Harrison v. 160-01 Jam. Ave. Corp.
| Docket Number | Index No. 517306/2017 |
| Decision Date | 29 June 2023 |
| Citation | 2023 NY Slip Op 32414 (U) |
| Parties | PAUL HARRISON, Plaintiff, v. 160-01 JAMAICA AVE. CORP., DOST NY INC., JAMAICA CENTER BUSINESS IMPROVEMENT ASSOCIATION d/b/a JAMAICA CENTER BUSINESS IMPROVEMENT DISTRICT and ATLANTIC MAINTENANCE CORP., Defendants. |
| Court | New York Supreme Court |
At an I.A.S Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at Civic Cent~Brooklyn, New York, on the 29th day of June 2023.
Recitation as required by CPLR § 2219(a), of the papers considered in the review of Defendant 160-01 Jamaica Avenue Corp, and Defendant Jamaica Center Business Improvement Association d/b/a Jamaica Center Business Improvement District's motions.
NYSCEF Nos
Notice of Motion and Affidavits/Affirmations Annexed............................
150-157; 158-186
Affirmation in Opposition Papers........................
192-194, 226; 188-191
Reply to Opposition Papers..................................
Upon the foregoing papers, Defendant, 160-01 Jamaica Avenue Corp. ("160-01 Jamaica Ave. Corp."), moves (MS#8) for an order, pursuant to CPLR § 3212, granting summary Judgment, dismissing Plaintiff, Paul Harrison's ("Plaintiff') complaint and all crossclaims against it. Defendant, Jamaica Center Business Improvement Association d/b/a Jamaica Center Business Improvement District ("Jamaica Center BID"), moves (MS#9) for an order, pursuant to CPLR § 3212, granting summary judgment, dismissing Plaintiff s complaint and all cross-claims against it and granting it summary judgment on its claim for contractual indemnification from Defendant Atlantic Maintenance Corp. ("Atlantic").
Plaintiff commenced this action to recover damages for personal injuries he sustained on November 6, 2016 after he allegedly tripped and fell on the sidewalk located at 160-01 Jamaica Avenue, in Queens, New York ("Paver Sidewalk"), due to a missing red brick paver. It is undisputed that on the date of the incident, Defendant 160-01 Jamaica Ave. Corp, was the title owner of 160-01 Jamaica Avenue, Queens, New York ("the Premises") and, Defendant, DOST NY Inc. ("Dost") was the tenant in possession of the Premises. It is also uncontested that on the date of the incident, contracts were in effect between Defendant Jamaica Center BID and the City of New York Department of Small Business Services ("City Contract")[1] and between Defendant Jamaica Center BID and Defendant Atlantic ("Maintenance Agreement")[2].
In support of its summary judgment motion, Defendant, 160-01 Jamaica Ave. Corp, submitted a portion of Defendant Dost's witness, Kamal Raza's ("Mr. Raza") July 9, 2020 deposition transcript. Mr. Raza[3] testified that in 2016, Defendant Dost was operating a Taco Bell/Pizza Hut at the Premises and that he only observed employees from Taco Bell/Pizza Hut and Jamaica Center BID cleaning the Paver Sidewalk. Mr. Raza further testified that Dost did not receive any complaints from customers or violations from the City of New York for conditions regarding the Paver Sidewalk. Defendant 160-01 Jamaica Ave. Corp, also submitted Defendant Atlantic's witness, David Goldberg's ("Mr Goldberg") January 28, 2021 deposition transcript. Mr Goldberg[4] testified that he negotiated the Maintenance Agreement between Defendant Jamaica Center BID and Defendant Atlantic for Defendant Atlantic to provide supplemental sanitation services. Mr. Goldberg further testified that Defendant Atlantic's employees would make minor brick paver repairs at the sole request of Defendant Jamaica Center BID[5]. Additionally, Defendant 160-01 Jamaica Ave. Corp., submitted the August 6, 2020 deposition testimony of its own witness, Raymond Levy ("Mr. Levy"). Mr Levy testified that he served as the property manager for the Premises in 2016 and that unless there were issues that arose requiring his immediate attention, he would routinely pass by the Premises once every couple of months. Mr. Levy further testified that prior to November 2016, he d.oes not recall ever observing any missing brick pavers or any repair work on the Paver Sidewalk when he passed by the Premises. Based on the deposition testimonies of Mr. Raza, Mr. Goldberg and Mr. Levy, Defendant 160-01 Jamaica Ave. Corp, contends that it was not aware of any missing pavers on the Paver Sidewalk and that, since Defendant Dost was the tenant-in-possession of the Premises on the date of incident, Defendant 160-01 Jamaica Ave. Corp, is not diable for the condition of the Paver Sidewalk.
Plaintiffin opposition to Defendant 160-01 Jamaica Ave. Corp.'s motion, referenced the May 3, 2019 deposition testimonies of Defendant 160-01 Jamaica Aye. Corp.'s witness, Mr. Levy, and Defendant Dost's witness, Mr. Raza. While Mr. Levy testified that he believed it was the City of New York that was responsible for the maintenance of the Paver Sidewalk, Mr. Raza testified that it was the landlord's responsibility for maintaining the red pavers on the Paver Sidewalk. Additionally, during Mr. Levy's May 3, 2019 deposition, after being shown the lease agreement between Defendant 160-01 Jamaica Ave. Corp, and non-party VDF Enterprises Inc. ("Lease Agreement"), he testified that he was uncertain as to whether it was in effect on the date of loss and whether the Lease Agreement had been assigned in its entirety to Defendant Dost[6]. Based on their testimony, Plaintiff argued that a question of fact exists as to which entity was ultimately responsible for maintaining the sidewalk at the time of the incident at issue.
In opposition to Defendant 160-01 Jamaica Ave. Corp.'s motion, Defendant Jamaica Center BID contends that under the terms of the City Contract, it may provide supplemental services, "but shall not be obligated to repair, replace or refurbish for a single item, incident or instance of damage or disrepair"[7]. Defendant Jamaica Center BID maintains that the City Contract was not intended to supplant the property owners' legal duties and responsibilities. Thus Defendant 160-01 Jamaica Ave. Corp., the owner of the premises adjacent to the Paver Sidewalk, has a non-delegable duty to maintain the paver sidewalk.
In support of its motion, Defendant Jamaica Center BID submitted, inter alia, the City Contract, the Maintenance Agreement and its witness, Alfred Green's[8] ("Mr. Green") January 11, 2021 deposition transcript. Based on the City Contract and Mr. Green's testimony, Defendant Jamaica Center BID argued that it was only authorized to provide "supplemental services" and to enter into subcontracts to carry out certain provisions of said supplemental services. The supplemental services Defendant Jamaica Center BID contracted to provide, did not obviate Defendant 160-01 Jamaica Ave. Corp.'s responsibility and non-delegable duty as the owner of the premises. Mr. Green specifically testified that pursuant to the City Contract, Defendant Jamaica Center BID, could hire a third-party company, and it did in fact hire Defendant Atlantic, to handle the brick [paver] maintenance for the district[9]. According to Mr. Green, the maintenance of brick pavers included replacing missing or broken brick [pavers]. In addition, Defendant Jamaica Center BID, submitted Defendant Atlantic's witness, Mr. Goldberg's January 11, 2021 deposition transcript. Mr. Goldberg testified that Defendant Atlantic failed to provide any notice about loose bricks to Defendant Jamaica Center BID. Defendant Jamaica Center BID contends that based on Defendant Atlantic's failure to inform Defendant Jamaica Center BID of any loose brick pavers in the area, Defendant Jamaica Center BID did not have actual or constructive notice of the alleged sidewalk condition.
With respect to that branch of Defendant Jamaica Center BID'S motion which seeks summary judgment on its contractual indemnification claim against Defendant Atlantic, Defendant Jamaica Center BID argued that pursuant to the indemnification clause contained in the Maintenance Agreement, Defendant Atlantic is required to indemnify Defendant Jamaica Center BID against "any claim, loss, liability, cost or expense . . that may be sustained by them by reason of. . . (c) any injury to persons . . . arising out of performance of Services, or as a result of any act or omission of them." Defendant Jamaica Center BID maintains that since Plaintiffs claim allegedly arose out of Defendant Atlantic's failure to perform services, it is contractually required to indemnify Defendant Jamaica Center BID.
In opposition to Defendant Jamaica Center BID's motion Defendant Dost referenced the City Contract and Defendant Jamaica Center BID's witness, Mr. Green's January 11, 2021 deposition transcript. Defendant Dost contends that under the City Contract, the supplemental services Defendant Atlantic contracted to provide, included the "repair and maintenance of.. . sidewalk pavement. . ." Mr. Green further confirmed during his testimony that the maintenance of the red brick pavers in the area where the Paver Sidewalk is located was part of Defendant Jamaica Center BID's duties and responsibilities. Based on the City Contract and Mr. Green's testimony, Defendant Dost argued that Defendant Jamaica Center BID contractually assumed maintenance responsibilities over the Paver Sidewalk. Additionally, Defendant Dost referred to Defendant Atlantic's witness, Mr. Goldberg's January 28, 2021 deposition testimony. Mr. Goldberg testified that pursuant to the Maintenance Agreement, Defendant Atlantic would, at the request of Defendant Jamaica Center BID, evaluate the condition of the brick [paver] and repair if the repair was minor. Defendant Dost maintained that based on Mr. Goldberg's...
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