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Martin v Ho Bong Chung 2007 NY Slip Op 33158(U) September 28, 2007 Supreme Court, New York County Docket Number: 0117743/2004 Judge: Carol R. Edmead Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK
PRESENT:

- NEW YORK

COUNTY

PART

Index Number: 1.17743/2004
MARTIN, RONALD
vs
INDEX NO. MOTION DATE

351
-

CHUNG, HO BONG
Sequence Number : 002
SUMMARY JUDGMENT

9b47
f30

MOTION SEQ. NO.
MOTION CAL. NO.

2.

The following papers, numbered 1 to

were read on this motion to/far

Notlce of Motion/ Order t o Show Cause - Affidavlta - Exhibits Answering Affldavits Replying Affidavits

...

- Exhibits

F'

Cross-Motion:

fl

Yes

0 No

Upon the foregoing papers, it i ordered that this motion s

:his motion is decided in accordance with the accompanying Memorandum Decision. It is lkreby

ORDERED that the motion of defendants 300 W.53, LLC s/h/a 300 West 53rd Lssociates, Philip Pilevsky, Sheila Pilevsky, Albert Nassim, Edmond Nassim and Crescent 'roperties, for an order, pursuant to CPLR 3212, dismissing the complaint of plaintiff Ronald dartin, is granted to the extent that the following claims are dismissed: claims related to the installation of a non-ornamental projectiodstructure that (1) extended from the subject premises beyond the building line in violation of statues, codes, ordinances, laws or rules;
(2)

claims related to permitting the installation of non-ornamental projectiodstructure and the hanging of plastic strips fiom the projectiodstructure;

(3)

failing to make Reliable obtain the necessary NYC permits to perform sidewalk alterations - drilling holes in the sidewalk; and claims related to a "special use" by the moving defendants.

(4)
is further

i

NON-FINAL DlSPOSlITUN

J

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ORDERED that counsel for the moving defendants shall serve a copy of Lis order with notice of entry within twenty days of entry on counsel for plaintiff.

Dated

Check If appropriate:

0 DO

NOT POST

REFERENCE

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S U P E M E COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35
I .

RONALD MARTIN, Plaintiff, -again$t Index No. 117743/04 DECISION/OXU)ER

HO BONG CHUNG, RELIABLE PRODUCE, INC., SPACE SIGN COMPANY, INC., 300 W. 53, LLC, 300 W.53 ASSOCIATES, PHILILP PILEVSKY, SHEILA PILEVSKY, ALBERT NASSIM, EDMOND NASSIM, CRESCENT PROPERTIES, SPACE SIGN PERMIT CO., INC., and ALL METALS MECHANICAL CONTRACTOR, INC.,
Defendants.
Y

EDMEAD, J.S .C. MEMORANDUM DECISION Defendants 300 W.53, LLC s M a 300 West 53`d Associates, Philip Pilevsky, Sheila Pilevsky, Albert Nassim, Edmond Nassirn and Crescent Properties (the "moving defendants"),
move herein for an order, pursuant to CPLR 3212, dismissing the complaint of plaintiff Ronald

Martin ("plaintiff ').

This is an action for personal injuries allegedly sustained by plaintiff on January 4,2002
as a result of a slip and fall on wattrhce on the sidewalk abutting the "deli" of co-defendant Reliable Produce, Inc. ("Reliable") on 8`hAvenue and 53rdStreet, New York, New York (the "subject premises"). Moving defendants are the owners of the subject premises.

Plaintiff's Deposition Testimony
The accident occurred on January 4,2002 at approximately 6:30 a.m. It was still dark outside, but there was street lighting (p. 15). On the date of the accident, it was very cold and

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very dry. It had not rained or snowed within the 24 hour period prior to his accident (p. 14). The accident happened on 53rdStreet and SthAvenue, on the SthAvenue side in fiont of what was then called Reliable Foods, based on the name on the awning (p. 17). Plaintiff went into Reliable

Foods for coffee, as he was exiting the store plaintiff slipped and fell on wet ice (pp. 22-24). It
was ice covered with water (p. 25). After his accident he could see that the water and ice emanated from a dropped plastic funneling down toward the curb (p. 25). On the sidewalk in front of Reliable Foods, there is a small walk space and then there are lots of flowers and plants on a "stage" going up four tiers, and there is a plastic drop material that is extended more than six feet fkom the wall of the building to the sidewalk (p. 27). The ice on which he fell was caused by a man watering the walk area with a hose between the plastic drop and the plants. He was watering this walk area on the morning of plaintiff`s accident. ARer plaintiff fell, he looked up and realized that he was on ice and water and he saw the man standing there behind the plastic drop with a hose in his hand watering down the area behind the plastic drop and the sidewalk area (pp. 28-29). Plaintiff has seen this watering take place on several occasions, at different times of the day, before his accident (p. 29). On these occasions, three or four times, plaintiff complained to the store personnel (p. 29). He would make these complaints intermittently for some time between November and December when the weather turned cold (p. 30). On one occasion, his friend, Allan Colin was with him and complained to the store personnel about the ice and water

(p. 33). After his third complaint about the condition, plaintiff went to the building and
complained to the doorman at the building and Allan Colin was with him (p. 34). When plaintiff and Colin advised the doorman about Reliable hosing down the sidewalk making ice/water, the

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doorman said the owners, managers or board of directors or someone was aware of the problem

@pa34-35).
Deposition Testimony of Edmond Nassim He is the vice-president of Crescent Properties Cp. 3). None of the partners were involved in the day-to-day activities at the subject premises (p. 29). As part of the lease between Reliable and the moving defendants, Reliable was permitted to erect an awning in front of the lease property (p. 33). The moving defendants approved the application for Reliable to erect an awning (p. 35). He was aware, based on his visits to Reliable, that Reliable was in fact selling flowers and plants outside of the subject premises and not vegetables (pp. 38-39).

No one from the building ever contacted either Crescent Properties or the LLC regarding
complaints involving the tenant, Reliable (pp. 49-50).

The Moving Defendants ' Contentions
The moving defendants are out of possession landlords, and owed no duty to the plaintiff herein and did not cause or create the transient condition complained of, i.e., waterhe on the sidewalk. The condition on the sidewalk was caused solely by the actions of the tenant in utilizing a hose on the walkway at the time of the accident, and the moving defendants had no notice whatsoever that Reliable had caused a dangerous condition by using a hose without a nozzle to water the sidewalk causing large amounts of water to flow to the sidewalk which in freezing conditions caused the water to freeze and create a slippery condition, prior to the occurrence. Plaintiffs Bill of Particulars fails to cite any statute, code, ordinance law or rule other than claiming that the moving defendants violated Building Law NYC Ch. 26 Admin. Code, -3-

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Title C Sub - Art 4 to support their claim that defendant createdpermitted a violation that caused plaintiffs alleged injuries. However, plaintiffs own testimony demonstrates that the sole and proximate cause of plaintiffs accident and alleged injuries are the actions of Reliable. The moving defendants did not derive a special use, namely increased monthly rental, as

a result of Reliable erecting an awning outside the leased property, or from Reliable using a
portion of the sidewalk to sell merchandise.
Plaintiff's Opposition

According to the affidavit of Allan Colin ("Colin"), he owns and operates Colin Publications at 3 15 West 53'd Street, and has operated out of this location for more than forty years. During the winter months of 2000 and 2001,Reliable repeatedly watered its flowers in sub-freezing weather causing a very hazardous situation in a very high traffic area. The water would run out onto the 8`hAvenue sidewalk where it would freeze into black ice. He witnessed this many times. Complaints were repeatedly made to both the store management and the desk

I I
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people in the building. Calls were made, including two by him, to the managing agent, Crescent Properties, in the hope that they could remedy the situation. Detailed messages were left, but there w s never a response. Colin then wrote a letter, dated December 19,2001, to Crescent a Properties, attached to the affidavit in opposition, describing the situation. Based on Colin's affidavit and letter, the moving defendants had actual notice that its codefendant tenant was violating the terms of its lease by selling flowers in water buckets outside the subject premises in an area exceeding the maximum 3 feet distance from the building line; they permitted the tenant to enclose the exterior area of the premises by hanging plastic sheets from the awning and bolting them onto the sidewalk in violation of Building Laws, N Y C ; they

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visited the premises on several occasions prior to plaintiffs accident; the situation was visible and apparent; it was foreseeable that plaintiff would be injured by water being poured from a hose outside the subject premises in freezing weather; the moving defendants failed to address or remedy the situation; and the frozen waterhce was the proximate cause of plaintiffs injury.

The Moving Defendants' Reply
It is clear that the affidavit prepared by Colin, an associate of plaintiff`s, was obtained only after the summary judgment motion was served and filed by the moving defendants herein. Moreover, Colin has apparently kept safe in his records a copy of a letter allegedly mailed to Crescent Properties in 2001. It is clear that the purpose of said affidavit is solely to defeat the motion for summary judgment and should therefore be ignored. Colin's assertions that he made telephone calls to Crescent Properties are simply unsubstantiated assertions that should be given

no weight or merit. Moreover, the letter mailed to Crescent Properties has an incomplete
address. In relation to any alleged breach of the provisions of the Building Code, there is no evidence that there was a violation of the Building Code, and even if there was, moving defendants argue that no liability for the happening of plaintiffs accident flows from such violation. By signing the Application to the Department of Buildings, moving defendants herein "authorized the applicant [by counsel, Reliable] to file this application for the work specified herein and all future amendments." Moving defendants simply authorized the application, they did not approve or guarantee the work in any way, nor did they certify that the work itself was in compliance with the Building Code. Moreover, there is no evidence, other than plaintiff`s unsubstantiated assertions that Reliable, by erecting the awning and the "plastic sheets" it did,
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violated Building Laws N Y C , Ch. 26. Code, Title C, Sec 408. I(b)( 1).

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR 4

32 12[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor
(Bush v St. Claire`s Hosp., 82 NY2d 738,739 [ 19931; Winegrad v New York Univ. Med. Ctr., 64

NY2d 85 1, 853 [ 19851; Wright v National Amusements, Inc., 2003 N.Y. Slip Op. 5 1390(u) [Sup Ct New York County, Oct. 21,20031). This standard requires that the proponent of a motion for

summary judgment make aprimafacie showing of entitlement to judgment as a matter of law, by
advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1, 853 [ 19851;

Zuckerman v Cily o New York, 49 NY2d 557,562 [ 19801; Silverman v Perlbinder, 307 AD2d f
230,762 NYS2d 386 [ 1" Dept 20031; Thomas v Holzberg, 300 AD2d 10,11,751 NYS2d 433, 434 [ 1`' Dept 20021 [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings

and by other available proof, such as depositions" (CPLR 0 3212[b]). A party can prove aprima
facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra; Prudential Securities h c . v Rovello, 262 AD2d 172
[ 1st Dept 19991).

Alternatively, to defeat a motion for summary judgment, the opposing party must show
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facts sufficient to require a trial of any issue of fact (CPLR

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