ADDITIONAL CASES Chatham 22 Realty Corp., Plaintiff v. TNB, LLC d/b/a Tria Restaurant, Defendant; Third-Party 595054/2019 The following e-filed documents, listed by NYSCEF document number (Motion 001) 50, 51, 52, 53, 54, 71, 74, 76, 82 were read on this motion to/for JUDGMENT — SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 002) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 75, 77, 78, 79, 80, 81 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, it is Plaintiff Stacy Pagan commences this personal injury suit against defendant Chatham 22 Realty Corp. (Chatham) and defendant Cathay Bank (Bank), and subsequently defendant TNB LLC (TNB), in an amended complaint, as parties allegedly in possession and control of the subject premises. Pagan alleges sustaining serious and permanent injuries after tripping and falling due to an uneven, raised and defective condition on the sidewalk outside 22-23 Chatham Square — a triangular corner adjacent to the subject premises’, on January 27, 2017. Pagan claims defendants’ negligence and reckless ownership, maintenance and control of the premises and sidewalk is the proximate cause of the accident. Bank, owner of the adjoining property designated as 23 Chatham Square, denies the allegations and claims Pagan’s injuries were caused solely by her own conduct, thus, her claims are barred. Chatham also denies most of the allegations in the complaint, but admits that it owned the subject building and leased portions of it on the date in question. Like Bank, Chatham argues Pagan’s injuries, if any, are caused in whole or part by her own culpable conduct, thus, any acts or omissions by Chatham are not the proximate cause of Pagan’s injuries. TNB also denies a majority of the allegations in Pagan’s complaint and asserts that any injuries Pagan may have sustained at the time and place mentioned in the complaint are caused either by her negligence and/or of third-party plaintiff Chatham. Further, TNB denies the allegations of Chatham’s third-party complaint and reiterates its denials of Pagan’s complaint claiming any injuries she may have sustained were not due to any fault or negligence of TNB. In fact, TNB asserts that the alleged accident did not occur on its property. In Motion Sequence 001, TNB, the first-floor commercial tenant of the subject premises, moves for summary judgment dismissing Pagan’s complaint in its entirety. TNB asserts that the affidavit of its expert surveyor, Robert Castillo, conclusively shows the alleged accident did not occur on or in front of the property TNB leases or occupies. Also, a photograph marked by Pagan at her deposition makes clear the alleged incident did not occur on the sidewalk in front of or close to the property TNB occupies, but was eight feet away from the portion of the sidewalk in front of the premises TNB occupies, located at 22 Chatham Square (NYSCEF Doc. Nos. 51, 82). As such, TNB notes it is entitled to summary judgment dismissing Pagan’s complaint and all cross-claims as it has no responsibility to maintain or make repairs to the area of the claimed accident, hence, is not negligent. TNB’s owner, Nikolas Protofanousis, testified he notified landlord about a condition on the sidewalk nearly three years before the accident and someone was sent to “put a patch on it,” but indicated the area of the sidewalk depicted in photographs presented was the landlord’s side and TNB “had nothing to do with it” (NYSCEF Doc. No. 80). Protofanousis also states he never received any notices of violation from the City of New York. TNB notes a breach of duty of care is a precondition to any finding of negligence, and as none of the Espinal v. Melville Snow Contractors 98 N.Y. 2d 136, exceptions apply herein, TNB does not owe a duty of care to Pagan (NYSCEF Doc. No. 51). Chatham commenced a third-party action against TNB LLC alleging that if Pagan was caused to sustain injuries through any negligence other than her own, it was due to TNB’s carelessness or negligence. Further, in Motion Sequence 002, Chatham moves for summary judgment dismissing Pagan’s complaint and all cross-claims against it in this action seeking damages for personal injuries Pagan allegedly sustained as a result of defendants’ negligence. Chatham alleges it never undertook any repairs to the sidewalk area Pagan identified as the location of her accident. Further, Chatham notes its surveyor, Saeid Jalilvand, concluded within a reasonable degree of certainty that the location of the defect Pagan identified where her accident occurred “is entirely outside the property boundaries of 22 Chatham Square.” (NYSCEF Doc. Nos. 60, 81). Additionally, Chatham notes Bank does not dispute the conclusion two separate surveyors reach, to wit, the sidewalk defect on which Pagan allegedly tripped is approximately three feet outside Chatham 22′s property line (NYSCEF Doc. Nos. 59, 81). Chatham argues common law liability for a sidewalk condition may only rest with it if it created the defect or made special use of that area of the sidewalk, stating evidence shows Chatham did not make special use, nor undertake any repairs to the area of the sidewalk in question any time before Pagan’s accident (NYSCEF Doc. No. 59). Thus, Chatham claims it neither owed nor breached a duty to Pagan. Pagan argues defendants fail to meet their burden or eliminate triable issues of fact concerning liability under New York City Administrative Code §7-120, and on the issue of lack of notice by failing to proffer any evidence when the accident site was last inspected or cleaned before her fall. Pagan notes photographs of the alleged defective condition still raise an issue of triable fact for a trier of fact to resolve and are sufficient to defeat defendants’ summary judgment motions. Chatham, in its attorney affirmation in reply, notes §7-210 only places a duty on a property owner if the sidewalk at issue abuts its property, and claims it has no duty of maintenance or repair under the common law or §7-210 as the subject area where Pagan tripped and fell is over three feet outside Chatham’s property line (NYSCEF Doc. No. 78). TNB, in its attorney’s affirmation in support, notes Bank’s facility manager, John Huang, testified that he visits Bank at 23 Chatham Square at least once a month, that he follows a check list and walks around to check the neighboring places outside and inside, as well as check the sidewalk that the bank is responsible for (NYSCEF Doc. No. 51). Bank, in its attorney’s affirmation in opposition, contends Chatham’s motion to dismiss must be denied as they failed to eliminate material issues of fact regarding their liability for the accident (NYSCEF Doc. No. 59). The Court disagrees, finding both surveyors’ reports conclusively establish that the site of Pagan’s accident was outside the property line of Chatham’s property or abutting sidewalk. Cathay Bank claims the deposition of TNB’s owner, Protofanousis, shows Chatham made repairs to the subject area, or, at the very least, raises triable issues of fact. Again, the Court disagrees as the statements do not unequivocally evidence any repairs Protofanousis knew Chatham made or their precise location, finding the deposition testimony further admits he was “just guessing or assuming” who made the repairs without seeing or knowing who actually made them. Additionally, the Court finds Chatham’s principal, Kong Lui, unequivocally testified Chatham never undertook any repairs to the sidewalk area Pagan identified as the location or cause of her accident NYSCEF Doc. No. 81). Further, as the surveyors’ determinations make clear, Chatham’s property is outside the boundary line of where Pagan indicated she tripped and fell, and no liability attaches. While the Court finds both TNB and Chatham present evidence establishing the situs of the area in which Pagan allegedly tripped and fell, according to two distinct surveyors’ reports, lay outside TNB’s and Chatham’s property lines, Pagan’s attorney’s affirmation in opposition raises material questions of fact, including a failure by Castillo to explain from what point of the defect he measured, what size the defect was or the surface area it covered. Additionally, as Pagan’s counsel states, the survey submitted by TNB may conflict with the survey submitted by Chatham regarding the area of the defect, and collaterally as to all other measurements attested to by both surveyors. In a case similar to the one herein, the Court held genuine issues of material fact existed as to whether dimensions of alleged defects on a sidewalk, or cement patch, were trivial and if the abutting owner had constructive notice of the alleged hazard (Mscichowski v. 601 BBA, LLC, 134 A.D. 3d 996, 22 N.Y.S. 3d 506 (2d Dep’t 2015)). That Court ruled where dimensions of an alleged defect were disputed, and the descriptions and photographs were inconclusive, existence of a defect was rightly a question of fact for the jury. Given the existence of conflicting evidence and questions of fact, the Court rules summary judgment to either TNB or Chatham is inappropriate, denying both parties’ motions. Accordingly, for the foregoing reasons, it is hereby ORDERED that TNB’s motion for summary judgment dismissing Pagan’s complaint (Mot. Seq. 001) is denied; and ORDERED that Chatham’s motion for summary judgment dismissing Pagan’s complaint and all cross-claims asserted against it (Mot. Seq. 002) is denied. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: April 11, 2022
