Opinion
108299/06.
Decided October 29, 2009.
JOHN L. BUCKHEIT, ESQ., SUFFERN, NEW YORK, ATTORNEY FOR THE PLAINTIFF.
FIEDELMAN GARFINKEL, BROOKLYN, NY, ATTORNEY FOR THE DEFENDANT.
WILSON, MOSKOWITZ, EDELMAN DICKE, WHITE PLAINS, NY, ATTORNEY FOR THE DEFENDANT.
RICHARD W. BABINECZ, ESQ., NEW YORK, NEW YORK, ATTORNEY FOR THE DEFENDANT.
BACKGROUND
Defendants Related Management Company, L.P. i/s/h/a Related Management Company (Related) and The Battery Park City Authority (Battery Park) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Defendants Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. (ConEd) cross-move, pursuant to CPLR 3212, for summary judgment dismissing the complaint.
FACTS
The underlying action arises out of an incident on May 3, 2006, when plaintiff claims she fell on a slippery grate which covered a vault below the sidewalk adjacent to 400 Chambers Street, New York, New York.
Plaintiff is a resident at 400 Chambers Street, a property owned by Battery Park and managed by Related. The grate and the vault are owned and maintained by Con Ed.
At her examination before trial (EBT), plaintiff testified that the incident occurred at around 10 o'clock in the evening as she left her building. Plaintiff EBT, at 12. Plaintiff stated that it was raining and misty at the time ( id. at 13), and that she did not recall seeing the grate prior to stepping on it. Id. at 24. Plaintiff also said that she was not aware of any complaints made about the grate, or that anyone else had fallen on the grate prior to her accident. Id. at 24, 33.
Mary Kearney, who was employed by Related as the resident manager of 400 Chambers Street, testified that the grate belongs to Con Ed (Kearney EBT, at 11), and that she called Con Ed in March of 2006 to report that the grate in question was slippery, and that it had an odor emanating from it. Id. at 12-13. Ms. Kearney also stated that she was unaware of anyone else complaining about the grate. Id. at 14-15. Ms. Kearney also testified that Con Ed performed work on the grate after the incident in question. Id. at 20-21.
Luis Justino, a Con Ed employee whose title is "troubleshooter" in Con Ed's Manhattan Electrical Division, testified that he responded to a complaint made to Con Ed about the grate on March 22, 2006. Mr. Justino EBT, at 12. Mr. Justino further testified that the grate, vaults and equipment in the vaults are owned by Con Ed ( id. at 14-15), that the electrical transformers in the vault are used to supply electrical power to 400 Chambers Street and the neighborhood ( id. at 15), and that on March 22, 2006, he inspected the vaults in question and found them to be dirty, and in need of being flushed out and cleaned. Id. Mr. Justino said that he is not responsible for such cleaning, but that he reports these problems to his supervisor, and that he does not know whether the vault was ever flushed out or cleaned, because that remedial work is handled by another department. Id. at 15-16. Mr. Justino also testified that, when he made his inspection he checked for slipping hazards, and found none. Id. at 17-18.
In her opposition to the instant motions, plaintiff asserts, among other things, that Battery Park should be held liable because the Con Ed grate provides a special use for 400 Chambers Street, Battery Park's property.
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 from the case [internal quotation marks and citation omitted]." Santiago v Filstein , 35 AD3d 184 , 185-186 (1st Dept 2006). 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); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).
"It is well established that owners and lessees have a duty to maintain their property in a reasonably safe condition under the existing circumstances." Waiters v Northern Trust Co. of New York , 29 AD3d 325 , 326 (1st Dept 2006). However, in order to maintain an action alleging negligence against such owners and lessees, the proponent must submit evidence that the owner or lessee had actual or constructive knowledge of the dangerous condition that caused the accident, or that the owner or lessee caused or contributed to the dangerous condition. McKain v Metropolitan Transportation Authority, 274 AD2d 504 (2d Dept 2000); Birdsall v Montgomery Ward Co., 109 AD2d 969 (3d Dept), affd 65 NY2d 913 (1985).
Con Ed's cross motion for summary judgment is denied.
Con Ed relies on Di Sanza v City of New York ( 47 AD3d 535 [1st Dept], affd 11 NY3d 766), a case similar to the one at bar, for the proposition that Con Ed should not be held responsible for plaintiff's injuries, because it had neither created, nor had actual or constructive notice of, the allegedly dangerous condition. However, the instant matter is factually distinguishable from that decision.
In Di Sanza, a Con Ed employee provided uncontested testimony that he inspected the grate less than five months before the accident and found no defect. Di Sanza, 47 AD3d at 535. In this case, the Con Ed employee testified that he inspected the grate less than two months prior to the accident, that he found some problems with it, and that he did not know whether Con Ed ever remediated the problem. Hence, there is evidence in admissible form that Con Ed had actual notice of a problem with the grate, but there is no evidence that Con Ed ever addressed that problem until the day after the accident. This raises an issue of material fact that is not resolved by the papers submitted.
Related's and Battery Park's motion for summary judgment dismissing the complaint as against them is also denied.
"[T]he uncontradicted deposition testimony of Con Edison's employee [Justino], . . . clearly establishes that the grate in question and the underground vault and transformer it covered was not, as a matter of law, a special use inasmuch as he testified that the transformer provided electrical service to the street'. . . ."
Roselli v City of New York, 201 AD2d 417, 418 (1st Dept 1994).Since the vault and covering grate were not installed or maintained exclusively for the use of 400 Chambers Street, but such use was merely incidental to its purpose, no special use was created. Therefore, Battery Park cannot be held liable under a theory of special use. Montalvo v Heege, 301 AD2d 427 (1st Dept 2003).
In 2003, the Administrative Code of the City of New York was amended by the addition of section 7-210, which states that a property owner has a duty to maintain abutting property in a reasonably safe condition. However, section 7-210 does not impose absolute tort liability upon abutting landowners for injuries arising from allegedly unsafe conditions absent a showing of negligence ( Villaplana v. Kane Associates Family Ltd. Partnership, 17 Misc 3d. 1129 [Sup Ct NY County 2007]). A showing of negligence requires the above-referenced evidence of actual or constructive notice of an unsafe condition.
The evidence submitted indicates that less than two months prior to the incident in question, Ms. Kearney complained to Con Ed about the slippery condition of the grate. Ms. Kearney further testified that she did not know whether Con Ed repaired the problem, and that she only noticed Con Ed working on the grate the day after the accident. This knowledge on the part of Ms. Kearney, the managing agent for Battery Park, raises an issue as to whether Battery Park had actual or constructive notice of the unsafe condition of the grate so as to obligate it to make sure that the grate was reasonably safe, or at least to warn pedestrians of the unsafe conditions, especially during inclement weather.
Further, Related, as the managing agent, may also be held liable for plaintiff's injuries.
"As managing agent of the building in which the plaintiff was injured, the defendant could be subject to liability for nonfeasance only if it was in complete and exclusive control of the management and operation of the building. To show the existence of a duty on the part of the defendant, the management contract between the defendant and the owner had to constitute a comprehensive and exclusive set of obligations which the parties could have reasonably expected to displace the owner's duty to maintain the premises safely [internal citations omitted]."
Hagen v Gilman Management Corp., 4 AD3d 330, 331 (2d Dept 2004).
The instant record is devoid of any documentation or evidence identifying the extent of Related's management and control of 400 Chambers Street. Consequently, a question remains as to Related's obligations to maintain the property and the property adjacent thereto in a reasonably safe manner.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendants' motion and cross motion for summary judgment are denied.