Opinion
No. 107610/2005.
10-30-2017
Serap MENDA as Executrix of the Estate of Nuri M. Akkoc, Plaintiff, v. 12–14 E. 37TH DEVELOPMENT CORP., Cauldwell–Wingate Co. Inc., Consolidated Edison Company of New York, Inc., The City of New York and F.J. Sciame Construction Co., Inc., Defendants.
Michaelstein & Greenberg, LLP, New York, Attorneys for the Plaintiff. Kateryna Stupnevich, Esq., Ballon Stoll Bader & Nadler, P.C., New York, Attorneys for Defendant/Third–Party Plaintiff, 12–14 E. 37th Development Corp. Robert P. Fumo, Law Office of James J. Toomey, New York, Attorneys for Third–Party Defendant, Lucky Deli, Inc. Nadine Rivellese, New York, Attorneys for Defendant/Third–Party Defendant, Con Edison Company of New York, Inc.
Michaelstein & Greenberg, LLP, New York, Attorneys for the Plaintiff.
Kateryna Stupnevich, Esq., Ballon Stoll Bader & Nadler, P.C., New York, Attorneys for Defendant/Third–Party Plaintiff, 12–14 E. 37th Development Corp.
Robert P. Fumo, Law Office of James J. Toomey, New York, Attorneys for Third–Party Defendant, Lucky Deli, Inc.
Nadine Rivellese, New York, Attorneys for Defendant/Third–Party Defendant, Con Edison Company of New York, Inc.
CARMEN VICTORIA ST. GEORGE, J.
I. The Action
In this personal injury action, Serap Menda (plaintiff), as executrix of the estate of the deceased plaintiff, Nuri M. Akkoc (plaintiff decedent), alleges that, on March 15, 2004, plaintiff decedent tripped and fell over an elevated steel plate. The plate was attached to the sidewalk on the south side of East 37th Street between Fifth and Madison Avenues in front of a store leased by third-party defendant The Lucky Deli. The owner of the building is defendant 12–14 E. 37th Development Corp. (Development Corp). Plaintiff decedent sued Development Corp; Consolidated Edison Company of New York (Con Ed), which he believed may have owned and controlled the metal plate; and F.J. Sciame Construction Co., Inc. (Sciame), which allegedly leased and controlled the building, sidewalk and appurtenances. The allegation was that these defendants did not maintain the steel plate adequately, resulting in the alleged defect which caused plaintiff decedent to fall. In 2008, Justice Eileen A. Rakower granted the motions to dismiss of two other defendants, Cauldwell–Wingate Company, Inc. and The City of New York. Plaintiff decedent did not oppose these motions. Plaintiff decedent stipulated to discontinue against Sciame on March 8, 2006. In addition, on March 4, 2009, plaintiff decedent and Con Ed signed a stipulation which discontinued all claims against Con Ed. Thus, Development Corp is the only remaining defendant. The caption has not been amended to reflect these changes, so the Court will order the amendment in this decision.
II. The Third–Party Action
In addition to the above, in 2011 Development Corp commenced a third-party action. It sued Con Ed, Sciame, Lucky Deli, Alea North America Insurance Co. (Alea), 10 unnamed individuals, and 10 unnamed corporations. On December 6, 2011, Justice Lucy Billings granted Alea's motion to dismiss the third-party complaint as against it. Finally, third-party defendant Con Ed stipulated to discontinue its cross-claims against Lucky Deli.
Initially, plaintiff sought and obtained a default judgment against Development Corp. On April 26, 2010, following an inquest and order, the Clerk of the Court entered judgment in the amount of $650,000 plus statutory interest. Development Corp moved to vacate the default and, in a decision dated January 19, 2011, Justice Lucy Billings granted the motion.
Alea also asked that the judge dismiss all cross-claims, but Justice Billings denied this relief as it was not included in the notice of motion. It does not appear that Alea ever moved for dismissal of the cross-claims. Accordingly, at this point, it remains in the third-party action for this purpose only. It is not clear whether Alea is actively participating in the case or whether any parties are proceeding with cross-claims at this juncture.
III. Motion Sequence Numbers 12 and 13.
In motion sequence number 12, Lucky Deli seeks dismissal of the third-party complaint as against it along with any remaining cross-claims. It explains that Development Corp leased the premises to non-party Fresh Land Inc. on August 1, 1992, and that in 1997 Fresh Land Inc. assigned the remaining five years on the lease to Lucky Deli in an agreement which also extended the lease term for an additional five years, to end in 2007. Lucky contends that it did not own the box or have any duty with respect to its maintenance. It submits the affidavit of an engineer, Doug Alderson, P.E. (the Alderson affidavit), who asserts that no pipes or lines carrying electrical service led to the space Lucky Deli leased. Lucky Deli further argues that under 34 RCNY 2–07(b)(2), any defects in the grate, its covers, and the immediately surrounding area are the sole responsibility of the grate's owners.
Further, Lucky Deli argues, it has no statutory, common law, or contractual obligation to repair the pertinent area of the sidewalk. It cites both 34 RCNY 2–07(b) and Section 7–210 of the City's Administrative Code, which place a nondelegable duty on Development Corp, as owner, to maintain the sidewalk. It contends that because 1) the lease did not completely and clearly displace the owner's duty to maintain the sidewalk, and 2) it did not create the condition, negligently repair it, or put the grate to a special use, it cannot be held liable to plaintiff, a third party, for the defect. It states that the lease held it responsible for non-structural repairs only, and that repairs to the sidewalk are structural.
Finally, it argues it is not liable to indemnify Development Corp under contractual or common law theories. Under the lease, Lucky Deli notes, its obligation to indemnify is triggered only when the injuries in question result from its use or operation of the property or its appurtenances, facilities, and equipment, or from the conduct of its business. Common law indemnification does not apply, Lucky Deli states, because it was not guilty of negligence which contributed to or caused the accident.
Development Corp opposes Lucky Deli's motion and cross-moves for summary judgment dismissing the underlying complaint as against it. It states that the building it owns contains residential units and commercial storefronts, and that Lucky Deli directly faces the steel plate. It quotes paragraph four of the original lease, which, in Development Corp's position, is binding on Lucky Deli and which obliges it to "take good care of the demised premises ... and the sidewalks adjacent thereto, and ... make all non-structural repairs thereto as and when needed...." It states that the indemnification clause obliges Lucky Deli to indemnify Development Corp for all lawsuits except those for which Development Corp is directly liable, and to maintain insurance in favor of Development Corp.
In support of its cross-motion, Development Corp. argues that the City rather than the building owner is liable for defects in the sidewalk unless the landowner created or caused the hazard or breached an ordinance that imposes a duty upon it. Although it acknowledges that Administrative Code of the City of New York § 7–210 shifted to landowners the obligation to maintain the abutting sidewalk in a reasonably safe condition, it argues that a strict construction of this rule is required. Thus, 34 RCNY 2–07(b) supercedes Section 7–201 to the extent that it places the duty to maintain covers and gratings on the sidewalk upon their owners. Development Corp states that because the defect was within twelve inches of the metal plate and it does not own the metal plate, it is not liable. It cites the Alderson affidavit, which identifies the plate as a utility box cover and states that the box housed pipes which apparently provide electrical services. It states that the it did not install, maintain or use the box, and this exempts it from liability even if the box provided it with electrical services.
The Court does not consider Montalvo v. Heege (301 A.D.2d 427 [1st Dept 2003] ) and various other cases on which Development Corp relies for this principle because those cases were based on the law prior to the enactment of Administrative Code of the City of New York § 7–210.
Moreover, Development Corp stresses that because it is an out-of-possession landlord, plaintiff cannot prevail against it, and that issues of fact exist precluding Lucky Deli's motion. First, it argues, plaintiff has not shown that there a defective or dangerous condition existing when the plaintiff decedent fell and therefore she does not establish a prima facie case. Second, if plaintiff has raised an issue of fact—which Development Corp denies—then issues of fact also exist with respect to Lucky Deli's liability. Lucky Deli had possession and control of the premises and therefore, according to Development Corp, Lucky Deli is liable unless 1) Development Corp is contractually obligated to repair the alleged defect, 2) it retained the right to re-enter to make repairs to correct structural or design defects, or 3) it had notice of the purported problem and consented to repair it.
Third-party defendant Con Ed opposes Development Corp's motion for summary judgment dismissing claims against it. It annexes the affidavit of its expert, Steven J. Ramirez, the operating supervisor at Con Ed's Emergency Bureau of Manhattan Electrical Operations Department (the Ramirez affidavit). Part of his job, he states, he identifies which underground structures are owned by Con Ed and which are owned by others. He states that there are neither structures nor covers at the location that belong to Con Ed. Although Con Ed's "electrical service conduit to the building is visible through the opened hatch ... the hatch is not used to access or maintain the electrical conduit or line. The line simply runs through the vaulted area under the sidewalk near the location of the cover" (Aff of Steven J. Ramirez, ¶ 3). He further identifies the structure and its cover as a coal chute—which, counsel for Con Ed states, constitutes a special use by the owner, precluding summary judgment. Plaintiff also opposes the motion based on the special use argument. She notes that even if Development Corp did not use the coal chute, it was still responsible for its inspection and repair. Moreover, she states, a sidewalk vault is a special use which triggers the application of this rule. Plaintiff also cites to the Alderson affidavit in support of her position that this Court must deny summary judgment.
In reply, Development Corp states that Con Ed's opposition is "devoid of any relevant case law, and ... riddled with unsubstantiated self-serving assertions" (Reply Aff of Development Corp's counsel, ¶ 3). It challenges the authority of Mr. Ramirez because 1) he is an employee of Con Ed and 2) the fact that he has worked on identifying the ownership of metal plates is insufficient to rebut the statement in the Alderson affidavit that the plate is a utility box cover. At the least, it contends, the Alderson affidavit raises an issue of fact. It states that the visibility of the electrical wiring through the hatch "demonstrates that the facility is part of [Con Ed's] distribution network, and is thus, under its control and maintenance" (Id., ¶ 6). Finally, Development Corp states the fact that Con Ed had not performed work of any kind at the site for a two-year period is not dispositive on the issue of ownership, particularly where, as here, Yusuf Bildirici, the building's managing member, indicated that it had no control of or even access to the grate.
Development Corp had no right to submit a sur-reply to Lucky Deli's reply papers; and, unlike the supplemental brief, the Court did not request or permit additional argument. It had no right to submit sur-reply papers in further support of its cross-motion, but the Court shall consider the reply to the extent that it responds to new arguments.
Development Corp replies to plaintiff's arguments as well. It states that because it is an out-of-possession landowner, liability does not attach here. This is because, according to Development Corp, to oppose its motion successfully, plaintiff would have to show that a triable issue of fact exists as to whether Development Corp "created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk" ( Roman v. Bob's Discount Furniture of NY, LLC, 116 AD3d 940, 940–41 [2nd Dept 2014] [finding that, under 34 RCNY 2–07(b), the owner of a cover or grating on the street is responsible for monitoring its condition] ). It reiterates the arguments it set forth in its earlier papers.
Finally, in the supplemental reply this Court requested, it cites to paragraphs four of the lease and paragraphs fifty-one, sixty-one, and seventy-six of the rider place responsibility and liability for injuries for falls on the sidewalk, as well as the obligation to indemnify Development Corp for litigation for these injuries, firmly on Lucky Deli. Those provisions state, respectively, that Lucky Deli is responsible for the sidewalk and is required to undertake non-structural repairs, that Lucky Deli must keep the sidewalk clean and free of snow and rubbish, that Lucky Deli must maintain its proposed fruit and vegetable stand in good condition, and that Lucky Deli must indemnify Development Corp for lawsuits caused by Lucky Deli's acts or omissions, as well as by its use of the premises and its failure to honor its obligation under the lease to maintain the premises. It also cites caselaw allegedly supporting its position that it is not legally responsible for the maintenance of a coal chute (See Matthews v. De Groff, 13 AD 356, 358–59 [1st Dept 1897] [which, however, relies on the fact that, at this time, the owner has no liability for maintaining the sidewalk; and which states that the duty is delegable unless the condition existed originally]; Delaney v. New York Polyclinic Med. Sch., 69 Misc. 625, 626 [Sup Ct App T 1910] [same]; Mondelli v. Caputo, 174 NYS 625 [1st Dept 1919] ).
Motion sequence number thirteen, by Con Ed, seeks dismissal of all claims and cross-claims asserted against it in the third-party action. Its primary argument in support of the motion is the same as that in its opposition to Development Corp's motion, that it neither owns nor controls the steel cover nor the underground structure beneath it. Further, it states, its records establish that it did not perform any work in the pertinent area for the two-year period prior to and including the date of the accident. Con Ed attaches the deposition transcript of Mario E. Smith, the Con Ed record searcher who conducted the search. Thus, there is no evidence that it caused or created the allegedly defective condition. It points out that on March 9, 2009, plaintiff decedent discontinued against Con Ed for these reasons. Development Corp relies on its reply papers from motion sequence twelve in opposition to Con Ed's motion, which also asserts that Con Ed has not cited cases in support of its position. Con Ed's reply reiterates its arguments and characterizes Development Corp's opposition as "attorney talk" which does not articulate any facts in opposition to Con Ed's statements (Reply Aff of Con Ed's counsel, ¶ 2). It contends that Mr. Ramirez' statements are more than speculative, and that, although he lacks an engineering degree, his years of experience "make[s] him more qualified than an academic" to identify the pertinent structure (Id. ¶ 4). It notes that the fact that plaintiff decedent was an architect who, at deposition, described the cover in detail, and states that his decision to discontinue his claims against Con Ed is especially revealing on the issue of its liability.
In the future, counsel is advised that he must point to the page, paragraph, or provision number of the documents to which he cites, and that he must explain the argument the cite allegedly supports. The Court is not obliged to conduct a search or to speculate as to the import of a document.
IV. Analysis
Courts carefully evaluate summary judgment motions, granting it only where there are no issues of fact. The movant bears the initial burden of providing evidence sufficient to show the absence of any material factual issues ( Schmidt v. One New York Plaza Co. LLC, 153 AD3d 427, –––– [1st Dept Aug. 8, 2017]. If the movant does not make this showing, then the burden does not shift to the opposing party to show that a triable issue of fact exists ( Pullman v. Silverman, 28 NY3d 1060, 1062 [2016] ). If the burden does shift, the opposing party must demonstrate the existence of a factual dispute ( Jones v. K & C Limousines of New York, LLC, 149 AD3d 638, 639 [1st Dept 2017] ). If the nonmoving party cannot make such showing, then the Court grants the motion. (See id. )
Utilizing the above analysis, the Court grants Lucky Deli's motion. Lucky Deli has established the right to relief. Administrative Code § 7–210 makes building owners responsible for the maintenance of the abutting sidewalk and liable for injuries caused by any negligence in this regard. In addition, 34 RCNY 2–07(b)(1) provides that the parties that own "covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware" ( Storper v. Kobe Club, 76 AD3d 426, 427 [1st Dept 2010] ). Under 34 RCNY 2–07(b)(1), "the owners of covers or gratings on a street are responsible for monitoring the condition of the covers and grating...." In addition, 34 RCNY 2–07(b)(2) requires the owners, inter alia, "to repair any cover or grating found to be defective ..." (See also Lewis v. City of New York, 89 AD3d 410, 411 [1st Dept 2016] ). Here, the Alderson affidavit identified the plate as a coal chute which leads to the subject building. As Lucky Deli states, a sidewalk vault such as a coal chute is a special use which renders the owner liable for its maintenance (See Navarreto v. 995 Westchester Ave. LLC, 35 AD3d 267, 268 [1st Dept 2006] ). This is true even where, as here, the owner may not continue to use the chute (See Ferguson v. Mantell, 216 A.D.2d 160, 161 [1st Dept 1995] ), or where the chute existed prior to Development Corp's ownership of the property (See Katz v. City of New York, 18 AD3d 818, 819 [2nd Dept 2005] ). Furthermore, Lucky Deli asserts that it never used the chute.
Lucky Deli's is correct that Development Corp has a nondelegable duty to maintain the sidewalk (See Kellogg v. All Saints Hous. Dev. Fund Co., Inc., 146 AD3d 615, 617 [1st Dept 2017] ). However, this means that an injured party has no direct claim against a tenant (See Torres v. Visto Realty Corp., 106 AD3d 645, 645–46 [1st Dept 2013] ). It does not mean that Development Corp cannot sue under its lease with Lucky Deli.
Development Corp's responsive papers are insufficient to oppose Lucky Deli's motion or support its own. As it argues, under the lease Lucky Deli was responsible for maintaining and repairing non-structural defects to the sidewalk (See Paniagua v. Bridge Food Center Corp., 59 AD3d 356, 356 [1st Dept 2009] [enforcing such a provision with respect to a door saddle] ). Because the steel plate is structural, however ( Sharbat v. 106–24 Realty Corp., 49 Misc.3d 1218[A], 2015 N.Y. Slip Op 51773[U], *3 [Sup Ct Queens County 2015] ), Development Corp was still responsible for its maintenance and repair. This is true regardless of whether it used the chute (See Feldman v. Kings Hero Rest., 270 A.D.2d 1, 1 [1st Dept 2000] ). Further, Development Corp has not raised an issue of fact as to whether Lucky Deli used the chute, created the problem, or in any way actively caused the alleged defect. For this reason, as well, Development Corp's indemnification argument fails.
Additionally, Development Corp's attempts to shift liability to other parties fail. Its contention that the City is liable for any misleveling of the steel plate has no merit. The administrative code shifts such liability away from the City to the landowner, as Development Corp acknowledges. However, Development Corp is wrong that 34 RCNY 2–07(a) and (b) shifts the burden to repair steel plates such as the one at issue back to the City. This argument ignores the law of the case, as Justice Eileen Rakower found that the City was not responsible for the chute (Akkoc v. 12–14 E. 37th Dev. Corp., Sup Ct, N.Y. County, Oct. 16, 2008, Rakower, J., Index No. 107610/2005) . Moreover, its reliance on Storper v. Kobe Club (76 AD3d 426, 427 [1st Dept 2010] ) for a contrary principle is misplaced, as that case found that the landowner was not responsible for any defects because the grate in question was owned and controlled by the MTA. Its argument that plaintiff has not set forth a prima facie case as to the existence of a defect is conclusory and without evidentiary support; therefore, it did not shift the burden to plaintiff on this issue. The question of whether the defect existed is reserved for the trier of fact.
Development Corp was in default at the time so did not file any papers.
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The indemnification clause does not apply here. Cucinotta v. City of New York (68 AD3d 682, 684 [1st Dept 2009] ), on which Lucky Deli relies, states that liability for structural defects does not shift to the tenant. Further, under General Obligations Law § 5–321, the landlord cannot exempt itself from its own liability through an indemnification agreement (See Breakaway Farm, Ltd. v. Ward, 15 AD3d 517, 518 [2nd Dept 2005] ). Although Breakway Farm, Ltd. involves negligence by the lessor, this principle applies where, as here, the landlord is statutorily liable for structural defects to the sidewalk. Moreover, as Lucky Deli points out, the lease itself states that it "shall indemnify and save harmless Owner against and from all liabilities, ... claims, costs and expenses ... suffered or incurred as a result of any breach by Tenant ... or the carelessness, negligence or improper conduct of the Tenant ..." (Lease ¶ 8), and paragraph 76 of the lease rider, to which Lucky Deli cites, emphasizes that tenant's obligation to indemnify relates to its own acts and omissions. For the same reasons discussed above, the accident at issue did not trigger Lucky Deli's obligation.
The Court also grants motion sequence number 13, in which Con Ed seeks to dismiss the third-party complaint as against it. The Ramirez affidavit is sufficient to show, prima facie, that Con Ed does not own the steel plate at issue in this case. Development Corp is incorrect that because Mr. Ramirez works for Con Ed his affidavit lacks merit. Instead, he is eminently qualified to determine whether a grate or manhole cover is the property of Con Ed. Moreover, the Alderson affidavit does not refute Con Ed's statement that the steel plate is not its property. Rather than purport to ascertain the ownership of what Mr. Alderson calls "the utility box," his purpose was to determine whether any of the pipes leading out of the box serviced Lucky Deli. He opined that the pipes led to Subway, a facility not named in this lawsuit. In addition, he noted that he was unable to open the box and inspect it fully. His statements do not create any factual disputes relating to Con Ed.
Accordingly, it is
ORDERED that motion sequence number 12 is granted and the cross-motion is denied; and it is further
ORDERED that motion sequence number 13 is granted; and it is further
ORDERED that all third-party claims and cross claims asserted against Con Ed and Lucky Deli are severed and dismissed; and it is further
ORDERED that the new caption shall read:
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY: IAS PART 34
X
SERAP MENDA as Executrix of the Estate of NURI M.
AKKOC,
Plaintiff,
Index No. 107610/2005
against
12–14 E. 37TH DEVELOPMENT CORP.,
Defendant.
X
12–14 E. 37TH DEVELOPMENT CORP.,
Plaintiff, Third Party
Index No. 590320/2011
against
F.J. SCIAME CONSTRUCTION CO., INC., ALEA
NORTH AMERICA INSURANCE CO., JOHN
DOES 1–10 and XYZ CORP. 1–10,
Defendants.
X
All future papers shall use the amended caption.