Mueller v. 2001 Marcus Ave. LLC

Mueller v 2001 Marcus Ave. LLC 2025 NY Slip Op 30181(U) January 16, 2025 Supreme Court, New York County Docket Number: Index No. 153625/2021 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 01/17/2025 04:49 PM INDEX NO. 153625/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 01/17/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHLOMO S. HAGLER PART 17 Justice -------------------X INDEX NO. 153625/2021 NORINE MUELLER, THOMAS MUELLER, MOTION DATE 12/07/2023 Plaintiff, MOTION SEQ. NO. _ _ _0_0_1_ _ -v- 2001 MARCUS AVENUE LLC,2001 MARCUS AVENUE SPECIAL MANAGER LLC,JEFFREY MANAGEMENT DECISION + ORDER ON CORP., THE FEIL ORGANIZATION, INC.,BROADWALL MANAGEMENT CORP., BLDG 1031 LLC MOTION

Defendant. -------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29,30,31,32,33,34, 35,36,37,38, 39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56, 57,58,59,60,61,62,63 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

Under motion sequence 001, defendants 2001 Marcus Avenue LLC, 2001 Marcus

Avenue Special Manager LLC, Jeffrey Management Corp., The Feil Organization, Inc.,

Broadwall Management Corp., and BLDG 1031 LLC (collectively, "defendants") move pursuant

to CPLR 3212 for summary judgment dismissing plaintiff Norine Mueller's ("plaintiff')

complaint as against them in its entirety. Plaintiff opposes this motion.

FACTS

Deposition ofNorine Mueller

This action arises out of an accident in a medical facility parking lot located at 2001

Marcus Avenue in New Hyde Park (the "subject parking lot") on May 24, 2018 (Plaintiffs Dep.

[NYSCEF Doc. No. 30] at 21-22). Plaintiff testified that the day of the accident was "a beautiful

spring day" and the accident occurred "around 12, 12:30 in the afternoon" (id.). Plaintiff and her

husband were at the subject parking lot after an appointment for plaintiffs husband (id. at 22).

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Plaintiff testified that she had never been to the building before that day (id. at 23). Plaintiff

testified that her accident occurred at the valet stand in the parking lot. She testified:

When leaving the doctor's office, and my husband was walking with a cane, he was very slow, so he said, "Why don't you go ahead." Because it was very crowded there.... [S]o I went ahead, left him behind. And I walked straight to the valet booth, I stepped up on the curb, not realizing it wasn't level and I went down

Id at 23-24. Plaintiff explained that she "stepped up and thought it was level, so I took a normal

step and it wasn't level, so my foot, I guess, bent" and she fell down (id at 28). Plaintiff testified

that she couldn't remember where she was looking at the time of the accident because "it was

five years ago. I'm sure I was looking straight ahead where I was walking" (id. at 26). Plaintiff

testified that the curb that she stepped over was painted yellow (id at 29). She testified that she

did not observe any broken or cracked areas in the section of the island she fell on (id.). Using a

photograph of the area of the accident in the deposition plaintiff explained that she was walking

"kind of' in the path with yellow diagonal stripes towards the valet stand (id. at 35). She testified

that she walked up towards the curb near the ramp of the valet stand (id. at 36).

Plaintiff had testified that the area was crowded at the time of her accident and "maybe

two" people came up to ask her if she was okay after her accident (id at 38). She also testified

that the person working at the valet stand "did come out and said, 'I saw the accident"' (id.).

Plaintiff testified that she did not get the information of any witnesses to the accident including

the person working at the valet stand (id.). She also testified that she did not report the accident

to anyone inside the building (id.). Plaintiff testified that her husband did not witness the

accident (id at 40). When asked if she could identify the cause of her accident, plaintiff testified

that "It was that I stepped up on a curb that I thought was level and it was not" (id. at 41 ).

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Deposition ofDrew Arnold

Drew Arnold appeared for a deposition on behalf of the defendants. Arnold testified that

he is employed by Jeffrey Management Corp., which is the managing agent for a real estate

entity called The Feil Organization (Arnold Dep. [NYSCEF Doc. No. 32] at 10). Describing the

relationship between those two entities, Arnold testified that "The Feil Organization is the owner

entity for the various properties that I manage and Jeffrey Management Corp. is the managing

agent" (id. at 11). At the time of the deposition Arnold had been employed at Jeffrey

Management Corp. as a property manager for 15 years (id.). Arnold testified that 2001 Marcus

Avenue is a property that he managed (id at 12). As property manager Arnold testified that his

responsibilities included "tenant relations, overseeing the day-to-day operations at the various

properties, managing construction, et cetera" (id.).

Arnold testified that when he began managing that property 15 years before the time of

the deposition there was not a valet booth in the parking lot (id at 15). Arnold testified that there

was a "discussion" to put valet parking in at 2001 Marcus Avenue "quite a long time ago" (id at

16-17). He testified that the property owners hired contractors to construct the valet parking

booth at 2001 Marcus Avenue (id at 17). Arnold testified that he was involved in the day-to-day

operations during the construction but there was an "on-site property superintendent, who was

physically present during the work every day" (id. at 18).

Arnold testified that he has previously appeared on behalf of 2001 Marcus Avenue at

depositions but to his recollection, none had involved the valet parking island (id. at 18-19).

Arnold testified that the property owners hired Rosenbaum Design Group as the architect on the

valet parking booth installation project (id at 22). He testified that Rosenbaum drafted plans for

the valet parking booth and that Arnold reviewed them (id.). He testified that the plans included a

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ramp built into the island (id.). Arnold testified that since the valet parking island was built

"approximately, 10 years ago" from the date of the deposition, there had been no modifications

made to the island (id. at 23). Arnold testified that the Town of North Hempstead conducted

inspections during the construction process (id. at 25).

Arnold testified that the valet island complied with the Americans with Disabilities Act

requirements (id. at 27). He testified that "Rosenbaum had to make sure it did, in order to get a

building permit for it" because "the Town [of North Hempstead] wouldn't approve it without all

the proper ADA requirements. The ramp, et cetera, are all part of that" (id.). Arnold confirmed

there is a concrete curb "around the entire island" (id. at 28). He testified that the curb of the

island was painted yellow (id. at 33).

Arnold testified that he learned about plaintiffs accident at 2001 Marcus Avenue when

his office received a Letter of Representation (id. at 45). He testified that his office kept an

incident folder on Ms. Mueller's accident (id. at 46). He testified that he did not see any accident

reports within her file (id.). Arnold testified that "other than having the property super check the

condition of the island itself, there was no other investigation to be conducted" in relation to

plaintiffs accident (id. at 49). Arnold testified that the property superintendent performed the

inspection and reported to Arnold that "there were no defects of any kind or any changes or

anything to the island. Everything was as it always has been" (id. at 50). Arnold testified that

between the date of the accident and the date of his deposition, no further construction work had

been done on the valet island (id. at 55). Arnold testified that he had never received a complaint

regarding the valet parking island before (id. at 58).

Arnold was asked ifhe would consider the area of the valet island where the "curb is

higher than the ramp on the right side" a dangerous condition. Arnold testified, "I wouldn't

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consider it a dangerous condition. It was designed by the architect, it was approved by the Town,

it's painted in hazard yellow for people to see it. So it's what the Town wanted installed there

and what the architect designed, so no, I would not consider it a dangerous condition" (id. at 59).

Arnold testified that he did not know the exact dimensions of the curb but "It's a standard

sidewalk type curb, nothing special about it" (id at 61). He testified that to his knowledge,

Jeffrey Management Corp. has never received a violation from the Town of North Hempstead in

relation to the valet island (id. at 63).

SUMMARY JUDGMENT STANDARD

"[T]he proponent of a motion for summary judgment must demonstrate that there are no

material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Ostrov v

Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). "Failure to make such prima facie showing

requires denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v

Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once a movant has met

this burden, ''the burden shifts to the opposing party to submit proof in admissible form sufficient

to create a question of fact requiring a trial" (Kershaw v Hospital/or Special Surgery, 114 AD3d

75, 82 [1st Dept 2013]). "[l]t is insufficient to merely set forth averments of factual or legal

conclusions" (Genger v Genger, 123 AD3d 445,447 [1st Dept 2014], quoting Schiraldi v US.

Min. Prods., 194 AD2d 482,483 [1st Dept 1993]). Finally, evidence must be "construed in the

light most favorable to the one moved against" (Kershaw, 114 AD3d at 82). Therefore, if there is

any doubt as to the existence of a triable fact, the motion for summary judgment must be denied

(Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]).

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DISCUSSION

In their motion, defendants argue that plaintiff has not raised any specific violations of a

building code, applicable regulation, or statute and even so, she cannot demonstrate that the valet

parking area violates any code, regulation, or statute (Memo of Law [NYSCEF Doc. No. 37] at

4-5). Plaintiff does not oppose that no violations of codes or statutes are alleged (see Opposition

[NYSCEF Doc. No. 46] at 13). As such, this Court need only address plaintiffs arguments

regarding defendants' liability under theories of common law negligence.

"In order to prevail on a negligence claim, a plaintiff must demonstrate ( 1) a duty owed

by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting

therefrom (Pasternack v Laboratory Corp. ofAm. Holdings, 27 NY3d 817, 825 [2016] [internal

quotation marks and citation omitted]). It is a building owner's "normal duty to maintain the

premises in a safe manner" (Marcinak v Technical Mech. Servs., Inc., 17 AD3d 140, 140 [1st

Dept 2005]).

Defendants argue that they should be awarded summary judgment because the condition

of the curb is not actionable given it is open and obvious and not inherently dangerous.

Defendants contend ''there is no dispute that the concrete pad and subject curb, sidewalk and/or

ramp were maintained in good condition and repair, and it was also painted bright yellow to alert

pedestrians" (Memo of Law at 11). In opposition, plaintiff argues that the condition of the curb

was inherently dangerous because "One approaching the valet island ... using their senses

would believe and anticipate that the area behind the curb would be flat" (Opp. at 5). Defendants

have met their burden of showing that the condition was not inherently dangerous and did not

create an optical confusion. Plaintiff testified that there were no broken or cracked areas of the

curb where she fell (Plaintiffs Dep. at 29). She further testified that the perimeter of the curb

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where she stepped up was painted bright yellow (id.). Contrary to her allegation in her Bill of

Particulars that there was inadequate lighting, plaintiff testified that on the date of her accident it

was a "beautiful spring day" and her accident occurred in the middle of the afternoon (id at 21-

22). In support of their argument that the condition of the valet parking stand was not dangerous

or defective and was safe for its intended use, defendants through an affidavit of Drew Arnold

provide copies of the design plans for the valet stand, the permit application to the Town of

North Hempstead, the building permit for the valet stand as depicted in the plans, and certificates

that the valet stand passed inspection by the Town of North Hempstead (see Aff. of Drew Arnold

[NYSCEF Doc. No. 35] Ex. 2-7). Further, Arnold testified that there had been no prior accidents

or complaints regarding the condition of the valet stand (Arnold Dep. at 58).

Moreover, defendants provide an expert affidavit of a Certified and Registered Architect

Thomas R. Turkel, A.I.A., who inspected and measured the subject valet island and reviewed

related documents (see Turkel Aff. [NYSCEF Doc. No. 36]). Turkel concluded that "In my

professional opinion, to a reasonable degree of architectural certainty, the subject concrete pad,

curb and ramp were and are safe for their intended use, and comply with the applicable codes

under which they were built, in accordance with the Town-approved building plans, and final

approval of the built facility" (id at 9). In addition to the fact that the Town of North Hempstead

concluded that the finished valet island "substantially conforms to the approved plans on file in

this office and to the requirements of the Zoning Ordinance and the Building Code of the Town

of North Hempstead," Turkel also concluded that the subject ramp and curb were designed and

built in accordance with ANSI Al 17.1-2009 "Accessible and Usable Buildings and Facilities"

(id. at 7).

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Turkel affirmed that Section 406.6 provides that "Curb ramps and the flared sides of curb

ramps shall be located so they do not project into vehicular traffic lanes, parking spaces, or

parking access aisles" (id. at 8). Based on his inspection and photographs taken of the location

Turkel concluded that the locations of the ramp and the subject east curb were in compliance

with this requirement. Turkel also found that the curb and ramp comply with Sections 406.8

(Obstructions) and 406.9 (Handrails) (id).

Turkel stated that the curb immediately to the right of the ramp was necessary to ensure

wheelchairs do not fall into traffic and to ensure vehicles did not drive up the ramp and onto the

island, and because of this dual functionality, a side flare was not necessary to replace the curb

on the east side of the ramp (id at 5). Turkel concluded from his inspection and subject

photographs that from the angle which plaintiff approached the island, it is clear that the edge of

the curb is painted with bright yellow paint that "contrasted with both the asphalt-paved marked

walkway and the elevated concrete pad" (id at 9). He concluded that ''the yellow warning paint

was a clear visual cue to alert Ms. Mueller to be attentive to the conditions near the painted

region; in this instance, the elevation change at the curb as she approached and traversed it" (id.).

Indeed, photographs taken from the angle at which plaintiff testified she approached the island

show the perimeter of the curb is painted with bright yellow paint and the downward slope of the

unpainted ramp is also visible over the other side of the painted curb (see id. at Appx. B-8)

The evidence provided by defendants is sufficient to establish prima facie that the curb

and valet stand were not inherently dangerous or defective, were open and obvious and did not

create an optical confusion and conformed with subject code requirements and statutes (see

Kave/ v Glenwood Mgt. Corp., 200 AD3d 460,461 [1st Dept 2021]; Abraido v 2001 Marcus

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Ave., LLC, 126 AD3d 571, 571-572 [1st Dept 2015]; Kamps v New York City Tr. Auth., 89 AD3d

421, 421-422 [1st Dept 2011]).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff argues that the report

of her expert, John J. Natoli, P.E., which concludes that the ramp condition was inherently

dangerous, creates an issue of fact (Opp. at 5). In his expert report, Natoli concludes that the

ramp was improperly designed and should have had flares on both sides of the ramp pursuant to

the U.S. Access Board Guide to the ADA Accessibility Standard (Natoli Aff. [NYSCEF Doc.

No. 47] at ,r 11). This Access Board Guide is the only source relied on by Natoli to support the

argument that the ramp was defectively designed. As pointed out by defendants, this guide is a

recommendation rather than a regulation or specific standard (see Kovel, 200 AD3d at 461

["Plaintiffs expert noted that the City of New York Department of Parks recommends that tree

guards be 18 inches in height. This recommendation does not qualify as an accepted industry

wide standard"]; Chester v Museum ofModern Art, 180 AD3d 562, 562 [1st Dept 2020] ["The

affidavit of [plaintiffs] expert referred to general standards concerning design of steps and the

utility of handrails. Since the expert's opinion was not supported by reference to 'specific,

applicable safety standards or practices,' it was insufficient to defeat the motion"] [internal

citations omitted]). Natoli does not provide any information to refute Turkel's conclusion that the

ramp and curb are compliant with relevant ANSI regulations and the code of the Town of North

Hempstead.

As to the theory that the condition was inherently dangerous in that it created an optical

confusion, photographs attached by plaintiff as exhibits to her opposition refute the expert's

statement that the ramp "could not be seen by pedestrian[s] approaching from a perpendicular

direction" (Natoli Aff. at ,r 8). As discussed, the photographs not only show the curb's painted

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yellow border which suggests caution should be taken, but the downward slope of the ramp can

be seen in the pictures taken from the direction that plaintiff approached the valet stand. The dip

in the concrete to ·create the ramp is seen in contrast to the yellow curb and the asphalt.

Moreover, the yellow lines on the asphalt that prevent cars from parking next to the island create

a pathway for pedestrians to approach the island parallel to the ramp. Plaintiff cannot raise a

triable issue of fact when the photographs attached as Exhibit B to her opposition refute the

contention that the condition was inherently dangerous (see Martin v City ofN. Y., 82 AD3d 653,

654 [1st Dept 2011] ["Although plaintiff alleged that a curb on the property caused her fall and

that the curb posed an optical confusion, the photographic evidence is not sufficient to defeat the

motions"]; Hall v New Way Remodeling, Inc., 168 AD3d 620,620 [1st Dept 2019] ["In

opposition, plaintiff failed to raise an issue of fact. The opinion of plaintiff's expert was

speculative, and posited a theory of 'optical confusion' that was contradicted by the expert's own

photographs showing that the door saddle was a different color from the surrounding floor"];

Denstman v Manhattan Eye, Ear & Throat Hosp., 200 AD3d 409,409 [1st Dept 2021]).

Finally, Natoli's statements that the change in elevation between the curb and the ramp is

inherently dangerous because "One approaching the curb expects to step up with their leading

foot onto a flat area" and that the yellow paint does not sufficiently suggest to pedestrians that

caution should be taken are speculative and do not alone defeat the evidence submitted by

defendants that the condition was not dangerous and in compliance with subject code

requirements (Natoli Aff. at 19, 12; see, e.g., Hall, 168 AD3d at 620; Denstman, 200 AD3d at

409). As such, defendants' motion must be granted.

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As this Court holds that defendants are not liable for plaintiff's accident, this Court need

not address the arguments about ownership on the part of The Feil Organization advanced in the

parties' papers.

CONCLUSION

Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted. The clerk shall

enter judgment accordingly.

1/16/2025 DATE LOMO S. HAGLER, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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