Opinion
INDEX No. 152298/2019 MOTION SEQ. No. 002 003
05-25-2022
RACHEL S. SIMON, Plaintiff, v. THE CITY OF NEW YORK, JANUSZ SENDOWSKI, 65 CARMINE STREET LLC C/O CORNERSTONE MANAGEMENT, CARMINE PARTNERS LLC, SPUNTO, INC., Defendants.
Unpublished Opinion
PRESENT: HON. JUDY H. KIM Justice.
DECISION + ORDER ON MOTION
JUDY H. KIM JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 101, 102, 103, 104, 105, 131, 132 were read on this motion for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 128, 129, 130 were read on this motion to DISMISS.
On March 5, 2019, plaintiff commenced this action for personal injuries she allegedly sustained on July 11, 2018, as a result of a trip and fall on the public sidewalk on the eastern sidewalk of Seventh Avenue South, between the corner of Leroy and Carmine Street (NYSCEF Doc. No. 1 [Complaint at ¶6]). All defendants answered and asserted cross-claims for indemnity and contribution against their co-defendants.
In motion sequence 002, defendant Carmine Partners LLC ("Carmine Partners") moves, pursuant to CPLR §3212, for an order granting it summary judgment dismissing plaintiffs complaint and all cross-claims asserted against it. In support of its motion, Carmine Partners submits the affidavit of licensed surveyor Saeid Jalilvand attesting to his inspection of the relevant area which demonstrated that "the alleged sidewalk defect alleged to have caused plaintiffs accident is entirely outside the [Carmine Partners's] property boundaries by a distance of 52 feet 10 inches" (NYSCEF Doc. No. 75). Carmine Partners also submits an affidavit from its managing member, Jesse Keyes, attesting that "Carmine Partners LLC has never undertaken any repairs or maintenance of the sidewalk area depicted in the plaintiffs photo, either before July 11, 2018, or since." (NYSCEF Doc. No. 76 [Keyes Aff at ¶3]). Plaintiff and co-defendant Janusz Sendowski submitted their respective opposition to the motion.
Defendants 65 Carmine Street and Spunto's opposition papers (NYSCEF Doc. No. 85) have not been considered by this Court in light of the discontinuance of the complaint against them (See NYSCEF Doc. No. 127).
Motion sequence 003 filed by defendants 65 Carmine Street LLC c/o Cornerstone Management ("65 Carmine Street"), Carmine Partners and Spunto, Inc. ("Spunto") is denied as moot, as plaintiff has discontinued this action as to these defendants (See NYSCEF Doc. No. 127). Accordingly, the Court turns to Carmine Partners LLC's motion for summary judgment dismissing this action as against it.
DISCUSSION
"[T]he 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 demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]).
Section 7-210 of the Administrative Code of the City of New York imposes tort liability upon the owner of real property abutting any sidewalk for any injury to property or personal injury proximately caused by the failure of such owner to maintain the sidewalk in a reasonably safe condition (Administrative Code §7-201 [b]). Accordingly, Carmine Partners LLC has made a prima facie showing of its entitlement to summary judgment by submitting evidence-including the Jalilvand affidavit and attached survey-establishing that the sidewalk flag on which plaintiff allegedly tripped did not abut its property and was, in fact, nowhere close to its property line (See e.g., Ouinn v. City of New York. 113 A.D.3d 490 [1st Dept 2014]).
In opposition, plaintiff and co-defendant Janusz Sendowski argue that summary judgment is premature because depositions have not yet been held. As Carmine Partners LLC notes, however, neither party opposing this motion identifies any evidence that they expect to be revealed during depositions that would rebut Carmine Partners LLC's prima facie case. "A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (DaSilva v. Haks Engineers, Architects and Land Surveyors. P.C.. 125 A.D.3d 480, 482 [1st Dept 2015] quoting Bailey v. New York City Transit Authority, 270 A.D.2d 156, 157 [1st Dept 2000]).
Accordingly, it is
ORDERED that Carmine Partners LLC's motion for summary judgment (mot. seq. 002) is granted and this action is dismissed as to defendant Carmine Partners LLC; and it is further
ORDERED that the motion by defendants 65 Carmine Street LLC, Carmine Partners LLC and Spunto, Inc. to dismiss the complaint (mot. seq. 003) is denied as moot; and it is further
ORDERED that the caption is to be amended to reflect the discontinuance of this action as against 65 Carmine Street LLC c/o Cornerstone Management, Carmine Partners LLC and Spunto, Inc.; and it is further
ORDERED that Carmine Partners LLC shall serve a copy of this decision and order upon all remaining parties, with notice of entry, within fifteen days of the date of this decision and order; and it is further
ORDERED that Carmine Partners LLC shall serve a copy of this decision and order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "efiling" page on this court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.