[*1]
Rodriguez v Themelion Realty Corp.
2011 NY Slip Op 52553(U) [41 Misc 3d 1215(A)]
Decided on March 21, 2011
Supreme Court, Kings County
Sherman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 21, 2011
Supreme Court, Kings County


Jessica Rodriguez, Plaintiff,

against

Themelion Realty Corp., Themilion Realty Corp., Theodore Vallas, Vallas Realty and the City of New York, Defendants.




11819/07



Jacob, Oresky & Associates, PLLC, by Joshua E. Goldblatt, Esq., Bronx, N.Y., for plaintiff.

Michael A. Cardozo, Corporation Counsel of the City of New York, by Kira Wallisch, Esq., Of Counsel, New York, N.Y. for defendant City of New York.

Lester Schwab Katz & Dwyer, LLP, by Jennifer Toth, Esq., New York, N.Y., for defendants Themelion Realty Corp., Themilion Realty Corp., Theodore Vallas, and Vallas Realty.

Kenneth P. Sherman, J.

Decision/Order



Kenneth P. Sherman, Justice.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Papers Numbered

—————————— ——————————— 51;—————

Notice of Motion and Affidavits/Affirmations Annexed .. 1-2 Ex A-K

Answering Affidavits/Affirmations ..................... 3 Ex A-J

Reply Affidavita/Affirmations ......................... 4 [*2]

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Defendant, Themelion Realty Corp., Theodore Vallas and Vallas Realty (collectively Themelion or defendant) moves for an order pursuant to CPLR 3212 granting Themelion summary judgment and dismissing plaintiff Jessica Rodriguez's (plaintiff) complaint. [FN1] For the reasons stated below, the motion is granted.
FN1. Plaintiff references the City's summary judgment motion in plaintiff's opposition papers, however, the City has since withdrawn its summary judgment motion and therefore the court will only rule here on Themelion's motion for summary judgment.


Background


The instant personal injury action arises out of a trip and fall by plaintiff on December 25, 2006 on a broken, raised and defective portion of a pedestrian ramp abutting the premises located at 6102 5th Avenue in Brooklyn, New York which is owned by defendant Themelion. As a result of the accident plaintiff sustained injuries including, among other things, a fractured ankle which required surgery.

In support of its motion for summary judgment, Themelion argues that plaintiff's testimony clearly establishes that plaintiff fell on the pedestrian ramp. Therefore, based on the First Department ruling in Ortiz v City of New York (67 AD3d 21 [2009], revd on other grounds 14 NY3d 779 [2010]) which held that pedestrian ramps are not part of the sidewalk for purposes of Administrative Code Section 7-210 (New Sidewalk Law), Themelion argues it is not responsible for plaintiff's injuries and is entitled to summary judgment.

In response, plaintiff argues that contrary to Themelion's assertion that the First Department ruling in Ortiz should guide the court in its determination of the instant matter, the Second Department ruling in Lanhan v City of New York (69 AD3d 678 [2010]) should control. Plaintiff argues that in Lanhan, the court noted that for an abutting landowner to escape liability imposed by Administrative Code Section 7-210, it must demonstrate that the defect was located exclusively on the curb rather than on the sidewalk abutting the property, Plaintiff asserts that applying the ruling in Lanhan requires a denial of summary judgment because Themelion cannot make a showing that the defect was wholly on the curb.

Additionally, plaintiff argues that defendant had constructive notice of the defective condition. Plaintiff relies on the same portions of testimony from her examination before trial as relied upon by Themelion. Mainly, plaintiff asserts that in her testimony she specified that she fell on broken pieces of sidewalk on the wheelchair ramp and that she [*3]observed the defective condition more than one year prior to her accident. Plaintiff also submits photographs marked at plaintiff's examination before trial in which plaintiff identified the defective portion of the pedestrian ramp that she alleges caused her fall (see Plaintiff's Exhibit J). Plaintiff further relies on the deposition testimony of Sandy Vallas (Vallas), the managing agent for Themelion's building. Plaintiff points out that Vallas testified that he inspected the outside of the building when he visited once a month but denied seeing the defective condition on the pedestrian ramp. Plaintiff argues that Vallas should have seen the condition. Plaintiff additionally points to the portion of Vallas's testimony in which he testified that at some point subsequent to plaintiff's accident Vallas hired a contractor to repair the sidewalk. Plaintiff also submits the affidavit of Department of Transportation employee Michael Borios and points out that Borios concedes that the City was served with a Big Apple Map more than 15 days before the subject accident which indicates a defect at the location of plaintiff's accident more than three years prior to the accident. Plaintiff concludes that based on plaintiff's deposition testimony, the photographs marked by plaintiff during her examination before trial, Vallas's deposition testimony, the Big Apple Map and Micahel Borios's affidavit, there are issues of fact as to whether Themelion had constructive notice of the sidewalk defect.

Discussion

Under Administrative Code Section 7-210, where the property abutting a sidewalk is used for commercial purposes, as is Themelion's property at 6102 5th Avenue, the New Sidewalk Law shifts liability for injuries arising out of sidewalk defects from the City to the owner of the abutting property.

Upon review of the submitted documents, the court finds that there are no issues of fact as to the location and cause of plaintiff's accident because it is clear based on plaintiff's testimony, that plaintiff fell on a pedestrian ramp, allegedly as a result of a defective condition on the ramp. Plaintiff testified as follows:

"Q. And were you at the corner of the sidewalk when you had an accident?

A. I was on the sidewalk where the ramp was.

Q. On a wheelchair ramp?

A. Yes.

...

Q. And when your accident happened, were both of your feet on the wheelchair ramp?

A. Yes.

Q. And you were descending the wheelchair ramp, would that be fair to say?

A. Yes, I was walking.

...

Q. And at some point, did you have an accident? [*4]

A. Yes, I ended up falling there.

Q. And at some point, did you see what caused you to fall?

A. The sidewalk, it was broken.

Q. Where was it broken?

A. When where I was walking, it was broken right there.

Q. In the wheelchair ramp?

A. Yes." (Plaintiff's EBT at 12, 16, 17).

In addition to plaintiff's testimony which clearly indicates that plaintiff fell on the pedestrian ramp, plaintiff additionally submits photographs marked at plaintiff's examination before trial in which plaintiff circled the location of her fall (see Plaintiff's Exhibit J). Upon review of the marked photographs from plaintiff's examination before trial, it appears that the area circled by plaintiff indicates the pedestrian ramp which is consistent with plaintiff's testimony. Therefore, because it is clear that plaintiff's fall occurred as a result of a defective condition on the pedestrian ramp, the issue before the court is whether for purposes of Administrative Code Section 7-210, the pedestrian ramp is part of the street such that the City is responsible for any injuries resulting from defects on the pedestrian ramp or whether the pedestrian ramp is part of the sidewalk such that Themelion, as the abutting landowner, is responsible for any injuries resulting from defects on the ramp.

Themelion asserts that the Second Department has not yet ruled on this issue and therefore the court is bound by the First Department's ruling in Ortiz v City of New York (67 AD3d 21 [2009], supra). In opposition, plaintiff argues that the Court should follow the Second Department decision in Lanhan v City of New York, (69 AD3d 678 [2010], supra).

Upon review of the relevant case law, the court first notes that contrary to plaintiff's assertion, the Second Department ruling in Lanhan, is inapplicable to the instant matter and does not address the particular issue before the court. In Lanhan, the plaintiff was injured when he stepped into a hole in a "curb/sidewalk" abutting the commercial property owned by defendant (69 AD3d at 679). The plaintiff alleged in his notice of claim and bill of particulars that he was caused to fall by a defective condition located on a "sidewalk/curb" (id). Defendant moved for summary judgment arguing that the defect was on the curb (id.). The defendant's motion for summary judgment was denied on the basis that defendant failed to make a prima facie showing since it did not offer evidence to demonstrate that the defect that caused plaintiff's fall was located exclusively on the curb rather than on the sidewalk abutting defendant's properly (id). The court noted that defendant's reliance on plaintiff's deposition testimony in which he occasionally used the word "curb" to describe where he fell was insufficient to negate his other testimony that the location was the "sidewalk/curb" (id). Thus in Lanhan the court denied summary [*5]judgment on the basis that there appeared to be issues of fact as to where plaintiff fell, specifically whether the plaintiff fell on the curb or the sidewalk, making a determination of liability premature. In the instant matter there are no issues of fact as to where plaintiff fell. Both plaintiff and defendant rely on the same portions of the testimony from plaintiff's examination before trial in which plaintiff specifically noted that at the time she fell she was on the "wheelchair ramp" or pedestrian ramp. Thus, the ruling in Lanhan is inapplicable here and does not guide the court in the instant matter.

The court recognizes that the Second Department has not yet ruled on the specific issue before the court, and therefore, the court is bound by the First Department's ruling in Ortiz v City of New York, (67 AD3d 21 [2009], supra). Following the court's ruling in Ortiz, which held that Administrative Code Section 7-210 does not encompass pedestrian ramps, Themelion as the abutting landowner is not responsible for maintaining the pedestrian ramp where plaintiff fell (see id). Thus, Themelion cannot be liable for plaintiff's injury and the court need not address plaintiff's arguments regarding constructive notice. Additionally, there is no evidence that Themelion created the defective condition on the pedestrian ramp. Therefore, Themelion's motion for summary judgment is granted.

Conclusion

Accordingly, because there are no issues of fact as to where plaintiff fell, and pursuant to the court's ruling in Ortiz v City of New York, (67 AD3d 21 [2009], supra), the pedestrian ramp where plaintiff fell is not included as part of the sidewalk for purposes of Administrative Code Section 7-210, and there is no evidence that Themelion created the defective condition on the pedestrian ramp, Themelion's motion for summary judgment is granted.

The foregoing constitutes the decision and order of the court.

March 21, 2011

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Kenneth P. Sherman Justice Supreme Court

NCAS

Rodriguez v. Themelion Realty Corp.