### 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 NEWYORK NEWYORK 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.

---------------------------------------------------------------------------------X 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 plaintiffclaims she sustained injuries in front of defendant The Gap, Inc's (Gap) store, Gap moves for summaryjudgment dismissing plaintiffs complaint and all cross-claims against it (motion sequence 003). Defendant CPF 1511 ThirdAvenue LLC (CPF 1511), the building owner, moves for summaryjudgment 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 Plaintiffalleges that around 1:00 P.M. on April 15, 2019, she tripped and fell due to a cracked, uneven and dilapidated condition ofthe sidewalk adjacent to 1511 ThirdAvenue in Manhattan (the "building", ofwhich Gap was the store tenant (NYSCEF Doc. No. 7, ExhibitA, Summons and Complaint, ,i 26; NYSCEF Doc. No. 73, Exhibit C, Bill ofParticulars, 

### ,i,i2-5).

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### [* 1]NYSCEF DOC. NO. 116 INDEX NO. 152255/2020 RECEIVED NYSCEF: 07/01/2024 Duringher deposition, she testified that as she walked in front ofthe subject Gap store (the "store"), the heel ofher thick rubber-soled shoe on her left foot got caughtin ahole 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). Plaintifftestified that the weather was nice with no rain, the lighting was good, and she did nothave any difficulty seeing her surroundings at the time ofthe accident (id. at p. 29, lines 15-22, p. 35, lines 2-12). She was looking straight ahead and did notnotice the hole until after she fell (id. at p. 36, lines 10-16). Plaintifftestified that the accidentmayhave occurred as she approached the second display window ofthe store (id. at p. 43, lines 11-21, p. 44, lines 24-25, p. 45, lines 2-5), and that herheel "musthave" gone into the hole in the middle sidewalk flag adjacent to one ofthe display windows (id. at, p. 48, lines 2-22). Plaintiffdid not enter the store, speak to a Gap employee, or fill out an incidentreport 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 ofthe basement, ground floor and mezzanine located at the premises 

### (see NYSCEF Doc. No. 91). Paragraph thirty ofthe 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 ofthe demised premises clean" and repair "all damage orinjury to the demised premises ... orto the [adjacent] sidewalks ..., whetherrequiring structural ornon-structural repairs, causedby ... (i) the moving of [Gap's] fixtures, furniture and equipment or (ii) any act, omission, neglect or improper conduct of, or alterations madeby [Gap], ...."

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### [* 2]NYSCEF DOC. NO. 116 INDEX NO. 152255/2020 RECEIVED NYSCEF: 07/01/2024 Paragraph fifty provides that Gap would "indemnify andhold harmless [CPF 1511]. .. from and against any and all claims arising from orin connections with ... (c) any accident, injury or damage whatsoever ( unless and to the extent causedby [CPF 1511's] willful act or negligence) occurring in, at orupon the demised premises" and would defend CPF 1511 "[ i]n any action orproceeding [] brought against [it]." Further, paragraph forty-six provides that Gap would maintain property insurance naming CPF 1511 as an additional insured. Gap's maintenance projectmanager at the time ofthe accident testified on Gap's behalf at a deposition, and stated that she handled maintenance needs orrepairs 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 ofthe 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 nothire vendors to repair
orperformpatchwork ofthe 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 ofplaintiffs accident in the store maintenance log (id. at p. 37, lines 7-12), and she neverreceived notice ofahole 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 ahole (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 ofrepairto 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 propertymanager for Cushman & Wakefield, the companythat 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
orbrokenpavement (id. at p. 19, lines 10-18, p. 20, lines 7-13). She was unaware ifCPF 1511 repaired the sidewalk in 2019 (id. at p. 22, lines 14-19, p. 23, lines 8-17). As pertinenthere, 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 ifGap hadbrought any complaints to her attention, which it never did (id. at p. 15, lines 18-25, p. 16, lines 2-5). The managernevernoticed a cracked orbroken sidewalk outside the building (id. at p. 24, lines 4-13), and ifshe had seen one, she wouldhavereported it to CPF 1511 (id. at p. 29, lines 16-22). CPF 1511 's expert, David Behnken, P.E., a licensedprofessional engineer in the State of New York, providedhis expert opinion on behalfofCPF 1511, which hebasedupon a review of the case file and a June 9, 2023 inspection ofthe subjectpremises during whichhe took
numerous colorphotographs. In the area ofplaintiffs accident, Behnken measured a patch ofa minor chip thathad an overall length of7 inches and a maximumwidth of 1-1/2 inches (see NYSCEF Doc. No. 94, p. 4). He concludedthe chip was too small to cause the heel ofplaintiffs shoe to become stuck and that "it [was] physically impossible" for plaintiffs heel "tobecome mechanically restrained" by the chip (id. at p. 5, ,i 3). Behnken opined that the sidewalkwas safe for pedestrians wearing flat, rubber-soled, walking shoes such as those the plaintiffwore 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 amisstep (id. 

### at p. 5, ,i 

### 5). Plaintiff's expert, Harold Krongelb, P.E., P.C., a licensedprofessional engineer in the State ofNew York, concluded that since the sidewalk was repaired after plaintiff's accident, a site inspection occurring after the accidenthad no probative value (NYSCEF Doc. No. 108, Exhibit B, Expert Report, ,i 11). 

### He emphasized thatBehnken'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 ofthe case file, the dimensions ofthe patch in Behnken'sreport, and a photograph from plaintiff's deposition, Krongelb opined that the depression in the sidewalk was more than one-inch deep at the time ofthe accident, and thus not a trivial defect but a violation ofAdministrative Code ofthe City ofNew York§ 19-152 (id. 

### at ,i,i 

### 19, 31, 32). He further opined that it is a "good and accepted practice independently ofthe requirements ofany 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 apedestrian does notrecognize a depression ofthat size with sufficient time and space to avoid tripping and falling over it (id. 

### at ,i 

### 39). Krongelb asserted that plaintiff's act ofstepping into a one and 1/2 inch-wide, seven-inch long and more than one-inch-deep depression causedher to trip and fall and, as such, was a substantial cause ofthe 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 amotion for summaryjudgment, the movantmustmake aprima facie showing of entitlement tojudgment as amatter oflaw, tendering sufficient evidence to demonstrate the

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absence ofanymaterial issues offact" (XiangFu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]). It is a heavyburden, and the facts are viewed in the lightmost favorable to the non-movant (William 

### J JenackEstateAppraisers 

### & Auctioneers, Inc. vRabizadeh, 22 NY3d 470,475 [2013]). Ifthe defendant establishes his orher prima facie burden, then the burden shifts to the plaintiffwho mustpresent sufficient evidence to establish the existence ofa material issue offact (MazurekvMetropolitan Museum of Art, 27 AD3d 227,228 [1st Dept 2006]). "Summaryjudgmentis inappropriate in any case where there
are material issues offact in dispute orwhere more than one conclusion maybe drawn from the established facts" (Friends of ThayerLakeLLCv Brown, 27 NY3d 1039, 1043 [2016]). A. Gap's Motion (seq. 003) In support ofits motion for summaryjudgment, Gap argues that ithadno duty to inspect, maintain andrepair the sidewalk as, pursuantto paragraph thirty ofthe lease, CPF 1511 andnot Gap was responsible for all repairs andreplacements to the sidewalk, as confirmedbythe testimony ofCPF 1511's property manager. Moreover, Gap argues, it is notliable under Administrative Code ofthe City ofNew 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 ofa lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to third parties. In opposition, plaintiffargues that Gap failed to meetits prima facie burden, as it did not submit evidence in admissible form, such as documents ortestimony addressing Gap's responsibility overthe area ofthe accident, creation and notice ofthe subject defect, maintenance and inspection ofthe subjectlocation, and special use ofthe subject location. Specifically, plaintiffargues that Gap made special use ofthe sidewalk for its ownbenefitbyhiring contractors to performwork on the sidewalk, orby its own employees "possibly" transporting

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### [* 6]NYSCEF DOC. NO. 116 INDEX NO. 152255/2020 RECEIVED NYSCEF: 07/01/2024 heavy machinery in the area and working on window displays next to the subject defect. Plaintiffnotes that Gap has not annexed records pertaining to regular maintenance andpower washing, third-party contractors that were hired to performwork on the sidewalk, or any history ofcomplaints about the sidewalk. Further, plaintiffcontends that the lease is vague and creates issues offact as to who was responsible for the sidewalk, and observes thatparagraph forty-eight ofthe lease makes Gap responsible for any damage it causes to the sidewalk. Plaintiffthus argues that Gap owed a duty ofcare to herbased on the lease and its special use ofthe sidewalk, and that there is a reasonable inference that Gap had at least constructive notice ofthe 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 requiredbythe 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 solelyresponsible for the sidewalk's structural integrity. Gap also argues that it met its prima facie burden ofshowing that it did not owe a duty to plaintiffas the relevant evidence establishes that itneverperformed 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 itmade special use ofthe sidewalk as it did not install, store, or display items on it. 1. Administrative Code ofthe City ofNew York§ 7-210 and Special Use Pursuant to Administrative Code§ 7-210(a) and (b), as relevant here, "a. [i]t shall bethe duty ofthe owner ofreal property abutting any sidewalk ... to maintain such sidewalk in a

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### reasonably safe condition. b. [ n]otwithstanding any otherprovision oflaw, the owner ofreal property abutting any sidewalk ... shall be liable for any injury to property orpersonal injury ... proximately causedby the failure ofsuch owner to maintain such sidewalk in areasonably safe condition." Here, CPF 1511 is indisputably the owner ofthe building and Gap is its tenant, and the statute explicitly imposes liabilityupon 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 maynot be held liable pursuant to the statute. Moreover, in apremises liability case, a defendant owes a duty ofcare to a plaintiff where, at the time ofthe accident, it occupied, controlled, ormade special use ofthe 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 notbe liable to a third party in a tort action unless it either "affirmatively caused or created the defect that caused plaintiffto trip, or[] put the subject sidewalk to a 'special use' for its own benefit ..." (Kellogg vAllSts. Haus. Dev. Fund Co., Inc., 

### 146 AD3d 615, 617 [1st Dept 2017]). A special use generally involves the installation ofan 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.-HomeAttendantProgram, 

### 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 ofthe sidewalk. In opposition, plaintiff's beliefthat Gap may have caused the defectby its special use ofthe sidewalk is fatally speculative (see Kaminer vDan'sSupreme Supermarket/KeyFood, 

### 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 ofthe sidewalk for deliveries does not constitute a special use."]). 2. Creation and Notice ofthe Defect "The owner or lessee ofland abutting apublic 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 submittedby Gap established that itneither created, norhad notice ofthe alleged defect on the sidewalk. In opposition, plaintifffails to raise a triable issue
as to whether Gap mayhave created it bythe cleaning itperformed on the sidewalk, absent any non-speculative evidence. Even ifGap had notice ofan unsafe condition that it did not create, it cannotbe held liable to plaintiffunless it created or exacerbated a dangerous condition ormade special use of the sidewalk (Heredia v 

### CS. RealtyAssocs. LLC, 217 AD3d 496 [court correctly dismissed case against tenant who did not create or exacerbate unsafe condition ormake special use of sidewalk]). 3. Cross-claim As there is no evidence that Gap was negligent in failing to maintain orrepair the sidewalk, itis also entitled to dismissal ofCPF 1511 's cross-claim against it for contractual indemnity. In any event, Gap demonstrated that the sidewalk did not constitute part ofthe premises for which it wouldhave been required to indemnify CPF 1511.

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### [* 9]NYSCEF DOC. NO. 116

B. CPF 15ll'sMotion (seq. 004) 1. Dismissal ofplaintiffs claim INDEX NO. 152255/2020 RECEIVED NYSCEF: 07/01/2024

In support ofits motion, CPF 1511 argues that the alleged condition was trivial and thus not actionable, relying on 

### Fayolle vEast W Manhattan Portfolio L.P. (108 AD3d476,476 [!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 summaryjudgment. 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, itreasonablyrelied on Gap to notify it ofany defects on the sidewalk, quoting 

### Pomeroy v Gelber, 117 AD3d 1161, 1162 (3d Dept 2014) ("Withoutnotice ofa specific dangerous condition, an out-of-possession landlord cannotbe faulted for failing to repair or otherwise rectify it" [internal quotation marks and citation omitted]). Moreover, it claims thatplaintiffcannot show actual or constructive notice because she was a lifelongresident ofthe neighborhood who had nevernoticed the alleged defect, the lighting conditions were clear and bright at the time ofthe accident, and she did not notice the hole that day until after she allegedly tripped on it. In opposition, plaintiffargues that CPF 1511 has not submitted admissible evidence regarding the dimensions and dangerous nature ofthe subject defect at the time ofthe accident, and that CPF 1511 's expert report lacks merit because Behnken examined a repaired patch of sidewalk years after the accident. Forthe same reason, she asserts that CPF 1511 fails to show that the alleged defect was trivial, andplaintiffdistinguishes this case from 

### Fayolle and 

### Spiegel, noting thather expert concluded the subject defect was seven inches long and more than an inch

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### wide and deep, which is supportedbyboth the photographs and plaintiff's affidavit. Plaintiff contends that CPF 1511 failed to produce records ofits inspections ormaintenance, a complaint history, or documents to show that it was not on notice ofthe dangerous condition. In further opposition, plaintiffreiterates that CPF 1511 breached its nondelegable duty underAdministrative Code § 

### 7-210, and that even ifCPF 1511 met its burden on its motion, there is still an issue offact as to whether the defect is trivial because ofconflicting expert opinions as to its size. Moreover, plaintiff's expert opined that the defect musthave been present for months ifnot 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 ofthe depth ofthe 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 thatplaintiffprovides 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 ithad constructive notice ofthe defect, and reiterates that it neverreceived complaints related to the sidewalk from Gap prior to the accident. a. Trivial as a Matter ofLaw "Whether a sidewalk defect is sufficiently hazardous to impose liability is generally a question for ajuryto resolve on the particular facts ofeach 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 ofeach case "including the width, depth, elevation, irregularity and appearance ofthe defect along with the time, place and circumstance ofthe

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### [* 11]NYSCEF DOC. NO. 116 INDEX NO. 152255/2020 RECEIVED NYSCEF: 07/01/2024 injury" (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997] [internal quotation marks and citation omitted]). Ifthe alleged defective condition does nothave the characteristics ofa trap ornuisance and is deemed trivial, then it is not actionable (id. at 978); however, "there is no minimal dimension test orper se rule that a defect mustbe ofa certain minimumheight 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 ofits location, adverse weather, lighting conditions, or otherrelevant circumstances, has any ofthe characteristics ofa trap or snare, and
was too trivial to be actionable" (Hawkins v Carter CommunityHaus. 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 ofmore than one inch and the crack with a width ofseven inches. CPF 1511 'sreliance onFayolle and Spiegel is misplacedbecause those
cases involved defects that were one inch orless in height differential. Moreover, plaintiffstates in her affidavit that after she fell, she observed a large pothole
as well as cracked anduneven sidewalk where she fell, thereby also raising an issue offact (see Tineo, 304 AD2d at 384). Although plaintifftestified that there were no issues with lighting or anything obstructing her vision at the time ofthe accident, plaintiff's expert opined that it was typical for a pedestrian to miss noticing a sidewalk depression ofthe alleged size at issue here. In any event, the conflicting expert opinions as to the defect's dimensions, and thus its triviality, raise issues offact that cannotbe resolved on a motion for summaryjudgment(see Carter v HPLafayetteBoynton Haus. Dev. Fund Co., Inc., 210 AD3d 580,581 [1st Dept 2022]).

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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 propertyin areasonably safe condition, andprovides that saidowners are liable forpersonal injury that is proximately causedby such failure" (Sangaray v WestRiv. Assoc., LLC, 26 NY3d793, 797 [2016]; see Mercedes v 680 SN LLC, 210 AD3d 477, 477 [1st Dept 2022]). "[It] makes no distinction forthose ownerswho are outofpossession" (XiangFu 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 ofmaintaining 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 amotion for summaryjudgment, an out-of-possessionlandlordmust still establish primafacie that itneithercreated the allegedlyhazardous condition, norhad actual or constructive notice ofits existence (seeArias 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 ofactual notice
can be establishedwhen a defendant "produces a witness who can testify thatno complaints about the locationwerereceivedbeforethe accident, and there wereno priorincidents in that areabefore theplaintifffell" (Velocci, 188 AD3dat439). Similarly, alackofconstructivenotice canbe shown "by producing evidence of ... maintenance activities on the day ofthe accident, and specifically showing thatthe alleged condition didnot existwhen the areawas lastinspected orcleanedbefore the plaintifffell" (id.).

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Here, CPF 1511 has notmetits "primafacie burden ofshowing lack ofnotice" 

### (Davis v BrookfieldProperties Mgt., LLC, 220 AD3d 527, 527 [1st Dept 2023]). While there is evidence that Gap nevernotified CPF 1511 ofa defective orunsafe condition on the sidewalk, CPF 1511 does not otherwise establish that itreceivedno prior complaints orthat 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 itlastinspectedthe sidewalkpriorto the date ofthe accident 

### (see Rodriguez v KwikRealty, LLC, 216 AD3d 477,478 [1st Dept 2023]; 

### Powellv BLDG874 Flatbush LLC, 201 AD3d 534, 535 [1st Dept 2022] [concluding that defendant failed to makeprima facie showing that it lacked constructive notice where no evidence ofmostrecent sidewalkinspectionpresented]; 

### Graham v YMCA of GreaterNY, 137 AD3d 546,547 [1st Dept 2016] [finding no constructive notice where no evidence ofdate oflast cleaning orinspection of floor whereplaintiffslipped]).). Further, plaintiffs expert opined thatthe defect was presentbefore the accident for at least a few months, raising an issue offact as to constructive notice. For all ofthese reasons, a triable issue remains as to CPF 1511 's notice ofthe defective sidewalk condition. 2. Cross-claims CPF 1511 argues that itis entitled to summaryjudgmenton its cross-claims for contractual and common law indemnification and breach ofcontract against Gap, as Gap was responsible for the sidewalk and thus must indemnify andholdharmless CPF 1511 for the subject accident. It denies that itwas 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 ifthere is an issue offact as to CPF 1511's

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### [* 14]NYSCEF DOC. NO. 116 INDEX NO. 152255/2020 RECEIVED NYSCEF: 07/01/2024 negligence, then itis entitled to conditional contractual indemnification from Gap, citing Ortiz v FifthAve. Bldg. Assoc., 251 AD2d 200,202 (1st Dept 1998). In opposition, Gap reiterates that it owedno duty to plaintiffunder the lease orunder any statute, and therefore CPF 1511 's contractual indemnification claim is withoutmeritbecause it cannot establish that Gap violatedits duty to maintain the sidewalk. Gap maintains that the lease's requirementthat itindemnify CPF 1511 for accidents that occur "in, at, orupon the demised premises" did not apply to the sidewalk, and therefore itwas notrequired 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 itmaynotbeheld liable for the alleged defective condition (see supra), CPF 1511 is not entitled to common-law or contractual indemnity from it, normay it assert a breach ofcontract claim as Gap was notrequired to obtain insurance covering the sidewalk. C. Conclusion Accordingly, itis ORDERED, that defendant The Gap, Inc's motion for summaryjudgment (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 clerkis directed to enterjudgment accordingly; it is further ORDERED, that CPF 1511's motion for summaryjudgment (seq. 004) dismissing the complaint as against it is denied; andit is further

152255/2020 SAGLIMBENE, MARGARET vs. CPF 1511 THIRD AVENUE LLC Motion No. 003 004
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### [* 15]NYSCEF DOC. NO. 116 INDEX NO. 152255/2020 RECEIVED NYSCEF: 07/01/2024
ORDERED, that the parties appear for a settlement/trial scheduling conference on November20, 2024 at9:30

# AM at 71 Thomas Street,

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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

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