Abreu v Brutus Assoc., LLC 2024 NY Slip Op 31985(U) June 10, 2024 Supreme Court, New York County Docket Number: Index No. 154791/2018 Judge: Louis L. Nock 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.154791/2018 ABREU, POLIBIO vs. BRUTUS ASSOCIATES, LLC

Motion No. 006 Page 1 of 7 The following e

- filed documents, l isted by NYSCEF document number s (Motion 006) 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, a n d 145 were read on this motion for S U M M A R Y JUDGMENT

. LOUIS L. NOCK, J.S.C. Upon the foregoing documents, plaintiff’s motion for summary judgment against defendant 129 Duane Condominium (“129 Duane”) is granted, for the reasons set forth in the moving affirmation of Jason Bernstein, Esq. (NYSCEF Doc. No. 100) and the exhibits atta ched thereto, in which the court concurs, as summarized herein. In this trip

- and fall action, plaintiff testified at his deposition that on November 14, 2017, while walking down Duane Street outside of 129 Duane’s property, his left foot came into

contact with an uneven sidewalk flag , over which he tripped and fell, causing injuries and requiring a cervical fusion procedure (Abreu EBT tr., NYSCEF Doc. No. 107 at 18, 26

- 27, 77

- 79; supplemental bill of particulars, NYSCEF Doc. No. 104)

. He stated that at the time he tripped, he was looking straight ahead, his hands were empty, his cell phone was in his pocket, and the area where he tripped was dimly lit (Abreu EBT tr., NYSCEF Doc. No. 107 at 15

- 18).



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. LOUIS L. NOCK PART 38M Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 154791/2018
MOTION DATE 08/19/2021
MOTION SEQ. NO. 006

DECISION + ORDER ON MOTION POLIBIO ABREU, Plaintiff,

- v - BRUTUS ASSOCIATES, LLC, 129 DUANE CONDOMINIUM, 52 THOMAS CONDOMINIUM, a n d 200 CHURCH STREET ASSOCIATES LLC , Defendant s

.

------------------------------------------------------------------- -- ------------ X INDEX NO. 154791/2018 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 06/10/2024

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### [* 1]154791/2018 ABREU, POLIBIO vs. BRUTUS ASSOCIATES, LLC

Motion No. 006 Page 2 of 7 At his deposition, plaintiff circled the uneven portion of th e sidewalk flag where he tripped and fell, which sidewalk flag is sunken below the level of the adjoining sidewalk flags (site photographs, NYSCEF Doc. Nos. 103, 106). The photographs were authenticated by plaintiff as accurately depicting the area where h e fell (Abreu EBT tr., NYSCEF Doc. No. 107 at 23). 1
Richard J. Murdock, 129 Duane’s property manager (Murdock EBT tr, NYSCEF Doc.
No. 105 at 7), testified that 129 Duane was aware of the condition of the sidewalk prior to the accident, and that he had notified the Board of 129 Duane of the uneven flag ( id. at 32

- 33, 50

- 51). He defined the uneven flag as “a possible tripping hazard ” in need of r epair ( id. at 38

- 39 ) and “hazardous to pedestrians walking by” ( id. at 60

- 61)

. Murdock also authenticated the photographs as accurately depicting the uneven sidewalk flag ( id. at 53

- 55 )

. He further testified that the adjoining property had redone their sid ewalk previously , which he averred abutted the property line at the spot where plaintiff fell , and though t that the condition needed to be repaired by the adjoining property ( id. at 35

- 38). It is undisputed that the adjoining pr operty is owned by defendant 200 Church Street Associates LLC (“200 Church”)

. Plaintiff now moves for summary judgment on its complaint against 129 Duane, and to dismiss 129 Duane’s affirmative defense of comparative negligence. Summary judgment is appropriate where there are no disputed material facts ( Andre v Pomeroy , 35 NY2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law ( Zuckerman v City of N

. Y

. , 49 NY2d 557, 562 [1980]). “Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers” ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] [internal citations omitted]). Once a movant has met this burden, “the burden shifts to the

1 Defendant’s argument that the pho to graphs must be authenticated by the photographer is without merit ( s e e , People v Rodriguez , 38 NY3d 151, 155 [2022] ). INDEX NO. 154791/2018 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 06/10/2024

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Motion No. 006 Page 3 of 7 opposing par ty to submit proof in admissible form sufficient to create a question of fact requiring a trial” ( Kershaw v Hosp ital for Special Surgery , 114 AD3d 75, 82 [1st Dept 2013]). “[I]t is insufficient to merely set forth averments of factual or legal conclusions ” ( Genger v Genger , 123 AD3d 445, 447 [1st Dept 2014 ] [internal citation omitted] , l v d e n i e d 2 4 N Y 3 d 9 1 7 [ 2 0 1 5 ] ).
Moreover , the reviewing court should accept the opposing party's evidence as true ( Hotopp
Assoc s . v Victoria's Secret Stores , 256 AD2d 285, 286

- 287 [1st Dept 1998]), and giv e the opposing party the benefit of all reasonable inferences ( Negri v Stop & Shop , I n c . , 65 NY2d 625, 626 [1985]). Therefore, if there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( Rotuba Extruders v Ceppos , 46 NY2d 223, 231 [1978]). As a general matter, 129 Duane has a “ nondelegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to other s” ( Daly v 9 E. 36th LLC , 153 AD3d 1145, 1147 [1st Dept 201 7] , citing Basso v Miller , 40 NY2d 233, 241 [1976]). New York City Administrative Code § 7

- 210 provides, as specifically relevant herein, that “[i] t shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the i ntersection quadrant for corner property, to maintain such sidewalk in a reasonably safe conditio n” (Administrative Code of City of NY § 7

- 210[a]). “Sidewalk shall

mean that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians ” (Administrative Code of City of NY § 19

- 101[d]). “[A] trip hazard, where the vertical grade differential between adjacent sidewalk flags is greater t han or equal to one half inch or where a sidewalk flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth ,” is a “substantial defect” which a property owner must correct (Administr ative Code of City of NY § 19

- 152[a][4]). INDEX NO. 154791/2018 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 06/10/2024

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Motion No. 006 Page 4 of 7 Plaintiff’s deposition testimony that he tripped over the sidewalk, as recited above, is not rebutted by defendant’s submissions. Despite Murdock ’s testimony on behalf of 129 Duane regarding 200 Church’s construction work, it is undisputed that the depressed sidewalk flag is in front of 129 Duane’s property. The court notes that 129 Duane does not support it s argument regarding 200 Church’s potent ial responsibility for the sidewalk condition with any evidence of the location of the property line. Moreover, 200 Church’s potential responsibility for sidewalk
maintenance does not create an issue of fact regarding 129 Duane’s failure to maintain the
si dewalk. The photographs submitted by plaintiff indicate that the sidewalk flag where plaintiff tripped is not only sunken below the adjoining sidewalk on what may or may not be 200 Church’s side of the property line, but also below the sidewalk flag direct ly above it closer to the building (site photographs, NYSCEF Doc. Nos. 103, 106). A ruler placed to measure the height of the differential shows it to be more th a n one - half inch deep ( s e e , N Y S C E F D o c . N o . 1 0 3 a t 5

o f 5 ) , making it a “substantial defect” as defined by the Administrative Code ( Administrative Code of City of NY § 19

- 152[a][4]). As the Court of Appeals has held, “ section 7

- 210 (b), by its plain language, does not restrict a landowner's liability for accidents that occur on its own abutting sidewalk where the landowner's failure to comply with its duty to maintain its sidewalk in a reasonably safe condition constitutes a proximate cause of a plaintiff's injuries ” ( Sangaray v W est Riv. Assoc.,
LLC , 26 NY3d 793, 799 [2016] ). As Murdock testified, he informed the Board of the defect, y et 129 Duane did not act, under the mistaken impression that it was solely 200 Church’s responsibility to fix the problem. 129 Duane’s inaction is thus an independent proximate cause of plaintiff’s accident. INDEX NO. 154791/2018 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 06/10/2024

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Motion No. 006 Page 5 of 7 Defendant argues that the defect was “open and obvious ” ( N Y S C E F D o c . N o . 1 2 9 a t 3 )

.

“ To establish an open and obvious condition, a defendant must prove that the hazard could not reasonably be overlooked by anyone in the area whose eyes were open ” ( Powers v 31 E 31 LLC , 123 AD3d 421, 422 [1st Dept 2014] ). “ The burden is on the defendant to demonstrate, as a matter of law, that the condition that caused the plaintiff to sustain injury was readily observable by the plaintiff employing the reasonable use of his senses ” ( id. ). Defendant cannot demonstrate that the defect was open and obvious in a manner that should preclude liability. The photographs of the site were taken during the day, and plaintiff testified that the ligh ting was dim when he tripped ( Abreu EBT tr., NYSCEF Doc. No. 107 at 15). In this regard, “[a] condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracte d” ( Harris v 11 W. 42 Realty Inv'r s, LLC , 98 AD3d 1084, 1085 [2d Dept 2012] ). Further, even if the court were to find the defect open and obvious, that would only relieve defendant of its duty to warn of the defect, and not preclude liability for allowing the defect in the first place ( Wes tbrook v WR Activities

- Cabrera Markets , 5 AD3d 69, 70 [1st Dept 2004] [“ Additionally, we hold that even if a hazard qualifies as ‘ open and obvious ’ as a matter of law, that characteristic merely eliminates the property owner's duty to warn of the hazard, b ut does not eliminate the broader duty to maintain the premises in a reasonably safe condition ”]). Thus, even were the condition open and obvious , defendant would not be entitled to preclude liability ( id. at 74 [“ A landlord's duty to maintain premises in a reasonably safe condition

. . . is not satisfied by permitting a highly dangerous

— but correctable

— condition to remain, simply because the dangerous condition is obvious ”]). INDEX NO. 154791/2018 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 06/10/2024

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Motion No. 006 Page 6 of 7 Finally, plaintiff is also entitled to summary judgment dismissing the defense of comparative negligence. Plaintiff testified that he was walking while looking ahead, with nothing in his hands, and his cell phone in his pocket (Abreu EBT tr., NYSCEF Doc. N o. 107 at 15

- 18). 129 Duane fails to rebut this showing , or offer anything other than speculation that plaintiff acted negligently by failing to observe the sidewalk defect in dim light

. Accordingly, this affirmative defense is dismissed ( Spielmann v 170 B roadway NYC LP , 187 AD3d 492 [1st Dept 2020] [dismissing defense of comparative negligence where “ D efendants d o not explain how plaintiff was negligent or culpable, nor i s there any evidence in the record suggesting that he

was ”]). Accordingly, it is hereby ORDERED that the plaintiff’s motion for summary judgment is granted to the extent of granting partial summary judgment in favor of plaintiff and against defendant 129 Duane Condominium on liability ; and it is further ORDERED that the issue of the amount of a judgment to be entered thereon shall be determined at the trial herein; and it is further ORDERED that 129 Duane Condominium’s affirmative defense of comparative negligence is dismissed; and it is further ORDERED that the balance of the action shall continue; and it is further ORDERED that this matter is respectfully referred to the Clerk of the Trial Assignment Part to be assigned for trial. INDEX NO. 154791/2018 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 06/10/2024

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Motion No. 006 Page 7 of 7 This constitutes the decision and order of the court.
E N T E R :

6/ 1 0 /2024 $SIG$ DATE LOUIS L. NOCK, J.S.C.
CHECK ONE: CASE DISPOSED X NON - FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 154791/2018 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 06/10/2024

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