### Blackwell v City of New York 2024 NY Slip Op 30012(U) January 2, 2024 Supreme Court, New York County Docket Number: Index No. 450986/2019 Judge: Judy H. Kim 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.NYSCEF DOC. NO. 84 INDEX NO. 450986/2019 RECEIVED NYSCEF: 01/02/2024 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. JUDY H. KIM PART OSRCP Justice

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TALIAH BLACKWELL, Plaintiff,

- V - THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, PHILJO HOLDING CORPORATION, HUGHES TAVERN LLC, and ANDI ASSOCIATES CO., Defendants.

---------------------------------------------------------------------------------X INDEX NO. 450986/2019 MOTION DATE 02/08/2023 MOTION SEQ. NO. 003

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57,58,59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,81, 82, 83 were read on this motion for JUDGMENT-SUMMARY
Upon the foregoing documents, PhiljoHolding Corporation ("Philjo") and Hughes Tavern LLC's ("Hughes Tavern") motion, pursuant to CPLR §3212, for summaryjudgment dismissing this action is denied for the reasons set forth below. Plaintiffbrings this action to recover for injuries allegedly sustained on April 13, 2018, when she tripped and fell on "uneven sidewalk flagstones, and a gap between said sidewalk flagstones" in front of 1682 First Avenue, New York, New York ( the "Building"), at the comer of 88th Street andFirstAvenue (NYSCEF Doc. No. 56 [Compl. at,J20]). Inheraffidavitin opposition to the instantmotion, plaintiffattests that two separate defects within the subject sidewalk caused her to fall: My accident occurred, when the toe ofmy left foot went inside an uneven gap in the sidewalk, which was about 2 inches deep x 2 inches wide, and located about an inch off ofthe curb. I tried to catch myself, but stumbled forward, catching my other foot in a second uneven gap, which was located closer to the curb, a little
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above the curb, and had a crack in it. As aresult, I was caused to continue to move forward, landing on myknee, turning over and landing on mybuttocks. (NYSCEF Doc. No. 78 [Blackwell Aff. at 

## iFD- Photographs marked at her examination before trial ("EBT") depict one defect within a pedestrian ramp and the other defect within a sidewalk flag adjacent to the pedestrian ramp. This sidewalk flag contains a traffic pole signal embedded within it (See NYSCEF Doc. Nos. 66-68]). Plaintiffasserts negligence claims against1: (i) the City ofNew York and New York City Department ofTransportation (collectively, the "City"), (ii) Philjo, the owner ofthe Building, and (iii) Hughes Tavern, the lessee of the Building. Plaintiff alleges that each of these defendants caused and created the defective sidewalk conditions and failed to remedy same. Philjo and Hughes Tavern now move, pursuant to CPLR §3212, for summaryjudgment dismissing plaintiffs complaint and all crossclaims against them. Philjo argues that it is exempt from liability because the pedestrian ramp does not fall within the ambit ofAdministrative Code §7-210 and that any obligation to maintain and repair the sidewalk flag in question was displaced under 34 RCNY §2-20 and adds that it did not cause or create the defective condition or made special use ofthe area ofplaintiffs fall. Hughes Tavern argues that, as a commercial tenant, it does not owe plaintiff a duty ofcare, and neither caused or created the defective condition nor made special use ofthe area ofplaintiffs fall. In support oftheirmotion, Philjo and Hughes Tavern submit the affidavit ofJames Moran, in whichhe attests thathe and his brother each own fifty percent ofHughes Tavern, and adds that: Hughes Tavern occupies the first floor ofthe building at 1682 First Avenue and operates a restaurant. The tavern was in business and in operation on and prior to plaintiffs alleged accident ofApril 13, 2018.

1 Plaintiffalso asserts negligence claims against Andi Associates Co., who has yet to appear inthis action.

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Hughes Tavern orally leases the ground floor space at 1682 First Avenue from Philjo Holding Corporation, the owner of the building. My parents, James and TeresaMoran, are the owners ofPhiljo Holding Corporation.

Ihavereviewedthephotographs ofthe accidentlocation andthe alleged conditions on and around the pedestrian ramp[,] which plaintiffalleges causedher to trip and fall backon April 13, 2018
... Priorto plaintiffs alleged accident ofApril 13, 2018, Ihadneverpreviouslytakennoticeofeitheroftheseconditionshavingbeenpresent on the sidewalk. Neither Hughes Tavern norPhiljo maintained this area ofthe sidewalkprior to, or after the April 13, 2018 accident alleged. No repairs had ever been made to the pedestrian ramp or the flagstone upon which the traffic control devices were situated, priorto plaintiffs accident ofApril 13, 2018[,] by either Philjo orHughes Tavern. No actions on the part of Philjo or Hughes Tavern caused the alleged defective conditions to exist as no workhad everbeen performed on the sidewalk, at this location, while neither Philjo nor Hughes Tavern made any special use of the sidewalk at this specific location. (NYSCEF Doc. No. 64 [Moran Aff. at

### iJi11-5]). Philjo and Hughes Tavern also submit Moran's EBT testimony in which he testified, in pertinent part, that he has managed the Building since 2004 and that, while there is no written agreement detailinghis maintenance obligations, heremoves the snow from the sidewalk abutting the Building when it snows and generally maintains it, keeping it clean (NYSCEF Doc. No. 63 [Moran EBT atpp. 9-10, 13-14, 16, 35). He added that an employee ofHughes Tavern sweeps and cleans the sidewalk every day, including the area ofthe sidewalkwhere plaintifffell (Id. at pp. 15, 26). However, Moran would hire contractors to make certain unspecified repairs to the Building (Id. at 22). Plaintiffopposes Philjo and Hughes Tavern'smotion, arguingthatPhiljo is responsible for maintaining the pedestrian ramp under Administrative Code §7-210 and that it has failed to establish that it lacked actual or constructive notice ofthese conditions. Plaintiff further argues

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that Hughes Tavern owed a duty to plaintiffbecause its lease was so comprehensive and exclusive thatitentirely displaced Philjo's duty underAdministrative Code §7-210 to maintainthe sidewalk. In reply, defendants argue, as pertinent here, that Hughes Tavern did not displace Philjo's duty to maintain the sidewalk because no lease agreement between the parties existed and Moran does not maintain the abutting sidewalk in his capacity as owner ofHughes Tavern. DISCUSSION "The 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 ofany material issues offact. Failure to make such prima facie showing requires a denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summaryjudgment to produce evidentiaryproofin admissible form sufficientto establishthe existence ofmaterial issues offact which require a trial ofthe action" (Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986] [internal citations omitted]). The Court first addresses Philjo's motion for summaryjudgment. Philjo contends that it is exempt from liability because it has no duty under Administrative Code §7-210 to repair either defect that caused plaintiffs fall. Administrative Code §7-210 provides, as relevant here, that: the owner ofreal property abutting any sidewalk
... shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags
... (Administrative Code§ 7-210[b]).

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Philjo has established that it cannot be held liable for any defective condition within the subject pedestrian ramp. It is well settled that, under Administrative Code §7-210, "a landowner is not liable for a defect in a pedestrian ramp leading from the street onto a sidewalk unless the landowner createdthe defect ortheramp was constructed for its special use" 2 (Garyv 

### IOI Owners _C_m:_Q_,_, 89 AD3d 627, 627 [1st Dept 2011]). This exception is inapplicablehere, as itis undisputed that the pedestrian ramp was not constructed for Philjo's special use and that Moran's EBT and affidavit establish that Philjo did not cause or create the defect within the pedestrian ramp. However, a question offact remains as to whether Philjo was responsible for maintaining the sidewalk flag at issue. Philjo argues that the traffic pole embedded within this sidewalk flag meant that Philjo was precluded from maintaining the sidewalk flag by Rules ofthe City ofNew YorkDepartment ofTransportation (34 RCNY) §2-20. This provision states, inrelevantpart, that: Any person installing, repairing, removing, using or working within three (3) feet ofany type ofCity electrical equipment ornon-City electrical equipment attached to City Property, including communication circuits, shall comply with the following requirements:
Only public utilities, public benefit corporations, City agencies or licensed and insured contractors shall bepermittedto install, repair, use orworkwithin three (3) feet of any type of City electrical equipment or non-City electrical equipment attached to City Property, including communication circuits. (34 RCNY §2-20[a][2] [emphasis added]). The Court agrees with Philjo that the subject traffic pole falls within the ambit of this provision. Although 34 RCNY §2-01 defines "City electrical equipment" as "city property to which electrical connections can be made, including but not limited to, electrical devices, wood

2 Plaintiff's contentionthatthe principle setforth inOrtiz v City ofNew York, 67 AD3d 21 (1st Dept 2009), i.e., that the abutting property owner is not responsible for maintaining pedestrian ramps under Administrative Code §7-210, was overruledby the Court ofAppels, inincorrect (See Ortiz v City ofNew York, 14 NY3d 779 [2010]).

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poles and metal street light/lampposts," and does not expressly include traffic poles, the Court notes that this definition is non-exhaustive and, moreover, that 34 RCNY §2-20(a)(l)-which immediately precedes the provision at issue-defines "City electrical equipment" to include the "street light poles and poles containing electrical traffic control devices," at issue here. As such, the Court turns to the question ofwhether 34 RCNY §2-20(a)(2) bars Philjo from performing any work on the subject sidewalk flag. While there is a paucity of authority on this question, the Court is persuaded by the conclusion reached by the court in Steen v Ethan Allen Design Center, after areview ofthe legislativehistorybehind 34 RCNY §2-20, that this provision does not remove a property owner's responsibility to repair sidewalk flags under Administrative Code §7-210, but only constrains the manner in which a property owner may perform such work (Steen v Ethan Allen Design Ctr., 2021 NY Slip Op 31134[U], 6-8 [Sup Ct, NY County 2021]). The Court also agrees that defendants' attempt to analogize 34 RCNY §2-20(a)(2) to 34 RCNY §2-07(b) is not persuasive. 34 RCNY §2-07(b) "assumes private ownership of sidewalk gratings
... and explicitly imposes both monitoring and maintenance requirements" where, by contrast, "34 RCNY § 2-20(a)(2) merely states that only certain personnel are allowed to work withinthree feet ofCity electrical equipment" (Steen v Ethan Allen Design Ctr., 2021 NY Slip Op 31134[U], *8 [Sup Ct, NY County2021]; see also Doyleyv Steiner, 107 AD3d 517,518 [1stDept 2013]).In light of the foregoing, Philjo must, in order to establish its entitlement to summary judgment, prove "that it neither created the defective condition nor had actual or constructive notice ofits existence for a sufficient length oftime to discover and remedy it" (Garcia v City of New York, 99 AD3d 491,492 [1st Dept 2012]). Although Philjo has establishedthrough Moran's EBT that it did not cause or create the alleged defect, it has not established that it lacked actual or

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constructive notice such that it could have corrected the defect (and in fact makes no such claim in its papers). Accordingly, defendants' motion for summaryjudgmentis denied as to Philjo. Defendants' motion is also denied as to Hughes Tavern. As a tenant, Hughes Tavern may not be held liable for a failure to maintain the abutting sidewalkunless it "affirmatively caused or created the defect that caused plaintiffto trip" or "putthe subject sidewalk to a special use for its
ownbenefit, thus assuming aresponsibility to maintainthe partused in reasonably safe condition"
orits "leasewas so comprehensive andexclusive as to sidewalkmaintenance as to entirely displace the landowner's duty to maintain the sidewalk" (Abramson v Eden Farm, Inc., 70 AD3d 514,514 [1st Dept 2010]; Kellogg v All Sts. Hous. Dev. Fund Co., Inc., 146 AD3d 615, 617 [1st Dept 2017]).Hughes Tavern has demonstrated through Moran's affidavit that it did not affirmatively create the alleged defects. In addition, it is undisputed that Hughes Tavern did not put the subject portion ofthe sidewalk to special use for its own benefit (See Abramson v Eden Farm, Inc., 70 AD3d 514, 514 [1st Dept 2010]; Gary v 101 Owners Corp., 89 AD3d 627, 628 [1st Dept 2011]). However, Moran's EBT testimony and affidavit thatHughes Tavern had an oral lease with Philjo raises an issue offact as to the scope ofthe sidewalkmaintenanceunderthis oral lease andwhether its obligations were so "comprehensive and exclusive" that Hughes Tavern displaced Philjo's statutory obligations to maintain the sidewalk.3 Accordingly, defendants' motion for summary judgmentis denied as to Hughes Tavern. In light ofthe foregoing, it is ORDERED that Philjo Holding Corporation and Hughes Tavern LLC's motion for summaryjudgmentis denied; and it is further

3 It remains an open question whetherthe "orallease" betweenPhiljo andHughes Tavernis enforceable (See General Obligations Law §5-703).

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ORDERED that, within fifteen days ofthe date ofthis decision and order, counsel for plaintiffshall serve a copy ofthis decision and order, with notice ofentry, on defendants as well
as on the Clerk ofthe Court (60 Centre Street, Room 141B) and the Clerk ofthe General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk ofthe Court and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on this Court's website at the address www.nycourts.gov/supctmanh). This constitutes the decision and order ofthe Court.

1/2/2024

DATE CHECK ONE:
APPLICATION : CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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