Kemp v. 1000 Broadway, LLC
| Decision Date | 21 December 2022 |
| Docket Number | Index No. 514687/16,Motion Seqs. 16,17,18,19 |
| Parties | Constance Kemp, Plaintiff, v. 1000 Broadway, LLC, Brooklyn GC, LLC, Braga Contracting Corp., and DYB Lopez Construction Corp., Defendants. Braga Contracting Corp., Third-Party Plaintiff, v. DYB Lopez Construction Corp., Third-Party Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
The following e-filed papers read herein: NYSCEF Doc Nos.
In this personal injury action, defendant Brooklyn GC, LLC (BGC) moves (in motion sequence [mot. seq.] sixteen) for an order, pursuant to CPLR 3212, granting summary judgment in its favor and dismissing plaintiff Constance Kemp's (plaintiff) claims and all cross claims against it; and granting summary judgment in its favor on its contractual indemnification cross claim against defendant/third-party plaintiff Braga Contracting Corp. (Braga).
Defendant/Third-Party defendant DYB Lopez Construction Corp. (DYB) separately moves (in mot. seq. seventeen) for an order, pursuant to CPLR 3212, granting summary judgment in its favor and dismissing plaintiff's claims, all cross claims and the third-party action against it.
Braga again moves (in mot. seq. eighteen) for an order, pursuant to CPLR 3212, granting summary judgment in its favor and dismissing plaintiff's claims and all cross claims and counterclaims against it; and granting summary judgment in its favor on its third-party complaint based upon common law indemnification and contribution against DYB and its common law indemnification and contribution cross claims against BGC and DYB.
1000 Broadway, LLC (Broadway LLC) moves (in mot. seq. nineteen) for an order, pursuant to CPLR 3212, granting summary judgment in its favor and dismissing plaintiff's claims and all cross claims against it; and granting summary judgment on its contractual law indemnification cross claims against Braga and DYB.
In 2014, Broadway LLC, the owner of a corner lot in Brooklyn located at 865 Willoughby Avenue and 1000 Broadway (Property), hired BGC as its general contractor for construction on the Property, including the erection of a six-story mixed residential and commercial use building (Building). When the Building was nearing completion, BGC hired Braga as its subcontractor to replace the sidewalks abutting both the Willoughby and Broadway sides of the Building. Thereafter, Braga subcontracted DYB to perform the sidewalk work, which was completed at the end of October 2015. Broadway LLC then hired a property management company, All Year Management NY, Inc. (AYM) in or about October 2015; and the Building's first residential lease was executed on November 19, 2015 with a lease term of December 1, 2015 through November 30, 2016. The sidewalks abutting the Building were inspected and approved by the New York City Department of Buildings (DOB) on December 29, 2015. DOB subsequently issued a certificate of occupancy (C of O) on February 22, 2016.
Two months later, on April 21, 2016 between 9 p.m. and 9:30 p.m., plaintiff alleges that she was walking on the sidewalk in front of 865 Willoughby Avenue in Brooklyn, which she described as a construction site, when her left foot entered a square-shaped opening in the sidewalk resulting from a missing drainage grate, causing her to fall onto the sidewalk and sustain injuries. According to the ambulance report, emergency medical services (EMS) workers arrived at the accident location, stated as "Broadway/Ditmars St - Brooklyn, NY," at 9:06 p.m. and left the scene at 9:14 p.m. to transport plaintiff to hospital.
Plaintiff commenced this action by the filing of a summons and complaint against Broadway LLC on August 22, 2016. Issue was joined by the filing of Broadway LLC's answer with affirmative defenses on November 10, 2016. Plaintiff subsequently moved to amend her complaint to add Braga and BGC as defendants on September 27, 2018. By order dated November 5, 2018, plaintiff's motion was granted; and Braga and BGC were added to this action as defendants.[1] Thereafter, Broadway LLC, BGC and Braga filed their answers to the amended complaint with affirmative defenses and cross claims on December 3, 2018, March 6, 2019 and March 20, 2019, respectively. Next, on April 17, 2019, Braga commenced a third-party action against DYB. Issue was joined by the filing of DYB's answer with counterclaims and cross claims on August 16, 2019. Plaintiff then served a second amended complaint to add DYB as a defendant on August 28, 2019. Broadway LLC, DYB, Braga and BGC filed their answers to the second amended complaint with cross claims on September 2, 2019, September 20, 2019, October 9, 2019 and November 8, 2019, respectively.
On January 21, 2022, BGC filed its summary judgment motion. In support of its motion, BGC submitted the affidavit of licensed engineer and architect Julien Flander (Flander Affidavit), which is undated but notarized on December 29, 2015; its attorney affirmation; its contract with Broadway LLC dated August 1, 2015; its subcontract with Braga dated June 9, 2014; Braga's invoice dated October 31, 2015; DYB's invoice dated October 31, 2015; plaintiff's deposition transcripts; the transcript of its deposition witness; the transcripts of the deposition witnesses for Broadway LLC, Braga and DYB; the Building's first residential lease; and the Building's C of O dated February 22, 2016.
The accident occurred on Willoughby Avenue between 9 p.m. and 9:30 p.m. on the sidewalk in front of property, which plaintiff now knows as 865 Willoughby Avenue in Brooklyn. She did not see the address on the date of the accident. Although the streetlights were on, she described the area as dark. The property is a corner lot with one side on Willoughby Avenue and the other on Broadway. She described the accident location as an active construction site, where a new residential building was being erected. However, on the date of the accident, the building was only partially erected, and the property primarily consisted of a big open dirt-filled space surrounded by "boards." She did not recall the last time she walked by the accident location before the date of the accident. She took a different route when traveling earlier that day. She did not recall seeing any signs depicting the names of the construction companies working at the site during the time period of the accident; and she did not know the name of the property owner or management company. In describing the accident, she stated that she was walking straight down Willoughby Avenue towards Broadway at a normal pace, looking straight ahead, when her left foot suddenly entered a square hole in the concrete sidewalk, causing her left leg to enter the opening to just above her kneecap and the left portion of her body to fall onto the sidewalk. She did not see the opening before the accident. The rest of the sidewalk was not in good condition, as there was "tar and other things" on the sidewalk. Plaintiff does not know when, how or by whom the opening was created. She never complained about the opening prior to the accident and does not know of any such complaints or of any prior accidents at the accident location. Plaintiff's daughter and a female pedestrian, the name of whom she never learned, witnessed the accident. The female pedestrian called 911 for an ambulance. Plaintiff remained on the ground until the ambulance arrived approximately 7 minutes later and took her to the hospital. A couple of months after the accident, plaintiff returned to the accident location to look at the opening. When she returned the building construction had been completed and the opening was covered by a grate. She did not recall seeing any words or engravings on the grate at that time.
David Friedman (Friedman), part owner and President of All Year Management NY, Inc. (AYM), was produced as Broadway LLC's deposition witness. According to Friedman, Broadway LLC is the owner of the corner property known as 865 Willoughby Avenue and 1000 Broadway in Brooklyn. The property was improved by a six-story mixed use residential and commercial building, for which Broadway LLC hired AYM as the property management company in September or October 2015, when construction of the Building was concluding. Joe Goldman, one of the owners of Broadway LLC, is part owner of AYM. AYM was not involved in any portion of the construction at the Property. Broadway LLC hired BGC, as its general contractor for the construction project. BGC then hired subcontractors to perform the work, including Braga, who was the cement subcontractor hired to replace the sidewalks abutting the Building, and NBE Plumbing (NBE), the plumbing subcontractor hired to install the drain pipe in the sidewalks. He did not know when NBE began and completed their work. He has never heard of DYB.
When AYM was first hired as property manager, the Building was fully erected and ready for tenants to move in. Friedman did an initial walk-through of the inside and outside of the Property. Upon doing so, he inspected the sidewalks abutting the Building to ensure that they were in decent condition and without issue. There are two sidewalk drains with grates approximately five feet from the façade of the Building on Willoughby...
To continue reading
Request your trial