Saglimbene v CPF 1511 Third Ave. LLC

2024 NY Slip Op 32214(U)

July 1, 2024

Supreme Court, New York County

Docket Number: Index No. 15255/2020

Judge: David B. Cohen

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. 116 

INDEX NO. 152255/2020 

RECEIVED NYSCEF: 07/01/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DAVID B. COHEN 

Justice 

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MARGARET SAGLIMBENE, 

Plaintiff, 

PART 

INDEX NO. 

MOTION DATE 

152255/2020 

04/21/2023, 

06/16/2023 

58 

- V - MOTION SEQ. NO. __ 0_0_3_0_0_4 __ 

CPF 1511 THIRD AVENUE LLC AND THE GAP, INC., 

Defendants. 

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DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 003) 67, 68, 69, 70, 71, 

72, 73, 74, 75, 76, 77, 78, 79, 80, 97, 99, 101, 102, 103, 104, 109, 112, 113 

were read on this motion to/for JUDGMENT-SUMMARY 

The following e-filed documents, listed by NYSCEF document number (Motion 004) 81, 82, 83, 84, 85, 

86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 98,105,106,107,108,110,111,114 

were read on this motion to/for JUDGMENT-SUMMARY 

In this personal injury case, in which plaintiff claims she sustained injuries in front of 

defendant The Gap, Inc's (Gap) store, Gap moves for summary judgment dismissing plaintiffs 

complaint and all cross-claims against it (motion sequence 003). 

Defendant CPF 1511 Third A venue LLC ( CPF 1511 ), the building owner, moves for 

summary judgment dismissing plaintiffs complaint as well as all cross-claims, or in the 

alternative, awarding it contractual and common-law indemnification against Gap (motion 

sequence 004). The motions are consolidated for disposition and decided as follows. 

I. BACKGROUND 

Plaintiff alleges that around 1:00 P.M. on April 15, 2019, she tripped and fell due to a 

cracked, uneven and dilapidated condition of the sidewalk adjacent to 1511 Third Avenue in 

Manhattan (the "building", of which Gap was the store tenant (NYSCEF Doc. No. 7, Exhibit A, 

Summons and Complaint, ,i 26; NYSCEF Doc. No. 73, Exhibit C, Bill of Particulars, ,i,i 2-5). 

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During her deposition, she testified that as she walked in front of the subject Gap store (the 

"store"), the heel of her thick rubber-soled shoe on her left foot got caught in a hole in the 

pavement, causing her left ankle and foot to twist (NYSCEF Doc. No. 74, Exhibit D, EBT of 

Plaintiff, p. 33, lines 10-14, p. 35, lines 13-25, p. 36, lines 2-6, p. 50, lines 3-8 and 12-18). 

Plaintiff testified that the weather was nice with no rain, the lighting was good, and she 

did not have any difficulty seeing her surroundings at the time of the accident (id. at p. 29, lines 

15-22, p. 35, lines 2-12). She was looking straight ahead and did not notice the hole until after 

she fell (id. at p. 36, lines 10-16). Plaintiff testified that the accident may have occurred as she 

approached the second display window of the store (id. at p. 43, lines 11-21, p. 44, lines 24-25, p. 

45, lines 2-5), and that her heel "must have" gone into the hole in the middle sidewalk flag 

adjacent to one of the display windows (id. at, p. 48, lines 2-22). Plaintiff did not enter the store, 

speak to a Gap employee, or fill out an incident report after her fall (id. at p. 52, lines 7-19). 

On August 16, 1990, CPF 1511 and Gap had entered into a lease agreement for the retail 

store consisting of the basement, ground floor and mezzanine located at the premises (see 

NYSCEF Doc. No. 91). Paragraph thirty of the lease provides that CPF 1511 "shall ... make all 

repairs and replacements to the sidewalk and curbs adjacent thereto (unless such repairs or 

replacements are due to the acts of [Gap]. .. )," and Gap, at its own expense, was to keep said 

sidewalks and curbs free from snow, ice, dirt and rubbish. 

In addition, Gap had to "(b) keep the sidewalk and curb directly in front of the demised 

premises clean" and repair "all damage or injury to the demised premises ... or to the [adjacent] 

sidewalks ... , whether requiring structural or non-structural repairs, caused by ... (i) the moving 

of [Gap's] fixtures, furniture and equipment or (ii) any act, omission, neglect or improper 

conduct of, or alterations made by [Gap], .... " 

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Paragraph fifty provides that Gap would "indemnify and hold harmless [CPF 1511]. .. 

from and against any and all claims arising from or in connections with ... ( c) any accident, 

injury or damage whatsoever ( unless and to the extent caused by [ CPF 1511 's] willful act or 

negligence) occurring in, at or upon the demised premises" and would defend CPF 1511 " [ i]n 

any action or proceeding [] brought against [it]." Further, paragraph forty-six provides that Gap 

would maintain property insurance naming CPF 1511 as an additional insured. 

Gap's maintenance project manager at the time of the accident testified on Gap's behalf 

at a deposition, and stated that she handled maintenance needs or repairs that fell within Gap's 

lease responsibility (id. at p. 15, lines 9-16). She would officially visit the premises at issue 

annually, and unofficially once every three months (id. at 18, lines 20-25). The manager 

believed that Gap was responsible for snow removal and overall maintenance of the sidewalk, 

and that any repairs were the owner's responsibility (id. at p. 49, lines 4-25). 

Although Gap performed daily cleaning and hired companies to power wash the sidewalk 

and to provide snow removal services, the manager stated that Gap did not hire vendors to repair 

or perform patchwork of the sidewalk (id. at p. 21, lines 5-23; p. 52, lines 11-24, p. 34, lines 2-

11). Although store employees cleaned the sidewalk adjacent to the building on an "as needed" 

basis, they did not inspect the sidewalk for dangerous conditions (id. at p. 19, lines 17-25, p. 23, 

lines 19-25, p. 24, lines 2-5). 

The manager testified that there were no reports of plaintiffs accident in the store 

maintenance log (id. at p. 37, lines 7-12), and she never received notice of a hole in the sidewalk 

(id. at p. 32, lines 19-23), nor did she receive receive any written work orders for the sidewalk or 

complaints regarding a hole (id. at p. 32, lines 24-25, p. 33, lines 2-10). Neither she nor any 

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other Gap employee reported any sidewalk conditions in need ofrepair to CPF 1511 in April 

2019 (id. at p. 35, lines 10-25, p. 36, lines 2-4, p. 50, lines 23-25, p. 51, line 2). 

CPF 1511 produced a property manager for Cushman & Wakefield, the company that 

managed the building for CPF 1511, for its deposition (NYSCEF Doc. No. 78). She attested that 

Gap was responsible for cleaning the sidewalk and CPF 1511 was responsible for repairing holes 

or broken pavement (id. at p. 19, lines 10-18, p. 20, lines 7-13). She was unaware if CPF 1511 

repaired the sidewalk in 2019 (id. at p. 22, lines 14-19, p. 23, lines 8-17). 

As pertinent here, the manager visited the store twice a month to check the building (id. 

at p. 15, lines 8-11), and she would also examine the adjacent sidewalk only if Gap had brought 

any complaints to her attention, which it never did (id. at p. 15, lines 18-25, p. 16, lines 2-5). 

The manager never noticed a cracked or broken sidewalk outside the building (id. at p. 24, lines 

4-13), and if she had seen one, she would have reported it to CPF 1511 (id. at p. 29, lines 16-22). 

CPF 1511 's expert, David Behnken, P .E., a licensed professional engineer in the State of 

New York, provided his expert opinion on behalf of CPF 1511, which he based upon a review of 

the case file and a June 9, 2023 inspection of the subject premises during which he took 

numerous color photographs. In the area of plaintiffs accident, Behnken measured a patch of a 

minor chip that had an overall length of 7 inches and a maximum width of 1-1/2 inches ( see 

NYSCEF Doc. No. 94, p. 4). He concluded the chip was too small to cause the heel of plaintiffs 

shoe to become stuck and that "it [was] physically impossible" for plaintiffs heel "to become 

mechanically restrained" by the chip (id. at p. 5, ,i 3). 

Behnken opined that the sidewalk was safe for pedestrians wearing flat, rubber-soled, 

walking shoes such as those the plaintiff wore on the accident date (id. at p. 5, ,i 1), and that the 

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sidewalk did not have height differentials or holes that could cause plaintiff's shoe to get caught 

(id. at p. 5, ,i 2). He also opined that plaintiff's fall was due to a misstep (id. at p. 5, ,i 5). 

Plaintiff's expert, Harold Krongelb, P.E., P.C., a licensed professional engineer in the 

State of New York, concluded that since the sidewalk was repaired after plaintiff's accident, a 

site inspection occurring after the accident had no probative value (NYSCEF Doc. No. 108, 

Exhibit B, Expert Report, ,i 11). He emphasized that Behnken's conclusions are based on an 

inspection that was performed long after the defect was repaired and about 4 years after the 

accident (see id. at ,i ,i 21-25). 

Based on a review of the case file, the dimensions of the patch in Behnken's report, and a 

photograph from plaintiff's deposition, Krongelb opined that the depression in the sidewalk was 

more than one-inch deep at the time of the accident, and thus not a trivial defect but a violation 

of Administrative Code of the City of New York§ 19-152 (id. at ,i,i 19, 31, 32). He further 

opined that it is a "good and accepted practice independently of the requirements of any specific 

code provision or regulation to immediately correct" such a hazard (id. at ,i 40), and that such a 

defect in a concrete slab is inherently dangerous because a pedestrian does not recognize a 

depression of that size with sufficient time and space to avoid tripping and falling over it (id. at ,i 

39). Krongelb asserted that plaintiff's act of stepping into a one and 1/2 inch-wide, seven-inch 

long and more than one-inch-deep depression caused her to trip and fall and, as such, was a 

substantial cause of the accident (id. at ,i ,i 24, 29). He also opined that the sidewalk depression 

was present for at least a few months when the accident occurred (id. at ,i ,i 27, 41). 

II. ANALYSIS 

"On a motion for summary judgment, the movant must make a prima facie showing of 

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the 

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absence of any material issues of fact" (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 

[2019] [internal citations and quotation marks omitted]). It is a heavy burden, and the facts are 

viewed in the light most favorable to the non-movant (William J Jenack Estate Appraisers & 

Auctioneers, Inc. v Rabizadeh, 22 NY3d 470,475 [2013]). If the defendant establishes his or her 

prima facie burden, then the burden shifts to the plaintiff who must present sufficient evidence to 

establish the existence of a material issue of fact (Mazurek v Metropolitan Museum of Art, 27 

AD3d 227,228 [1st Dept 2006]). "Summary judgment is inappropriate in any case where there 

are material issues of fact in dispute or where more than one conclusion may be drawn from the 

established facts" (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]). 

A. Gap's Motion (seq. 003) 

In support of its motion for summary judgment, Gap argues that it had no duty to inspect, 

maintain and repair the sidewalk as, pursuant to paragraph thirty of the lease, CPF 1511 and not 

Gap was responsible for all repairs and replacements to the sidewalk, as confirmed by the 

testimony of CPF 1511 's property manager. Moreover, Gap argues, it is not liable under 

Administrative Code of the City of New York§ 7-210 as Gap did not own the building. Even if 

the lease required it to repair the sidewalk, Gap argues that general provisions of a lease 

obligating a tenant to repair the sidewalk do not impose on the tenant a duty to third parties. 

In opposition, plaintiff argues that Gap failed to meet its prima facie burden, as it did not 

submit evidence in admissible form, such as documents or testimony addressing Gap's 

responsibility over the area of the accident, creation and notice of the subject defect, maintenance 

and inspection of the subject location, and special use of the subject location. Specifically, 

plaintiff argues that Gap made special use of the sidewalk for its own benefit by hiring 

contractors to perform work on the sidewalk, or by its own employees "possibly" transporting 

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heavy machinery in the area and working on window displays next to the subject defect. 

Plaintiff notes that Gap has not annexed records pertaining to regular maintenance and power 

washing, third-party contractors that were hired to perform work on the sidewalk, or any history 

of complaints about the sidewalk. 

Further, plaintiff contends that the lease is vague and creates issues of fact as to who was 

responsible for the sidewalk, and observes that paragraph forty-eight of the lease makes Gap 

responsible for any damage it causes to the sidewalk. Plaintiff thus argues that Gap owed a duty 

of care to her based on the lease and its special use of the sidewalk, and that there is a reasonable 

inference that Gap had at least constructive notice of the defect, which was easily visible and 

within its control. 

CPF 1511 also opposes the motion, and maintains that Gap likely created the alleged 

defect when it cleaned the sidewalk as required by the lease. 

In reply, Gap reiterates that the lease obligates CPF 1511 to make all repairs to the 

sidewalk, and although the lease imposed some responsibility on Gap to maintain the sidewalk, 

CPF 1511 was solely responsible for the sidewalk's structural integrity. Gap also argues that it 

met its prima facie burden of showing that it did not owe a duty to plaintiff as the relevant 

evidence establishes that it never performed structural work on the sidewalk and thus could not 

have created the defect. Gap further asserts that plaintiff's argument that Gap created the defect 

through nonstructural maintenance is speculative, and it denies that it made special use of the 

sidewalk as it did not install, store, or display items on it. 

1. Administrative Code of the City of New York§ 7-210 and Special Use 

Pursuant to Administrative Code§ 7-210(a) and (b), as relevant here, "a. [i]t shall be the 

duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a 

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reasonably safe condition. b. [ n ]otwithstanding any other provision oflaw, the owner ofreal 

property abutting any sidewalk ... shall be liable for any injury to property or personal injury ... 

proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe 

condition." 

Here, CPF 1511 is indisputably the owner of the building and Gap is its tenant, and the 

statute explicitly imposes liability upon CPF 1511 only (see Chaudhry v Starbucks Corp., 213 

AD3d 521, 522 [1st Dept 2023]). Further, that duty "is an affirmative, nondelegable obligation" 

that remains exclusively with the landlord/owner notwithstanding any provisions in the lease 

(id.). Gap thus establishes that may not be held liable pursuant to the statute. 

Moreover, in a premises liability case, a defendant owes a duty of care to a plaintiff 

where, at the time of the accident, it occupied, controlled, or made special use of the premises 

(Reid v City of New York, 168 AD3d 447,448 [1st Dept 2019]). As to a tenant, the general rule 

is that a tenant will not be liable to a third party in a tort action unless it either "affirmatively 

caused or created the defect that caused plaintiff to trip, or[] put the subject sidewalk to a 

'special use' for its own benefit ... " (Kellogg v All Sts. Haus. Dev. Fund Co., Inc., 146 AD3d 

615, 617 [1st Dept 2017]). A special use generally involves the installation of an object on the 

sidewalk or some variance in the sidewalk's construction (Weiskopf v City of New York, 5 AD3d 

202 [1st Dept 2004]; Tyree v Seneca Ctr.-Home Attendant Program, 260 AD2d 297,297 [1st 

Dept 1999]). 

Here, Gap demonstrated, prima facie, that it did not cause or create the defect, nor did it 

make special use of the sidewalk. In opposition, plaintiff's belief that Gap may have caused the 

defect by its special use of the sidewalk is fatally speculative (see Kaminer v Dan's Supreme 

Supermarket/Key Food, 253 AD2d 657, 657 [1st Dept 1998] [no evidence that vendor's use of 

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sidewalk created defect]), and in any event, insufficient to impose liability on Gap (see Tyree, 

260 AD2d at 297 "[[t]he occasional use of the sidewalk for deliveries does not constitute a 

special use."]). 

2. Creation and Notice of the Defect 

"The owner or lessee of land abutting a public sidewalk owes no duty to the public to 

keep the sidewalk in a safe condition unless the landowner or lessee creates a defective condition 

in the sidewalk ... " (Gitterman v City of New York, 300 AD2d 157, 158 [1st Dept 2002] 

[internal quotation marks and citation omitted]). 

The evidence and testimony submitted by Gap established that it neither created, nor had 

notice of the alleged defect on the sidewalk. In opposition, plaintiff fails to raise a triable issue 

as to whether Gap may have created it by the cleaning it performed on the sidewalk, absent any 

non-speculative evidence. 

Even if Gap had notice of an unsafe condition that it did not create, it cannot be held 

liable to plaintiff unless it created or exacerbated a dangerous condition or made special use of 

the sidewalk (Heredia v CS. Realty Assocs. LLC, 217 AD3d 496 [court correctly dismissed case 

against tenant who did not create or exacerbate unsafe condition or make special use of 

sidewalk]). 

3. Cross-claim 

As there is no evidence that Gap was negligent in failing to maintain or repair the 

sidewalk, it is also entitled to dismissal of CPF 1511 's cross-claim against it for contractual 

indemnity. In any event, Gap demonstrated that the sidewalk did not constitute part of the 

premises for which it would have been required to indemnify CPF 1511. 

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B. CPF 15ll's Motion (seq. 004) 

1. Dismissal of plaintiffs claim 

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In support of its motion, CPF 1511 argues that the alleged condition was trivial and thus 

not actionable, relying on Fayolle v East W Manhattan Portfolio L.P. (108 AD3d 476,476 [!81 

Dept 2013]), in which the Appellate Division, First Department found that a defect with a onefourth inch height differential was trivial and thus affirmed the trial court's order granting 

defendants summary judgment. Similarly, in Spiegel v Vanguard Constr. & Dev. Co. (50 AD3d 

387, 387 [1st Dept 2008]), the Court agreed with the trial court that a defect with a one-inch 

height differential was not actionable. 

CPF 1511 also argues that as an out-of-possession landlord, it reasonably relied on Gap 

to notify it of any defects on the sidewalk, quoting Pomeroy v Gelber, 117 AD3d 1161, 1162 (3d 

Dept 2014) ("Without notice of a specific dangerous condition, an out-of-possession landlord 

cannot be faulted for failing to repair or otherwise rectify it" [internal quotation marks and 

citation omitted]). Moreover, it claims that plaintiff cannot show actual or constructive notice 

because she was a lifelong resident of the neighborhood who had never noticed the alleged 

defect, the lighting conditions were clear and bright at the time of the accident, and she did not 

notice the hole that day until after she allegedly tripped on it. 

In opposition, plaintiff argues that CPF 1511 has not submitted admissible evidence 

regarding the dimensions and dangerous nature of the subject defect at the time of the accident, 

and that CPF 1511 's expert report lacks merit because Behnken examined a repaired patch of 

sidewalk years after the accident. For the same reason, she asserts that CPF 1511 fails to show 

that the alleged defect was trivial, and plaintiff distinguishes this case from Fayolle and Spiegel, 

noting that her expert concluded the subject defect was seven inches long and more than an inch 

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wide and deep, which is supported by both the photographs and plaintiff's affidavit. Plaintiff 

contends that CPF 1511 failed to produce records of its inspections or maintenance, a complaint 

history, or documents to show that it was not on notice of the dangerous condition. 

In further opposition, plaintiff reiterates that CPF 1511 breached its nondelegable duty 

under Administrative Code § 7-210, and that even if CPF 1511 met its burden on its motion, 

there is still an issue of fact as to whether the defect is trivial because of conflicting expert 

opinions as to its size. Moreover, plaintiff's expert opined that the defect must have been present 

for months if not years, thus raising a triable issue as to constructive notice. 

In reply to plaintiff, CPF 1511 defends its expert opinion by arguing that the report was 

accurate because it was based on a site inspection and plaintiff's testimony. CPF 1511 argues 

that plaintiff's expert's measurement of the depth of the sidewalk crack is speculative because it 

was based on a two-dimensional photograph, and it criticizes the expert for failing to explain 

how plaintiff's shoe became stuck in a small crack. CPF 1511 also argues that plaintiff provides 

no legal authority to show that it was obligated to produce documents related to its periodic 

inspections, especially as there are no such documents as CPF 1511 did not conduct such 

inspections. CPF 1511 thus denies that it had constructive notice of the defect, and reiterates that 

it never received complaints related to the sidewalk from Gap prior to the accident. 

a. Trivial as a Matter of Law 

"Whether a sidewalk defect is sufficiently hazardous to impose liability is generally a 

question for a jury to resolve on the particular facts of each case" (Tineo v Parkchester S. 

Condominium, 304 AD2d 383, 383 [1st Dept 2003]). To determine whether a defect is trivial, 

the court must look at the particular facts of each case "including the width, depth, elevation, 

irregularity and appearance of the defect along with the time, place and circumstance of the 

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injury" (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997] [internal quotation marks and 

citation omitted]). 

If the alleged defective condition does not have the characteristics of a trap or nuisance 

and is deemed trivial, then it is not actionable (id. at 978); however, "there is no minimal 

dimension test or per se rule that a defect must be of a certain minimum height or depth in order 

to be actionable" (id. at 977 [internal quotation marks omitted]). The movant must demonstrate 

to the court that the alleged defect "by reason of its location, adverse weather, lighting 

conditions, or other relevant circumstances, has any of the characteristics of a trap or snare, and 

was too trivial to be actionable" (Hawkins v Carter Community Haus. Dev. Fund Corp., 40 

AD3d 812, 813 [2d Dept 2007]). 

Here, CPF 1511 has not demonstrated that the defect was trivial as a matter oflaw as 

plaintiff's expert measured the hole as having a depth of more than one inch and the crack with a 

width of seven inches. CPF 1511 's reliance on F ayolle and Spiegel is misplaced because those 

cases involved defects that were one inch or less in height differential. 

Moreover, plaintiff states in her affidavit that after she fell, she observed a large pothole 

as well as cracked and uneven sidewalk where she fell, thereby also raising an issue of fact (see 

Tineo, 304 AD2d at 384). Although plaintiff testified that there were no issues with lighting or 

anything obstructing her vision at the time of the accident, plaintiff's expert opined that it was 

typical for a pedestrian to miss noticing a sidewalk depression of the alleged size at issue here. 

In any event, the conflicting expert opinions as to the defect's dimensions, and thus its 

triviality, raise issues of fact that cannot be resolved on a motion for summary judgment (see 

Carter v HP Lafayette Boynton Haus. Dev. Fund Co., Inc., 210 AD3d 580,581 [1st Dept 2022]). 

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b. Notice 

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Section 7-210 of the Administrative Code of the City of New York "unambiguously 

imposes a duty upon owners of certain real property to maintain the sidewalk abutting their 

property in a reasonably safe condition, and provides that said owners are liable for personal injury 

that is proximately caused by such failure" (Sangaray v West Riv. Assoc., LLC, 26 NY3d 793, 797 

[2016]; see Mercedes v 680 SN LLC, 210 AD3d 477, 477 [1st Dept 2022]). "[It] makes no 

distinction for those owners who are out of possession" (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 

167, 172 [2019]; see Vargas v Weishaus, 199 AD3d 620, 624 [1st Dept 2021] ["Th[e] duty, on inand out-of-possession landlords alike, is nondelegable."]). "[Although] an owner can shift the 

work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and 

liability for injuries caused by negligent maintenance, imposed under [the code]" (Xiang Fu He, 

34 NY3d at 174). 

Thus, on a motion for summary judgment, an out-of-possession landlord must still establish 

prima facie that it neither created the allegedly hazardous condition, nor had actual or constructive 

notice of its existence (see Arias v Sanitation Salvage Corp., 199 AD3d 554, 556-557 [1st Dept 

2021]; see Velocci v Stop & Shop, 188 AD3d 436, 439 [1st Dept 2020]). A lack of actual notice 

can be established when a defendant "produces a witness who can testify that no complaints about 

the location were received before the accident, and there were no prior incidents in that area before 

the plaintiff fell" (Velocci, 188 AD3d at 439). Similarly, a lack of constructive notice can be shown 

"by producing evidence of ... maintenance activities on the day of the accident, and specifically 

showing that the alleged condition did not exist when the area was last inspected or cleaned before 

the plaintiff fell" (id.). 

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Here, CPF 1511 has not met its "prima facie burden of showing lack of notice" (Davis v 

Brookfield Properties Mgt., LLC, 220 AD3d 527, 527 [1st Dept 2023]). While there is evidence 

that Gap never notified CPF 1511 of a defective or unsafe condition on the sidewalk, CPF 1511 

does not otherwise establish that it received no prior complaints or that there were no prior 

incidents. 

Moreover, CPF 1511 did not demonstrate that it lacked actual or constructive notice of 

the defect absent evidence showing when it last inspected the sidewalk prior to the date of the 

accident (see Rodriguez v Kwik Realty, LLC, 216 AD3d 477,478 [1st Dept 2023]; Powell v 

BLDG 874 Flatbush LLC, 201 AD3d 534, 535 [1st Dept 2022] [concluding that defendant failed 

to make prima facie showing that it lacked constructive notice where no evidence of most recent 

sidewalk inspection presented]; Graham v YMCA of Greater NY, 137 AD3d 546,547 [1st Dept 

2016] [ finding no constructive notice where no evidence of date of last cleaning or inspection of 

floor where plaintiff slipped]).). 

Further, plaintiffs expert opined that the defect was present before the accident for at 

least a few months, raising an issue of fact as to constructive notice. For all of these reasons, a 

triable issue remains as to CPF 1511 's notice of the defective sidewalk condition. 

2. Cross-claims 

CPF 1511 argues that it is entitled to summary judgment on its cross-claims for 

contractual and common law indemnification and breach of contract against Gap, as Gap was 

responsible for the sidewalk and thus must indemnify and hold harmless CPF 1511 for the 

subject accident. It denies that it was negligent and asserts that it is entitled to indemnity from 

Gap under the lease. CPF 1511 further claims that Gap breached the lease when it failed to name 

CPF 1511 as an additional insured, and that if there is an issue of fact as to CPF 1511 's 

152255/2020 SAGLIMBENE, MARGARET vs. CPF 1511 THIRD AVENUE LLC 

Motion No. 003 004 

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negligence, then it is entitled to conditional contractual indemnification from Gap, citing Ortiz v 

Fifth Ave. Bldg. Assoc., 251 AD2d 200,202 (1st Dept 1998). 

In opposition, Gap reiterates that it owed no duty to plaintiff under the lease or under any 

statute, and therefore CPF 1511 's contractual indemnification claim is without merit because it 

cannot establish that Gap violated its duty to maintain the sidewalk. Gap maintains that the 

lease's requirement that it indemnify CPF 1511 for accidents that occur "in, at, or upon the 

demised premises" did not apply to the sidewalk, and therefore it was not required to procure 

insurance for injuries occurring there. Gap also argues that CPF 1511 is not entitled to common 

law indemnification because CPF 1511 breached its duty under the Administrative Code § 7-210 

and the lease and is thus solely negligent. 

As Gap demonstrated that it may not be held liable for the alleged defective condition 

(see supra), CPF 1511 is not entitled to common-law or contractual indemnity from it, nor may it 

assert a breach of contract claim as Gap was not required to obtain insurance covering the 

sidewalk. 

C. Conclusion 

Accordingly, it is 

ORDERED, that defendant The Gap, Inc's motion for summary judgment (seq. 003) 

dismissing the complaint and cross-claims against it is granted, and the complaint and all crossclaims asserted against it are severed and dismissed, and the clerk is directed to enter judgment 

accordingly; it is further 

ORDERED, that CPF 1511 's motion for summary judgment (seq. 004) dismissing the 

complaint as against it is denied; and it is further 

152255/2020 SAGLIMBENE, MARGARET vs. CPF 1511 THIRD AVENUE LLC 

Motion No. 003 004 

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ORDERED, that the parties appear for a settlement/trial scheduling conference on 

November 20, 2024 at 9:30 AM at 71 Thomas Street, R~,.:a:: ~~:k. 

7/1/24 / 

DATE DAVID B. COHEN, J.S.C. 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

152255/2020 SAGLIMBENE, MARGARET vs. CPF 1511 THIRD AVENUE LLC 

Motion No. 003 004 

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□ OTHER 

□ REFERENCE 

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