Mass v. CGJG Realty Corp.

• Decision Date: 19 September 2012
• Docket Number: Index No. 105338/2010
• Citation: 2012 NY Slip Op 32411
• Parties: LAWRENCE MASS, Plaintiff, v. CGJG REALTY CORP., and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., SANG UI YI d/b/a SUPREME DELI Defendants.
• Court: New York Supreme Court

2012 NY Slip Op 32411

LAWRENCE MASS, Plaintiff,
v.
CGJG REALTY CORP., and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
SANG UI YI d/b/a SUPREME DELI Defendants.

Index No. 105338/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Dated: September 19, 2012

LOUIS B. YORK, J.:

Motion sequence numbers 3 and 4 are consolidated for disposition and resolved as follows:

In this personal injury action, plaintiff, Lawrence Mass, alleges injuries to his face and right knee when he tripped and fell on the sidewalk adjacent to a deli supermarket in Queens located at 82-65 Parsons Boulevard. All parties agree that plaintiff fell over a hole depressed half an inch from the sidewalk that was either a hole with metal plating or uncovered metal valve that possibly transported water. Plaintiff contends that three defendants' negligence contributed to the existence of the harmful defect. Defendants are: Sang Ui Yi, d/b/a Supreme Deli ("Supreme Deli"), the managers and commercial lessees of the property adjacent to the site of the incident; CGJG Realty Corp. ("CGJG"), the owner of that property and its commercial lessor; and Consolidated Energy Co. ("Con Ed"), the energy company that allegedly installed and maintained the valve. Plaintiff seeks special damages amounting to $3,000 in hospital expenses and lost earnings, as well as damages for loss of enjoyment of life.

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Plaintiff initially commenced two separate actions, one against defendants CGJG and Con Ed in New York County, Mass v. CGJG Realty Corp. and Con. Ed. Co. of NY. Index No. 105338/10 (Sup. Ct. N.Y. Cnty.), and a second against Supreme Deli in Queens County, Mass v, Sang Ui Yi d/b/a Supreme Deli, Index No. 16048/11 (Sup. Ct. Qns. Cnty.). Plaintiff filed the note of issue around October 14, 2011.

Plaintiff also moved to consolidate the two actions in this Court. The motion originally was returnable on November 16, 2011, but after several adjournments it finally reached this Court for oral argument on March 8, 2012. In an order dated April 20, 2012 this Court granted the motion, as the two actions deal with the same incident and facts.

Although the Note of Issue had been filed by this time, the Court also directed the parties to appear for a status conference. The conference, which took place on May 16, 2012, resulted in an order which vacated the note of issue on the consent of all parties and allowed for limited discovery related to the demands to and from Supreme Deli, scheduled a deposition of Supreme Deli for August 16, 2012, extended the discovery deadline to August 30, 2012, and extended the note of issue deadline to September 10, 2012.

Before the issues of consolidation and discovery had been resolved, the parties made additional motions: Supreme Deli, which already had moved to consolidate, now sought to intervene; in addition, its motion sought summary judgment dismissing all claims against it. CGJG separately moved for summary judgment dismissing all claims against it. This opinion addresses the two motions currently before the Court. Plaintiff and Con Ed oppose both of the summary judgment applications.

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Initially, the Court finds that the prong of Supreme Deli's motion that seeks to intervene is moot due to the April 20, 2012 order which granted consolidation. The Court already noted this during the oral argument of the current motions. Therefore, all that remains are Supreme Deli and CGJG's requests for summary judgment. For the reasons below, the Court denies both parties' applications.

1. Standard for Summary Judgment Applied to the Instant Action:

In support of its request for summary judgment, CGJG argues that plaintiff fails to raise any triable issue of material fact that necessitates a fact-finder. This Court applies the established standard that construes the facts in the light most favorable to the plaintiff in order to prevent inappropriately casual grants of summary judgment motions. See Haselev v. Abels, 84 A.D.3d 480, 482, 922 N.Y.S.2d 393, 395 (1st Dep't 2011); accord Segree v. St. Agatha's Convent, 77 A.D.3d 572, 572-573, 909 N.Y.S.2d 364, 364 (1st Dep't 2010). Any outstanding issues of fact warrant the denial of summary judgment. See Udoh v. Inwood Gardens. Inc., 70 A.D.3d 563, 565, 897 N.Y.S.2d 12, 14 (1st Dep't 2010). However, if there are no triable issues of fact, courts grant summary judgment motions even in negligence cases. See, e.g., Alvord v. Muller Contsr. Co., 46 N.Y.2d 276, 281, 413 N.Y.S.2d 309, 312 (1978): see also Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133 (1974) (policy against categorically barring summary judgment in negligence cases).

For the reasons below, and viewing the facts in the light most favorable for plaintiff, this Court concludes that plaintiff has raised triable issues of fact concerning CGJG's potential liability. Therefore, it denies CGJG's motion for summary judgment. Favorable facts for plaintiff include: that the valve was uncapped for some time before

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the incident, that CGJG owed a duty of care and could therefore be liable for negligence, and that CGJG was the owner of the premises where the incident occurred.

2. Is Summary Judgment premature?

Plaintiff argues that it would be premature to grant summary judgment at this stage in litigation because he has not had the opportunity to obtain discovery from Supreme Deli. CGJG and Supreme Deli oppose this argument. As CGJG argues, a party that signs a note of issue cannot contest summary judgment motions on the ground that its adversary has not complied with discovery demands because both parties agree that discovery is complete. See Melcher v. City of New York, 38 A.D.3d 376, 377, 832 N.Y.S.2d 186, 187 (1st Dep't, 2007). Therefore, plaintiff is precluded from raising this argument now as it relates to CGJG.

The Court reaches a different conclusion with respect to Supreme Deli. As the Court already explained, plaintiff filed the note of issue pursuant to Court order in October 2011, before this Court granted consolidation. At that time, the Queens County action in which Supreme Deli was defendant was relatively new and no discovery had been conducted. Therefore, as the Court already has stated, the Court scheduled a status conference at which the note of issue was vacated and discovery relating to Supreme Deli was scheduled. As plaintiff explains, the action against Supreme Deli was relatively new and Supreme Deli had not been deposed by the time of the motion. See Blech v. West Park Presbyterian Church, 97 A.D.3d 443, 443, 948 N.Y.S.2d 273, 275 (1st Dept. 2012)(defendants' motions for summary judgment premature where case was in early stage of discovery and depositions had not been held).

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Moreover, Supreme Deli's argument - that it could have been named in the original case against CGJG and Con Ed - is insufficient to waive discovery against it. For one thing, there is no suggestion that the action against Supreme Deli was untimely. For another, subsequent to the current motion, the parties agreed to vacate the note of issue and conduct discovery relating to Supreme Deli, including responses to Supreme Deli's demands. For the same reason, the Court finds that Supreme Deli's dispute with CGJG over whether the contract between them intended to place responsibility for repairs such as the one at issue here on Supreme Deli, supplanting the usual rule that the owner is responsible, and these parties' dispute over indemnification issues, is best left for resolution after the deposition of Supreme Deli and the discovery of all pertinent documents relating to its role and its relationship with CGJG. At that point, the parties will be more fully able to articulate and support their arguments.

3. Ownership of the Property with the Defective Condition and Speculation over the Instant Facts based on Evidence:

CGJG and Con Ed continue to disagree with plaintiff and each other about certain factual and legal theories. Their main areas of disagreement concern: ownership of the valve, the duty to maintain the valve, and notice. None of the submitted photographs of link the valve to any of the alleged owners. Speculative issues are insufficient to defeat a summary judgment motion. Quintana v. Votmesh Realty Inc., 31 Misc.3d 61, 62, 922 N.Y.S.2d 910, 912 (App. Term 1st Dep't 2011). Because a fact-finder would not be able to answer which party owned the water valve without speculating, the dispute over ownership is insufficient to deny the grant of summary judgment by itself

4. Actual and Constructive Notice of the Defective Condition:

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CGJG argues that even if it owed a duty to plaintiff, it was not put on notice and therefore could not be liable. See Strvker v. D'Aeostino, 88 A.D.3d 584, 585, N.Y.S.2d 293, 294 (1st Dep't 2010). Con Ed and plaintiff oppose this argument. Breach of duty occurs when evidence demonstrates either the creation of a dangerous condition or actual or constructive notice. See Early at 560-561, 904 N.Y.S.2d 368-369. No evidence from the record suggests that CGJG ever had actual notice of the uncapped valve. A CGJG owner testified that he never received a complaint about the...