Preview
FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018
NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024
LBBS File No: 44203-02
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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REED YURMAN,
Index No.: 160455/2018
Plaintiff,
Motion Sequence #010
-against-
xxxxxxxxxx xxxxxx xxxxxxx, AFRODET
ZURI, URSULA E. POHL, CHURCH STREET
APARTMENT CORP., PEERSPACE, INC., and
REAL VISION PRODUCTIONS, INC., SPENCER
HEWETT, AUTOMATION, INC. D/B/A RADAR,
Defendants.
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MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO CO-DEFENDANT
PEERSPACE’S MOTION FOR SUMMARY JUDGMENT
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PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of REAL VISION
PRODUCTIONS, INC. (hereinafter referred to as “Real Vision”) in partial opposition to Co-
Defendant PEERSPACE INC.’s motion for summary judgment (hereinafter referred to as
“Defendant Peerspace”) seeking dismissal of the Plaintiff’s complaint against it and dismissal of
Real Vision’s cross-claims dated October 30, 2023. Real Vision respectfully submits this
opposition to the portion of Defendant Peerspace’s motion that seeks dismissal of the cross-claims
of Real Vision against Defendant Peerspace only to the extent that Real Vision’s pending motion
for summary judgment is denied by this Honorable Court. Notably, Defendant Peerspace has not
made any arguments for liability against Real Vision in its moving papers, and simply argues that
Peerspace is not liable for Plaintiff’s alleged injuries, which Real Vision denies.
In the interest of the judicial economy, Real Vision will not repeat the entirety of the
arguments made in its motion for summary judgment dated October 30, 2023 (Motion Sequence
#009), and instead incorporates those arguments herein by reference. As discussed in Real Vision’s
underlying motion, Plaintiff, REED YURMAN (hereinafter referred to as “Plaintiff”) alleges that
her accident occurred January 26, 2018, at 257 Church Street, Apt. 2, New York, New York
(hereinafter referred to as the “Subject Apartment”) when she attempted to move a wooden table
(hereinafter referred to as the “Subject Table”) while she was working as a freelance camera
assistant and operator for a video shoot.
As will be discussed in more detail herein, Defendant Peerspace’s motion for summary
judgment as to Real Vision’s cross-claims against it must be denied as a matter of law because
Defendant Peerspace has failed to meet its high burden of establishing that no triable issue of fact
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exists, which therefore must preclude this Honorable Court from granting their motion seeking
dismissal of the cross-claims alleged by Real Vision.
STANDARD OF REVIEW
Courts have long acknowledged that summary judgment is a drastic remedy that will not
be granted if there is any question as to the existence of a triable issue of fact. See Moskowitz v.
Garlock, 23 A.D.2d 943 (3d Dept. 1965). In examining the evidence presented, the task set to the
Court is one of issue finding, not issue determination. See Silman v. Twentieth Century Fox Film
Corp., 3 N.Y.2d 395, 404 (1957).
The burden of a Court in deciding a motion for summary judgment is not to resolve issues
of fact or to determine matters of credibility, but merely to determine whether such issues exist.
Masucci v. Feder, 196 A.D.2d 416, 420-421 (1st Dept. 1993); Silman, supra, at 404; Esteve v.
Abad, 271 A.D. 725, 727 (1st Dept. 1947). If material facts are in dispute or if different inferences
may reasonably be drawn from facts themselves undisputed, the motion for summary judgment is
an inappropriate remedy. Rennie v. Barbarosa Transport, Ltd., 151 A.D.2d 379 (1st Dept. 1989).
Because summary judgment is a drastic remedy, in its analysis of such a motion, a court must
construe the facts in a light most favorable to the non-moving party so as not to deprive that person
of his or her day in court. Id. at 380; see Werfel v. Zivnostenska Banka, 287 N.Y. 91 (1941).
To establish a prima facie case of negligence, it must be demonstrated that (1) a duty was
owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting
therefrom. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). A defendant who moves
for summary judgment has the initial burdening of making a prima facie showing that it neither
created nor caused the defective condition. Lewis v. Metro. Transp. Auth., 999 A.D.2d 246 (1st
Dept. 1984); Parietti v. Wal-Mart Stores, Inc., 29 N.Y.3d 1136, 1147 (2017). The defendant must
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also show that it had no actual or constructive notice of the alleged defect. Gordon v. American
Museum of Natural History, 67 N.Y.2d 836, 837 (1986).
Here, Defendant Peerspace has failed to eliminate all triable issues of material fact as to
the cross-claims alleged by Real Vision because there is evidence to indicate that Defendant
Peerspace may be liable for Plaintiff’s alleged injuries. Specifically, Defendant Peerspace may
have owed a legal duty to the Plaintiff since Defendant Peerspace was responsible for allowing for
and facilitating the booking of the film shoot at the Subject Apartment on the date of Plaintiff’s
alleged accident. Moreover, Defendant Peerspace may be found to have contributed to the cause
or creation of the allegedly defective condition involved in Plaintiff’s accident by failing to
maintain, inspect, and/or repair the Subject Table prior to Plaintiff’s alleged injury. There is also
evidence to suggest that Peerspace may have had prior notice of the allegedly defective Subject
Table prior to Plaintiff’s alleged accident. All these considerations point to the conclusion that
Defendant Peerspace has failed to eliminate all triable issues of material fact as to Plaintiff’s
common law negligence claim and, therefore, Real Vision’s cross-claims must not be dismissed.
ARGUMENT
I. DEFENDANT PEERSPACE HAS NOT ESTABLISHED ITS ENTITLEMENT
TO SUMMARY DISMISSAL OF REAL VISION’S CROSS CLAIMS
AGAISNT IT
The portion of Defendant Peerspace’s motion seeking dismissal of Real Vision’s cross-
claims as against Defendant Peerspace must be denied as a matter of law because Defendant
Peerspace has failed to establish that no triable issues of fact exist. There is evidence to suggest
that Peerspace may have owed a legal duty to Plaintiff since Defendant Peerspace was responsible
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for allowing for and facilitating the booking of the film shoot at the Subject Apartment on the date
of Plaintiff’s alleged accident.
Defendant Peerspace is a marketplace that allows space holders to provide a license for
others to use a space for a predetermined amount of time or activity organizers who use the space
for a variety of meetings, events, photography, and film shoots. See Peerspace Affirmation in
Support Exhibit “G” at p. 9, ll. 4-12. Because of the nature of its platform, Defendant Peerspace
argues that it has no duty to inspect such properties or ensure they are safe. See Peerspace’s Memo
of Law at p. 6-8, NYSCEF Doc. No. 283. However, this argument should not be accepted by the
Court since it would allow Defendant Peerspace to facilitate such transactions even if it knew or
had reason to know of dangerous or hazardous conditions associated with the properties it allows
on its platform.
Here, Defendant Hewett and Defendant xxxxxxx listed the Subject Apartment on a variety
of short-term rental sites, including Defendant Peerspace, throughout the term of their tenancy,
including on the date of Plaintiff’s alleged accident. See Peerspace Affirmation in Support Exhibit
“J” at p. 15, ll. 7-21 and p. 19, ll. 5-21. Specifically, Defendant Peerspace admits that it knew of
the existence allegedly defective Subject Table through “the information and photographs
provided by xxxxxxx when he listed the Apartment on Peerspace before the subject incident.” See
Peerspace’s Memo of Law at p. 13, NYSCEF Doc. No. 283. Due to this knowledge of the subject
table, it is arguable that Defendant Peerspace owed plaintiff some duty and, in turn, could be liable
to Real Vision for its cross-claims herein.
Furthermore, Defendant Peerspace may be found to have contributed to the cause or
creation of Plaintiff’s alleged accident by failing to do prior inspections or investigations into the
property in which its own platform facilitates short-term rental bookings between hosts and guests.
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Specifically, Defendant Peerspace has never inspected a host’s property, nor does it verify or vet
any hosts or guests. Exhibit “G”, at p. 48, ll. 19-24, p. 77, ll. 16-19, p. 88, ll. 7-24, and p. 89, ll.
1-3. Accordingly, Defendant Peerspace may be found liable for Plaintiff’s accident since failed to
maintain, inspect, and/or repair the Subject Table prior to Plaintiff’s alleged injury despite allowing
the apartment to be listed on its platform. To the extent there may be an issue of fact as to
Defendant Peerspace’s liability to plaintiff herein, the cross-claims asserted by Real Vision against
Peerspace should not be dismissed.
CONCLUSION
The portion of Defendant Peerspace’s motion for summary judgement that seeks to dismiss
Real Vision’s cross-claims alleged against it must be denied as a matter of law. Defendant
Peerspace has failed to eliminate all triable issues of material fact because there is some evidence
that Defendant Peerspace may be liable for Plaintiff’s alleged injuries. Specifically, Defendant
Peerspace may have owed a legal duty to the Plaintiff since Defendant Peerspace was responsible
for allowing for and facilitating bookings in the Subject Apartment. Moreover, Defendant
Peerspace may be found to have contributed to the cause or creation of the allegedly defective
condition involved in Plaintiff’s accident by failing to maintain, inspect, and/or repair the Subject
Table prior to Plaintiff’s alleged accident. Defendant Peerspace similarly has not eliminated all
triable issues of fact as to whether they did or should have known about the allegedly
defective/dangerous condition of the table prior to the Plaintiff’s accident. Accordingly, Defendant
Peerspace’s motion seeking dismissal of Real Vision’s cross-claims must be denied.
WHEREFORE, based upon the foregoing, it is respectfully requested that this Court
deny the portion of Defendant Peerspace’s motion for summary judgment seeking dismissal of
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Real Vision’s cross-claims against it and for any such further relief as this Court deems just and
proper.
Dated: New York, New York
February 9, 2024
Vincent Maddiona
________________________________
Vincent Maddiona, Esq.
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CERTIFICATE OF WORD COUNT
Index No. 160455/2018
Case Name: REED YURMAN v. xxxxxxxxxx xxxxxx xxxxxxx, AFRODET ZURI,
URSULA E. POHL, CHURCH STREET APARTMENT CORP., PEERSPACE, INC., and
REAL VISION PRODUCTIONS, INC., SPENCER HEWETT, AUTOMATION, INC. D/B/A
RADAR
Document Title: MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO CO-
DEFENDANT PEERSPACE’S MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 202.8-b of the Rules of this Court, I certify that the accompanying
MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO CO-DEFENDANT
PEERSPACE’S MOTION FOR SUMMARY JUDGMENT which was prepared using Times
New Roman 12-point typeface, contains 1,545 words, excluding the parts of the document that
are exempted by Rule 202.8-b. This certificate was prepared in reliance on the word-count
function of the word-processing system (Microsoft Word) used to prepare the document. I
declare under penalty of perjury that the foregoing is true and correct.
Dated: New York, New York
February 9, 2024
Vincent Maddiona
________________________________
Vincent Maddiona
136042188.1
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Preview
FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 LBBS File No: 44203-02 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------x REED YURMAN, Index No.: 160455/2018 Plaintiff, Motion Sequence #010 -against- xxxxxxxxxx xxxxxx xxxxxxx, AFRODET ZURI, URSULA E. POHL, CHURCH STREET APARTMENT CORP., PEERSPACE, INC., and REAL VISION PRODUCTIONS, INC., SPENCER HEWETT, AUTOMATION, INC. D/B/A RADAR, Defendants. ----------------------------------------------------------------x MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO CO-DEFENDANT PEERSPACE’S MOTION FOR SUMMARY JUDGMENT 136042188.1 1 of 8 FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 PRELIMINARY STATEMENT This Memorandum of Law is respectfully submitted on behalf of REAL VISION PRODUCTIONS, INC. (hereinafter referred to as “Real Vision”) in partial opposition to Co- Defendant PEERSPACE INC.’s motion for summary judgment (hereinafter referred to as “Defendant Peerspace”) seeking dismissal of the Plaintiff’s complaint against it and dismissal of Real Vision’s cross-claims dated October 30, 2023. Real Vision respectfully submits this opposition to the portion of Defendant Peerspace’s motion that seeks dismissal of the cross-claims of Real Vision against Defendant Peerspace only to the extent that Real Vision’s pending motion for summary judgment is denied by this Honorable Court. Notably, Defendant Peerspace has not made any arguments for liability against Real Vision in its moving papers, and simply argues that Peerspace is not liable for Plaintiff’s alleged injuries, which Real Vision denies. In the interest of the judicial economy, Real Vision will not repeat the entirety of the arguments made in its motion for summary judgment dated October 30, 2023 (Motion Sequence #009), and instead incorporates those arguments herein by reference. As discussed in Real Vision’s underlying motion, Plaintiff, REED YURMAN (hereinafter referred to as “Plaintiff”) alleges that her accident occurred January 26, 2018, at 257 Church Street, Apt. 2, New York, New York (hereinafter referred to as the “Subject Apartment”) when she attempted to move a wooden table (hereinafter referred to as the “Subject Table”) while she was working as a freelance camera assistant and operator for a video shoot. As will be discussed in more detail herein, Defendant Peerspace’s motion for summary judgment as to Real Vision’s cross-claims against it must be denied as a matter of law because Defendant Peerspace has failed to meet its high burden of establishing that no triable issue of fact 136042188.1 2 of 8 FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 exists, which therefore must preclude this Honorable Court from granting their motion seeking dismissal of the cross-claims alleged by Real Vision. STANDARD OF REVIEW Courts have long acknowledged that summary judgment is a drastic remedy that will not be granted if there is any question as to the existence of a triable issue of fact. See Moskowitz v. Garlock, 23 A.D.2d 943 (3d Dept. 1965). In examining the evidence presented, the task set to the Court is one of issue finding, not issue determination. See Silman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1957). The burden of a Court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist. Masucci v. Feder, 196 A.D.2d 416, 420-421 (1st Dept. 1993); Silman, supra, at 404; Esteve v. Abad, 271 A.D. 725, 727 (1st Dept. 1947). If material facts are in dispute or if different inferences may reasonably be drawn from facts themselves undisputed, the motion for summary judgment is an inappropriate remedy. Rennie v. Barbarosa Transport, Ltd., 151 A.D.2d 379 (1st Dept. 1989). Because summary judgment is a drastic remedy, in its analysis of such a motion, a court must construe the facts in a light most favorable to the non-moving party so as not to deprive that person of his or her day in court. Id. at 380; see Werfel v. Zivnostenska Banka, 287 N.Y. 91 (1941). To establish a prima facie case of negligence, it must be demonstrated that (1) a duty was owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). A defendant who moves for summary judgment has the initial burdening of making a prima facie showing that it neither created nor caused the defective condition. Lewis v. Metro. Transp. Auth., 999 A.D.2d 246 (1st Dept. 1984); Parietti v. Wal-Mart Stores, Inc., 29 N.Y.3d 1136, 1147 (2017). The defendant must 136042188.1 3 of 8 FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 also show that it had no actual or constructive notice of the alleged defect. Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 (1986). Here, Defendant Peerspace has failed to eliminate all triable issues of material fact as to the cross-claims alleged by Real Vision because there is evidence to indicate that Defendant Peerspace may be liable for Plaintiff’s alleged injuries. Specifically, Defendant Peerspace may have owed a legal duty to the Plaintiff since Defendant Peerspace was responsible for allowing for and facilitating the booking of the film shoot at the Subject Apartment on the date of Plaintiff’s alleged accident. Moreover, Defendant Peerspace may be found to have contributed to the cause or creation of the allegedly defective condition involved in Plaintiff’s accident by failing to maintain, inspect, and/or repair the Subject Table prior to Plaintiff’s alleged injury. There is also evidence to suggest that Peerspace may have had prior notice of the allegedly defective Subject Table prior to Plaintiff’s alleged accident. All these considerations point to the conclusion that Defendant Peerspace has failed to eliminate all triable issues of material fact as to Plaintiff’s common law negligence claim and, therefore, Real Vision’s cross-claims must not be dismissed. ARGUMENT I. DEFENDANT PEERSPACE HAS NOT ESTABLISHED ITS ENTITLEMENT TO SUMMARY DISMISSAL OF REAL VISION’S CROSS CLAIMS AGAISNT IT The portion of Defendant Peerspace’s motion seeking dismissal of Real Vision’s cross- claims as against Defendant Peerspace must be denied as a matter of law because Defendant Peerspace has failed to establish that no triable issues of fact exist. There is evidence to suggest that Peerspace may have owed a legal duty to Plaintiff since Defendant Peerspace was responsible 136042188.1 4 of 8 FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 for allowing for and facilitating the booking of the film shoot at the Subject Apartment on the date of Plaintiff’s alleged accident. Defendant Peerspace is a marketplace that allows space holders to provide a license for others to use a space for a predetermined amount of time or activity organizers who use the space for a variety of meetings, events, photography, and film shoots. See Peerspace Affirmation in Support Exhibit “G” at p. 9, ll. 4-12. Because of the nature of its platform, Defendant Peerspace argues that it has no duty to inspect such properties or ensure they are safe. See Peerspace’s Memo of Law at p. 6-8, NYSCEF Doc. No. 283. However, this argument should not be accepted by the Court since it would allow Defendant Peerspace to facilitate such transactions even if it knew or had reason to know of dangerous or hazardous conditions associated with the properties it allows on its platform. Here, Defendant Hewett and Defendant xxxxxxx listed the Subject Apartment on a variety of short-term rental sites, including Defendant Peerspace, throughout the term of their tenancy, including on the date of Plaintiff’s alleged accident. See Peerspace Affirmation in Support Exhibit “J” at p. 15, ll. 7-21 and p. 19, ll. 5-21. Specifically, Defendant Peerspace admits that it knew of the existence allegedly defective Subject Table through “the information and photographs provided by xxxxxxx when he listed the Apartment on Peerspace before the subject incident.” See Peerspace’s Memo of Law at p. 13, NYSCEF Doc. No. 283. Due to this knowledge of the subject table, it is arguable that Defendant Peerspace owed plaintiff some duty and, in turn, could be liable to Real Vision for its cross-claims herein. Furthermore, Defendant Peerspace may be found to have contributed to the cause or creation of Plaintiff’s alleged accident by failing to do prior inspections or investigations into the property in which its own platform facilitates short-term rental bookings between hosts and guests. 136042188.1 5 of 8 FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 Specifically, Defendant Peerspace has never inspected a host’s property, nor does it verify or vet any hosts or guests. Exhibit “G”, at p. 48, ll. 19-24, p. 77, ll. 16-19, p. 88, ll. 7-24, and p. 89, ll. 1-3. Accordingly, Defendant Peerspace may be found liable for Plaintiff’s accident since failed to maintain, inspect, and/or repair the Subject Table prior to Plaintiff’s alleged injury despite allowing the apartment to be listed on its platform. To the extent there may be an issue of fact as to Defendant Peerspace’s liability to plaintiff herein, the cross-claims asserted by Real Vision against Peerspace should not be dismissed. CONCLUSION The portion of Defendant Peerspace’s motion for summary judgement that seeks to dismiss Real Vision’s cross-claims alleged against it must be denied as a matter of law. Defendant Peerspace has failed to eliminate all triable issues of material fact because there is some evidence that Defendant Peerspace may be liable for Plaintiff’s alleged injuries. Specifically, Defendant Peerspace may have owed a legal duty to the Plaintiff since Defendant Peerspace was responsible for allowing for and facilitating bookings in the Subject Apartment. Moreover, Defendant Peerspace may be found to have contributed to the cause or creation of the allegedly defective condition involved in Plaintiff’s accident by failing to maintain, inspect, and/or repair the Subject Table prior to Plaintiff’s alleged accident. Defendant Peerspace similarly has not eliminated all triable issues of fact as to whether they did or should have known about the allegedly defective/dangerous condition of the table prior to the Plaintiff’s accident. Accordingly, Defendant Peerspace’s motion seeking dismissal of Real Vision’s cross-claims must be denied. WHEREFORE, based upon the foregoing, it is respectfully requested that this Court deny the portion of Defendant Peerspace’s motion for summary judgment seeking dismissal of 136042188.1 6 of 8 FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 Real Vision’s cross-claims against it and for any such further relief as this Court deems just and proper. Dated: New York, New York February 9, 2024 Vincent Maddiona ________________________________ Vincent Maddiona, Esq. 136042188.1 7 of 8 FILED: NEW YORK COUNTY CLERK 02/09/2024 01:46 PM INDEX NO. 160455/2018 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 02/09/2024 CERTIFICATE OF WORD COUNT Index No. 160455/2018 Case Name: REED YURMAN v. xxxxxxxxxx xxxxxx xxxxxxx, AFRODET ZURI, URSULA E. POHL, CHURCH STREET APARTMENT CORP., PEERSPACE, INC., and REAL VISION PRODUCTIONS, INC., SPENCER HEWETT, AUTOMATION, INC. D/B/A RADAR Document Title: MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO CO- DEFENDANT PEERSPACE’S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 202.8-b of the Rules of this Court, I certify that the accompanying MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO CO-DEFENDANT PEERSPACE’S MOTION FOR SUMMARY JUDGMENT which was prepared using Times New Roman 12-point typeface, contains 1,545 words, excluding the parts of the document that are exempted by Rule 202.8-b. This certificate was prepared in reliance on the word-count function of the word-processing system (Microsoft Word) used to prepare the document. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York February 9, 2024 Vincent Maddiona ________________________________ Vincent Maddiona 136042188.1 8 of 8