Preview
FILED: BRONX COUNTY CLERK 07/19/2022
07/27/2022 12:27
04:03 PM INDEX NO. 303887/2014E
NYSCEF DOC. NO. 81
84 RECEIVED NYSCEF: 07/19/2022
07/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
---------------------------------------------------------------------X
BARBARA SIERRA,
DECISION AND ORDER
Plaintiff, WITH NOTICE OF ENTRY
-against- Index No.: 303887/2014
CROTONA CENTER CORP., CROTONA CENTER Motion Seq No.: 4&5
CORP., a/k/a PROCIDA NORTHWEST BRONX
180TH STREET VENTURE and CLEANERS EXPRESS,
Defendants.
---------------------------------------------------------------------X
COUNSELORS:
PLEASE TAKE A NOTICE, that the within is a true copy of a Decision and Order duly
filed in the office of the Clerk of the within Court on the 15th day of July 2022.
Dated: New York, New York
July 19, 2022
Yours, etc.
GODOSKY & GENTILE, P.C.
__________________________
By: Anthony Gentile, Esq.
Trial Attorneys for Plaintiff
100 Wall Street, Suite 1702
New York, New York 10005
(212) 742-9700
TO: Law Office of Thomas K. Moore
Attorneys for Defendant
Crotona Center Corp. and Crotona
Center Corp. a/k/a Procida Northwest
Bronx 180th Street Venture
701 Westchester Avenue, Suite 101W
White Plains, New York 10604
(914) 285 – 8500
Hoffman Roth & Matlin, LLP
Attorneys for Dedendant
V.S. Cleaners, Inc., d/b/a Cleaners Express
i/s/h/a Cleaners Express
505 Eight Avenue, Suite 1101
New York, New York 10018
(212) 964 – 1890
1 of 6
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NYSCEF DOC. NO. 79
81
84 RECEIVED NYSCEF: 07/15/2022
07/19/2022
07/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
UNl'Y O R NX IA
BARBARA SIERRA, Index No: 303887i201'tE
Plaintiff.
-against- DECISION AND ORDER
CROTONA CENTER CORP., CROTONA CENTER
CORP. a/k/a PROCIDA NORTHWEST BRONX l80Ir Present:
HON. KENNETH L. THOMPSON' JR.
STREET VENTURE ANd CLEANERS EXPRESS
Defendants
x
papers numbered I to read on this motion to dismiss/motion for sumrnary judgment
The following
PAPERS
No On Calendar ofAPril l5' 2022
& #5
to Show Cause - Exhibits and Affidavits Annexed-----------motions sequence #4
Notice of Motion-Order
Affi davit and Exhibits------ motions sequence #4 & #5
Answering
motions sequenc€ #4 & #5
Replying Affidavit and Exhibi
'-----motion sequence #4
Memorandum of Law----------------'------
on this motion is as follows
Upon the foregoing papers and due deliberation thereo f. the Decision/Order
The motions herein are consolidated for decision and disposition. See
companion decision for outcome.
The foregoing constitutes the decision and order of the court'
Dated IL 2oL2-
KENNE H L. THOMPSON JR. J C
1
2 of 4
6
FILED: BRONX COUNTY CLERK 07/15/2022
07/19/2022
07/27/2022 03:56
12:27
04:03 PM INDEX NO. 303887/2014E
NYSCEF DOC. NO. 79
81
84 RECEIVED NYSCEF: 07/15/2022
07/19/2022
07/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUN TY OF BRONX IA 20 x
BARBARA SIERRA. Index No: 303887/2014E
Plaintiff,
-against- DECISION AND ORDER
CROTONA CENTER CORP., CROTONA CENTER
CORP, a/k/a PROCIDA NORTHWEST BRONX 180rrl Present:
VENTURE ANd CLEANERS EXPRESS HON. KENNETH L. THOMPSON, JR.
STREET
Defendants
x
The following papers numbered I to read on this motion to dismiss/motion for summary judgment
No On Calendar ofApril15,2022 PAPERS
Notice of Motion-order io Show cause - Exhibits and Affidavits Annexed-----------motions sequence #4 & #5
Answering Affidavit and Exhibits----- otions sequence #4 & #5
Replying Affidavit and Exhib motions sequence #4 & #5
Memorandum of Law--------------------- ----------motion sequence #4
Upon the foregoing papers and due deliberation thereof, the Decis ion/Order on this motion is as follows
Defendant, V.S. Cleaners, Inc. d/b/a Cleaners Express, i/s/h/a Cleaners
Express, (Cleaners), moves pursuant to CPLR 3212to dismiss plaintifls complaint
as well as cross-claims as against it. Plaintiff moves pursuant to CPLR 3212 for
partial summary judgment against defendants, Crotona Center Corp. and Crotona
Center Corp. a/k /a Procida Northwest Bronx 180'h Street Venture, (Crotona
Center), on the issue of liability. The aforesaid motions are consolidated for
purposes of decision and disposition.
This action arose as a result of personal injuries sustained by plaintiff in a
trip and fall on a sidewalk adjacent to premises owned by Crotona Center and
leased to Cleaners. Plaintiff submitted a photograph of adjoining sidewalk flags
where plaintiff tripped that had a vertical height difference of approximately one
inch. Plaintiff s expert opined that a "toe trap" was created as a result ofsuch
height differential. Moreover,"ahazard shall exist on any sidewalk where there is
2
3 of 4
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12:27
04:03 PM INDEX NO. 303887/2014E
NYSCEF DOC. NO. 79
81
84 RECEIVED NYSCEF: 07/15/2022
07/19/2022
07/27/2022
any of the following:... a vertical grade differential between adjacent sidewalk
flags greater than or equal to one half inch." New York City, N'Y', Code $ l9-
t52.
crotona center opposes plaintiff s motion on grounds that it does not have a
the sidewalk pursuant to a lease executed on June 13'
duty to plaintiff to maintain
1g94, asCleaners has assumed the duty to maintain the sidewalk. Pursuant to
4.04 of the June 13, lgg4,pertinent lease agreement "[t]enant agrees, at its
article
own expense, to maintain and make all necessary repairs and replacements to the
Area for such purposes. The common Area shall, at all times, be subject
Common
control, management and approval of Landlord." In pertinent part
to the exclusive
Article 4.02 of the l9 defines "The term "common Area" [which] shall mean
all...sidewalks..."
However,
..[w]hile an owner can shift the work of maintaining the sidewalk
to another, the owner cannot shift the duty, nor exposure and liability for injuries
caused by negligent maintenance, imposed under section 7-2|0." (Xiang Fu He v.
Troon Mgmt., Inc.,34 N'Y.3d 167,174 [2019]'
To obtain partial summary judgment, a plaintiff does not have to
the absence of his own comparative fault (see Rodriguez v City of New
demonstrate
3 |2, 8])' Benny v, Concord Partners 46th St. LLC, 192
York, 3l NY3d 323 t20 1
A.D.3d 531,532,143 N.Y.S.3d 44 (2021)
Accordingly, plaintiff s motion for partial summary judgment on liability is
granted. comparative fault has not been decided as a matter of law on this motion.
With respect to the motion of Cleaners for summary judgment' "the
generally has an indemnification action against a tenant or lessee who
landowner
covenants to maintain the property." (Xiang Fu He v' Troon Mgmt'' Inc''34
2
3
4 of 4
6
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07/27/2022 03:56
12:27
04:03 PM INDEX NO. 303887/2014E
NYSCEF DOC. NO. 79
81
84 RECEIVED NYSCEF: 07/15/2022
07/19/2022
07/27/2022
N.Y.3d 167,175 t2019]). Furthermore,thereisanissueoffactastowhetherthere
were sidewalk slabs negligently replaced at Crotona Center's expense. There is a
work description on an invoice dated November 12,2012, for sidewalk repair by
John H Construction, hired by Crotona Center, states as follows:
WORK DESCRIPTION:BREAK UP AND REMOVE
APPROXIMATELY 7 SIDEWALK SLABS IN FRONT OF
LAUNDRYMAT AND MEDICAL FACILITY AND RE POIJ'R
SLABS TO MEET EXISTING SIDEWALKS
The medical facility was adjacent to the laundromat. crotona center as
denies that any of the slabs in front of the laundromat were replaced'
Accordingly, defendant, Cleaners Express' motion is denied'
CONCLUSION
Accordingly, plaintiff s motion for partial summary judgment on liability is
granted. Comparative fault has not been decided as a matter of law on this motion.
Defendant, Cleaners Express' motion is denied.
The foregoing constitutes the decision and order of the Court'
Darcd:1 /o?-7'
KENNETH L. HOMPSON JR. C
3
4
5 of 4
6
FILED: BRONX COUNTY CLERK 07/19/2022
07/27/2022 12:27
04:03 PM INDEX NO. 303887/2014E
NYSCEF DOC. NO. 81
84 RECEIVED NYSCEF: 07/19/2022
07/27/2022
AFFIDAVIT OF SERVICE BY MAIL
Index No.: 303887/2014
STATE OF NEW YORK }
} ss:
COUNTY OF NEW YORK }
Bernarda Fiallo, being duly sworn, deposes and says: I am not a party to thisaction, I am
19d'
over 18 years of age and reside in Kings County, State of New York. That on the day of July
2022, I served the within DECISION AND ORDER WITH NOTICE OF ENTRY, via
NYSCEF, upon:
Law Office of Thomas K. Moore
Attorneys for Defendant
Crotona Center Corp. and Crotona
Center Corp. a/k/a Procida Northwest
Bronx 180th Street Venture
701 Westchester Avenue, Suite 101W
White Plains, New York 10604
285 - 8500
(914)
Hoffman Roth & Matlin, LLP
Attorneys for Dedendant
V.S. Cleaners, Inc., d/b/a Cleaners Express
i/s/h/a Cleaners Express
505 Eight Avenue, Suite 1101
New York, New York 10018
964 - 1890
(212)
ern rda Fiallo
Swo r me this
19 da ul 2022
O ZAPRUDSKlY
York
m toner ofeeds, City of New
No. 2-13101
Filed in: New York
Certificate
Commission ExpiresOctober1,
6 of 6
Preview
FILED: BRONX COUNTY CLERK 07/19/2022 07/27/2022 12:27 04:03 PM INDEX NO. 303887/2014E NYSCEF DOC. NO. 81 84 RECEIVED NYSCEF: 07/19/2022 07/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------------X BARBARA SIERRA, DECISION AND ORDER Plaintiff, WITH NOTICE OF ENTRY -against- Index No.: 303887/2014 CROTONA CENTER CORP., CROTONA CENTER Motion Seq No.: 4&5 CORP., a/k/a PROCIDA NORTHWEST BRONX 180TH STREET VENTURE and CLEANERS EXPRESS, Defendants. ---------------------------------------------------------------------X COUNSELORS: PLEASE TAKE A NOTICE, that the within is a true copy of a Decision and Order duly filed in the office of the Clerk of the within Court on the 15th day of July 2022. Dated: New York, New York July 19, 2022 Yours, etc. GODOSKY & GENTILE, P.C. __________________________ By: Anthony Gentile, Esq. Trial Attorneys for Plaintiff 100 Wall Street, Suite 1702 New York, New York 10005 (212) 742-9700 TO: Law Office of Thomas K. Moore Attorneys for Defendant Crotona Center Corp. and Crotona Center Corp. a/k/a Procida Northwest Bronx 180th Street Venture 701 Westchester Avenue, Suite 101W White Plains, New York 10604 (914) 285 – 8500 Hoffman Roth & Matlin, LLP Attorneys for Dedendant V.S. Cleaners, Inc., d/b/a Cleaners Express i/s/h/a Cleaners Express 505 Eight Avenue, Suite 1101 New York, New York 10018 (212) 964 – 1890 1 of 6 FILED: BRONX COUNTY CLERK 07/15/2022 07/19/2022 07/27/2022 03:56 12:27 04:03 PM INDEX NO. 303887/2014E NYSCEF DOC. NO. 79 81 84 RECEIVED NYSCEF: 07/15/2022 07/19/2022 07/27/2022 SUPREME COURT OF THE STATE OF NEW YORK UNl'Y O R NX IA BARBARA SIERRA, Index No: 303887i201'tE Plaintiff. -against- DECISION AND ORDER CROTONA CENTER CORP., CROTONA CENTER CORP. a/k/a PROCIDA NORTHWEST BRONX l80Ir Present: HON. KENNETH L. THOMPSON' JR. STREET VENTURE ANd CLEANERS EXPRESS Defendants x papers numbered I to read on this motion to dismiss/motion for sumrnary judgment The following PAPERS No On Calendar ofAPril l5' 2022 & #5 to Show Cause - Exhibits and Affidavits Annexed-----------motions sequence #4 Notice of Motion-Order Affi davit and Exhibits------ motions sequence #4 & #5 Answering motions sequenc€ #4 & #5 Replying Affidavit and Exhibi '-----motion sequence #4 Memorandum of Law----------------'------ on this motion is as follows Upon the foregoing papers and due deliberation thereo f. the Decision/Order The motions herein are consolidated for decision and disposition. See companion decision for outcome. The foregoing constitutes the decision and order of the court' Dated IL 2oL2- KENNE H L. THOMPSON JR. J C 1 2 of 4 6 FILED: BRONX COUNTY CLERK 07/15/2022 07/19/2022 07/27/2022 03:56 12:27 04:03 PM INDEX NO. 303887/2014E NYSCEF DOC. NO. 79 81 84 RECEIVED NYSCEF: 07/15/2022 07/19/2022 07/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUN TY OF BRONX IA 20 x BARBARA SIERRA. Index No: 303887/2014E Plaintiff, -against- DECISION AND ORDER CROTONA CENTER CORP., CROTONA CENTER CORP, a/k/a PROCIDA NORTHWEST BRONX 180rrl Present: VENTURE ANd CLEANERS EXPRESS HON. KENNETH L. THOMPSON, JR. STREET Defendants x The following papers numbered I to read on this motion to dismiss/motion for summary judgment No On Calendar ofApril15,2022 PAPERS Notice of Motion-order io Show cause - Exhibits and Affidavits Annexed-----------motions sequence #4 & #5 Answering Affidavit and Exhibits----- otions sequence #4 & #5 Replying Affidavit and Exhib motions sequence #4 & #5 Memorandum of Law--------------------- ----------motion sequence #4 Upon the foregoing papers and due deliberation thereof, the Decis ion/Order on this motion is as follows Defendant, V.S. Cleaners, Inc. d/b/a Cleaners Express, i/s/h/a Cleaners Express, (Cleaners), moves pursuant to CPLR 3212to dismiss plaintifls complaint as well as cross-claims as against it. Plaintiff moves pursuant to CPLR 3212 for partial summary judgment against defendants, Crotona Center Corp. and Crotona Center Corp. a/k /a Procida Northwest Bronx 180'h Street Venture, (Crotona Center), on the issue of liability. The aforesaid motions are consolidated for purposes of decision and disposition. This action arose as a result of personal injuries sustained by plaintiff in a trip and fall on a sidewalk adjacent to premises owned by Crotona Center and leased to Cleaners. Plaintiff submitted a photograph of adjoining sidewalk flags where plaintiff tripped that had a vertical height difference of approximately one inch. Plaintiff s expert opined that a "toe trap" was created as a result ofsuch height differential. Moreover,"ahazard shall exist on any sidewalk where there is 2 3 of 4 6 FILED: BRONX COUNTY CLERK 07/15/2022 07/19/2022 07/27/2022 03:56 12:27 04:03 PM INDEX NO. 303887/2014E NYSCEF DOC. NO. 79 81 84 RECEIVED NYSCEF: 07/15/2022 07/19/2022 07/27/2022 any of the following:... a vertical grade differential between adjacent sidewalk flags greater than or equal to one half inch." New York City, N'Y', Code $ l9- t52. crotona center opposes plaintiff s motion on grounds that it does not have a the sidewalk pursuant to a lease executed on June 13' duty to plaintiff to maintain 1g94, asCleaners has assumed the duty to maintain the sidewalk. Pursuant to 4.04 of the June 13, lgg4,pertinent lease agreement "[t]enant agrees, at its article own expense, to maintain and make all necessary repairs and replacements to the Area for such purposes. The common Area shall, at all times, be subject Common control, management and approval of Landlord." In pertinent part to the exclusive Article 4.02 of the l9 defines "The term "common Area" [which] shall mean all...sidewalks..." However, ..[w]hile an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7-2|0." (Xiang Fu He v. Troon Mgmt., Inc.,34 N'Y.3d 167,174 [2019]' To obtain partial summary judgment, a plaintiff does not have to the absence of his own comparative fault (see Rodriguez v City of New demonstrate 3 |2, 8])' Benny v, Concord Partners 46th St. LLC, 192 York, 3l NY3d 323 t20 1 A.D.3d 531,532,143 N.Y.S.3d 44 (2021) Accordingly, plaintiff s motion for partial summary judgment on liability is granted. comparative fault has not been decided as a matter of law on this motion. With respect to the motion of Cleaners for summary judgment' "the generally has an indemnification action against a tenant or lessee who landowner covenants to maintain the property." (Xiang Fu He v' Troon Mgmt'' Inc''34 2 3 4 of 4 6 FILED: BRONX COUNTY CLERK 07/15/2022 07/19/2022 07/27/2022 03:56 12:27 04:03 PM INDEX NO. 303887/2014E NYSCEF DOC. NO. 79 81 84 RECEIVED NYSCEF: 07/15/2022 07/19/2022 07/27/2022 N.Y.3d 167,175 t2019]). Furthermore,thereisanissueoffactastowhetherthere were sidewalk slabs negligently replaced at Crotona Center's expense. There is a work description on an invoice dated November 12,2012, for sidewalk repair by John H Construction, hired by Crotona Center, states as follows: WORK DESCRIPTION:BREAK UP AND REMOVE APPROXIMATELY 7 SIDEWALK SLABS IN FRONT OF LAUNDRYMAT AND MEDICAL FACILITY AND RE POIJ'R SLABS TO MEET EXISTING SIDEWALKS The medical facility was adjacent to the laundromat. crotona center as denies that any of the slabs in front of the laundromat were replaced' Accordingly, defendant, Cleaners Express' motion is denied' CONCLUSION Accordingly, plaintiff s motion for partial summary judgment on liability is granted. Comparative fault has not been decided as a matter of law on this motion. Defendant, Cleaners Express' motion is denied. The foregoing constitutes the decision and order of the Court' Darcd:1 /o?-7' KENNETH L. HOMPSON JR. C 3 4 5 of 4 6 FILED: BRONX COUNTY CLERK 07/19/2022 07/27/2022 12:27 04:03 PM INDEX NO. 303887/2014E NYSCEF DOC. NO. 81 84 RECEIVED NYSCEF: 07/19/2022 07/27/2022 AFFIDAVIT OF SERVICE BY MAIL Index No.: 303887/2014 STATE OF NEW YORK } } ss: COUNTY OF NEW YORK } Bernarda Fiallo, being duly sworn, deposes and says: I am not a party to thisaction, I am 19d' over 18 years of age and reside in Kings County, State of New York. That on the day of July 2022, I served the within DECISION AND ORDER WITH NOTICE OF ENTRY, via NYSCEF, upon: Law Office of Thomas K. Moore Attorneys for Defendant Crotona Center Corp. and Crotona Center Corp. a/k/a Procida Northwest Bronx 180th Street Venture 701 Westchester Avenue, Suite 101W White Plains, New York 10604 285 - 8500 (914) Hoffman Roth & Matlin, LLP Attorneys for Dedendant V.S. Cleaners, Inc., d/b/a Cleaners Express i/s/h/a Cleaners Express 505 Eight Avenue, Suite 1101 New York, New York 10018 964 - 1890 (212) ern rda Fiallo Swo r me this 19 da ul 2022 O ZAPRUDSKlY York m toner ofeeds, City of New No. 2-13101 Filed in: New York Certificate Commission ExpiresOctober1, 6 of 6