Opinion
No. 170502013.
11-24-2015
Davora SHARBAT and Israel Sharbat, Plaintiff(s), v. 106–24 REALTY CORP., Boston Chicken, Inc., City of New York and New York City Department of Transportation, Defendant(s).
PHYLLIS ORLIKOFF FLUG, J.
Defendant 106–24 Realty Corp. (106–24 Realty) moves, inter alia, for summary judgment dismissing the complaint and all cross claims against it and for summary judgment on the cross claims for contractual indemnification against defendant Boston Market Corporation improperly named as Boston Chicken, Inc. Defendant Boston, moves for summary judgment in its favor dismissing plaintiffs' claims and any and all cross claims against Boston and for summary judgment in its favor on its cross claims for indemnification and contribution against defendant 106–24 Realty.
The motions are consolidated and determined as follows:
In this action by plaintiffs seeking damages for personal injuries allegedly sustained by plaintiff Davora Sharbat in a trip and fall over a piece of metal protruding from a public sidewalk, adjacent to a commercial building located at 106–24 71st Avenue, Forest Hills, New York, owned by defendant 106–24 Realty and leased in part to defendant Boston.
Pursuant to the terms of the subject lease, defendant 106–24 Realty was responsible for structural repairs to the building and the demised premises, and defendant Boston was responsible for maintaining the demised premises in good condition, but was not required to make any structural repairs or alterations to the demised premises. Defendant Boston also agreed to maintain and remove snow and ice from the sidewalks immediately adjacent to the demised premises and to keep the premises clean. Howard Feirman, one of the two principals of defendant 106–24 Realty, testified that the tenant, defendant Boston, was responsible for snow and ice removal, and that the landlord, defendant 106–24 Realty, was responsible for all structural repairs to the building, including the sidewalk.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (See Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980].) Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers. (See Winegrad v. New York Univ. Med. Ctr., supra. ) Furthermore, the court's function on a motion for summary judgment is issue finding, not issue determination (see Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395 [1957] ), or credibility assessment. (See Ferrante v. American Lung Association, 90 N.Y.2d 623 [1997].) Once the requisite showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact. (See Giuffrida v. Citibank Corp., 100 N.Y.2d 72 [2003] ; see also Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra. )
Pursuant to section 7–210 of the New York City Administrative Code, the owner of real property abutting a sidewalk, and not the City, has the duty to maintain the sidewalk in a reasonably safe condition and is liable for injuries arising from his or her failure to do so. (See Vucetovic v. Epsom Downs, Inc., 10 NY3d 517 [2008] ; see also Buonviaggio v. Parkside Assoc., L.P., 120 AD3d 460 [2014] ; Pevzner v. 1397 E. 2nd, LLC, 96 AD3d 921 [2012].) Although abutting real property owners must maintain certain sidewalk hardware and appurtenances (N.Y. City Admin. Code § 19–152), they need not maintain traffic signs and signposts, which are the obligation of Department of Transportation (DOT) (N.Y. City Charter § 2903[a][2] ), and such signs and signposts are not considered part of the sidewalk for the purposes of section 7–210. (See Smith v. 125th St. Gateway Ventures, LLC, 75 AD3d 425 [2010] ; see also Calise v. Millennium Partners, 26 Misc.3d 1222[A] [2010] ; King v.. Alltom Props., Inc., 16 Misc.3d 1125[A] [2007].) Therefore, abutting real property owners are not liable for injuries proximately caused by signs and signposts unless the abutting real property owners caused or created the sign-related conditions. (See Smith v. 125th St. Gateway Ventures, LLC, supra. )
Defendant 106–24 Realty contends that it is entitled to summary judgment since the piece of metal, upon which plaintiff Davora Sharbat tripped, was a broken signpost or parking meter that defendant The City of New York and City of New York s/h/a New York City Department of Transportation (City) installed and removed. Defendant 106–24 Realty also contends that it is entitled to summary judgment on the alternative ground that the piece of metal constitutes a non-actionable trivial defect.
Defendant 106–24 Realty submitted no evidence that establishes that the piece of metal was part of a City-owned sign or signpost installed and/or removed by defendant City prior to the accident, and thus failed to show that defendant City caused or created the alleged sidewalk defect. Thus, defendant 106–24 Realty failed to demonstrate, prima facie, that it may not be held liable for plaintiff Davora Sharbat's alleged injuries. (See Sehnert v. New York City Tr. Auth., 95 AD3d 463 [2012] ; cf. King v. Alltom Properties, Inc., supra. )
Defendant 106–24 Realty also failed to make a prima facie showing that the alleged defective condition did not constitute a trap or nuisance and was merely a non-actionable trivial defect.
The issue of whether a dangerous or defective condition exists depends on the particular facts of each case and is generally a question of fact for the jury unless the defect is demonstrated to be trivial as a matter of law. (See Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997] ; see also Guidone v. Town of Hempstead, 94 AD3d 1054 [2012] ; Perez v. 655 Montauk, LLC, 81 AD3d 619 [2011].) In determining whether a defect is trivial as a matter of law, the court must examine the facts presented, including the width, depth, elevation, irregularity and appearance of the condition, along with the time, place and circumstances of the injury. (See Trincere v. County of Suffolk, supra. ) “There is no minimal dimension test or per se rule that a defect be of a certain minimum height or depth in order to be actionable.” (Boxer v. Metropolitan Transportation Auth., 52 AD3d 447, 448 [2008], quoting Trincere v. County of Suffolk, supra at 977.)
In its motion papers, defendant 106–24 Realty did not include the report of any expert, who might have inspected the sidewalk area and measured the piece of metal and opined about its size and whether or not it was trivial. Moreover, photographs of the alleged defective condition marked by plaintiff Davora Sharbat at her deposition and submitted by defendant 106–24 Realty do not establish that the alleged defect is trivial as a matter of law. (See Lagrasta v. Town of Oyster Bay, 88 AD3d 658 [2011] ; see also Perez v. 655 Montauk, LLC, supra; Bolloli v. Waldbaum, Inc., 71 AD3d 618 [2010] .) Defendant 106–24 Realty further failed to establish as a matter of law that it did not have actual or constructive notice of the alleged defect. Moreover, the alleged defect was not transient, temporary or moveable in nature such that defendant 106–24 Realty may claim that it did not have constructive notice thereof, and photographs of the alleged defect marked by plaintiffs are sufficient to raise an issue of fact regarding constructive notice.
Accordingly that branch of defendant 106–24 Realty's motion seeking summary judgment in its favor dismissing plaintiffs' complaint as against it is denied.
Pursuant to Administrative Code § 7–210, property owners, not tenants, have a nondelegable duty to maintain abutting sidewalks in reasonably safe condition. In addition, provisions of a lease obligating a tenant to maintain and/or to repair the sidewalk do not impose on the tenant a duty to a third party, such as a plaintiff. (See Collado v. Cruz, 81 AD3d 542 [2011].) In the absence of a lease that is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 [2002] ), a tenant will be liable only if it created the defective condition, negligently made repairs, or used the sidewalk for a special purpose. (See Berkowitz v. Dayton Const., Inc., 2 AD3d 764 [2003].)
In this case, defendant Boston has made a prima facie showing of its entitlement to summary judgment by establishing through competent evidence, including the parties' examinations before trial testimony, that it owed no duty to plaintiff Davora Sharbat to maintain or repair the subject sidewalk through its lease with defendant 106–24 Realty or by statute, and that it did not make any repairs to the sidewalk, use it for a special purpose or create the defective condition that caused plaintiff Davora Sharbat's accident. Defendant Boston demonstrated that the alleged defective condition of a piece of metal in the sidewalk was structural (see Salzberg v.. Futernick, 281 A.D.2d 467 [2001] ), and pursuant to the terms of the subject lease, defendant Boston was only required to make nonstructural repairs to the premises, and to remove snow and ice from the adjacent sidewalks.
In opposition to defendant Boston's motion, plaintiffs and defendant 106–24 Realty have failed to raise any triable issues of fact. The lease terms do not demonstrate any comprehensive and exclusive duty on the part of defendant Boston to repair the sidewalk. Moreover, contrary to the assertion of defendant 106–24 Realty, defendant Boston was not required to make structural repairs to the subject sidewalk under the terms of the lease. Defendant 106–24 Realty's witness, Howard Feirman, in fact, testified that defendant 106–24 Realty was responsible for such structural repairs, and this testimony is undisputed.
Accordingly, the branch of defendant Boston's motion seeking summary judgment in its favor dismissing plaintiffs' complaint and all cross claims against it is granted.
In light of the foregoing dismissal of all cross claims against defendant Boston, the branch of defendant 106–24 Realty's motion seeking summary judgment on its cross claim against defendant Boston for contractual indemnification is denied as academic.
The branches of the motion of defendant Boston seeking summary judgment in its favor and against defendant 106–24 Realty on its cross claims for contribution and common-law indemnification are also denied as academic.
The branch of the motion of defendant Boston seeking summary judgment in its favor and against defendant 106–24 Realty on its cross claim for contractual indemnification is denied as premature.