### Rothman v 40 W 25 LLC 2024 NY Slip Op 31483(U) April 26, 2024 Supreme Court, New York County Docket Number: Index No. 152775/2020 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

### [FILED: NEW YORK COUNTY CLERK 04/26/2024 03:00 P~ NYSCEF DOC. NO. 142 INDEX NO. 152775/2020 RECEIVED NYSCEF: 04/26/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: HON. DAVID B. COHEN Justice

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SHEILA ROTHMAN, Plaintiff,

- V - 40 W 25 LLC, THE KAUFMAN ORGANIZATION, A.B. IMPORT EXPORT CO. D/B/A SHOWPLACE ESTATE BUYERS, Defendants.

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INDEX NO. 152775/2020 MOTION DATE 06/22/2023 MOTION SEQ. NO. 003 004
DECISION + ORDER ON MOTION 58

The following e-filed documents, listed by NYSCEF document number (Motion 003) 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 117, 119, 120, 121, 122, 123, 124, 125, 126, 135 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 004) 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100,101,102,103,104,105,106,107,108,109,110,111,112,113,114,115, 116,118,127,128,129,130,131,132,133,134,136 were read on this motion to/for JUDGMENT-SUMMARY


### In this personal injury action, motion sequence nos. 003 and 004 are consolidated for disposition. In motion sequenceno. 003, defendants 40 W 25 LLC andThe Kaufman Organization (Owner defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint and the cross-claims asserted against them. In motion sequenceno. 004, thirdparty defendant Unitech Design, Inc., d/b/a Space Sign (Unitech) moves, pursuant to CPLR 3212, for summaryjudgmentdismissing the amended complaint and the third-party complaint as against it, and all other claims on the ground that there is no material issue offact regarding its liability. Plaintiffopposes both motions.

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### [FILED: NEW YORK COUNTY CLERK 04/26/2024 03:00 P~ NYSCEF DOC. NO. 142

I. FACTUAL BACKGROUND INDEX NO. 152775/2020 RECEIVED NYSCEF: 04/26/2024

Plaintiff alleges that, on January 19, 2020, she tripped on one of the support poles of a canopy located at 40 West 25th Streetin Manhattan (Premises), and then fell, sustaining personal injuries. The canopy was designed and installed by third-party defendant Unitech. Defendant A.B. Import-Export Co. d/b/a Showplace Estate Buyers (A.B.) was a tenant of a portion ofthe building located atthePremises (Building). Plaintiffalleges thatAB. "erected, maintained and/or owned the canopy appurtenant and/or attached itto" the Premises (NYSCEF 1). On March 15, 2020, plaintiffcommenced this action in which she alleges that, on the day ofthe incident, as she was stepping toward the Premises, "she was caused to trip and fell on a metal barprotruding at an angle from the [canopy] ofthe awning in front ofthe premises" (id.). Owner defendants served an answer in which they admitted that 40 W 25 LLC owned the Premises (Owner), and that The Kaufman Organization (Kaufman) is the managing agent (NYSCEF 2). On January 26, 2021, plaintifffiled an amended complaint (NYSCEF 11), and thereafter, A.B. answered the amended complaint (NYSCEF 14), and then commenced a third-party action impleading Unitech (NYSCEF 18). On March 24, 2021, Unitech filed its answer (NYSCEF 27), and plaintiffthen served a verified Bill ofParticulars on Unitech (NYSCEF 105). By decision dated February 13, 2024 (NYSCEF 137), A.B.'s motion for summary judgmentwas denied, as there remained issues offact as to whetherA.B. had made special use of the canopy, and whether the canopy couldbe considered an open and obvious danger. The salient facts are set forth in detail inthis Court's February 13, 2024 decision and order.

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### [FILED: NEW YORK COUNTY CLERK 04/26/2024 03:00 P~ NYSCEF DOC. NO. 142



### II. CONCLUSIONS OF LAW INDEX NO. 152775/2020 RECEIVED NYSCEF: 04/26/2024



### "'[T]he proponent of a summaryjudgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence ofany material issues offact'" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993] [citation omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden is a heavy one: the facts mustbe viewedin the lightmost favorable to the non-movingparty and every available inference must be drawn in the non-moving party's favor (Sherman v New York State ThruwayAuth., 27 NY3d 1019, 1021 [2016]). "Failure to make such showing requires denial of the motion, regardless ofthe sufficiency ofthe opposing papers" (Winegrad, 64 NY2d at 853; see also Lesocovich v 180MadisonAve. Corp., 81 NY2d 982 [1993]). The party opposing summary judgment has the burden of presenting evidentiary facts sufficient to raise triable issues offact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226 [1st Dept 2006]). Summaryjudgment maybe granted only when it is clear that no triable issues offact exist (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]), and "is inappropriate in any case where there are material issues of fact in dispute or where more than one conclusion may be drawn from the established facts" (Friends of ThayerLakeLLCvBrown, 27 NY3d 1039, 1043 [2016]). To establish a prima facie claim for negligence under New York law, "a plaintiffmust demonstrate (1) 

### a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; accordJE. v Beth Israel Hosp., 295 AD2d 281,283 [1st Dept 2002]; Wayburn v Madison Land Ltd. Partnership, 282 AD2d 301,302 [1st Dept2001]). "Because a finding ofnegligence mustbe based on the breach ofa duty, a threshold question in torts cases is whether the alleged tortfeasor

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### [FILED: NEW YORK COUNTY CLERK 04/26/2024 03:00 P~ NYSCEF DOC. NO. 142 INDEX NO. 152775/2020 RECEIVED NYSCEF: 04/26/2024

owed a duty of care to the injured party" 

### (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). Absent a duty ofcare to the person injured, a party cannot be held liable in negligence 

### (Palsgraf v LongIs. R.R. Co., 248 NY 339, 341-342 [1928]). A. Owner defendants' motion "Liability for a dangerous condition on property may onlybe predicated upon occupancy, ownership, control or special use of such premises" 

### (Gibbs v PortAuth. of NY, 17 AD3d 252, 254 [1st Dept 2005]; 

### accordAdriana G. vKipp Wash. Hgts. Middle Sch., 165 AD3d469,469 [1st Dept2018]). Absent evidence ofownership, occupancy, control or special use ofproperty, aparty cannot be held liable for injury caused by the defective or dangerous condition ofthe property 

### (Reid v City of New York, 168 AD3d 447 [1st Dept 2019]). In support oftheirmotion for summaryjudgment, Owner defendants argue that they owed
no duty ofcare to plaintiff, because "[AB.] clearly had responsibility overthe canopy, which it is undisputed they bought, installed, managed and maintained. Other than giving permission to install such a canopy, the building had no other involvement with this structure, including the support pole, a structure thatthere was no evidence ofany complaints about" (NYSCEF 78). Owner defendants demonstrate that they had no duty to maintain the canopy by lease or agreement, they did not create the alleged dangerous condition, and they had no actual or constructive notice ofit, and, thus, they are entitled to dismissal ofplaintiffs claims against them 

### (see e.g., Madonia v City of NY, 164 AD3d 1320 [2d Dept 2018] [owners entitled to summary dismissal as object on which plaintifftripped on sidewalkwas not createdbythem, was notresult ofnegligentrepair, and they did notmake special use ofarea]). In light ofthis result, Owner defendants' other arguments in favor of dismissal are not considered.

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### [* 4]!FILED: NEW YORK COUNTY CLERK 04/26/2024 03: 00 PM! NYSCEF DOC. NO. 142 INDEX NO. 152775/2020 RECEIVED NYSCEF: 04/26/2024

B. Unitech's motion The courtrecord does notreflect that plaintiffhas asserted a direct claim against Unitech, and thus that portion ofUnitech's motion seeking dismissal ofplaintiffs claim(s) against it is denied as academic. Moreover, as third-party plaintiffA.B. did not oppose dismissal ofthe third-party action, itis dismissed(see Sancino vMetro. Tr. Auth., 184AD3d534 [1stDept2020] [plaintiffabandoned claimbyfailing to oppose motion seeking dismissal ofclaim]). Accordingly, itis hereby ORDERED, the motion for summaryjudgment by defendants 40 W 25 LLC and The Kaufman Organization (motion sequence no. 003) is granted, andplaintiffsclaims and any crossclaims asserted againstthem are severedanddismissed, andthe clerkis directedto enterjudgment accordingly; it is further ORDERED, the motion for summaryjudgmentby third-party defendant Unitech Design, Inc., d/b/a Space Sign(motionsequenceno. 004)is grantedto the extentofseveringanddismissing the third-party action, andthe clerk is directedto enterjudgmentaccordingly; anditis further ORDERED, that the remaining parties appear for a settlement/trial scheduling conference before this Court on August 7, 2024, at 11:00 am, at 71 Thomas Street, Room 305, New York, New York.

4/26/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

152775/2020 ROTHMAN, SHEILAvs. 40 W 25 LLC Motion No. 003 004

5 of 5 DAVID B. COHEN, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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