### Xenia Liu v City of New York 2024 NY Slip Op 33076(U) September 3, 2024 Supreme Court, New York County Docket Number: Index No. 154480/2018 Judge: Hasa A. Kingo 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 09/03/2024 03:34 P~ NYSCEF DOC. NO. 75 INDEX NO. 154480/2018 RECEIVED NYSCEF: 09/03/2024

PRESENT: 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY HON. HASA A. KINGO PART Justice 05M

---------------------------------------------------------------------------------X INDEX NO. 154480/2018

XENIA LIU, Plaintiff,

- V
- THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, FAIRWAY MARKET, FAIRWAY FOOD MARKET, INC.,KIPS BAY DEVELOPMENT LIMITED PARTNERSHIP Defendant.

---------------------------------------------------------------------------------X MOTION DATE 07/08/2022 MOTION SEQ. NO. 003

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 003) 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 were read on this motion for SUMMARY JUDGMENT
PlaintiffXeniaLiu ("Plaintiff') brings this action to recover damages for personal injuries allegedly sustained from a trip and fall incident on November 30, 2017. With the instant motion, Defendant Kips Bay Owners LLC ("Kips Bay") moves for summaryjudgmentpursuant to CPLR § 3212, seeking dismissal of the complaint and all cross-claims against it. Upon careful consideration ofthe motion papers, opposition, reply, and the applicable law, the motion is denied for the reasons set forth below. BACKGROUND On November 30, 2017, Plaintiff alleges that she tripped and fell on a pedestrian ramp located on a median at the intersection of2nd Avenue and East 30th Street in New York, New York. Plaintiff contends that the area was in an "unsafe, hazardous and trap-like condition," leading to her injuries. Kips Bay owns the building located at the northwest comer of2nd Avenue and East 30th Street, which, at the time of the incident, housed a Fairway Supermarket along with other commercial establishments such as Sherwin Williams and Bank ofAmerica. The median where the incident occurred is situated between traffic lanes on 2nd Avenue and is connected to the sidewalk abutting Kips Bay's property by a crosswalk. PROCEDURAL HISTORY

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### [FILED: NEW YORK COUNTY CLERK 09/03/2024 03:34 P~ NYSCEF DOC. NO. 75 INDEX NO. 154480/2018 RECEIVED NYSCEF: 09/03/2024

Plaintiffinitiated this action by serving a summons and complaint dated April 30, 2018. Kips Bayansweredthe complaintonNovember 1, 2018, denyingliabilityandasserting affirmative defenses. Co-defendant Fairway Market answered with cross-claims on August 12, 2019, buthas since filed for bankruptcy, resulting in a stay that has been lifted as ofAugust 13, 2024. The City ofNew York also answeredwith cross-claims. To date, discovery remains incomplete. No depositions have been conducted, and no documentary evidencebeyondinitial pleadings and a 50-Hhearing transcripthasbeen exchanged. Plaintiffhas provided a notice ofclaimwith accompanying diagrams andphotographs identifying the accident location on the median's pedestrian ramp. ARGUMENTS In support ofthe instant motion, Kips Bay argues that it is entitled to summaryjudgment on the grounds that: 1.) it owes no duty to maintain or repair the median where the incident occurred, as the areadoes notabutitspropertyandfalls underthe City'sresponsibility; 2.) itneither created nor had any involvement with the alleged hazardous condition on the median; 3.) the medianwasnotconstructedfor Kips Bay's specialuse, nordidKips Bayderive any specialbenefit from it; and4.) an affidavitfrom Kips Bay'spropertymanager supports these assertions, indicating no ownership, maintenance, or special use ofthe medianby Kips Bay. Plaintiffopposes the motion, arguing that: 1.) the motion is premature due to incomplete discovery, including the absence ofdepositions and documentary evidence exchange; 2.) there is a reasonable basis to believe that Kips Bay may have derived a special benefit from the median, invoking the doctrine of special use, given the median's proximity and potential to facilitate pedestrian access to Kips Bay's commercial tenants; 3.) the affidavit provided by Kips Bay is insufficient and unexamined, lacking the evidentiaryweightrequired for summaryjudgment; and 4.) further discovery is necessary to explore the extent of Kips Bay's use and benefit from the median and to ascertain any involvementin its maintenance or condition. DISCUSSION Under CPLR § 3212, summaryjudgment is a drastic remedy that should be granted only when there is no genuine issue ofmaterial fact and the moving party is entitled tojudgment as a matter oflaw. The movant bears the initial burden ofpresenting evidence sufficient to eliminate any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless ofthe sufficiency ofthe opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320,324 [1986]; Winegradv. New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Moreover, a motion for summary judgment may be denied as premature where the opposing party demonstrates that discovery is incomplete and facts essential to oppose the motion may exist but cannot yet be stated (see CPLR § 3212[£]; Mason v. City of New York, 121 AD3d 468 [1st Dept 2014]; Blech v. WestParkPresbyt. Church, 97 AD3d 443 [1st Dept 2012]). In the present case, discovery is undeniably incomplete. No depositions have been conducted, and critical information regarding the maintenance, use, and control ofthe median is

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yet to be explored. Plaintiffhas not had the opportunity to depose Kips Bay's representatives, including the property manager who provided the affidavit, or to obtain relevant documents that may shed light on Kips Bay'srelationship to the median. The absence of such discovery is significant, particularly where issues offact may arise concerning Kips Bay'spotential special use orbenefit derived from the median. In addition, ithas not unequivocally been established that Kips Bay did not cause or create the defect in some way. Although Ben Sloan, the propertymanager for the building situated at the northeast comer of2nd Avenue and East 30th Street, asserts that no one from Kips Bay ever managed or repaired the median, no tangible evidence orrecords have been provided to substantiate that claimbeyond this self-serving proclamation. Courts have routinely held that summaryjudgment is inappropriate where essential facts remain within the exclusive knowledge ofthe moving party and have not been disclosed through discovery (see Barreto v. Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]; Jones v. American Commerce Ins. Co., 92 AD3d 844, 845 [2d Dept 2012]). The crux ofKips Bay's argument rests on the assertion that it owed no duty to maintain the median where the accident occurred. Generally, adjacent property owners are not liable for defects in public streets or medians unless they have created the defect or derive a special benefit from the use ofthatpublicproperty. Under the doctrine ofspecial use, liabilitymaybe imposedupon a landownerwho derives a special benefit from public property that is not common to the general public, typically arising from installation for private use and convenience (see Kaufman v. Silver, 90 NY2d 204, 207 [1997]; Poirierv. City of Schenectady, 85 NY2d 310, 315 [1995]). In this case, the proximity ofthe median to Kips Bay's property and its potential role in facilitating pedestrian access to Kips Bay's commercial tenants, including the Fairway Supermarket, raises questions as to whether Kips Bay derived a special benefit from the median. The possibility that the median enhanced accessibility and increased foot traffic to Kips Bay's premises cannotbe conclusivelyruled out without further factual development. Kips Bay'sreliance on thepropertymanager's affidavit to negate the creation ofthe defect or the notion of a purported special use is insufficient at this stage, and evinces Kip's Bay's inabilityto setforth aprimafacie showing. The affidavit, beingunexamined and self-serving, does not definitively resolve the issues at hand, especially in the absence of cross-examination and corroborating evidence (see JD. v Archdiocese of New York, 214 AD3d 561 [1st Dept 2023]; Davis vHenry, 212 AD3d 597 [2d Dept 2023]). Additionally, based on the current state ofthe record, even ifKip's Bay had made a prima facie showing, material issues offact remain regarding: 1) whether Kip's Bay derived a special benefitfrom the median sufficientto impose a duty ofcare; 2) whetherKip'sBay was involved in the creation or maintenance of the alleged hazardous condition; and 3) the extent to which pedestrian traffic to and from Kip'sBay's property utilized the median, thereby contributing to its use and condition. These issues necessitate comprehensive discovery, including depositions, document exchanges, and possibly expert testimony, to ascertain the full scope of Kips Bay's relationship to the median and the circumstances leading to Plaintiffs accident.

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Denying summaryjudgment at thisjuncture aligns with the principle that such motions should not be granted prematurely when essential facts are likely to be within the exclusive knowledge ofthe movingparty andhave notyetbeen disclosed (see RotubaExtruders v. Ceppos, 46 NY2d 223,231 [1978]; Sasson v. Setina Mfg. Co., 26 AD3d 487,488 [2d Dept 2006]). Considering the foregoing, Defendant Kips Bay has failed to meet its burden of establishingentitlementto summaryjudgmentas amatteroflaw.Notwithstanding, material issues offact remain unresolved, and further discovery is necessary to fully and fairly adjudicate the claims.Accordingly, itis hereby ORDERED that Defendant Kips Bay Owners LLC's motion for summaryjudgment is DENIED in its entirety; andit is further ORDERED thatthe parties shall proceedwith discovery expeditiously in accordance with the court's scheduling orders. This constitutes the decision and order ofthe court.

9/3/2024

DATE CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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