Rosa v. 4114 Realty Group LLC

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Rosa v 4114 Realty Group LLC 2024 NY Slip Op 31991(U) June 5, 2024 Supreme Court, Kings County Docket Number: Index No. 519672/2020 Judge: Peter P. Sweeney 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: KINGS COUNTY CLERK 06/07/2024 INDEX NO. 519672/2020 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 06/10/2024

SUPREME COURT OF THES A TE OF NEW YORK Index No.:. 519672/2020 COUNTY OF KINGS, PART 7~ · Motion Date: 4-15-24 ...-------. -----------. --- .---...-·. -- .___ . ------. ------------· -· ·. ----X Mot. Seq.No.: 4, 5 t10NICA ROSA, P laintif'f,. -against- DECISION/ORDER

4114 REALTY GROUP LLCa d K&B BEAUTY,

De fendµn ts,. ·------ .--- ..-------------------------. ------------- . ---- .- .---. . x The following papers, tv ich ate e-filed with NYCEF as items 46.;98, 101-114, were read on these motions:

In this action to recover , amages for personal injuries, in motion sequence #4, defendant K&B BEAUTYS UPPL Y AND DISCOUNT ("K&B'') moves for an order pursuant to CPLR 3212( a) granting summary j udg ent and dismissing Plai nti ff s Camp laint fn its entirety and all cross-claims ofco-defendant, 4114 REALTY GROUP LLC ("4114 Realty''). In motion sequence# 5,.4114 Realtymove~for an Order, pursuant to CPLR.§3212 and §3211: (1) Granting. ' summary j tidgment on its cross-blaim for cm'itractual indemnification against I . . . defendant K&B; .

{2) Dismissing the plaintiffs. co*1plaint only against 4114 Realt, and {3} For st1ch other and I further relief as the Coln't deemspust; proper. and equitable. i I

This action atises out of~ trip and fall accident that occurred on June 12. 2020. on a brick I walkway tlu11 was part·ofthc pu?lic sidewalk in front of the preinises 4114 Ave11ueD, Brooklyi¹, New York. The plaintiff claims 1hatshc was caused to fall to the grotind \vhen her left foot came

into contact with a raised brick. pefendant, 41·14 Realty is the owner of premises located··at 4114 . . .. i . . AvenueD anddefendant K&B tas theground~floor·commerci al tenant ofthe premises pursuant . . ! . . .. to a written Lease entered into vfith 4 I 14 Realty. li The Lease agreemenfbe~weeli the defendants specifically states as follmvs: I i I 60. REPAIRS.T~nant shall makeall repairs to the sidewalkand the de1ni'sed pre~ises a11d where an item is beyond nepair; the Tenant shall repl~ce the same with material, equipment, and labor of first-class q wi~ity, but Tenant shall hot be required to perform structural repairs !uni ess such structural repairs. are necessitated by

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FILED: KINGS COUNTY CLERK 06/07/2024 INDEX NO. 519672/2020 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 06/10/2024

Footnotes

[1] of 5 [* 1] the acts or omissi ns of the temmt, its agents, employees or invitees. The lease also contained he frillO'Wirtg indemnification provision: 45(8) Teni1nt sha;Lindemnify and save Lan:dlord harri1lcss froni and against .. , (ii) ~11 claims against Land] ord arising from any accident, injury, cpr damage occurring ontside ofthe demised pteinises; but witl1i1i or aboutthe lands and buildings where the ~ccident, injury o~·. d~mag: result or \s, c_lai_med to:l1ave resulted trom an act or on11ss10n ot Tenant. .. Ih1sindemmty and hold harmless covena1}t shall ii'1cludc indernnity from and against any and alL .. suits .... C~)sts and expense$ (i11cluding attqrneys' fees and disbursements) of any kind or nature incun-ed .... . . .·the Lease also required he tenaiit to procure ins urancc ·for the landlordi Paragraph 42 provides: . I I INSURANCE (Al) Tenm1t shall procure and nrnintain liability ot other casualty iniurancc as may be required under the terms of this lease. , . (B )(1} T ei1a.nt shal L a tits so Ie cost and expense procure arid maintaii1 throughput the term of this lease a comprehensive general liability policy oft in:surance insurin:g Tenant andLandlord against any and all risks and/or liability for prope1iy damage and bodily . . i ' ' ' lilJUry .,. . i i At her deposition, . the pfaintifftestifred . I as follows: ! ; ' Q . Miss Rosa, d~ you know why your left foot .came into contact \vith the brick'? I A.No. ; ' Q . What is your ~ns,ver? I A.No, I I I Q . Gan you descbbe the bri(:k that yourleft fqot qme i11 cqntact ,vith? ! . A. It was raise:d. r iI was raised. Q. Ho\v high wa$.it raised? I A. Itwas loose. Ii didri't see it; I jt1st fell. ! 2

[2] of 5 [* 2] Q . How do yot1 1 novv it was loose? A. Because when I we1it back, I saw what happened. Q . Okay. When 1ou went back -- 1 thinkyou said a month later? i A. No "- well, I , ink it was a month because J \Vas sick -- I was in bed with a brokc1, arm. Q. Butwhcn yo went back,rna'am_, amonthlatet yousaw the specific brick? A. Yes, whete I ell. I I Q . And did you ~ouch it? I A.No. i I Q. So hov.: do yJuk.i10w it was loose? ! . d , ii A . I t was raise i I Q. OK it wasn't \Qo.se, it was raised? ! A. It was raised. i 'I Q . HO\V high wab it raised? I A. . It. was·awav . . ,., ftom ·1 the.. other ' bricks. . . i Q . But do you k~1bw approxiniately ho\\' high in tfieasureinel1ts, how high it was 1jaised? A.No. '' i Q . You didn't m~asure it. com:ct? A.No, I ' At her depositioi1, the pl~intiff circled the bi'ick that she clairris .caused her accid'ent (see . . . . ! . NYSCEF # 71). PlaintifftestifiFdtha:t thevveather was ''good" and"stmny" at the:time ofthc accident and that it was n,ot rafolng. I When asked if there was there ~nythh1g obstructing her . View of the ground just prior to . b1e ' accident, her answer was ';I don't recall;" i i 3.

[3] of 5 [* 3] K&B contends that it is -ntitled to sumi11aryjudgment beta use plai11tiffs accident arose out of a structural defect of the riublic sidewalk, and undet the lease, it was not obligated to make 1.4114 Realty contends that it is entitled to summaryjudgment I . . structmal repairs to the sidewal because plaintiffs claim is base~ on speculation. 4114 Realty maintains:that plaintiffs .I . . testi1i1ony establishes that her d$.im that a certain brick caused her to stub her foot, was based . I solely on her observing the; alle11ed br~ck for the firstti~e one (1 )month after heraccid~nt \Vhen she had to return to the accident Iocatrnn because she d1 d not kno\v what caused her to Jal I. 4114 Realty also contends that the all ged detect was trivialin nature and did not have the cha:ractei·istics of a trap Or nuisaice. Finally, 4114 Realty contends that it is entitled to summary I judgrnentagainst K&B on its clrm for contractual indemnification pursuant.to paragraph.45B of the lease. 1 Discussion: i 'i ! The court will first addr~ss I 4114 Realty's. motion:. A property o,.vner "ma.Y not be held liable for trivial defects, notcon~tituting a trap or nuisance, over which a pedestrian might . ! . merely stumble, stub his or her ~oes, ot trip"' (Hl'tber 1·.. (:l S Pharnwcy, Inc., 217 A.D.Jd 659, 1 ! . . 659, 190N.Y.S.3d 148; seeAce~-·edo I. . r. CityofYonker,t, .

[185] A.D.3d 762,763, 125 N.Y.S.3d 30;2_). "In determining. whether a! defect is trivial, the court must exani:ine all of the facts I . .. ii1cluding the 'width,!depth, presented, . l elevation, irregularity and appearance of the defect along with the time, place, and Circum~taiice of the injury"' (Deviva v. Bi.mrbon 5't, Fii1e Food.,· & I Spirit,. 116 A.D.3d 654,655, .98$I N.Y.S.2d295, quoting Trincete v. Counf;v qfSl!ffolk, . . 90N.Y.2d . . 976, 978, 665 N .Y.S.2d 615, 68~ N.E.2d 489} "'[T]herCis no 'minimal dimerision test' or per se I rule that a defect must he of i:i. c~rtain minimum height or depth in order to be actionable'' . . .· .. i. ..· . . .. . . . . (Thncere v. Colinty q(Si{ffi>lk. 9.0 N. Y.2d at 977, 665 N .Y.S.2d 615,688 N.E.2d 489; see . I . . . I . . . . . . A!aldonctdtJ v. 212 I Shore Condpminium. 138 A.D.3d 789, 790,JO N .Y;S.3d 185}. ! ' Here, the photograph th~t plaintiff cla:i1i.1S depicts the condition that caused her accident I . . defect in the sidewalk was (NYSCEF #71) established tha{I the alleged . physically . i1isigrtificant. . . . . The accident occu1Ted on a suntjy day; artd there is no evidence that anything was obstrncting ' plaintiffs view Ofthe groul'rdj~st prior to the accident. This evidence thus demonstrated, ptima I fade; thatthe alleged defoct waf trivial as a nmher of law, and therefore, was not actionable (see 4 4 of 5 [* 4] Haber v. CVS Pharmacy. Inc.. 2 7 A.D.3d at 660, 190 N.Y.S.3d 148; Balbo v. Greenfield's tlkt. ~j'Bethpage. LL C. 216 A.D.3d 1130, 1131 190 .Y.S.3d 146). In opposition, the plaintiff fa iled to raise a triable issue of fact. P aintiffs complaint is therefo re dismissed in its entirety. In light of this determination, K&B ' s m tion for summary judgment is denied as moot, and the is ue of whether the alleged defect was s ructural in nature need not be addressed. The branch of 4 114 Real y's motion for summary judgment against K&B for contractual indemnification pursuant to par graph 45B of the lease is denied . K&B ' s ob li gatio n to indemni fy 4114 Realty pursuant to this pro ision it's tri ggered only upon a findin g that K&B was negligent. Inasmuch as the defe ct at issue i not actionable, K&B cannot be found negligent. For all of the above reas ns, it is hereby ORDERED that the 41 14 Realty's motion is decided as indicated above and plaintiffs complaint is DISMISSED in its entirety . K&B ' s motion is denied as moot . r--.) c::::, . .= c_ r- .. C Thi s constitutes the deci ion and order of the Court. -..I I - I !. Dated : June 5, 2024 :r,,, -. - ~ C) .r::- 0 PETER P. SWEENEY, J.S.C. ote: This signature was generated electronically pursuant to A dministrati vc Order 86/20 dated April 20 2020 5 5 of 5 [* 5]