The following papers numbered 1 to 13 were read on this motion by defendant UNITED INTERIOR RESOURCES, INC., for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all cross-claims against it:

Papers

Numbered

Notice of Motion-Affirmation-Affidavits-Exhibits......1 - 3

Plaintiff's Affirmation in Opposition-Exhibits........4 - 7

Defendant HAPPY ROCK Affirmation in Opposition........8 - 10

Reply Affirmation-Exhibits...........................11 - 13

_________________________________________________________________

This is an action for damages for personal injuries which were allegedly sustained by the plaintiff, RIASAT ALI, on August 9, 2009, at approximately 6:00 a.m. as a result of a trip and fall incident that occurred on a public sidewalk adjacent to the [*2]premises located at 60-01 31st Avenue, Woodside, New York. The complaint contains a second cause of action on behalf of SUDHA LAL for loss of consortium. The plaintiffs allege that the defendants, who are the owners and tenants of the premises, were negligent in permitting the sidewalk adjacent to and in front of 60-01 131st Street to become and remain in a dangerous, uneven, raised and unsafe condition. Plaintiff, a taxi driver, age 48, allegedly tripped on the sidewalk abutting the premises and suffered a fractured right arm.

This action was initiated by the filing of a summons and complaint on July 22, 2010. Issue was joined by service of UNITED'S answer with cross-claims dated September 13, 2010 and by service of LIBERTY'S answer with cross-claims dated September 16, 2010. Defendants HAPPYROCK and SEQUINS interposed an answer with cross-claims dated November 11, 2010. In their answer, defendant HAPPYROCK PARTNERS, LP admits that it is the owner of the building in question.

According to the plaintiffs' Bill of Particulars, RIASAT ALI asserts that he was walking past the premises on the public sidewalk in front of 60-01 31st Avenue in Woodside, when he was caused to trip and fall due to the defendants' negligence. As stated above, the plaintiff asserted that both UNITED and LIBERTY, who are tenants in the premises, were negligent in permitting the sidewalk to remain in an unsafe condition. In addition, the Bill of Particulars specifically states that no allegation of a violation of any statute, regulation, rule or ordinance is being asserted.

In support of the motion for summary judgment dismissing the complaint, defendant UNITED INTERIOR RESOURCES, INC., submits an affidavit from Jeffrey Matesic, the President of UNITED in which he states that UNITED leases a portion of the interior space of the building located at 60-01 31st Avenue in Woodside, New York under a lease dated October 31, 2002 and a "Joinder Agreement" dated August 26, 2005. In his affidavit Mr. Matesic states:

"I can state from personal knowledge as the President of UNITED INTERIOR RESOURCES that UNITED does not and has never had an ownership interest in the building located at 60-01 31st Avenue in Woodside. New York." He also states that, "UNITED has never performed or caused to be performed any repairs or other work to any of the public sidewalks abutting the subject premises; that UNITED did not make any use of any portion of the public sidewalks abutting the subject building other than to gain entrance to that building; and that UNITED did not create or exacerbate any defective condition which may have existed upon the public sidewalks abutting the building."

In support of the motion, counsel David R. Holland, Esq., submits that the defendant, as a tenant, is not liable to a [*3]pedestrian for a defective sidewalk where the tenant did not repair the sidewalk, cause the defective condition, cause the defect to occur by some special use, or breached a specific ordinance or statute which obligated the owner or tenant to maintain the sidewalk (citing Biondi v County of Nassau, 49 AD3d 580 [2d Dept. 2008]). Counsel contends that UNITED, as the tenant of the building abutting the sidewalk, is not liable for the plaintiff's accident as the affidavit of Mr. Matesic demonstrates that UNITED did not negligently construct or repair the sidewalk, otherwise cause the defective condition, cause the defect to occur by some special use of the sidewalk, or breach a specific ordinance or statute which obligates owner to maintain the sidewalk. Further, counsel states that New York City Administrative Code § 7-210, which requires the owner of real property to maintain the abutting sidewalk in a reasonably safe condition, is not applicable to UNITED as it was merely a tenant and not the owner of the property in question.

The defendant also moves to dismiss the cross-claim of LIBERTY based upon common law indemnification and to dismiss the cross-claim of HAPPYROCK based upon common law and contractual indemnification. Defendant claims that common law indemnification does not apply because UNITED, as the tenant, cannot be held liable for the causation of the accident and therefore is not required to indemnify LIBERTY or HAPPYROCK. Further the defendant claims that contractual indemnity does not apply, as paragraph 18(a) of the original lease dated August 26, 2002, states that the tenant shall indemnify the landlord for acts arising out of or based upon the use or occupancy of the premises or the conduct or operation of the tenant's business. Here, counsel claims that the contractual indemnification provision is inapplicable to the facts of the case as the plaintiff stated that the accident occurred as he was simply walking past the premises and as such the plaintiff's presence on the public sidewalk had no relation to UNITED's use or occupancy of the space it leased in the premises.

Counsel also contends that HAPPYROCK'S cross-claim, premised upon failure to procure insurance, is inapplicable herein as the clause in the lease which requires the purchase of insurance naming the owner as the insured applies only to personal injury claims which arise in connection with the use of the premises. Counsel claims that UNITED purchased the insurance but in any event, the provision is not applicable herein as the accident on the sidewalk did not arise out of the use of the premises.

Plaintiff did not submit papers in opposition to the motion. However, co-defendant HAPPYROCK PARTNERS, L.P. submitted papers in opposition contending that the motion is premature as it has not had an opportunity to depose the plaintiff. Counsel contends that HAPPYROCK, the owner of the building, should be permitted to [*4]depose the plaintiff prior to the determination of the motion, with respect to how the accident occurred. Counsel submits that essential facts to oppose this motion may exist which are in the exclusive control of the plaintiff.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

An abutting property owner is not liable for injuries sustained by a pedestrian as a result of a defective condition of a public sidewalk unless the owner created the defective condition or caused it through some special use, or unless a statute charges the owner with the responsibility to repair and maintain the sidewalk and specifically imposes liability upon the owner for injuries resulting from a violation of the statute (see Biondi v. County of Nassau, 49 AD3d 580[2d Dept. 2008]; Solarte v DiPalmero, 262 AD2d 477 [2d Dept. 1999]).

The New York City Administrative Code §§ 19-152 and 7-210 places the duty to repair sidewalks upon the abutting property owners and § 7-210 specifically imposes liability upon owners of abutting property (except owner-occupied, purely residential premises of less than four families) for any injuries resulting from their breach of that duty.

Therefore, UNITED could only be liable to plaintiff if it were the owner of the property abutting the location of the accident or if it actually created the condition that caused plaintiff's injuries. Here UNITED has proffered uncontested evidence that it was a tenant in the premises and did not own or perform any repairs or other work or make special use of the sidewalk abutting the premises in question (see Abramson v Edwn Farm, 70 AD3d 514 {1st Dept. 2010]). Further, defendant HAPPYROCK admits that it is the owner of the building. As stated above, the plaintiff did not submit papers in opposition to the motion.

Accordingly, this court finds that UNITED, as a tenant, made a prima facie showing of entitlement to judgment as a matter of law. UNITED submitted sufficient evidence to demonstrate, prima facie, that it did not create the alleged defect, make repairs to the sidewalk before the accident, cause the condition to occur because of some special use, or violated a statute or ordinance which imposes liability on the abutting entity for failure to repair (see Williams v. Azeem, 62 AD3d 988 [2d Dept. 2009]; Biondi v. County of Nassau, supra; Jacobs v. Village of Rockville Ctr, 41 AD3d 539 [2d Dept. 2007]; Cannizzaro v Simco Mgt. Co., 26 AD3d 401 [2d Dept. 2006]).

UNITED also moves for summary judgment dismissing the cross-[*5]claim asserted against it by co-defendant LIBERTY INSTALLATION SERVICES, LTD. and by HAPPYROCK for common law indemnity and contribution. LIBERTY has not opposed the motion and HAPPYROCK opposes the motion only on the ground that it is premature as the plaintiff has not yet been deposed. However, as UNITED is not liable to the plaintiffs for negligence then UNITED cannot be held liable to the co-defendants LIBERTY, HAPPYROCK and SEQUINS for contribution or indemnification (see Priestly v Montefiore Med. Ctr., 10 AD3d 493 [1st Dept. 2004]; Correia v. Professional Data Mgmt., Inc., 259 AD2d 60 [1st Dept. 1999]), and therefore the cross-claims are dismissed.

UNITED also moves to dismiss the cross-claim of HAPPYROCK and SEQUINS for contractual indemnity. Here the contractual indemnity claim is based upon the lease at paragraph 18(a) which states that the tenant shall indemnify the landlord from any and all liability "arising out of or based upon, related to or in any way connected with the use or occupancy of the premises or the conduct or operation of tenant's business..." Here, it is clear, based upon the plaintiff's statement in the bill of particulars, that he was just walking past the subject premises when he tripped and fell on the sidewalk. Therefore, as the accident had no relation to the use or occupancy or the conduct of UNITED's business, the contractual indemnity provision is inapplicable and the co-defendant HAPPYROCK's cross-claim for contractual indemnity is dismissed as the lease does not support the claim.

Lastly, UNITED moves for summary judgment dismissing the cross-claim of HAPPYROCK based upon section 9 of the lease which requires the tenant to maintain insurance against claims or actions for personal injury "in connection with the use of the premises" As the plaintiff claims that the accident arose when he was walking past the premises on a public sidewalk, HAPPYROCK'S cross-claim for failure to procure liability insurance for claims arising in connection with use of the premises is inapplicable to the facts of this case.

As mentioned above, counsel for HAPPYROCK, Thomas B. Goren, Esq., has submitted an affirmation in which he does not contest any of UNITED"s contentions but only requests that the motion be denied as premature as defendant HAPPYROCK has not had an opportunity to conduct an examination before trial of the plaintiff with respect to how the accident occurred.

"While determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), [a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence (see Wyllie v District Attorney of County of Kings, 2 AD3d 714 [2d Dept. 2003]; Ruttura & Sons Constr. Co. v Petrocelli [*6]Constr., 257 AD2d 614, 615 [2d Dept. 1999]. A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination of the motion" (Williams v. D & J School Bus, Inc.,69 AD3d 617 [2d Dept. 2010]) also see Woodard v Thomas, 77 AD3d 738 [2d Dept. 2010]; Conte v Frelen Assoc., 51 AD3d 620 [2d Dept. 2008]; Lopez v WAS Distrib., Inc., 34 AD3d 759 [2d Dept. 2006]. Here, the plaintiff contends in his bill of particulars that the accident occurred as he was walking past the premises and the defendant has failed to provide an evidentiary basis as to how a deposition of the plaintiff regarding the facts of the accident could produce a question of fact as to the liability of a tenant for a defect in the sidewalk (see Abraham Natural Foods Corp. v Mount Vernon Fire Ins. Co., 2011 NY Slip Op 04608 [2d Dept. 2011]; Hanover Ins. Co. v Prakin, 81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept. 2010]; Williams v D & J School Bus, Inc.,69 AD3d 617 [2d Dept. 2010]).

Accordingly, for all the above stated reasons the defendant's motion for summary judgment dismissing the plaintiff's complaint as against defendant UNITED INTERIOR RESOURCES, INC. and dismissing all cross-claims asserted by co-defendants LIBERTY and HAPPYROCK is granted (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Dated: June 6, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.