DECISION AND ORDER In this action seeking recovery for personal injury, defendants move for summary judgment pursuant to CPLR §3212, dismissing the complaint. Plaintiff opposes this motion. Defendant’s motion is granted. “The drastic remedy of summary judgment may only be granted where, viewing the facts in the light most favorable to the non-movant, ‘the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact,’” and the non-moving party has subsequently ‘fail[ed] “to establish the existence of material issues of fact which require a trial of the action.”‘” Dormitory Authority v. Samson Constr. Co., 30 N.Y.3d 704, 717 (2018) (citing Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012)). Background Viewing the relevant facts in the light most favorable to the plaintiff, on July 8, 2011, at approximately 12:15 a.m., two of plaintiff’s acquaintances drove plaintiff to the parking garage located at 333 East 46th Street, New York, New York to retrieve the car that plaintiff had parked there hours earlier. See Sharinn Dep. (p. 8, line 16-p. 9, line 6). The attendant at the booth inside the parking garage informed plaintiff that it was too late — to which Plaintiff gestured to his car, which was only several feet away from where the discussion as taking place, and said “Are you serious? My car is right here.” (p. 57, line 15-p. 58, line 4). The attendant indicated that the hour of plaintiff’s arrival meant that the price would be approximately $50 more than plaintiff expected, to which plaintiff responded with words to the effect of, “Are you kidding me? Are you serious?” (p. 59, lines 15-22). After that, the attendant turned away from plaintiff. Plaintiff who had three glasses of wine at dinner, is 6’2″ tail, and weighed approximately 215 pounds at the time, then attempted to get the attention of the attendant by knocking on the booth window with “medium force,” and the glass of the window broke. (p. 8, lines 12-15; p. 9, lines 11-14); (p. 60, line 16-p. 61, line 2). Plaintiff sustained injuries to his hands and arms due to contact with the resulting sharp glass. (p. 70, line 24-p. 71, line 5). Plaintiff alleges that the defendants were negligent, careless and reckless in the ownership, operation, design, maintenance, management, control, supervision, and installation of the glass window of the parking garage cashier booth.1 Defendant 333 E. 46TH ST. PARKING, LLC d/b/a ICON operated the parking garage pursuant to a lease with defendant 333 EAST 46TH ST. APARTMENT CORP. Defendant ICON PARKING SYSTEMS, LLC is a brand name with no day to day responsibilities over operation, maintenance or repair of the parking garage. Analysis “It is well established that owners and lessees have a duty to maintain their property in a reasonably safe condition under the existing circumstances.” Waiters v. Northern Trust Co. of New York, 29 A.D.3d 325, 326 (1st Dept 2006); see also, e.g., Basso v. Miller, 40 N.Y.2d 233, 241 (1976). “If they do not, liability may be imposed for any foreseeable injuries arising from the unsafe or dangerous condition, “Vazquez v. City of New York, 192 A.D.2d 522, 524 (2d Dep’t 1993). However, it is well-settled2 that a court may “conclude as a matter of law, upon the uncontroverted facts established by the submissions of the parties that the conduct of the respective plaintiffs was the sole proximate cause of their injuries or was an unforeseeable superseding event. sufficient to break the causal chain and thus absolve the defendant of liability.” See Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 534 (1991). In Hain v. Jamison, the Court of Appeals expanded at length on the relevant factors to consider in making such a determination: Although foreseeability and proximate cause are generally questions for the factfinder, there are instances in which proximate cause can be determined as a matter of law because “only one conclusion may be drawn from the established facts.”…The line between those intervening acts which sever the chain of causation and those which do not cannot be drawn with precision. Proximate cause is, at its core, a uniquely fact-specific determination, and “[d]epending upon the nature of the case, a variety of factors may be relevant in assessing legal cause”. Such factors include, among other things: the foreseeability of the event resulting in injury: the passage of time between the originally negligent act and the intervening act; the spatial gap, if any, between the original act and the intervening act; whether the original act of negligence was a completed occurrence or was ongoing at the time of the intervening act; whether and, if so. what other forces combined to bring about the harm; as well as public policy considerations regarding the scope of liability. The relevance of each factor will vary depending upon the factual circumstances presented, but the most significant inquiry in the proximate cause analysis is often that of foreseeability. See 28 N.Y.3d 524, 530 (2016) (citations omitted); see also Osorio v. Thomas Balsley Assocs., 69 AD3d 402 (1st Dep’t 2010). Plaintiff allegations of negligence relate to the garage booth window, which the parties agree was installed in 1994. Applying the factors specified in Hain to the facts presented, there is a gap of seventeen years between the allegedly negligent act of defendant and the injury to plaintiff, and there is no evidence presented that anyone managed to break the allegedly defective window in question, whether by knocking on it with medium force or otherwise, until plaintiff did in 2011. See id. The court has surveyed the long history of premises liability and negligence cases in New York and there are very few cases involving knocking on windows which also involve an adult.3 Even in the cases involving young children, courts have consistently found no negligence on the, part of the defendants as a matter of law. See, e.g., Delorenzo v. Filipides, 2003 N.Y. Slip Op. 51415(U) (Sup. Ct. Kings Cty. 2003) (court found no foreseeability as a matter of law when child broke window trying to open it to get water balloons); see also Bennett v. Saeger Hotels. Inc., 229 A.D.2d 909 (4th Dep’t 1996) (court found no foreseeability as a matter of law when child broke window by jumping through it to escape impressment into prostitution); Thackeray v. Novak, 124 A.D.2d 946 (3d Dep’t 1986) (court found no foreseeability as a matter of law when child put his hand through a raised window while climbing a fence). The few cases where a question of fact as to negligence has been found relating to installation or maintenance of a window involve cases where the defective window was brought to the attention of the defendant well ahead of time. See, e.g., Jean v. St. Paul A.M.E. Zion Church, 271 A.D.2d 491 (2d Dep’t 2000) (foreseeability of criminal pulling plaintiff through broken casement window and assaulting her deemed foreseeable where defendant was aware that plaintiff had been pulled through and assaulted at same broken window a few months earlier, noting “the similarity between the two assaults”); Snyder v. Moore, 72 A.D.2d 580 (2d Dep’t 1979) (tenant complained of defective window three weeks before injuring self trying to open it). To paraphrase the reasoning of the Second Department, the plaintiff’s theory of liability turns on the acceptance of the assertion that the window in question presented a dangerous condition of which the defendants were or should have been aware, and that their failure to remedy this condition foreseeably resulted in the accident. However, because the purpose of a window is not to be knocked on with medium force, the window screen herein did not present a dangerous condition. Because the window did not represent a dangerous or unsafe condition per se, the accident at bar was not foreseeable and the defendants cannot be held liable therefor. See Vazauez at 524 (“plaintiffs’ theory of liability turns on the acceptance of their assertion that the window screen in question presented a dangerous condition of which the defendants were aware, and that their failure to remedy this condition foreseeably resulted in the accident. However, because the purpose of a window screen is not to prevent people from falling out the window, the window screen herein did not present a dangerous condition regardless of whether the latches were properly attached or functioning as intended. Because the screen did not represent a dangerous or unsafe condition per se, the accident at bar was not foreseeable and the defendants cannot be held liable therefor.”); see also, e.g., Wozniak v. Filler, 245 A.D.2d 444, 445 (2d Dep’t 1997). Put simply, just because windows can be knocked on does not mean that windows are meant to be knocked on. See. e.g., Osorio, 69 A.D.3d at 403 (“the fact that it could be used for a purpose other than its intended use did not render its availability foreseeably dangerous.”). Plaintiff’s theory of liability strays too far from legal basics. The proximate cause of plaintiff’s injuries was not the window, it was the force that plaintiff applied to that window, Defendant’s motion for summary judgment is granted. Accordingly, it is hereby ORDERED, that defendants’ motion for summary judgment is granted. This constitutes the decision and order of the court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 1, 2020
