Opinion
No. 111553/10.
11-25-2014
Kathleen BEDNARK, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, Heron Real Estate Corp., BP America, Inc. and Accede, Inc., Defendants. Heron Real Estate Corp., Bp America, Inc. and Accede, Inc., Third Party Plaintiffs, The City of New York, Third Party Defendant.
Rheingold, Valet, Rheingold, McCartney & Giuffra, LLP by: Jeremy A. Hellman, Esq., New York, for plaintiff. Carman, Callahan & Ingham, LLP by: Peter F. Breheny, Esq., Farmingdale, for defendants, Heron Real Estate Corp., BP America, Inc., and Acede, Inc. Zachary Carter, Corporation Counsel of the City of New York by: Pantea Maddux, Esq., Assistant Corporation Counsel for the City of New York, New York, for third-party defendant, City of New York.
Rheingold, Valet, Rheingold, McCartney & Giuffra, LLP by: Jeremy A. Hellman, Esq., New York, for plaintiff.
Carman, Callahan & Ingham, LLP by: Peter F. Breheny, Esq., Farmingdale, for defendants, Heron Real Estate Corp., BP America, Inc., and Acede, Inc.
Zachary Carter, Corporation Counsel of the City of New York by: Pantea Maddux, Esq., Assistant Corporation Counsel for the City of New York, New York, for third-party defendant, City of New York.
Opinion
MICHAEL D. STALLMAN, J.
In this personal injury action, plaintiff moves for summary judgment on limited issues of liability against defendants Heron Real Estate Corp. (Heron), BP America Inc. (BP), and Accede, Inc. (collectively, the Property Owners) (Motion Seq. No. 002). The Property Owners separately move for summary judgment dismissing the action as against them (Motion Seq. No. 003). Third-party defendant the City of New York (City) separately moves for summary judgment dismissing the complaint and all cross claims as against it (Motion Seq. No. 004).
BACKGROUND
Plaintiff alleges that, on August 1, 2009, upon alighting from a bus through the rear doors, she stepped onto a cracked area of sidewalk and fell, abutting a gas station owned by defendants Heron and BP and operated by defendant Accede, on the north side of East 125th Street between Second and Third Avenues, in Manhattan.At her examination before trial, plaintiff testified,
“I stepped off the [bus] with the right foot, ball of the foot, all of the weight was on that foot. The left foot came off.
Q.Did the left foot come in contact with the pavement?
A.I collapsed prior to the left foot hitting the pavement.
Q.When you say collapsed,' do you mean that your right foot gave way?
A.Yes.
Q.When your right foot gave way, what happened?
A.I sort of lunged forward and just collapsed.
Q.Did your right foot go to the left, to the right or something else?
A.It twisted. I felt an uneven surface and it twisted.
Q.Did you notice on this evening the uneven surface before you stepped out?
A.No.”
(Hellman Affirm. Ex. E [Bednark EBT], at 16–17.)
Plaintiff also testified during her deposition that she had a previous accident at the same location the year before in 2008. (Bednark EBT at 6.)
On March 2, 2009, plaintiff commenced an action in Supreme Court, New York County, arising out of her alleged accident in 2008, Bednark v. City of New York, Index No. 102889/2009 [Bednark I ]. In that action, the Property Owners moved for summary judgment dismissing the action as against them on, among other grounds, that they were not responsible for maintaining the area where plaintiff's alleged accident occurred, because the area of the sidewalk where plaintiff allegedly fell was part of a designated New York City public bus stop, which was the City's obligation to maintain notwithstanding Section 7–210 of the Administrative Code of the City of New York. By decision and order dated October 8, 2013, this Court denied the Property Owners' motion for summary judgment. The decision states, in relevant part:
“Plaintiff did not trip and fall over a structure installed in the sidewalk. On the date of plaintiff's alleged trip and fall, there apparently was no bus stop sign in the area where plaintiff allegedly tripped and fell. Plaintiff did not trip and fall on a sidewalk flag upon which a bus shelter sits. Thus, maintaining the sidewalk area at issue would not have interfered with any City structure sitting on, or installed in, a sidewalk flag. Therefore, on June 10, 2008, the area where plaintiff allegedly tripped and fell was not “adjacent to a bus stop,” and thus was not under the City's responsibility to maintain. Thus, the liability, if any, for plaintiff's alleged injuries fell upon the abutting property owner (assuming that the owner's failure to maintain the sidewalk in a reasonably safe condition was a substantial factor in causing plaintiff's alleged injuries).”
(Bednark v. City of New York, 42 Misc.3d 314, 321 [Sup Ct, N.Y. County, 2013].)
DISCUSSION
The standards for summary judgment are well-settled.
“On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact, and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers.”
(Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted].)
Plaintiff seeks summary judgment in her favor on the following limited issues: (1) on August 1, 2009, the Property Owners had a duty to maintain the sidewalk where plaintiff allegedly fell; (2) finding that as a matter of law that pursuant to the Administrative Code of the City of New York § 7–210, the Property Owners had a duty to maintain the sidewalk where plaintiff allegedly fell; (3) finding as a matter of law that the area where plaintiff allegedly fell was not part of a bus stop on August 1, 2009; and (4) finding as a matter of law that the area where plaintiff allegedly fell was part of a sidewalk on August 1, 2009, as such the term is used in section 7–210 of the Administrative Code. Plaintiff argues, “[t]he issues brought in this motion were already directly decided by the [Court] in the context of a separate action, under index number 102889/2009 [Bednark I ]. Therefore, plaintiff asks that the same decision that was issued in that case—be issued in this case.” (Heller Affirm. ¶ 3.)
The Property Owners oppose plaintiff's motion for summary judgment and separately move for summary judgment on the grounds that the location where plaintiff allegedly fell is within a bus stop, and under section 7–210 of the Administrative Code, abutting property owners are not responsible for maintaining sidewalks within bus stops. In support of its motion, the Property Owners submit new deposition testimony not submitted in Bednark I, which include the deposition testimony of Phillip Randolph, the New York City Transit Authority (N.Y.CTA) bus operator on the date of the alleged incident (Breheny Affirm. Ex. G [Randolph EBT] ) and the deposition testimony of Pierre Knight, superintendent of the NYCTA Department of Buses (Breheny Affirm. Ex. I [Knight EBT].) Randolph testified that the bus he was operating at the time of the alleged incident was in the bus stop when he parked the bus and let the passengers off at the East 125th Street bus stop and that he pulled the bus all the way up to the bus stop in order to discharge his passengers. (Randolph EBT at 13–14.) Knight testified that the location where plaintiff allegedly fell was in the “bus stop area” and he knew this, “[b]ased on the fact that [plaintiff] stated she alighted the bus from the rear doors, and the rear doors where she stated happened to have been over the area.” (Knight EBT at 15, 17.) When asked whether he was referring to the street or sidewalk with regard to the bus stop, Knight further testified, “I'm referring to the sidewalk where it's-where a bus stop is placed by [Department of Transportation].” (Knight EBT at 19.) Based on the deposition testimonies of Randolph and Knight, the Property Owners argue that the area where plaintiff allegedly fell was within a bus stop, and thus not their responsibility to maintain.
Third-party defendant City moves for summary judgment on the ground that, under the Administrative Code of the City of New York
§ 7–210, the abutting owners of the property, not the City, had a duty to maintain the sidewalk in a reasonably safe condition. The City argues, “[i]t has been previously determined by this Court that the subject [location] where [p]laintiff fell was not within a designated public bus stop and thus was not under the City's responsibility to maintain,' and [t]he City had no duty to maintain the sidewalk area where plaintiff allegedly tripped and fell.' “ (Madux Affirm. ¶ 8.)
This Court agrees with the plaintiff and the City that the issue of whether the area where plaintiff allegedly fell was located within a designated bus stop has already been decided. Plaintiff testified in her deposition testimony that the area where she allegedly fell was the same exact location as the June 10, 2008 incident at issue in Bednark I, approximately 55 feet from a bus stop pole on the north side of East 125th Street between Second and Third Avenues, in Manhattan. Moreover, in a Notice to Admit dated December 12, 2013, the City stated,
“1. That between June 10, 2008 and August 1, 2009, no changes were made by the [City] to the dimensions of the bus stop that is closest to Second Avenue on the North Side of 125th Street between Second and Third Avenue in Manhattan, New York.
2. That between June 10, 2008 and August 1, 2009, no changes were made by the [City] to the dimensions of the bus stop zone on the North side of 125th Street between Second and Third Avenue in Manhattan, New York.
3. That between June 10, 2008 and August 1, 2009, no changes were made by the [City] to the bus stops on the North side of 125th Street between Second and Third Avenue in Manhattan, New York.”
(Hellman Affirm. Ex. J.) Thus, it is undisputed that the area where plaintiff fell on June 10, 2008 and in the instant case are exactly the same.
In Bednark I, this court held,
“[O]n June 10, 2008, the area where plaintiff allegedly tripped and fell was not within a designated public bus stop,' ... and thus was not under the City's responsibility to maintain. Accordingly, the abutting [p]roperty [o]wners had the responsibility for maintaining the subject sidewalk area on the accident date, June 10, 2008. The City had no duty to maintain the sidewalk area where plaintiff allegedly tripped and fell.”
(Bednark v. City of New York, 42 Misc.3d 314, 321 [Sup Ct, N.Y. County, 2013].) The deposition testimonies of Randolph and Knight are not relevant to whether the subject location fell within a designated bus stop for purposes of section 7–210 of the Administrative Code. The definition of “sidewalk” in section 7–210 is not defined by what NYCTA employees consider a sidewalk. Moreover, the fact that passengers may alight from a bus onto the sidewalk does not make the area where they alight a “bus stop” for the purpose of determining whether that area is part of the sidewalk under section 7–210. As this Court previously stated in Bednark I,
“To adopt the Property Owners' view would be contrary to the expressed intention of the City Council in enacting section 7–210 of the Administrative Code.... It would create uncertainty for the City, abutting property owners, and injured pedestrians in determining what entity is responsible for maintaining a sidewalk, and which portion of the sidewalk must be maintained by which entity .”
(Id. at 321. See also Munasca v. Morrison Mgt. LLC, 111 AD3d 564, 565 [1st Dept 2013] [rejecting defendants' argument that they were not responsible for alleged sidewalk defect because it was within a bus stop where bus stop pole was located approximately 24 feet from alleged defect].)
Therefore, the City's motion for summary judgment is granted, and the Property Owners' motion for summary judgment is denied.
Plaintiff's motion for partial summary judgment in her favor raises a procedural issue under CPLR 3212(e). Although CPLR 3212(e) permits partial summary judgment on part of a cause of action, “[a] judgment may not be fragmented and granted on a part of a single cause of action where an issue is not logically severable, i.e., when fragmentation is not feasible.” (Nixon Gear & Mach. Co. v. Nixon Gear, 86 A.D.2d 746, 746 [4th Dept 1982] [internal quotation marks and citation omitted].)
“Feasability should be the sole test.” (David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:30.)
“Where P[laintiff] pleads two theories in respect of the same wrong, for example, one being summarily attackable (e.g., for untimeliness) but the other not, the court can, with a partial summary judgment, dismiss the one theory while retaining the other even though P[laintiff] has in essence only one cause of action.”
(Siegel, N.Y. Prac § 285 at 485 [5th ed 2011].) “A motion for partial summary judgment under CPLR 3212(e) may be entertained when distinct categories of damages are sought and it is summarily established that one of them cannot be sustained.” (434 Suffolk Ave. Realty, Inc. v. Incorporated Vil. of Islandia, 41 Misc.3d 1234(A) [Sup Ct, Suffolk County 2013].)
Here, the partial summary judgment sought does not fall into the permissible examples of partial summary judgment. Fragmentation is not feasible in this case. Judgment cannot be entered in plaintiff's favor solely with respect to the determinations sought. In essence, plaintiff is seeking a series of declarations of the Property Owners' duty under common-law, Administrative Code § 7–210, and about the area where plaintiff allegedly tripped and fell on August 1, 2009, which should not be granted here because those declarations will not resolve the controversy of whether the Property Owners' breached any duty owed to plaintiff, and therefore might be ultimately held liable for plaintiff's injuries in this case.
Therefore, plaintiff is not entitled to partial summary judgment to the extent that plaintiff seeks a series of “limited findings” in her favor as a matter of law. However, partial summary judgment may be granted in plaintiff's favor dismissing the eighth affirmative defense of the Property Owners as to Heron only, which asserted, “[t]hese answering defendants are not proper parties to this matter, and should be dismissed from the action.” (See Hellman Opp. Affirm. Ex M.) In paragraph 5 of their answer, the abutting Property Owners admit, “defendant HERON REAL ESTATE CORP. has an ownership interest in 225 East 125th Street, New York, New York.” (Breheny Affirm. Ex A.) Given the Court's ruling that an abutting property owner had a duty under Administrative Code § 7–210 to maintain the subject sidewalk area on August 1, 2009, Heron is therefore a proper party to this action. Therefore, the Court will grant plaintiff partial summary judgment dismissing the eighth affirmative defense as to Heron only.
Partial summary judgment in plaintiff's favor dismissing the eighth affirmative defense cannot be granted as to BP and Accede. Although the Court's decision in Bednark I states that “the abutting Property Owners had the responsibility for maintaining the subject sidewalk area on June 10, 2008”, this should not be construed as a determination in Bednark I that defendants Heron Real Estate Corp. (Heron), BP America Inc. (BP), and Accede, Inc. each had a duty under Administrative Code § 7–210 to maintain the area where plaintiff allegedly fell. As stated on page 9 of the decision in Bednark I, “the liability, if any, for plaintiff's alleged injuries fell upon the abutting property owner (assuming that the owner's failure to maintain the sidewalk in a reasonably safe condition was a substantial factor in causing plaintiff's alleged injuries).” (Bednark, 42 Misc.3d at 321 [emphasis supplied].) The decision in Bednark I did not decide the issue of whether Heron, BP and Accede were all abutting property owners, because that determination was not necessary to determine whether the City had responsibility for maintaining the area where plaintiff allegedly fell.
As indicated on page 4 of the decision in Bednark I, Heron and BP admitted in their answer that BP leased the gas station at 225 East 125th Street from Heron, and Mohammed Shah Alam, the owner and president of Accede, testified at his deposition that Accede leased the gas station from BP. A tenant has no obligation under Administrative Code § 7–210 to maintain the abutting public sidewalk. (O'Brien v. Prestige Bay Plaza Dev. Corp., 103 AD3d 428, 429 [1st Dept 2013].) On this motion, plaintiff has not demonstrated that BP and Accede are owners of the abutting gas station, and therefore had a duty under Administrative Code § 7–210.
Neither has plaintiff met the burden of demonstrating that, on August 1, 2009, BP and Accede had a common-law duty to maintain the sidewalk area where plaintiff allegedly fell. To the extent that the record appears to indicate that BP and Accede are only lessees of the gas station, and that such leases might have required BP and Accede to perform structural maintenance and repair of the sidewalk area where plaintiff fell, “[p]rovisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as plaintiff.” (Collado v. Cruz, 81 AD3d 542 [1st Dept 2011] ; Torres v. Visto Realty Corp., 106 AD3d 645 [1st Dept 2013].) “[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.” (Espinal v. Melville Snow Contr., Inc., 98 N.Y.2d 136, 138–139 [2002].)
The Court notes that plaintiff did not submit a copy of any lease agreements in her moving papers.
Plaintiff did not meet her prima facie burden of demonstrating, as a matter of law, that either Heron, BP or Accede made special use of the area where plaintiff fell. To the extent that plaintiff contends that a broken/cracked sidewalk flag can be considered part of the driveway to the gas station, plaintiff has not demonstrated special use. (See Trent–Clark v. City of New York, 114 AD3d 558 [1st Dept 2014] [“Although a driveway running over a sidewalk constitutes a special use, there is no evidence that the defect alleged here was caused by cars driving over the curb for [defendant's] sole commercial benefit. Plaintiff's argument that the weight of the traffic may have been a cause of the [defect], is unavailing. The argument is speculative ....“] [internal citations omitted].)
CONCLUSION
Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgment (Motion Seq. 002) is granted in her favor to the extent that the eighth affirmative defense of the answer of defendants Heron Real Estate Corp., BP America, Inc., and Accede, Inc. is stricken only as to defendant Heron Real Estate Corp., and is otherwise denied; and it is further
ORDERED that defendants Heron Real Estate Corp., BP America, Inc., and Accede, Inc.'s motion for summary judgment (Motion Seq. No. 003) is denied; and it is further
ORDERED that the third-party defendant City's motion for summary judgment (Motion Seq. No. 004) is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and all cross claims against this defendant are dismissed, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants.