Rodriguez v 583 Knickerbocker LLC

Supreme Court, Kings County

Decided on June 9, 2026

Index No. 530353/2023

Aaron D. Maslow, J.

The following papers efiled on NYSCEF were used on this motion: 63-87.

In its order issued in connection with Motion Sequence No. 3, the Court determined Defendants' motion for summary judgment dismissing the complaint by granting it insofar as Defendant TCHORS LLC was concerned and denying it with respect to Defendants 583 Knickerbocker LLC and 583 Knickerbocker Holdings LLC. This decision explicates the Court's reasoning behind the order.

Introduction

The Court must determine (1) whether Defendant 583 Knickerbocker LLC and Defendant 583 Knickerbocker Holdings LLC (hereinafter "Knickerbocker Defendants") are entitled to summary judgment dismissing the complaint on the grounds that they neither created the alleged sidewalk defect nor had actual or constructive notice of it prior to the accident; (2) whether Defendant TCHORS LLC (hereinafter "TCHORS") is entitled to summary judgment on the basis that it owed no duty of care because it had not commenced work at the subject property; and (3) whether Plaintiff Placido Reyes Rodriguez's September 2022 Google Maps image is admissible and sufficient to raise a triable issue as to notice.

Background

On April 4, 2023, Plaintiff allegedly tripped and fell on a crack in the sidewalk directly in front of 589 Knickerbocker Avenue in Brooklyn ("subject property"). Plaintiff claims the crack was a hazardous condition that directly caused his injuries. The Knickerbocker Defendants owned the subject property at the time of the incident, with Mendel Berkowitz as the principal of the Knickerbocker entities and Jack Klein as a member of both. The Knickerbocker Defendants retained TCHORS as the general contractor for planned construction work on the subject property. Both sides agree that no construction had begun as of the date of the accident, and that TCHORS had not performed any sidewalk work or retained any subcontractors at that time.

Plaintiff commenced this action against all three defendants, alleging that the sidewalk was in a dangerous and defective condition and that each defendant was negligent in causing or permitting that condition to exist. Plaintiff contends the crack was not trivial but a hazardous condition that directly caused his fall. Plaintiff submitted photographs of the alleged defect in support of his opposition to the motion (NYSCEF Doc No. 72). Plaintiff also testified that he did not see the crack before he fell.

The Knickerbocker Defendants deny liability, asserting they had no notice of the alleged defect prior to the incident and therefore no duty to remedy it. In support, they submit that both Berkowitz and Klein personally inspected the property before the accident and observed no sidewalk defect. Plaintiff disputes the adequacy of those inspections, asserting that no inspection logs, reports, or photographs of the sidewalk were produced and that the inspections focused on the building interior rather than the sidewalk. TCHORS denies liability, contending it performed no work at the location and owed no duty of care with respect to the condition of the sidewalk.

Defendants jointly move for summary judgment seeking dismissal of the complaint in its entirety. To defeat the motion, Plaintiff seeks to introduce a Google Maps image dated September 2022 (NYSCEF Doc No. 72), which depicts a portion of the sidewalk at the subject property several months before Knickerbocker Defendants' purchase of the property in December 2022 and the April 2023 incident. Plaintiff offers the image to demonstrate that the alleged defect existed prior to the accident for a sufficient length of time to raise a question of whether Defendants had actual or constructive notice of the condition.

Defendants' Contentions

Defendants move pursuant to CPLR 3212, arguing that they have satisfied their prima facie burden, and that Plaintiff has failed to raise a triable issue of fact. As a threshold matter, Defendants contend that TCHORS, as a contractor whose work had not yet commenced, owed no duty to Plaintiff and that the Knickerbocker Defendants neither created the alleged defect, derived any special use from the sidewalk, nor had actual or constructive notice of the condition prior to the accident, and therefore bear no liability under common law or New York City Administrative Code § 7-210 (see NYSCEF Doc Nos. 64, 85).

With respect to TCHORS, Defendants argue that a contractor owes no duty in negligence to a non-contracting third party absent an applicable Espinal exception, and that because Plaintiff did not plead or identify any such exception in the complaint or bill of particulars, TCHORS need only negate those expressly raised. Defendants contend that no Espinal exception applies, as TCHORS did not create or exacerbate the alleged condition, Plaintiff did not rely on TCHORS' ongoing performance, and TCHORS did not displace the Knickerbocker Defendants' duty to maintain the sidewalk. Defendants further assert that the record establishes TCHORS had not commenced construction, performed any sidewalk work, or retained any subcontractors at the time of the accident, and that no evidence links any conduct by TCHORS to the condition of the sidewalk. (See NYSCEF Doc No. 64, citing Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Federico v Defoe Corp., 138 AD3d 682, 684 [2d Dept 2016].)

As to the Knickerbocker Defendants, Defendants argue that under New York law, an abutting [*2]landowner is liable for a sidewalk defect only where the owner created the condition or made special use of the sidewalk, or a statute expressly imposes liability, and that none of those circumstances are present here. Defendants assert that neither the Knickerbocker Defendants nor their contractor, TCHORS, performed any sidewalk work before the accident, and that the record is devoid of evidence of special use conferring any benefit on the property owner beyond ordinary public use. (See NYSCEF Doc No. 64, citing Meyer v Guinta, 262 AD2d 463 [2d Dept 1999].)

Defendants further argue in reply that Plaintiff abandoned certain claims by failing to address specific points Defendants advanced within the motion, including the arguments that TCHORS owed no duty and that the Knickerbocker Defendants did not create the condition, did not make special use of the sidewalk, and lacked actual notice. Defendants maintain that a party's failure to oppose a distinct request for relief constitutes a waiver of any defense thereto, citing to Rodriguez v Dormitory Auth. of the State of NY (104 AD3d 529, 531 [1st Dept 2013]) (see NYSCEF Doc No. 85).

Plaintiff's Contentions

Plaintiff opposes the motion on the ground that Defendants have not established, prima facie, that they neither created the hazardous condition nor had actual or constructive notice of it for a sufficient period to discover and remedy it. Plaintiff contends that the defect was visible, apparent, and present well before the accident, such that its discovery and correction were reasonably possible, thereby precluding summary judgment under CPLR 3212, citing to Negri v Stop & Shop Inc. (65 NY2d 625 [1985]) and (Shehata v City of New York (128 AD3d 944 [2d Dept 2015]). (See NYSCEF Doc No. 82.)

In support of his opposition, Plaintiff relies on the September 2022 Google Maps image (NYSCEF Doc No 72), which he contends depicts the same sidewalk defect several months before Defendants acquired the property and more than six months before the accident. Plaintiff argues that the image demonstrates the condition was not sudden but a structural defect that formed over time, and that where a defect develops gradually and remains visible, constructive notice may be inferred (see NYSCEF Doc No. 82, citing DeGiacomo v Westchester County Healthcare Corp., 295 AD2d 395 [2d Dept 2002] ["To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time before the accident so as to permit the defendant's employees to discover and remedy it."]).

Plaintiff argues that whether a landowner knew or should have known of a hazard is a question of fact for the jury. Plaintiff contends that the Google Maps image constitutes evidence from which a jury could conclude that the alleged crack was present for months prior to the accident and, therefore, discoverable upon reasonable inspection. (See NYSCEF Doc No. 82, citing Bolloli v Waldbaum, Inc., 71 AD3d 618 [2d Dept 2010] ["The issue of whether a dangerous condition exists on real property depends on the particular facts and circumstances of each case, and generally presents a question of fact for the jury."].)

Plaintiff further claims that Defendants' reliance on the testimony and affirmation of Berkowitz and Klein asserting they did not observe the sidewalk defect during pre-construction inspections is insufficient to establish a lack of constructive notice. Vague testimony asserting a failure to notice a defect does not satisfy the prima facie burden where the condition is alleged to have been visible and apparent for a sufficient period, according to Plaintiff.

Plaintiff asserts that Defendants failed to submit any documentary evidence that reasonable pre-construction inspections were conducted, noting that no inspection logs, reports, or other records were produced. Plaintiff argues that the absence of such evidence raises a factual issue for the jury to determine as to whether the sidewalk was properly and reasonably inspected. (See NYSCEF Doc No. 82, citing Johannsdottir v Kohn, 90 AD2d 842 [2d Dept 1982].)

Plaintiff contends that Defendants cannot satisfy their burden by pointing to Plaintiff's inability to testify as to how long the defect existed, arguing that constructive notice turns on what Defendants knew or should have known, not on Plaintiff's own knowledge of the defect's duration. Plaintiff also maintains [*3]that the absence of evidence demonstrating that the defect did not exist prior to the accident is itself sufficient to preclude summary judgment. (See NYSCEF Doc No. 82, citing Fox v Kamal Corp., 271 AD2d 485 [2d Dept 2000].)

Plaintiff asserts that the Knickerbocker Defendants, as property owners, bear a non-delegable duty under New York City Administrative Code § 7-210 to maintain the sidewalk in a reasonably safe condition, contending that the statute was enacted to promote pedestrian safety and to place liability on those best positioned to remedy sidewalk defects. Plaintiff further argues that this duty applies even when the defect extends beyond the property line, or the owner is legally out of possession of the adjoining property (see NYSCEF Doc No. 82, citing Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167 [2019]); Sangaray v West. Riv. Assocs., LLC, 26 NY3d 793 [2016]).

Finally, Plaintiff argues that Defendants have failed to satisfy their prima facie burden of demonstrating entitlement to judgment as a matter of law, and that where a movant fails to eliminate all triable issues of fact, summary judgment must be denied, citing to Winegrad v New York Univ. Med. Ctr. (64 NY2d 851 [1985]).

Discussion

A defendant who moves for summary judgment in a premises liability action bears the initial burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to permit discovery and remediation (see Joachim v 1824 Church Ave., Inc., 12 AD3d 409, 410 [2d Dept 2004]). Only after the moving defendant satisfies this threshold burden does the court examine the sufficiency of the plaintiff's opposition (see id.).

As to Defendant TCHORS LLC, a contractor owes no duty of care to a third party where it has not commenced work at the subject location and has taken no action with respect to the allegedly defective condition (see Espinal, 98 NY2d 136 [2002]). Here, both parties acknowledge that TCHORS had not commenced any work at the subject property prior to the accident, had performed no sidewalk work, and had retained no subcontractors. Plaintiff does not identify any adequate basis upon which an exception to the rule applies. Accordingly, TCHORS owed no duty of care to Plaintiff and summary judgment dismissing the complaint as against TCHORS LLC is warranted.

As to the Knickerbocker Defendants, summary judgment is denied. Under NYC Administrative Code § 7-210, abutting property owners bear a nondelegable duty to maintain the sidewalk in a reasonably safe condition. To obtain summary judgment, such a defendant must establish prima facie that it neither created the alleged defect nor had actual or constructive notice of its existence for a sufficient length of time to permit discovery and remediation (see Negri, 65 NY2d 625 [1985]; Joachim, 12 AD3d 409, 410 [2d Dept 2004]). Constructive notice requires that a defect be visible and apparent and exist for a sufficient length of time prior to the accident to permit discovery and correction (see id.).

The Knickerbocker Defendants have not eliminated triable issues of fact as to whether they created the alleged defect or had actual or constructive notice of its existence. Under CPLR 4532-b, images from web-mapping services are admissible where they indicate the date of their creation and are subject to challenge as to accuracy. The Second Department has affirmed reliance on such images in the summary judgment context without imposing an advance notice requirement for pretrial motion practice (see Ryabaya v City of New York, 220 AD3d 903 [2d Dept 2023]).^FN1 Here, the September 2022 Google [*4]Maps image bears its creation date on its face and predates both the Knickerbocker Defendants' acquisition of the property in December 2022 and Plaintiff's April 2023 accident. When considered together with Plaintiff's photographs of the alleged defect, the image raises a triable issue of fact as to whether the condition existed for a sufficient period to permit discovery and remediation.

The Knickerbocker Defendants' inspection testimony does not resolve this issue. A failure to observe a condition does not, by itself, establish the absence of constructive notice (see Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 AD3d 551 [2d Dept 2011]). Their submissions therefore do not satisfy their prima facie burden to establish the absence of constructive notice, and summary judgment must be denied.

Conclusion

As to Defendants 583 Knickerbocker LLC and 583 Knickerbocker Holdings LLC, Defendants' motion for summary judgment dismissing the complaint is denied. The Google Maps image dated September 2022, combined with Plaintiffs' photos demonstrates that there is a triable issue of fact as to Defendants' constructive notice of the defect (see CPLR 4532-b; Ryabaya v City of New York, 220 AD3d 903). The complaint is dismissed against Defendant TCHORS LLC, who did not owe a duty of care to Plaintiff. Thus, Defendants' motion for summary judgment dismissing the complaint was GRANTED TO THE EXTENT indicated in the order.