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 

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

ROBERT BYRD, 

Plaintiff, 

- V -

162 JAMAICA REAL TY LLC, JAMAICA CENTER 

IMPROVEMENT ASSOCIATION, INC., 

Defendants. 

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

JAMAICA CENTER IMPROVEMENT ASSOCIATION, INC. 

Plaintiff, 

-againstATLANTIC MAINTENANCE CORPORATION 

Defendant. 

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

162 JAMAICA REAL TY LLC 

Plaintiff, 

-againstJAMAICA EXPO, INC 

Defendant. 

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

JAMAICA CENTER IMPROVEMENT ASSOCIATION, INC. 

Plaintiff, 

-againstJAMAICA EXPO, INC., 

Defendant. 

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

160533/2020 BYRD, ROBERT vs. 162 JAMAICA REAL TY LLC 

Motion No. 002 

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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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NYSCEF DOC. NO. 175 

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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 summary judgment dismissing plaintiffs complaint and all crossclaims and 

counterclaims as against it. 

BACKGROUND 

On December 29, 2017, plaintiff was 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). After he fell, plaintiff"saw a hole in the ground, [and] saw the 

loose brick that [he] stepped on, and [] three to four bricks missing and the hole about 3 to 6 

inches deep" (NYSCEF Doc No 137, 26: 12-27:8). 

162 Jamaica Realty LLC (Jamaica Realty) is the owner of the premises (NYSCEF Doc 

No 12) and Jamaica Center Improvement Association Inc. is a business improvement district 

manager (the BID) responsible for, inter alia, maintenance of the premises (NYSCEF Doc No 

16). The BID filed a third-party action against Atlantic which includes causes of action 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 would perform 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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including brick maintenance; specifically, Atlantic was directed to "[r]eset loose brick pavers," 

"notify BID of district's street and safety conditions, including ... condition of brick pavers," 

and "provide minor brick repair upon request [though it] will only be liable for areas where [the 

BID had] repaired brick"] (id.). 

Atlantic now moves for summary judgment dismissing plaintiffs complaint and all 

crossclaims and counterclaims asserted against it (NYSCEF Doc No 124) on the grounds that 

Atlantic had no duty to plaintiff pursuant to NYC Admin Code§ 7-210 because it did not create 

or have notice of the hazardous condition alleged by plaintiff (NYSCEF Doc No 125). The BID 

opposes, arguing that there are triable issues of fact regarding Atlantic's liability based on its 

obligations under the maintenance agreement (NYSCEF Doc No 145). Plaintiff also opposes 

Atlantic's motion to the extent that it seeks to dismiss claims that plaintiff did not assert against 

it and argues that Atlantic had constructive notice of the hazardous condition (NYSCEF Doc No 

153). 

DISCUSSION 

"It is well settled that '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 of any material issues of fact."' (Pullman v Silverman, 28 NY3d 1060, 

1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). "Failure to make 

such showing requires denial of the motion, regardless of the sufficiency of the opposing 

papers." (Winegrad v New 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 proof in admissible form sufficient to raise material 

issues of fact which require a trial of the action." ( Cabrera v Rodriguez, 72 AD3d 553, 553-554 

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[1st Dept 2010], citing Alvarez, 68 NY2d at 342). The evidence presented in a summary 

judgment motion must be examined "in the light most favorable to the non-moving party" 

(Schmidt v One New York Plaza Co., 153 AD3d 427,428 [2017], quoting Ortiz v Varsity 

Holdings, LLC, 18 NY3d 335, 339 [2011]) and if there is any doubt as to the existence of a 

triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 

NY2d 223,231 [1978]). 

As an initial matter, as plaintiff correctly notes, Atlantic cannot seek summary judgment 

dismissing plaintiff's complaint because plaintiff did not name Atlantic as a direct defendant 

(Kavanaugh v Kavanaugh, 200 AD3d 1568, 1572 [4th Dept 2021]; Matter of Coalition to Save 

Cedar Hill v Planning Bd. of Inc. Vil. of Port Jefferson, 51 AD3d 666, 668 [2nd Dept 2008] 

[although one of the defendants "broadly framed their motion as one to dismiss the []complaint 

in its entirety, [it] did not have standing to seek dismissal of the eighth cause of action, 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 

of Atlantic's motion for summary judgment seeking dismissal of plaintiff'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 of those 

claims in its motion, focusing instead on its (lack of any) duty to plaintiff (id. ).2 Accordingly, the 

2 Like the BID's first third-party complaint against Atlantic, Jamaica Expo's answer to the second third-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 of contract (NYSCEF Doc No 76). 

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Motion No. 002 

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part of Atlantic's motion for summary judgment seeking dismissal of any counterclaims and 

crossclaims against it will also be denied. 

CONCLUSION 

Based on the foregoing, it is 

ORDERED that Atlantic'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 

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PAUL A. GOETZ, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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