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Shatsky v. Highpoint Assocs. V, LLC - 2018 NY Slip Op 31970(U) (Sup. Ct.)

Rule:

If the moving party makes this showing, the burden shifts to the non-movant to show that material issues of fact exist. The movant's "burden is a heavy one"  [quoting William J. Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 (2013)

Facts:

Defendant Maximillion Café, which plaintiff sued under its d/b/a Bagels & More (Bagels), moves under CPLR § 3212 for summary judgment dismissing all claims and counterclaims asserted against it. eDfendants Highpoint Associates V, LLC (Highpoint) and Keystone Management, Inc. (Keystone) seek summary judgment dismissing all claims and cross-claims asserted against them. Plaintiff cross-moves for partial summary judgment on the issue of liability. Although plaintiff submits her cross-motion in connection with motion brought against Bagels, the cross-motion also addresses the arguments Highpoint and Keystone assert ed in its motion for partial summary judgment. The moving parties' indemnification arguments are moot, as the same law firm now represents all three defendants. The Court consolidates the remaining portions of these motions for disposition and resolves them below.

This is a personal injury action. Bagels is a shop in New York City, which had an air conditioning unit inside the shop directly above the front door. To divert the unit's water discharge so that it did not drip directly in front of Bagels and onto its customers, defendants rigged a tube from the unit which redirected the water onto the sidewalk to the side of the building. The complaint alleges that the water flowed onto the south-facing pedestrian ramp at the corner, and thus created a slippery and dangerous condition. Plaintiff alleges that she sustained injuries when, on June 11, 2015, she slipped and fell on the wet ramp.

In its motion to dismiss, Bagels asserts that it has no liability because it did not own, install, operate, maintain, repair, or control the detectable warning tile imbedded into the ramp. Bagels additionally argues that it had no duties with respect to the warning tile or the pedestrian ramp. Bagels acknowledges that property owners are obliged to maintain and repair the sidewalks in front of their property, but contends that property owners are not responsible for maintaining pedestrian ramps.

Bagels also argues that the water that dripped onto the ramp was no more dangerous than rainwater, and therefore, Bagels did not create a dangerous condition. It points out that, under applicable precedent, "[t]he mere fact that a sidewalk . . . becomes more slippery when wet does not constitute an actionable defect" (Bock v. Loumarita Realty Corp., 118 AD3d 540, 541, 988 N.Y.S.2d 156 [1st Dept 2014]). Bagels further cites Bernal v 521 Park Ave. Condo, 128 AD3d 750, 9 N.Y.S.3d 358 [2nd Dept 2015]), in which the Second Department dismissed the action, even though the plaintiff slipped on a metal grate which, she alleged, "was wet due to water that had run off from the cleaning of the building's façade." According to the court, the fact that the grate was wet was insufficient to show that a dangerous condition existed. Bagels also cites Hurley v Related Management Co. (74 AD3d 648, 904 N.Y.S.2d 41 [1st Dept 2010]), in which the First Department placed the responsibility for maintaining a sidewalk grate controlled by Consolidated Edison on Consolidated Edison.

Finally, Bagels argues that everything under its control was in good condition. It asserts that it regularly maintained the portion of the sidewalk for which it was responsible, and it points to its employee's deposition testimony in support. It additionally submits the expert affidavit of engineer John Giardiello, who examined the pedestrian ramp in question. Mr. Giardiello concluded that the ramp and tile had a slip resistance factor of 1.18 dry and 1.05 wet — which, he points out, exceed the Occupational Safety and Health Administration (OSHA) requirements — and that it was firm, stable, and not defective. Thus, he states, to a reasonable degree of engineering certainty, that if the warning plate was in place when plaintiff fell on the ramp, the ramp was compliant with all applicable standards.

Issue:

Does the evidence show, beyond a doubt, that defendants created a dangerous condition or had notice of it?

Answer:

No.

Conclusion:

After considering all the parties' arguments, even those not discussed in this order, the Court denies all three motions. None of the litigants have satisfied their heavy burden of showing that judgment in their favor is appropriate. Instead, they have shown that issues of fact exist. For one thing, the experts present conflicting opinions, and it is not the motion court's role to determine their credibility. Instead, the affidavits create triable issues of fact. Defendants are correct that the City is responsible for maintaining the ramp, but plaintiff does not contest this point. Instead, she asserts that, given the condition of the ramp, the water from the air conditioner would have created a hazard.

Plaintiff is not correct that the evidence shows, beyond a doubt, that defendants created a dangerous condition or had notice of it. Plaintiff is unclear as to whether she noticed a wet condition on the ramp when she fell or whether she presumed the ramp had been wet at the time because of the photo her friend took of the ramp later that day. Thus, there are issues as to whether the ramp was wet when she fell. Moreover, the conflicting expert statements raise issues as to whether the water would have created a hazard. Contrary to plaintiff's contention, the testimony of Guy Maddison also is not dispositive as to notice. The water condition to which his testimony refers was on the sidewalk. He specifically stated at his deposition that he never noticed whether the water continued down the sidewalk toward the ramp. On the other hand, plaintiff correctly points out that defendants were aware that the air conditioner dripped water, as this was the reason they diverted the water from the front entrance to Bagels; and both parties show that there was some notice that the water from the air conditioner that created a noticeable amount of water on the sidewalk. This raises an issue as to whether this was sufficient to create a duty to determine whether this, in turn, caused a problem with the ramp.

In light of these and other triable issues, this matter should be tried by the factfinder, who can determine the credibility of witnesses and of the experts, and who also can decide whether, under the circumstances at hand, defendants are liable for plaintiff's injuries. 

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