Opinion
Index No.: 150119/2012
04-05-2019
MICHAEL BENNY, Plaintiff, v. CONCORD PARTNERS 46th STREET LLC, TINTOL LLC d/b/a CLUBHOUSE CAFÉ, HAVANA CENTRAL NY 2 LLC d/b/a HAVANA CENTRAL RESTAURANT & CAFÉ and ELO EQUITY, LLC, Defendants.
NYSCEF DOC. NO. 279 Motion Sequence #007 HON. TANYA R. KENNEDY, J.S.C. :
In this action to recover damages for alleged personal injuries, plaintiff, Michael Benny, moves, pursuant to CPLR 3212, for summary judgment against defendants Concord Partners 46th Street LLC, Tintol LLC d/b/a Clubhouse Café, Havana Central NY 2 LLC d/b/a Havana Central Restaurant & Café, and Elo Equity, LLC.
BACKGROUND
Plaintiff alleges that he sustained personal injuries on January 4, 2012 after a slip and fall accident on ice during his employment as an emergency medical technician for St. Luke's Roosevelt Hospital (second amended complaint, ¶58; verified bill of particulars dated April 9, 2012, ¶11c).
On the date of his accident, plaintiff traveled by ambulance to respond to a 911 call at 46th Street between Sixth and Seventh Avenues in Manhattan to assist a woman in front of Havana Central restaurant with an injury to her lower leg (Benny deposition transcript, P. 33, L. 12-28; P. 36, L. 6-23; P. 37, L. 2-17).
Once plaintiff and his partner arrived, he observed the woman, later identified as Susan Stark (Stark), located on the ground (id., P. 38, L. 24-25; P. 39, L. 2-3). After exiting the ambulance, plaintiff proceeded to assist Stark by stabilizing her ankle and subsequently slipped on ice (id., P. 39, L. 18-24; P. 49, L. 17-25; P. 50, L. 2-18). Plaintiff maintained that he slipped toward his right side and fell onto the right side of his leg while lifting Stark onto the stretcher and that his elbow landed onto the stretcher (id., P. 50, L. 2-18). Plaintiff also maintained that his knee touched the ground, which was wet (id., P. 60, L. 11-18). However, plaintiff could not recall observing the ice or the ground condition prior to his accident (id., P. 84, L. 3-15; P. 85, L. 3-11). Plaintiff maintained that a responder must first ensure their own safety, and he acknowledged that his ambulance was not equipped with either calcium chloride or rock salt (id., P. 178, L. 10-13; P. 179, L. 2-8).
Plaintiff first experienced pain in his lower back approximately thirty seconds after placing Stark into the ambulance (id., P. 69, L. 10-18). After informing his partner that he was in pain, another ambulance arrived and transported plaintiff, who experienced pain in his lower back and right flank, to St. Luke's Roosevelt Hospital (id., P. 87, L. 10-22; P. 97, L. 21-24; P. 98, L. 4-7).
Supporting Affidavit of Susan Stark (Stark)
On January 4, 2012, Stark slipped on ice in front of 151 West 46th Street (Stark affidavit, ¶¶3-4). While on the sidewalk, Stark observed ice although no precipitation existed (id., ¶6). After Stark's accident, a restaurant employee exited the restaurant and apologized to Stark for her injury and offered for someone to salt the sidewalk (id., ¶7). Although Stark thought that plaintiff would fall onto her leg, he managed to twist away and catch himself before falling to the ground (id., ¶8). Stark heard plaintiff state that he injured his back and was in pain (id.).
Deposition Testimony of Jose Meirelles (Meirelles)
Meirelles was a managing member of Tintol, Inc., which owned the restaurant Clubhouse Café, located at 155 West 46th Street (Meirelles deposition testimony, P. 11, L. 15-16; P. 11, L. 20-21; P. 12, L. 18-22). Meirelles maintained that in January of 2012, a porter was responsible for cleaning the outside of the premises and for snow and ice removal, and that the chef would determine whether the sidewalk required hosing (id., P. 22, L. 5-8; P. 24, L. 2-10). According to Meirelles, the chef was the individual with knowledge of the cleaning procedures and the type of chemicals used for such purpose (id., P. 24, L. 23-25; P. 25, L. 1-6). Meirelles also indicated that the restaurant did not maintain any records regarding sidewalk cleaning and maintenance and that he had no knowledge whether any restaurant staff inspected the sidewalk (id., P. 24, L. 11-14). He further indicated that he had no knowledge of whether the restaurant was required to clean and maintain the sidewalk under the terms of the lease (id., P. 68, L. 18-22).
Meirelles learned of the accident on the date it occurred and photographed the accident site (id., P. 35, L. 21-25; P. 36, L. 1-9). He also observed a woman on the sidewalk; however, he did not recall seeing a hose on the sidewalk that morning (id., P. 42, L. 2-6; P. 47, L. 12-15). Meirelles additionally indicated that he viewed a surveillance video which depicted a male hosing down the sidewalk in front of Clubhouse Café (id., P. 51, L. 16-20). Further, Meirelles maintained that either the chef or manager determined whether a porter would wash the restaurant windows (id., P. 55, L. 6-9).
Deposition Testimony of Philip Dicker (Dicker)
Dicker was employed as a property manager by Concord Partners 46th Street, LLC, which owned the property at 155 West 46th Street (Dicker deposition transcript, P. 11, L. 1-11). As property manager, Dicker was responsible for collecting rent, leasing the space, and supervising repairs (id., P. 15, L. 3-8). Dicker maintained that Tintol, doing business as Clubhouse Café, leased the first floor of the property in January 2012 and was responsible for sidewalk cleaning and maintenance in front of the building under the terms of the lease (id., P. 16, L. 20-22; P. 17, L. 2-19).
Dicker maintained that Clubhouse Café was responsible for removing snow and ice from the sidewalk and would wash down the sidewalk at 7:30 a.m. (id., P. 60, L. 25; P. 61, L. 1-5; P. 43, L. 19-23). He further maintained that Concord Partners 46th Street LLC was responsible for maintaining the three feet of sidewalk in front of the building and that Clubhouse Café was responsible for the remaining portion (id., P. 62, L. 3-18). However, he had no knowledge as to when the neighboring business, Havana Central, cleaned the area (id., P. 43, L. 24-25; P. 44, L. 1).
Dicker testified that a co-worker informed him of the accident and where it occurred (id., P. 34, L. 11-21). Dicker did not recall discussing with anyone from Clubhouse Café, Havana Central, or Elo Equity, LLC (the owner of 151 West 46th Street) the danger of washing down the sidewalks during cold temperatures (id., P. 59, L. 2-18).
Deposition Testimony of Jason Elo (Elo)
Elo was a member of Elo Equity, LLC, which owned 151 West 46th Street, a commercial office building with ground retail or restaurant space (Elo deposition transcript, P. 8, L. 9-19; P. 10, L. 7-10).
He maintained that in January of 2012, Havana Central was a tenant of the retail space (id., P. 11, L. 9-13). According to Elo, Havana Central was responsible for maintaining the portion of sidewalk it occupied under the terms of the lease and Elo Equity, LLC was responsible for maintaining the interior entrance to the commercial space and for the sidewalk in front of the commercial space (id., P. 20, L. 18-24; P. 21, L. 2; P. 22, L. 2-12; P. 23, L. 8-23). He also indicated that Havana Central was responsible for snow and ice removal in front of their building and that Elo Equity, LLC was responsible for snow and ice removal in front of the building's commercial entrance and used shovels to clear the front of the building (id., P. 34, L. 17-25; P. 35, L. 2-20). However, Elo Equity, LLC would not treat the sidewalk with sand or salt (id., P. 35, L. 21-23). Further, he maintained that Elo Equity, LLC did not issue any written rules or regulations to Havana Central regarding sidewalk maintenance or cleaning (id., P. 46, L. 16-21). Elo reviewed a surveillance video of the incident which depicted Clubhouse Café and Havana Central employees cleaning the sidewalk and that the accident occurred between the two buildings (id., P. 33, L. 6-23; P. 50, L. 10-20).
Deposition Testimony of Lamont Davis (Davis)
Davis is employed as a superintendent for Elo Equity, LLC (Davis deposition transcript, P. 9, L. 10-12). Davis also maintained that his staff did not maintain records regarding sidewalk cleanings (id., P. 68, L. 12-17). According to Davis, Havana Central is the first-floor tenant (id., P. 11, L. 5-6). Although Davis was present during Stark's accident, he was unable to recall whether the sidewalk was covered with ice (id., P. 17, L. 16-19; P. 18, L. 7-11). Davis reviewed photographs which he identified as depicting a Havana Central employee and a Clubhouse Café employee hosing their respective sidewalks (id., P. 25, L. 12-21). Davis further indicated that on the morning of the accident, he expressed concern to Colbaugh, the manager of Havana Central, that a Havana Central worker was using water to clean the sidewalk during cold weather (id., P. 26, L. 15-25; P. 27, L. 2-20). However, Davis did not address such concern with the workers (id.).
Deposition Testimony of Philip Colbaugh (Colbaugh )
Colbaugh was employed by the hospitality group Merrin Group LLC, which managed Havana Central (Colbaugh deposition transcript, P. 7, L. 24-25; P. 8, L. 2-8). Colbaugh maintained that the dishwashers sprayed and brushed the sidewalk in the morning and that the restaurant was responsible for sidewalk cleaning, including snow and ice removal (id., P. 19, L. 4-25; P. 24, L. 17-25; P. 25, L. 2-7). He also maintained that the surveillance video he viewed depicted a Havana Central employee and an employee from the neighboring location cleaning the sidewalk with water (id., P. 26, L. 18-25; P. 27, L. 2-5). While he was inside Havana Central, he did not witness either accident (id., P. 27, L. 12-25; P. 28, L. 2-17). He further maintained that he had no knowledge of prior slip and fall accidents at the property (id., P. 39, L. 7-15). Colbaugh did not recall any conversation with Davis regarding this incident or conversations regarding the method used to clean the sidewalks prior to January 4, 2012 (id., P. 38, L. 15-25; P. 39, L. 2-6).
ARGUMENTS
Plaintiff moves for summary judgment in his favor, maintaining that the defendants caused and created the dangerous sidewalk condition, which resulted in his injuries. Plaintiff also contends that Elo Equity, LLC had prior notice of the dangerous sidewalk condition and that Concord Partners had constructive knowledge of such condition since its employees were present at the location. Further, plaintiff contends that the "danger invites rescue" doctrine is applicable, and eliminates any claims of comparative negligence, since he voluntarily placed himself in a perilous situation to prevent another person from suffering serious injury or death and acted reasonably under the circumstances to assist an injured party.
All of the defendants argue in opposition that the "danger invites rescue" doctrine is inapplicable since Stark's fall occurred prior to plaintiff's accident and no life-threatening situation existed. All defendants also argue that plaintiff had enough time to obtain assistance from restaurant staff to salt the sidewalk and that plaintiff failed to act with caution for his own safety and failed to conform to the requirements of his employment:
Concord Partners 46th Street LLC and Tintol LLC d/b/a Clubhouse Café also argue that plaintiff's deposition testimony regarding his observation of ice after the accident raises an issue of fact. Both defendants also argue that plaintiff failed to establish through testimonial or expert evidence that Clubhouse Café employees directly caused any ice to form in front of Havana Central and that the surveillance video failed to conclusively depict plaintiff's accident.
Havana Central NY 2 LLC d/b/a Havana Central Restaurant & Café and Elo Equity, LLC argue that a jury could conclude from the surveillance video that the icy condition was obvious and that plaintiff was partially or completely responsible for his injury. Further, both defendants argue that the issue of whether plaintiff acted reasonably in the light of an emergency is a question for the trier of fact and is not a question of law.
Both defendants submit an affidavit from William Ozga (Ozga) in support of their opposition. Ozga averred that he served as a licensed emergency medical technician since 1986 and trained such technicians, as well as served as a licensed respiratory care specialist since 1991 (Ozga affidavit, ¶¶4-5). After his review of the documents, plaintiff's deposition transcript, and surveillance video, Ozga opined "within a reasonable degree of EMT and medical probability and certainty" that plaintiff failed to ensure a safe environment for himself while assisting Stark (id., ¶29). Ozga maintained that the concept of scene safety requires an emergency medical technician to first protect himself/herself, his/her partner and other individuals assisting at the scene (id., ¶30). Ozga also maintained that plaintiff should have requested that someone apply sand to provide traction since plaintiff and others observed that the sidewalk was icy (id., ¶35).
Ozga further maintained that plaintiff failed to immobilize Stark's leg or to properly secure her onto a spinal longboard to even out her weight distribution (id., ¶33). According to Ozga, plaintiff could have placed Stark on the longboard and slid her onto the ambulance rather than lift her from the ground due to the icy condition (id., ¶34). Lastly, Ozga indicated that the surveillance video failed to depict plaintiff's fall (id., ¶27).
DISCUSSION
"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 to eliminate any material issues of fact . . ." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]).
Plaintiff maintains that the "danger invites rescue" doctrine precludes a finding of negligence against him in any manner.
"The danger invites rescue doctrine was born of the principle that the law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. The doctrine was created to avoid a plaintiff being found contributorily negligent as a matter of law when he voluntarily placed himself in a perilous situation to prevent another person from suffering serious injury or death. The doctrine was subsequently expanded to create a duty of care towards a potential rescuer where one party, by his culpable act, has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid. The doctrine also encompasses a situation where the
culpable party has placed himself in a perilous situation which invites rescue" (Ha-Sidi v South Country Cent. School Dist., 148 AD2d 580, 582 [2d Dept 1989] [internal citations and quotations omitted]).
"While more than a suspicion of danger to another person is necessary, such a determination is made on the facts and circumstances of each case, and the reasonableness of that decision is generally a question for the trier of fact" (Gifford v Haller, 273 AD2d 751, 752 [3d Dept 2000] [internal citation omitted]).
"For the danger invites rescue doctrine to apply, it is sufficient that plaintiff held a reasonable belief of imminent peril of serious injury to another, and it matters not that the peril feared did not materialize . . . [w]hether plaintiff acted reasonably under the circumstances such that he will not be deemed to have assumed the risk in attempting rescue is a question for the trier of fact" (O'Connor v Syracuse Univ., 66 AD3d 1187, 1191 [3d Dept 2009] [internal citations omitted]).
Here, plaintiff has failed to present any evidence to demonstrate that he faced a situation of imminent peril for the "danger invites rescue" doctrine to be applicable. Additionally, the affidavit which Ozga submitted presents issues of fact as to whether plaintiff acted reasonably and complied with standard emergency medical technician procedures. Based upon his more than thirty years of experience as an emergency medical technician, Ozga maintained that plaintiff had an opportunity to ensure a safe environment for himself while assisting Stark, since plaintiff had knowledge of the sidewalk condition and had an opportunity to utilize alternative means to safely transport Stark into the ambulance. Despite the conclusions and questions Ozga set forth in his affidavit, plaintiff failed to submit an expert report to refute Ozga's contentions.
The Court also notes that the opposition from all defendants, including Ozga's affidavit, raise a factual issue regarding the inconclusiveness of the video surveillance, since plaintiff's accident is not visible from the surveillance camera's viewpoint. Factual issues also exist regarding whether any defendant created the icy condition, since the surveillance video depicts persons cleaning the front of both restaurants with water on the day of the accident.
Section 7-210 of the New York City Administrative Code imposes liability upon abutting property owners for their failure to maintain the public sidewalks in a reasonably safe condition, including the negligent failure to remove snow and ice. "A party in control of real property may be held liable for a snow and ice condition on its premises only if the property owner or possessor had actual or constructive notice of the condition, and had a reasonably sufficient time from the cessation of the precipitation to remedy it" (Edwards v DeMatteis Corp., 306 AD2d 309, 309 [2d Dept 2003]).
The deposition testimony from various witnesses presents factual issues as to whether Havana Central or Elo Equity, LLC had actual or constructive notice of the alleged sidewalk condition. Davis, the superintendent for Elo Equity, LLC, testified that on the morning of the subject accident, he expressed concern to Colbaugh, the manager of Havana Central, that a Havana Central worker was using water to clean the sidewalk during cold weather. However, Colbaugh testified that no person notified him of the sidewalk condition and that he did any recall any conversation with Davis.
"On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact" (S. J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 341[1974]). Here, factual issues exist as to the witnesses' credibility, due to their conflicting testimony. As such, the Court is unable to determine whether Havana Central or Elo Equity, LLC had actual notice of the alleged sidewalk condition.
There are also factual issues as to whether any of the defendants had constructive notice of the alleged sidewalk condition. "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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY 2d 836, 837 [1986]).
Here, the testimony raises factual issues as to the length of time the alleged condition existed and whether the defendants knew about the condition in enough time to remedy the situation. Plaintiff testified that he did not observe any ice prior to his accident, and it is unknown whether the condition was visible and apparent to the defendants (c.f. Killeen v Our Lady of Mercy Med. Ctr., 35 AD3d 205, 206 [1st Dept 2006] (holding that "[p]laintiff failed to produce evidence that defendant had actual or constructive notice of the alleged hazard. There were no known complaints of a hazardous condition, and even plaintiff had not noticed the black ice before he fell"). Therefore, the existence of several factual issues precludes the grant of summary judgment.
Accordingly, it is
ORDERED that plaintiff Michael Benny's motion for summary judgment is denied.
This constitutes the Decision and Order of the Court. Dated: New York, New York
April 5, 2019
ENTER:
/s/_________
J.S.C.