The following papers numbered 1 to 25 were read on this motion by defendant, Pat Cambareri, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint and for an order pursuant to CPLR 3212 and 3001 finding that co-defendant 28 Chinese Kitchen is obligated to immediately defend and indemnify defendant, Pat Cambareri; and the cross-motion of defendant 28 Chinese Kitchen for an order pursuant to CPLR 3212 granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint:

Papers

Numbered

Cambareri Notice of Motion-Affidavits-Memo of Law.......1 - 10

28 Chinese Cross-Motion and Affirmation in Opposition..11 - 16

Plaintiff's Affirmation in Opposition to Motion

and Cross-Motion.......................................17 - 21

Cambareri Reply Affirmation............................22 - 25

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This is an action for damages for personal injuries sustained by plaintiff, Yu Liang Yang, on July 8, 2009, as he was making a food delivery to his employer's client, 28 Chinese [*2]Kitchen, in the Town of Mount Kisco, Westchester, New York. The plaintiff was pushing between 150 and 200 pounds of food on a hand truck when the hand truck struck a metal plank that was on a pedestrian walkway, spanning a small drain. Plaintiff alleges that the hand truck then bounced back and knocked him to the ground causing him to injure his leg and back. Defendant Pat Cambareri is the owner of the premises located at 185 East Main Street, Mount Kisco, New York and defendant 28 Chinese Kitchen is a take-out Chinese Restaurant that leased the premises from the owner.

The plaintiff commenced an action for negligence against the tenant, 28 Chinese Kitchen and the landlord, Pat Cambareri, by filing a summons and verified complaint on December 9, 2010. Issue was joined by the service of 28 Kitchen's verified answer dated January 6, 2011 and by service of Cambareri's' verified answer on or about April 14, 2011. Plaintiff filed a note of issue on May 15, 2012. The gravamen of the complaint is that each defendant was negligent in the ownership, operation, management, maintenance, repair and control of the area in failing to maintain the metal plate and the walkway behind the Chinese Restaurant in a proper and safe condition; in permitting a portion of the sidewalk to be in a dangerous and defective condition, in failing to inspect the area, in allowing a raised area to exist and in failing to warn of the unsafe condition.

Plaintiff claims that each defendant had actual notice and constructive notice of the hazardous condition in that the condition existed for such period of time that defendants, in the exercise of due care, should have recognized and remedied it.

Counsel for defendant, Pat Cambareri, now moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that said defendant bears no liability for negligence due to the metal plate on the pathway in the parking lot. Counsel contends that the plaintiff has failed to demonstrate that Mr. Cambareri caused or created the dangerous condition complained of or had constructive notice of the condition. In addition, said defendant contends that the evidence shows that the plaintiff caused his own injuries when the momentum of the hand truck struck him in the leg. Defendant also asserts that the alleged dangerous condition is trivial in nature based upon the plaintiff's testimony that he had safely navigated the condition on more than ten occasions and that the height differential was only ½ inch. Mr. Cambareri also contends that if the Court finds that he, as landlord, is liable for damages for plaintiff's injuries than based upon the lease agreement, the co-defendant, 28 Chinese Kitchen is required to indemnify him for [*3]his defense and for any damages for which he is held to be liable.

In support of the motion, defendant's counsel, Evan H. Echenthal, Esq., submits his own affirmation; a copy of the pleadings; a copy of the transcript of the examinations before trial of plaintiff, Yu Liang Yang, defendant Pat Cambareri and Kemin Lin, the owner of 28 Chinese Kitchen.

In his examination before trial, taken on December 8, 2011, plaintiff, Yu Liang Yang, age 50, testified that on the date of the accident, he was employed by a company known as Young Shing Trading Co., Inc located in Maspeth, New York. His duties included delivering food and supplies to Chinese restaurants. On the date of the accident, he and a co-worker were delivering supplies, including boxes of chicken, flour and beef, to defendant, 28 Chinese Kitchen Restaurant in Westchester. The co-worker drove the truck and plaintiff unloaded the truck and made the delivery. He stated that he had delivered to 28 Chinese Kitchen at least ten times prior to the date of the accident. When they arrived at the restaurant on July 8, 2009, they parked the truck in the rear parking lot. Plaintiff unloaded the goods which were contained in paper cartons on a hand truck. He approximated the weight of the hand truck with the boxes on it to be 150 - 200 pounds. He testified that the boxes were stacked "quite high" up to his chest. He was walking down a sloping pathway pushing the hand truck in front of him towards the back door of the restaurant. He stated that there was a metal plate in the path which covered a drainage ditch. He stated that "my hand truck hit the metal plate. The metal plate came off. I slipped and I fell down, and the goods piled up against me on my body." He testified that he had delivered products to that restaurant by the same route at least ten times previously and the metal plate was always in the same location. He stated that it was difficult to make deliveries through the rear entrance because the slope was steep and the metal plate was too narrow. He stated that there was a gap between the passageway and the metal plate. The hand truck got caught in the gap. He had to push the hand truck hard to get it over the plate and when the hand truck hit the metal plate the plate moved and came off and he fell down into the ditch with the hand truck and the goods from the truck landing on top of him. The plaintiff testified that he was aware that there was a metal plate and that the plate was easily seen. He stated that the plate was a little bit higher than the ground. He testified that he had a conversation with the owner of the restaurant two months prior to the accident in which he told the owner that the metal plate was too narrow and as a result it was dangerous and difficult to make deliveries. The owner of the [*4]restaurant told him that it was the landlord who placed the plate there and there was nothing he could do about changing the plate.

The examination of the building owner, Pat Cambareri, was taken on February 3, 2012. He testified that he is the individual owner of the one-story commercial premises located at 185 East Main Street, Mount Kisco, NY The building is divided into four different stores, one of which is the Chines take-out restaurant known as 28 Chinese Kitchen. He stated that he believed that 28 Chinese Kitchen had a ten year lease but he does not remember when it was originally signed. He stated that he did not know why there was a metal plate behind the premises, he did not know the condition of the property on the date of the accident and he did not know who placed the metal plate in the back of the property. He described the plate as removable, a quarter of an inch thick. He stated that the slope from the parking lot to the back door of the restaurant is not steep. He also stated that he does not know the name of the owner of 28 Chinese Restaurant, he does not know where the accident occurred or how the accident happened. He testified that the plate was not in the location when he first rented the location to the co-defendant. He stated that after the accident he and his brother removed the metal plate and the entire path was repaved with concrete. He testified that pursuant to the lease, the tenant was responsible for taking care of the area behind the restaurant including the area where the metal plate was located. He stated that he never asked the owner of the restaurant to provide a certificate of insurance.

The examination before trial of Kemin Lin, the owner of 28 Chinese Restaurant, was taken on January 31, 2012. He stated that he was present on the date of the accident on July 8, 2009. He stated that the deliveries are made through the parking lot. He testified that from the parking lot there is a small sidewalk sloping downwards towards the back door. He stated that the slope was blacktop and passed through a creek or ditch and on top of the ditch is a movable metal plate. He estimated the ditch was two feet wide and the dimensions of the plate were two feet by four feet and approximately ½ inch thick. He stated that the plate was at the location when he first bought the restaurant in May 1993 and that the path was in the same condition for at least the past ten years. He stated that the purpose of the plate is to allow people to pass over the drainage ditch. Mr. Lin testified that he believed that the landlord was responsible for maintenance of the outside of the restaurant including snow removal. With respect to the path to the back door, he stated that sometimes he cleaned it but sometimes the landlord had people clear it. He stated that because there is water running [*5]from the top of the building into the creek it got clogged on occasion and the landlord fixed it. On the date of the accident he heard the plaintiff fall down outside and when he went out he observed the plaintiff on the ground with the supplies scattered over the ground. Mr. Lin testified that he entered into a subsequent lease on September 1, 2000. He stated that he believed that under the terms of the lease he was responsible only for maintenance of the interior of the restaurant. He also stated that for the year 2009 he did not have general liability insurance and he was never asked for and never provided the landlord with a copy of the certificate of insurance.

In moving to dismiss the complaint, defendant Cambareri contends that based upon the deposition testimony of the parties, the plaintiff caused his own injury when the momentum of his hand truck struck him in the leg. Further, defendant contends that the alleged defect was trivial based upon the fact that there was a small height differential and also because the plaintiff testified that he had traversed the the metal plate on more than ten occasions without incident. Citing Hymanson v A.L.L. Associates, 300 AD2d 358 [2d Dept. 2002], counsel claims that "a property owner may not be held liable in damages for "trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes or trip over a raised projection" Here, counsel asserts that metal plate only had a height differential of ½ inch and the only reason plaintiff fell was because he had difficulty pushing the heavily weighted cart over the raised portion of the plate.

Mr. Cambareri also contends that the deposition testimony of the parties establishes that he did not have actual or constructive notice of the metal plate in the sidewalk. Caberari asserts that the deposition testimony establishes that the he never noticed the defect nor did anyone else ever give him notice of the defect. In addition, he asserts that both the tenant's and the plaintiff's testimony indicate that neither one ever made a complaint regarding the metal plate or brought the defect to his attention. Defendant claims that the plaintiff's deposition testimony does not raise a question of fact because plaintiff testified that despite traversing the plate more than 10 times previously he did not complain about a defect prior to his fall. Counsel alleges that the landlord testified that it was not his responsibility to check the condition of the metal plate or maintain the metal plate. Further he testified that he did not create the condition as he did not put the plate in its place. Counsel claims that although the tenant, 28 Chinese Restaurant may have actual or constructive knowledge of the plate, the landlord did not have such knowledge. Counsel also argues that [*6]defendant Cambareri is an out of possession landlord who per the lease is not responsible for maintaining the area where the accident took place. Counsel also requests that this court grant a conditional order directing that the tenant is responsible pursuant to the terms of the lease to contractually indemnify the landlord for any damages awarded to the plaintiff resulting from this action.

Defendant 28 Chinese Kitchen cross-moves for summary judgment dismissing the complaint against it and opposing the landlord's motion for summary judgment. Counsel argues in opposition to the landlord's motion that the landlord knew or should have known about the defective metal plate which existed at the premises for more than 16 years prior to the plaintiff's accident. Counsel also states that the landlord was contractually responsible for the maintenance of the pathway in the back of the building as it was a common area in the parking lot used by all of the tenants. With respect to indemnification, counsel claims that the indemnification clause of the lease is not enforceable at the present time as it has not yet been determined whether the plaintiff's injuries were caused by the tenant's negligence or the landlord's own negligence.

With respect to the cross-motion to dismiss the complaint, defendant 28 Chinese Kitchen asserts that it is not responsible for injuries caused by an open, obvious and trivial defect which by its nature is not inherently dangerous and where the plaintiff was fully aware of the condition. Lastly, counsel argues that the tenant is not liable for the injuries as the accident occurred in a common area for which the landlord assumed responsibility under the lease and by practice.

The plaintiff opposes the motion for summary judgment contending that each defendant breached their the duty to maintain the property in a reasonably safe. Plaintiff also asserts that each defendant had actual and constructive knowledge of the condition which existed at the premises for over ten years. Plaintiff also asserts the deposition testimony of the parties raises several questions of fact such as how long the metal plate existed on the property and which defendant is responsible to maintain and repair the area of the pathway where the metal plate was positioned. Plaintiff also contends that the question of whether the metal plate was an open and obvious condition is a question of fact for the jury and in any event, only goes to the issue of comparative fault. Lastly, plaintiff asserts that there is a question of fact as to whether the metal plate constitutes an inherently dangerous condition given that the metal plate was unsecured and moveable, not placed on flat [*7]ground, and was covering an open space making it more likely to shift if struck by a pedestrian or by an object.

Upon review and consideration of the defendant Cambareri's motion, defendant 28 Chinese Kitchen's cross-motion, plaintiff's affirmation in opposition, and defendant's reply thereto, this court finds as follows:

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]). Summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue (see Kwong On Bank, Ltd. v Monrose Knitwear Corp., 74 AD2d 768[2d Dept 1980]).The evidence will be construed in a light most favorable to the non-moving party (see Benincasa v. Garrubbo, 141 AD2d 636, [2d Dept 1988]).

"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it" (Sermos v Gruppuso, 95 AD3d 985 [2d Dept. 2012] citing Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629 [2d Dept. 2009]; Spindell v Town of Hempstead, 92 AD3d 669 [2d Dept. 2012]). The defendant has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it" (see Jackson v Jamaica First Parking, LLC, 91 ADd 602 [2d Dept. 2012] citing Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept. 2009]).

Initially, both defendants allege that they are not liable for the plaintiff's injuries because the plaintiff was aware of the existence of the metal plate which allegedly caused the accident having testified that he had made deliveries to the restaurant on at least ten prior occasions without incident and each time had to traverse the metal plate to reach the back door of the restaurant. The defendants contend that the metal plate was only ½ inch in height, that the height differential was trivial, that the plate was open and obvious was not inherently dangerous and did not constitute trap or nuisance. [*8]

However, the Appellate Division has held that an injured person's knowledge of a readily observable dangerous condition "does not, standing alone, necessarily obviate a landowner's duty to maintain his or her property in a reasonably safe condition" (see Coleman v Crumb Rubber Mfrs., 92 AD3d 1128 [2d Dept. 2912] quoting MacDonald v City of Schenectady, 308 AD2d 125[2d Dept. 2003]). Even if the alleged dangerous condition qualifies as open and obvious as a matter of law, that characteristic merely eliminates the property owner's duty to warn of the hazard, but does not eliminate the property owner's broader duty to maintain the premises is a reasonably safe condition (see Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69 [1st Dept. 2004). Thus, plaintiff's use and awareness of the metal plate which covered a drainage ditch in the path to the restaurant raises triable issues of fact as to his comparative negligence, but does not relieve defendants of their duty to maintain the premises in a reasonably safe condition (see Coleman v Crumb Rubber Mfrs., supra; Tulovic v. Chase Manhattan Bank, N.A., 309 AD2d 923 [2d Dept. 2002]). In addition, the defendants failed to establish as a matter of law that the defect was trivial or not inherently dangerous and therefore not actionable (see Fairchild v J. Crew Group, Inc., 21 AD3d 523 [2d Dept. 2005]). Here, although the metal plate only had a height differential of approximately ½ inch from the ground, the metal plate was placed to cover over a drainage ditch, was not attached to the ground, and was movable. In fact, according to the plaintiff's testimony when his hand truck struck the metal plate it caused the plate to shift resulting in the plaintiff falling back into the ditch. Although the metal plate was open and obvious, plaintiff's testimony that it shifted and moved when struck, exposing the ditch underneath raised a question of fact as to whether the metal plate was inherently dangerous or whether it created a trap like condition. Thus, the defendants failed to establish, as a matter of law, that the metal plate a trivial defect and was not inherently dangerous as a matter of law (see (see Villano v Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061, 908 NYS2d 124 [2d Dept. 2010]; Cooper v American Carpet & Restoration Servs., Inc., 69 AD3d 552 [2d Dept. 2010]).

In addition, this Court finds that both defendants failed to meet their prima facie burdens of establishing their entitlement to judgment as a matter of law as they each they failed to establish that they lacked actual or constructive notice of the allegedly dangerous condition (see Walsh v Super Value, Inc., 76 AD3d 371[2010]). A landowner has constructive notice of a dangerous or defective condition on property when the condition is visible and apparent, and has existed for a length of time sufficient to afford a reasonable opportunity to discover and [*9]remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Davis v Rochdale Vil., Inc., 63 AD3d 870, [2d Dept. 2009]; Latalladi v Peter Luger Steakhouse, 52 AD3d 475, 476, 859 NYS2d 698 [2d Dept. 2008]). Here the tenant, Mr. Lin testified that he was aware that the metal plate was covering the hole since the time he signed his first lease with the landlord in 1993. Plaintiff himself testified that the plate was there the past two years while he was making deliveries for his employer. Plaintiff testified that the tenant had actual notice of the metal plate as he made complaints to Mr. Lin regarding the dangerous nature of he plate but that nothing was done to remedy the condition. Although Mr. Cambareri testified that he had no knowledge of how or when the metal plate was placed in the walkway and that he never checked on or performed any maintenance or repair work to the sidewalk or metal plate there is a question of fact as to whether he had constructive notice of the condition as the plate was clearly in the path from the parking lot for many years and Lin testified that the landlord had made repairs to the drain under the metal plate over the years. Thus, both defendants failed to establish, prima facie that they neither had actual or constructive notice of the dangerous which allegedly caused the accident. It is clear that the allegedly dangerous condition existed for a sufficient period of time for it to have been discovered and remedied by either the landlord or the tenant (see Sotomayor v. Pafos Realty, LLC, 43 AD3d 905 [2d Dept. 2007]).

In addition, defendant Cambareri has submitted conflicting testimony with regard to whether he or his tenant was responsible for maintaining the pathway in the parking lot behind the premises. Mr. Lin testified that the landlord took care of the outside of the property and made repairs in and around the metal plate before and after the subject accident. Lin believed he was only responsible for maintaining the interior of the premises. The landlord however, testified that it was the sole responsibility of the tenant to maintain the outside pathway and the metal plate area. Further, although the lease requires the tenant to keep the sidewalks free of ice the landlord is required to make all structural repairs.

An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord "has a duty imposed by statute or assumed by contract or a course of conduct" (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2d Dept. 2011]; Rossal-Daub v Walter, 58 AD3d 992 [3d Dept. 2009]). Here, Cambareri failed to establish, prima facie, that he was an out-of-possession landlord with no such duty, such that liability could not be imposed upon him. There is [*10]a question of fact as to whether the plate was a defective condition and whether maintenance and repair of the metal plate and the pathway from the parking lot was a structural repair for which the landlord was responsible (see Sotomayor v Pafos Realty, LLC, 43 AD3d 905 [2d Dept. 2007]).

That branch of Cambareri's motion for an order directing the tenant to indemnify the landlord for damages awarded to the plaintiff is denied. Here the indemnification clause states that the tenant agreed to indemnify the landlord only for such losses or damages sustained by the landlord due to the tenant's negligence. As it has not yet been determined whether either defendant was negligent, and as the landlord has not established his freedom from negligence at this time an award of summary judgment on the contractual indemnification cross-claim is premature(see Mott v Tromel Constr. Corp., 79 AD3d 829 [2d Dept. 2010]; Martinez v City of New York, 73 AD3d 993 [2d Dept. 2010]; Bellefleur v Newark Beth Israel Med. Ctr., 66 AD3d 807 [2d Dept, 2009]; Gomez v. Sharon Baptist Bd. of Directors, Inc., 55 AD3d 446 [1st Dept. 2008]).

Since the defendants did not meet their prima facie burden, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Anastasio v Berry Complex, LLC, 82 AD3d 808 [2d Dept. 2011]; Gerbi v Tri-Mac Enters. of Stony Brook, Inc., 34 AD3d 732 [2d Dept. 2006]).

Accordingly, based upon the foregoing it is hereby,

ORDERED, that the motion by defendant Cambareri for summary judgment dismissing the plaintiff's complaint and for indemnification and the cross-motion by defendant 28 Chinese Kitchen for an order dismissing the plaintiff's complaint are denied.

Dated: December 27, 2012

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.