Motion for Summary Judgment in Keesha Woods v. Musleh-Forest Realty, Llc, Mekkah Mediteranean Market, Dollar General Store| Trellis.Law

On November 10, 2020 a Motion-Secondary was filed involving a dispute between Keesha Woods, and Dollar General Store, Mekkah Mediteranean Market, Musleh-Forest Realty, Llc, for Torts - Other Negligence (Personal Injury) in the District Court of Richmond County.

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FILED: RICHMOND COUNTY CLERK 09/12/2022 07:58 AM INDEX NO. 152064/2020
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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KEESHA WOODS, Index No.: 152064/2020

Plaintiff, AFFIRMATION IN SUPPORT
-against- OF PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY
MUSLEH-FOREST REALTY, LLC, MEKKAH JUDGMENT
MEDITERANEAN MARKET and DOLLAR GENERAL
STORE, HON. LIZETTE COLON,
J.S.C.
Defendants. PART 21M
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Herbert S. Subin, Esq., an attorney duly licensed to practice law in the State of New York,

hereby affirms the truth of the following statements under penalty of perjury pursuant to CPLR §

2106:

1. That I am a partner in the law firm Subin Associates, LLP, attorneys for the plaintiff

TRACY LEWIS (“Plaintiff”). From a review of the file maintained by my office, I am fully

familiar with the facts and circumstances surrounding this action.

2. That I make this affirmation in support of Plaintiff’s motion for an order 1) pursuant

to CPLR § 3212, granting Plaintiff partial summary judgment on the issue of liability with respect

to defendant MUSLEH-FOREST REALTY, LLC’s (hereinafter, “MUSLEH”) negligence, and; 2)

for such other and further relief as to this Honorable Court may seem just and proper.

3. That this action by Plaintiff is to recover damages for severe personal injuries

sustained by Plaintiff on May 16, 2020, from a trip and fall accident that was caused by a defective

portion of the parking lot abutting the property of 2256 Forest Avenue, Staten Island, New York

as a result of Musleh’s negligence.

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4. Exhibits Attached in Support of Plaintiff’s Motion.

Annexed to this Affirmation are true copies of the following:

1. Plaintiff’s Summons and Verified Complaint.

2. Defendant Musleh-Forest Realty’s Verified Answer.

3. Order of Dismissal.

4. Compliance Conference and Restore Order.

5. Order Granting Default.

6. Plaintiff’s Deposition Transcript.

7. Photographs Marked at Plaintiff’s Deposition.

8. Plaintiff’s Supplemental Response to Demand for Photographs.

9. Affidavit of Authentication by Investigator.

10. Defendant Musleh’s Deposition Transcript.

11. Marked Exhibits from Defendant Musleh’s Deposition.

12. Google Street View Images and Plaintiff’s CPLR § 4532-b Notice of Exchange.

PROCEDURAL HISTORY

5. Plaintiff commenced this action by e-filing the Summons and Verified Complaint

on November 10, 2020. (See, Plaintiff’s Summons and Verified Complaint, Plaintiff’s Exhibit

“1”, NYSCEF Doc. # 1.)

6. Musleh e-filed its Verified Answer on February 3, 2021. (See, Defendant’s

Verified Answer, Plaintiff’s Exhibit “2”, NYSCEF Doc. #7.)

7. Plaintiff moved for default judgment against Mekkah Mediterranean Market and

Dollar General Store on August 18, 2021. (See, NYSCEF Docs. #13-#17, Motion Seq. #1.)

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8. On September 20, 2021, Hon. Lizette Colon, J.S.C. issued an order of dismissal

due to non-compliance with part rules regarding filing a compliance conference order. (See, Order

of Dismissal, Plaintiff’s Exhibit “3”, NYSCEF Doc. #26.)

9. On October 27, 2021, Hon. Lizette Colon, J.S.C. issued a Compliance Conference

and Restore Order. (See, Compliance and Restore Order, Plaintiff’s Exhibit “4”, NYSCEF Doc.

#30.)

10. On January 18, 2022, Hon. Lizette Colon, J.S.C. issued an order granting default

judgment as against defendants Mekkah Mediterranean Market and Dollar General Store. Same

was served with Notice of Entry by e-file on January 26, 2022. (See, Order with Notice of Entry,

Plaintiff’s Exhibit “5”, NYSCEF Doc #s: 37, 38.)

11. On June 8, 2022, Plaintiff e-filed the Note of Issue. (See, NYSCEF Doc. # 56.)

12. On August 8, 2022, Musleh e-filed a motion for summary judgment to which

Plaintiff now cross-moves. (See, NYSCEF Docs. #60-73, Motion Seq. #3.)

LEGAL STANDARD FOR SUMMARY JUDGMENT

13. A party’s motion for summary judgment shall be granted if “upon all the papers

and proof submitted, the cause of action or defense shall be established sufficient to warrant the

court as a matter of law in directing judgment in favor of any party.” See CPLR Section 3212(b).

“A party moving for summary judgment must make a prima facie showing of entitlement to

judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of

fact from the case. (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 4 N.E.2d

718; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144

N.E.2d 387).” Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, [1985].

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14. "We have repeatedly held that one opposing a motion for summary judgment must

produce evidentiary proof in admissible form sufficient to require a trial of material questions of

fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the

requirement of tender in admissible form; mere conclusions, expressions of hope or

unsubstantiated allegations or assertions are insufficient (Alvord v Swift & Muller Constr. Co., 46

N.Y.2d 276, 281-282; Fried v Bower & Gardner, 46 N.Y.2d 765, 767; Platzman v American

Totalisator Co., 45 N.Y.2d 910, 912; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32

N.Y.2d 285, 290).” Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].

15. Moreover, “A 'shadowy semblance of an issue’ is not enough to defeat the motion,

as there must be a genuine issue of fact presented (Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d

338, 341).” 113-14 Owners Corp. v. Gertz, 123 A.D.2d 850, 851, 507 N.Y.S.2d 464 (1986) “When

there is no genuine issue to be resolved at trial, the case should be summarily decided.” Andre v.

Pomeroy, 35 N.Y.2d 361, 364 [1974].

16. Plaintiff’s Note of Issue was e-filed on June 8, 2022. Therefore, this motion is

timely pursuant to CPLR § 3212 (a) in pertinent part as follows: “If no such date is set by the court,

such motion shall be made no later than one hundred twenty days after the filing of the note of

issue, except with leave of court on good cause shown.” Further, "[A]n untimely motion or cross

motion for summary judgment may be considered by the court where, as here, a timely motion for

summary judgment was made on nearly identical grounds" Munoz v. Salcedo, 170 AD 3d 735,

737 [2nd Dept. 2019] quoting Whitehead v. City of New York, 79 AD 3d 858, 860 [2nd Dept.

2010].

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THE EVIDENCE IN THE CASE AT BAR ESTABLISHES THAT MUSLEH WAS
NEGLIGENT AND THAT SAID NEGLIGENCE WAS A PROXIMATE CAUSE OF THE
ACCIDENT

A. Ownership is established by Musleh’s admission in its Verified Answer.

17. Plaintiff alleged that Defendant owned the subject premises located at 2256-2264

Forest Avenue, Staten Island, New York in her Complaint. (See, Plaintiff’s Exhibit “1”, ¶ 4,

NYSCEF Doc. #1.)

18. Musleh in its verified Answer “denied but admitted” ownership of the subject

premises. (See, Plaintiff’s Exhibit “2”, ¶ 3, NYSCEF Doc. #7.)

B. Plaintiff testified at her deposition that she tripped on a defect in the parking lot abutting
the premises of 2256 Forest Avenue, Staten Island, New York.

19. Plaintiff Keesha Woods testified in connection with this action at a deposition on

April 13, 2022. (See, Plaintiff’s Deposition Transcript, Plaintiff’s Exhibit “6”.) Plaintiff testified

that she was involved in a trip and fall incident on May 16, 2020, which was a Saturday. Id., p.

29, ln. 25 – p. 30, ln. 2-13. Plaintiff was with her son at the time of the incident. Id., p. 30, ln. 14-

18. The incident occurred in the Dollar General shopping complex on Forest Avenue right off of

Grandview. Id., p. 31, ln. 25 – p. 32, ln. 2-5. Plaintiff and her son had walked from their home to

the Dollar General. Id., p. 33, ln. 3-11. The incident occurred after Plaintiff left the Dollar General.

Id., p. 35, ln. 7-9. There is a parking lot for vehicles at the shopping center. Id., p. 36, ln. 5-11.

20. The incident occurred as Plaintiff was walking through the roadway attempting to

exit the parking lot and there was a hole that Plaintiff’s foot went into causing her to twist her

ankle and then fall backwards. Id., p. 39, ln. 17-24; p. 40, ln. 7-11; p. 57, ln. 18-25; p. 67, ln. 7-

15. Plaintiff’s left ankle went into the hole. Id., p. 39, ln. 25 – p. 40, ln. 3. Plaintiff was looking

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straight ahead at the time of the incident to make sure no cars were coming into the parking lot as

they were exiting. Id., p. 41, ln. 5-14.

21. Plaintiff described the hole as two to three inches deep. Id., p. 42, ln. 5-8. The hole

was three to six inches wide. Id., p. 42, ln. 9-11. The hole was shaped like a circle. Id., p. 42, ln.

17-19. Plaintiff was shown four photographs that were deemed at the time to be marked for

identification as Defendant Exhibits “A”, “B”, “C”, and “D”. Id., p. 47, ln. 4-12. (See, Marked

Photographs, Plaintiff’s Exhibit “7”.) Plaintiff testified that Defendant’s Exhibit “A” showed the

location where Plaintiff fell. Id., p. 48, ln. 10-23. Plaintiff testified that the location of her fall is

the large circle depicted in Defendant’s Exhibit “A” and she fell in that circle. Id., p. 48, ln. 24-

25 – p. 49, ln. 2-6. Plaintiff was able to identify the hole in correlation with the store called Mekkah

Market. Id., p. 49, ln. 19-25 – p. 50, ln. 2-3.

22. Plaintiff was shown Defendant’s Exhibit “B”. Id., p. 50, ln. 4-9. Plaintiff could

see the Mekkah store in the photograph. Id., p. 50, ln. 15-17. The circular area at the bottom of

the photograph was where Plaintiff fell. Id., p. 50, ln. 21-15. Counsel placed a red X where

Plaintiff identified that her left foot entered the hole. Id., p. 51, ln. 23-25. Plaintiff testified that

Defendant’s “B” is a true and accurate depiction of what the roadway looked like at the time of

the incident. Id., p. 52, ln. 4-7.

23. Plaintiff was shown Defendant’s Exhibit “C”. Id., p. 52, ln. 10-14. Plaintiff

testified that Defendant’s Exhibit “C” is a true and accurate depiction of the way the roadway

looked on the day of the accident. Id., p. 53, ln. 5-7. Plaintiff was shown Defendant’s Exhibit

“D”. Id., p. 53, ln. 9-12. Plaintiff testified that Defendant’s Exhibit “D” is a true and accurate

depiction of the way the roadway looked on the day of the accident. Id., p. 53, ln. 18-21.

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24. On September 7, 2022, Plaintiff e-filed color photographs of the scene of the

accident with measurements in a Supplemental Response to Demand for Photographs. (See,

Plaintiff’s Supplemental Response to Demand for Photographs, Plaintiff’s Exhibit “8”, NYSCEF

Doc. #76.) An affidavit of authentication of the color photographs of the scene of the accident is

provided. The affidavit includes the measurements taken of the pothole which was ten (10) to

twelve (12) inches wide, one (1) to two (2) inches deep and full of debris. (See, Affidavit with

photographs, Plaintiff’s Exhibit “9.”) The affidavit of Denis Lalena sworn to on September 7,

2022, indicates that the photographs and measurements were taken on May 24, 2020, eight (8)

days after the incident.

C. Defendant’s witness, Mr. S. Musleh testified that he owned the parking lot and was
responsible for maintenance and repair of the parking lot where Plaintiff’s incident
occurred.

25. Defendant’s witness Mr. Shihadeh Musleh testified in connection with this action

at a deposition on April 26, 2022. (See, Musleh Deposition Transcript, Plaintiff’s Exhibit “10”.)

Mr. Musleh has testified twice before regarding lawsuit accidents concerning the property on

Forest Avenue in Staten Island. Id., p. 10, ln. 11-21. Mr. Musleh testified in 2017 about a defect

in a parking lot. Id., p. 11, ln. 4-11, ln. 19-25. But it was a different hole. Id., p. 12, ln. 13-21.

Mr. Musleh owns Musleh-Forest LLC which was formed in 2015. Id., p. 19, ln. 9-25 – p. 20, ln.

2-12. Mr. Musleh owns 2256 Forest Avenue in Staten Island which is known as P&D Plaza. Id.,

p. 20, ln. 16-25; p. 25, ln. 6-9. Mr. Musleh owns the parking lot of the subject premises. Id., p.

28, ln. 11-16.

26. Mr. Musleh performs the maintenance on the properties that he owns including the

parking lots. Id., p. 21, ln. 6-21. Mr. Musleh considers himself responsible for the condition of

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the parking lot at the subject premises. Id., p. 22, ln. 19-22. Mr. Musleh’s duties include

performing inspections of the parking lot to see if repairs are needed. Id., p. 22, ln. 23-25 – p. 23,

ln. 2-3. In 2020, he and his son visited the subject location three times a week to sweep and clean

up. Id., p. 23, ln. 4-18. Mr. Musleh and his son would clean up the parking lot which means clean

up the parking lot, sweep the sidewalks and sweep the parking lot. Id., p. 23, ln. 23-25 – p. 24, ln.

2. Then Mr. Musleh changed his testimony in that his son would go to subject premises three

times a week and he would go once in a while which means once or twice a week or whenever he

had a chance. Id., p. 24, ln. 7-16.

27. Mr. Musleh was shown a Google Street View image of the parking lot at the subject

premises captured in October 2019 which was marked for identification at the deposition as

Plaintiff’s Exhibit “4”. Id., p. 37, ln. 5-15. The image shows the areas of the parking lot that he

would visit,and he and his son would sweep. Id., p. 37, ln. 16-25. Mr. Musleh was shown a

photograph of the parking lot of the subject premises marked for identification at the deposition as

Plaintiff’s Exhibit “5”. 1 Id., p. 38, ln. 10-16. The image shows a small hole in the parking lot.

Id., p. 38, ln. 17-19. Every time Mr. Musleh walked on the property he would walk in the area

where the hole is located. Id., p. 40, ln. 6-9. (See, marked photographs from Musleh deposition,

Plaintiff’s Exhibit “11”.)

28. Right after Mr. Musleh received the lawsuit papers, he fixed the hole. Id., p. 41, ln.

9-15. Mr. Musleh testified that the hole was fixed many times prior to May of 2020. Id., p. 43,

ln. 16-20. Then Mr. Musleh changed his testimony to he does not recall fixing it. Id., p. 43, ln.

21-25 – p. 44, ln. 2-6. When the hole was fixed in the past, Mr. Musleh did it himself twice. Id.,

p. 44, ln. 7-14. Mr. Musleh fixed the pothole by buying asphalt from Home Depot and fixing it

1
The photograph was taken on May 24, 2020, eight (8) days after the incident. See, Exhibit “9”.

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himself. Id., p. 44, ln. 22-25. Mr. Musleh testified that if he had seen the hole prior to May 16,

2020, he would have bought asphalt and fixed it. Id., p. 52, ln. 24-25 – p. 52, ln. 2-6.

29. After learning of the instant lawsuit, Mr. Musleh inspected the hole and found it to

be a half inch deep and six inches wide, but he did not measure it. Id., p. 55, ln. 25 – p. 56, ln. 2-

D. Plaintiff submits Google Street View images of the parking lot defect which further
demonstrates that Defendant had constructive notice of the defective condition

30. Plaintiff further submits Google Street View images captured in October 2019.

(See, Plaintiff’s CPLR § 4532-b notice, Plaintiff’s Exhibit “12, NYSCEF Doc. # 75.) Plaintiff

provided notice of her intention to offer these Google Street View image in accordance with CPLR

§ 4532-b.

31. The Google Street View images are thus admissible, and this Court should properly

take judicial notice that the photograph is authentic evidence of what it depicts pursuant to CPLR

§ 4532-b. CPLR § 4532-b states:

An image, map, location, distance, calculation, or other information
taken from a web mapping service, a global satellite imaging site, or
an internet mapping tool, is admissible in evidence if such image,
map, location, distance, calculation, or other information indicates
the date such material was created and subject to a challenge that the
image, map, location, distance, calculation, or other information
taken from a web mapping service, a global satellite imaging site, or
an internet mapping tool does not fairly and accurately portray that
which it is being offered to prove. A party intending to offer such
image or information in evidence at a trial or hearing shall, at least
thirty days before the trial or hearing, give notice of such intent,
providing a copy or specifying the internet address at which such
image or information may be inspected. No later than ten days
before the trial or hearing, or later for good cause shown, a party
upon whom such notice is served may object to the request to admit
into evidence such image or information, stating the grounds for the
objection. Unless objection is made pursuant to this subdivision, the
court shall take judicial notice and admit into evidence such image,

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map, location, distance, calculation or other information. CPLR
4532-b

32. Here, Plaintiff has served her intention to offer these images from Google Street

View less than 30 days in advance of the hearing. However, Mr. Musleh himself was shown an

October 2019 Google Street View image at his deposition on April 26, 2022, which is more than

thirty days ago. Therefore, this Court should take judicial notice of the fact that the Google Street

View images offered herein fairly and accurately depicts the condition of the sidewalk on the

designated date. Defendant can only rebut the presumption of accuracy by credible and reliable

evidence. However, in this instance, Mr. Musleh himself identified a Google Street View image

from October of 2019 of the parking lot that he owns, maintains and repairs.

LEGAL SUPPORT FOR AN AWARD OF SUMMARY JUDGMENT ON THE ISSUE OF
LIABILITY AGAINST MUSLEH

A. As owner of the subject premises, Musleh had a legal duty to maintain the parking lot
abutting the subject premises in a reasonably safe condition.

33. “A property owner, or a party in possession or control of real property, has a duty

to maintain the property in a reasonably safe condition (see Kellman v 45 Tiemann Assoc., 87

NY2d 871, 872 [1995]; Basso v Miller, 40 NY2d 233, 241 [1976]; Kyte v Mid-Hudson Wendico,

131 AD3d 452 [2015]).” Chang v. Marmon Enters., Inc., 172 AD 3d 678 [2nd Dept. 2019].

34. "In order for a landowner to be liable in tort to a plaintiff who is injured as a result

of an allegedly defective condition upon property, it must be established that a defective condition

existed and that the landowner affirmatively created the condition or had actual or constructive

notice of its existence." Steed v MVA Enters., LLC, 136 AD3d 793, 794 [2016] [internal

quotation marks omitted]).

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35. A defendant can be considered to have constructive notice of a hazardous condition

on its property when the condition is visible and apparent and has existed for a sufficient length of

time to afford the defendant or its maintenance personnel a reasonable opportunity to discover and

remedy it. See, Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986].

36. The property owner is in the best position to assume the risks associated with the

conditions existing on the property since it is consistent with the general responsibility of owners

to maintain their premises in a reasonably safe condition under all the circumstances. See

generally; Basso v. Miller, 40 NY2d 233 (1976).

37. Pursuant to PJI 2:90 entitled “Possessor's Liability For Condition or Use of

Premises—Standard of Care”, “The (owner, possessor) of (land, a building) has a duty to use

reasonable care to keep the premises in a reasonably safe condition for the protection of all persons

whose presence is reasonably foreseeable.” N.Y. Pattern Jury Instr.--Civil 2:90

38. Plaintiff alleged that Defendant owned the subject premises located at 2256-2264

Forest Avenue, Staten Island, New York in her Complaint. (See, Exhibit “1”, ¶ 4, NYSCEF Doc.

#1.) Musleh in its verified Answer “denied but admitted” ownership of the subject premises. (See,

Exhibit “2”, ¶ 3, NYSCEF Doc. #7.)

39. Mr. Musleh testified that he owns 2256 Forest Avenue in Staten Island which is

known as P&D Plaza. (See, Exhibit “10”, p. 20, ln. 16-25; p. 25, ln. 6-9. Mr. Musleh owns the

parking lot of the subject premises. Id., p. 28, ln. 11-16.

40. Therefore, Defendant as owner of the subject premises and the parking lot where

the large pothole was located owed Plaintiff a duty to keep the parking lot in a reasonably safe

condition. Defendant breached that duty by failing to repair the pothole over which the Plaintiff

testified that she tripped. (See, Plaintiff’s Exhibit “6”, p. 39, ln. 17-24; p. 40, ln. 7-11; p. 57, ln.

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18-25; p. 67, ln. 7-15. Plaintiff’s left ankle went into the hole. Id., p. 39, ln. 25 – p. 40, ln. 3,

supra.)

B. Musleh had constructive notice of the defective condition of the parking lot demonstrated
by the Google Street View images

41. With respect to the issue of notice, constructive notice is conclusively demonstrated

by the Google Street View images from October 2019 (six months prior to the accident). This six-

month period was an adequate time to repair the defective area as a matter of law. The Google

Street View images clearly identify the defect as well as the judicial notice afforded to plaintiff by

CPLR §4532-b support a finding of constructive notice. The Google Street View images were

taken six months prior to the incident and the authenticated photographs and testimony indicates

that this defect was there at the time of the incident. Therefore, the defective pothole area was

substantially as shown in both the Google Street View images as well as the photographs

authenticated by the Plaintiff and the photographer.

C. Plaintiff is entitled to summary judgment and has established the large pothole was on
Musleh’s property which was the cause of the Plaintiff’s trip and fall incident.

42. The Second Department has held that entitlement to summary judgment by a

plaintiff is appropriate in premises liability cases. In Vailes v. Molloy College, 175 AD 3d 1348,

1349 [2nd Dept. 2019] where the trial court’s granting of the plaintiff’s summary judgment motion

was upheld, the Second Department held as follows:

Contrary to the defendant's contention, the evidence submitted in support of
the plaintiff's motion, which included, among other things, her deposition
testimony, the deposition testimony of two of the defendant's employees,
photographs of the accident scene, and affidavits from two nonparty
witnesses, one of whom witnessed the plaintiff's fall, established, prima
facie, that the ice condition existed for a sufficient period of time to allow

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the defendant to discover and rectify the problem, and that the defendant's
negligence was a proximate cause of the subject accident and resulting
injuries (see Sarisohn v Plaza Realty Servs., Inc., 109 AD3d 654, 655
[2013]). In opposition, the defendant failed to raise a triable issue of fact.
Accordingly, we agree with the Supreme Court's determination to grant the
plaintiff's motion for summary judgment on the issue of liability (see
Rodriguez v City of New York, 31 NY3d 312 [2018]).

43. Herein, Plaintiff identified where she tripped in the photographs marked at her

deposition. (See, Plaintiff’s Exhibit “7”.) Measurement photographs were taken and are

authenticated by an affidavit. (See, Plaintiff’s Exhibit “9”.) The measurement photographs show

the pothole was eleven (11) to twelve (12) inches wide, one (1) to two (2) inches deep, full of

debris, and in a busy shopping mall.

44. Furthermore, Mr. Musleh admitted that he, himself was in responsible for

maintenance and he, himself did the repairs to the parking lot. (See, Exhibit “10”, p. 22, ln. 19-

22.) Mr. Musleh’s duties include performing inspections of the parking lot to see if repairs are

needed. Id., p. 22, ln. 23-25 – p. 23, ln. 2-3. Based on the Google Street View images, Mr. Musleh

failed to properly inspect the parking lot area for defects and/or negligently inspected the parking

lot as the hole existed for six months before the Plaintiff’s trip and fall incident.

45. Finally, Mr. Musleh testified that if had seen the hole, he would have repaired it

himself. Id., p. 52, ln. 24-25 – p. 52, ln. 2-6. After learning of the instant lawsuit, Mr. Musleh

inspected the hole and found it to be a half inch deep and six inches wide, but he did not measure

it. Id., p. 55, ln. 25 – p. 56, ln. 2-6. The Google Street View images demonstrate that the hole was

there for at least six months before the accident and therefore, by his own reasoning Mr. Musleh

should have repaired same before the hole caused Plaintiff’s trip and fall accident. Mr. Musleh

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testified that he, himself repaired the hole right after receiving notification of the instant lawsuit.

Id., p. 41, ln. 9-15.

46. Therefore, pursuant to Vailes v. Molloy College, 175 AD 3d 1348, 1349 [2nd Dept.

2019], Plaintiff has established her prima facie entitlement to summary judgment as a matter of

law.

THE POTENTIAL ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE DOES
NOT WARRANT DENIAL OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT AGAINST MUSLEH

47. It is now the law that that a plaintiff does not have to prove the absence of his or

her own comparative fault to be entitled to partial summary judgment. Rodriguez v. City of New

York, 31 NY3d 312, 315 [2018].

48. Here, even assuming, arguendo, that Musleh raises an issue as to Plaintiff’s

comparative negligence, same is thus insufficient to defeat Plaintiff’s motion for partial summary

judgment as Defendant was clearly negligent as a matter of law for its failure to maintain and

repair the parking lot abutting its property, which was a proximate cause of the accident.

49. Plaintiff has not moved for the same, or similar relief, previously in this or any other

Court of law.

CONCLUSION

50. Plaintiff is entitled to summary judgment on the issue of liability against Musleh

for its negligent inspection and maintenance of the premises. Musleh had constructive notice of

the defective pothole area which was in a busy shopping center. Defendant failed to repair the

pothole despite Google Street View images that reveal the hole existed at least six months prior to

the accident.

14 of 16
FILED: RICHMOND COUNTY CLERK 09/12/2022 07:58 AM INDEX NO. 152064/2020
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2022

51. Additionally, any issue of comparative negligence on behalf of Plaintiff does not

warrant denial of the motion according to the Court of Appeals decision in Rodriguez v. City of

New York, 31 NY3d 312, 315 [2018] as Plaintiff is still entitled to partial summary judgment on

liability in the event an issue of Plaintiff’s comparative negligence is successfully raised.

WHEREFORE, it is respectfully requested that Plaintiff’s motion be granted in its

entirety, and for such other and further relief as to this Honorable Court may seem just and proper.

Dated: New York, New York
September 12, 2022

Respectfully submitted,

SUBIN ASSOCIATES, LLP

/S/ Herbert S. Subin
__________________________
By: Herbert S. Subin, Esq.
Attorneys for Plaintiff
150 Broadway, 23rd Floor
New York, New York 10038
212-285-3800

15 of 16
FILED: RICHMOND COUNTY CLERK 09/12/2022 07:58 AM INDEX NO. 152064/2020
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 09/12/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
-------------------------------------------------------------------X
TRACY LEWIS,
Index No.: 720283/2019
Plaintiff,
-against-
WORD COUNT CERTIFICATION
WHITE CASTLE SYSTEM, INC.,

Defendant.
-------------------------------------------------------------------X

Pursuant to Uniform Rules 202.8-b, I hereby certify that this Affirmation complies with
the word count limit of 7,000 words set forth therein. The total number of words in this
Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature blocks
is 4,372 pursuant to the word count in Microsoft Word, the word-processing system used to prepare
the document.

Dated: New York, New York
September 12, 2022

/S/ Herbert S. Subin
__________________________
HERBERT S. SUBIN, ESQ.
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiff
150 Broadway, 23rd Floor
New York, New York 10038
212-285-3800

16 of 16

Case Info

Judge

Lizette Colon Track Judge’s New Case

Case No.

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Document Filed Date

September 12, 2022

Case Filing Date

November 10, 2020

County

Parties

BARRY, KERRIE MARIE Attorney for the Defendant
DOLLAR GENERAL STORE Defendant
Keesha Woods Plaintiff
MEKKAH MEDITERANEAN MARKET Defendant
MUSLEH-FOREST REALTY, LLC Defendant
SMITH, STEPHEN J Attorney for the Plaintiff
SUBIN, HERBERT S Attorney for the Plaintiff
ZIEHER, MARIA CHRISTINE Attorney for the Plaintiff
ANDREW BOKAR Attorney
PETER ANDREWS Attorneys for Defendants
MARK STUMER Attorney
JACOB SHAIR Attorneys for Plaintiffs

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Motion-Secondary: Keesha Woods v. Musleh-Forest Realty, Llc, Mekkah Mediteranean Market, Dollar General Store

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