Opinion
Index No. 27927/2016E
05-02-2022
Balbina GARCIA-CRISTOBAL, Plaintiff, v. P&B BRONX PROPERTIES LLC, Citigroup Inc. and Eternal Beyond Realty, LLC, Defendants.
In this negligence action, defendant Eternal Beyond Realty, LLC (hereinafter "Eternal Beyond") moves for summary judgment pursuant to CPLR 3212, dismissing the complaint of plaintiff and dismissing all cross-claims asserted by co-defendant, P&B Bronx Properties LLC (hereinafter "P&B").
Plaintiff seeks damages for injuries she allegedly sustained when she slipped and fell due to a crack/hole on a public sidewalk on the property line between 234 East 198th Street and 236 East 198th Street in Bronx County. Eternal Beyond is the owner of the premises located at 236 East 198th Street, while defendant, P&B is the owner of the premises located at 234 East 198th Street.
Plaintiff alleges that the defendants were negligent, reckless and careless in that they failed to take suitable precautions for the safety of persons on the sidewalk. Plaintiff testified at her deposition that she never observed the hole or crack on the sidewalk where she fell before the incident.
Eternal Beyond contends that it is undisputed that the alleged defective condition where plaintiff claims she fell is in front of Citibank, which is located directly in front of 234 East 198th Street and owned by P&B. Plaintiff did indeed, testify at her deposition that the incident occurred "in front of the bank." Here, there is no dispute that Citibank, a former defendant in this matter, is the bank that plaintiff is referring to, and that Citibank, at the time of the incident, and presently, is a tenant of P&B.
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 in admissible form to demonstrate the absence of any material issues of fact ( Winegrad v New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party ( Jacobsen v New York City Health & Hosps. Corp. , 22 NY3d 824 [2014] ). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] ).
The law concerning liability for injury caused by a dangerous condition on a sidewalk is governed by New York City Administrative Code of the City of New York § 7-210 which imposes a nondelegable duty on the owner of the abutting premises to maintain and repair the sidewalk, and specifically imposes liability upon certain property owners for injuries resulting from a violation of the code provision (see Hsu v City of New York , 145 AD3d 759 [2nd Dept 2016] ).
On January 14, 2021, movant's expert, Raymond T. Liuzzo, P.L.S. conducted a field survey of the subject location for purposes of assessing the boundary line between 234 and 236 E. 198th Street. Mr. Liuzzo found that the surveyed location of the edge of the concrete patch in the area where plaintiff indicated that she fell, is 3/10th or 0.3 feet, or approximately 4 inches, onto the property line directly in front of 234 East 198th Street, owned by P&B, and not on Eternal Beyond's property at all.
Eternal Beyond also relies on its biomechanical expert, Dr. Angela Levitan, Ph.D., CPE, who opined that the crack/hole plaintiff described as the cause of her fall, would not have caused an impediment or obstruction to her gait upon which plaintiff could trip. Notwithstanding the location of the sidewalk defect, movant argues that the crack/hole that allegedly caused plaintiff to fall was an open and obvious condition, which warrants the dismissal of plaintiff's complaint.
In opposition to the motion, P&B maintains there is an issue of fact as to where plaintiff's accident occurred; an issue of fact exists as to whether Eternal Beyond's failure to maintain its sidewalk caused the accident to occur; and an issue of fact as to whether Eternal Beyond has demonstrated ownership and/or control over the alleged defect through its post-accident repairs.
Plaintiff through its "expert," Irvin S. Loewenstein, opines that the defective condition that caused plaintiff to fall abutted both P&B's property and Eternal Beyond's property, such that there is an issue of fact as to Eternal Beyond's potential liability.
In a premises liability case, a defendant real property owner or a party in possession or control of real property who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Kyte v Mid-Hudson Wendico , 131 AD3d 452, 452 [2nd Dept 2015] ). Here, Eternal Beyond failed to establish, prima facie, that it owed no duty of care to the plaintiff pursuant to Administrative Code section 7-210. Eternal Beyond also failed to establish, prima facie, that a portion of the sidewalk slab which allegedly caused the plaintiff's accident did not abut its property (see Sangaray v West Riv. Assoc. , LLC, 26 NY3d 793 [2016] ). The photographic and testimonial evidence submitted failed to clarify whether the defect lay entirely within P&B's property, thus creating a question of fact for the jury to resolve. As such, movant failed to eliminate all triable issues of fact regarding whether it had a duty to maintain the area of the plaintiff's fall, and whether the alleged dangerous sidewalk condition was attributable to its negligence and contributed to the plaintiff's fall.
Eternal Beyond's alternative argument that it is not responsible because the defect was open and obvious is rejected. "The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury," ( Shah v Mercy Med. Ctr. , 71 AD3d 1120, 1120 [2nd Dept. 2010] ). A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" ( Beck v Bethpage Union Free School Dist. , 82 AD3d 1026 [2nd Dept. 2011] ). Moreover, an open and obvious condition only relieves the property owner of a duty to warn but the landowner's duty to maintain premises in a reasonably safe condition remains ( Westbrook v WR Activities-Cabrera Mkts. , 5 AD3d 69, 72 [1st Dept. 2004] ). To the extent that movant argues that plaintiff was a proximate cause of her own accident because she was hurrying along the sidewalk, this only raises issues of comparative negligence.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed by the court, it is hereby denied.
Accordingly, it is hereby
ORDERED that the motion of defendant Eternal Beyond for an order granting summary judgment dismissing all claims and cross-claims against it is denied in its entirety;
This is the Decision and Order of the Court.