Opinion
No. 109078/2011.
11-16-2016
Karen MITCHELL, Plaintiff, v. 350 W. 125 STREET CORP., JPMorgan Chase & Co., Washington Mutual Bank, New York City Transit Authority and City of New York, Defendants.
Zachary W. Carter, Esq., Corporation Counsel of the City of New York, by Nicholas Schaefer, Esq., New York, for defendant City of New York. Gannon, Rosenfarb & Drossman, by William J. Crowe, Esq., New York, for defendant/third-party plaintiff 350 W. 125 Street Corp. Ehlrich Gyaner, LLP, by Charles J. Gayner, Esq., New York, for defendant/third-party defendant JPMorgan Chase & Co. Lawrence Heisler, Esq., by Peter Chang, Esq., Brooklyn, for defendant New York City Transit Authority. Friedman, Levy, Goldfarb & Green, PC, by Andrew J. Windman, Esq., New York, for plaintiff.
Zachary W. Carter, Esq., Corporation Counsel of the City of New York, by Nicholas Schaefer, Esq., New York, for defendant City of New York.
Gannon, Rosenfarb & Drossman, by William J. Crowe, Esq., New York, for defendant/third-party plaintiff 350 W. 125 Street Corp.
Ehlrich Gyaner, LLP, by Charles J. Gayner, Esq., New York, for defendant/third-party defendant JPMorgan Chase & Co.
Lawrence Heisler, Esq., by Peter Chang, Esq., Brooklyn, for defendant New York City Transit Authority.
Friedman, Levy, Goldfarb & Green, PC, by Andrew J. Windman, Esq., New York, for plaintiff.
MICHAEL D. STALLMAN, J.
This action arises out of an alleged slip and fall on ice at the southwest corner of West 125th Street and St. Nicholas Avenue in Manhattan, near an entrance to the A train subway station. The issue presented on these motions and cross motions for summary judgment is whether the duty to maintain the sidewalk area where plaintiff allegedly slipped and fell was the responsibility of either the City of New York, the abutting property owner or its tenant, or the New York City Transit Authority.
BACKGROUND
On January 20, 2011, at about 7:45 a.m., plaintiff allegedly slipped and fell on ice at the corner of 125th Street and St. Nicholas Avenue in Manhattan.
Plaintiff testified at her deposition that, at approximately 7:45 a.m., she exited the A train subway station at West 125th Street and St. Nicholas Avenue, by walking up the stairs at the southwest corner at West 125th Street and St. Nicholas Avenue (Crowe Affirm., Ex H [Plaintiff's EBT], at 23–24.) According to plaintiff, the stairwell and sidewalk at the southwest corner appeared to be clear of snow and ice, and there was no salt or sand on the ground. (Id . )
Plaintiff stated that, upon exiting the subway station, she walked towards West 125th Street and headed to a McDonald's restaurant nearby to get a cup of coffee. (Id. at 24–25.) According to plaintiff, the McDonald's restaurant was on the south side of West 125th Street, "the second building from the corner." (Id. at 25.)
Plaintiff stated, "I looked in and I had decided not to go in because the line was very long. So then I turned around." (Id. at 25.) Plaintiff testified that she "headed back toward the subway steps" at the southwest corner of St. Nicholas Avenue & West 125th Street. (Id. at 25–26.) Plaintiff testified as follows:
"Q. What happened next?
A. So there was a woman standing in between the railing of the subway. So I walked in between her and all of a sudden, I slipped.
Q. I'm trying to paint the picture.
A. A woman was standing next to—she was about two feet from the railing, so I walked in between her and the subway and I went down.
Q. So you walked in between the woman who was standing approximately two feet from the railing and the railing itself?
A. Yes, maybe two feet, three feet. I walked in between.
Q. Did you ask her to move in any way?
A. No, because there was enough room for me to go through." (Plaintiff's EBT at 26.)
According to plaintiff, she was "anywhere like a foot to two feet" from the railing. (Id. at 86.)
Plaintiff testified that she slipped; the top of her right foot twisted, and she fell onto her right side. (Id. at 27, 30.) She stated that two women helped her to stand, but she could not put any weight on her foot at that point. (Id. at 31.) Plaintiff testified that, as she was standing, she looked back at the sidewalk, and "I seen [sic] the ice." Plaintiff described the ice as "probably a foot wide and it went from the railing all the way to the curb." (Id. )
Stephanie Bellamy, a NYCTA Station Supervisor, testified at her deposition that, on January 20, 2011, she filed out a "Customer Unusual Occurrence Report" about plaintiff's alleged slip and fall at the 125th Street subway station. (Windman Opp. Affirm., Ex D [Bellamy EBT], at 11–13.) Bellamy testified that, on January 2011, a station cleaner had the responsibility to remove snow or ice from the steps that lead from the station to the roadway and in a three feet area around the entrance to the subway station. (Id. at 14–15, 21, 29.) According to Bellamy, the three feet around the subway stairway was "[t]he entrance, the side rail, and the back." (Id. at 28.) Bellamy stated that the snow "would be removed probably to the curb", i.e., "pushed out of the traffic area." (Id. at 16.) Bellamy also stated that it was part of the practice of the station cleaners to spread salt in any of the areas "if necessary", "if there was icing [sic] and snow." (Id. at 16–17.)
John Langley, a NYCTA Station Cleaner, testified at his deposition that, on January 20, 2011, he was at the subway station at 167th Street when he was notified of an incident at the 125th Street subway station and St. Nicholas Avenue, and was instructed "Just to check the area", i.e., the "staircase just outside the stairs." (Windman Opp. Affirm., Ex E [Langley EBT], at 14.) Langley testified that he prepared a cleaner's report on January 20, 2011 (Id. at 15), and that he wrote, in his own handwriting in Part 2 of the report,
"I inspected the part of the station where the incident occurred, top of street stairwell, date January 20, 2011, time 8:45 and left it clean and clear.
* * *
Weather conditions clear and damp, were there any snow or ice on the street surface, yes. Were there any snow or ice on the part of the station involved in the incident, yes. Were there any defects or obstructions at place of incident, no.
* * *
I, CTA, removed minimum snow and litter from stairs and in back of the KA rails Stairway S9." (Id. at 18–20.)
According to Langley, the "KA rails" "would be the back of the—when you come upstairs from the subway the railings that would be backside of it." (Id. at 20.) Langley stated the side railing at the sidewalk level would be referred to as "[j]ust the rails." (Id. at 21.)
Bellamy testified that she was there with Langley on January 20, 2011, "so I am the one that told him to remove the—you know I was there supervising removal of cleaning the stairway area and the snow ." (Bellamy EBT, at 46.) Bellamy stated that she saw Langley removing the snow to the curb. (Id. at 47.)
It is undisputed that, on January 20, 2011, Defendant 350 W 125th Street Corp. (350 West) was the abutting property owner. (Crowe Affirm. ¶ 2.) It is also undisputed that 350 West leased the premises to defendant Washington Mutual Bank, FA (WaMu). (Crowe Affirm, Ex J.) Domenick Margotta, a former Chase facilities manager, testified that there was a Chase bank branch at the corner of 125th Street and Nicholas Avenue. (Crowe Affirm., Ex K [Margotta EBT], at 10.)
Defendant/Third–Party Defendant JP Morgan Chase & Co. (Chase) now moves for summary judgment dismissing the complaint as against it (Motion Seq. No. 003). 350 West cross-moves for summary judgment dismissing the complaint as against it, or in the alternative, for summary judgment in its favor for contractual indemnification against Chase and WaMu. Defendant New York City Transit Authority (N.Y.CTA) cross-moves for summary judgment dismissing plaintiff's complaint and all cross claims as against it.
Plaintiff opposes Chase's motion, 350 West's cross motion, and the NYCTA's cross motion. Chase & Co. and 350 West both oppose the NYCTA's cross motion. Chase also opposes the branch of 350 West's motion seeking summary judgment in its favor against Chase.
Defendant City of New York moves for summary judgment dismissing the complaint and all cross claims as against it (Motion Seq. No. 004) Plaintiff opposes the City's motion.
This decision addresses both motions and both cross motions.
DISCUSSION
"On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action. Viewing the evidence in the light most favorable to the non-moving party, if the nonmoving party, nonetheless, fails to establish a material triable issue of fact, summary judgment for the movant is appropriate." (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015], rearg. denied, 27 NY3d 957 [2016] [internal quotation marks and citations omitted].)
Plaintiff asserts that each defendant independently owed a duty to the plaintiff, to keep the sidewalk free of snow and ice, whether it be an obligation created by statute, by lease agreement, or by special use of the sidewalk.
The City's Motion for Summary Judgment
The City argues that it is not responsible for maintenance of the sidewalk pursuant to Administrative Code § 7–210, and that, with some exceptions, the responsibility was shifted to the abutting property owner. Plaintiff asserts that the City was under a duty to maintain the sidewalk area where plaintiff allegedly fell, because the sidewalk was purportedly near a bus stop for the M3 bus route.
"On September 14, 2003, with the passage of § 7–210 of the Administrative Code of the City of New York, the duty to maintain and repair public sidewalks, within the City of New York, and any liability for the failure to do so, was shifted, with certain exceptions, to owners, whose property abuts the sidewalk. Accordingly, owners of nonexempted properties must now keep the sidewalks abutting their properties in a reasonably safe condition, much in the same way they are obligated to maintain their respective premises." (Early v. Hilton Hotels Corp., 73 AD3d 559, 560 [1st Dept.2010].)
Here, it is undisputed that 350 West was the abutting property owner. The City submits the affidavit of David Atik, an employee of the New York City Department of Finance. According to New York City Department of Finance records, the property was classified as Building Class K2 (store building), and not as a one-, two-or three-family dwelling. (Schaefer Affirm., Ex j [Atik Aff.] ¶¶ 4, 6.) Thus, the City of New York has met its prima facie burden of demonstrating that it is not responsible for the maintenance of public sidewalks abutting 350 West 125th Street, where plaintiff allegedly fell.
Plaintiff correctly indicates that abutting property owners have no duty under Administrative Code § 7–210 to clear snow and ice from a designated bus stop area. (Phillips v. Atlantic–Hudson, Inc., 105 AD3d 639 [1st Dept 2013] ; Garcia–Martinez v. City of New York, 20 Misc.3d 1111[A], 2008 WL 2582616 [Sup Ct, N.Y. County 2008].) However, these cases provide little guidance here as to what part of the public sidewalk would be considered part of the designated bus stop area. Plaintiff relies upon the deposition testimony of Steven Taylor, a supervisor with the New York City Department of Sanitation, who stated that the Department of Sanitation's snow removal operations sometimes include clearing paths on the sidewalk, "usually just maybe three feet in" from a bus stop. (Shaefer Affirm., Ex H, at 14.)
In Bednark v. City of New York (42 Misc.3d 314, 319 [Sup Ct, N.Y.2013], affd as modified 127 AD3d 403 [1st Dept 2015] ), this Court attempted to craft a definition of the designated bus stop area, which was limited only to those sidewalk flags upon which any City structure, such as a bus stop sign or shelter, is installed or sits. This definition was intended to provide clear guidance for the City, the NYCTA, and abutting property owners as to which portions of the public sidewalk would be the responsibility of the City to maintain. However, on appeal, the Appellate Division held, "A bus stop is not delimited to the roadway where buses operate but includes the sidewalk where passengers board and disembark from the bus." (Bednark v. City of New York, 127 AD3d 403, 404 [1st Dept 2015].)
Here, plaintiff has not submitted sufficient evidence to show where bus passengers board and disembark from the M3 bus route along St. Nicholas Avenue. Plaintiff submits two maps—a map of the bus route for the M3 bus line and a printout from Google maps, which are not competent evidence because they are unauthenticated. Moreover, as the City indicates, neither document establishes that, on January 2011, the M3 bus stop was near the area of the sidewalk where plaintiff allegedly fell. The bus route map is undated; the Google map printout bears a 2016 copyright date. There is no foundation to establish that the maps accurately depict where along St. Nicholas Avenue the M3 bus would stop at the West 125th Street bus stop. Therefore, plaintiff fails to raise a triable issue of fact as to whether the sidewalk where plaintiff allegedly slipped and fell was part of a designated bus stop, which would be the City's responsibility to maintain.
Contrary to plaintiff's argument, the City was not required to submit evidence that it did not cause or create the allegedly hazardous condition of the sidewalk to meet its prima facie burden. "The moving party need not specifically disprove every remotely possible state of facts on which its opponent might win the case" (Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009] ), "particularly when the opponent's ‘theorizing’ is ‘farfetched’." (Justinian Capital SPC v. WestLB AG, ––– NY3d ––––, 2016 WL 6270071 [2016].) Given that the City has established its prima facie burden that it had no responsibility to maintain the sidewalk area at issue, the City was not required to disprove the remote possibility that it performed ice removal to satisfy its prima facie burden.
Therefore, the City's motion for summary judgment is granted, and the complaint and all cross claims against the City are dismissed. Cross claims by the City are also dismissed. In the absence of a direct tort claim against the City, the City may not seek contribution or common-law indemnification from the co-defendants, because such relief does not constitute an independent cause of action. (Capstone Enters. of Port Chester, Inc. v. Board of Educ. Irvington Union Free Sch. Dist., 106 AD3d 856, 859 [2d Dept 2013].)
The NYCTA's Cross Motion
The NYCTA argues that it does not have the duty to clear snow from sidewalks around the railing of a subway entrance. Rather, the NYCTA contends that it was Chase's responsibility under the WaMu lease. In any event, the NYCTA maintains that it neither created nor had actual or constructive notice of the icy condition of the sidewalk area where plaintiff allegedly fell.
The parties do not cite any statute or regulation that would require the NYCTA to remove snow and ice from the area around the railing of a subway entrance; nor did this Court find any such statute or regulation applicable to the railing of subway entrances. Therefore, this Court concludes that the NYCTA had no statutory or regulatory duty to remove snow and ice from the sidewalk flag upon which the railing was installed, the breach of which tort liability could be imposed upon the NYCTA.
Whether the NYCTA had a common-law duty to remove snow and ice from the sidewalk area at issue presents a more difficult question. In Bingham v. New York City Transit Authority (8 NY3d 176 [2007] ), the Court of Appeals held,
"Courts have long recognized that the duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers. This duty has been applied to those areas owned and maintained by others if ‘constantly and notoriously’ used by passengers as means of approach. Where ... a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger. Whether those means of ingress or egress are used primarily for that purpose would generally be a question of fact." (Bingham, 8 NY3d at 180–181.)
In Spreiregen v. New York City Transit Authority (2013 WL 2408681 [Sup Ct, N.Y. County 2013] ), this Court ruled that the duty under Bingham generally does not extend to the public sidewalk surrounding the entrance to the subway station. This Court reasoned,
"The Court of Appeals noted in Bingham that ‘this duty of care imposed on a carrier to keep approaches and platforms safe has not been extended to common areas in a multi-carrier facility.’ (Id. at 128 n.) Here, the public sidewalk is akin to a common area to which a duty under Bingham should not extend. (See Ruffino v. New York City Tr. Auth., 55 AD3d 819,821 [2d Dept 2008] [duty under Bingham did not extend to a boardwalk located between a Long Island Rail Road station and a NYCTA subway station].) The fact that the public sidewalk leads to an exterior set of steps leading to the entrance of the ... subway station therefore does not, without more, constitute an approach under Bingham. " (Spreiregen, 2013 WL 2408681, at *2–3 ; but see Boss v. Bridgeport & Port Jefferson Steamboat Co., 48 Misc.3d 1207 (A) [Sup Ct, Suffolk County 2015] [issue of fact as to whether a common carrier had a duty to remove snow and ice from a sidewalk that provided access to the town marina, a town parking lot, and various shops and restaurants in the village's "downtown" area in addition to the ferry terminal building].)
However, the inquiry does not end there. "[T]he installation of the subway entrance substructure constituted a special use by NYCTA." (Weisskopf v. City of New York, 5 AD3d 202, 203 [1st Dept 2004].) As one who obtained the benefit from its special use, the NYCTA is " ‘required to maintain the used property in a reasonably safe condition to avoid injury to others." (Kaufman v.. Silver, 90 N.Y.2d 204, 207 [1997] [internal quotation marks and citation omitted]. This includes a duty to remove snow and ice from the area of special use. (Tedeschi v. KMK Realty Corp., 8 AD3d 658, 659 [2d Dept 2004].)
Where the allegedly hazardous condition occurs in a part of the sidewalk put to special use, then the NYCTA bears the burden of establishing that it did " ‘nothing to either create the defect or cause it through the special use....’ " (Marino, 67 AD3d at 501 500, 501 [1st Dept 2009], quoting Torres v. City of New York, 32 AD3d 347 [1st Dept 2006].) Where the sidewalk is adjacent to, but not part of, the area of special use, the plaintiff must show that the NYCTA's special use contributed to the alleged condition to recover. (See Marino v. Parish of Trinity Church, 67 AD3d 500, 501 [1st Dept 2009] ; Adorno v. Carty, 23 AD3d 590 [2d Dept 2005].)
Here, it cannot be determined from the record that the sidewalk area where plaintiff allegedly slipped and fell was located on the portion of the sidewalk put to the NYCTA's special use—i.e., the sidewalk flag upon which the railing was installed. At her deposition, plaintiff described the ice as "probably a foot wide and it went from the railing all the way to the curb." (Plaintiff's EBT, at 31.) Plaintiff testified that she was "anywhere like a foot to two feet" from the railing. (Id. at 86.) It cannot be determined from the record that a fall within either one foot or two feet away from the railing of the subway entrance was on the sidewalk flag where the railing of the subway entrance was installed.
Moreover, as 350 West indicates, NYCTA employees testified at their deposition that that they performed snow and ice removal of the sidewalk area around the railing of the subway entrance. Viewing the evidence in the light most favorable to the non-movants of the NYCTA's motion, the reasonable inference from this testimony is that the sidewalk area at issue was on the portion of the sidewalk over which the NYCTA exerted control.
Thus, the NYCTA has not demonstrated, as a matter of law, that it had no duty to remove snow and ice from the sidewalk area where plaintiff allegedly fell. The NYCTA's reliance upon Chase's contractual duties under the lease with 350 West is misplaced. Chase did not owe plaintiff a duty of care based on provisions of a lease obligating a tenant to maintain the sidewalk. (Leary v. Dallas BBQ, 91 AD3d 519 [1st Dept 2012] ; Collado v. Cruz, 81 AD3d 542, 542 [1st Dept 2011].)
Assuming, for the sake of argument, that plaintiff fell on the area of special use, the NYCTA maintains that it neither created nor had actual or constructive notice of the allegedly icy condition of the sidewalk, based on the affidavit of Ms. Lanis Parris, a NYCTA Station Cleaner (Chang Affirm., Ex E [Parris Aff.] ), and a NOAA climatological report from the Central Park weather station for January 2011. (Chang Affirm., Ex F.)
Paris avers that she was assigned to the clean the subway station at St. Nicholas Avenue and 125th Street, where she worked on January 19, 2011 from 11:00 p.m. until 6 a.m. on January 2011. (Parris Aff. ¶¶ 4–5.) According to Parris, as part of her duties and responsibilities, she "inspect[s] each station's stairway and "outside areas (including sidewalks three feet around the subway entrance stairways and railings) for garbage, dirt, debris and foreign substances (including snow and ice) and I note any defects. I also spread sand and snow-melt on the stairways and outside areas." (Id. 2.) Parris states that she last cleaned and inspected the stairways and outside areas at about 5:30 a.m., and at that time, "I left the stairways and outside areas clean, dry, and free of foreign substances." (Id. ¶ 7.)
According to the climatological report, precipitation fell on January 18, 2011, when the temperature was between 24 and 41 degrees Fahrenheit, and again on January 19, 2011, when the temperature was between 35 and 41 degrees Fahrenheit. (Chang Affirm, Ex F.) However, there was no precipitation on January 20, 2011, in the hours before or after Parris purportedly inspected the outside areas.
Parris's affidavit and the climatological report are sufficient to meet the NYCTA's prima facie burden that it neither created nor had actual notice of the allegedly icy condition of the sidewalk. (See Roman v. Met–Paca II Assoc., L.P., 85 AD3d 509, 510 [1st Dept 2011] [defendant's superintendent testified that, approximately two hours prior to plaintiff's alleged accident, he did not see any ice on the ramp where plaintiff claims she fell].) Because plaintiff testified that, prior to falling, the stairwell and sidewalk at the southwest corner appeared to be clear of snow and ice (Plaintiff's EBT, at 23–24), the NYCTA also met its prima burden of demonstrating that the alleged defective condition was not "visible and apparent" so as to give rise to constructive notice (Johnson v. Wythe Place, LLC, 134 AD3d 569, 569 [1st Dept 2015]; Roman, 85 AD3d at 510.)
However, as 350 West indicates, Bellamy and Langley testified that Langley cleaned the sidewalk area around at 8:45 a.m., and his report states that there was snow or ice involved in the incident. Langley testified that he removed "minimum snow and litter from the stairs and in back of the KA rails" of the stairway from where plaintiff had excited. (Langley EBT, at 18–20.)
Given that the climatological records indicate that there was no snowfall on January 20, 2011 before plaintiff's alleged incident, a reasonable inference may be drawn in the non-movants' favor that the snow or ice in the area of the alleged incident was present before January 20, 2011. Thus, an issue of fact arises as to whether the NYCTA had constructive notice of the snow or ice in the area where plaintiff allegedly slipped and fell.
In sum, the NYCTA's cross motion for summary judgment is denied.
350 West's Cross Motion
350 West contends that it was not responsible for removing snow and ice from the sidewalk where plaintiff allegedly fell, based on plaintiff's testimony of where she allegedly fell and the testimony from NYCTA Station Cleaners.
As discussed above, the abutting property owner has a duty under Administrative Code § 7–210 to maintain the public sidewalk. To the extent that plaintiff fell on a portion of the sidewalk over which the NYCTA exercised some control, e.g. by cleaning, this raises the issue of whether the NYCTA and 350 West could be concurrently liable in this case. That is, did the NYCTA's routine cleaning of part of the sidewalk exclude that area from the abutting property owner's duty?
Imposition of the duty to repair or maintain a special use is necessarily premised upon the existence of access to and ability to exercise control over the special use structure or installation. (Kaufman v. Silver, 90 N.Y.2d 204, 208 [1997].)
"That access and ability to exercise control over the special use are essential to the existence of a duty to repair and maintain is further illustrated by circumstances in which separate entities, each possessing control over the instrumentality, have been held liable on a special benefit theory. Where, for example, a patron fell on a defective iron grating in the sidewalk adjacent to a store front, the owner and the occupying tenant were held directly liable to the injured party: "[a]s both * * * were in control of the grating and coping, each was under an affirmative duty to properly maintain the premises, and their failure to discharge that obligation rendered them both liable as joint tort-feasors". Conversely, where a tenant, in possession and occupation, carelessly causes injury by his or her use of the instrumentality, and the owner reserved no control over the special use structure, the owner is under no duty and incurs no liability." (Id. )
Here, it cannot be seriously argued that 350 West, as the abutting property owner, has control over the installed railing of the subway entrance. Moreover, there is nothing in Administrative Code § 7–210 to show that the City Council intended to shift the obligation of the NYCTA (who benefits from the special use) onto the abutting property owner. Thus, this Court does not agree with plaintiff that the NYCTA and the abutting property owner could be concurrently liable if plaintiff fell in the area of the sidewalk put to the NYCTA's special use. (See Smirnova v. City of New York, 64 AD3d 641, 642 [2d Dept 2009] [plywood boards affixed to the sidewalk by NYCTA were not part of the "sidewalk" for purposes of liability under Administrative Code § 7–210]; Storper v. Kobe Club, 76 AD3d 426, 427 [1st Dept 2010].) "In reaching this result, we are guided by the principle that ‘legislative enactments in derogation of common law, and especially those creating liability where none previously existed,’ must be strictly construed." (Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521 [2008] [citation omitted].)
However, as discussed above, it cannot be determined, as a matter of law, that the sidewalk area where plaintiff allegedly slipped and fell was located on the portion of the sidewalk put to the NYCTA's special use. Testimony that NYCTA undertook to inspect and remove snow and ice from the sidewalk area where plaintiff allegedly fell does not establish, as a matter of law, that the area cleaned was an area of special use.
If the sidewalk area at issue was adjacent to the area of special use, the Court agrees with plaintiff that the fact that someone else voluntarily performed snow and ice removal would not supplant 350 West's duty to maintain the abutting public sidewalk under Administrative Code § 7–210.
Therefore, the branch of 350 West's cross motion for summary judgment dismissing the action as against it is denied.
As to the branch of 350 West's cross motion for summary judgment in its favor against WaMu and Chase for contractual indemnification,
"[a]lthough the Administrative Code of the City of New York § 7–210 imposes a nondelegable duty on the owner of the abutting premises to maintain and repair the sidewalk, a tenant may be held liable to the owner for damages resulting from a violation of a lease, which imposed on the tenant the obligation to repair or replace the sidewalk in front of the property." (Wahl v. JCNYC, LLC, 133 AD3d 552, 552 [1st Dept 2015] [internal citation and emendation omitted].)
Here, 350 West relies upon Paragraph 50 of the rider to 350 West's lease with WaMu and paragraph 8 of the lease to establish its entitlement to contractual indemnification. Paragraph 50 of the rider states, in relevant part:
"Tenant agrees that it will either cause its employees to cause the removal of ... snow and ice or Tenant will independently contract for the removal of all ... snow and ice, in each case, on sidewalks directly adjacent to the Demised Premises and eighteen (18?) inches into the street." (Crowe Affirm., Ex J at 17.)
Paragraph 8 of the lease states, in pertinent part:
"Owner or its agents shall not be liable ... for any injury or damage to persons or property resulting from any cause of whatsoever nature, unless caused by or due to the negligence or willful misconduct of Owner....Tenant agrees, at Tenant's sole cost and expense, to maintain general public liability insurance in standard form in favor of Owner and Tenant against claims for bodily injury or death or property damages occurring in or upon the demised premises, effective from the date Tenant enters into possession and during the term of this lease. Such insurance shall be in an amount and, with carriers acceptable to owner. Certificates evidencing such policy or policies shall be delivered to the Owner. On Tenant's default in obtaining or delivering any such policy or policies or failure to pay the charges therefor, Owner may secure or pay the charges for any such policy or policies and charge the Tenant as additional rent therefor. Tenant shall indemnify and save harmless Owner against all liabilities, obligations, damages, penalties, claims, costs and expenses for which Owner shall not be reimbursed by insurance, including reasonable attorneys fees, paid, suffered or incurred as a result of any breach by Tenant, Tenant's agent, contractors ... or licensees of any covenant on condition of this lease, or the carelessness, negligence or improper conduct of the Tenant." (Id. )
Domenick Margotta, a former Chase facility manager who worked at the Chase branch at the corner of 125th Street and St. Nicholas Avenue, testified at his deposition that Chase contracted with vendors for snow removal, and that the vendor was "All County." (Crowe Affirm., Ex K [Margotta EBT], at 12, 17; see also Chang Affirm., Ex D).
350 West appears to argue that it is entitled to contractual indemnification pursuant to paragraph 8 of the lease because Chase's contractor, All County, did not perform snow and ice removal of the abutting sidewalks, as required pursuant to Paragraph 50 of the rider to the lease. Chase maintains that the indemnification provisions have no bearing in this case, because plaintiff did not fall on its premises, and that he fell in an area that the NYCTA had a duty to maintain.
350 West has not demonstrated that WaMu or Chase breached Paragraph 50 of the rider to the lease. Paragraph 50 requires Chase to remove snow and ice in an area extending 18 inches from its leased premises. The subway entrance appears to extend outward from the building line; the railing appears to separate the entrance from the sidewalk, as shown in photographs marked at plaintiff's deposition. (See Gayner Affirm., Ex C [photograph marked as Defendant's Exhibit B]; see also Schaeffer Reply Affirm., Ex A.) The area where plaintiff allegedly fell was within one or two feet beyond the outer railing of the subway entrance. Thus, even assuming the truth of plaintiff's testimony, plaintiff would have fallen in an area more than 18 inches from the leased premises. Therefore, the branch of 350 West's motion for summary judgment in its favor against WaMu and Chase for contractual indemnification is denied.
Chase's Motion for Summary Judgment
Chase's motion for summary judgment is denied. Like 350 West, Chase contends that the NYCTA, not Chase, owe plaintiff a duty to maintain the sidewalk area where plaintiff allegedly fell, based upon the testimony of NYCTA Station Cleaners. However, as discussed above, it cannot be determined, as a matter of law, that the sidewalk area where plaintiff allegedly slipped and fell was located on the portion of the sidewalk put to the NYCTA's special use.
CONCLUSION
Accordingly, it is hereby ORDERED that the motion for summary judgment by defendant JP Morgan Chase & Co. (Motion Seq. No. 003) is denied; and it is further
ORDERED that the cross motion for summary judgment by defendant New York City Transit Authority is denied; and it is further
ORDERED that the cross motion for summary judgment by defendant 350 W. 125th Street Corp. is denied; and it is further
ORDERED that the motion for summary judgment by defendant City of New York is granted, and the complaint is dismissed as against this defendant with costs and disbursements as taxed by the Clerk upon submission of an appropriate bill of costs, and all cross claims by and against this defendant are dismissed, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the action is severed and shall continue against the remaining defendants and third-party defendants.