### Byrd v 162 Jamaica Realty LLC 2024 NY Slip Op 32307(U) July 8, 2024 Supreme Court, New York County Docket Number: Index No. 160533/2020 Judge: Paul A. Goetz 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. 175 INDEX NO. 160533/2020 RECEIVED NYSCEF: 07/08/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ Justice

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ROBERT BYRD, Plaintiff,

- V - 162 JAMAICA REALTY LLC, JAMAICA CENTER IMPROVEMENT ASSOCIATION, INC., Defendants.

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JAMAICA CENTER IMPROVEMENT ASSOCIATION, INC. Plaintiff,-againstATLANTIC MAINTENANCE CORPORATION Defendant.

--------------------------------------------------------------------------------X 162 JAMAICA REALTY LLC Plaintiff,-againstJAMAICA EXPO, INC Defendant.

--------------------------------------------------------------------------------X JAMAICA CENTER IMPROVEMENT ASSOCIATION, INC. Plaintiff,-againstJAMAICA EXPO, INC., Defendant.

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160533/2020 BYRD, ROBERT vs. 162 JAMAICA REALTY LLC Motion No. 002
1 of 5 PART
INDEX NO. 160533/2020 MOTION DATE 02/15/2024 MOTION SEQ. NO. 002 DECISION + ORDER ON MOTION

Third-Party Index No. 595734/2021

Second Third-Party Index No. 595973/2021

Third Third-Party Index No. 595872/2022

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### [* 1]NYSCEF DOC. NO. 175 INDEX NO. 160533/2020 RECEIVED NYSCEF: 07/08/2024

The following e-filed documents, listed by NYSCEF document number (Motion 002) 124, 125, 126, 127, 128,129,130,131,132,133,134,135,136,137,138,139,140,141,142,143,144,145,146,147,148, 149,150,151,152,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168,169, 170,171,172,173,174 were read on this motion to/for JUDGMENT-SUMMARY In this trip and fall action, third-party defendant Atlantic Maintenance Corporation (Atlantic) moves for summaryjudgment dismissing plaintiffs complaint and all crossclaims and counterclaims as against it. 

### BACKGROUND On December 29, 2017, plaintiffwas walking along a brick sidewalk at 162-04 Jamaica Avenue, Jamaica, NY 11432 (the premises) when he tripped and "came down hard on [his] leg, fell over, felt a pop in [his] knee, [and] was in excruciating pain" (NYSCEF Doc No 1, 

### ,i 47; NYSCEF Doc No 137, 28:10-16). Afterhe fell, plaintiff"saw a hole in the ground, [and] sawthe loose brick that [he] stepped on, and [] three to four bricks missing and the hole about 3 to 6 inches deep" (NYSCEF DocNo 137, 26: 12-27:8). 162 Jamaica Realty LLC (Jamaica Realty) is the owner ofthe premises (NYSCEF Doc No 12) and Jamaica Center ImprovementAssociation Inc. is a business improvement district manager (the BID) responsible for, 

### inter alia, maintenance ofthe premises (NYSCEF Doc No 16). The BID filed a third-party action against Atlantic which includes causes ofaction for (i)
common law indemnification, (ii) contractual indemnification, (iii) contribution, (iv) breach of contract, and (v) failure to procure insurance (NYSCEF Doc No 30) based on a maintenance agreement the two parties entered into, dated September 9, 2015 (NYSCEF Doc No 31). 1 The agreement provided that Atlantic wouldperform various maintenance services at the premises,

1 Both defendants also filed third party complaints (NYSCEF Doc Nos 41, 66) against Jamaica Expo Inc. (Jamaica Expo), the tenant at the premises (NYSCEF Doc No 67).

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### [* 2]NYSCEF DOC. NO. 175 INDEX NO. 160533/2020 RECEIVED NYSCEF: 07/08/2024 including brick maintenance; specifically, Atlantic was directed to "[r]eset loose brick pavers," "notify BID ofdistrict's street and safety conditions, including ... condition ofbrickpavers," and "provide minorbrick repair upon request [though it] will onlybe liable for areas where [the BID had] repaired brick"] 

### (id.). Atlantic now moves for summaryjudgment dismissing plaintiffs complaint and all crossclaims and counterclaims asserted against it (NYSCEF Doc No 124) on the grounds that Atlantic hadno duty to plaintiffpursuant to NYC Admin Code§ 7-210 because it did not create
orhave notice ofthe hazardous condition alleged byplaintiff(NYSCEF Doc No 125). The BID opposes, arguing thatthere are triable issues offact regarding Atlantic's liability based on its obligations under the maintenance agreement (NYSCEF Doc No 145). Plaintiffalso opposes Atlantic's motion to the extent that it seeks to dismiss claims that plaintiffdid not assert against it and argues that Atlantic had constructive notice ofthe hazardous condition (NYSCEF Doc No 153). DISCUSSION "Itis well settled that 'theproponent ofa summaryjudgmentmotion must make a prima facie showing ofentitlement tojudgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence ofany material issues offact."' 

### (Pullman v Silverman, 28 NY3d 1060, 1062 [2016], quoting

### Alvarezv ProspectHosp., 68 NY2d 320,324 [1986]). "Failure to make such showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers." 

### (Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [internal citations omitted]). "Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proofin admissible form sufficient to raise material issues offact which require a trial ofthe action." (

### Cabrera vRodriguez, 72 AD3d 553, 553-554

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### [* 3]NYSCEF DOC. NO. 175 INDEX NO. 160533/2020 RECEIVED NYSCEF: 07/08/2024
[1st Dept 2010], citingAlvarez, 68 NY2d at 342). The evidence presented in a summary judgmentmotion must be examined "inthe light most favorable to the non-moving party" (Schmidt v OneNew YorkPlaza Co., 153 AD3d 427,428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]) and ifthere is any doubt as to the existence ofa triable fact, the motion for summaryjudgmentmustbe denied (Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]). As an initial matter, as plaintiffcorrectlynotes, Atlantic cannot seek summaryjudgment dismissing plaintiff's complaint because plaintiffdid notname Atlantic as a direct defendant (Kavanaugh v Kavanaugh, 200 AD3d 1568, 1572 [4th Dept 2021]; Matter of Coalition to Save CedarHill v PlanningBd. of Inc. Vil. of PortJefferson, 51 AD3d 666, 668 [2nd Dept 2008] [although one ofthe defendants "broadly framed their motion as one to dismiss the []complaint in its entirety, [it] did nothave standing to seek dismissal ofthe eighth cause ofaction, which"
was asserted only against a co-defendant]; see also Wysocki v Kel-Tech Construction, Inc., 2005 NY Slip Op 30399[U], *3 n.1 [Sup Ct NY Co 2005] ["third-party defendants [lack] standing to move to dismiss plaintiffs' complaint as they are not named defendants"]). Accordingly, the part ofAtlantic's motion for summaryjudgment seeking dismissal ofplaintiff's complaint will be denied.Atlantic also seeks the dismissal of"any and all crossclaims and counter claims asserted against it" (NYSCEF Doc No 125), yet Atlantic does not address, or even identify, any ofthose claims in its motion, focusing instead on its (lack ofany) duty to plaintiff(id.).2 Accordingly, the

2 Like the BID'sfirst third-party complaint against Atlantic, Jamaica Expo's answer to the secondthird-party complaint includes crossclaims against Atlantic for (i) contribution, (ii) common law indemnity, (iii) contractual indemnity, (iv) failure to obtain insurance coverage, and (v) breach ofcontract (NYSCEF Doc No 76).

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### [* 4]NYSCEF DOC. NO. 175 INDEX NO. 160533/2020 RECEIVED NYSCEF: 07/08/2024
part ofAtlantic's motion for summaryjudgment seeking dismissal ofany counterclaims and crossclaims against itwill also be denied. CONCLUSION Based onthe foregoing, it is ORDERED thatAtlantic's motion is denied in its entirety.

7/8/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

160533/2020 BYRD, ROBERT vs. 162 JAMAICA REAL TY LLC Motion No. 002
5 of 5 PAUL A. GOETZ, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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