Opinion
25584/2015E
04-27-2021
Edwin RAMOS, Plaintiff, v. HINDE DEVELOPMENT CORP. LLC and Puerto Rican Family Institute, Inc., Defendants.
In this trip and fall action, Puerto Rican Family Institute, Inc. (hereinafter "PRFI") moves for summary judgment pursuant to CPLR 3212 seeking dismissal of the plaintiff's complaint in its entirety. Plaintiff opposes the motion. Hinde Development Corp. LLC (hereinafter "Hinde") takes no position with regard to the plaintiff's claims against PRFI but seeks to have its cross-claim converted into a third-party claim in the event the Court dismissed the plaintiff's claims against PRFI.
Plaintiff claims he sustained personal injuries on December 24, 2014, when he tripped and fell on a sidewalk adjacent to a building located at 4123 Third Avenue in the Bronx. The building was owned by the defendant Hinde and leased to defendant PRFI. Plaintiff testified at his examination before trial (hereinafter "EBT") that he tripped because of a defect in the metal cellar doors on the sidewalk, claiming that one door was raised higher than the other, causing him to trip. A black and white photograph attached to plaintiff's opposition to the motion show what is described by plaintiff as a defect based on the visible gap between the two cellar doors. Plaintiff's testimony states the photo shows the condition of the cellar doors at the time of his accident.
Defendant PRFI maintains that it owed plaintiff no duty of care with respect to the maintenance of the cellar doors. Josephine Ovalles, the Director of the Mental Health clinic at PRFI testified at her EBT that large repairs such as sidewalks would be taken care of by Hinde. According to Ms. Ovalles, the cellar doors to the basement did not sag where they met in the middle prior to the alleged incident. In addition, Ms. Ovalles testified that the cellar doors were also not bent and there was no gap in the middle of the doors where they met. Moreover, Ms. Ovalles does not recall any problems with the cellar doors prior to the plaintiff's alleged fall, and does not know of anyone who has tripped over the cellar doors.
Larry Adler, President of Hinde, testified at his EBT that in the prior years he had been to the building only a handful of times. He acknowledged that Hinde is responsible for structural repairs of the premises and that there is a basement to the building, which is primarily accessed through a door in the back of the building, as the cellar doors are difficult to lift. According to Mr. Adler, he does not know the last time the cellar doors were inspected at the property prior to the plaintiff's accident. Mr. Adler further testified that no complaints were made by PRFI regarding the cellar doors.
The court's function on this motion for summary judgment is issue finding rather than issue determination ( Stillman v Twentieth Century Fox Film Corp. , 3 NY2d 395 [1957] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ).
"To sustain a cause of action alleging negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries. If there is no duty of care owed by the defendant to the plaintiff, there can be no breach and, consequently, no liability can be imposed upon the defendant" ( Mojica v Gannett Co. Inc. , 71 AD3d 963, 965 [2nd Dept 2010] ). Here, PRFI argues that it has no duty to plaintiff because the owner was responsible for the cellar doors.
The bulk of plaintiff's opposition to PRFI's motion is spent on their expert's opinion about improper maintenance of the cellar doors and whether PRFI had actual or constructive notice of their condition. While these arguments may have merit, or at least create a question of fact, as to the landlord, Hinde, they are wholly inapplicable to the tenant, PRFI.
Administrative Code § 7-210, combined with section 19-152, imposes a nondelegable duty upon property owners to maintain and repair the sidewalk abutting their property, and specifically imposes liability upon property owners for injuries resulting from a violation of the statute. (See Collado v Cruz , 81 AD3d 542 [1st Dept 2011] ; Stein v 1394 Hous. Corp. , 31 Misc 3d 1224[A], 2011 NY Slip Op 50813[U] [Sup Ct, NY County 2011].) Section 7-210 provides in pertinent part:
"a. It shall be the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition.
"b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk ... shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk."
The Administrative Code does not impose any duty on a commercial tenant, leaving that issue to the property owner and his contract (lease) with the tenant.
The 2003 amendments to this section of the Administrative Code transferred all liability for sidewalk defects from the city to the property owner, except owners of one-to-three-family homes that are either wholly or partially owner-occupied and used exclusively for residential purposes. Defendant Hinde is not exempt from this law, nor does it claim to be.
Section 7-210 thus shifts tort liability from the city to property owners who breach the requirements imposed by section 19-152. That is, the scope of a property owner's responsibility regarding the repair and maintenance of sidewalks imposed by section 7-210 "mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code section 19-152" (Rep of Comm on Transp at 4, Local Law Bill Jacket, Local Law No. 49 [2003] of City of NY). Therefore, section 7-210 must be read in conjunction with section 19-152.
With regard to the duty to repair, section 19-152 (a) provides that a property owner is required to repair "a defective sidewalk flag in front of or abutting such property," which "contain[s] a substantial defect." A substantial defect is defined to include many items which are enumerated, in pertinent part: "6. hardware defects which shall mean (i) hardware or other appurtenances not flush within 1/2" of the sidewalk surface or (ii) cellar doors that deflect greater than one inch when walked on, are not skid resistant or are otherwise in a dangerous or unsafe condition" (Administrative Code § 19-152 [a]).
The obligation to repair is thus not limited to defects in the actual masonry material of the sidewalk flag, but includes the hardware or other items installed in the sidewalk appurtenant to the owner's property for the use and benefit of the property owner. Cellar doors are therefore part of the property owner's obligation under section 7-210.
Thus, PRFI, who was undisputedly the commercial tenant of the property abutting the purported accident location, could only be liable to plaintiff if it actually created the condition that caused plaintiff's injuries (see Collado v Cruz , 81 AD3d 542 [2011] ; Otero v City of New York , 213 AD2d 339, 339-340 [1st Dept 1995] ; Williams v Azeem , 62 AD3d 988, 989 [2d Dept 2009].) There is no such claim here. Commercial tenants leasing all or part of the ground floor of a building have been held liable to third parties, for example, when they were found to have left the cellar doors open, and the plaintiff fell into the cellar ( Figueroa v Gueve , 66 AD3d 638 [2d Dept 2009] ; Epps v Marco Polo Caterers, LLC , 2008 NY Slip Op 33534[U] [Sup Ct, NY County 2008] ; Fobbs v Rahimzada , 39 AD3d 811 [2d Dept 2007].)
Further, the lease between Hinde and PRFI does not create a duty which runs from PRFI to the plaintiff, a pedestrian (see Collado v Cruz , 81 AD3d 542 [2011] ; Kennedy v C & C New Main St. Corp. , 269 AD2d 499, 500 [2d Dept 2000] ; DeCurtis v T.H. Assoc. , 241 AD2d 536, 537 [2d Dept 1997] ; Leslie v Shanik Bros. Inc. , 2012 NY Slip Op 31986[U] [Sup Ct, Queens County 2012].) Notably, Paragraph 11 of the lease, entitled "Maintenance of Sidewalks," only requires the tenant to keep the sidewalk clean and free of snow and ice. While the tenant's responsibilities under paragraph 3C of the lease, states: "the Tenant shall, at its own cost and expense, maintain the Premises in a safe and clean condition including but not limited to the maintenance of the roof; overhead doors, sprinkler systems, HV AC system, and other operating systems of the Premises," any duty owed was owed to the defendant Hinde as to the lease was between the defendants (see Bullock v. 1585 Realty Co. LLC, 2020 NY Misc. LEXIS 3076, 2020 NY Slip Op 32104(U)).
Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. (See Espinal v Melville Snow Contrs. , 98 NY2d 136, 138 [2002] ; Darby v Compagnie Natl. Air France, 96 NY2d 343, 347 [2001] ; Pulka v Edelman , 40 NY2d 781, 782 [1976] ; Izzo v Proto Constr. & Dev. Corp. , [2d Dept 2011].) Here, the issue is whether any such duty ran from PRFI to Ramos, the plaintiff, given that PRFI's lease was with Hinde. The existence and scope of a duty is a question of law. (See Palka v Servicemaster Mgt. Servs. Corp. , 83 NY2d 579, 585-586 [1994].) Under the applicable decisional law, a lease obligation, standing alone, will generally not give rise to tort liability in favor of a third party. (See Eaves Brooks Costume Co. v Y.B.H. Realty Corp. , 76 NY2d 220, 226-227 [1990].) As a matter of public policy, the state's courts have generally declined to impose liability to that degree. ( Espinal v Melville Snow Contrs. , 98 NY2d 136, 138-139 [2002].)
Thus, any failure of PRFI to repair any defect in the cellar doors, even if required under the lease, does not create a duty on their part to plaintiff. Therefore, since plaintiff failed to raise a triable issue of fact as to whether PRFI had any duty related to the cellar doors, defendant PRFI is entitled to summary judgment dismissing the complaint insofar as asserted against it by the plaintiff.
Moreover, as to any common-law indemnification claim, under New York law, "one who is liable for an injury vicariously or by imputation of law may seek common-law indemnification from a person primarily liable for the injury" ( Bd. Of Managers of Bay Club Condominium v Bay Club of Long beach, Inc. , 15 Misc 3d 282, 288 [Sup Ct, Nassau County, 2007] ; see also 23 NY Jur.2d Contribution, Indemnity and Subrogation section 90 ). "One whose liability is premised upon active negligence cannot obtain common law or implied indemnity" ( Bd. Of Managers of Bay Club Condominium, 15 Misc 3d at 289, citing D'Ambrosio v City of New York, 55 NY2d 454, 461 [1982] ). Because Hinde would be actively negligent for failing to maintain the sidewalk in accordance with the Administrative Code, it would not be entitled to common-law indemnification and its cross claim for common-law indemnification against PRFI is also dismissed.
Accordingly, it is hereby
ORDERED that the motion of PRFI for summary judgment is granted and the complaint and cross-claims are hereby severed and dismissed as against it, and the clerk is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.