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 

NEW YORK 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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PART 

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 sequence no. 003, defendants 40 W 25 LLC and The 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 sequence no. 004, thirdparty defendant Unitech Design, Inc., d/b/a Space Sign (Unitech) moves, pursuant to CPLR 3212, 

for summary judgment dismissing the amended complaint and the third-party complaint as against 

it, and all other claims on the ground that there is no material issue of fact regarding its liability. 

Plaintiff opposes both motions. 

152775/2020 ROTHMAN, SHEILA vs. 40 W 25 LLC 

Motion No. 003 004 

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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 Street in 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 of the 

building located at the Premises (Building). Plaintiff alleges that AB. "erected, maintained and/or 

owned the canopy appurtenant and/or attached it to" the Premises (NYSCEF 1). 

On March 15, 2020, plaintiff commenced this action in which she alleges that, on the day 

of the incident, as she was stepping toward the Premises, "she was caused to trip and fell on a 

metal bar protruding at an angle from the [canopy] of the awning in front of the 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, plaintiff filed 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 plaintiff then served a verified Bill of Particulars on Unitech (NYSCEF 105). 

By decision dated February 13, 2024 (NYSCEF 137), A.B.'s motion for summary 

judgment was denied, as there remained issues of fact as to whether A.B. had made special use of 

the canopy, and whether the canopy could be considered an open and obvious danger. 

The salient facts are set forth in detail in this Court's February 13, 2024 decision and order. 

152775/2020 ROTHMAN, SHEILA vs. 40 W 25 LLC 

Motion No. 003 004 

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[FILED: NEW YORK COUNTY CLERK 04/26/2024 03:00 P~ 

NYSCEF DOC. NO. 142 

II. CONCLUSIONS OF LAW 

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RECEIVED NYSCEF: 04/26/2024 

"' [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'" (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 must be viewed in the light most favorable to the non-moving party and every 

available inference must be drawn in the non-moving party's favor (Sherman v New York State 

Thruway Auth., 27 NY3d 1019, 1021 [2016]). "Failure to make such showing requires denial of 

the motion, regardless of the sufficiency of the opposing papers" (Winegrad, 64 NY2d at 853; see 

also Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982 [1993]). 

The party opposing summary judgment has the burden of presenting evidentiary facts 

sufficient to raise triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; 

CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226 [1st Dept 2006]). Summary judgment 

may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 

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 Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]). 

To establish a prima facie claim for negligence under New York law, "a plaintiff must 

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]; 

accord JE. v Beth Israel Hosp., 295 AD2d 281,283 [1st Dept 2002]; Wayburn v Madison Land 

Ltd. Partnership, 282 AD2d 301,302 [1st Dept 2001]). "Because a finding of negligence must be 

based on the breach of a duty, a threshold question in torts cases is whether the alleged tortfeasor 

152775/2020 ROTHMAN, SHEILA vs. 40 W 25 LLC 

Motion No. 003 004 

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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 of care to the person injured, a party cannot be held liable in negligence 

(Palsgraf v Long Is. R.R. Co., 248 NY 339, 341-342 [1928]). 

A. Owner defendants' motion 

"Liability for a dangerous condition on property may only be predicated upon occupancy, 

ownership, control or special use of such premises" (Gibbs v Port Auth. of NY, 17 AD3d 252, 

254 [1st Dept 2005]; accord Adriana G. v Kipp Wash. Hgts. Middle Sch., 165 AD3d 469,469 [1st 

Dept 2018]). Absent evidence of ownership, occupancy, control or special use of property, a party 

cannot be held liable for injury caused by the defective or dangerous condition of the property 

(Reid v City of New York, 168 AD3d 447 [1st Dept 2019]). 

In support of their motion for summary judgment, Owner defendants argue that they owed 

no duty of care to plaintiff, because "[AB.] clearly had responsibility over the 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 that there was no evidence of any 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 of it, and, thus, they are entitled to dismissal of plaintiffs 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 plaintiff tripped on sidewalk was not created by them, was not result 

of negligent repair, and they did not make special use of area]). 

In light of this result, Owner defendants' other arguments in favor of dismissal are not 

considered. 

152775/2020 ROTHMAN, SHEILA vs. 40 W 25 LLC 

Motion No. 003 004 

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!FILED: NEW YORK COUNTY CLERK 04/26/2024 03: 00 PM! 

NYSCEF DOC. NO. 142 

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RECEIVED NYSCEF: 04/26/2024 

B. Unitech's motion 

The court record does not reflect that plaintiff has asserted a direct claim against Unitech, 

and thus that portion of Unitech's motion seeking dismissal of plaintiffs claim(s) against it is 

denied as academic. 

Moreover, as third-party plaintiff A.B. did not oppose dismissal of the third-party action, 

it is dismissed (see Sancino v Metro. Tr. Auth., 184 AD3d 534 [1st Dept 2020] [plaintiff abandoned 

claim by failing to oppose motion seeking dismissal of claim]). 

Accordingly, it is hereby 

ORDERED, the motion for summary judgment by defendants 40 W 25 LLC and The 

Kaufman Organization (motion sequence no. 003) is granted, and plaintiffs claims and any crossclaims asserted against them are severed and dismissed, and the clerk is directed to enter judgment 

accordingly; it is further 

ORDERED, the motion for summary judgment by third-party defendant Unitech Design, 

Inc., d/b/a Space Sign (motion sequence no. 004) is granted to the extent of severing and dismissing 

the third-party action, and the clerk is directed to enter judgment accordingly; and it is 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, SHEILA vs. 40 W 25 LLC 

Motion No. 003 004 

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DAVID B. COHEN, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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