Pugliese v. Bon Realty Corp., 2008 NY Slip Op 32286(U) (N.Y. Sup. Ct. 7/24/2008), 0004953/2006

• Decision Date: 24 July 2008
• Docket Number: Motion Seq. No: 3.,Motion Cal. No: 23.,0004953/2006,Motion Cal. No: 24.,Motion Seq. No: 2.
• Citation: 2008 NY Slip Op 32286
• Parties: FRED PUGLIESE, Plaintiff, v. BON REALTY CORP., ECKERD CORPORATION and ECKERD PHARMACY STORE, #5543, Defendants.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 32286(U)

FRED PUGLIESE, Plaintiff, v. BON REALTY CORP., ECKERD CORPORATION and ECKERD PHARMACY STORE, #5543, Defendants.

0004953/2006

Motion Cal. No: 23.

Motion Cal. No: 24.

Motion Seq. No: 2.

Motion Seq. No: 3.

Supreme Court of the State of New York, Queens County.

July 24, 2008.

Motion Date: May 21, 2008.

PATRICIA P. SATTERFIELD, Judge.

This is a negligence action to recover money damages for personal injuries allegedly sustained by plaintiff Fred Pugliese ("plaintiff"), as a result of his trip and fall on April 23, 2005, over a parking divider in the parking lot adjacent to premises located at 160-10 Cross Bay Boulevard, Howard Beach, New York, that was occupied by an Eckerd's drug store. Defendants Eckerd Corporation and Eckerd Pharmacy Store, #5543 ("Eckerd defendants") move for summary judgment dismissing the complaint on the ground, inter alia, that the Eckerd defendants did not maintain ownership or control over the area where plaintiff allegedly tripped and fell and did not have notice of the alleged defective condition. Defendant Bon Realty ("Bon Realty") moves for summary judgment dismissing the complaint on the grounds that it has never been the owner of the premises which were the site of plaintiff's alleged trip and fall accident, it has no maintenance or other duty with respect to that site, the alleged defect was "open and obvious" and "not inherently dangerous," and therefore not actionable under New York law, and plaintiff failed to establish the cause of his fall.

It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1^st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2d Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See Zuckerman v. City of New York, supra.)

"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (citations omitted)." Sloane v. Costco Wholesale Corp., 49 A.D.3d 522 (2^nd Dept. 2008); Frazier v. City of New York, 47 A.D.3d 757 (2^nd Dept. 2008); Ulu v. ITT Sheraton Corp., 27 A.D.3d 554 (2^nd Dept. 2006); White v. L & M Corporate, Inc., 24 A.D.3d 659 (2^nd Dept. 2005); Beltran v. Metropolitan Life Ins. Co., 259 A.D.2d 456 (2^nd Dept. 1999). "Where there is no indication in the record that the defendant created the alleged dangerous condition or had actual notice of it, the plaintiff must proceed on the theory of constructive notice." Rabadi v. Atlantic & Pacific Tea Co., Inc., 268 A.D.2d 418, 419 (2^nd Dept. 2000); see, also, Ramos v. Castega-20 Vesey Street, LLC, 25 A.D.3d 773 (2^nd Dept. 2006); Klor v. American Airlines, 305 A.D.2d 550 (2^nd Dept. 2003); O'Callaghan v. Great Atlantic & Pacific Tea Co., 294 A.D.2d 416 (2^nd Dept. 2002). "To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant's to discover and remedy it." Green v. City of New York, 34 A.D.3d 528, 529 (2^nd Dept. 2006); see, Stone v. Long Island Jewish Medical Center, Inc., 302 A.D.2d 376 (2^nd Dept. 2003); Blaszczyk v. Riccio, 266 A.D.2d 491 (2^nd Dept. 1999); Russo v. Eveco Development Corp., 256 A.D.2d 566 (2^nd Dept. 1998); Dima v. Breslin Realty, Inc., 240 A.D.2d 359 (2^nd Dept. 1997); Kraemer v. K-Mart Corp., 226 A.D.2d 590 (2^nd Dept. 1996).

The issue of whether a dangerous condition exists on the property of another which would create liability depends on the particular facts and circumstances of each case and is generally a question of fact for the jury. See Trincere v. County of Suffolk, 90 N.Y.2d 876 (1997); Taussig v Luxury Cars of Smithtown, 31 A.D.3d 533 (2^nd Dept. 2006). A property owner, however, may not be held liable for trivial defects, not constituting a trap or a nuisance over which a pedestrian might merely stumble stub his or her toes or trip. See, Ambroise v. New York City Tr. Auth. 33 A.D.3d 573 (2^nd Dept. 2006); Taussig v Luxury Cars of Smithtown, 31 A.D.3d 533 (2^nd Dept. 2006). "In determining whether a defect is trivial, the court must examine all of the facts presented, including the `width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury' (Trincere v County of Suffolk, 90 N.Y.2d 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489; see Taussig v. Luxury Cars of Smithtown, Inc., 31 A.D.3d 533, 818 N.Y.S.2d 593)." Ayala v. Gutin, 49 A.D.3d 677 (2^nd Dept. 2008); see, Outlaw v. Citibank, N.A., 35 A.D.3d 564 (2^nd Dept. 2006); Velez v Inst. of Design & Constr., 11 A.D.3d 453 (2^nd 2004). As a corollary to this principle, notwithstanding the duty to maintain its premises in a reasonably safe manner, a property owner "has no duty to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous (citations omitted)" Gagliardi v. Walmart Stores, Inc., ___ A.D.3d. ___, ___ N.Y.S.2d ___, 2008 WL 2522346 (2^nd Dept. 2008); Rao-Boyle v. Alperstein, 44 A.D.3d 1022 (2^nd Dept. 2007); Errett v Great Neck Park Dist., 40 A.D.3d 1029 (2^nd Dept. 2007); Morgan v. TJX Companies, Inc., 38 A.D.3d 508 (2^nd Dept. 2007); Sclafani v. Washington Mut., 36 A.D.3d 682 (2^nd Dept. 2007). Ramsey v. Mt. Vernon Board. of Education, 32 A.D.3d 1007 (2^nd 2006); Zimkind v Costco Wholesale Corp., 12 A.D.3d 593 (2^nd 2004); Cupo v. Karfunkel, 1 A.D.3d 48 (2^nd Dept. 2003).

It is undisputed that the Eckert defendants are the successor in interest to that of Genovese Drug Stores, Inc. ("Genovese"), which by lease dated April 24, 1992, and executed between Genovese and Bond Motors, Inc., contracted to rent "a certain store space," that was to be a part of a to-be-erected shopping center on Cross Bay Boulevard, Howard Beach, New York. Pursuant to the Lease Agreement, the Landlord agreed that as a condition of delivery of possession, it would "create and construct on the Shopping Center Land, the following Shopping Center Improvements:

a (iii) . . . (A) adequate sidewalks including a sidewalk abutting the front of the Demised Premises, and (B) a loading dock for Tenant's exclusive use to be located in the area shown as `Loading Dock' on Exhibit `A', and (C) service drives as all shown on said Exhibit `A' hereto, and (D) parking areas sufficient to accommodate a minimum of 137 standard sized American automobiles to be located and with angles, aisles, sizes of stalls, striping and marking as all shown on said Exhibit `A' hereto and (E) entrances and exits from and to public streets or highways as shown on said Exhibit `A' hereto...

The lease agreement further obligated the landlord to repair the "common areas," providing in paragraph "19" that the "Common Facilities and/or Common Areas of the Shopping Center shall include, but not be limited to, any and all parking areas" [subdivision (a)], and further provided that the "Landlord shall, . . . keep and maintain the Common Areas in good condition and repair, including but not limited to, repairs, replacements, restriping, repaving. . ."

Here, plaintiff seeks to recover from all defendants based upon his alleged trip and fall while walking in the parking lot on a curb that was extended twelve feet into the parking lot, and "sticking out in the parking lot." The Eckert defendants' alleged liability is predicated upon the allegation that the parking lot was for patrons of the Eckert Pharmacy. The alleged liability of the Bon Realty is predicated upon its ownership of the property where the accident occurred. The summary judgment motion of each set of defendants will be addressed separately based upon the applicable principles set forth above.

The Eckert Defendants' Motion for Summary Judgment

The Eckert defendants move for summary judgment dismissing the complaint on a variety of grounds. First, they allege that they did not maintain ownership or control over the area where plaintiff allegedly tripped and fell. Secondly, they allege that they did not take any action or fail to take any actions that were proximately related to plaintiff's accident. Thirdly, they allege that they and did not have notice of the alleged defective condition, and fourth, they allege that the object plaintiff allegedly tripped on was "open and obvious." In support of their motion, the Eckert defendants submit the deposition testimony of Diane Schreiber, the Assistant Property Manager for defendant Bon Realty, who testified that defendants Bon Realty and Eckerd took over the 1992 lease entered into between Bond Motors and Genovese, and that plaintiff's fall occurred in the common area of the mall, which defendant Bon Realty had responsibility for maintaining. Also submitted was the deposition testimony of Chait Ram Singh, the Store Manager at the Eckert location where plaintiff tripped and fell, who testified that Eckert had no responsibility for maintaining the parking lot. They argue that as there is no evidence that the Eckert defendants had any ownership interest in or exercised any control over the parking lot, they are entitled to judgment in their favor dismissing the complaint insofar as...