Opinion
Index No. 155579/2021 Motion Seq. No. 004
11-16-2023
RONALD TORRES, Plaintiff, v. 411-413 BROADWAY, LLC, CHAMPION PARKING 700 LLC Defendant.
Unpublished Opinion
MOTION DATE 01/04/2023
DECISION + ORDER ON MOTION
MARY V. ROSADO, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 004) 104, 105, 106. 107, 108. 109, 110, 111, 112, 113. 114, 115, 116, 117, 118, 142, 144, 149, 150, 151, 152. 153, 154. 155, 158, 159, 160 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents. Defendant Champion Parking 700 LLC's ("Champion") motion for summary' judgment dismissing Plaintiff Ronald Torres's ("Plaintiff) Complaint (NYSCEF Doc. I) and Defendant 411-413 Broadway, LLC's ("411") cross-claims, arc denied.
I. Background and Procedural History
Defendant 411 is the owner of the Property located at 411-413 Broadway, New York, NY (the "Property") (NYSCEF Doc. 105 at ¶21). Defendant Champion was hired "for the limited purpose of managing the parking lot" located at the Property (NYSCEF Doc. 106 at p 3).
The instant motion arose because Plaintiff allegedly sustained personal injuries on May 1, 2021, when Plaintiff tripped and fell "on a raised/broken missing portion of the sidewalk located adjacent/in front of 413 Broadway, [in the] County. City and State of New York" (NSYCEF Doc. 1 at ¶10). Plaintiff commenced the underlying action against Defendants Champion and 411 (collectively "Defendants") by filing a Summons and Complaint on June 10. 2021 (NYSCEF Doc. 1).
Plaintiffs Verified Bill of Particulars dated August 16, 2014 (NYSCEF Doc. 111), alleges, inter alia, that Champion "was negligent in the manner in which they owned, operated, designed, created, managed, maintained, contracted, subcontracted, supervis[ed], authorized use and controlled the sidewalk area" at the Premises (NYSCEF Doc. 105 at ¶8).
Defendant 411 joined the action by serving an Answer to Plaintiffs Verified Complaint on July 2, 2021 (NYSCEF Doc. 7). Defendant Champion served a Verified Answer with Cross Claims on July 13, 2021 (NYSCEF Doc. 8).
On January' 4, 2023, Defendant Champion brought the instant motion for an Order granting Champion summary judgment dismissing Plaintiff s complaint and all cross-claims on the grounds that, as a managing agent, "Champion did not have any statutory or common law duty to maintain the alleged defective] public sidewalk adjacent to the property" (NYSCEF Doc. 106), In support of its motion, Champion filed an Affirmation (NYSCEF Doc. 105) and Memorandum of Law (NYSCEF Doc. 106) on January 4, 2023. Plaintiff filed an Affirmation in Opposition to Champion's motion on February 27, 2023 (NYSCEF Doc. 149), Defendant 4.1 also filed an Affirmation in Opposition to Champion's motion on February 27, 2023 (NYSCEF Doc, 153). On March 2, 202.3 Champion filed Affirmations in Reply to Plaintiffs opposition (NYSCEF Doc. 158) and Defendant 411 's opposition (NYSCEF Doc, 159).
II. Discussion
A. Summary Judgment Standard
Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v Kesiani Const. Corp.. 18 N.Y.3d 499, 503 [2012]). The moving party's "burden is a heavy one and on a motion for summary' judgment, facts must be viewed in the light most favorable to the non-moving party." (Jacobsen v New York City Health and Hosps. Corp., 22 N.Y.3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial (sec e.g. Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980], Pemberton v New- York City Tr. Auth., 304 A.D.2d 340, 342 [1st Dept 2003]). Mere conclusions of law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North Am. v Victory Taxi Mgt., Inc., 1 N.Y.3d381 [2004]).
B. Material Issues of Fact Remain Regarding Champion's Duty of Care to Plaintiff
To sustain a cause of action for negligence, the plaintiff bears the burden of establishing "(1) the existence of a duty on defendant s part as to plaintiff; (2) a breach of [that] duty; and (3) injury to the plaintiff as a result thereof' (Akins v Glens Falls City School Dist. 53 N.Y.2d 325 [1981]). The existence and scope of an alleged tortfeasor's duty "is usually a legal, policy-laden declaration reserved for Judges to make" (Palka v. Servicemaster Management Services Corporation, 83 N.Y.2d 579 [1994]). The Court of Appeals has held that "a duty of reasonable care owed by a tortfeasor to an injured party is elemental to any recovery in negligence" (Id.).
In this case, Champion contends that because it did not "control, own or have a special use of the sidewalks adjacent to 411-413 Broadway, NY NY., .[it] did not have any statutory or common law duty to maintain the alleged defect public sidewalk adjacent to the property" (NYSCEF doc 106 at p. 1). Conversely. Plaintiff proffers that Champion "made special use of the aforementioned sidewalk by causing, allowing and/or permitting vehicles to use said sidewalk in order to gain access to the., .parking lot in furtherance of their business" (NY'SCEF Doc. 1 at ¶31). Defendant 411 further asserts that Champion "retained sufficient control of the accident location, including the adjacent abut ting sidewalk, by way of managing all aspects of (he accident location" (NYSCEF Doc, 153 at ¶24).
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 of real property abutting any sidewalk., .to maintain such sidewalk in a reasonably safe condition.. .Notwithstanding any other provision of law, the owner of real property abutting any sidewalk.. .shall be liable tor any injury' to property or personal injury'... proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." Further, the Appellate Division has held that this duty "is an affirmative, non-delegable obligation, and although a landlord can enter into agreements having the tenant perform the work of maintaining the sidewalk, the duty to plaintiff remains exclusively with the landlord" (Choudhry v Starbucks Corp. 213 A.D.3d 521 [1st Dept 2023]), Moreover, even where a tenant has an obligation to repair a sidewalk under a lease agreement, "that would not have imposed on [the tenant] a duty to plaintiff, a third party to the agreement"
In this case, it is not disputed that Defendant 411 was the owner of the Property (NYSCEF Doc. 153 at ¶3). However, Defendant 411 and Plaintiff contend that Champion may still be liable under the "Special Use" doctrine (NYSCEF Doc. 149 at ¶4). It is well settled that "[t]he principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury' to others" (Harnandez v Ortiz 165 A.D.3d 559 [1st Dept 2018J citing Balsam v Delma Eng 'g Corp. 139 A.D.2d 292 [1st Dept 1988]), The Court of Appeals has held that "[t]he special use exception is reserved for situations where a landowner whose properly abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use'' (Poirier v City of Schenectady, 85 N.Y.2d 310, 315 [1995]). Further, the First Department has held that "the use of a public sidewalk as a driveway and parking lot" may be considered a "special use'7 of that sidewalk (Infante v City of New York, 258 A.D.2d 333, 334 [1st Dept 1999]).
In this case. Plaintiff and Defendant 411 contend that Champion "derived a special benefit in using the public sidewalk to park vehicles in furtherance of their commercial business" (NYSCEF Doc. 149 at ¶ 5). Plaintiff contends that this claim is supported by "Google Earth photographs that show eight separate vehicles parked on the sidewalk" (NYSCEF Doc. 149 at ¶ 5). Accordingly, material issues of fact remain as Io whether Champion's use of the sidewalk was a special use (see eg., Karr v New York, 161 A.D.2d 449, 450 [1st Dept 1990] (holding that denial of the defendants' motion for summary judgment was proper when issues of fact exist regarding "the special use of the sidewalk, whether it was the cause of the defect in the sidewalk and whether that, in turn, caused the accident'').
Without clarity on the factual issue of Champions alleged special use of the sidewalk, a determination with respect to the proximate cause of Plaintiffs accident, at this stage, is premature.
C. Champion's Motion, for Summary Judgment is Premature
Notwithstanding the outstanding questions of material fact discussed above. Champion s Motion for summary judgment is premature. The First Department has held that a party who contends that a summary judgment motion is premature is required to demonstrate that "discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within [the movant's] knowledge and control" (Bacchus v Bronx Leb. Hosp. Ctr. 192 A.D.3d 553 [1st Dept 2021]).
Defendant 411 contends that Champion's motion for summary judgment is premature at this juncture, as discovery is yet to be complete (NYSCEF Doc. 1 53 ¶¶ 6-11). At his deposition on behalf of Champion, Robert Rosenblatt testified that the Property has at least three security cameras, but said he "[doesn't] know what they're shooting or if they're functioning...they re all interior to my knowledge" (NYSCEF Doc. 114 at p. 56). Rosenblatt further testified that he was "not aware of the situational positions of the cameras'' (Id.).
In response to the testimony of Rosenblatt, Defendant 411 served a post-deposition Notice seeking, infer alia, to inspect any footage from the video cameras depicting the adjacent/abutting sidewalks for the 24-hour period on the date of the incident (NYSCEF Doc, 155). Defendant 411 contends that Champion's summary judgment motion should be deemed premature until the subject video is exchanged in discovery- (NYSCEF Doc. 153 at ¶ 11).
The Court finds that the subject video camera footage may contain valuable information regarding Champions alleged special use of the sidewalk. As it is not disputed that this footage is within the exclusive control of Champion, and the footage may lead to information essential to justify opposing the motion, Champion's motion for summary judgment is premature.
Accordingly, it is hereby,
ORDERED that Defendant Champion Parking 700 LLC's motion for summary judgment dismissing all claims and cross-claims asserted against it by Plaintiff Ronald Torres is denied; and it is further
ORDERED that within ten (10) days of entry, counsel for Plaintiff Ronald Torres shall serve a copy of this Decision and Order, with notice of entry', on all remaining parties to this case: and it is further
ORDERED that the parties are directed to submit a proposed Status Conference Order via e-mail to SFC-Part33-Clerk@nycourts.gov on or before February' 6. 2024. If the parties arc unable to agree to a proposed Status Conference Order, the parties are directed to appear for an in-person status conference on February' 7, 2024 at 9:30 a.m. in Room 442, 60 Centre Street. New York. New York; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly. This constitutes the Decision and Order of the Court.