ADDITIONAL CASES Chris Rodriguez, Individually, and Chris Rodriguez, as Administrator of the Estate of Juan Rodriguez, Third-Party Plaintiffs v. Marisa Mahadeo, Third-Party Defendant DECISION AND ORDER Upon the papers filed in support of the applications and all the papers filed in opposition thereto, and upon hearing oral arguments, it is hereby: ORDERED that Defendants CAMIL BRKANOVIC and BFLIJA BRKANOVIC’s motion for summary judgment pursuant to CPLR 3212 (Motion #4) is hereby denied; ORDERED that Plaintiff’s cross-motion for summary judgment pursuant to CPLR 3212 (Motion #5) is hereby denied; ORDERED that Defendant CHRIS RODRIGUEZ’s motion for summary judgment pursuant to CPLR 3212 (Motion #6 & #7) is hereby denied; and it is further ORDERED that Third-Party Defendant MARISA MAHADEO’s motion for summary judgment pursuant to CPLR 3212 (Motion #8) is hereby granted. BACKGROUND AND PROCEDURAL HISTORY Plaintiff originally filed her Summons and Complaint on May 10, 2021, originally bringing the action against only Defendants CAMIL BRKANOVIC and BFLIJA BRKANOVIC (hereinafter “Brkanovic Defendants”). The Plaintiff alleges that on March 15, 2021, the Plaintiff was walking on Victory Boulevard in Staten Island when she tripped and fell in the vicinity of 61-63 Victory Boulevard and 65-67 Victory Boulevard due to a sunken portion of the sidewalk. The Brkanovic Defendants filed their Answer on August 31, 2024. The Request for Judicial Intervention was filed on September 20, 2021. The Plaintiff was deposed on December 13, 2021. Camil Brkanovic was deposed on December 14, 2021. The case was certified on February 28, 2022, and an initial Note of Issue was filed on March 1, 2022. The Plaintiff and Brkanovic Defendants both moved for summary judgment, and this Court denied both motions (#1 and #2) on June 17, 2022, finding triable issues of fact regarding ownership and maintenance over the sidewalk. The parties stipulated to allow the Plaintiff to amend the caption to allow for additional parties to be added. On July 26, 2022, the Plaintiff filed an amended Summons adding Defendants Juan Rodriguez and Chris Rodriguez (hereinafter “the Rodriguez Defendants”). The Brkanovic Defendants filed a motion to vacate the Note of Issue on August 3, 2022. The Rodriguez Defendants filed an Answer on September 9, 2022. This Court granted the Brkanovic Defendants’ motion on September 27, 2022, allowing for discovery to continue. The Rodriguez Defendants filed a third-party Summons and Complaint against Third-Party Defendant Marisa Mahadeo on February 22, 2023. Third-Party Defendant Mahadeo (hereinafter “Mahadeo”) filed an Answer on July 11, 2023. Defendant Chris Rodriguez was deposed on November 16, 2023. Mahadeo was deposed on November 17, 2023. A second Note of Issue was filed on January 2, 2024. The Brkanovic Defendants filed their instant motion (#4) on January 25, 2024. Plaintiff filed her instant cross-motion (#5) on February 13, 2024. The Rodriguez Defendants filed their instant motion (#6 & #7) on March 1, 2024. Marisa Mahadeo filed her instant motion (#8) on March 1, 2024. The Court heard oral arguments on the motions on April 4, 2024, and the Court reserved decision. ARGUMENTS The Brkanovic Defendants argue that based upon the deposition testimony of the Plaintiff and a Surveyor Affidavit of Christopher Henn, sworn to on January 25, 2024, the location of the defect that caused the Plaintiff’s fall was abutting the Rodriguez Defendants’ property. Therefore, they allege that they had no duty with respect to that area of the sidewalk. The Brkanovic Defendants further argue that the Plaintiff has failed to demonstrate that the Brkanovic Defendants violated any of the New York City Rules and Regulations or New York City Administrative Codes alleged in their Bill of Particulars. Finally, the Brkanovic Defendants’ argue that any claims the Plaintiff has regarding falling due to a height differential in the subject sidewalk, the claimed condition was a control joint, not a defect. The Plaintiff argues in her cross-motion that she has established a prima facie case of negligence against the Defendants. The Plaintiff asserts that a hazardous condition clearly existed at the time of her accident, in that the raised portion of the sidewalk was over the half-inch differential allowed by industry standards. Plaintiff further argues that the condition has existed since 2013 based on Google Maps photo submitted support of the motion, therefore showing that condition existed for long enough for the Defendants to have constructive notice of it. Finally, the Plaintiff argues that the sidewalk condition was the proximate cause of her fall, and that the affirmative defenses asserted by the Defendants are without merit. In opposition to the Brkanovic Defendants’ motion and in furtherance of their own, the Plaintiff argues that Brkanovic Defendants had a duty to the Plaintiff pursuant to Section 7-210 of the Administrative Code of the City of New York (see Xiang Fu He. V. Troon Mgt. Inc., 34 N.Y.3d 167, 171 [2019]). Plaintiff further argues that the Brkanovic Defendants’ duty was not limited to the abrupt vertical edge itself but also to the two sidewalk flags on either side of the two abutting properties. Further, Plaintiff argues specifically that the Brkanovic Defendants are liable for the sidewalk defect because they used the subject sidewalk for their special use and benefit. Finally, the Plaintiff argues that the Brkanovic Defendants’ subsequent remedial repair of the sidewalk is evidence of control of the subject sidewalk. The Rodriguez Defendants argue that they are entitled to summary judgment against the Mahadeo based on the lease agreement between the parties. As it pertains to sidewalk maintenance, the lease agreement provides, “[i]f this lease covers premises, all or a part of which are on the ground floor, the Tenant further agrees to keep the sidewalks in front of such ground floor portion of the demised premises clean and free of obstructions, snow and ice.” They further argue that for the same reasons, the Plaintiff’s complaint must be dismissed as it pertains to them, as the only proper Defendants are the Brkanovic Defendants and Mahadeo. Finally, the Rodriguez Defendants argue that the lease provided that Mahadeo was to indemnify the Rodriguez Defendants as landlord for: “injury to persons, occurring in or about the demised premises, by reason of any existing or future condition, defect, matter or thing in said demised premises or the property of which the premises are a part, or for the acts, omissions or negligence of other persons or tenants in and about said property. The Tenant agrees to indemnify and save the Landlord harmless from all claims and liability for losses of or damage to property, or injuries to persons occurring in or about the demised premises.” Mahadeo argues in their motion that nowhere in the lease agreement between themselves and the Rodriguez Defendants does it provide that Mahadeo is responsible for the maintenance and/or repairs of the sidewalk area where the Plaintiff fell. Therefore. Mahadeo argues that the Rodriguez Defendants, as owners of the building, had a non-delegable duty to maintain and repair the subject sidewalk. LEGAL STANDARD In order to prevail on a motion for summary judgment, the moving party bears the initial burden of establishing, via evidence in admissible form, their entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). If the movant makes the requisite prima facie showing, the burden shifts to the opposing party to provide evidence in admissible form establishing factual issues which would preclude summary judgment (see id.) A defendant moving for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition or had actual or constructive notice of the condition for a sufficient length of time to answer and remedy it (see Petersel v. Good Samaritan Hospital of Suffern NY, 99 A.D.3d 880 [2nd Dept 2016]). In order to have constructive notice, “a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” Kramer v. SBR & C, 62 A.D.3d 667, 669 [2nd Dept 2009], citing Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]). “In order to meet its burden on the issue of lack of constructive notice, the Defendant must offer some evidence as to when the accident site was last cleaned or inspected.” Nelson v. AMF Bowling Ctrs., Inc., 206 A.D.3d 929, 930 [2nd Dept 2022]; see Rivera v. Roman Catholic Archdiocese of N.Y., 197 A.D.3d 744 [2nd Dept 2021]). Section 7-210 of the Administrative Code of the City of New York provides, in relevant part: “a. It shall be the duty of the owner of real property abutting any sidewalk…to maintain such sidewalk in a reasonably safe condition. “b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk…shall be liable for any injury to property or personal injury…proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include…the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (See Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 171 [2019]). “Section 7-210 unambiguously imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure” Sangaray v. W. Riv. Assoc., LLC, 26 N.Y.3d 793, 799 (2016). Generally, the “provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party” (Dalder v. Incorporated Vil. of Rockville Ctr., 116 A.D.3d 908, 909-910 [2nd Dept 2014]). However, 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,” a tenant may be liable to a third party (Abramson v. Eden Farm, Inc., 70 A.D.3d 514, 514 [1st Dept 2010]; see Bonilla v. Bangert’s Flowers, 132 A.D.3d 618, 619 [2nd Dept 2015]). DISCUSSION The Court finds that there are issues of fact sufficient to deny the motion of the Brkanovic Defendants. The Court finds, based on the submissions of both parties including the surveys by Charles Ingulli Jr. and Christopher Henn, as well as the expert affidavit of Rudy Sherbansky submitted by the Brkanovic Defendants, that there are questions of fact as to the Brkanovic Defendants’ control over the subject sidewalk defect, and to what extent they may be liable for the Plaintiff’s fall. Specifically, the Court finds that the surveys submitted by Plaintiff and the Brkanovic Defendants demonstrate that the sidewalk defect in question abuts the physical border between the two relevant properties, creating an issue of fact as to the Brkanovic Defendants liability (Sangaray v. W. Riv. Assoc., LLC, 26 N.Y.3d 793, 799 [2016]). For the same reasons, the Court is denying Plaintiff’s motion for summary judgment, as there are issues of fact regarding the liability of both Defendants based on the location of the sidewalk defect along the property edges, and how any use of the subject sidewalk by the individual Defendants impacts their liability (see Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 171 [2019]). The Court is further denying the Rodriguez Defendants’ motion for summary judgment. The lease agreement between the Rodriguez Defendants and Mahadeo provides that Mahadeo was responsible for “[keeping] the sidewalks in front of such ground floor portion of the demised premises clean and free of obstructions, snow and ice.” This language is silent as to placing any obligation on Mahadeo as tenant to repair or maintain the subject sidewalk outside of the premises. This Court does not find that this language of the lease agreement is comprehensive and exclusive enough to displace the Rodriguez Defendants’ obligations as owner to maintain and repair the sidewalk (see Brady v. 2247 Utica Ave. Realty Corp., 210 A.D.3d 621, 622 [2nd Dept 2022]). The Court further finds that the lease agreement does not require Mahadeo to indemnify the Rodriguez Defendants for any injuries occurring outside of the premises itself. While the lease agreement’s language of “in or about the demised premises” could be interpreted to include the area of the sidewalk where the Plaintiff fell, this Court finds that such an indemnity clause cannot extend to areas where the lease agreement does not place an obligation on the tenant (see Paperman v. 2281 86th St. Corp., 142 A.D.3d 540, 541 [2nd Dept 2016], quoting Abramson v. Eden Farm, Inc., 70 A.D.3d 514 [1st Dept 2010]. Therefore, the Court is denying the Rodriguez Defendants’ motion for summary judgment and granting Mahadeo’s motion for summary judgment. This constitutes the decision and order of the Court Dated: May 17, 2024
