Sanchez v City of New York 2024 NY Slip Op 31696(U) May 13, 2024 Supreme Court, New York County Docket Number: Index No. 158156/2021 Judge: J. Machelle Sweeting 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.158156/2021 SANCHEZ, HUGO R vs. CITY OF NEW YORK ET AL

Motion No. 002 003 Page 1 of 13 The following e

- filed documents, l isted by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for JUDGMENT

- SUMMARY

. The following e

- filed documents, l isted by NYSCEF document number (Motion 003) 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 51, 52, 53, 85, 86, 87 were read on this motion to/for JUDGMENT

- SUMMARY

.

In the underlying action, plaintiff a lw a y s t hat o n January 5, 2021, he was building an outdoor dining structure outside of a building located at 60 West 48th Street, New York, NY (the “Building”) , when he fell from a defective ladder and was seriously injured. Plaintiff initiated this proceeding against A.L.S.T PROPERTIES, LLC (the “ Building Owner”), which owned the Building ; T &C IZAKAYA LLC d/b/a YAMA RAMEN & SUSHI BAR (the “Restaurant”), which

was a tenant in the Building ; SHAI REALTY MANAGEMENT, INC. (the “Property Manager”),



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. J. MACHELLE SWEETING PART 62 Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 158156/2021

MOTION DATE 10/19/2023, 10/18/2023

MOTION SEQ. NO. 002 , 003

DECISION + ORDER ON MOTION HUGO R SANCHEZ, Plaintiff,

- v - CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, T & C IZAKAYA LLC D/B/A YAMA RAMEN RAMEN & SUSHI BAR, A.L.S.T. PROPERTIES, LLC,SHAI REALTY MANAGEMENT, INC.,
Defendant s

.

------------------------------------------------------------------- -- ------------ X 

### FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/14/2024

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### [* 1]158156/2021 SANCHEZ, HUGO R vs. CITY OF NEW YORK ET AL

Motion No. 002 003 Page 2 of 13 which was the property manager for the Building ; the CITY OF NEW YORK and NEW YORK
CITY DEPARTMENT OF TRANSPORTATION (collectively, the “City”)

. 1 Pending now before the court are two motion s . In M otion S equence #002, plaintiff seeks

an order , pursuant to Civil Practice Law and Rules (“CPLR”) 3212, granting plaintiff summary judgme nt against t he Restaurant, Building Owner and Property Manager

. In M otion S equ ence #003, the Property Manager seeks an order granting summary judgment i n i t s f a v o r , dismissing all
claims and cross

- claims against i t

.

Standard for Summary Judgment The function of the court when presented wi th a motion for s ummary j udgment is one of issue finding, not issue determination ( Sillman v. Twentieth Century

- Fox Film Corp. , 3 N.Y.2d
395 [NY Ct. of Appeals 1957 ] ; Weiner v. Ga

- Ro Die Cutting, Inc. , 104 A.D.2d331 [ Sup. Ct. App.
Div. 1 st Dept. 1985 ])

. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment
as a matter of law ( Alvarez v. Prospect Hospital , 68 N.Y.2d 320 [NY Ct . of Appeals 1986 ] ; Winegrad v. New York University Medical Center , 64 N.Y.2d 851 [NY Ct. of Appeals 1985 ])

. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgm ent is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most
favorable to the non

- moving party ( Assaf v. Ropog Cab Corp. , 153 A.D.2d 520 [ Sup. Ct. App.
Div. 1st Dept

. 1989 ])

. Summary judgment will only be granted if there are no material, triable

1 Plaintiff initially initiated the action against the Owner, Restaurant and Property Manager under I ndex N umber 150965/2021 . That action and the instant action were consolidated by order of the undersigned on October 12, 2023 (NYSCEF Doc. N o
. 21). 

### FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/14/2024

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Motion No. 002 003 Page 3 of 13 issues of fact ( Sillman v. Twentieth Century

- Fox Film Corp. , 3 N.Y.2d 395 [NY Ct. of Appeals
1957 ])

. T he proponent of a summary judgment motion must make a prima facie showin g of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact , and f ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opp osing papers

. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Alvarez v Prospect Hosp. , 68 NY2d 320 [N.Y. Ct. of Appeals 1986] ). Further, pursuant to the New York Court of Appeals, “ We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form;
mere conclusions , expressions of hope or uns ubstantiated allegations or assertions are insufficient” ( Zuckerman v City of New York , 49 NY2d 557 [N.Y. Ct. of Appeals 1980]). 

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Motion No. 002 003 Page 4 of 13 Arguments made by P

laintif f In his papers, p laintiff argues that h e had been hired as a “day laborer” to build an outdoor dining structure for seating on the street in front of the Restaurant. O n the date of the subject accident, h e was performing work for the Restaurant, which was owned by Tami Halim (also
known as “Tony” ) and his father Charlie [last name not provided]

. Another laborer ( h e r e i n a f t e r

r e f e rr e d t o a s the “ Assistant ”) was helping with this project

. The structure was about 11 feet high, necessitating the use of a ladder to perform t h e work. Prior to the accident, Tony had given plaintiff
“v ery precise instructions of what to do,” and plaintiff had followed t h e s e instructions

. When t h e accident occurred, p laintiff was using a 6

- foot A

- frame ladder provided by the Restaurant that had been set up on the street by the Assistant

. The ladder itself was old and “in quite bad shape

. ” The street at this location was uneven, and plaintiff tried to move the ladder to a more stable position, but that did not help . While plaintiff was climbing up the ladder in order to work on the gutter for the outdoor dining structure, the ladder started to move, and plaintiff fell. P laintiff k n e w t h a t a
second ladder w a s at the Restaurant , b u t t h i s ladder was also old. Plaintiff had asked Tony to replace both ladders, but Tony refused. Plaintiff argues that the Building Owner is a proper Labor Law defendant because it is undisputed that the Building Owner owned Building . Plaintiff argues that the Restaurant is a proper Labor Law defendant because it is undisputed that the Restaurant leased a part of the Building and had the authority to control its own worksite, which authority was exercised in the hiring and directing o f plaintiff ’ s w o r k

. Plaintiff also argues that the Property Manager is a proper Labor Law defendant because the Property Manager w a s a n agent for the Building Owner. When the Restaurant decided to have work done for the outdoor dining area, the Property Manager approved on behalf of the Building O wner, and Tony (from the Restaurant) considered getting 

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Motion No. 002 003 Page 5 of 13 permission from the Property M anager to be the same as getting permission from the Building
Owner. Plaintiff argues that u n d e r L a b o r L a w 2 0 0 , he is entitled to summary judgment because defendants failed to properly maintain the area and provide plaintiff w i t h a safe place to work

. P l a i n t i f f a l s o a r g u e s t h a t defendants had notice that the ladder provided to plaintiff was faulty

. Pursuant to L a b o r L a w 2 4 0 ( 1 ) , p l a i n t i f f a r g u e s t h a t h e i s e n t i t l e d t o s u m m a r y j u d g m e n t , because he was engaged in a statutorily protected activity , and defendants failed to provide h i m with an adequate safety device against gravity

- related risk

. Plaintiff a l s o argues t h a t u n d e r L a b o r L a w 2 4 1 ( 6 ) , he is entitled to summary judgment , because
defendants violated Rule s 12 NYCRR 23

- 1.5 (c)(3) ; 12 NYCRR 23

- 1.2 1(b)(3)(ii) ; and 12 NYCRR
23

- 1.21(e)(3)

. Plaintiff c o n t e n d s t h a t t h e l a d d e r p r o v i d e d t o h i m w a s unsound, h a d insecure joints, and required level footing that was not available a t p l a i n t i f f ’ s w o r k l o c a t i o n
.

Arguments made by the Restaurant and the Building O wner
I n o p p o s i t i o n , t h e R e s t a u r a n t a n d B u i l d i n g O w n e r presented a very different set of facts , based in large part on the testimony given by Tony at his EBT (transcript at NYSCEF Doc. N o
. 69)

. F r i s t , t h e y e a c h d i s p u t e t h a t t h e Assistant , who h a d s et up the ladder , h a d b e e n hired by the
Restaurant . I nstead, they argue that the Assistant was brought to the worksite by p laintiff himself , to assist plaintiff with the work. Second , the y d e n y t h a t t h e Restaurant owne d two different ladders, and c o n t e n d i n s t e a d , t h a t t h e r e was only one ladder at the Restaurant , which was yellow
in color. The R e s t a u r a n t a n d B u i l d i n g O w n e r argue that t his is important because it raises a question of fact as to whether plaintiff a c t u a l l y f e l l f r o m a ladder provided by the R estaurant, or

w h e t h e r p l a i n t i f

f f e l l f r o m a ladder that plaintiff himself had brought with him. Third , t h e 

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Motion No. 002 003 Page 6 of 13 R e s t a u r a n t a n d B u i l d i n g O w n e r dispute that plaintiff h ad been given “instructions” by Tony as to
what to do. Instead, t he R e s t a u r a n t a n d B u i l d i n g O w n e r argue that Tony made clear that he did not have any experience in construction; that the plaintiff brought all of his own tools for the job; and that it was plaintiff himself w h o decided how to go about putting together the outdoor seating area.
Fourth , t he R e s t a u r a n t a n d B u i l d i n g O w n e r dispute that the ladder owned by the Restaurant was in poor condition, and argue instead that there had never been any issues with the ladder and
the Restaurant continue d to use that ladder without issue. Fifth , they dispute that plaintiff had eve r
made the Restaurant aware of a c l a i m e d poor condition of the Restaurant’s ladder, or that plaintiff

e v e r asked Tony to purchase any new ladders

. Sixth , t he R e s t a u r a n t a n d B u i l d i n g O w n e r b o t h

c h a l l e n g e w h e t h e r plaintif f fell in the manner i n w h i c h plaintiff described , because the narrative plaintiff g a v e a t h i s deposition d i f f e r e d significantly from the narrative plaintiff t e s t i f i e d t o at his
50

- h hearing. The R e s t a u r a n t a n d B u i l d i n g O w n e r arg ue that at his deposition (transcript s at
NYSCEF Doc. N o s
. 41 , 64, 65 ) , plaintiff testified that he was using an orange ladder and fell while stepping from the third to the fourth rung , whereas at his 50

- h hearing (transcript at NYSCEF Doc.
N o
. 68 ) , plaintiff testified that he was using a yellow ladder and that the accident occurred after
he had been standing on the top of the ladder for two to three minutes

. S e v e n t h , t h e R e s t a u r a n t a n d B u i l d i n g O w n e r argue that afte r the accident, plaintiff told Tony that he fell from the stairs and not the l a d d e r
. Tony was only made aware of the allegations concerning the ladder when the insurance investigator informed him that plaintiff claimed the fall
was from a ladder.
The R e s t a u r a n t a n d B u i l d i n g O w n e r argue that plaintiff’s motion for summary judgment should be denied in its entirety because the record shows : (i) material factual discrepancies
between the testimonies of plaintiff and Tony; (ii) material inconsistencies between the testimony 

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Motion No. 002 003 Page 7 of 13 plain tiff gave at his 50

- h hearing and the testimony plaintiff gave at his EBT ; and (ii) material inconsistencies between plaintiff’s testimon y and documentary evidence to the contrary . With respect to the discrepancies between plaintiff and Tony , they inclu de, but are not limited to: whether Tony had given plaintiff instructions; who hired the Assistant that supposedly erected the ladder plaintiff used; whether the Restaurant had two ladders ; whether the ladder owned by the
Restaurant was unsafe a n d whether plaintiff had informed plaintiff of such. With respect to the inconsistencies between plaintiff’s te stimon y at the 50

- h hearing and the EBT , they include, but
are not limited to: what ladder plaintiff was using when he fell; what types of ladders were
available for his use ; whether the two ladders were the same h eight; where on the ladder the
accident occurred ; whether or no t plaintiff had brought his own personal tools to the worksite ; whether plaintiff had a cell phone with him; whether plaintiff or anyone called 911 on plaintiff’s behalf, etc. With respect to plainti ff’s testimon y and t h e documentary evidence , t h e R e s t a u r a n t a n d

B u i l d i n g O w n e r argue that plaintiff testified at his deposition that he could not remember if he had another lawsuit, and expressly denied that the plaintiff’s firm represented him in any other

case. Y e t , the New York State Courts Electronic Filing (NYSCEF) system shows that plaintiff,

w h o i s represented by the same firm, initiated a nother personal injury action under I ndex N umber 152820/2020 in New York Supreme Court, (the “2020 Action”) the year before the instant action. Further, plaintiff testified at his deposition that he w a s neve r been involved in any prior work

place accidents , but plaintiff ’s 2020 Action concerned alleged injur ies due to an unsafe work
environment

. Finally, t h e R e s t a u r a n t a n d B u i l d i n g O w n e r n o t e t h a t plaintiff n ever pursued an inspection of the s u b

j e c t ladder that he claims was unsafe and t h a t caused him to fall. Th e
R e s t a u r a n t a n d B u i l d i n g O w n e r argue that plaintiff’s credibility “is squarely in question” and w he n 

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Motion No. 002 003 Page 8 of 13 a plaintiff’s credibility has been placed in issue, summary judgment cannot be granted on Labor
Law cause s of action.
The R e s t a u r a n t a n d B u i l d i n g O w n e r further argue that under either version of the narratives presented by plaintiff, there are triable question s of fact as to whether p laintiff was the sole proximate cause of the accident in that he “ failed to act normally and logically .” With respect to the testimony at the 50

- h hearing, plaintiff testified that the incident occurred when he was standing on the top cap of the yellow A

- frame ladder for two to three minutes , but also testified that he was well aware, and was specifically instructed during his OSHA training, that he should never use an
A

- frame ladder while standing on the top cap . With respect to the testimony at the depo sition , plaintiff acknowledged the existence of a second taller ladder, and common
- sense demands that if

a shorter ladder was unstable, plaintiff sh ould have simply waited to use the other taller ladder

. N e x t , t he R e s t a u r a n t a n d B u i l d i n g O w n e r argue that even assuming , arguendo , that plaintiff’s version s of the facts w ere generally correct, summary judgment could not be granted against either t h e R e s t a u r a n t o r B u i l d i n g O w n e r , because it is undisputed that plaintiff fell on a

street solely owned and controlled by defendan t City of New York (the “City”) , and it was the City that had given express permission for the erection of the outdoor dining structure. This permission was granted pursuant to Emergency Executive Order No. 126 , which was issued by the City to

a l l o w res taurants to operate on City

- owned space while indoor dining was closed due to the
COVID

- 19 pandemic.

F i n a l l y , t h e y c o n t e n d t h a t s u m m a r y judgment i s n o t appropriate h e r e , w e r e neither t h e
R e s t a u r a n t n o r t h e B u i l d i n g O w n e r controlled or supervised plaintiff’s work. With respect to the Building Owner , the Building Owner did not contract to have the outdoor dining structure erected ;
such structure was not erected for the Building Owner’s benefit ; and the Building Owner was not 

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Motion No. 002 003 Page 9 of 13 even aware of that a sidewalk dining area was being put up, so the Building Owner did not and could not have supervised the plaintiff’s work. With respect to the Restaurant , plaintiff testified

t h a t n e i t h e r Tony n o r Charlie from the Restaurant were present when the accident occurred and that the plaintiff had not seen or spoken to either o f t h e m since the night b e f o r e
. Tony unequivocally testified that plaintiff decided himself how to go about putting together the outdoor seating

. As such, the Restaurant clearly did not supervise p laintiff’s work

. In sum, the R e s t a u r a n t

a n d B u i l d i n g O w n e r argu e t h a t they did not supervise the means and methods of the plaintiff’s work; t h e y d i d n o t o w e plaintiff a duty of care with regard to the maintenance and repair of the street; plaintiff failed to submit any evidence that the street was maintained in a dangerous condition; and plaintiff failed to submit any evidence tending to show that either t h e R e s t a u r a n t o r

t h e B u i l d i n g O w n e r was on notice of the claimed dangerous condition in the street. For all of these

reasons, the R e s t a u r a n t a n d B u i l d i n g O w n e r argue, t h e y a r e n o t proper l y n a m e d a s d e f e n d a n t s i n

t h i s a c t i o n w h i c h assets c l a i m s p u r s u a n t t o t h e Labor La w
. In Reply, plaintiff d id not deny that factual discrepancies e x i s t , but argue d that summary judgment is nevertheless warranted because the facts in question are n ot material and do not alter

t h e R e s t a u r a n t a n d B u i l d i n g O w n e r ’ s liability under the Labor Law.

P laintiff also argue d that even though the accident happened on the City

- owned street , the Building Owner is nevertheless liable because “ the owner that matters is the owner of the building,
not the street next to it , ” and the Restaurant is nevertheless liable because it supplied the defective
ladder and purchased the materials for the construction project

. 

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Motion No. 002 003 Page 10 of 13 Arguments made by the Property Manager The Property Manager does not take any issue with the different versions o f the facts , and does not call into question plaintiff’s c r e d i b i l i t y
. R a t h e r , the Property Manager generally accepts plaintiff’s allegations that h e fell off a defective ladder provided to h i m by the Restaurant a n d s e e k s

s u m m a r y j u d g e m e n t i n i t s f a v o r
. T he Property Manager argue s t h a t i t d o e s n o t o w n t h e b u i l d i n g o r t h e s treet where the
accident occurred , a n d t h a t i t w a s n o t t h e “agent” of the Building O wner as that term is understood
in the context o f the Labor Law. With respect to being an agent, t he Property Manager argues
that t o hold a defendant liable under the Labor Law as a “ statutory agent ” of either the owner or the general contractor, it must be shown that the defendant had the “ authority to supervise and
control ” the injury

- producing work , which the Property Manager did not have in this case. Here, the Property Manager argues , it never e ntered any written management agreement regarding th e Building, much less one that was comprehensive or exclusive

. There was only a verbal agreement with the Building Owner that the Property Manager’s responsibilities were limited to building upkeep and m inor repairs , collecting rent, and other administrat ive functions. It did not contact plaintiff ; did not commission plaintiff’s work ; did not pay for plaintiff’s labor ; did not supply plaintiff with a ny ladder , tools or materials ; did not instruct plain tiff in the manner, means and method of the work; and was not present while the construction was conceived, planned, or
executed. T h e Property Manager argues that it had absolutely no authority or control over the plaintiff’s work or site safety. The Prope rty Manager also argues that the sole piece of evidence p laintiff offers as
indicative of the Property Manager ’s authority to supervise and control p laintiff’s work , was a portion of Tony’s testimony, where Tony stated that prior to hiring plaintiff, Tony called the 

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Motion No. 002 003 Page 11 of 13 Property Manager and o b t a i n e d his permission to erect an outdoor dining structure. The Property Manager argues that the terms of the lease between the Resta urant and the Building Owner state that the Restaurant was not allowed to perform any type of work on the property unless the
Restaurant first r e c e i v e d the “ prior written consent ” of the Building Owner , not the consent of the Property Manager. Emergency Executive Order No. 126 was t h e issued by M ayor De Blasio on June 18, 2020. The Property Manager argues that under this executive order, restaurateur s were given the right to construct outdoor dining shed s, without needing permission from building

ow ner s or their alleged agents. Therefore, t h e Property Manager argues, the phone call made by Tony is a “red herring,” as the R estaurant never needed permission to build, and any testimony Tony g a v e t o the contrary , stemmed from Tony’s “incorrect personal belie f .” The Property Manager argues that a liable party s h o u l d n o t b e p e r m i t t e d to “ imbue their liability onto a non

liable party simply by asking for unnecessary permission from a party with no authority to grant

or withhold such permission in the first place .” In response , plaintiff argues that the Property Manager was an agent under the Labor Law because the Property Manager ’s role in managing the B uilding was a comprehensive one , as the Property Manager testi fied that he acted as the building’s “super” ; that he collected rent and effectuated repairs ; and that he went to the building “pretty often

. ” Further, plaintiff argues, despite the Mayor giving permission t o a l l o w outdoor dining , the owner of a property, agent of an owner, and/or property manager of a building h a d t o still give authority for the outdoor dining shed to be
constructed . As such, the Property Manager did have the authority to deny the Restaurant’s request to build an outdoor dining shed. Here, plai ntiff argues, the Property Manager ex ercised its control over the project by giving permission to the Restaurant to undertake such project in the first place

. 

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Motion No. 002 003 Page 12 of 13 Conclusions of Law Regarding the Restaurant and Building Ow ner
As described above in detail, there are at least three m a t e r i a l l y different versions of the
facts o n t h i s r e c o r d : (1) The version given by plaintiff at his 5 0

- h hearing, where plaintiff us e d a yellow ladder supplied by the Restaurant ; the accident occurred after plaintiff had already been standing on the top step of the ladder for two to three minutes ; and present at the worksite was the Assistant that the Restaurant had provid ed . (2) The version given by plaintiff at his deposition : where plaintiff followed Tony’s instructions an d used an orange ladder supplied by the Restaurant; the accident occurred while plaintiff was stepping from the third to the fourth rung; and present at
the worksite was the Assistant that the Restaurant had provided . (3) The version given by Tony (from the Restaurant) at his deposition , where Tony gave plaintiff no instructions; Tony gave plainti ff one secure ladder; plaintiff called Tony to say plaintiff had fallen on the stairs ; and the Assistant that was present was plaintiff’s friend, that plaintiff himself brought to the worksite. Plaintiff’s general claim is that he was knowingly provided with a faulty ladder , he fell off the ladder, and h e was injured . Therefore, facts such as wh ich lad der plaintiff was using, who provided the ladder , and how the accident happened are not immaterial details, but in fact go to the very heart of plaintiff’s allegations.

As stated above, any party seeking summary judgment must tender sufficient evidenc e to demonstrate the absence of any material issues of fact , and f ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers . The caselaw is also clear that with respect to the Labor Law , s ummary judgment can be denied if there are significant issues as to plaintiff’s credibility, particularly in a situation such as this one where the accident is effectively unwitnessed. 2 See, e.g. Romano v New York City Tr. Auth., 213 AD3d 506 ( 1st Dept 2023 ) ; Hernandez v 46

- 24 28th St., LLC , 214 AD3d 451 (1st Dept 2023) ; Nascimento v Bridgehampton Const. Corp. , 86 AD3d 189 ( 1st Dept 2011 ) ;

2 Here, the accident was theoretically witnessed by the Assistant, but both plaintiff and the Opponents claim they do know the identity of, and cannot question, the Assistant because he was brought to the worksite by the other side. 

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Motion No. 002 003 Page 13 of 13 Manna v New York City Hous. Auth. , 215 AD2d 335 (1st Dept 1995) ( d e n y i n g s u m m a r y j u d g m e n t

w h e r e the c o n f

l i c t i n g e v i d e n c e r a i s e s q u e s t i o n s o f f a c t a s t o t h e m a n n e r i n w h i c h t h e a c c i d e n t
occurred , especially w h e r e t h e r e i s n o w i t n e s s t o t h e a c c i d e n t o t h e r t h a n p l a i n t i f f )

. Accordingly , the branch of plaintiff ’ s motion seeking summar y judgment as against the

R e s t a u r a n t and B u i l d i n g Owner i s d e n i e d

.

Conclusions of Law Regarding the Property Manager The crux of plaintiff’s claims against the Property Manager is that it acted as an agent of the Building Owner. A s detailed above , m a t e r i a l f a c t s i n t h i s c a s e r e m a i n i n d i s p u t e
. H e r e , i t i s

a l l e g e d t h a t Tony called t h e Property M a n a g e r a f t e r t h e Executive Order h a d p a s s e d , t o o b t a i n
p e r m i s s i o n t o b u i l d t h e d i n i n g shed. N o t a b l y , t h e Property Manager was not asked a t h i s d e p o s i t i o n

a b o u t t h i s c o n v e r s a t i o n w i t h T o n y a n d b o t h t h e R e s t a u r a n t a n d B u i l d i n g O w n e r acknowledge in their papers that the Property Manager “was aware” that a dining shed was b e i n g constructed

. G i v e n t h e s e f

a c t s , s u m m a r y j u d g e m e n t i s d e n i e d

.

Conclusion

F o r a l l o f t h e a b o v e r e a s o n s , it is hereby:
ORDERED that M o t i o n S e q u e n c e N u m b e r s 0 0 2 a n d 0 0 3 a r e D E N I E D

.

5 / 1 3 / 2 0 2 4 $SIG$ DATE J. MACHELLE SWEETING, J.S.C.

CHECK ONE: CASE DISPOSED X NON
- FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 

### FILED: NEW YORK COUNTY CLERK 05/14/2024 04:47 PM INDEX NO. 158156/2021 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/14/2024

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