In this action for personal injuries, plaintiff Jane Greenlaw (Greenlaw) moves, pursuant to CPLR 3212, for partial summary judgment on the complaint on the issue of liability only (Mot. Seq. 003). Defendants Arsenal Scaffold, Inc. (Arsenal), A/R Garage LLC (A/R Garage), A/R Retail LLC, The Related Companies, LP, Related Construction LLC, Columbus Sponsorship LLC, Columbus Centre LLC, and Cross Management Corp. (construction defendants) oppose Greenlaw's motion for summary judgment and cross move, pursuant to CPLR 3212, for summary judgment. Defendants Jose Eliseo Lopez Guevara (Guevara) and Kelco Construction Inc. (Kelco) oppose Greenlaw's motion for summary judgment. Defendant MP Columbus Parking LLC (MP Columbus) also opposes Greenlaw's motion for summary judgment. MP Columbus also moves, pursuant to CPLR 3212, for summary judgment to dismiss the complaint as well as any cross-claims against it (Mot. Seq. 004).

On April 3, 2021, decedent Kathie Coblentz (Coblentz) was struck by a motor vehicle operated by defendant Jose Eliseo Lopez Guevara (Guevara) and owned by defendant Kelco Construction, Inc. (Kelco). At the time of the accident, Guevara, employed by Kelco, was operating the vehicle with Kelco's permission, and was exiting an underground parking garage located at the address 10 Columbus Circle, New York, New York (the Building).

The underground parking garage (the Garage), located in the Building, was owned by defendant A/R Garage, LLC (A/R Garage) and was operated by defendant MP Columbus Parking LLC (MP Columbus). The Garage has an exit-entrance on both the West 58th and West 60th Street sides. Defendants Related Companies LP and Related Construction, LLC (collectively, Related) are real estate developers that retained various contractors to perform a major renovation at the Building at the time of the accident. Defendant Cross Management Corp. (Cross Management) was the general contractor on the project. Defendant Arsenal Scaffolding, Inc. (Arsenal) designed and installed the sidewalk sheds/bridging, and Kelco constructed an outdoor terrace.

At the time he struck Coblentz, Guevara was making a left turn out of the parking garage onto 58th Street, a one-way roadway with traffic coming from his right. At the time of the accident, Coblentz was walking in the street and not on the sidewalk. The sidewalk along West 58th Street and adjacent to the Building had sidewalk bridging that ran along the entire length of the Building's West 58th Street side. Several hours after the accident, Coblentz, a fifty-year employee of the public library, passed away at the hospital from her injuries. Coblentz's executor, Greenlaw, was notified shortly after the accident and was informed that Coblentz suffered a head injury as a result of the accident.

The Garage has a dual exit-entrance on the West 58th and West 60th Street sides (Aydiner [*2]Aff, Exhibit D at 18). At the West 58th Street side, the garage door is wide enough to accommodate three vehicle lanes and, from the perspective of a vehicle leaving the Garage, the right lane was the designated for vehicles exiting the garage on West 58th Street (id. at 24-25).

The subject accident was captured on video surveillance, and a CD containing the footage is annexed to the moving papers. Plaintiff offers two theories of liability: (1) Guevara was negligent in making a left turn exiting the Garage, while looking to his right for on-coming traffic at the moment he struck Coblentz; and/or (2) the co-defendants negligently-constructed sidewalk shed blocked Guevara's exit and forced him into Coblentz's path of travel.

Guevara testified that in April 2021, he was employed by Kelco, the owner of the vehicle involved in the accident (Aydiner Aff, Exhibit A at 13). Guevara testified of the accident:

The accident took place as he was exiting the parking garage (id. at 23). At the time he was exiting the garage, the exit was flat and straight and there was nothing blocking his path of travel and his vision was not obstructed in any way (id. at 23, 25 and 34). The garage exited onto West 58th Street (id. at 26). West 58th Street at or near the garage exit was a one-way street with vehicular traffic coming from the right (from the point of view of someone exiting the garage) (id. at 27). He brought his vehicle to a stop before his vehicle got to the sidewalk to make sure there were no pedestrians walking (id. at 27). After determining there were no pedestrians, he then proceeded to move his vehicle forward (id. at 28). He then made a second stop when the front of his vehicle was on the street, to make sure there were no cars passing by and that it was safe to proceed (id. at 29). He looked both ways to make sure no cars were coming (id. at 30). He could not recall which way he looked last, whether it was right or left (id.). Vehicular traffic was coming only from the right side (id.). After that second stop, he moved his vehicle forward and attempted to make a left turn, when he struck [Coblentz], who was walking in the middle of the street (id. at 31). He had not seen [Coblentz] at any point prior to his vehicle striking her (id. at 33). From the point he exited the garage until the accident, his vision was not obstructed for any reason (id. at 34).

In April 2021, there were two construction projects going on at the Building at the same time, which were separate and distinct projects. As stated above, Related retained Cross Management as general contractor, to install terrace work at the Building. Arsenal was hired to design and install the sidewalk sheds/bridging at the Building and Kelco was retained to construct an outdoor terrace. The other project at the Building being done simultaneously was by a non-party tenant, Deutsche Bank, and its construction manager, Structure Tone ^[FN1] . Cross Management did not oversee the work that Structure Tone and its subcontractors were doing on the job site and vice versa. These were two separate projects.

At the time of the subject accident, scaffolding had been installed by Arsenal at the Building on West 58th Street. The New York City Department of Buildings (NYC DOB) approved Arsenal's scaffold plans for the sidewalk shed and the installation of the bridging, which was installed with the NYC DOB approval. It was Arsenal's responsibility to ensure that the sidewalk bridging was installed consistent with the plans submitted to the NYCDOB (Aydiner Aff, Exhibit J at 34). It is undisputed that Arsenal's sidewalk shed was in the [*3]exit/entrance of the parking garage's 58th street side. (Aydiner Aff, Exhibit I (Susi of Arsenal) at 67; exhibit C (Stanzione of Related) at 51; exhibit F (Gillick of Cross Management) at 44). Suzi testified that the sidewalk shed was placed in the Garage entrance, because if they moved them, they would be a problem for trucks entering the Garage: "So, the bridge legs, if we slide them further west and we put them out of the entrance, they move into the middle of the two garages; they will have a problem with the tractor trailers and the delivery trucks getting in and out of that garage" (Aydiner Aff, Exhibit I at 67).

The layout of the garage includes three lanes at the 58th Street entrance/exit. In order to use this exit in April 2021, MP Columbus "designated" the right lane as exit-only with two entrance lanes to the left (Aydiner aff, exhibit D (Vaevaoier of MP Columbus) at 24-25). Vaevaoier of MP Columbus testified that the scaffolding was blocking this right lane:

"Q. Would that be as your exit to the extreme right of that area?

A. Yes, that exit is a designated exit to the exit the garage.

Q. The designated exit to exit the garage, that is the same exit that has the metal poles associated for the scaffolding?

A. Yes"

During his deposition, Vaevaoier also testified that MP Columbus has a lease for the subject parking garage with defendant A/R Garage LLC and that MP Columbus never received any complaints regarding the sidewalk bridging and pedestrian traffic (Exhibit K at 52-53).

DOB regulations mandate that "Sidewalk sheds shall be installed and located so to not unreasonably obstruct, either visually or physically, traffic . . . vehicular access points . . . means of ingress/egress." NYC Building Code § 3307.6.4.9. Susi from Arsenal testified that pursuant to the NYC DOB Code, with respect to constructing sidewalk sheds: "You can't — obviously, put legs in the middle. You need to have an operating garage or, you know, an open garage. . . So, don't block a garage door" (Aydiner Aff, Exhibit I at 41, 61). The witness for Cross Management testified that where a sidewalk shed will block an entrance, this would be an installation variance in relationship to the plan that was submitted to the City of New York (Aydiner aff., exhibit F (Gillick) at 28) and that Cross Management would have had the authority to direct changes in the plan that would then have to be resubmitted to the NYC DOB for their approval (id. at 24). Cross Management's witness also acknowledged that based upon the sidewalk shed plans for the construction of the sidewalk shed, including the schematics, one cannot determine whether the bridging column "was intended to be placed in the driveway of the parking garage exit or not" (id. at 61).

But, again, because of the sidewalk shed, the right lane was obstructed, and Guevara, like all other drivers, exited via the middle lane (Aydiner Aff, Exhibit H [photograph]). According to plaintiff's moving papers, the video evidence here shows that Guevara took this middle lane to exit the garage.

The purpose of this sidewalk bridge was to protect pedestrians from work that Cross Management was doing at the building, including window replacement work and the placing of generators using a derrick (a crane) on top of the building (Exhibit L at 20-21). Constructing a sidewalk shed in New York City requires the submission of a schematic sidewalk shed plan to the NYC DOB for approval (Aydiner Aff, Exhibit I at 18-19). Arsenal and Cross Management were both aware that the Building Code generally restricts sidewalk sheds from blocking driveways and vehicle access points (I at 41):

Q: Did the 2014 New York City building code have any restrictions on obstructing the access points with the vertical members of sidewalk sheds?

A: You can't—obviously, put legs in the middle. You need to have an operating garage, or, you know, an open garage

Phillip Susi of Arsenal testified as to the placement of the sidewalk bridge legs that were in front of the exit lane at 10 Columbus Circle in April 2021:

"Q: Based on this photograph, would it be correct to say that those bridge legs are in the driveway of the parking garage?

A: They're in the curb cut out of the parking garage.

* * * * * *

Q: From the orientation of this photograph, the bridge leg is to the left of the garage entrance?

A: Yes, do you see it's on the left-hand side, and if you look at the picture further down in, you see a guy standing, and to the left of him is a cone. And the barricades. They don't use that lane in this garage, they don't pull in or out with that lane. When we did the installation, we talked before about the orientation of vehicles and trucks, right. So, the bridge legs, if we slide them further west and we put them out of the entrance, they move into the middle of the two garages; they will have a problem with the tractor trailers and the delivery trucks getting in and out of that garage. So, because the parking garage doesn't use that lane; that is why — that is why those legs were shifted over a little bit"

"Q: Did anyone at Arsenal speak with MPG Parking associated with that parking lot, about whether it used the lane that is ultimately occupied by the bridge legs in this photograph before its installation?

A: I did —I did not. As far as anybody else, I can't say."

This concern, that the bridge leg was moved to avoid contact with tractor-trailers, was a building concern and not a concern of Arsenal (id. at 73).

After the accident, Guevara was cited by the police for violating VTL § 1146(a) (failing to exercise due care) (Exhibit-L). Following a hearing before the Department of Vehicles, the Honorable Franceena Alli, A.L.J., found Guevara violated § 1146(a), that this violation caused Coblentz's death, and suspended his driver's license (Certified DMV Records and Findings & Disposition, Exhibit M).

i. Liability of the Construction Defendants

On plaintiff's motion for summary judgment against the Construction defendants, Arsenal, A/R Garage LLC, A/R/ Retail LLC, The Related Companies, LP, Related Construction LLC, Columbus Sponsorship LLC, Columbus Centre LLC and Cross Management Corp., she argues that they were under a tort duty to ensure that the vertical columns of the sidewalk sheds were installed and maintained without creating a hazard. Plaintiff contends that all construction defendants are liable for this hazard, and Coblentz's resulting injuries, as Arsenal designed and installed the sidewalk shed's vertical columns in a way that obstructed the designated exit/entrance on the West 58th street side of the garage in violation of the New York City Building Code. It is plaintiff's central contention that because the sidewalk bridge obstructed the exit lane, and Guevara was detoured to the center lane, he was closer to Coblenz's path, who was [*4]coming from his left. It is plaintiff's contention that this detour made the accident more likely and was therefore a co-proximate cause. The Construction defendants oppose plaintiff's motion for summary judgment and cross-move for an Order, pursuant to CPLR 3212, for summary judgment.

In order to construct a sidewalk shed in New York City, one needs to obtain a permit from the NYC Department of Buildings. The New York City Building Code Sec. 3307.6.4.9 mandates that "sidewalk sheds be installed and located so to not unreasonably obstruct, either visually or physically, traffic . . . vehicular access points . . . [and] means of ingress/egress." Although Arsenal and Cross Management acknowledged that the Building Code requires the submission of a sidewalk shed plan for DOB approval, neither defendant could identify whether the sidewalk shed plan submitted to the DOB identified the obstructing vertical columns on the West 58th Street exit:

"Q.: Meaning, does the sidewalk shed plan indicated that there is going to be a bridge leg at the exact location in this photograph identified as plaintiff's Exhibit 4?

A: It doesn't depict the exact location; it depicts the general location"

"Q.: From looking at this diagram, can you determine whether the bridging column here was intended to be placed in the driveway of the parking garage exit or not?

A: I cannot."

"Q.: From looking at this photograph where those metal poles are, would that be for a lane that ordinarily would have been marked for exit only?

A.: Yes.

Q.: Does the existence of those metal poles, do they encompass or otherwise negate the entirety of the exit only lane?

A.: Not necessarily. When you get to that point, you still have the other lane where you can easily exit the garage without a problem."

It is plaintiff's position that the construction defendants had no design justification for placing the shed poles in front of the West 58th Street exit. Plaintiff offers the findings of its expert, Jeffrey E. Ketchman, P.E. (Ketchman), that the video evidence shows that Arsenal placed the columns for the sidewalk shed in the garage's exit lane, (Ay, Exhibit N at para. 9) and that as a result of this obstruction:

"[Guevara] was forced to drive in the middle of the exit (an entry lane) instead of being to his right. A still photograph showing where [Guevara] stopped his vehicle immediately after striking [Coblentz] captures how the sidewalk shed obstruction altered his exit path. . . . As the photograph above also shows, had the vertical column been properly placed between the garage and loading dock, [Guevara] would have been a lane-width feet [sic] over to the right, exiting from the proper dedicated right lane, and away from [Coblentz]"

With respect to all construction defendants, Ketchman, in his affirmation, states that: "[b]ecause Related, A/R Garage, and Cross Management needed this sidewalk shed for the performance of their project, they also bore responsibility to ensure it was not negligently [*5]constructed"

In opposition, the Construction defendants rely upon the affirmation of defendants' expert Jeffrey Schwalje, PE (Schwalje), who affirms that the subject shed was not a violation of the building code, no summons were issued by the DOB or any other New York agency relating to the sidewalk shed. Schwalje also states that despite the traffic cones set up along the support columns, a driver exiting the garage would still have ample space to safely exit the garage and have a clear view of the sidewalk and exit onto the street. Schwalje further states in his affirmation that: "[t]he driver of the minivan had successfully negotiated the sidewalk and entered the roadway past the sidewalk shed columns when he struck the pedestrian. The driver did not properly bring his vehicle to a stop before entering the roadway" (Wehrheim aff at 13).

Based upon their expert's affirmation, the construction defendants state that the accident was caused by Guevara's negligence in not properly looking to the left before turning his vehicle onto the street and into the path of traffic, as well as Coblentz's failure to use the sidewalk (id. at 14).

Construction defendants contend that the placement of the sidewalk shed was not the proximate cause of Coblentz's accident. Susi, the witness from Arsenal testified that the sidewalk shed was installed consistent with the plans from the DOB. Susi further testified that although there is a sidewalk bridge leg partially in front of the West 58th Street exit lane, the garage does not use that lane. There were two other lanes at the West 58th Street exit, one for entering and one for exiting. Moving the sidewalk bridge leg further to the left would have created a hazardous condition for the trucks.MP's witness, Hector Vaevaoier, testified that the sidewalk bridge did not obstruct the parking garage's entrance or exit (Aydiner Aff, Exhibit K, 17-18). They contend that there were no complaints received regarding the sidewalk bridge. Construction defendants further argue that the photographs confirm that the sidewalk shed did not obstruct vehicular traffic from entering or exiting from the garage. They further argue that the sidewalk shed did not force Guevera to hit Coblentz.

It is undisputed that Arsenal's sidewalk shed obstructed the designated exit lane for the Garage's West 58th-street side. (Susi Dep. at 67; Stanzione at 51; Gillick Dep. at 44). Arsenal's explanation for installing the vertical columns in the Garage's exit was to avoid impact by trucks using the adjacent loading dock (Susi Dep. at 72).

The New York City Building Code Sec. 3307.6.4.9 mandates that "[s]idewalk sheds shall be installed and located so to not unreasonably obstruct, either visually or physically, traffic . . . vehiular access points . . . [and] means of ingress/egress."

A party that erects scaffolding has a duty to ensure that it has not created an unsafe condition (McKenzie v Columbus Ctr., LLC, 40 AD3d 312, 313 [1st Dept 2007]). A party that benefits from scaffolding on the sidewalk is charged with a special use duty to maintain it (id. at 313). Where a sidewalk shed or scaffold directs someone into an accident, the placement of that appurtenance can platform a negligence claim (see Betances v. 700 West 176th St. Realty Corp., 250 AD2d 504, 504 [1st Dept 1998]). There can be more than one proximate cause of an accident (Ventura v Sturino, 230 AD3d 1378 [2d Dept 2024]). Where the parties present conflicting expert affirmations, it precludes summary judgment (see Moore v Maley, — AD3d —, 2025 NY Slip Op. 05304 [1st Dept 2025]).

Here, the court finds that there are questions of fact as to the negligence of the construction defendants regarding the placement of the sidewalk shed at the Garage's West 58th Street side in one of the entrance/exit lanes. The testimony of the Construction defendant [*6]witnesses establishes that they were each either responsible for the placement of the shed or benefitted from its placement, that there are questions concerning whether the sidewalk shed plans identified the specific placement of the support poles of the shed, and whether that placement was a proximate cause of the accident. Since the applicable New York City Building Code mandates that sidewalk sheds should not be placed to obstruct a building access point, there are questions as to whether the support poles were properly placed and whether this placement was a proximate cause of the accident with Coblentz. The testimony of the MP Columbus witness, Vaevaoier, was that the poles of the sidewalk shed obstructed a lane at the West 58th Street entrance marked as exit only, requiring drivers to exit via the middle lane. The conflicting affirmations of Ketchman and Schwalje as to whether this constituted a proximate cause for the accident preclude summary judgment.

The court does not find that Guevara's testimony that his vision was unobstructed as he drove out of the garage and until he hit Coblentz is dispositive of questions concerning the Construction defendants' liability. Based on the testimony of defendants' witnesses and the evidence regarding the legality of the placement of the sidewalk shed, the court finds that there are questions of fact concerning whether the placement of the support poles of the shed interfered with Guevara's driving, making the accident more likely to occur.

On the second point, the Construction defendants rely on cases that stand for the proposition that the condition was not the proximate cause of the accident but merely facilitated the accident or furnished the occasion for it. Specifically, the Construction defendants rely on the following:

"The record established as a matter of law that the sidewalk shed was not a proximate cause of plaintiff's injuries. Plaintiff testified that the support pole for the sidewalk shed was placed in the middle of the sidewalk, dividing the area into two paths that were three feet wide on each side, and that she and her husband elected to walk side-by-side on the path to the left nearest the tree well. Plaintiff stated that her husband "nudged" her to the left, and her foot touched the edge of the tree well, which was not level with the sidewalk, causing her to fall. This testimony established that the placement of the sidewalk shed support pole did not compel plaintiff to step into the tree well to proceed forward, but that its placement merely facilitated the accident or furnished the occasion for it"

(Kalnit v 141 E 88th Street, 210 AD3d 531 [1st Dept 2022]; see also Wood v City of New York, 98 AD3d 845 [1st Dept 2012])[sidewalk shed not proximate cause of injury where "plaintiff specifically said that he stepped aside because several other pedestrians were walking toward him. He was not walking on the narrowed path nor was the tripping hazard on the path"]). Again, the court finds that there are questions of fact as to whether the placement of the sidewalk shed, in the pathway of one of the exit lanes at the West 58th Street entrance of the Garage, improperly obstructed the exit, and whether it caused Guevera to take the center lane to exit the Garage, resulting in the accident. The court, therefore, denies plaintiff's motion for summary judgment as to the Construction defendants (motion sequence 003) and, likewise, denies the Construction defendants cross motion for summary judgment.

ii. Liability of Guevara and Kelco

Guevara and Kelco oppose plaintiff's motion for summary judgment by arguing that there are questions of fact as to whether the scaffolding unlawfully obscured Guevera's view and [*7]pathway and obstructed Coblentz's access to the sidewalk, causing the accident. Kelco and Guevara argue that because the "exit" lane at the West 58th Street garage exit was blocked by the scaffolding supports and by orange traffic cones, that Guevara had to exit the garage by taking the center "entrance" lane, placing his vehicle closer to where Coblenz was walking, making the accident more likely. Kelco and Guevera rely on the law that states that "[i]f the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, as here, summary judgment on the issue of liability must be denied " (Phillip v. D & D Carting Co., Inc., 136 AD3d 18, 22 N.Y.S.3d 75 [2d Dept. 2015] (internal citations omitted)).

Greenlaw argues that she is entitled to summary judgment as against Guevara and Kelco on two grounds. The first ground argued by Greenlaw is that it is undisputed that Guevara was making a left turn, struck a pedestrian in front of his vehicle that he did not see, and was adjudicated guilty of violating VTL Sec. 1146 (a).

The second is collateral estoppel, as there was a finding, after a hearing at which Guevara testified, made by Department of Motor Vehicles (DMV) Administrative Law Judge (ALJ) Alli, that Guevara "should have seen [Coblentz]and taken evasive measures to avoid striking her" (Aydiner Aff, Exhibit M): "Accordingly, I conclude that jurisdiction over the Respondent was duly obtained as the Respondent violated Section 1146(a) of the Vehicle and Traffic Law of the State of New York by his failure to exercise due care, which directly caused or contributed to the fatality herein and warrants action against the license and/or driving privileges of [Guevara]". At the hearing, Guevara testified that he struck Coblentz while making a left turn and that he did not know where he was looking immediately before the accident (Guevara Dep at 31). ALJ Alli concluded that Guevara violated VTL Sec. 1146 (a) and she suspended his driver's license.

"Collateral estoppel applies when: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits" (Alamo v McDaniel, 44 AD3d 149, 153 [1st Dept 2007]).

The court finds that plaintiff established a prima facie showing of entitlement to partial summary judgment as against Guevara and Kelco by submitting Guevara's deposition testimony as well as the transcript of the DMV hearing indicating that the subject motor vehicle accident occurred when Guevara attempted to make the left turn on to West 58th Street and hitting Coblentz who was in the roadway (see Davis v Turner, 132 AD3d 603, 603 [1st Dept 2015]). Any potential issue of comparative negligence between Guevara and any other actor in this matter, does not restrict plaintiff's right to partial summary judgment against Guevara (see Rodriguez v City of New York, 31 NY3d 312, 320 [2018]; Johnson v Phillips, 261 AD2d 269, 272 [1st Dept 1999]). The court grants plaintiff's motion (motion sequence 003) on this ground.

Plaintiff moves for summary judgment as against MP Columbus, the operator of the Garage, on the ground that MP Columbus should have restricted vehicles from exiting on West 58th Street and directed all garage vehicles to exit from West 60th Street. MP Columbus opposes this motion and argues that Guevara testified that his view was not obstructed by the sidewalk shed as he exited the garage and that Hector Chevalier (Chevalier) of MP Construction testified that there was no obstruction for drivers at the West 58th Street exit. MP Columbus also moves [*8]for summary judgment on the ground that it had no role in the construction or placement of the sidewalk shed. And, further, that under the Court of Appeals decision in Pulka v Edelman, (40 NY2d 781, 782 [1976]), garage operators cannot be held liable in tort to a pedestrian struck as a result of negligence of a garage patron.

During his deposition, Guevara testified that as he was exiting the garage there wasn't anything obstructing his path (Guevara dep at 25). He further testified:

"Q: At the time of the accident, did the scaffold have any vertical columns that were at the exit of this parking garage?

A: No."

MP Columbus was never consulted regarding the location of the scaffolding and never received any complaints about the sidewalk bridging and the pedestrian traffic. (Vaevoier Dep at 30-31 and 52-53; Chevalier dep at 17-18, 28). They were under no legal obligation to place the scaffolding in any particular location, nor were they responsible for contacting the NYC DOB, nor were they legally responsible to close the garage entrance/exit at West 58th Street, or to take any other precautionary measures to thwart a patrons' negligent conduct. As a result, this court denies plaintiff's motion for summary judgment as against MP Columbus and grants MP Columbus' motion for summary judgment.

It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff (Pulka v Edelman, 40 NY2d 781, 782 [1976]).

In Pulka, the court was confronted with the question of whether, considering the evidence "that patrons of the garage often drove their cars out of the garage and across the sidewalk without stopping, there arose a duty on the part of the garage to take measures to prevent or discourage this practice. Stated another way, the question is whether this garage, or any garage, has a duty to control the conduct of its patrons for the protection of off-premises pedestrians" (id.). The Court of Appeals answered this question by finding that the garage did not have such a duty.

The Court in Pulka resolved that to hold that plaintiff, as a pedestrian, is similarly entitled to legal protection from the garage for the conduct of its patrons, would be to create an unnecessary extension of a duty beyond the limits required under the law of negligence as we know it. As the court in Pulka stated: "Even if there was evidence that no significant precautionary measures were taken to prevent the negligent conduct of its patrons does not justify the imposition of any duty" (id. at). The First Department reiterated this finding in On v BKO Exp, LLC, 148 AD3d 50, 55 [1st Dept 2017][internal citation omitted]): "In [Pulka], the Court therefore concluded that the foreseeability of the type of accident that occurred was irrelevant; a parking garage owed no duty to a pedestrian on the sidewalk outside the garage who was struck by a car leaving the garage, driven by the car's owner."

The question here is whether MP Columbus owed a duty to plaintiff. It is undisputed that Guevara, as the driver of the car, owed a duty to the plaintiff. Section 1146(a) of the Vehicle and Traffic Law of the State of New York, required him to exercise due care in the operation of a motor vehicle. Likewise, there is a question of fact concerning whether construction defendants owed a duty to plaintiff by constructing a sidewalk shed that obsructs the exit lane of the Garage which may be a violation of the NYC Building Code which states: "Sidewalk sheds shall be installed and located so to not unreasonably obstruct, either visually or physically, traffic . . . [*9]vehicular access points . . . means of ingress/egress." NYC Building Code § 3307.6.4.9. Here, MP Columbus was not responsible for the sidewalk shed or placement of support poles on the sidewalk. There is no allegation here that MP Columbus violated any rule, regulation or statute by its failure to close the 58th Street exit and direct all garage traffic to enter and exit through the West 60th Street entrance/exit or to take any other measure to control the conduct of its patrons.

The Court, therefore, denies plaintiff's motion for summary judgment as against MP Columbus (motion sequence 003) and grants MP Construction's motion for summary judgment as against plaintiff (motion sequence 004).

Accordingly, it is hereby

ORDERED that plaintiff Jane Greenlaw's, executor of the estate of Kathie Coblentz, motion for summary judgment (motion sequence 003) is denied with respect to defendants Arsenal Scaffold, Inc., MP Columbus Parking LLC, A/R Garage LLC, A/R Retail LLC, The Related Companies, LP, Related Construction, LLC, Columbus Sponsorship LLC, Columbus Centre LLC, and Cross Management Corp; and it is further

ORDERED that defendants Arsenal Scaffold, Inc., A/R Garage LLC, A/R Retail LLC, The Related Companies, LP, Related Construction LLC, Columbus Sponsorship LLC, Columbus Centre LLC, and Cross Management Corp.'s cross-motion for summary judgment is denied; and it is further

ORDERED that plaintiff Jane Greenlaw's, executor of the estate of Kathie Coblentz, motion for summary judgment (motion sequence 003) is granted with respect to defendants Jose Eliseo Lopez Guevera and Kelco Construction, Inc.; and it is further

ORDERED that defendant MP Columbus Parking Parking LLC motion for summary judgment (motion sequence 004) is granted to the extent of dismissing the complaint against defendant MP Columbus Parking LLC; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly, upon proof of service of a copy of this order, with notice of entry.