The following e-filed documents, listed by NYSCEF document number (Motion 002) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73 were read on this motion to/for LEAVE TO FILE. DECISION ORDER ON MOTION In December 2021, plaintiff Bruce Kilmer commenced this personal injury action against 99 John’s Market Place, INC. (d/b/a Jubilee Market), 99 John St., LLC (as owner of Jubilee Market and of the premise on 99 John St., New York, New York, hereinafter “the premise”), FirstService Residential New York, Inc., and Rockrose Development L.L.C. (as the premise’s property managers). Plaintiff alleges that he sustained serious injuries after suffering a trip and fall caused by improperly displayed Christmas trees on the sidewalk outside defendants’ premise. In this motion sequence (002), plaintiff moves for leave to amend the complaint pursuant to CPLR 3025, for summary judgment as to liability pursuant to CPLR 3212 on said amended complaint, and for summary judgment pursuant to that same provision dismissing defendant’s affirmative defense of plaintiff’s own culpable conduct. Defendants oppose the motion in its entirety and also cross-move for summary judgment dismissing the complaint. For the following reasons, the branch of plaintiff’s motion to amend is denied, the branch of the motion for summary judgment on liability is denied as to his nuisance claim but granted as to his negligence claim, and the branch of the motion dismissing defendant’s affirmative defense is denied. Defendants’ cross-motion for summary judgment is denied in its entirety. BACKGROUND On November 26, 2021, plaintiff alleges that he, his wife, their son, and a few others were walking back to their hotel when they approached Jubilee Market. Pictures taken from that night1 reveal that Jubilee Market had erected an A-shaped wooden structure to display its Christmas trees directly next to the street curb. (NYSCEF doc. no. 48, photo A, B; photos A-F.) Jubilee Market’s set up allowed pedestrians to pass through a several-foot-wide pathway between the store and the stand. (Id.) According to plaintiff, as he came upon the pathway, he was walking a few paces behind his wife and son when he felt his right foot make contact with the base of a tree that was protruding from the stand, causing him to fall. (See id at photo c [depicting several tree bases extending beyond the wooden stand's frame].) Plaintiff suffered extensive injuries from his fall, including a broken femur that required surgery and resulted in various medical complications. Approximately three weeks after suffering the fall, plaintiff commenced the instant action, asserting premise liability and negligence-based causes of action against defendants. In this motion sequence, plaintiff moves to amend the complaint pursuant to CPLR 3025 to add a public nuisance cause of action and for summary judgment pursuant to CPLR 3212 on all his causes of action.2 Defendants oppose and cross move for summary judgment. DISCUSSION Leave to Amend the Complaint Leave to amend pleadings shall be freely giving absent a showing of prejudice or surprise. (Briarpatch, L.P. v. Briarpatch Film Corp., 60 AD3d 585, 585 [1st Dept 2009]; CPLR 3025 [b].) Here, defendants do not suggest any source of prejudice or surprise that would result from permitting plaintiff to add a new cause of action for public nuisance. Nor does it seem like defendants could allege prejudice or surprise considering plaintiff specifically used the term “nuisance” when serving his response to defendants’ bill of particulars. (NYSCEF doc. no. 93, pleadings.) Instead, they argue only that laches precludes plaintiff from amending the complaint but that doctrine is, by itself, insufficient to defeat a motion to amend. (See Kocourek v. Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011] ["Mere delay is insufficient to defeat a motion for leave to amend"]; Mohammed by Ahmad v. City of New York, 242 AD2d 321, 321 [2d Dept 1997].) Nonetheless, as demonstrated below, since plaintiff pleads a cause of action for public nuisance based upon the violation of a statute, and since the Court finds that the cited statute does not support a public nuisance claim, plaintiff’s proposed cause of action is “palpably insufficient and clearly devoid of merit.” (Perotti v. Becker, Glynn, Melamed & Muffly LLP, 82 AD3d 495, 499 [1st Dept 2011].) Accordingly, plaintiff’s motion for leave to amend is denied. Motion for Summary Judgment on Public Nuisance Claim To provide the proper context to plaintiff’s summary judgment motion, the Court below reviews the relevant case law provided by the Court of Appeals, as guided by the Restatement (Second) of Torts, and New York Administrative Code §19-136, the statute upon which plaintiff’s public nuisance claim rests. Under New York law, a public nuisance is an unreasonable interference with a right common to the general public. (See 532 Madison Ave Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 NY2d 280, 292 [2001]; Restatement [Second] of Torts, §821[B].) Such an unreasonable interference may be found where (1) private conduct interferes with the public’s use of a public place, (2) such conduct endangers or injures the property, health, safety, or comfort of a considerable number of people, and/or (3) such conduct is proscribed by statute or ordinance. (City of New York v. Smokes-Spirits.Com, Inc., 12 NY3d 616, 626 [2019], citing 532 Madison Ave, 96 NY2d at 292; Restatement [Second] of Torts §821 [B].) New York courts recognize that the unlawful obstruction of a public street may be considered a public nuisance. (Id. at 292-293; Graceland Corp. v. Consolidated Laundries Corp., 7 AD2d 89, 93 [1st Dept 1958].) Because a public nuisance is considered to be a violation of a collective right, the general rule is that actions to correct or ameliorate the nuisance may only be initiated and maintained by proper governmental authorities. (Copart Industries, Inc. v. Consolidated Edison Co., 41 NY2d 564, 568 [1977]; Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314, 334 [1983] ["Invasions of rights common to all of the public should be left to be remedied by action by public officials".]) However, private actors may bring public nuisance actions but only if they can demonstrate they suffered a special injury that is different in kind from the general inconvenience suffered by the community at large. (Burns Jackson Miller, 59 NY2d at 334; Restatement [Second] of Torts, §821 [C], comment a ["A private individual has no tort action for the invasion of the purely public right, unless his damage is to be distinguished from that sustained by other members of the public…Redress of the wrong to the entire community is left to its duly appointed representatives."]) The Restatement (Second) further clarifies that “when the public nuisance causes personal injury to the plaintiff…the harm is normally different in kind from that suffered by other members of the public and the tort action may be maintained.” For example, in Murphy v. Leggett, 164 NY 121 [1900], the Court of Appeals found that a plaintiff could recover for personal injuries she individual sustained against the defendants who had obstructed the parts of the sidewalk on West Broadway and forced plaintiff to use an alternative, but apparently dangerous side path.3 (Id. at 126.) Further, under Delaney v. Philhern Realty Holding Corp. (280 NY 461, 466 [1939]), public nuisance claims can be divided into two categories: those involving negligence, or “want of due care,” and those claims of “absolute nuisance or nuisance per se, that is a nuisance based on an act which is unlawful even if performed with due care.” (Id.; Driscoll v. New York City Transit Authority, 53 AD2d 391, 395 [1st Dept 1976].) Where the latter category is concerned, for a defendant to avoid liability, he must demonstrate acts on the plaintiff’s part that “amount to being informed of the dangers in his path and then being willing to encounter them.” (Id.) As to the statute, NYC Administrative Code §19-136, entitled “Obstructions,” regulates the selling of goods and merchandise on sidewalks outside a business’s storefront. In pertinent part, it provides, “It shall be unlawful for any person to hang or place any good, wares, or merchandise…at a greater distance than three feet in front of his or her house, store or other building…for the purpose of selling or displaying any merchandise.” (NYC Admin Code §19-136 [a].) Subsection (4) then provides an exemption for venders selling Christmas trees: “Storekeepers and peddlers may sell and display coniferous trees during the month of December…but in such case…a passageway shall be kept open on the sidewalk so obstructed for the free movement of pedestrians (emphasis added).” (§19-136 [4].) Applicability to Plaintiff’s Nuisance Cause of Action Under the above-described applicable law, plaintiff may have sufficiently pled a cause of action for negligence-based public nuisance. In alleging that defendants did not safely keep open a pathway between the wooden stand and its storefront for pedestrian traffic, plaintiff identifies an obstruction that, if proven, interferes with the public’s use of a public sidewalk and/or endangers the health, safety, and comfort of the community. Further, in demonstrating that he suffered personal injuries, he has pled a special injury that is different in kind from the mere inconvenience suffered by the community at large, to wit a narrower public space for pedestrians to walk. (See Murphy, 164 NY at 126 ["If the owner should obstruct a street so as to constitute a nuisance and a person was injured by reason thereof, a recovery could be had"]; cf. Wall St. Garage Parking Corp. v. N.Y. Stock Exch., Inc., 10 AD3d 223, 228 [1st Dept 2004] [finding that a plaintiff who pled economic loss from the imposition of a security zone in lower Manhattan did not plead a specialized injury since every business in the area suffered the same injury].) However, his proposed amended complaint only describes an absolute nuisance and strict liability (NYSCEF doc. no. 53 at 27-29, second amended complaint). On this cause of action, he is not entitled to summary judgment. The Court recognizes that, in displaying its Christmas trees in November, defendants violated §19-136 [4]. Yet such a violation is insufficient to demonstrate absolute nuisance or nuisance per se. Several factors are critical to the Court’s analysis. First, §19-136 (h) designates the Department of Consumer and Worker Protection, the Department of Health and Mental Hygiene, and the Department of Sanitation — all of whom are governmental authorities that may maintain abatement and prosecution actions to remedy public nuisances on public premises — as proper entities to enforce §19-136 (a) and (a) (4). Sections 19-149 and 19-150 of the same code create civil and criminal penalties for the violation of any and all Title 19, Chapter 1 violations, while §19-151 reiterates that the above-described entities and “other city agencies who are designated by the commissioner” “shall have the power to enforce the provisions of this subchapter.” (See NYC Admin. Code §§19-149-19-151.) That the administrative code permits public remediation of all Title 19, Chapter 1 violations but nowhere describes the violation of any section, including selling Christmas trees outside §19-136 (a) (4)’s statutory timeframe, as creating the predicate for public nuisance actions involving private plaintiffs is instructive. In applying the general rule (i.e., that government entities are otherwise obligated to bring actions to ameliorate nuisances), the statute is silent as to the existence of a private right of action to enforce rights under §19-136 (a) (4). (See Smokes-Spirits.Com, Inc., 12 NY3d at 626-628 [2009] [explaining that (1) a city Legislature may enact laws deeming certain activities public nuisances that permit both public and private enforcement; (2) where a statute does not specifically deem activities a public nuisance, such laws do not necessarily contain a private enforcement right by means of tort action; and (3) to determine whether a statutory command permits private enforcement through a public nuisance action, the courts' inquiry borrows from cases concerning implied private right of action and asks whether the recognition of a private right would promote the legislative purpose].) Second, as to this legislative purpose, interpreting §19-136 (a) (4) to create a statutory predicate for a private enforcement action — thereby attaching strict liability for any violation — would effectively eliminate the need to demonstrate the most important aspects of a public nuisance claim (an unreasonable interference with a public right or danger to the public) in cases alleging personal injury from Christmas tree stands from late November, when such stands throughout the city first appear, through December 1st, when the applicable statute applies. As described, strict liability would attach based entirely on when the defendant erected their Christmas tree stand. This result appears antithetical to the city Legislature’s intent, which, even if it had reason to limit Christmas tree selling to Christmas, could not have intended to create different standards for public nuisance actions for a November 30 claim and a December 1st one. Since it clearly did not believe the display of Christmas trees is inherently and at all times a public nuisance, an absolute or per se nuisance test applicable specifically and only, to selling in November, would cabin the need for plaintiff to demonstrate that defendants’ conduct actually interfered with the public use of a public place or endangered the public’s health, safety, or comfort to December only. (See 532 Madison Ave, 96 NY2d at 292; Restatement [Second] of Torts §821 [B].) Accordingly, under these circumstances, since a statutory violation is insufficient to demonstrate a public nuisance, plaintiff’s application for summary judgment on this cause of action is denied.4 Motion for Summary Judgment on Negligence Cause of Action Plaintiff is entitled to partial summary judgment on his negligence/premise liability cause of action.5 Landowners and their tenants are liable to pedestrians injured by defects in the sidewalk where the owner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk. (Staruch v. 1328 Broadway Owners, LLC, 111 AD3d 698, 698-699 [2d Dept 2013]; see also O’Brien v. Prestige Bay Plaza Dev. Corp., 103 AD3d 428, 429 [1st Dept 2013] [holding defendant not liable under a special use theory, since it made no special use of the public sidewalk and there was no evidence that the alleged defect was caused by its use of the sidewalk].) Here, plaintiff asserts that defendants are liable under such special-use theory given defendants used the sidewalk for its Christmas tree display, Jubilee Market’s manager Young Kim admitted in his deposition that the trees protruding from the stand created an unacceptable safety hazard to pedestrians (NYSCEF doc. no. 49 at 37-39, Kim’s deposition testimony), and Rockrose Development’s property manager, Justin Poy, admitted that he would have instructed such trees to be placed inside the stand’s frame to ensure they did not block the sidewalk (NYSCEF doc. no. 51 at 29, Poy deposition testimony). In opposition, defendants contend that summary judgment is unwarranted at this juncture because the trees and stand constitute “open and obvious” conditions that were not inherently dangerous. (NYSCEF doc. no. 62 at 4-6, def. memo. of law.) The duty to maintain a premise in a reasonably safe condition may sometime include the duty to warn of dangerous conditions. Where the premise contains a dangerous condition, the property owner will be relieved only of a duty to warn where the condition is open and obvious. He or she will not be relieved from the general duty to exercise reasonable care to ensure their premise is safe to those who use it. (See Cupo v. Karfunkel, 1 AD3d 48, 52-53 [2d Dept 2003] ["Where plaintiff has presented evidence that a dangerous condition exists on the premise, the burden shifts to the landowner to demonstrate that he or she exercised reasonable care under the circumstances…Evidence that the dangerous condition was open and obvious cannot relieve the owner of this burden."]) Put differently, the open-and-obvious doctrine will only preclude liability where plaintiff is injured by a condition that is open and obvious and is not inherently dangerous. (Capozzi v. Huhne, 14 AD3d 474, 475 [2d Dept 2005] ["There is no duty to protect or warn against an open and obvious condition which, as a mater of law, is not inherently dangerous (emphasis added, internal quotations omitted)."]) Here, defendants argue that “there is no proof in the record that there was anything specific about the design or condition of the Christmas tree [stand] or its set up” that is inherently dangerous and that “the trunk of the Christmas tree sticking out from a wooden structure does not rise to the level of a ‘defective or reasonably unsafe condition.’” (NYSCEF doc. no. 62 at 17, 42.) These statements, however, are contradicted by the deposition testimony described supra from Jubilee Market’s Young Kim and Rockrose Development’s Justin Poy, who either describe the conditions of the stand as “not acceptable” “because it might cause a safety hazard” “from tripping” (NYSCEF doc. no. 37 at 37) or describe how, as manager, he would have “told [his employees] to put the [trees] inside the framing so that there’s no blockage of the sidewalk” so no one gets hurt and there’s no tripping hazard. (NYSCEF doc. no. 39 at 29.) This testimony, the photos that plaintiff submitted revealing the dark, unilluminated conditions on the sidewalk created by the (at least partial) blockage of the streetlight6, and the fact that defendants put forth no evidence of their own that the trees and the stand were kept in a reasonably safe condition — these considerations demonstrate as a matter of law the inherent unsafe conditions on the premise. The case law that defendants cite to suggest that the conditions here do not rise to the level of being considered unsafe all involve conditions that are on an order of magnitude less dangerous. (See Matthews v. Vlad Restoration Ltd., 74 AD3d 692, 692-693 [1st Dept 2010] [a scaffolding bar that prevented pedestrians from crossing not inherently dangerous, especially where claim that the scaffold did not comply with industry custom and practice was unsubstantiated]; Schulman v. Old Navy/Gap, Inc., 45 AD3d 475, 476 [1st Dept 2007] [metal bracket on a clothing rack that plaintiff ran into not inherently dangerous]; Burk v. Canyon Rd. Rest., 60 AD3d 558, 559 [1st Dept 2000] [staircase that did not contain debris or water, and was illuminated not inherently dangerous]; Philips v. Paco Lafayette LLC, 106 AD3d 631, 632 [1st Dept 2013] [in all material respects an ordinary concrete curb not inherently dangerous, even though plaintiff suggest the unpainted curb created "optical confusion"]; Samantha R. v. New York City Hous. Auth., 117 AD3d 600, 601 [1st Dept 2014] [otherwise ordinary wicket fence on defendant's property an open, obvious, and not inherently dangerous condition]; Schwartz v. Kings Third Ave. Pharmacy, Inc., 116 AD3d 474, 475 [defendant entitled to judgment as matter of law where display rack was open and obvious, defendant testified she saw the display rack, photos demonstrated it was placed in a reasonably safe location, and "the base did not protrude into the isle."]) In Carlos Rodriguez v. City of New York (31 NY3d 312, 318 [2018], the Court of Appeals held that to obtain partial summary judgment where the defendant alleges that the plaintiff was contributorily negligent, plaintiff need not demonstrate the absence of his own negligence. Rather, under Rodriquez, the question of plaintiff’s comparative fault is to be considered only when addressing the amount of damages owed to plaintiff. (Id.) As such, defendants’ assertion that plaintiff’s own negligence caused his trip and fall does not preclude the Court from granting plaintiff partial summary judgment on liability. Plaintiff’s argument in support of dismissing defendant’s affirmative defense altogether is unavailing. Plaintiff testified that as he approached defendants’ stand, he was aware of the presence of the stand and the Christmas trees (NYSCEF doc. no. 47 at 63, plaintiff’s deposition testimony.) Thus, the trier of fact may conclude that a reasonably vigilant person in plaintiff’s position should have seen the base of the tree that he tripped on and would have avoided it. As such, plaintiff has failed to eliminate triable issues of fact as to whether he was comparatively negligent. His citation to Paget v. PCVST-DIL, LLC (186 AD3d 1162, 1163 [1st Dept 2020]) is in apposite. There, the defendants argued that, had plaintiff been looking down as opposed to straight ahead, he would have perceived the obstruction that cause his injury. In rejecting this argument, the First Department found defendants had submitted no evidence that plaintiff could have avoided his injury in this way because the complained-of obstruction was under feet of snow. There is no similar evidentiary problem here, as nothing was covering or obstructing plaintiff’s view of the base of the tree that he tripped over. Accordingly, plaintiff is not entitled to dismiss this affirmative defense. Accordingly, for the foregoing reasons, it is hereby ORDERED that the branch of plaintiff Bruce Kilmer’s motion for leave to serve an amended complaint pursuant to CPLR 3025 is denied; and it is further ORDERED that the branch of plaintiff’s motion for partial summary judgment on liability pursuant to CPLR 3212 is denied as to his cause of action for public nuisance but granted as to his cause of action for negligence; and it is further ORDERED that the branch of plaintiff’s motion for summary judgment pursuant to CPLR 3212 dismissing defendants 99 John’s Market Place, INC., 99 John St., LLC, FirstService Residential New York, Inc., and Rockrose Development L.L.C.’s affirmative defense of plaintiff’s comparative negligence is denied; and it is further ORDERED that defendants’ cross motion for summary judgment pursuant to 3212 is denied; and it is further ORDERED that counsel for plaintiff shall serve a copy of this order, along with notice of entry on all parties, within twenty (20) days of entry. This constitutes the decision and order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
