In this personal injury action arising from plaintiff Carmella Autovino's (Autovino) alleged fall on a raised sidewalk flagstone, defendant American Golf Corporation ("AGC") moves for summary judgment pursuant to CPLR §3212, seeking to dismiss plaintiff's complaint and the City of New York's ("City) cross-claims.

Plaintiff's allegedly tripped and fell on November 3, 2004 on a raised sidewalk

flagstone on the eastern side of Seventh Avenue between 92nd Street and Poly Place, in Brooklyn, New York. Adjacent to the sidewalk is the Dyker Beach Golf Course, which defendant AGC licensed from the City of New York Department of Parks and Recreation pursuant to an agreement of June 3, 2004 ("Agreement"). The Agreement provides in relevant part:

12.1. . . Licensee shall provide for the regular cleaning

and maintenance of the perimeter of the Licensed

Premises including but not limited to the timely

removal of all litter and debris, snow and garbage,

tree pruning, dead tree and dead tree limb removal,

perimeter sidewalk and perimeter maintenance and repair . . . .

The agreement also provides:

24.1Licensee shall defend, indemnify and hold

the City, its agents and employees harmless against

any and all loss, liability, obligations, fines, damages,

penalties, claims, costs, charges, or expenses, including [*2]

reasonable attorneys' fees, for which they are or may

be liable as a result of any personal injury, death or

property damage arising, in whole or in part, from any

negligent or intentional conduct on the part of Licensee,

or any employee, contractor, servant, or sub-licensee of

Licensee, in connection with Licensee's operations pursuant to this license.

The term of the Agreement began retroactively on January 15, 2004 and ends on January 14, 2024. After the alleged incident, plaintiff commenced the action by filing a summons and complaint against defendants AGC, Dyker Beach Golf Management Corporation, the City and Cofire Paving Corporation. In the City's Answer, they asserted cross-claims against AGC, seeking indemnification based upon the aforesaid license agreement. After plaintiff filed a Note of Issue, defendant AGC moved for summary judgment pursuant to CPLR §3212, seeking to dismiss plaintiff's complaint and the City's cross-claims.

A motion for summary judgment should be granted only if no issues of triable fact exist

(Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). Additionally, the court must construe the evidence in the light most favorable to the party moved against (Weiss v. Garfield, 21 AD2d 156 [3rd Dept 1964] ). To prevail on a summary judgment motion, the moving party must produce admissible evidence, such as affidavits by persons with knowledge of the relevant facts, showing that no issues of material fact exist ( GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1987]). If there is any doubt as to whether a triable issue of fact exists, the court should dismiss the motion (American Home Assurance Co. v. Amerford Int'l Corp., 200 AD2d 472, 473 [1st Dept 1994).

On its face, the above-quoted language of §12.1 of the Agreement (that "[l]icensee shall provide for the regular cleaning and maintenance of the perimeter of the Licensed Premises") is adequate to raise a question of fact regarding whether AGC had a duty to maintain or repair the relevant portion of sidewalk(Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). In light of such unequivocal language, AGC's claims to the contrary are unpersuasive. Additionally, further questions of fact may exist regarding whether the disputed area of sidewalk constitutes a perimeter sidewalk within the scope of the Agreement.

AGC argues that it owes no duty to plaintiff, a non-party to it's contract with the City. A party rendering services pursuant to a contract may be liable to third parties in tort if the contracting party (1) fails to exercise reasonable care and launches a force or instrument of harm, (2) entirely displaces the other party's duties, or (3) the plaintiff detrimentally relies on the continued performance of said duties (Espinal v. Melville Sinow Contractors, Inc., 98 NY2d 136 [2002]). AGC's sole witness, a general manager of the golf course, testified that AGC had used snowblowers and "front loaders" (characterized as a "tractor that has a bucket in the front") on the sidewalks for snow removal:

Q. Could you tell me how snow removal was performed on the public sidewalkpresently?

A. It's done with snow blowers, shovels.

Q. Does American Golf have any tractors that they use to remove snow on the sidewalk?

A. I don't have any specific tractors that are used for snow removal, though we have used[*3]front loaders in the past.

As the court's role is issue-finding, not issue determination, (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), it should not grant summary judgment if any doubt exists as to the existence of a triable issue of fact (American Home Assurance Co. v. Amerford Int'l Corp., 200 AD2d 472, 473 [1st Dept 1994], Rak v. Country Fair, Inc., 2007 NY Slip Op 2216, [4th Dept] [denying summary judgment because the defendant failed to establish as a matter of law that it did not perform snow removal operations with respect to the condition that allegedly caused plaintiff's injury]). That an uneven flagstone could result from such vehicular snow removal is not so unreasonable an inference as to present no triable issue of fact. AGC's conclusory statement that such an outcome is impossible under the laws of physics, verified by an attorney without personal knowledge of the relevant events, is inadequate to shift the burden to the plaintiff (GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 [1987]). Additionally, as this witness was not employed or present at the golf course until after the alleged incidents and, thus, disclaims personal knowledge regarding its maintenance at the time, his testimony provides no evidentiary basis with which to shift the burden to the plaintiff (GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 [1987]). Furthermore, in light of the above evidence, a question of fact exists as to whether AGC may be liable in tort regardless of the Agreement(Genen v. Metro-North Commuter Railroad, 261 AD2d 211 [1st Dept 1999]).

A question of fact exists as to whether AGC displaced the City's duty to maintain the sidewalk in a safe condition, thus rendering AGC potentially liable to the plaintiff. (Espinal v. Melville Sinow Contractors, Inc., 98 NY2d 136 [2002]). AGC's manager did testify that City employees still inspected areas inside and outside the perimeter fence at the golf course, thus offering evidence that AGC may not have had the exclusive duty to maintain the sidewalk ( Hallas v. New York Univ., 259 AD2d 444 [1stDept]). However, contrary to defendant AGC's claim that nothing in the Agreement suggests AGC would be exclusively responsible for maintenance, §24.1 of the Agreement stipulates that AGC will "defend, indemnify and hold the City . . . harmless" of any liability "arising, in whole or in part, from any negligent or intentional conduct on the part of Licensee." In light of such language, a question of fact exists as to whether AGC completely displaced the City's duty to maintain the sidewalk. ( Linarello v. Colin Serv. Sys. Inc., 31 AD3d 396 [2nd Dept 2006]).

Finally, as the general manager of the golf course testified that golf course crews were present on the sidewalk daily, a triable issue of fact exists as to whether AGC had notice of the alleged defect. For the foregoing reasons, defendant AGC's motion for summary judgment is hereby denied.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C. [*4]

July 25, 2008