The opinion of the court was delivered by: Bernice D. Siegal, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The following papers numbered 1 to 45 read on this motion by third-party defendant RRES Restaurant Group, LLC (RRES) for summary judgment dismissing the third-party complaint; and on this cross motion by third-party defendant The City of New York (City) to transfer this case to an IAS City part, for leave to file its motion for summary judgment beyond the time prescribed in CPLR 3212, and upon such leave, for summary judgment dismissing the third-party complaint and all cross claims; and on this cross motion by third-party defendants Ronald Kaplan and Eytan Sugarman for summary judgment dismissing the third-party complaint; and by separate notice of motion by defendants Sequoia Property Management, Corp. and Harry Field Realty, LLC, for summary judgment dismissing plaintiff's complaint, or, in the alternative, for summary judgment in its favor against RRES, Ronald Kaplan and Eytan Sugarman for breach of contract and indemnification.
In this negligence action, plaintiff seeks damages for injuries allegedly sustained on June 26, 2006 on the northwest corner of the public sidewalk located at 50th Street and First Avenue, New York. Plaintiff claims that, as she was walking southbound on First Avenue, her left foot entered a "dip or a slope" in the sidewalk, causing her to fall. The area where plaintiff fell, as shown by the proffered photographs, depicted the beginning of a pedestrian ramp which leads to the street.
In the absence of a court-ordered rule to the contrary, CPLR 3212(a) requires motions for summary judgment to be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown. Brill v City of New York (2 NY3d 648 ) and its progeny require a moving party to demonstrate "good cause" for the delay in making a motion for summary judgment, "rather than simply permitting meritorious, non-prejudicial filings, however tardy. . . . No excuse at all, or a perfunctory excuse, cannot be good cause' " (id. at 652).
The note of issue herein was filed on May 28, 2008. Pursuant to a so-ordered stipulation dated June 25, 2008, parties were given an extension of time to submit dispositive motions, in which motions for summary judgment were to be made returnable no later than October 28, 2008. All movants herein are, consequently, late in their submissions. However, the City, who is a cross movant in this action, is the only party to recognize its tardiness, and offer an excuse for its untimely submission. The City contends that, despite its request for plaintiff's deposition testimony, which was necessary to make its cross motion, it has yet to receive a copy to date. As a result, the City resigned itself to rely upon plaintiff's parsed deposition transcript, which was submitted as an exhibit in RRES' original motion papers.
"Good cause" is shown where a party is made to wait for deposition transcripts in order to make its motion (see e.g. Kunz v Gleeson, 9 AD3d 480 ; Burnell v Huneau, 1 AD3d 758 ; Connors, (CPLR 3212(a)'s Timing Requirement For Summary Judgment Motions), 71 Brook L Rev 1529, 1550-1551 [Summer 2006] [delayed disclosure establishes "good cause" to entertain an otherwise late motion]). Since the City demonstrated good cause for the delay, its cross motion is deemed timely, and will be considered hereafter on the merits.
However, this court is now confronted with the unique circumstance of whether to consider the remaining motions and cross motion, all of which are untimely and submitted without any good cause shown. Generally, appellate courts have dealt with the situation of an untimely cross motion submitted without good cause which is, nevertheless, considered, if the issues raised therein are nearly identical to those made in a timely motion for summary judgment (see e.g. Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841 ; Ellman v Vil. of Rhinebeck, 41 AD3d 635 ; Grande v Peteroy, 39 AD3d 590 ). This is premised upon the court's ability to search the record and grant summary judgment to any non-moving party (CPLR 3212[b]), provided that the search is limited to those issues that are the subject of the timely motion (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 ; Ellman, 41 AD3d at 636; Grande, 39 AD3d at 592). Therefore, since the City's cross motion is deemed timely served, only those nearly identical issues raised by the remaining, albeit untimely, movants, will be considered pursuant to this court's power to search the record before it.
Turning now to the issues raised in the cross motion itself, in general, liability for injuries sustained as a result of an allegedly dangerous condition on a public sidewalk is placed on the municipality, rather than the owner of the abutting land (see James v Blackmon, 58 AD3d 808 ; Rocco v Marder, 42 AD3d 516 ; Popowa v Neck Rd. One Realty, LLC, 41 AD3d 455 ). However, liability for a pedestrian's injuries will be imposed upon a landowner where the landowner: (1) affirmatively created the dangerous condition; (2) voluntarily but negligently made repairs to the sidewalk; (3) created the dangerous condition through a special use of the sidewalk; or (4) violated a statute or ordinance expressly imposing liability on the abutting landowner for failure to maintain the sidewalk (see James, 58 AD3d at 808; Rocco, 42 AD3d at 517; Jacobs v Vil. of Rockville Ctr., 41 AD3d 539 ).
The thrust of the City's first argument is based upon third-party plaintiffs' alleged violation of New York City Administrative Code § 7-210. This section of the Code, which applies to sidewalk accidents occurring on or after September 14, 2003, shifts liability for said accidents from the City of New York to the abutting landowner. The issue presented herein is whether plaintiff's accident falls within the purview of § 7-210.
Section 7-210 provides, in relevant part, that: "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 safe condition." The Code further states that:
"the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for . . . personal injury . . . proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags."
Shawn Rae, director of the pedestrian ramp unit for the New York City Department of Transportation, appeared on behalf of the City. Notably, Rae stated that (1) pedestrian ramps and sidewalk units are distinct constructions; and (2) the ramp at the subject location was constructed by the City prior to plaintiff's accident. This testimony establishes that the curb-cut pedestrian ramp was not constructed by, on behalf of, or for the benefit of third-party plaintiffs. It further demonstrates that a "pedestrian ramp" is not a part of the "sidewalk"; thus, it does not fall within the ambit of § 7-210. Moreover, plaintiff alleges that her accident occurred, not because of a failure to maintain or repair a defect in the sidewalk, but rather, because of an alleged improperly designed pedestrian ramp; to wit: the steepness of its slope. Section 7-210 applies to maintenance work to be performed by abutting landowners, not to the features of the sidewalk themselves (see Vucetovic v Epson Downs, Inc., 10 NY3d 517, 522 ).
A close reading of the statute, coupled with the circumstances discussed above, reveal that plaintiff's accident does not shift liability to the owners/third-party plaintiffs. This is especially true in light of the principle that "legislative enactments in derogation of common law, and especially those creating liability where none previously existed," will be strictly construed (Morris v Snappy Car Rental, Inc., ...