Plaintiff brings this personal injury case against defendants 645 LLC and 1701 Grocery Corp. In motion sequence No. 1, defendant 645 LLC moves pursuant to CPLR 3212, for summary judgment in its favor, dismissing plaintiff’s complaint and all cross-claims, and for an Order granting it summary judgment on its cross-claims for indemnification against defendant 1701 Grocery Corp. (“1701 Grocery”). In motion sequence No. 2, defendant 1701 Grocery moves pursuant to CPLR 3212, for summary judgment in its favor, dismissing plaintiff’s complaint and all cross-claims. Plaintiff seeks damages for injuries she allegedly sustained on June 17, 2017 at 12:45 pm when she slipped and fell while exiting a deli operated by defendant 1701 Grocery, located at 1701 Unionport Road, Bronx, New York. Defendant, 645 LLC owned the subject building and leased the subject deli space to 1701 Grocery. The entrance to the deli is a single step up from the sidewalk. In order to exit the grocery store, plaintiff had to traverse the lone semi-circular shaped platform/step at the store’s exit to reach the abutting sidewalk. Plaintiff contends that on the aforementioned date she exited the subject deli by walking onto the platform, and when she stepped with the left foot, she overstepped the platform and her foot hit the edge of the platform and she went down to the sidewalk. 645 LLC contends that it is entitled to summary judgment dismissing plaintiff’s complaint because she fails to allege an actionable defect; it had no prior notice of a problem with the step; and it is an owner out of possession of the subject space. They further argue that it is entitled to summary judgment on its cross-claims for contractual indemnity against 1701 Grocery based on the terms of the applicable lease. The court’s function on this motion for summary judgment is issue finding rather than issue determination (Stillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). “[T]he 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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]). The burden on the movant is a heavy one, and the facts must be viewed in the fight most favorable to the non-moving party (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). In support of its motion for summary judgment, 645 LLC offers the deposition testimony of its property manager, Valdet Lajqi, who acknowledged visiting the subject property several times a month to collect rent and to inspect the property. He testified that the subject step and doorway are used exclusively by the deli for their business and he never saw any problems with the step or made any repairs to the area. He further testified that 645 LLC never received any complaints about the subject step or entrance and that 1701 Grocery was responsible for maintaining the store entrance and subject step under the terms of the lease. 645 LLC also relies on an affidavit of an engineering consultant, Jeffrey J. Schwalje, managing director of Allied Engineering Laboratories, Inc., who reviewed color photographs of the place where plaintiff fell, plaintiff’s complaint, Bill of Particulars and deposition testimony. He also conducted an inspection of the subject location on August 10, 2018. Based on his inspection and review of the aforementioned documents, Schwalje opined that the subject front landing was properly designed, constructed and maintained; the front door swing was within the confines of the landing and did not extend over the edge of the landing; both the door and landing did not violate the NYC Building Code. He further opined that the 6.25″ high riser (step) between the landing and sidewalk did not present a tripping or slipping hazard. He concluded that a person exiting the subject premises would be able to recognize and safely negotiate the single step. 645 LLC also moves in the alternative for a conditional order of contractual indemnification against defendant 1701 Grocery. The subject lease between 645 LLC as landlord and 1701 Grocery as tenant, runs from 2014-2020. Movant argues that the lease requires 1701 Grocery to purchase insurance covering 645 LLC and to indemnify for accidents such as the one involving plaintiff. As to contractual indemnification, paragraph eight of the lease provides that, “Tenant shall indemnify and save harmless Owner against and from all liabilities for which Owner shall not be reimbursed by insurance…paid, suffered or incurred as a result of any breach by Tenant, Tenant’s agent, [or] contractors…or the carelessness, negligence or improper conduct of the Tenant, Tenant’s agents, [or] contractors “ “The right to contractual indemnification depends upon the specific language of the contract” (Lawson v. R & L Carriers, Inc., 154 AD3d 836, 838 [2d Dept 2017]). Defendant 645 LLC fails to make a prima facie showing of entitlement to judgment as a matter of law on its claim for contractual indemnification against defendant 1701 Grocery, as the lease requires a showing of negligence against the indemnitor before the clause is triggered, and there has been no finding of negligence against 1701 Grocery (see e.g. Matter of 91st St. Crane Collapse Litig., 133 AD3d 478, 480-481 [1st Dept 2015]; Fernandez v. Stockbridge Homes, LLC, 99 AD3d 550, 551-552 [1st Dept 2012]). In motion sequence 002, defendant 1071 Grocery also moves for summary judgment dismissing the plaintiff’s claim, arguing that there was nothing dangerous or defective about the step/platform where plaintiff fell. Further, they argue that even if the Court were to find a triable issue as to the existence of a defect, the step or platform was open, obvious and not inherently dangerous to the extent that not only was there no duty to warn, but no duty to make the premises any safer than it was. In opposition, plaintiff contends that both defendants were aware of the hazardous condition of the platform/step which was the proximate cause of plaintiff’s fall. Plaintiff argues that 645 LLC’s building manager’s at least monthly visit to and inspection of the property provided it with the requisite notice of the hazardous platform/step and established their right of re-entry. Plaintiff also argues that both defendants’ failure to keep any inspection, repair or complaint records, despite its regular presence at the premises, estops it from contesting notice. Plaintiff further maintains that 645 LLC’s claim that it was an out of possession landowner is belied by the facts that it would arrange for outside vendors to make repairs to the property consisting of residential and commercial tenants. Plaintiff relying, inter alia, on the affidavit of an engineer, Anthony Mellusi criticized 645 LLC’s expert, Schwalje’s assertion that the platform/step was properly designed and constructed. Plaintiff also contends that Schwalje’s affidavit is of no value since it was based on an inspection made more than one year after the accident and fails to state that the condition of the platform/step, at the time of his inspection was comparable to its condition at the time plaintiff was caused to fall and be injured. Plaintiff’s claim, as stated in both her deposition and within her Bills of Particular, is that the platform/step was undersized relative to the door sweep and not that the platform/step height was improper. Mellusi opines that the door leaf, that is, the swing of the door, extended beyond the length of the step, in violation of Administrative Code of City of NY section 27-371 (h), which requires that “[t]he floor on both sides of all exit and corridor doors shall be…at least equal to the width of the door leaf.” Plaintiff contends that her testimony specifying where she fell, together with her engineer’s affidavit about the defects, dangerous conditions, and code violation at that site, are sufficient to raise factual questions to preclude an award of summary judgment. Defendant, 645 LLC established entitlement to judgment as a matter of law by submitting expert opinion and documentary evidence showing that it neither created the alleged hazardous condition of the step on which plaintiff fell nor had actual or constructive notice of it. 645 LLC proved through expert opinion that the subject step was neither defective nor in violation of any code. Moreover, the deposition testimony of the property manager established that there were no prior complaints or incidents involving the same step. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted the affidavit of Mellusi who claimed that the door is 13″ wider than the platform in violation of the Administrative Code of the City of New York. However, Mellusi’s affidavit did not indicate where along the platform he found his measurements, nor did he include any photographs showing how the door extended over the platform, despite the fact that his affidavit stated that he utilized a camera to conduct his inspection. Contrary to plaintiff’s contention, this claim is refuted by the clear photographic evidence showing the door width is clearly less than the platform width. As the evidence presented to this Court clearly shows the door did not extend over the edge of the platform, plaintiff’s claims of an unsafe condition or code violation fails. Accordingly, it is hereby ORDERED that the motion of defendant, 645 LLC (Motion Seq. 1) for an order granting summary judgment dismissing all claims and cross-claims against it is granted; and it is further ORDERED that the motion of defendant, 645 LLC (Mot. Seq. 1) for an order granting it summary judgment on its cross-claims for indemnification against defendant 1701 Grocery Corp is denied; and it is further ORDERED that the motion of defendant 1701 Grocery Corp. (Mot. Seq. 2) for summary judgment dismissing the claims and cross claims against it is granted. This is the Decision and Order of the Court. Dated: March 3, 2022
