Saba v Lindo Despertar Grocery Corp.

2024 NY Slip Op 31403(U)

April 22, 2024

Supreme Court, New York County

Docket Number: Index No. 156897/2019

Judge: Lori S. Sattler

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.
156897/2019 SABA, MIGUEL vs. LINDO DESPERTAR GROCERY CORP.

Motion No. 003

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 02M

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DECISION + ORDER ON 

MOTION

INDEX NO. 156897/2019

MOTION DATE 09/21/2023

MOTION SEQ. NO. 003

MIGUEL SABA,

 Plaintiff, 

- v -

LINDO DESPERTAR GROCERY CORP., NEW YORK 

CITY CAPITAL CORP., NEW YORK CITY CAPITAL 

LLC,LINDO DESPERTAR DELI GROCERY, BAHRAM 

HAKAKIAN, YOKATY FERNANDEZ, DIOSMARY 

FERNANDEZ,

 Defendant. 

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NEW YORK CITY CAPITAL LLC 

 Plaintiff,

 -againstLICEY FOOD SERVICES CORP., CANDIDO RODRIGUEZ

 Defendant.

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 Third-Party

Index No. 595471/2022

HON. LORI S. SATTLER: 

The following e-filed documents, listed by NYSCEF document number (Motion 003) 62, 63, 64, 65, 66, 

67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 82, 83, 84, 85, 86, 87

were read on this motion to/for JUDGMENT - SUMMARY .

In this premises liability action, defendant New York City Capital LLC (“NYC Capital”)

moves for summary judgment pursuant to CPLR 3212 dismissing plaintiff Miguel Saba’s 

(“Plaintiff”) complaint in its entirety, dismissing all cross-claims against it, and granting 

summary judgment on its cross-claims against defendants Lindo Despertar Grocery Corp., Lindo 

Despertar Deli Grocery (together “Lindo”), Bahram Hakakian, Yokaty Fernandez, and Diosmary 

Fernandez. Plaintiff and Lindo oppose the motion. Lindo cross-moves for summary judgment

seeking dismissal of the Complaint and of all cross-claims against it, which NYC Capital and 

INDEX NO. 156897/2019

NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 04/22/2024

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Motion No. 003

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Plaintiff oppose. Defendants Bahram Hakakian, Yokaty Fernandez, and Diosmary Fernandez

(collectively “Individual Defendants”) have not appeared in this action.

NYC Capital is the owner of the mixed use commercial and residential building at 202 

Audubon Avenue in Manhattan (“the Premises”). Third party defendants Licey Food Corp. and 

Candido Rodriguez leased the Premises from NYC Capital and assigned the lease to Lindo and 

the Individual Defendants (collectively “Tenants”) (NYSCEF Doc. No. 65, Lease).

1

 At all times 

relevant the Tenants operated a convenience store on the Premises. 

Plaintiff alleges that he slipped and fell on water in the convenience store on the 

Premises. He testified that he entered the store between 9:30 and 10:00 p.m. on May 1, 2019, 

took three steps, and slipped on the metal floor. He avers that he noticed after he fell that there 

was water on the floor. Plaintiff testified that it had been raining the entire day and that the floor 

was wet “because it was raining, there were no signs, there was no carpet, no rug on the floor” 

(NYSCEF Doc. No. 72, Plaintiff EBT at 18, 30). However, climatological data from the 

National Oceanic & Atmospheric Administration indicates that there was no precipitation on the 

day of the accident (NYSCEF Doc. No. 79). Lindo’s employee who was at the store at the time 

of Plaintiff’s accident testified that the building’s super had come into the store on two or three 

prior occasions to fix leaking pipes in the ceiling, and that the last such work had been performed 

around 21 days before Plaintiff’s accident (NYSCEF Doc. No. 73, Rodriguez EBT at 74). 

On a motion for summary judgment, the moving party “must make a prima facie showing 

of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any 

material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 

1

Individual defendants Yokaty Fernandez and Diosmary Fernandez signed the Assignment of Lease individually 

and Yokaty Fernandez also signed on behalf of Lindo Depsertar Grocery Corp. The Complaint alleges that Bahram 

Hakakian owned, operated, and managed the Premises, although he is not named in the Lease or Assignment. 

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NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 04/22/2024

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Motion No. 003

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853 [1985], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “Failure to make 

such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” 

(Winegrad, 64 NY2d at 853). The Court must view the evidence “in a light most favorable” to 

the nonmoving party and accord the nonmovant “the benefit of every reasonable inference” 

(Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]).

NYC Capital first argues that it is entitled to summary judgment dismissing Plaintiff’s 

complaint against it as it is an out of possession landlord and was not responsible for routine 

maintenance of the floor under the lease. “An out-of-possession landlord is generally not liable 

for negligence with respect to the condition of the demised premises unless it ‘(1) is 

contractually obligated to make repairs or maintain the premises or (2) has a contractual right to 

reenter, inspect and make needed repairs and liability is based on a significant structural or 

design defect that is contrary to a specific statutory safety provision’” (DeJesus v Tavares, 140 

AD3d 433, 433 [1st Dept 2016], quoting Vasquez v The Rector, 40 AD3d 265, 266 [1st Dept 

2007]). Here, the Lease allows NYC Capital access to the Premises to “use and maintain and 

replace pipes and conduits in and through the demised premises and to erect new pipes, ducts, 

and conduits therein . . .” (Lease at ¶ 13). It further provides that Tenants were responsible for 

all non-structural repairs at the Premises, including plumbing and flooring (Lease at ¶ 52). 

The Court finds that there is a material issue of fact as to the source of the alleged water 

condition on the floor of the Premises that caused his accident. This question of fact prevents the 

Court from determining whether this condition was within NYC Capital’s responsibilities under 

the Lease. Accordingly, the branch of NYC Capital’s motion seeking summary judgment 

dismissing Plaintiff’s Complaint as against it is denied. 

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The next branch of NYC Capital’s motion seeks summary judgment granting its 

contractual indemnification cross-claim against Tenants. It is well-established that summary 

judgment should be denied on a contractual indemnification claim where “a triable issue of fact 

exists regarding the indemnitee’s negligence” (Spielmann v 170 Broadway NYC LP, 187 AD3d 

492, 494 [1st Dept 2020] [internal quotations and citations omitted]; see also Picaso v 345 E. 73 

Owners Corp., 101 AD3d 511, 512 [1st Dept 2012]). As there has been no determination of 

NYC Capital’s negligence or lack thereof, the Court denies this branch of NYC Capital’s motion. 

NYC Capital lastly moves for summary judgment on its cross-claim for breach of 

contract against Tenants for their failure to procure insurance as required by the Lease. It is 

undisputed that the Lease requires Lindo to procure comprehensive general liability insurance 

(Lease at ¶ 43[a]). In support of its motion, NYC Capital presents an uncontroverted affidavit 

from a member of Lindo stating that the Premises were not insured under any policy at the time 

of Plaintiff’s accident (NYSCEF Doc. No. 71). Lindo does not present any evidence in rebuttal 

to NYC Capital’s showing. This branch of the motion is accordingly granted.

In its cross-motion, Lindo seeks summary judgment dismissing Plaintiff’s Complaint and 

any cross-claims against it. As to Plaintiff’s negligence claim, Lindo argues that it cannot be 

liable as the weather records from the day of the accident showing no precipitation cannot be 

reconciled with Plaintiff’s claims that he slipped on rainwater as Plaintiff offers no other 

explanation as to how the floor became wet. This branch of the motion is denied as the Court 

has determined that there are issues of fact as to how water came to be on the floor and therefore 

whether the condition fell within the responsibility of NYC Capital or the Tenants. 

In its Answer, Lindo asserts cross-claims against NYC Capital for contribution and 

indemnification. It does not address these claims in its moving papers outside of its Notice of 

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Motion No. 003

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Cross-Motion and does not advance any argument as to why it is entitled to summary judgment 

on these claims against NYC Capital. To the extent that Lindo seeks contractual indemnification 

against NYC Capital, summary judgment on such claim must be denied as Lindo fails to allege

any contractual provision requiring NYC Capital to indemnify it. To the extent that it seeks 

common law indemnification, such claim must be denied as there has been no finding that Lindo 

is vicariously liable to Plaintiff without actual fault on its part (see Ramirez v Almah, LLC, 169 

AD3d 508, 509 [1st Dept 2019]). Furthermore, as there has been no finding as to the liability of 

any defendant, summary judgment on Lindo’s cross-claims for contribution and indemnification

cannot be granted. The Court accordingly denies this branch of Lindo’s cross motion. 

Accordingly, it is hereby: 

ORDERED that the motion of defendant New York City Capital LLC for summary 

judgment is granted with respect to its breach of contract cross-claim against defendants Lindo 

Despertar Grocery Corp., Lindo Despertar Deli Grocery, Bahram Hakakian, Yokaty Fernandez, 

and Diosmary Fernandez; and it is further 

ORDERED that the remainder of the motion of defendant New York City Capital LLC 

for summary judgment is denied; and it is further 

ORDERED that the cross-motion of defendants Lindo Despertar Grocery Corp. and 

Lindo Despertar Deli Grocery is denied in its entirety. 

This constitutes the Decision and Order of the Court. 

4/22/2024 $SIG$

DATE LORI S. SATTLER, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

INDEX NO. 156897/2019

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