SUPREME COURT, APPELLATE DIVISION FIRST DEPARTMENT NOVEMBER 14, 2013 THE COURT ANNOUNCES THE FOLLOWING DECISIONS: Gonzalez, P.J., Friedman, Sweeny, Moskowitz, Clark, JJ. 11042 Isidro Leon, Index 304070/08 Plaintiff-Respondent, -against- Citywide Towing, Inc., et al., Defendants, Shlomo Zion, Defendant-Appellant. _________________________ Jay M. Weinstein, Woodmere, for appellant. Law Offices of Henry W. Davoli, Jr., PLLC, Rockville Centre (Zory Shteyman of counsel), for respondent. _________________________ Order, Supreme Court, Bronx County (Mary Ann Brigantti- Hughes, J.), entered September 21, 2012, which denied the motion of defendant Shlomo Zion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs. Plaintiff was injured when, while riding his bicycle, he was caused to fall to the ground when the rear wheel of his bike was allegedly struck by a vehicle registered to Zion. Plaintiff stated that the vehicle was driven by a “John Doe” defendant, who, after the collision, exited the vehicle and physically assaulted plaintiff, before driving away. The record shows that at the time of the accident, Zion’s vehicle had been in the possession of defendant Citywide Towing, Inc. (Citywide). Vehicle and Traffic Law § 388(1) “makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle. . .by any person using or operating the same with the permission, express or implied, of such owner” (Murdza v Zimmerman, 99 NY2d 375, 379 [2003] [internal quotation marks omitted]). Proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner’s express or implied permission, and the presumption may only be rebutted with “substantial evidence sufficient to show that a vehicle was not operated with the owner’s consent” (id. at 380). Here, Zion’s motion for summary judgment was properly denied since he failed to establish that his vehicle was operated without his consent. The only evidence offered was Zion’s affidavit that he left the vehicle with Citywide to repair hinges on the driver’s side door, but that he never gave permission to Citywide’s employees to drive it. Zion’s affidavit states that he chose Citywide because he was friends with the owners, one of whom called Zion after the accident to inform him that they had found a buyer for the vehicle, and Zion subsequently went to Citywide’s facility to complete the title transfer and sale 2 several days after the accident. Thus, triable issues exist as to whether the vehicle was at Citywide solely for repairs or whether Zion authorized Citywide to sell the vehicle in which case the car could be test driven with Zion’s consent. Hence Zion’s blanket denial that he did not provide consent to Citywide for his car to be driven, without more, does not constitute the evidence required to warrant dismissing the complaint (see Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d 172, 178 [2006]). Furthermore, the record shows that the John Doe defendant was later identified and charged only with the criminal assault upon plaintiff, but not with operating a stolen vehicle, and Citywide regained possession of the vehicle after the incident, but never reported it as stolen. Significantly, discovery has yet to take place, and the John Doe defendant’s relationship to Citywide has not been established. We have considered Zion’s remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 14, 2013 _______________________ CLERK 3 Gonzalez, P.J., Friedman, Sweeny, Moskowitz, Clark, JJ. 11043 Dijon Osborne, Sr., Index 309083/10 Plaintiff-Appellant, -against- New York City Department of Parks and Recreation, et al., Defendants-Respondents. _________________________ Finkelstein & Partners, Newburgh (George A. Kohl, 2nd of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Elliott M. Davis of counsel), for respondents. _________________________ Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 2, 2012, which, in an action for personal injuries sustained in a motor vehicle accident, denied plaintiff’s motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs. Plaintiff established his entitlement to judgment as a matter of law by showing that as he was stopped at a traffic light, his vehicle was struck from behind by defendants’ truck (see Agramonte v City of New York, 288 AD2d 75 [1st Dept 2001]). In opposition, defendants raised a triable issue of fact as to whether an unanticipated slippery condition on the road caused the subject accident (see DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490 [2d Dept 2010]). There is also a question as to 4 whether defendant driver’s truck suffered an unexpected brake failure, inasmuch as he testified that although he had checked the brakes in the morning and found them to be in good working order, the brakes failed to hold prior to the accident, and he was uncertain whether they had malfunctioned (see Jackson v Young, 226 AD2d 230, 231 [1st Dept 1996]; Hubert v Tripaldi, 307 AD2d 692, 694 [3d Dept 2003]). We have considered plaintiff’s remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 14, 2013 _______________________ CLERK 5 Gonzalez, P.J., Friedman, Sweeny, Moskowitz, Clark, JJ. 11044 Sandra J. Requa, Index 106792/10 Plaintiff, -against- Apple Inc., Defendant-Respondent, Boston Properties, Inc., et al., Defendants-Appellants, Moed De Armas & Shannon Architects P.C., Defendant. - - - - - [And A Third-Party Action] _________________________ Melito & Adolfsen P.C., New York (Steven I. Lewbel of counsel), for appellants. Schiff Hardin LLP, New York (Christine W. Feller of counsel), for respondent. _________________________ Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered April 2, 2013, which granted defendant Apple Inc.’s motion for summary judgment dismissing the complaint as against it, and denied as moot defendants-appellants’ (collectively, Boston Properties) cross motion for certain discovery from Apple, unanimously affirmed, without costs. The record demonstrates that Apple owed no duty of care to plaintiff for the defective condition in the plaza outside the entrance to its Fifth Avenue store. The lease agreement between Apple, as tenant, and Boston Properties, as landlord, provided 6 that Boston Properties would “at its expense maintain the plaza in good condition and repair.” Thus, it is Boston Properties that owed a duty to pedestrians such as plaintiff to safeguard them from any defective conditions in the plaza. Apple’s right under the lease to review certain aspects of the plaza design does not raise an issue of fact whether it created the condition that allegedly caused plaintiff’s accident. The lease did not give Apple veto power over Boston Properties’ use of the plaza. We have considered Boston Properties’ remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 14, 2013 _______________________ CLERK 7 Gonzalez, P.J., Friedman, Sweeny, Moskowitz, Clark, JJ. 11045 Richard Hoffman, et al., Index 117738/09 Plaintiffs-Appellants, –against– SJP TS, LLC, et al., Defendants-Respondents. _________________________ Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellants. Malapero & Prisco, LLP, New York (Frank J. Lombardo of counsel), for respondents. _________________________ Order, Supreme Court, New York County (Barbara Jaffe, J.), entered March 20, 2013, which, insofar as appealed from as limited by the briefs, denied plaintiffs’ motion for partial summary judgment on the issue of liability on their Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, and the motion granted. Plaintiff Richard Hoffman, a glazier, was provided with a scissor lift to perform caulking in a glass lobby at a height of approximately 35 feet. Because of the V-shape of that portion of the lobby, the workers could not place the lift directly adjacent to the windows, leaving a gap of about three feet between the workers and their work. In order to caulk the windows, plaintiff needed to lean out over the lift’s railing, place one hand on the glass windows, and operate the caulking gun with the other. When 8 performing this task, plaintiff fell over the railing to the ground. While there was no defect in the device, it was clearly inappropriate for the task at hand in light of the configuration of the building (see Vasquez v Cohen Bros. Realty Corp., 105 AD3d 595, 597-598 [1st Dept 2013]). Defendants’ argument that triable issues exist as to whether plaintiff was the sole proximate cause of the accident, is unavailing, since they failed to provide an adequate safety device in the first instance (see Felker v Corning Inc., 90 NY2d 219 [1997]; Hernandez v Argo Corp., 95 AD3d 782 [1st Dept 2012]). Furthermore, while plaintiff was wearing his safety harness, there was no appropriate anchorage point to which the lanyard could have been tied-off (see Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904, 905 [1st Dept 2011]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: NOVEMBER 14, 2013 _______________________ CLERK 9 Gonzalez, P.J., Friedman, Sweeny, Moskowitz, Clark, JJ. 11046 Board of Managers of The Lenox Index 112834/09 Grand Condominium, Plaintiff-Respondent, -against- DSW Lenox LLC, Defendant-Appellant, Country Bank, et al., Defendants. _________________________ Rita W. Gordon, New York, for appellant. Brill & Meisel, New York (Mark N. Axinn of counsel), for respondent. _________________________ Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 20, 2012, which granted plaintiff’s order to show cause and directed defendant DSW Lenox LLC to pay to plaintiff $61,766.73 by January 15, 2013, plus monthly common charges in the aggregate amount of $7,918.96 from November 2012 onward, unanimously affirmed, with costs. DSW’s contention that plaintiff lacks standing to bring this lawsuit because it was not properly constituted is not properly raised on the instant appeal. In April 2010, the motion court denied DSW’s motion to dismiss this action due to plaintiff’s lack of standing, and DSW did not appeal from that order. In any event, the board that imposed the charges at issue in the instant 10