Preview
INDEX NO. 600285/2013
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/09/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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JASON GRAHAM,
AFFIRMATION IN SUPPORT
Plainuff,
Index No. 600285/2013
-against-
T-MOBILE USA, INC., and ELIAS PROPERTIES
FLATBUSH, LLC, Hon. John M. Galasso, 3.S.C.
Defendai
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T-MOBILE USA, INC.,
Third-Party Index No.
Third-Party Plaintiff,
~against-
ELIAS PROPERTIES FLATBUSH, LLC,
‘Vhird-Party Defendant
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DANIEL Y. SOHNEN, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the truth of the following under penalty of perjury and
pursuant to CPLR 2106:
1 IT am a member of the firm of Smith Mazure Director Wilkins Young &
Yagerman, P.C., attorney for Defendant/Third-Party Plaintiff T-Mobile USA, Inc. and 1 am fully
familiar with the facts and circumstances surrounding the within action.
2 ‘This affirmation is made in support of the instant motion for an order:
A. Dismissing the action and claims of plaintiff and granting
the Defendant/Third-Party Plaintiff judgment as a matter of
law pursuant to CPLR §3212 as there exist no issue of fact
in this case; and
Dismissing the cross-claims of co-defendant/third-party
defendant and granting the Defendant/Third-Party Plaintiff
judgment as a matter of law pursuant to CPLR §3212 as
there exist no issue ef fact in this case; and
c
Granting Defendant/Third-Party Plaintiff's cross-claims
and third-party claims against co-defendant/third-party
defendant seeking common law and contractual
indemnification and entering judgment as a matter of law
pursuant to CPLR §3212 as there exist no issue of fact in
this case: and
D. Such other, further, and different relicf as to this Court may
seem just, proper, and equitable.
3 The instant action arises out of an alleged trip and fall in the parking lot efa T-
Mobile store located at 4201 Flatbush Avenue, Brooklyn, New York. Plaintiff alleges he was
caused to sustain personal injuries when he tripped and fell over a defective sidewalk due to an
uneven surface. It is claimed that he fel! on June 8, 2012.
PROCEDURAL HISTORY
4 This action was commenced by filing of a summons and complaint in Kings
County Supreme Court in or about August 2012. A copy of the summons and complaint is
annexed hereto as Exhibit “A”,
On or about October 16, 2012, issue was joined with service of an Amended
Answer with cross-claims and a demand for change of venue. A copy of the answer with cross-
claims and demand for venue change is annexed hereto as Exhibit “B”.
6. Defendant, ‘[-Mobile USA, Inc. moved pursuant to CPLR §§510 and 511 for
change of venue from Kings County Supreme Court to Nassau County Supreme Court. The
motion was granted pursuant to Order dated January 24, 2013. A copy of the decision is
annexed hereto as Exhibit “
7 The matter was subsequently transferred to Nassau County Supreme Court under
index number 600285/2013.
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8 Unbeknownst to the undersigned, the co-defendant, Elias Properties Flatbush,
LLC was unaware of the venue change and served an answer to the Kings County Supreme
Court on plaintiffs counsel. A copy of co-defendant’s answer with cross-claims is annexed
hereto as Exhibit “D”.
9 In response to the demands of T-Mobile USA, Inc., plaintiff served a Bill of
Particulars dated October 15, 2012, an Amended Verified Bill of Particulars dated January 30,
2013, a Verified Bill of Particulars dated October 15, 2012 which was received on April 16,
2013 and contained different responses from the original responses, a supplemental Bill of
Particulars dated July 22, 2013 and a verified sccond supplemental bill of particulars dated
September 17, 2013. Copies of all four responses are collectively annexed hereto as Exhibit “E”.
10. Due to the fact that the undersigned was never served with or notified by counsel
that co-defendant landlord, Elias Properties Flatbush LLC had appeared in the original Kings
County action, Defendant/third-party plaintiff commenced a third-party action against the
defendant/third-party defendant, Elias Properties Flatbush LLC seeking common law
indemmilication, contractual indemnification and contribution pursuant to lease agreement. The
third party action was filed on or about March 5, 2013 and served on April 4, 2014. Copies of the
third-party summons and complaint and proof of service without the exhibits, are collectively
annexed hereto as Exhibit “F”. To date, third-party defendant has not answered the third-party
action.
I. The deposition of plaintiff was conducted without counsel for co-defendant/third-
party defendant Elias Propertics Flatbush LLC under the mistaken assumption that they had
failed to appear in this action. Mr. Graham was deposed by T-Mobile USA, Inc. only on October
25, 2013. A copy of the transcript is annexed hereto as Exhibit “G”.
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12. The deposition of defendant, T-Mobile USA, Inc. by Reynold Raymond was
conducted on December 20, 2013. A copy of the transcript is annexed hereto as Exhibit “H”.
13. The case was certified ready for trial at the September 8, 2614 certification
conference with note of issue to be filed on December 8, 2014 if discovery had been completed.
Plaintiff filed his note of issuc on November 12, 2014. Copies of the certification order and note
of issue are collectively annexed hercto as Exhibit “I”.
14, Pursuant to the Certification Order dated September 8, 2014, motions for
summary judgment must be filed within 90 days of the filing of the note of issue. The within
motion is made within sixty (90) days from the filing of the note of issue and is therefore made
timely.
FACTS
15. This action stems from an alleged trip and fall in the parking lot adjacent to a T-
Mobile retail store located at 2401 Flatbush Avenue, Brooklyn, New York. The plaintiff claims
that while crossing through the parking lot he was caused to trip and fall duc to a pothole
approximately 15 fect from the front of the store and that the pothole created a hazard, which
was not repaired prior to the subject accident (see plaintiffs verified bill of particulars dated
October 15, 2012, response 7 (a) & (b).
16. The subject location is owned by co-defendant, Elias Properties Flatbush. LLC. It
is a retail store located on Flatbush Avenue at the corner of Avenue T. The front entrance is
located on Flatbush Avenue. Adjacent to the store, which is a one story stand alone store, is a
triangular shaped “parking lot” that is capable of holding up to four or five vehicles. ‘The parking
lot is part of the leased premises and was used by the defendant, T-Mobile USA, Inc. employees
and customers during the duration of the lease agreement.
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17. The lease agreement between defendant, T-Mobile USA, Inc. and co-defendant
Elias Properties Flatbush, LLC dated September 20, 2007 was in effect on the date of loss. A
complete copy of the fully executed lease agreement is annexed hereto as Exhibit “J”.
18. Pursuant to the lease agreement the “Premises” is defined on page 2 as consisting
of the entire Building which is approximately three thousand two hundred (3,200) rentable
square feet of floor area (“RSF”), approximately eighty (80) feet wide and forty (40) feet deep.
The Premises do not include the Exterior Area”. See Exhibit “J”, page 2 subsection (d).
19. In Article 2.3 of the lease agreement, tiled Exterior Area, the lease states;
“Subject to the provisions of this Lease, Landlord shall maintain contro} over the Exterior Area,
but Tenant and its employees, contractors, agents, and invitees are, except as otherwise
specifically provided for in this Lease, authorized, empowered, and privileged to exclusively use
the Exterior Area during the Lease ‘Term. ‘The terms “Exterior Arca” or “Exterior Areas” refers
to all areas within the exterior boundaries of the Property which are now or hereafter under the
control of Landlord, but which shall be made available for general use, convenience, and benefit
of Tenant, which Exterior Areas shall include, but not be limited to, the Parking Area, driveways,
exterior lighting, the exterior portions of the Buildings, walkways, landscaped and planted areas,
mechanical rooms, dumpster rooms, washrooms, lounges, shelters and other facilities available
for Tenant’s exclusive use, all as they may from time to time exist.”
20. Article 6 of the lease titled Maintenance of Premises states that the “tenant shall at
all times throughout the lease term, at its sole cast and expense, keep the Premises, including the
interior walls, interior ceiling and nonstructural portions of the Premises, as well as exterior
doors and entrances, all windows, Noor coverings, sills, door closures, moldings, trim of all
doors and windows, partitions, door surfaces, fixtures and equipment, in good order, condition
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and repair... Remove snow and debris from the sidewalk immediately in lront of the Premises
and from the Parking Area.” Id. at page 12.
21, Article 6.1 (c) titled Maintenance and Repair by Landlord states that “Landlord
covenants and agrees, at its expense without reimbursement or contribution by Tenant, to keep,
maintain in first class condition, repair, and replace (if necess: ), all structural components of
the Premises, including, without limitation, foundations, footings, al! structural systems, roof,
roof membrane, roof covering (including interior ceiling if damaged by leakage}, load bearing
walls, floors, slabs, and masonry valls.... Landlord agrees that throughout the Lease Term it
shall warrant against scismic, structural or latent defects in the Premises, the Building and the
Property.” Id. at page 13.
22. Article 7 of the Lease Agreement titled Maintenance of Exterior Areas states that
“Landlord covenants and agrees that it shall maintain, or cause to be maintained, all structural
components of the Building and the Property in a “first-class” manner as the term is understood
in the general geographic area of the Building, at Landlord’s sole cost and expense. Such repairs,
replacements and maintenance shall include (without limitation) all structural components of the
Property, and the maintenance, replacement, operation, insurance and repair of the roof, exterior
walls, concrete slab and footings. Tenant shall bc responsible to maintain, repair and replace the
Exterior Areas, including, without limitation, removal of snow, ice and debris from the sidewalks
in the Exterior Areas, and to clean and maintain the gutters of the Building.” Id. at pages 13-14.
23. Article 13.2 contains provisions for landlord indemnification of tenant. It states;
“landlord agrees to indemnify, defend and save harmless ‘Tenant and ‘Tenant's agents, offiers,
directors, employees and contractors from and against any and all claims, actions, demands,
damages, injuries, injunctions, suits, fines, penalties, costs and expenses and liability whatsoever,
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by or on behalf of any person, entity, or governmental authority arising in connection with any
and all third party claims arising out of (a) any negligent or intentional act or omission by
Landlord, its agents, contractors, servants, employees; (6) the construction of the Property and
any defect in or failure of the structure or structural portions of the Premises or the Property
(except to the extent directly caused by ‘l’enant’s alterations and/or modifications of the Premises
and the Property); (c) any breach or default by the Landlord in the performance of any of its
obligations under this Lease; or (d) the failure of any representation or warranty made by the
Landlord in this Lease to be true when made.” Id. at page 18.
24, In order to provide the Court with an idea of the location of the subject accident,
annexed hereto is a color photograph printed from Google Maps “street view”. It is a view of the
‘T-Mobile store and adjacent parking lot from across the street on Flatbush Avenue right before
the intersection with Avenue ‘I’. The color photograph is annexed hereto as Exhibit “K”,
25. Annexed hereto as Exhibit “L” are four color photographs taken by defendant,
employee Reynold Raymond. The first three photographs were marked as Exhibits “B” and
“C: at plaintiff's deposition. The fourth picture was not marked at any deposition. The four
photographs were taken by Mr. Raymond in or about August 2012 after the lawsuit was
commenced,
26, Plaintiff exchanged five color photographs following his deposition. They are
collectively annexed hereto as Exhibit “M”. The five photographs were taken by plaintiff and his
attorncy while they conducted a site inspection post deposition. The photographs were taken in
late October or early November 2013. They supposedly depict the site of plaintiff's alleged hole
which he claims he tripped in/over. The specific location was in the parking lot in the area of a
metal drain cover which was broken and/or removed resulting in what appears to be a portion of
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missing concrete. The photographs taken were done nearly 18 months post accident. When
compared to the photographs taken by defendant two months post accident they clearly show that
the supposed defective condition did not exist in 2012. The defendant’s photographs clearly
show the metal drain cover intact and in place.
DEPOSITION TESTI ONY
27. Plaintiff, Jason Graham testified that he was walking through the parking lot
adjacent to the T-Mobile store at the time of the accident and was coming from a friend’s house
and walking approximately seven blocks to his parked vehicle. See Exhibit “G”, pages 18-21. He
denied ever entering the ‘t-Mobile store on the date of loss or previously and was not familiar
with the area. Id. at page 20.
28. While passing through the parking lot, plaintiff claims/testified that he tripped
over something or into something Id. at page 21, lines 15-16. He was not looking down before he
tripped and was “looking ahead”. Id. at page 21, line 21. He did net see what he tripped on
before the accident. Id. at page 22, lines 13-15. [le only saw the alleged condition after his
accident. Id. at page 22, lines 16-19. When asked to describe the alleged condition, plaintiff
testified that it was a hole. Id. at page 23, lines 3-4. The alleged hole was located within the
parking lot about ten feet away from the door to the store. Id. at page 23, lines 5-11. No one
witnessed the accident. Id. at page 23, lines 12-17. Plaintiff further testified that his left foot was
caught in the alleged hole. Id. at page 23, lines 18-21.
29. At plaintiff's deposition three color photographs were marked as Defendant’s
Exhibits “A”, “B” and “C”, The plaintiff reviewed cach photographs but could not confirm that
they depicted the area of his accident or showed the alleged hole that cause him to trip. See page
29 of Exhibit “G” and page 30 of Exhibit “G”. With all three photographs the plaintiff could not
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identify the alleged defective condition and testified that he didn’t know if it depicted the area
where the accident occurred. Plaintiff did testify that the area where his accident occurred has
spider cracks in the ground around the alleged hole. A review of the three marked exhibit
photographs demonstrates there was a drain cover surrounded by some spider cracks in the
parking lot. See Exhibit “L”. Plaintiff described the alleged hole that caused his trip and fall to be
about six inches wide and six inches deep. See Exhibit “G” page 34, lines 16-25
30. During the deposition of Reynold Raymond on behalf of T-Mobile USA, Ine. the
slore manager testified that he took the three photographs marked as Exhibits at plaintiff's
deposition. See Exhibit “H” page 24 when the witness refers to the previously marked
photographs from plaintiffs deposition. Mr. Raymond took four color photographs of the
parking lot in 2012 after notice of the suit was provided. In the photographs taken by Mr.
Raymond the metal drain cover is in one piece and intact covering the drain area. He testified
that there was no hole in the parking lot at that lime. Id. at page 20.
LEGAL ARGUMENT
31. The Court of Appeals in Zuckerman v. City of New York, 404 N.E.2d 718, 427
N.Y.S.2d 599 (1980) has addressed the standard of proof for summary judgment motions as
follows:
To obtain summary judgment, it is necessary that the movant
establishes cause of action or defense sufficiently to move the
court, as a matier of law in directing judgment in bis favor (CPLR
§3212 (b)) and must do so by tender of evidentiary proof and in
admissible form. On the other hand, to defeat a motion for
summary judgment, the opposing party must show facts sufficient
to require a trial of an issue of fact (CPLR §3212 (b))” nds of
Animals v. Associated Manufacturers, 46 N.Y.2d. 1065, 390
2.2d 298, 416 N.Y.S. 790 (1979).
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>
3 2. Once the movant demonstrates by admissible cvidence, entitlement to summary
judgment, the opposing party has the burden to come forward with proof, in admissible form,
demonstrating the cxistence of a genuine issue of material fact warranting trial. Friedman v.
Chemical Construction Corp., 43 N.Y.2d 260, 372 N.E.2d 12, 401 N.Y.S.2d 176 (1977); Mailed
Construction Corp. v. Country Federal Savings & Loan Association, 32 N.Y.2d 285, 298 N.E.2d
96, 344 N.Y.S.2d 925 (1973); American Motors Insurance Company vy. Salvatore, 102 A.D.2d
342, 476 N.Y .2d 897 (1* Dept. 1984).
33. A shadowy semblance of an issue, or conclusory assertion even if believable, is
not enough to defeat a motion for summary judgment. Mayor v. McBrunigan Construction
Corp., 105 A.D.2d 774, 481 N.Y.S.2d. 719 (2"! Dept. 1986), App. Den., 65 N.Y.2d 606 482
N.E.2d 1231, 493 N.Y.S,2d 1029 (1985).
34. Ultimately, summary judgment is designed to expedite all civil cases by
eliminating from the trial calendar, claims which can properly be resolved as a matter of law. An
unfounded reluctance to employ this remedy will only serve to swell the trial calendar and thus
deny to other litigants the right to have their claims properly adjudicated. Andre v. Pommeroy,
35. N.Y.2d 361, 362 N.Y.S.2d 131 (1974).
PLAINTIFE WAS FAILED TO IDENTIFY THE ACCIDENT LOCATION
35. The deposition testimony of plaintiff demonstrates that he is unable to identify the
accident location or the specitic alleged defective condition. When shown photographs of the
parking lot taken shortly after the accident Mr. Graham could not identify the specific condition
he complains of.
36, When a plaintiff is shown photographs of the accident location and cannot
identify where in the photographs the alleged defective condition exists, he cannot maintain a
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Jaim and cannot prove to a jury that such a condition even existed. Mr. Graham was unable to
identify the alleged condition when shown photographs of the parking lot. ‘lo this day, plaintiff
has not and cannot produce any photographs of the alleged condition. ‘The photographs
exchanged by plaintiff post deposition were taken in or about October or November 2013, more
than 16 months post accident. The photographs taken by Mr. Raymond on behalf of ¥-Mobile in
2012 clearly undermine the plaintiffs attempt of identifying a defective condition. The
defendant’s photographs clearly show that the drain cover was intact and not broken as plaintiff's
photographs suggest. Additionally, without the aid of any measuring devices or any expert
opinion, the plaintilf’s photographs do not show any six inch deep hole that plaintiff described.
PURSUANT TO NEW YORK’S SIDEWALK LAW LANDLORD IS RESPONSIBLE
FOR SIDEWALK AND PARKING LOT REPAIR, NOT THE TENANT
37. New York Administrative Code §7-210 requires the owners of real estate in New
York City to repair and maintain their sidewalks and parking lots. The statute states;
“It shall be the duty of the owner of real property abutting any
sidewalk, including but not limited to the intersection quadrant for
corner property, to maintain such sidewalk in a reasonably sale
condition.”
38. Based upon statute the landlord has a duty to maintain and repair the sidewalk in
question. Granted the landlord can delegate that obligation pursuant to contract to the tenant or
tenants, however, such a delegation of duty, to the extent one exists, which moving defendants
does not concede, does not enable plaintiff ta make a direct cause of action for negligence
against the tenant. Instead, they can only seek relief from the statutorily responsible party, which
would be the landlord. The landlord can, of course, seek indemnification from the tenant via a
third-party action or cross-claim, however, plaintiff cannot maintain any such direct claim. Here,
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the plaintiffs claims against T-Mobile USA, inc. must be dismissed in their entirety as there is
no statutory duty lor the tenant to maintain or repair the parking lot.
PLAINTIFF HAS NOT DEMONSTRATED AND CANNOT DEMONSTRATE ACTUAL
OR CONSTRUCTIVE NOTICE OF THE ALLEGED DEFECTIVE CONDITION
39, The record is devoid of any proof that ‘T-Mobile USA, Inc. had any actual or
constructive notice of the alleged defective condition. For a prima facie case of negligence in a
slip and fal case, a plaintiff must demonstrate that the defendant created the condition which
caused the accident, or that defendant had actual or constructive notice of the condition. Uhlich
v. Canada Dry Bottling Co. of New York, 305 A.D.2d 107, 758 N.Y.S.2d 652 (1st Dept. 2003).
40. To constitute constructive notice, a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident to permit defendant’s employees to
discover and remedy it. Gordon vy. American Museum of Natural History, 67 N.Y.2d 836, 837,
501 N.Y.S.2d 646 (NY 1986). It should be noted that the burden upon a party opposing a motion
for summary judgment is not met merely by a repetition or incorporation by reference of
allegations contained in pleadings or bills of particulars, verified or unverified; some evidentiary
facts are required to be put forward. See S. J. Capelin Associates, Inc. v Globe Mfg. Corp., 34
N.Y.2d 338 (1974).
41, Where a defendant moves for summary judgment, it has the burden in the first
instance to establish, as a matter of law, that cither it did not create the dangerous condition
which caused the accident or that it did not have actual or constructive notice of the condition.
Giuffrida v. Metro N. Commuter R.R. Co., 279 A.D.2d 403, 720 N.Y.S.2d 41 (Ist Dept. 2001).
Defendant, ‘f-Mobile USA, Inc. have met their burden of demonstrating they neither created any
hazardous condition nor have actual or constructive notice of same prior to the accident. Plaintiff
has not and cannot demonstrate that Defendant, T-Mobile USA, Inc. caused or created the
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alleged defeci or had any actual or constructive notice. Plaintiff could not even identify the
alleged defect when shown photographs of the subject premises parking lot.
DEFENDANT, T-MOBILE USA, INC. DID NOT CAUSE OR CREATE THE ALLEGED
DEFECTIVE CONDITION
42. According to the deposition testimony of defendant witness Mr. Raymond, ‘T-
Mobile store employees clean the sidewalk and parking lot, sweep il, remove snow and ice and
keep the general upkeep on a day to day basis. Mr. Raymond also testified that he had never seen
the alleged condition complained of, and denicd that the photographs taken by plaintiff in 2013
accurately depicted the condition of the parking lot on the date of loss.
43. Plaintiff cannot demonstrate that the alleged condition complained of, which
plaintiff described as a six inch wide and deep pothole in the parking lot, even existed on the date
of loss or if it did, how long it was there, who created it and if ‘Mobile USA, Inc. knew of its
existence. Mr. Raymond’s testimony was that as store manager he had never scen the alleged
condition complained of and confirmed with documentary evidence, namely the photographs he
took post accident, that show the drain cover was intact and covering the portion of the sidewalk
that was not paved and was/is presumably a sewage drain.
CO-DEFENDANT, ELIAS PROPERTIES FLATBUSH, LLC IS RESPONSIBLE TO
REPAIR STRUCTURAL COMPONEN OF THE PREMISES INCLUDING DRAINS,
DRAIN COVERS AND SIDEWALK FLAGS
44. The lease agreement requires the landlord to make structural repairs. To the extent
that the plaintiffs allegations of an alleged defect exist in regards to the drain cover, such a
condition would be the responsibility under the lease agreement of the landlord to repair.
Pursuant to the lease terms the “Landlord shall maintain control over the Exterior Area” which is
defined as including the parking lot. Therefore, co-defendant cannot argue to the Court that they
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were an out of possession landlord that placed al! duties with regard to the parking lot in the
hands of T-Mobile USA, Inc.
45. The landlord’s cross-claim for contractual indemnification must be dismissed
pursuant to the terms of the contract which clearly require the landlord to repair and maintain
structural portions of the property. The landlord would have the Court believe that under the
terms of the lease the tenant is responsible to replace/repave the entire parking lot the drainage
systems and any pipes that may be connected to the subject drain cover location. Such work
would clearly fall under the definition of a structural defect.
46. The landlord is not entitled to common law indemnification or contribution and
those cross-claims must be dismissed. Nothing in the record or testimony of the partics
demonstrates that ‘T-Mobile USA, Inc. caused or created the allegedly defective condition. The
landlord has no basis for maintaining a cross-claim seeking common law indemnification or
contribution for behavior that they cannot ever hope to prove or show to a jury.
47. No prior application for the relief herein has been submitted.
WHERETORE, it is respectfully requested that the Court issue an order
dismissing the action and claims of plaintiff and granting the Defendant/Third-Party Plaintiff
judgment as a matter of law pursuant to CPLR §3212 as there exist no issue of fact in this case;
dismissing the cross-claims of co-defendant/third-party defendant and granting the
Defendant/Third-Party Plaintiff judgment as a matter of law pursuant to CPLR §3212 as there
exist no issue of fact in this granting Defendant/Third-Parly Plaintiff's cross-claims and
third-party claims against co-defendant/third-party defendant secking common law and
contractual indemnification and entering judgment as a matter of law pursuant to CPLR §3212 as
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there exist no issue of fact in this case and granting such other, further, and different relicf as to
this Court may seem just, proper, and equitable.
Dated: New York, New York
February 6, 2015
DANTEL | SOHNEN
TMO-GOF 04/138
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INDEX NO. 600285/2013 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/09/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU meee meee. panne enna nn nnn nnn nnn nn nnn eee K JASON GRAHAM, AFFIRMATION IN SUPPORT Plainuff, Index No. 600285/2013 -against- T-MOBILE USA, INC., and ELIAS PROPERTIES FLATBUSH, LLC, Hon. John M. Galasso, 3.S.C. Defendai wane eee nee nee eee ee eee nn ene jaennan-a) T-MOBILE USA, INC., Third-Party Index No. Third-Party Plaintiff, ~against- ELIAS PROPERTIES FLATBUSH, LLC, ‘Vhird-Party Defendant essunsensnensesnnsttne nt ainin tome isen ans nen snap sin eer savaanseentsnnannes aentantae senses xX DANIEL Y. SOHNEN, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR 2106: 1 IT am a member of the firm of Smith Mazure Director Wilkins Young & Yagerman, P.C., attorney for Defendant/Third-Party Plaintiff T-Mobile USA, Inc. and 1 am fully familiar with the facts and circumstances surrounding the within action. 2 ‘This affirmation is made in support of the instant motion for an order: A. Dismissing the action and claims of plaintiff and granting the Defendant/Third-Party Plaintiff judgment as a matter of law pursuant to CPLR §3212 as there exist no issue of fact in this case; and Dismissing the cross-claims of co-defendant/third-party defendant and granting the Defendant/Third-Party Plaintiff judgment as a matter of law pursuant to CPLR §3212 as there exist no issue ef fact in this case; and c Granting Defendant/Third-Party Plaintiff's cross-claims and third-party claims against co-defendant/third-party defendant seeking common law and contractual indemnification and entering judgment as a matter of law pursuant to CPLR §3212 as there exist no issue of fact in this case: and D. Such other, further, and different relicf as to this Court may seem just, proper, and equitable. 3 The instant action arises out of an alleged trip and fall in the parking lot efa T- Mobile store located at 4201 Flatbush Avenue, Brooklyn, New York. Plaintiff alleges he was caused to sustain personal injuries when he tripped and fell over a defective sidewalk due to an uneven surface. It is claimed that he fel! on June 8, 2012. PROCEDURAL HISTORY 4 This action was commenced by filing of a summons and complaint in Kings County Supreme Court in or about August 2012. A copy of the summons and complaint is annexed hereto as Exhibit “A”, On or about October 16, 2012, issue was joined with service of an Amended Answer with cross-claims and a demand for change of venue. A copy of the answer with cross- claims and demand for venue change is annexed hereto as Exhibit “B”. 6. Defendant, ‘[-Mobile USA, Inc. moved pursuant to CPLR §§510 and 511 for change of venue from Kings County Supreme Court to Nassau County Supreme Court. The motion was granted pursuant to Order dated January 24, 2013. A copy of the decision is annexed hereto as Exhibit “ 7 The matter was subsequently transferred to Nassau County Supreme Court under index number 600285/2013. -2- 2 8 Unbeknownst to the undersigned, the co-defendant, Elias Properties Flatbush, LLC was unaware of the venue change and served an answer to the Kings County Supreme Court on plaintiffs counsel. A copy of co-defendant’s answer with cross-claims is annexed hereto as Exhibit “D”. 9 In response to the demands of T-Mobile USA, Inc., plaintiff served a Bill of Particulars dated October 15, 2012, an Amended Verified Bill of Particulars dated January 30, 2013, a Verified Bill of Particulars dated October 15, 2012 which was received on April 16, 2013 and contained different responses from the original responses, a supplemental Bill of Particulars dated July 22, 2013 and a verified sccond supplemental bill of particulars dated September 17, 2013. Copies of all four responses are collectively annexed hereto as Exhibit “E”. 10. Due to the fact that the undersigned was never served with or notified by counsel that co-defendant landlord, Elias Properties Flatbush LLC had appeared in the original Kings County action, Defendant/third-party plaintiff commenced a third-party action against the defendant/third-party defendant, Elias Properties Flatbush LLC seeking common law indemmilication, contractual indemnification and contribution pursuant to lease agreement. The third party action was filed on or about March 5, 2013 and served on April 4, 2014. Copies of the third-party summons and complaint and proof of service without the exhibits, are collectively annexed hereto as Exhibit “F”. To date, third-party defendant has not answered the third-party action. I. The deposition of plaintiff was conducted without counsel for co-defendant/third- party defendant Elias Propertics Flatbush LLC under the mistaken assumption that they had failed to appear in this action. Mr. Graham was deposed by T-Mobile USA, Inc. only on October 25, 2013. A copy of the transcript is annexed hereto as Exhibit “G”. -3- 12. The deposition of defendant, T-Mobile USA, Inc. by Reynold Raymond was conducted on December 20, 2013. A copy of the transcript is annexed hereto as Exhibit “H”. 13. The case was certified ready for trial at the September 8, 2614 certification conference with note of issue to be filed on December 8, 2014 if discovery had been completed. Plaintiff filed his note of issuc on November 12, 2014. Copies of the certification order and note of issue are collectively annexed hercto as Exhibit “I”. 14, Pursuant to the Certification Order dated September 8, 2014, motions for summary judgment must be filed within 90 days of the filing of the note of issue. The within motion is made within sixty (90) days from the filing of the note of issue and is therefore made timely. FACTS 15. This action stems from an alleged trip and fall in the parking lot adjacent to a T- Mobile retail store located at 2401 Flatbush Avenue, Brooklyn, New York. The plaintiff claims that while crossing through the parking lot he was caused to trip and fall duc to a pothole approximately 15 fect from the front of the store and that the pothole created a hazard, which was not repaired prior to the subject accident (see plaintiffs verified bill of particulars dated October 15, 2012, response 7 (a) & (b). 16. The subject location is owned by co-defendant, Elias Properties Flatbush. LLC. It is a retail store located on Flatbush Avenue at the corner of Avenue T. The front entrance is located on Flatbush Avenue. Adjacent to the store, which is a one story stand alone store, is a triangular shaped “parking lot” that is capable of holding up to four or five vehicles. ‘The parking lot is part of the leased premises and was used by the defendant, T-Mobile USA, Inc. employees and customers during the duration of the lease agreement. -4- 17. The lease agreement between defendant, T-Mobile USA, Inc. and co-defendant Elias Properties Flatbush, LLC dated September 20, 2007 was in effect on the date of loss. A complete copy of the fully executed lease agreement is annexed hereto as Exhibit “J”. 18. Pursuant to the lease agreement the “Premises” is defined on page 2 as consisting of the entire Building which is approximately three thousand two hundred (3,200) rentable square feet of floor area (“RSF”), approximately eighty (80) feet wide and forty (40) feet deep. The Premises do not include the Exterior Area”. See Exhibit “J”, page 2 subsection (d). 19. In Article 2.3 of the lease agreement, tiled Exterior Area, the lease states; “Subject to the provisions of this Lease, Landlord shall maintain contro} over the Exterior Area, but Tenant and its employees, contractors, agents, and invitees are, except as otherwise specifically provided for in this Lease, authorized, empowered, and privileged to exclusively use the Exterior Area during the Lease ‘Term. ‘The terms “Exterior Arca” or “Exterior Areas” refers to all areas within the exterior boundaries of the Property which are now or hereafter under the control of Landlord, but which shall be made available for general use, convenience, and benefit of Tenant, which Exterior Areas shall include, but not be limited to, the Parking Area, driveways, exterior lighting, the exterior portions of the Buildings, walkways, landscaped and planted areas, mechanical rooms, dumpster rooms, washrooms, lounges, shelters and other facilities available for Tenant’s exclusive use, all as they may from time to time exist.” 20. Article 6 of the lease titled Maintenance of Premises states that the “tenant shall at all times throughout the lease term, at its sole cast and expense, keep the Premises, including the interior walls, interior ceiling and nonstructural portions of the Premises, as well as exterior doors and entrances, all windows, Noor coverings, sills, door closures, moldings, trim of all doors and windows, partitions, door surfaces, fixtures and equipment, in good order, condition -§- and repair... Remove snow and debris from the sidewalk immediately in lront of the Premises and from the Parking Area.” Id. at page 12. 21, Article 6.1 (c) titled Maintenance and Repair by Landlord states that “Landlord covenants and agrees, at its expense without reimbursement or contribution by Tenant, to keep, maintain in first class condition, repair, and replace (if necess: ), all structural components of the Premises, including, without limitation, foundations, footings, al! structural systems, roof, roof membrane, roof covering (including interior ceiling if damaged by leakage}, load bearing walls, floors, slabs, and masonry valls.... Landlord agrees that throughout the Lease Term it shall warrant against scismic, structural or latent defects in the Premises, the Building and the Property.” Id. at page 13. 22. Article 7 of the Lease Agreement titled Maintenance of Exterior Areas states that “Landlord covenants and agrees that it shall maintain, or cause to be maintained, all structural components of the Building and the Property in a “first-class” manner as the term is understood in the general geographic area of the Building, at Landlord’s sole cost and expense. Such repairs, replacements and maintenance shall include (without limitation) all structural components of the Property, and the maintenance, replacement, operation, insurance and repair of the roof, exterior walls, concrete slab and footings. Tenant shall bc responsible to maintain, repair and replace the Exterior Areas, including, without limitation, removal of snow, ice and debris from the sidewalks in the Exterior Areas, and to clean and maintain the gutters of the Building.” Id. at pages 13-14. 23. Article 13.2 contains provisions for landlord indemnification of tenant. It states; “landlord agrees to indemnify, defend and save harmless ‘Tenant and ‘Tenant's agents, offiers, directors, employees and contractors from and against any and all claims, actions, demands, damages, injuries, injunctions, suits, fines, penalties, costs and expenses and liability whatsoever, -6- by or on behalf of any person, entity, or governmental authority arising in connection with any and all third party claims arising out of (a) any negligent or intentional act or omission by Landlord, its agents, contractors, servants, employees; (6) the construction of the Property and any defect in or failure of the structure or structural portions of the Premises or the Property (except to the extent directly caused by ‘l’enant’s alterations and/or modifications of the Premises and the Property); (c) any breach or default by the Landlord in the performance of any of its obligations under this Lease; or (d) the failure of any representation or warranty made by the Landlord in this Lease to be true when made.” Id. at page 18. 24, In order to provide the Court with an idea of the location of the subject accident, annexed hereto is a color photograph printed from Google Maps “street view”. It is a view of the ‘T-Mobile store and adjacent parking lot from across the street on Flatbush Avenue right before the intersection with Avenue ‘I’. The color photograph is annexed hereto as Exhibit “K”, 25. Annexed hereto as Exhibit “L” are four color photographs taken by defendant, employee Reynold Raymond. The first three photographs were marked as Exhibits “B” and “C: at plaintiff's deposition. The fourth picture was not marked at any deposition. The four photographs were taken by Mr. Raymond in or about August 2012 after the lawsuit was commenced, 26, Plaintiff exchanged five color photographs following his deposition. They are collectively annexed hereto as Exhibit “M”. The five photographs were taken by plaintiff and his attorncy while they conducted a site inspection post deposition. The photographs were taken in late October or early November 2013. They supposedly depict the site of plaintiff's alleged hole which he claims he tripped in/over. The specific location was in the parking lot in the area of a metal drain cover which was broken and/or removed resulting in what appears to be a portion of -7- missing concrete. The photographs taken were done nearly 18 months post accident. When compared to the photographs taken by defendant two months post accident they clearly show that the supposed defective condition did not exist in 2012. The defendant’s photographs clearly show the metal drain cover intact and in place. DEPOSITION TESTI ONY 27. Plaintiff, Jason Graham testified that he was walking through the parking lot adjacent to the T-Mobile store at the time of the accident and was coming from a friend’s house and walking approximately seven blocks to his parked vehicle. See Exhibit “G”, pages 18-21. He denied ever entering the ‘t-Mobile store on the date of loss or previously and was not familiar with the area. Id. at page 20. 28. While passing through the parking lot, plaintiff claims/testified that he tripped over something or into something Id. at page 21, lines 15-16. He was not looking down before he tripped and was “looking ahead”. Id. at page 21, line 21. He did net see what he tripped on before the accident. Id. at page 22, lines 13-15. [le only saw the alleged condition after his accident. Id. at page 22, lines 16-19. When asked to describe the alleged condition, plaintiff testified that it was a hole. Id. at page 23, lines 3-4. The alleged hole was located within the parking lot about ten feet away from the door to the store. Id. at page 23, lines 5-11. No one witnessed the accident. Id. at page 23, lines 12-17. Plaintiff further testified that his left foot was caught in the alleged hole. Id. at page 23, lines 18-21. 29. At plaintiff's deposition three color photographs were marked as Defendant’s Exhibits “A”, “B” and “C”, The plaintiff reviewed cach photographs but could not confirm that they depicted the area of his accident or showed the alleged hole that cause him to trip. See page 29 of Exhibit “G” and page 30 of Exhibit “G”. With all three photographs the plaintiff could not -8- identify the alleged defective condition and testified that he didn’t know if it depicted the area where the accident occurred. Plaintiff did testify that the area where his accident occurred has spider cracks in the ground around the alleged hole. A review of the three marked exhibit photographs demonstrates there was a drain cover surrounded by some spider cracks in the parking lot. See Exhibit “L”. Plaintiff described the alleged hole that caused his trip and fall to be about six inches wide and six inches deep. See Exhibit “G” page 34, lines 16-25 30. During the deposition of Reynold Raymond on behalf of T-Mobile USA, Ine. the slore manager testified that he took the three photographs marked as Exhibits at plaintiff's deposition. See Exhibit “H” page 24 when the witness refers to the previously marked photographs from plaintiffs deposition. Mr. Raymond took four color photographs of the parking lot in 2012 after notice of the suit was provided. In the photographs taken by Mr. Raymond the metal drain cover is in one piece and intact covering the drain area. He testified that there was no hole in the parking lot at that lime. Id. at page 20. LEGAL ARGUMENT 31. The Court of Appeals in Zuckerman v. City of New York, 404 N.E.2d 718, 427 N.Y.S.2d 599 (1980) has addressed the standard of proof for summary judgment motions as follows: To obtain summary judgment, it is necessary that the movant establishes cause of action or defense sufficiently to move the court, as a matier of law in directing judgment in bis favor (CPLR §3212 (b)) and must do so by tender of evidentiary proof and in admissible form. On the other hand, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of an issue of fact (CPLR §3212 (b))” nds of Animals v. Associated Manufacturers, 46 N.Y.2d. 1065, 390 2.2d 298, 416 N.Y.S. 790 (1979). -9- > 3 2. Once the movant demonstrates by admissible cvidence, entitlement to summary judgment, the opposing party has the burden to come forward with proof, in admissible form, demonstrating the cxistence of a genuine issue of material fact warranting trial. Friedman v. Chemical Construction Corp., 43 N.Y.2d 260, 372 N.E.2d 12, 401 N.Y.S.2d 176 (1977); Mailed Construction Corp. v. Country Federal Savings & Loan Association, 32 N.Y.2d 285, 298 N.E.2d 96, 344 N.Y.S.2d 925 (1973); American Motors Insurance Company vy. Salvatore, 102 A.D.2d 342, 476 N.Y .2d 897 (1* Dept. 1984). 33. A shadowy semblance of an issue, or conclusory assertion even if believable, is not enough to defeat a motion for summary judgment. Mayor v. McBrunigan Construction Corp., 105 A.D.2d 774, 481 N.Y.S.2d. 719 (2"! Dept. 1986), App. Den., 65 N.Y.2d 606 482 N.E.2d 1231, 493 N.Y.S,2d 1029 (1985). 34. Ultimately, summary judgment is designed to expedite all civil cases by eliminating from the trial calendar, claims which can properly be resolved as a matter of law. An unfounded reluctance to employ this remedy will only serve to swell the trial calendar and thus deny to other litigants the right to have their claims properly adjudicated. Andre v. Pommeroy, 35. N.Y.2d 361, 362 N.Y.S.2d 131 (1974). PLAINTIFE WAS FAILED TO IDENTIFY THE ACCIDENT LOCATION 35. The deposition testimony of plaintiff demonstrates that he is unable to identify the accident location or the specitic alleged defective condition. When shown photographs of the parking lot taken shortly after the accident Mr. Graham could not identify the specific condition he complains of. 36, When a plaintiff is shown photographs of the accident location and cannot identify where in the photographs the alleged defective condition exists, he cannot maintain a -10- Jaim and cannot prove to a jury that such a condition even existed. Mr. Graham was unable to identify the alleged condition when shown photographs of the parking lot. ‘lo this day, plaintiff has not and cannot produce any photographs of the alleged condition. ‘The photographs exchanged by plaintiff post deposition were taken in or about October or November 2013, more than 16 months post accident. The photographs taken by Mr. Raymond on behalf of ¥-Mobile in 2012 clearly undermine the plaintiffs attempt of identifying a defective condition. The defendant’s photographs clearly show that the drain cover was intact and not broken as plaintiff's photographs suggest. Additionally, without the aid of any measuring devices or any expert opinion, the plaintilf’s photographs do not show any six inch deep hole that plaintiff described. PURSUANT TO NEW YORK’S SIDEWALK LAW LANDLORD IS RESPONSIBLE FOR SIDEWALK AND PARKING LOT REPAIR, NOT THE TENANT 37. New York Administrative Code §7-210 requires the owners of real estate in New York City to repair and maintain their sidewalks and parking lots. The statute states; “It shall be the duty of the owner of real property abutting any sidewalk, including but not limited to the intersection quadrant for corner property, to maintain such sidewalk in a reasonably sale condition.” 38. Based upon statute the landlord has a duty to maintain and repair the sidewalk in question. Granted the landlord can delegate that obligation pursuant to contract to the tenant or tenants, however, such a delegation of duty, to the extent one exists, which moving defendants does not concede, does not enable plaintiff ta make a direct cause of action for negligence against the tenant. Instead, they can only seek relief from the statutorily responsible party, which would be the landlord. The landlord can, of course, seek indemnification from the tenant via a third-party action or cross-claim, however, plaintiff cannot maintain any such direct claim. Here, -{1- the plaintiffs claims against T-Mobile USA, inc. must be dismissed in their entirety as there is no statutory duty lor the tenant to maintain or repair the parking lot. PLAINTIFF HAS NOT DEMONSTRATED AND CANNOT DEMONSTRATE ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGED DEFECTIVE CONDITION 39, The record is devoid of any proof that ‘T-Mobile USA, Inc. had any actual or constructive notice of the alleged defective condition. For a prima facie case of negligence in a slip and fal case, a plaintiff must demonstrate that the defendant created the condition which caused the accident, or that defendant had actual or constructive notice of the condition. Uhlich v. Canada Dry Bottling Co. of New York, 305 A.D.2d 107, 758 N.Y.S.2d 652 (1st Dept. 2003). 40. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it. Gordon vy. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646 (NY 1986). It should be noted that the burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of allegations contained in pleadings or bills of particulars, verified or unverified; some evidentiary facts are required to be put forward. See S. J. Capelin Associates, Inc. v Globe Mfg. Corp., 34 N.Y.2d 338 (1974). 41, Where a defendant moves for summary judgment, it has the burden in the first instance to establish, as a matter of law, that cither it did not create the dangerous condition which caused the accident or that it did not have actual or constructive notice of the condition. Giuffrida v. Metro N. Commuter R.R. Co., 279 A.D.2d 403, 720 N.Y.S.2d 41 (Ist Dept. 2001). Defendant, ‘f-Mobile USA, Inc. have met their burden of demonstrating they neither created any hazardous condition nor have actual or constructive notice of same prior to the accident. Plaintiff has not and cannot demonstrate that Defendant, T-Mobile USA, Inc. caused or created the -12- alleged defeci or had any actual or constructive notice. Plaintiff could not even identify the alleged defect when shown photographs of the subject premises parking lot. DEFENDANT, T-MOBILE USA, INC. DID NOT CAUSE OR CREATE THE ALLEGED DEFECTIVE CONDITION 42. According to the deposition testimony of defendant witness Mr. Raymond, ‘T- Mobile store employees clean the sidewalk and parking lot, sweep il, remove snow and ice and keep the general upkeep on a day to day basis. Mr. Raymond also testified that he had never seen the alleged condition complained of, and denicd that the photographs taken by plaintiff in 2013 accurately depicted the condition of the parking lot on the date of loss. 43. Plaintiff cannot demonstrate that the alleged condition complained of, which plaintiff described as a six inch wide and deep pothole in the parking lot, even existed on the date of loss or if it did, how long it was there, who created it and if ‘Mobile USA, Inc. knew of its existence. Mr. Raymond’s testimony was that as store manager he had never scen the alleged condition complained of and confirmed with documentary evidence, namely the photographs he took post accident, that show the drain cover was intact and covering the portion of the sidewalk that was not paved and was/is presumably a sewage drain. CO-DEFENDANT, ELIAS PROPERTIES FLATBUSH, LLC IS RESPONSIBLE TO REPAIR STRUCTURAL COMPONEN OF THE PREMISES INCLUDING DRAINS, DRAIN COVERS AND SIDEWALK FLAGS 44. The lease agreement requires the landlord to make structural repairs. To the extent that the plaintiffs allegations of an alleged defect exist in regards to the drain cover, such a condition would be the responsibility under the lease agreement of the landlord to repair. Pursuant to the lease terms the “Landlord shall maintain control over the Exterior Area” which is defined as including the parking lot. Therefore, co-defendant cannot argue to the Court that they -B- were an out of possession landlord that placed al! duties with regard to the parking lot in the hands of T-Mobile USA, Inc. 45. The landlord’s cross-claim for contractual indemnification must be dismissed pursuant to the terms of the contract which clearly require the landlord to repair and maintain structural portions of the property. The landlord would have the Court believe that under the terms of the lease the tenant is responsible to replace/repave the entire parking lot the drainage systems and any pipes that may be connected to the subject drain cover location. Such work would clearly fall under the definition of a structural defect. 46. The landlord is not entitled to common law indemnification or contribution and those cross-claims must be dismissed. Nothing in the record or testimony of the partics demonstrates that ‘T-Mobile USA, Inc. caused or created the allegedly defective condition. The landlord has no basis for maintaining a cross-claim seeking common law indemnification or contribution for behavior that they cannot ever hope to prove or show to a jury. 47. No prior application for the relief herein has been submitted. WHERETORE, it is respectfully requested that the Court issue an order dismissing the action and claims of plaintiff and granting the Defendant/Third-Party Plaintiff judgment as a matter of law pursuant to CPLR §3212 as there exist no issue of fact in this case; dismissing the cross-claims of co-defendant/third-party defendant and granting the Defendant/Third-Party Plaintiff judgment as a matter of law pursuant to CPLR §3212 as there exist no issue of fact in this granting Defendant/Third-Parly Plaintiff's cross-claims and third-party claims against co-defendant/third-party defendant secking common law and contractual indemnification and entering judgment as a matter of law pursuant to CPLR §3212 as -14- there exist no issue of fact in this case and granting such other, further, and different relicf as to this Court may seem just, proper, and equitable. Dated: New York, New York February 6, 2015 DANTEL | SOHNEN TMO-GOF 04/138 -15-