Keane v. Petrillo Family Three, LLC

• Decision Date: 10 August 2020
• Docket Number: INDEX 61836/2018,2020-34814
• Court: United States State Supreme Court (New York)
• Parties: MARY KEANE, Plaintiff, v. PETRILLO FAMILY THREE, LLC, HSBC BANK USA, N.A., and VILLAGE OF BRONXVILLE, Defendants. Mot. Seqs. No. 1 & 2

MARY KEANE, Plaintiff,
v.
PETRILLO FAMILY THREE, LLC, HSBC BANK USA, N.A., and VILLAGE OF BRONXVILLE, Defendants.

Mot. Seqs. No. 1 & 2

No. 2020-34814

INDEX No. 61836/2018

Supreme Court, Westchester County

August 10, 2020

Unpublished Opinion

Submit Date: 6/10/2020

DECISION /ORDER

ECKER, J.

In accordance with CPLR 2219 (a), the decision herein is made upon considering all papers filed in NYSCEF regarding the motion of HSBC BANK USA, N.A. (HSBC), ^[1] made pursuant to CPLR 3212, for an order granting summary judgment dismissing the amended complaint of MARY KEANE (plaintiff) and the cross claims of codefendants PETRILLO FAMILY THREE, LLC (Petrillo) and the VILLAGE OF BRONXVILLE (the Village), as asserted against HSBC (Mot. Seq. 1); and the motion of the VILLAGE OF BRONXVILLE, made pursuant to CPLR 3212, for an order granting summary judgment dismissing plaintiff's amended complaint and the cross claims of HSBC and PETRILLO FAMILY THREE, LLC, as asserted against the Village (Mot. Seq. 2).

Plaintiff alleges that she sustained injuries on September 11, 2017 when she tripped and fell in front of the premises known as 72-74 Pondfield Road (hereinafter referred to as the subject premises), located in the Village of Bronxville when her foot got caught on the a broken part of the sidewalk. The subject premises is owned by Petrillo and leased to HSBC, who operates it as a commercial bank. The sidewalk and curb area adjacent to the subject premises are owned by the Village. Plaintiff - a resident of the Village - frequented the bank as a customer. On the date in question, plaintiff avers that she parked her car across the street from the subject premises, and as she was walking the roadway to enter onto the sidewalk, her foot became entangled in a broken part of the curbstone on the edge of the sidewalk where two polyvinyl chloride (PVC) pipes were protruding, thus causing her to fall and sustain personal injuries.

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As a result, plaintiff commenced this personal injury action. Each of the defendants interposed separate answers, asserting cross claims against the other. Following discovery, HSBC and the Village now separately move for summary judgment to dismiss the amended complaint and cross claims as asserted against them, each contending on different grounds that they are not liable for plaintiff's injuries.

CPLR 3212 (b) states in relevant part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "Summary judgment is designed to expedite all civil cases by eliminating from the [t]rial [c]alendar claims which can properly be resolved as a matter of law . . . when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the [t]rial [c]alendar and thus deny to other litigants the right to have their claims promptly adjudicated" (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). Though it is an appropriate tool to weed out meritless claims, summary judgment is a drastic remedy not to be granted where there is any doubt about the existence of a triable issue of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]).

I. HSBC's Motion for Summary Judgment (Mot. Seq. 1)

In support of its motion, HSBC relies upon, among other things, the lease agreements and several lease extensions executed by Petrillo's predecessors and HSBC's predecessors. The first lease agreement, dated June 27, 1978, is for a 20-year term between Edward J. Petrillo as the landlord and Westchester Federal Savings & Loan Association as the tenant. The commercial space rented is for the "southerly one-half of the building" commonly known as 72-74 Pondfield Road. Paragraph 30 of the 1978 lease provides that "Tenant shall at Tenant's expense, keep the demised premises clean and in order, and to the satisfaction of Landlord, and if the demised premises are situated on the street floor, Tenant shall, at Tenant's own expense, make all repairs and replacements to the sidewalks and curbs adjacent [to the subject premises], made necessary by Tenant's use or occupancy of the demised premises, or negligence, and keep sidewalks and curbs free from snow, ice, dirt[, ] and rubbish."

After the lease was renewed in January 1999, it was extended to a 5-year term pursuant to an "Extension of Lease Agreement" dated November 3, 2003 between Hampshire Management, LLC and HSBC.^[2] Paragraph 4 therein provides that "Lessor shall be responsible at Lessor's sole cost and expense for all repairs to . . . the sidewalk in front of the Demised Premises." And Paragraph 8 states that "[e]xcept as otherwise modified or amended herein, all other terms and conditions contained in the [initial 1978 lease agreement] shall remain in full force and effect as if set forth herein at length." None of the

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enumerated paragraphs set forth thereafter that were amended or modified in the 2003 extension agreement are relevant to this action.

Two subsequent lease extensions entered into between Hampshire and HSBC - one in October 2007 followed by one in August 2013 - reflect that the lease term was extended through February 28, 2019. Other than the provisions pertaining to the amount of rent and the option of further extending the lease, the 2013 "Modification and Extension of Agreement" states that "[e]xcept as modified herein, all of the terms, covenants, conditions and provisions of the Lease are hereby ratified, and shall remain in full force and effect."

HSBC argues that it is entitled to summary judgment inasmuch as the Village was required to repair or replace the missing curbstone on the sidewalk; that HSBC had no leasehold duty to repair the PVC drainage pipe on the curbside of the sidewalk; and that HSBC owed no duty to plaintiff to repair the curbstone in the sidewalk where plaintiff fell, as was conceded by Gregory Petrillo, an owner of codefendant Petrillo. Importantly, Petrillo does not deny that it was responsible for the roof drainage system and the PVC pipes protruding at the curb. Rather, Petrillo adopts HSBC's position and supports HSBC's...