Hervas v. LLSJ Realty Corp.
| Citation | 2013 NY Slip Op 31969 |
| Decision Date | 22 August 2013 |
| Docket Number | Seq. No. 004,Index No. 114399/2008 |
| Court | United States State Supreme Court (New York) |
| Parties | REBECCA HERVAS, Plaintiff, v. LLSJ REALTY CORP., YAN KAN WONG, WONG REALTY CORP., J&E JEWELRY and THE CITY OF NEW YORK, Defendants. |
RECITATION, AS REQUIRED BY CPLR§2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
PAPERS
NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED
1,2 (Ex. A-U).
ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED
ANSWERING AFFIDAVITS
3,4 (Ex. A-I).
Defendants Yan Kan Wong Realty Corp., i/s/h/a Yan Kan Wong and Wong Realty, (collectively "Wong"), move pursuant to CPLR§ § 3211 and 3212, for summary judgment dismissing plaintiff's claims, all cross-claims and counterclaims, with prejudice as a matter of law. Plaintiff opposes.
After a review of the papers presented, all relevant statutes and case law, the Court denies the instant motion.Factual and procedural statement:
The instant action arises from an incident that occurred on November 16, 2007, on the sidewalk and adjoining pedestrian ramp abutting the premises located at 201 Canal Street, New York County. Plaintiff alleges that she was walking on the sidewalk of Mulberry Street, when she was propelled to the ground as a result of the "defective condition of concrete," thereby sustaining personal injuries.
Wong moves for summary judgment, alleging that the condition which allegedly caused plaintiff to fall was part of the pedestrian ramp, also known as a curb cut, and not the sidewalk. Therefore, it argues that it is actually the City who owes a duty to plaintiff, based on the fact that the City is responsible for maintaining pedestrian ramps as a matter of law.
Factual and Procedural Background:
Plaintiff commenced the action by filing a Summons and Complaint in Queens County, Supreme Court, on February 20, 2008. Issue was joined by Wong's filing of its Answer with cross-claims on April 1, 2008. Co-defendant LLSJ Realty Corp., ("LLSJ"), served its Answer with cross-claims on or about March 11, 2008. Co-defendant J&E Jewelry, ("J&E"), served its Answer with cross-claims on or about March 15, 2008.
On August 14, 2008, LLSJ commenced a third party action against the City of New York ("City"). On September 17, 2008, Wong commenced a second third party action against the City, who then served its Answer and cross-claims on the first third party action on September 12, 2008, and to the second third party action on October 2008. Plaintiff commenced an action against the City by filing a Summons and Complaint in New York County Supreme Court on October 17, 2008. The City filed its Answer to plaintiff's action on or about November 18, 2008.
Consequently, pursuant to the Order of Justice Howard Lane, dated April 1, 2009, the Queen's and New York County actions were consolidated. Venue was then transferred to New York County. On September 3, 2008, plaintiff testified at a hearing pursuant to General Municipal Law §50-h. At said hearing, plaintiff testified in pertinent part, that she was walking along Mulberry Street, towards Canal Street with her friend Linda Thorp Halford, when she tripped over a raised area. She also testified that this particular area was approximately a half a foot away from the curb to Mulberry Street. Plaintiff identified that location of the accident on a photograph which she was shown during the hearing. ( Aff. in Support, Ex. M). Similarly, during her deposition held on March 11, 2011, she testified that she tripped near the curb while approaching the intersection of Canal and Mulberry. Additional depositions were taken of non-party witness Linda Thorp-Halford, and of Eduard Velez, building manager for Wong.
On January 10, 2011, Wong served a Notice to Admit on the City. Wong argues that because the City failed to respond to same, the statements contained therein are deemed admitted pursuant to CPLR§ 3123(a). Additionally, Wong served the City with the affidavit of Scott E. Derector, a licensed engineer. In his affidavit, Mr. Derector stated that upon conducting an on-site inspection of the subject sidewalk and pedestrian ramp, he concluded that the plaintiff had tripped over a raised piece of concrete which was clearly a part of the pedestrian ramp. (Id. Ex. U). Thereafter, the Note of Issue was filed on September 12, 2012, and the within motion was served and filed on October 25, 2012.
Positions of the parties:
The gravamen of Wong's argument is that it cannot be held responsible for plaintiff's injury because it had no duty to maintain the pedestrian walkway, in that such duty falls squarely on theCity. Therefore, the case necessitates dismissal as a matter of law. Wong argues that plaintiff clearly fell over the raised pedestrian ramp at the location where the ramp meets the sidewalk. It refers the Court to the photographs referenced above. Additionally, Wong refers to the aforementioned affidavit of Mr. Derector, as well as to the statements contained in its Notice to Admit, in further support of its position that plaintiff tripped over the raised side of the pedestrian walkway and not a lowered sidewalk flagstone, as she now maintains.
In her Affirmation in Opposition, plaintiff argues that contrary to Wong's position, it was not a raised pedestrian ramp, but rather a lowered sidewalk that caused her to trip. In support of her position, she retained William Marietta, Ph.D., a certified safety specialist, who inspected the subject area on or about November 16, 2012. After his inspection, and after a review of the various photographs taken of the subject area, (which are appended to the report), Marietta issued his report. ( Aff. in Opp. Ex. E).
In his report, Marietta opines that the sidewalk immediately adjacent to the ramp had settled, causing it to become uneven with the pedestrian ramp, which ultimately caused plaintiff's injury. He additionally opines that had the ramp actually been raised, the bottom of it would not have been even with the street. However, it should be noted that all the photographs reviewed by the Court indicate that the bottom of the ramp was, in fact, even with the street. Additionally, Marietta takes strong issue with Derector's findings. Plaintiff argues that at the very least, Marietta's testimony raises issues of fact sufficient to defeat summary judgment. Plaintiff also notes that Marietta determined that, following repairs made to the area by the City, Mr. Velez admitted that he also made subsequent repairs to the area on Wong's behalf.
Plaintiff argues that although repairs made after the accident are not admissible as to the question of negligence, they are relevant to the question of who exercised control and ownership over the ramp and its surrounding area. (Id.p.6). Thus, plaintiff argues that pursuant to Administrative Code §7-201, Wong is responsible for the sidewalk adjacent to the ramp.
In response, Wong argues that plaintiff now impermissibly asserts an entirely new theory of liability. Wong adamantly maintains that this potential theory of liability was never raised in plaintiff's Bill of Particulars. Thus, pursuant to CPLR§ 3043 (a)(3), she is precluded from raising it now. Wong proffers Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] and Crawford v. Smithtown Cent. School Dist., 91 A.D.3d 899 [2d Dept. 2012] ), as support for its position that plaintiff cannot now raise, for the first time, in response to his motion, a new theory of liability. This is especially true given the protracted delay in presenting it. Wong insists that it must be deemed insufficient to raise a triable issue of fact. Wong further argues that the photographs relied upon by Marietta are also inadmissible because they were never exchanged during discovery. (Aff. in Reply, ¶30).
Moreover, Wong argues that Marietta's affidavit is inadmissible because plaintiff failed to "disclose the expert until the filing of his affirmation in opposition, after the note of issue and certificate of readiness had been filed," (Id. ¶ 19; see also Scott v. Westmore Fuel Co. Inc., 96 A.D.3d 520[1st Dept. 2012]). Finally Wong argues that Marietta's opinion must be dismissed as it is merely speculative and conclusory. (Id. ¶¶ 21-29).
Conclusions of Law:
"The proponent of a summary judgment motion must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Dallas-Stephensonv. Waisman, 39 A.D.3d 303, 306 [1st Dept. 2007], citing Winegrad v. New York Univ. Med. Or., 64 N.Y.2d 851, 853 [1985]). Once the proponent has proffered evidence establishing a prima facie showing, the burden then shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1989]; People ex rel Spitzer v. Grasso, 50 A.D. 535 [1st Dept. 2008] ). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture or speculation" ( Morgan v. New York Telephone, 220 A.D.2d 728, 729 [2d Dept. 1985]). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied ( Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Grossman v. Amalgamated Hous. Corp., 298 A.D.2d 224 [1st Dept. 2002]).
Wong argues that pursuant to Administrative Code§ 7-201, it can not be held responsible for the defects of the pedestrian ramp which caused plaintiff's injuries.
Section 7-201 states in pertinent part:
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