The following electronically filed (EF) papers read on this motion by defendants Voun Corp. and 36-03 Food LLC C/B/A Create, for an Order: pursuant to CPLR 3212, granting defendants summary judgment and dismissing plaintiff’s complaint in its entirety; and for such other and further relief as this Court shall deem just and proper. Papers Numbered Notice of Motion — Affirmation — Exhibits EF 18-33 Opposition to Motion — Affirmation — Exhibits EF 34 Affirmation in Reply EF 36 Upon the foregoing papers, it is Ordered that defendants’ motion is determined as follows: The instant case was commenced by plaintiff and arises out of personal injuries allegedly sustained when plaintiff tripped and fell on the sidewalk located in front of 36-03 30th Avenue, Queens, New York on April 13, 2018. Defendant Voun Corp. (hereinafter “Voun”) is the landowner of real property located at 36-03 30th Avenue, Queens, New York (hereinafter the “subject property”) and defendant 36-03 Food LLC C/B/A Create (hereinafter “Create”) was a tenant/lessee in possession of the subject property on April 13, 2018.1 Defendants filed the instant motion and inter alia avers that they are entitled to summary judgment dismissing plaintiff’s complaint in its entirety as plaintiff was unable to identify the exact cause and location of the alleged trip and fall. Defendants further aver that assuming arguendo that this Court finds that plaintiff was able to identify the cause and location of her alleged trip and fall, plaintiff’s complaint must nevertheless be dismissed against defendant Create as the tenant of the subject property did not owe plaintiff a duty of care. Lastly, Defendants aver that the complaint should also be dismissed as against defendant Voun who is the owner of the subject property, because they were not on notice of any alleged dangerous conditions on the sidewalk in front of the subject premises. In support of defendants’ motion, they submit the following evidence: summons and complaint filed in the instant case, Defendants’ answer, Preliminary Conference Order, Consent to Change Attorney, the Note of Issue, Supplement Verified Bill of Particulars, transcript of Plaintiff’s deposition testimony dated March 25, 2019, defendants’ Exhibits A-H presented at the March 25, 2029 deposition, transcript of defendant 36-03 Food LLC D/B/A by Theodore Karagiannis deposition testimony dated September 11, 2019, affidavit of Angela Vounisea, and expert witness disclosure. Plaintiff opposes defendants’ motion and asserts inter alia that plaintiff sufficiently created triable issues of fact as to whether defendants are liable for the injuries plaintiff sustained due to the subject accident and, therefore, summary judgment is defendants’ favor must be denied. In support of plaintiff’s opposing papers, it submits the following evidence: affidavit of Clara Paraskevopoulous, expert affidavit of Robert Fuchs, and response to Plaintiff’s combined discovery demands. In a trip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall (see Bilska v. Truszkowski, 171 A.D.3d 685, 686, 98 N.Y.S.3d 110; Singh v. City of New York, 136 A.D.3d 641, 642-643, 24 N.Y.S.3d 407; Buglione v. Spagnoletti, 123 A.D.3d 867, 867, 999 N.Y.S.2d 453; Altinel v. John’s Farms, 113 A.D.3d 709, 709-710, 979 N.Y.S.2d 360). “If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation” (Pol v. Gjonbalaj, 125 A.D.3d 955, 955, 5 N.Y.S.3d 186; see *1529 McRae v. Venuto, 136 A.D.3d 765, 766, 24 N.Y.S.3d 745). “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall” (Izaguirre v. New York City Tr. Auth., 106 A.D.3d 878, 878, 966 N.Y.S.2d 122; see McRae v. Venuto, 136 A.D.3d at 766, 24 N.Y.S.3d 745). “It only means that a plaintiff’s inability to establish the cause of his or her fall — whether by personal knowledge or by other admissible proof — is fatal to a cause of action based on negligence” Moiseyeva v. New York City Hous. Auth., 175 A.D.3d 1527, 1528-29, 109 N.Y.S.3d 370, 372 (2019) citing (McRae v. Venuto, 136 A.D.3d at 766, 24 N.Y.S.3d 745; see Pol v. Gjonbalaj, 125 A.D.3d at 955-956, 5 N.Y.S.3d 186; Izaguirre v. New York City Tr. Auth., 106 A.D.3d at 878, 966 N.Y.S.2d 122). However, in deciding a motion for summary judgment “all of the evidence must be viewed in the light most favorable to the plaintiff, as the opponent of the motion for summary judgment, and all reasonable inferences must be resolved in her favor” (Giraldo v. Twins Ambulette Serv., Inc., 96 AD 903 [2d Dept.2012]; Green v. Quincy Amusements, Inc., 108 AD3d 591 [2d Dept.2013]; Boyd v. Rome Realty Leasing Ltd. Partnership, 21 AD3d 920 [2d Dept. 2005]). Here, defendants aver that they are entitled to summary judgment dismissing plaintiff’s complaint in its entirety as plaintiff was unable to identify the exact cause and location of the alleged trip and fall. Plaintiff submits an affidavit which in pertinent part states: “[o]n April 13, 2018, at approximately 11:00 a.m. I was lawfully on the sidewalk in front of the premises located at 36-03 30th Avenue, County of Queens, City of New York of defendants, VOUN CORP. and 36-03 FOOD LLC D/B/A CREATE. As I was lawfully walking in the middle of the sidewalk the front of my right foot caught a raised and cracked portion of the sidewalk causing me to fall forward and land on the sidewalk. After I was helped off the ground by two individuals walking along the sidewalk, I looked at the area where I tripped and observed that the sidewalk was raised and cracked. I was then helped into the restaurant I fell in front of, namely Create.” In addition, plaintiff’s transcribed deposition testimony annexed to defendants’ moving papers, in pertinent part states: Q. As you were walking, what caused you to fall? A. The sidewalk, it was a crack and lifted, and my right foot went there, and I fell with my hands forward, and my body went on my left hand. Q. You indicated that the sidewalk was lifted. Did you see that condition at any time prior to your accident? A. No. Q. When did you first observe or notice that it was lifted? (Page 27, lines 14-25) A. When I get up, I looked and I saw what made me fall. Q. That was immediately after the accident? A. Yes. Q. It was your right foot that tripped? A. My right foot. Q. Do you know which part of your Was it the toe — toes. A. The front of my boot, the toe, toes. Q. Did you measure how much the sidewalk was lifted? A. With my eyes, about one inch, one and a half. Q. That was immediately after the accident? A. I look. (Page 28, lines 2-20) Taking into consideration plaintiff’s deposition testimony and plaintiff’s affidavit in opposition to defendants motion, the court finds that plaintiff sufficiently identified the location of the defect as being in front of the restaurant named Create and sufficiently identified and described the cause of her fall without engaging in speculation. See Mendez v. Herald Ctr. Dep’t Store of New York, LLC, 40 Misc. 3d 1241(A), 977 N.Y.S.2d 667 (Sup. Ct. 2013). Now turning to defendants’ averment that the complaint should also be dismissed as against defendant Voun, the owner, because they were not on notice of any alleged dangerous conditions on the sidewalk in front of the subject premises. Administrative Code of the City of New York §7-210 abrogates the common law and imposes a nondelegable duty on property owners to maintain the sidewalk adjacent to their property in a reasonably safe condition. See Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 176 [2019]). The Court of Appeals in Xiang Fu He v. Troon Mgmt., Inc., 34 N.Y.3d 167, 137 N.E.3d 469 (2019) has held: “a landowner’s duty under section 7-210 is an affirmative, nondelegable obligation which incentivizes owners to make decisions that optimize the safety and proper care of sidewalks, reducing harm to third parties and litigation costs.” The Court of Appeals further held that “[t]his interpretation of the code promotes the City Council’s intent to place the duty squarely on the shoulders of those in the best position to maintain sidewalks in a reasonably safe condition and to insure against loss” and that “[w]hile 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 section 7-210.” However, “subject landowners are not strictly liable for personal injuries resulting from accidents on abutting sidewalks because section 7-210 adopts a duty and standard of care that accords with traditional tort principles of negligence and causation” (id. at 171), Thus, “to prevail on its summary judgment motion, the defendant [owner] [is] required to establish that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Muhammad v. St. Rose of Limas R.C. Church, 163 AD3d 693, 693 [2d Dept 2018]). “To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff tripped” Marchese v. St. Martha’s Roman Catholic Church, Inc., 106 A.D.3d 881 (2013) citing (see Tsekhanovskaya v. Starrett City, Inc., 90 AD3d 909, 910 [2011]; Pryzywalny v. New York City Tr. Auth., 69 AD3d at 599). “A defendant fails to satisfy its initial burden as to lack of constructive notice when it simply presents evidence of its general cleaning or inspection practices rather than providing specific evidence as to when the area in question was last cleaned or inspected prior to the plaintiff’s fall” Marchese v. St. Martha’s Roman Catholic Church, Inc., 106 A.D.3d 881 (2013) citing (see Jackson v. Jamaica First Parking, LLC, 91 AD3d at 603; Pryzywalny v. New York City Tr. Auth., 69 AD3d at 599; Arzola v. Boston Props. Ltd. Partnership, 63 AD3d at 656; Feldmus v. Ryan Food Corp., 29 AD3d 940, 941 [2006]). Here, defendant Voun submitted an affidavit from Angela Vouniseas the Vice president of Voun Corp. and owner of the subject property. Angela Vouniseas’s affidavit inter alia states that defendant Voun neither caused, created, or had notice of any defective or dangerous condition on the sidewalk in front of the subject property and thus, no liability can be attributed to defendant Voun. However, defendant Voun failed to offer any evidence regarding when they last inspected or cleaned the sidewalk in front of the subject property prior to plaintiff’s trip and fall. See Marchese v. St. Martha’s Roman Catholic Church, Inc., 106 A.D.3d 881, 882, 965 N.Y.S.2d 557 (2013). Thus, defendant Voun did not meet its prima facie burden of demonstrating its entitlement to judgment as a matter of law. Id. See also Tsekhanovskaya v. Starrett City, Inc., 90 AD3d at 910; Pryzywalny v. New York City Tr. Auth., 69 AD3d at 599. Now turning to defendants’ averment that plaintiff’s complaint must be dismissed against defendant Create because it did not owe plaintiff a duty of care. “As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” Hsu v. City of New York, 145 A.D.3d 759, 760, 43 N.Y.S.3d 139 (2016) citing (see Martin v. Rizzatti, 142 AD3d 591, 593 [2016]). “This is in accordance with the principle that ‘a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party’ “quoting (Espinal v. Melville Snow Contrs., 98 NY2d 136, 138 [2002]). The Court of Appeals has recognized that there are exceptions to this general rule and that there are situations in which a party who enters into a contract may be said to have assumed a duty of care to third parties (see id. at 140; Palka v. Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 588-589 [1994]). For instance, “where a lease agreement is ‘so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk,’ the tenant may be liable to a third party’ ” (Paperman v. 2281 86th St. Corp., 142 AD3d 540, 541 [2016], quoting Abramson v. Eden Farm, Inc., 70 AD3d 514, 514 [2010]). See also Hsu v. City of New York, 145 A.D.3d 759 (2016). In Paperman v. 2281 86th St. Corp., 142 A.D.3d 540(2016), the Appellate Division, Second Department affirmed the Supreme Court’s decision holding that “the rider to the subject lease requiring the tenant to, at its own cost and expense, keep and maintain the sidewalk ‘in thorough repair and good order,’ was so comprehensive and exclusive as to entirely displace the owner’s duty to maintain the sidewalk…”. In the instant case, defendants aver that the contract between them was not exclusive and comprehensive so as to transfer Voun’s nondelegable duty to maintain the subject sidewalk to Create. The Court is unpersuaded by defendants’ averments. Here, the language contained under provision 75 of the lease rider entered into between defendant Voun and defendant Create in pertinent part states: “(a) It is understood and agreed that the Tenant shall keep and maintain the sidewalks in front, adjoining and surrounding the leased premises in good condition and orderly throughout the term of the lease.” Such language contained in the lease rider executed between defendant Voun and defendant Create creates triable issues of fact as to whether the language was comprehensive and exclusive regarding the sidewalk maintenance so as to entirely transfer defendant Voun’s duty to maintain the sidewalk to defendant Create. See Hsu v. City of New York, 145 A.D.3d 759 (2016); Paperman v. 2281 86th St. Corp., 142 A.D.3d 540 (2016); see also Yanovskiy v. Tim’s Diagnostic’s Auto Ctr., 170 A.D.3d 1089 (2019). Based on the foregoing, defendants’ motion for summary judgment is denied in its entirety. Any other requested relief not expressly addressed herein has nonetheless been considered by this Court and is hereby denied. This shall constitute the Decision and Order of the Court. Date: September 14, 2020
