Martinez v. Chung Hwa Tenants Corp.

Martinez v Chung Hwa Tenants Corp. 2024 NY Slip Op 32581(U) July 24, 2024 Supreme Court, Kings County Docket Number: Index No. 518572/2019 Judge: Gina Abadi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication. [FILED: KINGS COUNTY CLERK 07/26/2024 12:31 P~ INDEX NO. 518572/2019 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 07/26/2024

At an !AS Term, City Part 22 of the Supreme Court of the State of New York, held m and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn. New York on the 24th day of July 2024.

PRESENT: HON. GINA ABADI.

J.S.C.

JUAN MARTINEZ, Plaintiff. Index No.: 518572/2019 Motion Seq: 6 & 7 -against- DECISION/ORDER CHUNG HWA TENANTS CORP .. BETIIEL MANAGEMENT INC.. NEW YORK CITY HOUSlNCi AUTHORITY, CITY OF '.\/1-"W YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, and NEW YORK CITY r:NVIRONMENTAL PROTECTION, De fcndants.

Recitation. as required by CPLR ~ 2219(a), of the papers considered in the review of this motion: fa pen; NYSC'EF Numbered Notice of Motion.Tross Motion/Order tn Sho\\" Cause and Affidavits (Affirmations) Annexed ................................. . 159-175, 181-184 Opposing Affidavits (Al'lirmations) .................................. . 176- 180, 188 - 193, 199-200 Reply Affidm its (Affirmations) ...................................... . 194-197, 198 Other. ...................................... __ . __ .......... _.. _... _._ .. _.. .

Upon the foregoing cited papers and after oral argument, the Decision/Order on this motion is as follows: Defendants Chung Hwa Tenants Corp. (''Chung") and Bethel Management Inc. ("Bethel'' and, colkctivcly w1th Chung. the "167 Sands Street defendants") move by 111011011 sequence 6 for summary judgment dismissing the complaint and all cross claims as against them. Defendant New York City Housing Authority ("NYCIIA") crnss-mun:s by motion sequence 7 for an order

[* 1] 1 of 5 [FILED: KINGS COUNTY CLERK 07/26/2024 12:31 P~ INDEX NO. 518572/2019 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 07/26/2024 granting it summary judgment 011 liability on its crossclaim for contractual indemnification as against Chung.

Pia inti ff Juan Martinez C'plainti ff'). a resident of NYC! l /\ ·s Farragut Houses at 177 Sands Street in Brooklyn. New York. alleges that he was injured \vhcn he tripped and fell due to a sidev-ialk defect in and around a recessed u1ility box cover with the initials '·DWS" (the ··utility box cover'") 1 ,ls he was walking in the alkyway between his building at l 77 Sands Street and the abutting privately owned building at 1()7 Sands Street.

The ,ll'ca between 177 Sands Street and 167 Sands Street is the subjcc1 oi" an Easement Agreement between NYCHA and Chung's predecessor-in-title to the 167 Sands Street parcel (the "easement agreement'"). The indernni rication provision of the casement agreement states, in relevant part. paragraph 7. that: ··The Corporation [Chung's predecessor-in-title] assumes all risks or loss or accidents in connection with the use of the casement herein gi\·en and agrees tn hold harmless and indcmni fy the /\ uthority [NYC Hi\ j, its agents, reprcscnlat ives. and employees against any and all losses or liability. any injury or danrngc, or alleged injury or damage, to persons or property, caused or resulting from, or claimed to have resulted from. the use of the casement herein given and any or all costs and expenses by reason of any claim or suit for such injury or damage." l\'oticc of Motion. Exhibit I. NYSCTF doc. no. 172.

Motion Sequence 6 "'The law imposes a duty to maintain prope11y free and clear of dangerous or defective conditions only upon those who own, occupy, or control property. or who put the property to a special use or derive a special benefit from it." Dia::. ,, Ci1r o/'Ne11· fork. 222 /\D3d 946. 946-94 7

Statement of :vlalcrial facts, para. 28. )'..; YSCL:F doc. no. I 62 ( State~ that "'the metal 1s owned by the City of !\:cw York." \\hich has not been refuted.).

( 2d Dept 2023 ). '" Rules of City of New York Department of Transportation (.14 RCNY) ~ 2-07( b) provides that 0\\"ncrs or covers or gratings on a street ... arc responsible fc.)r monitoring the condition of the covers and gratings and the area extending 12 inc:hcs outw:mi from the perimeter of the hardware, and for ensuring that the hardware is flush \Vith the surrounding surface.'" Id. citing :Vmck \' Citr o/Nf'11' York. 153 J\.D.3d 1266, 1266 (2 Dept 2017): sff 34 RCNY ~ 2-07(b).

''Additionally, a party imy be l1ablc for an alTirmati\-c act of negligence which results in the creation of a dangerous cnndition upon a public street or sidew·alk." Diec, 222 J\D3d 946.

In support of their motion. the 167 Sands Street defendants submitted plaintiffs notice of cl.Jim. plaintiffs testimony at his GM!. ~ 50-h hearing, his pretrial deposition testlmony. and his authcntic;1ted photographs depicting the incident location, which collectively demonstrate that th..: alleged sidewalk defect that caused his fall was in the area surrounding (and within l 2 inches outward from the perimeter) of the utility box cover. Moreover. the 167 Sands Street defendants established tha1 they did not perform any work in the area -..vh..:re the incident happened and did not create the alleged defective condition that c:rnsed or contributed to plaintiffs f:1IL nor did they have notice of the alleged dangerous condition. In opposition, the objecting parties failed to raise a triable issue or fact.

Motion Sequence 7 "' An casement appurtenant occurs when the easement ( 1) is conveyed in writing, (2) is subscribed by the creator, and (3) burdens the scrvient estate for the benefit of the dominant estate' and it passes 'to subsequent ovmers of the dominant estate through appurtenance clauses, even ir it is not spcciti.cally mentioned in the deed.,,. SH·inson v Shine. 20 I AD3d 982,983 (2d Dept 2022), quoting R.eil~i- 1· A chito/(: 13 5 AD3d 926. 927 (2 Dept 2016 ). "J\n owner or land is bound by an easement which appears in deeds or other instruments or conveyance of record in their prope1ty's

:---Joncthclcss. the fact that the aforementioned indemnification clause, on its face, allocates liability for third-party injuries (such as plaintiff's injuries herein) resulting from the use of the easement to Chung as the current abutting property owncr. docs not end the inquiry. As stated, 34 RCNY ~ 2-07(b) imposes the duty of maintenance and repair of covers (such as the utility box cover in this case) on the owner of the coveL 1,vhich in this case is the City. The record reflects that the defective area of the alleyway where plaintiff fell was within the 12-inch 7one ot' the utility box cover which the owner of the cover was required 10 repair and maintain pursuant to 34 RCNY ~ 2-07(b). The Appellate Division, Second Dcpartrncnt 111 Flynn v City or New York (84 ;\D3d 1011'\ 120 I I]) he! d that where a cover or grating was located on a sidev>'alk for which the abutting property owner was responsible under the Administrative Code, "that there is nothing in Section 7-210 of the Administrative Code of the City of New York indicating that the City Council intended to supplant the provisions of 34 RCNY 2-07(b) and to allow a plaintiff to shift the statutory obligation of the o\vncr of the cover or grating to the abutting property owner." Flrnn 1' City of New York, 84 A 03d IO 18, 1019 (2d Dept 201 1) citing Storper v Kobe Club, 76 AD3cl 426, (1st Dept 2010); see also Roman v Bob's Discount Furniture o(NY, !JC. 116 AD3d 940, 941 (2d Dept 2014).

llcre. the aforementioned indemnification prov1s1on (akin to the Administrative Code provision construed in Flynn) docs not supplant the cover owner's liability under 34 RCNY ~ 2- 07(b) fcJr the maintenance and repair of the utility box cover. Accordingly, NYC[ I/\ is not entitled to indemnification against Chung under the casement agreement tor the underlying incident.

Accordingly. it is ORDERED that defendants Chung I hva Tenants Corp. and l-kthel Management Inc·s motion for summary judgment in motion sequ1.;ncc 6 is granted in its entirety. the complaint and all cross claims as against them arc dismiss1.;d. the action is severed and continued against the remaining defendants. and the caption is amended accor<lingly: and it is further ORDERED that defendant New York City I lousing Authority's cross motion in motion sequence 7 for an order granting it summary judgment on its erosselaim for contractual indemnification against defendant Chung I [\ya Tenants Corp is denied.

All relief not spccitically granted herein is denied.

The foregoing constitutes the decision and order of this Couti.

F NT ER:

HON. GINA AB/\Dl J.S.C.