Opinion
104732/08.
Decided March 2, 2010.
Jean M. Prabhu, Esq., Burns Harris, New York, NY, for plaintiff.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, NY, for defendants Central Park Boathouse and Riverbay Restaurant.
Michael Cardozo, Corporation Counsel, Peter C. Lucas, Assistant Corporation Counsel, New York City Law Department, Tort Division, Manhattan Trial Unit, New York, New York, for defendants City and Parks.
By notice of motion dated October 19, 2009, defendants City of New York (City) and NYC Department of Parks and Recreation (Parks) move pursuant to CPLR 3211(a)(7) and 3212 for an order summarily dismissing the action and all cross-claims. By notice of cross-motion dated November 25, 2009, defendants Central Park Boathouse, LLC (CPB) and Riverbay Restaurant Central Park Boathouse LLC (Riverbay) move pursuant to CPLR 3212 for an order summarily dismissing the action as to them. Plaintiffs oppose both motions.
I. UNDISPUTED FACTUAL BACKGROUND
By license agreement dated June 12, 2000 (agreement), City, acting by and through Parks, granted CPB a license to operate, among other things, a bicycle rental at the Loeb Memorial Boathouse, which is under the jurisdiction and control of Parks. (Affirmation of Peter C. Lucas, Esq., dated Oct. 19, 2009 [Lucas Aff.], Exhs. F, G). The duration of the license is 15 years or for as long as each term and condition is strictly and properly complied with and so long as it is not terminated by the Parks Commissioner (Commissioner). ( Id., Exh. G, ¶¶ 1.3, 3.1, 3.2). Free access to the premises "for inspection purposes" is reserved to the Commissioner and other City, State and Federal officials. ( Id., ¶ 1.4).
In paragraph 9.7 of the agreement, CPB agrees that whoever personally operates the license will possess appropriate qualifications to manage it "in a manner satisfactory to Commissioner," and to replace any manager or employee whenever reasonably demanded by the Commissioner (¶ 9.9). The Commissioner retains the right to approve the hours of operation reasonably (¶ 9.2), and to receive from CPB for his or her prior approval schedules for the coming operating year, fees, and rates (¶ 9.5). ( Id.).
CPB must also "prepare and provide to Parks operational status reports and reports of major accidents or unusual incidents occurring at the premises," promptly notify Parks in writing of any claim for injury, death, property damage or theft which may be asserted against CPB with respect to the premises (¶ 9.16), and provide and replace if necessary, at its sole cost and expense and to the satisfaction of the Commissioner, "all equipment necessary for the operation" of the license, and "put, keep, repair, preserve and maintain in good order all equipment found on" the premises (¶ 13.1). In paragraph 9.25, CPB is specifically required to provide "new (or like new) bicycles, free of defects, of the best grade quality, and suitable for the purpose intended, as required." ( Id.).
Paragraph 12.1 provides that "should the Commissioner decide that [CPB] is not operating the Licensed Premises in a satisfactory manner, Commissioner may in writing order [CPB] to improve operations or correct such conditions as Commissioner may deem unsatisfactory." ( Id.). However, CPB also agrees to defend, indemnify, and hold City, its agents and employees harmless against any and all liability and claims for which they are or may be liable as a result of any personal injury arising in whole or in part from any negligent or intentional conduct by CPB or others in connection with CPB's operations pursuant to the license, and assumes all risk in the operation of its license. ( Id., ¶¶ 23.1, 23.4).
On September 7, 2007, at approximately 4:00 pm, while riding a bicycle she had rented from CPB, the infant plaintiff fell from it and was injured. ( Id., Exh. B).
II. PERTINENT PROCEDURAL BACKGROUND
On or about April 2, 2008, plaintiffs sued defendants for the infant plaintiff's injuries, advancing causes of action for negligence and deprivation of services. ( Id., Exh. B). On or about May 8, 2008, defendants served their answers. CPB and Riverbay interposed cross-claims against City and Parks seeking contractual and common law indemnification, and City and Parks interposed a cross-claim against CPB and Riverbay seeking contribution or contractual indemnification. ( Id., Exhs. C, D).
At a 50-h hearing held on March 14, 2008, the infant plaintiff testified, in pertinent part, that on the day of her accident, she had selected an "orange and rusty" bicycle from CPB's bicycle rental, and at a deposition held on January 16, 2009, she testified that it was an "orange Hampton Cruise bicycle." ( Id., Exh. E; Affirmation of Jean M. Prabhu, Esq., dated Nov. 18, 2009, Exh. B). After riding the bicycle for less than an hour, she saw that the bicycle chain had become dislodged. The back wheel then swerved, and she was thrown onto a rock.
At an examination before trial held on June 3, 2009, Mark Feinstein, Assistant Director of the Revenue Division of Parks, testified that no one from Parks is assigned to the bicycle rental facility for its day to day operations, and that he had no knowledge of whether any of the determinations referred to in the license agreement had been made concerning the bicycle rental. (Lucas Aff., Exh. F). At an examination before trial held the same day, CPB partner Dean Poll testified that: (1) there is no general manager of the bicycle rental facility; (2) two or three CPB employees work there on any given day; (3) the employees' duties include checking that the bicycles are in good working order; (4) they have tools to repair the bicycles; (5) although the employees are given an opportunity to be trained to repair or maintain the bicycles, none of them have had such training; (6) the employees inspect the bicycles as customers try them out or upon taking them from storage; and (7) there is no specific policy governing repairs. (Affirmation of Mark T. Newman, Esq., Nov. 25, 2009 [Newman Aff.], Exh. D).
III. CITY'S AND PARK'S MOTION TO DISMISS
A. Contentions
Relying on the agreement and the infant plaintiff's testimony, City and Parks deny ownership or control of the bicycle or any notice it was defective and observe that the accident did not result from a defect on the path on which the infant plaintiff rode the bicycle. They thus deny owing plaintiffs any duty relating to the bicycle. They also claim that given the indemnification clause in the agreement, CPB breached its duty to defend them in this action. For all of these reasons, they assert that the complaint should be dismissed against them pursuant to CPLR 3211(a)(7) for failure to state a claim upon which relief may be granted, or in the alternative, pursuant to CPLR 3212, for summary judgment dismissing the claim and cross-claim against them. (Lucas Aff.).
In opposition, plaintiffs contend that as City and Parks retained control of the bicycle rental facility pursuant to the agreement, and as they thereby permitted CPB and Riverbay to rent to the infant plaintiff an old, rusty, and defective bicycle, a duty of care to her arose sufficient to preclude any dismissal in City's and Park's favor. (Affirmation of Jean M. Prabhu, Esq., dated Nov. 18, 2009 [Prabhu Nov. Aff.]). They also maintain that City and Parks failed to submit admissible evidence in support of their motion and that absent any evidence that City and Parks did not fulfill their supervisory function as set forth in the agreement, City and Parks failed to demonstrate, prima facie, that they did not control CPB's and Riverbay's conduct with respect to the renting out of the bicycle to the infant plaintiff. ( Id.).
Plaintiffs likewise assert that absent any evidence that City and Parks received from CPB any operational status reports or reports of any major accidents or unusual incidents, given Feinstein's ignorance as to whether or not City made any determinations pursuant to the agreement, and in light of the many conditions set forth in the agreement, the Commissioner's free access to the premises to inspect them, and the other incidents of control and/or supervisory authority over CPB's license, City and Parks cannot demonstrate, prima facie, the absence of notice of the condition giving rise to the infant plaintiff's injury. ( Id.).
In reply, City and Parks deny any duty to inspect the bicycles or that they inspected them. (Reply Affirmation of Peter C. Lucas, Esq., dated Dec. 9, 2009).
CPB and Riverbay submit no opposition to City's and Parks' motion.
B. Applicable law
Pursuant to CPLR 3211(a)(7), a party may move at any time for an order dismissing one or more causes of action asserted against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, accept the alleged facts as true, accord the non-moving party the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable legal theory. ( Leon v Martinez, 84 NY2d 83, 87).
The movant may submit affidavits or any other items of proof to undermine any material fact on which the claim depends, and if it is shown that a material fact relied upon by the pleader is not a fact and that no significant dispute about it exists, the motion must be granted. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, CPLR 3211:25 [2004 main vol]; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152). When such extrinsic evidence is submitted on the motion, the allegations are no longer deemed true, and the standard of review becomes whether the proponent of the pleading has a cause of action, not whether she has stated one. ( Id.; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659). A claim is thus subject to dismissal when it is established that "the essential facts have been negated beyond substantial question" by the extrinsic evidence. ( Biondi, 257 AD2d at 81, quoting Blackgold Realty Corp. v Milne, 119 AD2d 512, 513 [1st Dept 1986], affd 69 NY2d 719).
In seeking summary judgment pursuant to CPLR 3212, the movant must establish, prima facie, entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." ( Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the opposition papers. ( Winegrad, 64 NY2d 851, 853).
Pointing to gaps in an opponent's proof does not ordinarily satisfy the movant's prima facie burden. Rather, the movant must affirmatively demonstrate the merit of its claim or defense. ( Alvarez v 21st Century Renovations Ltd. , 66 AD3d 524 , 525 [1st Dept 2009]; Mennerich v Esposito , 4 AD3d 399 , 400 [2d Dept 2004]; George Larkin Trucking Co. v Lisbon Tire Mart, Inc., 185 AD2d 614, 615 [4th Dept 1992]). Thus, a defendant moving for summary judgment must submit evidence which negates, prima facie, an essential element of the plaintiff's cause of action. ( Rosabella v Metro. Trans. Auth., 23 AD3d 365, 366 [2d Dept 2005]).
When the moving party has demonstrated prima facie entitlement to summary judgment, the burden of proof shifts to the opposing party which must demonstrate by admissible evidence the existence of a factual issue requiring trial. ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman, 49 NY2d 557, 562). The opposing party must "lay bare" its evidence ( Silbertstein, Awad Miklos v Carson, 304 AD2d 817, 818 [1st Dept 2003]); "unsubstantiated allegations or assertions are insufficient" ( Zuckerman, 49 NY2d 557, at 562).
The elements of a cause of action for negligence are: (1) a duty owed by the defendant to the plaintiff; (2) a breach thereof; and (3) injury proximately resulting therefrom. ( Solomon by Solomon v City of New York, 66 NY2d 1026, 1027; J.E. v Beth Israel Hosp., 295 AD2d 281, 283 [1st Dept 2002], lv denied 99 NY2d 507). Absent a duty owed, there is no negligence. ( Darby v Compagnie Nat'l Air France, 96 NY2d 343, 347).
C. Analysis
Although the agreement grants City and Parks certain supervisory rights and duties, none of them requires that they supply bicycles or bicycle parts, or repair the bicycles. Rather, CPB is solely responsible for the equipment on the premises, and plaintiffs furnish no apposite authority for the proposition that City and Parks, solely by virtue of those supervisory rights and duties, owe plaintiffs a duty. That CPB is required to notify Parks of any claims of injury against it provides no basis for imposing such a duty, especially since the requirement is restricted to claims "with respect to the premises." The rental bicycles are not part of the premises.
Even if the bicycle was part of the premises, City and Parks, as an out-of-possession landlord with a right of access, does not have control over it sufficient to render them liable for damages sustained due to the defect. ( See Grady v Hoffman , 63 AD3d 1266 [3d Dept 2009] [that out-of-possession landlord may have retained right to visit premises or even approve alterations, additions or improvements is insufficient to establish requisite degree of control necessary for imposition of liability]; Schwegler v City of Niagara Falls , 21 AD3d 1268 [4th Dept 2005] [same]; Deebs v Rich-Mar Realty Enter., 248 AD2d 185 [1st Dept 1998] [right of access alone insufficient to impose liability]). Consequently, the agreement provides no basis for finding that City and Parks had control over premises sufficient to give rise to liability, and Feinstein's testimony demonstrates that there was no degree of control exercised by City and Parks over the premises. That the agreement is annexed to counsel's affirmation and that Feinstein had no personal knowledge of it does not render it inadmissible on this motion. ( DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003] [merely attaching leases to attorney's affirmation sufficient for their admission]).
According to the infant plaintiff, she independently chose the bicycle, and apparently noticed no defect until she had been riding for at least 15 minutes, thereby raising an inference that the defect was neither open nor apparent. ( See Flores v Langsam Prop. Svces. Corp. , 63 AD3d 502 [1st Dept 2009], affd 13 NY3d 811 [shower suddenly and without warning sprayed plaintiff with scalding water, which had never happened before]). Thus, City and Parks did not actually or constructively notice any defect.
For all of these reasons, City and Parks have met their burden of establishing, prima facie, that they owed no duty to the infant plaintiff, and plaintiffs have failed to raise a triable issue of fact as to the existence of a duty. In light of this result, I need not address City and Park's CPLR 3211(a)(7) motion or their indemnification argument.
IV. CPB'S AND RIVERBAY'S CROSS-MOTION TO DISMISS A. Actual and constructive notice 1. Contentions
Relying on the infant plaintiff's deposition testimony that she had operated the bicycle for at least 15 minutes before her accident, and the absence of any notice of a defect, CPB and Riverbay contend that plaintiffs cannot establish that they had notice of the condition which led to the infant plaintiff's injury. (Newman Aff.).
Plaintiffs argue that CPB and Riverbay have failed to establish that they had no actual or constructive notice of the allegedly defective condition of the bicycle, and complain that they failed to submit a copy of the agreement or a statement from anyone with knowledge of any prior accidents or repairs. They assert that CPB's and Riverbay's duty to inspect and repair the bicycles gives rise to a triable issue as to whether they were negligent. (Affirmation of Jean M. Prabhu, Esq., dated Dec. 14, 2009 [Prabhu Dec. Aff.]).
2. Applicable law
In moving to summarily dismiss a negligence action, where the defendant indisputably owes a duty of care to the plaintiff, the defendant must prove, prima facie, that it neither created the dangerous or defective condition nor had actual or constructive notice of it. ( Smith v Costco Wholesale Corp. , 50 AD3d 499 [1st Dept 2008]).
3. Analysis
CPB and Riverbay do not submit a statement from anyone with personal knowledge of the bicycle, of any prior accidents or repairs, or of their employees' relevant actions or observations on the date of the accident. Poll had no personal knowledge of any details of the accident; rather, his testimony related solely to CPB's and Riverbay's general operating procedures.
In Moore v 793-797 Garden St. Hous. Dev. Corp., the court held that the defendants failed to establish a lack of notice as a matter of law absent the testimony of employees who were regularly at the property and dealt with complaints, as those employees could have testified as to the lack of complaints about the defective condition of premises and when it was last inspected or repaired. ( 46 AD3d 382 [1st Dept 2007]). Similarly, in Baptiste v 1626 Meat Corp., testimony concerning the defendant's general maintenance procedures was held an insufficient basis for summary judgment absent details or any information about its employee's actions on the day of the accident. ( 45 AD3d 259 [1st Dept 2007]; see Dorsey v Les Sans Culottes , 43 AD3d 261 [1st Dept 2007] [owner's testimony about customary procedures not probative of what happened on day of accident]; Silverman v Blenheim Assocs. Realty Corp., 291 AD2d 214 [1st Dept 2002] [manager's testimony that his responsibilities did not include parking lot where accident occurred, he never inspected railing, and he did not know about construction being performed in area was insufficient to prove lack of notice]).
Here, CPB and Riverbay offered no testimony from a person who was at the facility when the infant plaintiff rented the bicycle and saw the bicycle or had personal knowledge of its condition or of any prior accidents or repairs to it, defendants have not affirmatively established a lack of notice. Their reliance on gaps in plaintiffs' proof does not satisfy their burden on the motion. ( Alvarez v 21st Century Renovations Ltd. , 66 AD3d 524 , 525 [1st Dept 2009] [as evidence on motion silent as to whether decedent was conscious before death, defendant failed to satisfy burden of proof]).
CPB and Riverbay have thus failed to satisfy their prima facie burden of proving a lack of actual notice. I thus need not consider the sufficiency of plaintiffs' papers. ( Dorsey, 43 AD3d at 261).
However, absent any evidence that the defect was visible or apparent or that it existed for a sufficient amount of time prior to the accident ( supra, III.C.), there is no triable issue as to whether CPB and Riverbay had constructive notice that the bicycle was defective.
B. Res ipsa loquitur
Plaintiffs also contend that the infant plaintiff's accident itself evidences CPB's and Riverbay's negligence, thus precluding a summary dismissal. (Prabhu Dec. Aff.). CPB and Riverbay deny that the accident itself evidences negligence as the infant plaintiff had exclusive control of the bicycle at the time of the accident. (Affirmation of Lindsay J. Kalick, Esq., dated Jan. 6, 2010).
1. Applicable law
Before negligence may be presumed from the circumstances of an accident's occurrence ( res ipsa loquitur), the plaintiff must establish that the accident: (1) is of a kind that does not ordinarily occur in the absence of someone's negligence; (2) was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary action or contribution on the part of the plaintiff. (79 NY Jur 2d, Negligence § 147 [2009]; Ebanks v NYCTA, 70 NY2d 621, 623; Dermatossian v NYCTA, 67 NY2d 219, 223; Banca di Roma v Mut. Of Am. Life Ins. Co., Inc. , 17 AD3d 119 [1st Dept 2005]).
When the accident-producing object is accessible by third persons, such as customers or patrons, the defendant does not have exclusive control of it. (79 NY Jur 2d, Negligence § 151). "Proof that third parties have had access to the instrumentality generally destroys the premise [of res ipsa loquitur], and [] negligence cannot be inferred." ( De Witt Prop., Inc. v City of New York, 44 NY2d 417).
2. Analysis
Here, it is undisputed that the public had access to the bicycles and upon renting the bicycle, the infant plaintiff assumed control of it. Consequently, CPB and Riverbay have established, prima facie, that they did not have exclusive control of the bicycle. ( See Dermatossian, 219 at 228 ["proof did not adequately exclude the chance that the handle had been damaged by one or more of defendant's passengers who were invited to use it"]; Sinto v City of Long Beach, 290 AD2d 550 [2d Dept 2002] [public had unfettered access to all swings in playground]; Park v Bay Crane Inc. , 49 AD3d 617 , 618 [2d Dept 2008] [plaintiff had exclusive control of crane while changing tire which exploded]; Carter v U-haul Intl., 2009 WL 3221468 [Ohio App, 10th Dist 2009] [driver of rented truck had exclusive control of truck at time of accident]; Darms v Bunce Rental, Inc., 102 Wash App 1002 [Ct App, Wash 2000] [defendant had no control of lift it rented to plaintiff]; Saieva v Budget Rent-A-Car of Rockford, 227 Ill App 3d 519 [2d Dist Ill 1992], lv denied 146 Ill 2d 651 [when plaintiff drove rental car off defendant's lot, defendant lost control of car]).
And, as plaintiffs have failed to raise a triable issue as to whether the defective bicycle was in CPB and Riverbay's exclusive control, an inference of negligence may not be drawn from the mere occurrence of the accident.
V. CONCLUSION
Accordingly and for all of the foregoing reasons, it is hereby
ORDERED, that City's and Parks's motion for an order granting them summary judgment is granted and the complaint and all cross-claims are hereby severed and dismissed as against them, and the Clerk is directed to enter judgment in favor of said defendants; and it is further
ORDERED, that the remainder of the action shall continue; and it is further
ORDERED, that CPB and Riverbay's cross-motion for an order granting them summary judgment is denied; and it is further
ORDERED, that the Clerk is directed to schedule a settlement conference before Judicial Hearing Officer Leibovitz and notify the remaining parties of the date, time, and place of the conference.
This constitutes the decision and order of the court.