximate cause" (M.M.T. v Relyea, 177 AD3d 1013, 1013 [2019]; see Tornabene v Seickel, 186 AD3d 645 [2020]; A.Y. v Broadway Mall Partners, L.P., 174 AD3d 952 [2019] ). Judgment as a matter of law may result only where the cause of action is undisputed, or where the facts can give rise to but a single conclusion (see Howard v Poseidon Pools, Inc., 72 NY2d 972 [1988]; Saporito-Elliott v United Skates of Am., Inc., 180 AD3d 830 [2020]). In the case at bar, contrary to defendants' contention, considering all of the photographs and deposition testimony proffered in support of this motion, and "viewing the evidence in the light most favorable to the plaintiff as the nonmovant ... the evidence relied upon by the defendants in support of their motion ... failed to establish the defendants' prima facie entitlement to judgment as a matter of law" (citations omitted) (Burrus v Douglaston Realty Mgt. Corp., 175 AD3d 461, 461-462 [2019]; see Monroy v Lexington Operating Partners, LLC, 179 AD3d 1053 [2020]; Rivera v Town of Wappinger, 164 AD3d 932 [2018]: Chojnacki v Old Westbury Gardens, Inc., 152 AD3d 645 [2017]).
Further, defendants contend that they should be granted judgment because the condition alleged to have caused plaintiff's injuries was "open, obvious, and not inherently dangerous," "A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" (Genefar v Great Neck Park District, 156 AD3d 762, 763 [2017], quoting Groom v Village of Sea Cliff, 50 AD3d 1094, 1094 [2008]). A determination of whether a condition is open and obvious is fact specific, and usually a question for the trier of fact (see Shermazanova v Amerihealth Med., P.C., 173 AD3d 796 [2019]; Gallardo v Gilbert, 153 AD3d 782 [2017]).
However, a property owner has no duty to protect against an open and obvious condition if, as a matter of law, the condition is not inherently dangerous (see Graffino v City of New York, 162 AD3d 990 [2018]; Espinosa v Fairfield Props. Group, LLC, 160 AD3d 927 [2018]; Genefar v Great Neck Park District, 156 AD3d 762). "The determination of ... whether a condition is not inherently dangerous ... depends on the totality of the specific facts of each case" (Russo v Home Goods, Inc., 119 AD3d 924, 925 [2014]; see Graffino v City of New York, 162 AD3d 990), and is "usually a jury question" (Tagle v Jakob, 97 NY2d 165, 169 [2001]). Here, defendants have failed to establish, prima facie, that the alleged causal, dangerous condition was open and notorious, nor did they show that it was not inherently dangerous, thereby failing to demonstrate entitlement to dismissal of the case on the basis of an "open and obvious condition" (see Parent v City of New York, 144 AD3d 1117 [2016]). Furthermore, "[p]roof that a dangerous condition is open and obvious does not preclude a finding of liability against the owner for failure to maintain property in a safe condition" (Cram v Keller, 2018 NY Slip Op. 08007 [2018], quoting Russo v Home Goods, Inc., 119 AD3d 924, at 925 ["...a hazard that is open and obvious 'may be rendered a trap for the unwary ... The determination of '[w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances'"]). Therefore, this ground for the granting of summary judgment is denied.
"A finding of negligence may be based only upon the breach of a duty. If, in connection with the acts complained of, the defendant owes no duty, the action must fall" (Darby v Compagnie Nat'l. Air France, 96 NY2d 343, 347 [2001]; see Plainview Props. SPE, LLC v County of Nassau, 181 AD3d 731 [2020]; Pinto v Walt Whitman Mall, LLC, 175 AD3d 541 [2019]; Federico v Defoe Corp., 138 AD3d 682 [2016]; Abrams v Bute, 138 AD3d 179 [2016]). As such, a threshold question in tort cases arises as to whether the alleged tortfeasor owed a duty of care to the injured plaintiff (see Espinal v Melville Snow Contractors, 98 NY2d 136; Abbott v Johnson, 152 AD3d 730 [2017]).
The Jamaica Avenue defendants were the owners of the subject property, and BoA was a tenant. As previously stated, "[a] landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" (Genefar v Great Neck Park District, 156 AD3d 762, 763 [2017], quoting Groom v Village of Sea Cliff, 50 AD3d 1094, 1094 [2008]; see Livingston v Better Med. Health, P.C., 149 AD3d 1061 [2017]). Additionally, a "tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition" (Slavin v Village of Sleepy Hollow, 150 AD3d 924, 925 [2017], quoting Farrar v Teicholz, 173 AD2d 674, 676 [1991]; see Mule v Invite Health at New Hyde Park, Inc., 180 AD3d 693 [2020]; Livingston v Better Med. Health, P.C., 149 AD3d 1061). "Imposition of liability for a dangerous condition on property, must be predicated upon occupancy, ownership, control or special use of that premises" (Velez v Captain Luna's Marina, 74 AD3d 1191, 1192 [2010]; see Sobel v City of New York, 120 AD3d 485 [2014]; LaGuarina v. Metropolitan Transit Authority, 109 AD3d 793 [2013]), and a party "cannot be held liable where none of those predicates exist" (Slavin v Village of Sleepy Hollow, 150 AD3d 924, 925 [2017]; see Zebzda v Hudson Street, LLC, 156 AD3d 851 [2017]). In the case at bar, such necessary predicates exist.
Under the common law, in order to establish prima facie entitlement to judgment as a matter of law in a premises liability action, a defendant-property owner, or a party in possession or control of real property, must demonstrate that it maintained the premises in a reasonably safe condition, and that it neither created a dangerous or defective condition on the property, nor had actual or constructive notice of such dangerous or defective condition for a sufficient length of time to discover and remedy it (see Bishop v Pennsylvania Ave. Mgt., LLC, 183 AD3d 685 [2d Dept 2020]; Chang v Marmon Enters., Inc., 172 AD3d 678 [2019];Casiano v St. Mary's Church, 135 AD3d 685 [2016]). A defendant has constructive notice of a dangerous or defective condition when such condition "is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected" (Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629, 629 [2009]; see Gordon v American Museum of Natural Hist., 67 NY2d 836 [1986]; Croshier v New Horizons Resources, Inc., 185 AD3d 780 [2020]).
While the owner Jamaica Avenue defendants have presented evidence of their lack of negligence in creating the subject alleged dangerous condition herein, they have failed to demonstrate "in the absence of any negligence, that (they did not have) the authority to direct, supervise, and control the work giving rise to the injury" (Poalacin v Mall Properties, Inc., 155 AD3d 900, 909 [2017]; see McDonnell v Sandaro Realty, Inc., 165 ASD3d 1090 [2018]). Consequently, these movants have failed to demonstrate "the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 NY2d 320), in this regard.
However, in the case at bar, the duty is statutory. Pursuant to the Administrative Code of the City of New York, §7-210, property owners, not tenants, have a non-delegable duty to maintain abutting sidewalks in reasonably safe condition (see Martinez v New York Metro District of the United Pentecostal Church International, Inc., - AD3d -, 2020 NY Slip Op. 06251 [2020]; Zborovskaya v STP Roosevelt, LLC, 175 AD3d 1594 [2019]). A property owner will not be relieved of liable to a third party for injuries sustained at the demised premises, except in the instance of a lease to a tenant that is so comprehensive and exclusive, as to sidewalk maintenance, as to entirely displace the owner's duty to maintain the sidewalk (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]), and the property owner's duty, and liability for injuries caused by negligent maintenance, apply with full force, notwithstanding the tenant's agreement to keep the premises free of snow and ice (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167 [2019]).
The Jamaica Avenue defendants admit that they are "abutting landowners" under § 7-210, but claim that the property was in "reasonably safe condition" at the time of the accident, and that any negligence that might be found to be attributable to them was not a proximate cause of plaintiff's injuries, as plaintiff's conduct was the sole, proximate cause of her accident. The Court has determined, above, that the allegation of plaintiff's actions being the sole proximate cause of her injuries will be left for a jury to decide. Likewise, since § 7-210 does not impose strict liability on a property owner (see Michalska v Coney Is. Site 1824 Houses, Inc., 155 AD3d 1024 [2017]), the question of whether the property was kept in a "reasonably safe condition," is one for determination by a trier of the fact. Further, as in the common law, defendants would have to demonstrate that they did not create the dangerous condition or make the condition worse by their conduct (see Michalska v Coney Is. Site Houses, Inc., 155 AD3d 1024). "[W]hether a dangerous or defective condition exists ... is generally a question of fact for the jury" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). Here, defendants' own submissions raise a genuine issue of material fact as to whether the snow removal efforts created or exacerbated the snow/ice conditions on the subject sidewalk which created a dangerous condition that allegedly caused plaintiff's injuries (see Gibbs v Husain, 184 AD3d 809 [2020]). Consequently, this branch of the Jamaica Avenue defendants' motion is also denied.
Defendants BoA move to dismiss the complaint as against them, contending that they owed no duty to plaintiff to maintain the sidewalk. As a finding of negligence must initially be based upon a breach of duty of care owed to the injured plaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136; Federico v Defoe Corp., 138 AD3d 682 ), any duty BoA would have had with respect to the subject sidewalk would have arisen from the lease agreement with the Jamaica Avenue defendants. The provisions of a lease obligating a tenant to repair or maintain a sidewalk, do not, alone, impose a duty to third-persons (see Maltese v Metropolitan Transp. Auth., 179 AD3d 780 [2020]; Martin v Rizzatti, 142 AD3d 591 [2016]). While, generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third person (see Church v Callanan Indus., 99 NY2d 104 [2002]; Maltese v Metropolitan Transp. Auth., 179 AD3d 780; Rodriguez v County of Westchester, 138 AD3d 713 [2016]), there are three exceptions to this general rule: (1) where a contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see Espinal v Melville Snow Contrs., 98 NY2d at 140; Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007]; Coakley v Regal Cinemas, Inc., - AD3d -, 2020 NY Slip Op. 06490 [2020]; Randazzo v Consolidated Edison of N.Y., Inc.,, 177 AD3d 796 [2019]; Reeves v Welcome Parking, Ltd. Liab. Co., 175 AD3d 633 [2019]).
In the case at bar, the BoA defendants contend they are not the owners of the subject property, nor did they create the alleged condition. Further, although they did occupy the property, they allege they did not make a special use of the area where the accident occurred, as they did not exercise "exclusive possession or control" over that area (O'Toole v City of Yonkers, 107 AD3d 866, 867 [2013]). The use of the sidewalk to enter the business does not amount to a "special use" (see Berkowitz v Spring Creek, Inc., 56 AD3d 594 [2008]; Sampino v Crescent Associates, Inc., [2006]). Further, the submissions in support of their motion included the subject lease between BoA and the owners, which states, in relevant part at Paragraph 30, that the tenant shall clean the sidewalks, including "snow removal," adjacent to the property, "to the reasonable satisfaction of the Owner." Thereby, defendants have demonstrated, prima facie, that the lease was not "so comprehensive regarding sidewalk maintenance as to entirely displace the landlord's duty to maintain the sidewalk," with their duty (Yanovskiy v Tim's Diagnostics Auto Ctr., 170 AD3d 1089, 1090 [2019]; see Leitch-Henry v Doe Fund, Inc., 179 AD3d 655 [2020]; Rivera v City of New York, 173 AD3d 790 [2019]). However, BoA have failed to adequately address the issue of whether they exercised reasonable care in their snow-clearing duties, and, if they did not, whether such negligent conduct "caused" the condition which allegedly resulted in plaintiff's accident. As such, an exception to Espinal arguably exists, possibly subjecting BoA to liability to the plaintiff herein.
Defendants' claims that they are entitled to judgment dismissing the complaint because plaintiff has failed to include language denoting any of the Espinal exceptions in the pleadings herein, are without merit. While it is true that "where the pleadings do not allege facts which would establish the applicability of any of the Espinal exceptions, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law" (Arnone v Morton's of Chicago/Great Neck, LLC, 183 AD3d 862, 862 [2020]; see Cortes v City of New York, - AD3d -, 2020 NY Slip Op. 06240 [2020]; Burger v Brickman Group, Ltd., 174 AD3d 568 [2019], plaintiff has included sufficient language in her Complaint, and Bill of Particulars, to satisfy the "launches a force or instrument of harm" exception as against defendants. Additionally, defendants are shielded from the onus of negating those Espinal exceptions not pleaded or set forth by plaintiff, only with regard to " a part of its prima facie showing" (Glover v John Tyler Enters., Inc., 123 AD3d 882, 882 [2014]). Thus, while the prima facie entitlement to summary judgment is "governed by the allegations of liability made by the plaintiff in the pleadings" (Murphy v Brown, 178 AD3d 832, 833, [2019], quoting Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2010]; see Hagan v City of New York, 166 AD3d 590 [2018]), this resulted in a mere shifting of the burden "to plaintiff to come forward with evidence sufficient to raise a triable issue of fact as to the applicability of one or more of the three Espinal exceptions" (Foster v Herbert Slepoy Corp., 76 AD3d at 214; see Laronga v Atlas-Suffolk Corp., 161 AD3d 893 [2018]). Here, plaintiff has so opposed defendants' motions on Espinal grounds, raising such triable issue of fact.
As the totality of the submitted evidence herein has resulted in defendants' having failed to resolve all factual issues as a matter of law, and conclusively dispose of plaintiff's claims (see Sciadone v Stepping Stones Associates, L.P., 148 AD3d 953 [2017]; Town of Huntington v Long Island Power Authority, 130 AD3d 1013 [2015]), defendants are not entitled to summary judgment dismissing the complaint, and their motion is denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Poulin v Ultimate Homes, Inc., 166 AD3d 667 [2018]; Rokach v Taback, 148 AD3d 1195 [2017]).
Defendants' remaining arguments and contentions either are without merit or need not be addressed in light of the foregoing determinations.
Accordingly, defendants' motion, seeking summary judgment dismissing the complaint, is denied in its entirety. Dated: 1/22/21
/s/_________
MARGUERITE A. GRAYS
J.S.C.