Brady v. 2247 Utica Ave. Realty Corp.

210 A.D.3d 621

177 N.Y.S.3d 627

Keith S. BRADY, respondent,

v.2247 UTICA AVE. REALTY CORP., et al., appellants.

2020–03284

Index No. 510530/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 13, 2022

November 2, 2022

Sobel Pevzner, LLC, Huntington, NY (Curtis Sobel of counsel), for appellants.

Subin Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Greg Freedman ], of counsel), for respondent.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants

appeal from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated February 5, 2020. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability, and denied the defendants’ cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability insofar as asserted against the defendant 7–Eleven, Inc., and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he tripped and fell on a hole in a sidewalk abutting the parking lot of a 7–Eleven store in Brooklyn. The premises were owned by the defendant 2247 Utica Ave. Realty Corp. (hereinafter the property owner), and leased to the defendant 7–Eleven, Inc. (hereinafter 7–Eleven). Following discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability, contending that the defendants were negligent in failing to maintain the abutting sidewalk in a reasonably safe condition and that they had notice of the defective condition. The defendants cross-moved for summary judgment dismissing the complaint on the grounds, among others, that the plaintiff's alleged impaired state due to marijuana use was the sole proximate cause of his injuries, and that the alleged defect was open and obvious and not inherently dangerous. The Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability, and denied the defendants’ cross motion. However, the court determined that issues relating to the plaintiff's comparative negligence should be tried before a jury. The defendants appeal.

Administrative Code of the City of New York § 7–210(a) imposes a duty upon "the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition." "[A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty" ( Martin v. Rizzatti, 142 A.D.3d 591, 592–593, 36 N.Y.S.3d 682 ; see Hsu v. City of New York, 145 A.D.3d 759, 760, 43 N.Y.S.3d 139 ). Additionally, "[a]s a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party" ( Hsu v. City of New York, 145 A.D.3d at 760, 43 N.Y.S.3d 139 ; see Martin v. Rizzatti, 142 A.D.3d at 593, 36 N.Y.S.3d 682 ). Only "where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk, [may] the tenant ... be liable to a third party" ( Hsu v. City of New York, 145 A.D.3d at 760, 43 N.Y.S.3d 139 [internal quotation marks omitted]; see Paperman v. 2281 86th St. Corp., 142 A.D.3d 540, 541, 36...