Errazuri v. E Food Supermarket Inc.

2021 NY Slip Op 32874(U)

MARIA ERRAZURI, Plaintiff, v. E FOOD SUPERMARKET INC. AND CUDE WU, Defendants.

Index No. 509687/2019

Supreme Court, Kings County

December 20, 2021

Unpublished Opinion

DECISION AND ORDER

HON CARL J. LANDICINO, JUSTICE.

Recitation as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered (NYSCEF) Notice of Motion/Cross Motion and

Affidavits (Affirmations) Annexed 41-52, 53-67,

Opposing Affidavits (Affirmations) 73-78, 79-84, 90, 91

Reply Affidavits (Affirmations).............................................................. 89, 93, 95

After a review of the papers and oral argument, the Court finds as follows:

The instant action results from an alleged trip and fall incident that occurred on March 26, 2019. The Plaintiff, Maria Errazuri (hereinafter "the Plaintiff') allegedly injured herself after tripping on a broken, uneven, cracked, sidewalk flag located adjacent to 4901 Fifth Avenue, Brooklyn, New York (hereinafter "the Premises"). The Premises are owned by Defendant Cude Wu (hereinafter "Defendant Wu") and leased by Defendant E Food Supermarket (hereinafter "Defendant Supermarket"), pursuant to a lease agreement (the "Lease").

Defendant Wu now moves (motion sequence #3) for an order pursuant to CPLR 3212, granting her motion for summary judgment dismissing the Plaintiffs complaint, and granting her cross-claims against Defendant Supermarket for contractual and common-law indemnification. In her motion for summary judgment, Defendant Wu argues that she cannot be liable for Plaintiffs injuries because, pursuant to the Lease with Defendant Supermarket, Defendant Wu is a landlord out of possession and therefore has no duty to keep the adjacent sidewalk in good repair. Wu also contends that the alleged condition was open and obvious and not inherently dangerous. What is more, Defendant Wu argues that the Lease between Defendant Wu and Defendant Supermarket states that Defendant Supermarket has a contractual duty to indemnify Defendant Wu.

Both the Plaintiff and Defendant Supermarket oppose Defendant Wu's motion. Both opponents of the motion contend that the motion by Defendant Wu should be denied as Wu had non-delegable duty to maintain the sidewalk adjacent to the Premises pursuant to Administrative Code of the City of NY § 7-210. It is also argued that Defendant Wu had a responsibility to make structural repairs, including sidewalks, under the Lease.

Defendant Supermarket also moves (motion sequence #4) for an order pursuant to CPLR 3212, granting it summary judgment dismissing the Plaintiffs complaint and dismissing Defendant Wu's cross-claims for contractual and common-law indemnification. Defendant Supermarket argues that it was not responsible under the Lease to repair sidewalk defects, that Defendant Wu had a nondelegable duty to repair any sidewalk defects and that it did not cause and/or create the defect at issue.

Both the Plaintiff and Defendant Wu oppose the motion made by Defendant Supermarket. Defendant Wu argues that Defendant Supermarket had an obligation pursuant to the Lease to make repairs to the sidewalk. Wu also contends that the Supermarket was obligated, pursuant to the Lease to indemnify Defendant Wu for any injuries that occurred at the Premises. The Plaintiff argues that there is a material issue of fact regarding whether the special use of the sidewalk made by Defendant Supermarket caused and created the broken and unlevel sidewalk condition alleged.

"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact.'" Kolivas v. Kirchoff, 14 A.D.3d 493 [2^nd Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2^nd Dept, 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985].

Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493 [2^nd Dept, 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2^nd Dept, 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2^nd Dept, 1994].

The Sidewalk Law

Sidewalk liability is covered by §7-210 of Administrative Code of City of N.Y. (hereinafter "the Sidewalk Law"). The Sidewalk Law provides in pertinent part that:

b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.

c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes) in a reasonably safe condition. This subdivision shall not be construed to apply to the liability of the city as a property owner pursuant to subdivision b of this section.

Motion Sequence #3

Turning to the merits of the motion made by Defendant Wu (motion sequence #3), the Court finds that Defendant Wu has not met her prima facie burden. Defendant Wu argues that she did not have a duty to repair the sidewalk and that the Lease required Defendant Supermarket to make any and all repairs. Defendant Wu also argues that the sidewalk at issue was not dangerous or defective. In support of these positions Defendant Wu relies primarily on the deposition of Defendant Wu, the deposition of the Plaintiff, the deposition of Xiao Guang Peng, the Lease and photographs of the sidewalk at issue. As to the first position taken by Defendant Wu, the Court has generally held that "a landowner's duty under section 7-210 is an affirmative, nondelegable obligation." Xiang Fu He v. Troon Mgmt., Inc., 34 N.Y.3d 167, 174, 137 N.E.3d 469 [2019]; see also Gambino v. 475 Park Ave. S., LLC, 197 A.D.3d 621, 150 N.Y.S.3d 235 [2d Dept 2021]; Zamora v. David Caccavo, LLC, 190 A.D.3d 895, 896, 136 N.Y.S.3d 751 [2d Dept 2021]; Labiner v. Jerome Florist, Inc., 189 A.D.3d 624, 625, 139 N.Y.S.3d 145, 146 [1st Dept 2020], leave to appeal denied, 37 N.Y.3d 908, 152 N.Y.S.3d 680 [2021].

As a result, in order to prevail on her motion as against the Plaintiff, Defendant Wu needs to establish "that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." Muhammad v. St. Rose of Limas R.C. Church, 163 A.D.3d 693, 693, 81 N.Y.S.3d 131, 132 [2d Dept 2018]; see also Hackbarth v. McDonalds Corp., 31 A.D.3d 498, 499, 818 N.Y.S.2d 578 [2^nd Dept, 2006] Curtis v Dayton Beach Park No. 1 Corp., 23 A.D.3d 511, 512 [2^nd Dept, 2005]. The movant can meet this burden by submitting testimony showing when the area in question was last cleaned or inspected, or by submitting evidence as to whether any complaints had been received between the time the area was last cleaned or inspected and the time of the alleged incident. See Perez v. New York City Hous. Auth., 75 A.D.3d 629, 630, 906 N.Y.S.2d 299 [2^nd Dept, 2010]; Williams v SNS Realty of Long Is., Inc., 70 A.D.3d 1034 [2^nd Dept, 2010]; Rios v New York City Hous. Auth., 48 A.D.3d 661, 662 [2^nd Dept, 2008]. In the instant proceeding, Defendant Wu merely stated "[n]o" when asked if she had received any complaints regarding the sidewalk at the Premises. (See Defendant Wu's Motion, Exhibit H, Pages 86-87). Defendant Wu does not provide evidence of when the subject sidewalk at the Premises was last inspected prior to the alleged incident. In fact, when asked whether she was responsible for inspecting the sidewalk, she stated it was the responsibility of Defendant Supermarket and that "I rarely go there to inspect their stuff." (See Defendant Wu's Motion, Exhibit H, Page 105). |

The Court also finds that Defendant Wu failed to adequately show that the defect at issue did not exist or was de minimis or trivial as a matter of law. Generally, for a property owner to meet their prima facie burden they must provide evidence such as...