Opinion
2014-06-10
Brittney KING, Plaintiff–Respondent, v. CITY BAY PLAZA, LLC, Defendant–Respondent–Appellant, Toys “R” Us–NY Limited Partnership, et al., Defendants–Appellants–Respondents.
McAndrew Conboy & Prisco LLP, Melville (Mary C. Azzaretto of counsel), for appellants-respondents. Kaufman Dolowich & Voluck, LLP, Woodbury (Kenneth B. Danielsen of counsel), for respondent-appellant.
McAndrew Conboy & Prisco LLP, Melville (Mary C. Azzaretto of counsel), for appellants-respondents. Kaufman Dolowich & Voluck, LLP, Woodbury (Kenneth B. Danielsen of counsel), for respondent-appellant.
Elliot Ifraimoff & Associates, P.C., Forest Hills (Dmitriy Shulman of counsel), for respondent.
, P.J., SWEENY, MOSKOWITZ, FREEDMAN, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 14, 2013, which denied the motion of defendants Toys “R” Us–NY Limited Partnership, Toys “R” Us–Delaware, Inc. and Toys “R” Us Property Company II, LLC's (collectively Toys R Us) for summary judgment dismissing the complaint and cross claims as against them and for summary judgment on their cross claims against codefendant City Bay Plaza, LLC (City Bay), and denied City Bay's motion for summary judgment dismissing the complaint and cross claims as against it, and for summary judgment on its cross claims against Toys R Us, unanimously affirmed, without costs.
In this action for personal injuries allegedly suffered by plaintiff when she tripped and fell on an uneven condition between two concrete slabs in the sidewalk as she was exiting the Toys R Us store located in the City Bay Plaza Shopping Center, the motion court properly denied the motions made by defendants, the landlord and commercial tenant, insofar as they sought dismissal of the complaint based on the purported trivial nature of the defect. The photographs submitted by plaintiff and landlord City Bay showing the subject condition and its location approximately a foot from the doorway, along with the disputed proof as to whether the height differential was 0.5 or 1.5 inches, raise an issue of fact as to whether the condition is actionable ( see Argenio v. Metropolitan Transp. Auth., 277 A.D.2d 165, 166, 716 N.Y.S.2d 657 [1st Dept.2000]; Herrera v. City of New York, 262 A.D.2d 120, 691 N.Y.S.2d 504 [1st Dept.1999] ). The photographs also raise a triable issue of fact as to constructive notice of the condition ( see Molinari v. 167 Hous. Corp., 103 A.D.3d 507, 507, 962 N.Y.S.2d 42 [1st Dept.2013]; Denyssenko v. Plaza Realty Servs., Inc., 8 A.D.3d 207, 208, 779 N.Y.S.2d 197 [1st Dept.2004] ).
The motion court also properly declined to grant defendants' motions for summary judgment dismissing the claims and cross claims insofar as asserted against each of them respectively. While both Toys “R” Us and City Bay both argue that they did not owe a duty to maintain the subject area under the lease, the evidence raises a triable issue of fact as to whether the area where plaintiff fell was part of the demised premises, for which tenant Toys R Us is responsible under the lease, or a common area, for which landlord City Bay is responsible. Given this fact issue, the defendants' motions for summary judgment on their respective cross claims for contractual indemnification were also properly denied ( see Pardo v. Bialystoker Ctr. & Bikur Cholim, Inc., 10 A.D.3d 298, 301–302, 781 N.Y.S.2d 339 [1st Dept.2004] ), as was City Bay's motion for summary judgment on its breach of contract cross claim ( see Amato v. Rock–McGraw, Inc., 297 A.D.2d 217, 219, 746 N.Y.S.2d 150 [1st Dept.2002] ), and Toys R Us's motion for summary judgment on its common law indemnification claim ( see Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411, 414, 914 N.Y.S.2d 130 [1st Dept.2011] ).
We have reviewed the remaining arguments, including the parties' challenges to consideration of certain evidence, and find them unavailing.