Flood v. W. 151 St. Assocs.
| Decision Date | 25 October 2021 |
| Docket Number | Index 152548/2018 |
| Citation | 2021 NY Slip Op 32108 (U) |
| Parties | BRIAN FLOOD, JENIFER FLOOD Plaintiff, v. WEST 151 STREET ASSOCIATES LLC. PARK AVENUE SOUTH MANAGEMENT LLC, Defendants. Motion Seq. No. 002 |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
Francis A. Kahn III J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 41, 42, 43, 44, 45, 46, 47 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
This action arises out of an incident that occurred on May 19 2015 when Plaintiff Brian Flood ("Flood") sustained injuries at a property located at 609 West 151st New York New York, owned by the Defendant West 151 Street Associates LLC ("West 151"). Defendant Park Avenue South Management LLC ("Park Avenue") was retained by West 151 as property manager for the premises and it served in that capacity on the day of the accident. Plaintiff claims he tripped and fell on a drain cover located at the premises in the line of duty as a New York City Firefighter while responding to a call reporting a gas leak.
As to the specifics of the occurrence, Plaintiff Brian Flood testified that his company received a call at 9:00 pm on the day in question and that upon arrival at the location he proceeded to the rear of the building. He claimed the area in question was dark, but that he had a NYFD issued flashlight with him. Plaintiff averred that in accordance with established procedures, he was surveying the building when he"lost his footing" and fell to the ground. Plaintiff averred that after falling he saw the cause was a drain with its cover lying adjacent. As the mechanics of the occurrence, Plaintiff expounded that something gave way with a "tin" sound and his right foot went into a hole. He offered that from his "perspective" the drain cover was ". in size. Plaintiff identified the drain in photographs displayed at the deposition and annexed to Defendants' motion. Regarding the hole, Plaintiff claimed there was a square hole beneath where the grate was supposed to be which was 4" to 6" deep and a drainpipe 5" to 6" in diameter was located at the bottom. After the accident, Plaintiff claims he moved the grate back into place with a tool he was carrying.
Plaintiff commenced this action alleging causes of action for: [1] common-law negligence and [2] violation of General Municipal Law §205-a by reason of Defendants' violation of New York City Administrative Code §§27-118, 27-126, 27-127, 27-128, 27-217, 27-370[h], 27-371, 27-373, 27-380, 27-979, 27-980, 27-981, New York City Housing Maintenance Code §§27-2005 and 27-2045 and Multiple Dwelling Law §§53, 78, 301. In the bill of particulars, Plaintiffs claim that Defendants' negligence arose from, inter alia, a loose and/or improperly secured grate and a poorly or dimly lit premises. Plaintiff Jenifer Flood pled a cause of action for loss of consortium. Issue was joined by Defendants collectively.
Now, Defendants move for summary judgment dismissing Plaintiffs complaint claiming they neither created nor had notice of the alleged defective condition. Defendants also argue that General Municipal Law §205-a and the alleged supporting statutory and code violations cited by Plaintiff do not sustain a claim. As to the loss of consortium claim, Defendants posit it is not a valid claim under General Municipal Law Section §205-a. Plaintiffs oppose all aspects of the motion.
At the outset, the motion is procedurally defective since the moving and reply papers fail to comply with sections 202.8-b[c] and 202.8-g of the Uniform Rules for Trial Courts [22 NYCRR]. The Court will, in this instance only, overlook the defect since the opposition papers suffer from the same flaws.
While it is ultimately the Plaintiffs burden at trial to establish a prima facie against the Defendants, on a motion for summary judgment it is incumbent upon the moving party to present evidence in admissible form showing their entitlement to judgment in its favor as a matter of law (see Zuckerman v City of New York, 49 N.Y.2d 557). Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposition papers (see Alvarez v Prospect Hospital, supra at 324; see also Smalls v AJI Industries, Inc., 10 N.Y.3d 733, 735 [2008]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce proof, in admissible form, which establish the existence of material issues of fact (see Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]).
It is well established that an owner of a premises has a duty to keep its property in a "reasonably safe condition, considering all of the circumstances including the purpose of the person's presence and the likelihood of injury", (see Aberger v Camp Loyaltown Inc., 193 A.D.3d 195 [1st Dept 2021]; Fernandez v. Castillo, 165 A.D.3d 1004 [2d Dept 2011]; see also Macey v. Truman, 70 N.Y.2d 918 [1987]). Plaintiffs case is also based on the theory that Defendants' premises was inadequately illuminated at the time of the accident. Property owners do not have a "generalized one-size-fits-all duty" to keep their premises illuminated "during all hours of darkness" (Peralta v. Henriquez, 100 N.Y.2d 139, 145 [2003]; see also Miller v. Consolidated Rail Corp., 9 N.Y.3d 973 [2007]). "However, the Court of Appeals has held that a landowner with knowledge of a condition easily alleviated by illumination may, under some circumstances, have a duty to provide lighting" (Taylor v. Lands End Realty Corp., 93 A.D.3d 1062, 1064 [3d Dept 2012]; see also Yacoub v. 1540 Wallco, Inc., 104 A.D.3d 408 [1st Dept 2013]).
In support of its motion, therefore, Defendants were required to demonstrate prima facie, that one or more of the essential elements of Plaintiff s negligence claim are negated as a matter of law (see e.g. Poon v. Nisanov, 162 A.D.3d 804 [2d Dept 2018]; Nunez v Chase Manhattan Bank, 155 A.D.3d 641 [2d Dept 2017]). As part of that burden, Defendants were required to demonstrate either that they lacked a duty to provide lighting in the area where the accident occurred or that it fulfilled that duty at the time of the accident (see Steed v MVA Enters., LLC, 136 A.D.3d 793 [2d Dept 2016]).
In support of the motion, Defendants submitted the deposition testimony of Maurice McKenzie ("McKenzie"), the owner of Park Avenue. McKenzie testified his responsibilities included overseeing the building, collecting rent, paying bills, complaint intake, repairs and managing the live-in superintendent. McKenzie testified he became aware of this incident when the summons and complaint were served in 2015. McKenzie averred he first inspected the building in 2009 and did so annually or biannually through the time of the accident. As to the drain, he stated that from 2009 until the accident no work was performed on the drain and it has remained in the same condition during that period. Yet, he admitted there was no written log of any of these inspections. With respect to complaints, McKenzie averred that work orders were generated for any complaints and repairs. As to physical inspections, he stated he inspected the drain cover twice in the two to three years prior to his deposition on September 13, 2019 by stepping on the drain and concluded each time that the drain cover was firm and there was no movement. He claimed that the only way to remove the cover would be to use a tool. McKenzie acknowledged that he did not remember when prior to those instances he last physically inspected the drain. As to lighting, McKenzie recognized New York City required lighting at the accident site and believed that 200 watts of illumination was the requisite standard. He claimed there were three light fixtures at the rear of the premises, but noted he was not present at the building on the day of the incident.
While this testimony establishes Defendant Park Avenue did not create the condition that caused Plaintiff to fall, as to actual or constructive notice it is insufficient since McKenzie failed to establish when prior to the accident he last inspected the drain and grate or that the condition could not have been discovered upon a reasonable inspection (see Bessa v. Anflo Indus., Inc., 148 A.D.3d 974 [2d Dept 2017]; Colon v. Bet Torah, Inc., 66 A.D.3d 731 [2d Dept 2009]). As to physical inspection in particular, McKenzie could only remember performing same after the accident. Defendants' reliance on Alig v. Parkway Parking of N. Y., Inc., 36 A.D.3d 980 [3d Dept 2007], for authority is misplaced since in that case Defendant therein submitted, among other things, an "inspection report noting that, while numerous drain covers on the roof of the parking garage were broken, the drain covers in the rest of the parking garage were plugged but not broken." Here, there are no such written records.
On the issue of illumination, McKenzie admitted Defendants had a duty to provide same under New York City requirements but proffered no affirmative proof the area was adequately illuminated on the day of the accident as McKenzie was not present that day (see Baron v. 305-323 E. Shore Rd. Corp., 121 A.D.3d 826 [2nd Dept 2014]; Conneally v. Diocese of Rockville Ctr., 116 A.D.3d 905 [2nd Dept 2014]). Absent such proof any claim that the drain constituted an open and obvious condition fails (id.). Even disregarding the claim of inadequate lighting, an assertion that the drain condition was open and obvious is...
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