Opinion
Index No. 162288/2019 Motion Seq. No. 001
03-20-2023
HECTOR ALVAREZ, Plaintiff, v. W. 205 REALTY CO., LLC, and B & R MANAGEMENT CO., LLC, Defendants.
Unpublished Opinion
PRESENT: HON. DAVID B. COHEN, Justice
DECISION + ORDER ON MOTION
DAVID B. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 were read on this motion to/for JUDGMENT - SUMMARY.
In this premises liability action defendants move, pursuant to CPLR 3212, for summary judgment dismissing the complaint.
Factual and Procedural Background
This case arises from an incident in which plaintiff was allegedly injured in front of a building located at 425 West 205th Street in Manhattan (the premises) when he slipped while trying to step over garbage bags on the sidewalk (NYSCEF Doc No. 1). Plaintiff then commenced this action against defendants, alleging that he was injured due to their negligent ownership, control, management, and/or maintenance of the sidewalk in front of the premises (Doc No. 1). Defendants joined issue by their answer dated February 28, 2020, denying all substantive allegations of wrongdoing and asserting various affirmative defenses (Doc No. 5). They now move for summary dismissal of the complaint (Doc Nos. 14-15, 23, 28).
Many of the facts in this case are undisputed (Doc Nos. 16, 27). The premises were owned by defendant W. 205 Realty Co., LLC and managed by defendant B & R Management Co., LLC (Doc Nos. 16, 27). At the premises superintendent's deposition, he testified that he handled garbage disposal and would regularly place garbage bags on the sidewalk on Tuesday afternoons to be collected on Wednesday mornings by the Sanitation Department (Doc Nos. 16, 27). If they remained uncollected by 10:00 a.m. on Wednesday, he would remove them from the sidewalk (Doc Nos. 16, 27). However, he could not recall if he placed the garbage bags on the sidewalk on Tuesday, November 26th, or if he removed them on Wednesday, November 27th, the day before plaintiffs accident on Thursday, November 28th. He also stated that he cleaned and inspected the sidewalk every morning between 7:00 a.m. and 8:00 a.m., but could not recall whether he did so on the date of plaintiff s accident (Doc Nos. 16, 27).
On the date of his accident, plaintiff came across several garbage bags laying on the sidewalk in front of the premises and injured himself after he slipped while attempting to step over them (Doc Nos. 16, 27). At his deposition, he testified that the garbage bags blocked the entire width of the sidewalk (Doc No. 20).
Legal Analysis and Conclusions
Defendants fail to establish their prima facie entitlement to judgment as a matter of law, as they are unable to demonstrate that the garbage bags on the sidewalk were "both open and obvious and, as a matter of law, not inherently dangerous" (cf. Boyd v New York City Hous. Auth., 105 A.D.3d 542, 542-543 [1st Dept 2013] [granting summary dismissal of complaint after defendants demonstrated gate on which plaintiff leaned and fell was not open, obvious, and inherently dangerous], Iv denied 22 N.Y.3d 855 [2013]. Courts have found that garbage bags and other items left purposely on the sidewalk are open, obvious, and not inherently dangerous where the sidewalk was not completely obstructed by such objects (see Leung v Madison St. Partners, LLC, 203 A.D.3d 578, 578-579 [1st Dept 2022] [finding garbage bags next to curb not inherently dangerous because "there was ample room on the sidewalk for plaintiff to have avoided the bags had he so chosen"]; Barchi v Rudin E. 55th St. LLC, 144 A.D.3d 444, 445 [1st Dept 2016] [finding pile of Christmas trees not inherently dangerous because they "did not dangerously obstruct the sidewalk so as to impede the flow of pedestrian traffic"]; Ruiz v 221-223 E. 28th St., LLC, 143 A.D.3d 553, 553 [1st Dept 2016] [finding unopened garbage bags not inherently dangerous where "there was enough room on the sidewalk for at least one person to pass by, unobstructed"]).
Here, plaintiffs testimony that the garbage bags blocked the entire sidewalk is uncontroverted. Therefore, although the photographic evidence in the record and plaintiffs testimony demonstrate that the bags were open and obvious, as they were "readily observable" (Leung, 203 A.D.3d at 578-579), defendants have not established that the bags were not inherently dangerous because they have not shown that plaintiff was able to proceed along the sidewalk unimpeded (cf. id.; Barchi, 144 A.D.3d at 445; Ruiz, 143 A.D.3d at 553).
Additionally, defendants have not established that they lacked constructive notice of the garbage bags on the sidewalk. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]; accord Chianese v Meier, 98 N.Y.2d 270, 278 [2002]). Defendants' superintendent could not remember whether he had moved the bags before the accident after they were apparently not collected by the Sanitation Department. Therefore, defendants are unable to establish how long the garbage bags were on the sidewalk prior to plaintiffs accident, and thus cannot demonstrate that such length of time was short enough to prevent them from having constructive notice. Assuming the garbage bags were placed on the sidewalk on the afternoon of Tuesday, November 26th, over 24 hours passed before plaintiffs accident on the morning of Thursday, November 28th. That period of time is sufficient to provide defendants with constructive notice (see Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985] [finding defendant did not lack constructive notice where aisle of store uninspected for almost one hour prior to plaintiffs accident]).
A lack of constructive notice may also be demonstrated "by producing evidence of its maintenance activities on the day of the accident, and specifically showing that the alleged condition did not exist when the area was last inspected or cleaned before the plaintiff fell" (Velocci v Stop & Shop, 188 A.D.3d 436, 439 [1st Dept 2020]). However, defendants' superintendent could not recall whether he inspected the sidewalk on the date of the accident, and defendants produced no other evidence that an inspection schedule was followed. That evidence is insufficient to demonstrate that defendants lacked constructive notice (see Castillo-Sayre v Citarella Operating LLC, 195 A.D.3d 513, 513 [1st Dept 2021] [finding defendant failed to establish prima facie that it lacked constructive notice where manager could not say when sidewalk was last cleaned or inspected and no cleaning logs were produced]).
"Given defendants' failure to meet their initial burden, this Court need not consider the sufficiency of plaintiff s opposition papers" (Mashozhera v El Nuevo JB Bakery Inc., 191 A.D.3d 605, 606 [1st Dept 2021] [citations omitted]).
Accordingly, it is hereby:
ORDERED that the motion by defendants W. 205 Realty Co., LLC and B & R Management Co., LLC for summary judgment dismissing the complaint is denied; and it is further
ORDERED that the parties shall appear for a settlement/trial scheduling conference in person at 71 Thomas Street, Room 305, on April 19, 2023, at 11:00 a.m.