Opinion
No. 8062/2010.
2012-06-18
Alexander TORO, Plaintiff, v. FRIEDLAND PROPERTIES, INC., Lawrence Friedland, Melvin Friedland, New Town Pizza Broadway, Inc., New Pizza Town, and The Vending Company, Inc., New Town Pizza, Third–Party Third–Party Plaintiff, The Vending Company, Inc., Third–Party, Defendant.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 23 were read on this motion by defendants FRIEDLAND PROPERTIES, INC., LAWRENCE FRIEDLAND, MELVIN FRIEDLAND, NEW TOWN PIZZA BROADWAY, INC. and NEW PIZZA TOWN, for an order pursuant to CPLR 3212 granting summary judgment in favor of said defendants and dismissing the plaintiff's complaint and all cross-claims and the cross-motion by plaintiff for an order restoring the matter to the trial calendar on the ground that all discovery is complete:
+----------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +-----------------------------------------------------+----------¦ ¦Notice of Motion–Affidavits–Memo of Law–Exhibits ¦1–6 ¦ +-----------------------------------------------------+----------¦ ¦Plaintiff's Affirmation in Opposition–Exhibits ¦7–11 ¦ +-----------------------------------------------------+----------¦ ¦Defendants' Reply Affirmation ¦12–15 ¦ +-----------------------------------------------------+----------¦ ¦Plaintiff's Cross–Motion ¦16–18 ¦ +-----------------------------------------------------+----------¦ ¦Defendants' Affirmation in Opposition to Cross–Motion¦19–21 ¦ +-----------------------------------------------------+----------¦ ¦Plaintiff's Sur–Reply ¦22–23 ¦ +----------------------------------------------------------------+
This is an action for damages for personal injuries allegedly sustained by plaintiff, Alexander Toro, on April 1, 2009, when he struck his elbow on a children's ride, on the sidewalk in front of the premises located 2196 Broadway, New York County, New York.
The plaintiff commenced an action for negligence against the building owners, FRIEDLAND PROPERTIES, INC., LAWRENCE FRIEDLAND and MELVIN FRIEDLAND; the tenant of the premises NEW TOWN PIZZA BROADWAY, INC., and NEW PIZZA TOWN, and the owner of the ride, THE VENDING COMPANY, INC. by filing a summons and verified complaint on April 1, 2010. Issue was joined by the service of a verified answer by New Pizza Town Inc., dated May 10, 2010, and by service of Friedland's answer dated June 7, 2010.
On October 26, 2010, plaintiff's counsel served a supplemental summons and amended complaint adding the VENDING COMPANY as a direct defendant. On October 27, 2010, defendant's counsel served a third-party summons and complaint, naming the Vending Company as a third-party defendant. The Vending Company has not answered the complaint and is in default. A verified answer to the amended complaint was served by the Friedland defendants and by New Pizza Town Inc. on November 19, 2010. Plaintiff moved for a default judgment against NEW TOWN PIZZA BROADWAY, INC., and THE VENDING COMPANY which was granted on default by order dated February 24, 2011. However, prior to the court's decision, New Town Pizza Broadway Inc. joined issue by service of a verified answer to the amended complaint dated February 16, 2011.
The gravamen of the complaint, as set forth in plaintiff's bill of particulars, is that the defendants negligently placed and negligently maintained a child's ride on the public sidewalk. Plaintiff also maintains that the ride constituted a sidewalk obstruction. Allegedly, as a result of the obstruction, defendant struck his elbow on the ride as he walked on the sidewalk. Plaintiff maintains that the defendants were negligent as a matter of law because the placement of the ride violated New York City Administrative Code § 19–136.Plaintiff claims that defendants had actual notice of the hazardous condition in that defendants' created the condition, maintained the condition and permitted the dangerous condition to exist.
Counsel for defendants, FRIEDLAND PROPERTIES, INC., LAWRENCE FRIEDLAND, MELVIN FRIEDLAND, NEW TOWN PIZZA BROADWAY, INC., and NEW PIZZA TOWN now move for an order granting summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against them on the ground that the plaintiff,
(1) is unable to identify the defective condition that caused his accident (2) the unspecified defective condition is not a statutory violation; (3) plaintiff's own actions were the sole proximate cause of the alleged accident; (4) defendants did not have actual or constructive notice of the alleged unspecified condition; and (5) there are no material issues of fact with regard to any alleged negligence or obligation on behalf of the moving defendants.
In support of the motion, defendants' counsel, Candida Bologna, Esq., submits her own affidavit dated November 21, 2011; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; and a copy of the transcripts of the examinations before trial of plaintiff Alexander Toro and Santino Battiata on behalf of New Pizza Town, Inc.
Mr. Toro, age 35, testified that on the date of the accident, April 1, 2009, he was employed as a driver for a company known as Montebello that delivered foods and products to restaurants. On the date of the accident he drove to a pizzeria known as New Pizza Town on the corner of Broadway and 78th Street in Manhattan. He was there to pick up two boxes of cheese that the restaurant was returning to his company. After he made his pick-up, he exited through the kitchen entrance on 78th Street. He was walking to his truck with the two boxes of cheese. When asked how the accident happened he stated: “I was carrying both boxes, I was leaving the store, I was walking. A young lady with a walker as I was leaving the store the lady was crossing over and then I went towards one side and that's when I felt that something hit me. I'm carrying something, however, I was unable to bear the pain and then my helper helped me put the boxes inside the truck.” He was carrying the two boxes, one on top of the other. Toro testified that he had to leave the lady some space so he walked around her and in the process hit his left elbow on a children's ride on the sidewalk in front of the pizza store on the Broadway side. He stated that the ride was close to the wall of New Pizza Town near the corner. He stated that he had seen the ride previously but it is moved from one spot to another “now and then.” He stated that on the day of his accident the ride was on Broadway near 78th Street. He said the accident occurred right on the corner. He was walking on 78th Street and the lady with the walker was walking towards him on 78th Street. He had to move out of the way for her when he turned the corner from Broadway. He hit his elbow but did not drop the boxes he was carrying. When he returned to the warehouse he told his manager Mr. Mangano that he injured himself when he had to get out of the way of the woman walking towards him and in the process he struck his elbow. He stated that he hit his elbow on the round ball nose portion of the Micky Mouse ride.
Santino Battiata, the owner of New Town Pizza Broadway Inc. known as New Town Pizza testified that at the time of the deposition, his business had closed after having been in business for 26 years. He stated that he closed on May 22, 2011 when the landlord did not renew the lease. He stated that the Mickey Mouse kiddie ride was normally situated on the sidewalk on the 78th street side of the corner during the day and at night it is kept inside the pizzeria. He stated that at 10:00 a.m., when the pizzeria opens, the ride is wheeled onto the sidewalk and chained to the wall. It stayed on the sidewalk and measured approximately 3 feet from the wall. When outside it is chained to the wall. He said the users insert two quarters in a slot and the machine rocks slowly. He stated that he had several different rides over the years, the last one being the Mickey Mouse ride which was there for the past two or three years. The machine was leased from The Vending Company. The ride measured about 3 feet wide and 2 1/2 to three feet long. He stated that the ride extended three feet from the wall of the business. The ride was designed for ages 2–5 years old. He stated that although he received notices regarding an outside ATM he never received a summons, violation or notice from the City regarding the kiddie ride during the 26 years he operated the premises. He stated that he was told by a person from consumer affairs that he could not extend beyond four feet from the wall.
Defendants' counsel maintains that the deposition testimony of the parties establishes the absence of a defective condition on the ride or on the sidewalk or that the placement of the ride on the sidewalk constituted a statutory violation. Counsel maintains that the plaintiff's actions were the sole proximate cause of the accident because he swerved out of the way to avoid a pedestrian on the street and in the process struck his elbow on the children's ride, an open and obvious condition on the sidewalk. Counsel also claims that the plaintiff failed to demonstrate that defendant had actual or constructive notice of a specific negligent or hazardous condition which caused him to hit his elbow. Defendants maintains that there is no evidence in the record that the plaintiff's fall was occasioned by any fault of the defendant Pizza Town, and as a result, the plaintiff cannot establish, prima facie, that defendants were negligent. Defendant submits that there is no evidence in the record that shows a breach of duty on the part of the defendants or a causal relationship between a breach of duty and the plaintiff's alleged injury.
In opposition, the plaintiff states that the motion must be denied as untimely. In this court's prior order dated July 11, 2011, this court vacated the plaintiff's note of issue and provided that motions for summary judgment were to be filed no later than 60 days of the date of the decision with notice of entry. As the decision was entered on July 20, 2011 and served by defendants on September 22, 2011 and as the motion was served on November 22, 2011, counsel contends the motion was late. This Court finds, however, that the defendants had good cause for filing the motion late as the depositions were not concluded until October 6, 2011 and the motion served within a short time thereafter.
Plaintiff also contends that the defendants' motion is improper as this court granted a default judgment against NEW TOWN PIZZA BROADWAY INC. on February 24, 2011 and the court has not vacated said default judgment. However, the original answer was served timely, albeit under an improper name, to wit, NEW PIZZA TOWN INC. The defendant subsequently served an answer on February 22, 2011 under the proper name of the corporation and has been actively engaged in the defense of the action under the proper name of the corporation without any objection by the plaintiff. As NEW TOWN PIZZA BROADWAY INC served an answer and has been active in the defense of this action, this Court grants the application of the defendant to vacate the default judgment against NEW TOWN PIZZA BROADWAY INC. dated February 24, 2011.
With respect to the merits of the summary judgment motion, plaintiff contends that the ride constituted a dangerous condition and that the ride was an obstruction on the sidewalk and was in violation of NYC Administrative Code § 19–136 which states:
“Obstructions. (a) It shall be unlawful for any person to hang or place any goods, wares or merchandise, or suffer, maintain or permit the same to be hung or placed, at a greater distance than three feet in front of his or her house, store, or other building and a greater height than five feet above the level of the sidewalk, or to lease or permit any other person to use any space on the sidewalk, located adjacent to such house, store or other building for the purpose of selling or displaying any merchandise.
1. Such an obstruction is hereby forbidden in front of a house, store or other building facing any street market, except upon a permit from the commissioner of small business services.”
Plaintiff claims that the deposition testimony of Mr. Battiata, the owner of the Pizza store, demonstrates that it was the employees of the store who placed the obstruction on the sidewalk in violation of the Administrative Code and that said obstruction, which is alleged to have extended out from the front of the pizza shop, was a proximate cause of the accident.
Plaintiff also cross-moves for an order restoring the matter to the trial calendar on the ground that all discovery has been completed.
Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ).
A property owner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all of the attendant circumstances, “including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” ( Sawyers v. Troisi, 2012 N.Y. Slip Op 4146 [2d Dept.2012] quoting Peralta v. Henriquez, 100 N.Y.2d 139 [2003] ). Here, the plaintiff alleges that the ride obstructed the sidewalk at the location where the accident occurred, and as such, the defendants breached their duty to the plaintiff to provide a safe walkway in front of the store.
However, this court finds that the defendants met their initial burden of demonstrating, as a matter of law, that the rounded nose portion of the Mickey Mouse ride on which the plaintiff hit his elbow did not constitute an unreasonably dangerous or defective condition. There is no proof in the record that there was anything specific about the design or condition of the ride itself which constituted a hazard. The plaintiff also alleges that the ride was hazardous as it obstructed the sidewalk and was in violation of Administrative Code section 19–136. As set forth above, said section defines a condition as an obstruction if it extends more than three feet from the building. Here, the testimony of the defendant states that the dimensions of the ride were 2 1/2 feet by 3 feet and the ride did not extend more than three feet from the wall. Defendant stated that he never received a summons from the City for having an obstructed sidewalk.
Thus, as the record demonstrates that the defendants did not negligently place the ride on the sidewalk, and that the ride was not an obstruction in violation of the Administrative Code, defendants demonstrated, prima facie that they did not breach their duty to maintain the sidewalk in a safe condition. Further, this Court finds that there is no testimony in the record to show that the placement of the ride on the sidewalk was a proximate cause of plaintiff striking his elbow. Defendants made a prima facie showing that the ride itself was not inherently dangerous and was readily observable by those employing the reasonable use of their senses. Further, the placement of the ride on the sidewalk, no more than three feet from the building, did not create an unreasonably dangerous condition.
The plaintiff, in opposition, failed to raise a question of fact as to whether the ride obstructed the sidewalk or constituted a dangerous condition. Further, the plaintiff failed to show how the placement of the ride was a proximate cause of the accident. From the plaintiff's deposition testimony it appears that the sole proximate cause of the accident was that the plaintiff was required to suddenly swerve out of the path of a pedestrian that was in his way. The evidence shows that the injury did not result from an unsafe condition, but rather, was occasioned solely from the manner in which the plaintiff was forced to maneuver on the sidewalk to avoid walking into a woman with a walker (see Marino v. Bingler 60 AD3d 645 [2d Dept.2009] quoting Macey v. Truman, 70 N.Y.2d at 919 [1987] ). Lastly, the plaintiff failed to raise a question of fact as to whether defendants either created the dangerous condition or had actual or constructive notice of a dangerous condition andwhether the alleged obstruction of the sidewalk was a substantial factor in bringing about the event that caused the plaintiff's injuries.
Therefore, based upon the foregoing it is hereby,
ORDERED, that the motion of the defendants FRIEDLAND PROPERTIES, INC., LAWRENCE FRIEDLAND, MELVIN FRIEDLAND, NEW TOWN PIZZA BROADWAY, INC., NEW PIZZA TOWN,., for an order granting summary judgment dismissing plaintiff's complaint and all cross-claims is granted, and it is further
ORDERED, that the plaintiff's cross-motion for an order restoring the matter to the calendar is granted only insofar as the plaintiff is entitled to an inquest on damages with respect to defendant “THE VENDING COMPANY INC.” against whom a default judgment was previously granted by this Court.