Opinion
Index No. 152775/2020 Motion Seq. No. 003 004
04-26-2024
SHEILA ROTHMAN, Plaintiff, v. 40 W 25 LLC, THE KAUFMAN ORGANIZATION, A.B. IMPORT EXPORT CO. D/B/A SHOWPLACE ESTATE BUYERS, Defendants.
Unpublished Opinion
PART 58
MOTION DATE 06/22/2023
DECISION + ORDER ON MOTION
HON. DAVID B. COHEN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 117, 119, 120, 121, 122, 123, 124, 125, 126, 135 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 118, 127, 128, 129, 130, 131, 132, 133, 134, 136 were read on this motion to/for _JUDGMENT - SUMMARY.
In this personal injury action, motion sequence nos. 003 and 004 are consolidated for disposition. In motion sequence no. 003, defendants 40 W 25 LLC and The Kaufman Organization (Owner defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint and the cross-claims asserted against them. In motion sequence no. 004, third-party defendant Unitech Design, Inc., d/b/a Space Sign (Unitech) moves, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint and the third-party complaint as against it, and all other claims on the ground that there is no material issue of fact regarding its liability. Plaintiff opposes both motions.
I. FACTUAL BACKGROUND
Plaintiff alleges that, on January 19, 2020, she tripped on one of the support poles of a canopy located at 40 West 25th Street in Manhattan (Premises), and then fell, sustaining personal injuries. The canopy was designed and installed by third-party defendant Unitech. Defendant A.B. Import-Export Co. d/b/a Showplace Estate Buyers (A.B.) was a tenant of a portion of the building located at the Premises (Building). Plaintiff alleges that A.B. "erected, maintained and/or owned the canopy appurtenant and/or attached it to" the Premises (NYSCEF 1).
On March 15, 2020, plaintiff commenced this action in which she alleges that, on the day of the incident, as she was stepping toward the Premises, "she was caused to trip and fell on a metal bar protruding at an angle from the [canopy] of the awning in front of the premises" (id.).
Owner defendants served an answer in which they admitted that 40 W 25 LLC owned the Premises (Owner), and that The Kaufman Organization (Kaufman) is the managing agent (NYSCEF 2).
On January 26, 2021, plaintiff filed an amended complaint (NYSCEF 11), and thereafter, A.B. answered the amended complaint (NYSCEF 14), and then commenced a third-party action impleading Unitech (NYSCEF 18). On March 24, 2021, Unitech filed its answer (NYSCEF 27), and plaintiff then served a verified Bill of Particulars on Unitech (NYSCEF 105).
By decision dated February 13, 2024 (NYSCEF 137), A.B.'s motion for summary judgment was denied, as there remained issues of fact as to whether A.B. had made special use of the canopy, and whether the canopy could be considered an open and obvious danger.
The salient facts are set forth in detail in this Court's February 13,2024 decision and order.
II. CONCLUSIONS OF LAW
"'[T]he proponent of a summaly 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 N.Y.2d 1062, 1063 [1993] [citation omitted]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). The burden is a heavy one: the facts must be viewed in the light most favorable to the non-moving party and every available inference must be drawn in the non-moving party's favor (Sherman v New York State Thruway Auth., 27 N.Y.3d 1019, 1021 [2016]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad, 64 N.Y.2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 N.Y.2d 982 [1993]).
The party opposing summary judgment has the burden of presenting evidentiary facts sufficient to raise triable issues of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 A.D.3d 224, 226 [1st Dept 2006]). Summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]), and "is inappropriate in any case where there are material issues of fact in dispute or where more than one conclusion may be drawn from the established facts" (Friends of Thayer Lake LLC v Brown, 27 N.Y.3d 1039, 1043 [2016]).
To establish a prima facie claim for negligence under New York law, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66 N.Y.2d 1026, 1027 [1985]; accord J.E. v Beth Israel Hosp., 295 A.D.2d 281, 283 [1st Dept 2002]; Wayburn v Madison Land Ltd. Partnership, 282 A.D.2d 301, 302 [1st Dept 2001]). "Because a finding of negligence must be based on the breach of a duty, a threshold question in torts cases is whether the alleged tortfeasor owed a duty of care to the injured party" (Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 138 [2002]). Absent a duty of care to the person injured, a party cannot be held liable in negligence (Palsgraf v Long Is. R.R. Co., 248 NY 339, 341-342 [1928]).
A, Owner defendants' motion
"Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises" (Gibbs v Port Auth. of N.Y., 17 A.D.3d 252, 254 [1st Dept 2005]; accord Adriana G. v Kipp Wash. Hgts. Middle Sch., 165 A.D.3d 469, 469 [1st Dept 2018]). Absent evidence of ownership, occupancy, control or special use of property, a party cannot be held liable for injury caused by the defective or dangerous condition of the property (Reid v City of New York, 168 A.D.3d 447 [1st Dept 2019]).
In support of their motion for summary judgment, Owner defendants argue that they owed no duty of care to plaintiff, because "[A.B.] clearly had responsibility over the canopy, which it is undisputed they bought, installed, managed and maintained. Other than giving permission to install such a canopy, the building had no other involvement with this structure, including the support pole, a structure that there was no evidence of any complaints about" (NYSCEF 78).
Owner defendants demonstrate that they had no duty to maintain the canopy by lease or agreement, they did not create the alleged dangerous condition, and they had no actual or constructive notice of it, and, thus, they are entitled to dismissal of plaintiff s claims against them (see e.g., Madonia v City of NY, 164 A.D.3d 1320 [2d Dept 2018] [owners entitled to summary dismissal as object on which plaintiff tripped on sidewalk was not created by them, was not result of negligent repair, and they did not make special use of area]).
In light of this result, Owner defendants' other arguments in favor of dismissal are not considered.
B. Unitech's motion
The court record does not reflect that plaintiff has asserted a direct claim against Unitech, and thus that portion of Unitech's motion seeking dismissal of plaintiffs claim(s) against it is denied as academic.
Moreover, as third-party plaintiff A.B. did not oppose dismissal of the third-party action, it is dismissed (see Sancino v Metro. Tr. Auth., 184 A.D.3d 534 [1st Dept 2020] [plaintiff abandoned claim by failing to oppose motion seeking dismissal of claim]).
Accordingly, it is hereby
ORDERED, the motion for summary judgment by defendants 40 W 25 LLC and The Kaufman Organization (motion sequence no. 003) is granted, and plaintiffs claims and any cross claims asserted against them are severed and dismissed, and the clerk is directed to enter judgment accordingly; it is further
ORDERED, the motion for summary judgment by third-party defendant Unitech Design, Inc., d/b/a Space Sign (motion sequence no. 004) is granted to the extent of severing and dismissing the third-party action, and the clerk is directed to enter judgment accordingly; and it is further
ORDERED, that the remaining parties appear for a settlement/trial scheduling conference before this Court on August 7, 2024, at 11:00 am, at 71 Thomas Street, Room 305, New York, New York.