Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1-2 Order to Show Cause and Affidavits Annexed Answering Affidavits 3-5 Replying Affidavits 6-7 Exhibits Var. Other DECISION/ORDER Upon review of the foregoing papers, defendant Vernon Boulevard Realty, LLC (“Vernon”)’s motion for summary judgment (Seq. 006) and plaintiff Betty Edwards-Bryant’s motion for summary judgment (Seq. 007) are decided as follows: Introduction The plaintiff commenced this action by the filing and service of a summons and verified complaint on or about February 7, 2019. Issue was joined by service of Vernon’s verified answer on February 27, 2019. On or about March 27, 2019, co-defendant Stellar Printing, Inc. (“Stellar”) interposed an answer to plaintiff’s verified complaint. Plaintiff filed the note of issue on November 23, 2020. On or about December 10, 2020, Vernon filed a motion to vacate the note of issue and requesting that the time to move for summary judgment be extended. That motion was withdrawn by a letter to Justice Lawrence Knipel on May 19, 2021, and the parties filed a stipulation ostensibly resolving the motion. However, that stipulation was never so-ordered by the court. Factual Background Several facts about this accident are undisputed by the parties. Ms. Edwards-Bryant tripped when her feet were entangled in straps used to bundle newspapers on December 14, 2017, on Vernon Boulevard adjacent to the property known as 38-38 9th Ave., Queens, NY. The plaintiff testified that the path on which she was walking was clear of snow (Edwards-Bryant EBT at 60). Vernon Boulevard Realty, LLC was the owner and lessor of the property (Vernon Deed). Stellar was a tenant at that property (Stellar Lease). Kevin Ednie, director of operations for Stellar, testified that Stellar prints newspapers and uses a machine to bundle the papers in plastic straps (Ednie EBT at 15-16). Based on the evidence provided, there is also no dispute that it was Stellar’s responsibility to clean up the sidewalk. Mr. Ednie identified three Stellar employees who were responsible for cleaning up the white straps used to bind newspapers (Ednie at 43-44). Dino Pervizi, the facility manager for the property, testified that it was Stellar’s responsibility to clean up the straps, despite testifying that he had never seen them do so (Pervizi EBT at 24, 25). Deliveries to the loading dock of Stellar, which faced the portion of Vernon Boulevard where the plaintiff fell, often resulted in debris being left behind (id. at 25-26). Analysis On a motion for summary judgment, the moving party bears the initial burden of making a prima facia showing that there are no triable issues of material fact (Giuffrida v. Citibank, 100 NY2d 72, 81 [2003]). Once a prima facia showing has been established, the burden shifts to the non-moving party to rebut the movant’s showing such that a trial of the action is required (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). As an initial matter the court must address the timeliness of these motions for summary judgment. Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6 requires a party to move for summary judgment within 60 days from the date of the filing of the note of issue. In the instant case, plaintiff filed her note of issue on November 23, 2020. Defendant Vernon Boulevard moved for summary judgment on January 22, 2021, within the sixty-day period. Plaintiff did not file her notice of motion until February 22, 2021. An untimely motion for summary judgment may be permitted if good cause is shown for the untimeliness (Brill v. City of New York, 2 NY3d 648, 652 [2004]). However, Brill requires a “satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial [sic] filings, however tardy” (id.). Defendant Vernon filed its motion on January 22, 2021, exactly 60 days after the note of issue was filed, and that motion is therefore timely. Plaintiff’s motion was filed on February 22, 2021-91 days after the note of issue was filed. The plaintiff did not address timeliness in her initial moving papers. In her reply, the plaintiff addressed Stellar’s opposition which contained the first challenge to timeliness. Ordinarily, this court does not extend deadlines for filing summary judgment based on stipulations by the parties. However, because the plaintiff’s motion is effectively a cross-motion to the defendant’s motions, the court will consider the merits of both motions. Duty of Care “Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002]). Administrative Code of the City of New York §7-210 imposes a non-delegable duty on a property owner to maintain the sidewalk abutting its property, including the removal of ice, snow, dirt, and other materials (Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 169 [2019]). Importantly, “in order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” (Fontana v. RHC Dev., LLC, 69 AD3d 561, 562 [2d Dept. 2010]). A commercial tenant of property abutting a public sidewalk “owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty” (Torres v. City of New York, 153 AD3d 647, 648 [2d Dept 2017]). General awareness of litter is not sufficient to support an allegation of constructive notice (Smith v. Funnel Equities, Inc., 282 AD2d 445 [2001]; Gordon v. American Museum of Natural History, 67 NY2d 836, 838 [1986] [papers scattered on a set of stairs ten minutes before an accident is "insufficient to charge defendant with constructive notice" of a different piece of paper on which plaintiff fell]). Ms. Edwards-Bryant testified that she fell when her feet were tangled up in plastic straps (Edwards-Bryant EBT at 24), and Mr. Ednie testified that the straps on the ground were the kind used by Stellar printing (Ednie EBT at 36). There is no testimony that these were not Stellar’s straps, nor that Stellar had cleaned up the straps in the area. Pursuant to Torres, Stellar’s role in creating the condition on the sidewalk catalyzed its liability to the plaintiff. Therefore, plaintiff’s motion is granted against Stellar. As to Vernon, Mr. Pervizi testified that he e-mailed his supervisors about debris, and frequently observed Stellar deliveries where debris was left behind (Pervizi EBT at 24, 26). This testimony indicates that Vernon had constructive notice of Stellar’s pattern of leaving straps on the sidewalk abutting the property that Vernon owns. Accordingly, plaintiff’s motion is also granted as to Vernon’s liability. Notably, neither defendant raises the issue of comparative fault. Therefore, the defendants are found to be wholly liable. Cross-Claims Against Stellar “The right to contractual indemnification depends upon the specific language of the lease and the promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and surrounding circumstances” (Reisman v. Bay Shore Union Free School Dist., 74 AD3d 772, 773 [2nd Dept. 2010]). “A party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (Hirsch v. Blake Hous., LLC, 65 AD3d 570, 571 [2nd Dept. 2009]). Additionally, “lease provisions by which the tenant covenants to procure insurance and name the landlord as an additional insured are generally valid and enforceable” (Inchaustegui v. 666 5th Ave. Ltd. P’ship, 96 NY2d 111, 114 [2001]). The lease in this case states: Section 31: Indemnification. Tenants, its officers, directors, agents, contractors and employees (collectively “Indemnitors”) agree to indemnify and save Landlord and its and their respective agents, employees, officers, shareholders, directors, members, partners and principals (whether disclosed or undisclosed) and its mortgagees (collectively “indemnitees”), harmless against and from any and all claims, losses, damages, costs, liabilities and expenses incurred or arising by or on behalf of any person or persons, firm or firms, corporation or corporations, in connection with: (i) any work or thing or circumstance or occurrence whatsoever done by or on behalf of the Indemnitors, in or about the Demised Premises; or (ii) the negligence of any Indemnitor. This indemnity and hold harmless agreement shall include indemnification from and against all costs, reasonable counsel fees, disbursements and expenses and liabilities incurred in connection with any action or proceeding brought hereon, and in case any action or proceeding be brought against or claim or demand be made upon, any of the indemnitees, the Indemnitors covenant and agree to resist or defend, at Indemnitors sole expense, such claim, action or proceeding by counsel reasonably satisfactory to Indemnitees.” (Lease Rider at 4). Stellar contends that their lease was with a different landlord. However, when Vernon took over ownership of the premises, the lease was assigned to them by law (Jim, Jack, & Joe Realty Corp. v. Rothenburg, 78 AD2d 634 [2d Dept 1980]). In light of the language of the contract requiring indemnification, and in light of this court’s determinations about Vernon’s liability, Vernon’s motion is granted as to its claim for contractual indemnification against Stellar. Vernon also points to the portion of the lease that requires their tenant, Stellar, to procure insurance. Stellar provides no evidence that insurance was procured, and relies on the same arguments about Vernon not enjoying the contractual rights of the lease because it was not the signatory. For the same reasons that argument is unavailing with respect to contractual indemnification it fails here as well. Conclusion Vernon’s motion (seq. 006) is granted as to its claims for contractual indemnification and breach of contract claims against Stellar. Vernon’s motion is denied as to plaintiff’s claims against it. Plaintiff’s motion (seq. 007) is granted against both defendants. This constitutes the decision and order of the court. Dated: January 10, 2022
