Grebinger v City of New York 2025 NY Slip Op 30528(U) February 13, 2025 Supreme Court, New York County Docket Number: Index No. 160389/2019 Judge: Mary V. Rosado 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: NEW YORK COUNTY CLERK 02/13/2025 12: 58 PM] INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------------X INDEX NO. 160389/2019 NORKA GREBINGER, as the Administrator of the Estate of MOTION DATE 05/20/2024 ALEXANDER FELICIANO, Deceased,
Plaintiff, MOTION SEQ. NO. 005
- V -
THE CITY OF NEW YORK, ASSOCIATION FOR THE HELP DECISION + ORDER ON OF RETARDED CHILDREN, INC.,717 SUBSIDIARY, MOTION LLC,ACHS MANAGEMENT CORP.,
Defendant. - - - · - - - - - ,--------X
717 SUBSIDIARY, LLC, ACHS MANAGEMENT CORP. Third-Party Index No. 595727/2024 Plaintiff,
-against-
ROCK GROUP NY CORP.
Defendant. ------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130,131,132,133,134,135,136,141 were read on this motion to/for DISMISS
Upon the foregoing documents, and after oral argument, which took place on November
12, 2024, where Justine B. Uy, Esq., appeared for PlaintiffNorka Grebinger as the Administrator
of the Estate of Alexander Feliciano ("Plaintiff'), Eric Koplowitz, Esq. appeared for Defendants
AHRC New York City i/s/h/a Association for the Help of Retarded Children Inc. (or "AHRC"),
and Lauren Turkel, Esq. appeared for Defendants 717 Subsidiary, LLC ("717") and ACHS
Management Corp. ("ACHS") (collectively "Moving Defendants"), the Moving Defendants'
160389/2019 FELICIANO, ALEXANDER vs. CITY OF NEW YORK Page 1 of 4 Motion No. 005
1 of 4 [* 1] [FILED: NEW YORK COUNTY CLERK 02/13/2025 12:58 P~ INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
motion for summary judgment dismissing Plaintiff's Complaint and any and all crossclaims is
granted in part and denied in part.
Alexander Feliciano ("Decedent"), an adult with developmental disabilities, attended an
AHRC program. As part of the program, AHRC took Decedent and others on various trips,
including to restaurants and movie theaters. On November 16, 2018, AHRC took Decedent and
others on a trip to Kellogg's Cafeteria in Union Square. Two AHRC employees were supervising
the trip when Decedent fell on ice on the sidewalk located at the intersection of 7th Avenue and
17th Street in Manhattan. The building abutting the sidewalk was under construction and was
owned by Defendant 717. In this motion, the Moving Defendants seek summary judgment
dismissing Plaintiff's Complaint and all crossclaims asserted against them.
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The Court rejects Moving Defendants' argument that the Complaint should be dismissed
because Decedent, who was an adult with developmental disabilities, could only speculate as to
the cause of his fall. Decedent testified on multiple occasions that the cause of his fall was ice on
a sidewalk. see also Abraham v Dutch Broadway Associates LLC, 192 AD3d 550 [1st Dept 2021];
Kovach v PJA, LLC, 128 AD3d 445 [1st Dept 2015]). To the extent the Moving Defendants argue
160389/2019 FELICIANO, ALEXANDER vs. CITY OF NEW YORK Page 2 of 4 Motion No. 005
2 of 4 [* 2] [FILED: NEW YORK COUNTY CLERK 02/13/2025 12:58 P~ INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
Decedent's deposition testimony was inconsistent, credibility is an issue of fact for the jury
(Francis v New York City Transit Authority, 295 AD2d 164 [1st Dept 2002]).
To the extent 717 argues they were not negligent, this is an issue of fact for the jury. The
New York City Administrative Code§ 7-210(a) imposes a nondelegable duty on property owners
to clear snow and ice from the public sidewalks abutting their buildings (Smoot v Rite Aid, 185
AD3d 411, 413 [1st Dept 2020] citing LaRosa v Corner Locations II, L.P., 169 AD3d 512 [1st
Dept 2019]). It is undisputed that 717 was the owner of the Premises where Plaintiff allegedly fell
and therefore had a duty to ensure the sidewalks abutting its property were clear of ice. Despite
this obligation, there is testimony from Decedent that he slipped on ice which had formed on the
Moving Defendants' sidewalk. It is for a jury to decide if the ice formed because of Moving
Defendants' negligence. To the extent Moving Defendants argue any defect causing Decedent's
fall was trivial, that remains an issue for the jury. Moving Defendants have not presented an expert
affidavit testifying as to the measurements and applicability of any local codes and ordinances
which precludes this Court from granting summary judgment on a trivial defect defense (see, e.g.
Shapiro v 89th Street Dev. Co. LLC, 220 AD3d 499 [1st Dept 2023]; see also Trinidad v
Catsimatidis, 190 AD3d 444 [1st Dept 2021]).
However, the Court grants ACHS' motion for summary judgment. It is undisputed that the
premises where Decedent fell were under construction at the time of the accident (NYSCEF Doc.
122 at 18-19). It is undisputed that ACHS was not the owner of the Premises and once construction
commenced, it had no obligation to maintain the sidewalks (Id. at 28). Indeed, at the time of the
accident, snow and ice removal was delegated to the non-party general contractor (Id. at 31 ).
AHRC' s crossclaim against Moving Defendants seeking common law indemnity 1s
dismissed as unopposed. Moreover, since ACHS is dismissed, AHRC's crossclaim for
160389/2019 FELICIANO, ALEXANDER vs. CITY OF NEW YORK Page 3 of 4 Motion No. 005
3 of 4 [* 3] [FILED: NEW YORK COUNTY CLERK 02/13/2025 12:58 P~ INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
contribution is dismissed as to that defendant. However, 71 Ts motion which seeks dismissal of
AHRC's crossclaim for contribution is denied as there remain triable issues of fact as to whether
717 was negligent.
Accordingly, it is hereby,
ORDERED that Defendants 717 Subsidiary, LLC and ACHS Management Corp.'s motion
for summary judgment is granted in part and denied in part; and it is further
ORDERED that Defendants 717 Subsidiary, LLC and ACHS Management Corp. ' s motion
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Grebinger v City of New York 2025 NY Slip Op 30528(U) February 13, 2025 Supreme Court, New York County Docket Number: Index No. 160389/2019 Judge: Mary V. Rosado 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: NEW YORK COUNTY CLERK 02/13/2025 12: 58 PM] INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------------------X INDEX NO. 160389/2019 NORKA GREBINGER, as the Administrator of the Estate of MOTION DATE 05/20/2024 ALEXANDER FELICIANO, Deceased,
Plaintiff, MOTION SEQ. NO. 005
- V -
THE CITY OF NEW YORK, ASSOCIATION FOR THE HELP DECISION + ORDER ON OF RETARDED CHILDREN, INC.,717 SUBSIDIARY, MOTION LLC,ACHS MANAGEMENT CORP.,
Defendant. - - - · - - - - - ,--------X
717 SUBSIDIARY, LLC, ACHS MANAGEMENT CORP. Third-Party Index No. 595727/2024 Plaintiff,
-against-
ROCK GROUP NY CORP.
Defendant. ------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130,131,132,133,134,135,136,141 were read on this motion to/for DISMISS
Upon the foregoing documents, and after oral argument, which took place on November
12, 2024, where Justine B. Uy, Esq., appeared for PlaintiffNorka Grebinger as the Administrator
of the Estate of Alexander Feliciano ("Plaintiff'), Eric Koplowitz, Esq. appeared for Defendants
AHRC New York City i/s/h/a Association for the Help of Retarded Children Inc. (or "AHRC"),
and Lauren Turkel, Esq. appeared for Defendants 717 Subsidiary, LLC ("717") and ACHS
Management Corp. ("ACHS") (collectively "Moving Defendants"), the Moving Defendants'
160389/2019 FELICIANO, ALEXANDER vs. CITY OF NEW YORK Page 1 of 4 Motion No. 005
1 of 4 [* 1] [FILED: NEW YORK COUNTY CLERK 02/13/2025 12:58 P~ INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
motion for summary judgment dismissing Plaintiff's Complaint and any and all crossclaims is
granted in part and denied in part.
Alexander Feliciano ("Decedent"), an adult with developmental disabilities, attended an
AHRC program. As part of the program, AHRC took Decedent and others on various trips,
including to restaurants and movie theaters. On November 16, 2018, AHRC took Decedent and
others on a trip to Kellogg's Cafeteria in Union Square. Two AHRC employees were supervising
the trip when Decedent fell on ice on the sidewalk located at the intersection of 7th Avenue and
17th Street in Manhattan. The building abutting the sidewalk was under construction and was
owned by Defendant 717. In this motion, the Moving Defendants seek summary judgment
dismissing Plaintiff's Complaint and all crossclaims asserted against them.
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The Court rejects Moving Defendants' argument that the Complaint should be dismissed
because Decedent, who was an adult with developmental disabilities, could only speculate as to
the cause of his fall. Decedent testified on multiple occasions that the cause of his fall was ice on
a sidewalk. see also Abraham v Dutch Broadway Associates LLC, 192 AD3d 550 [1st Dept 2021];
Kovach v PJA, LLC, 128 AD3d 445 [1st Dept 2015]). To the extent the Moving Defendants argue
160389/2019 FELICIANO, ALEXANDER vs. CITY OF NEW YORK Page 2 of 4 Motion No. 005
2 of 4 [* 2] [FILED: NEW YORK COUNTY CLERK 02/13/2025 12:58 P~ INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
Decedent's deposition testimony was inconsistent, credibility is an issue of fact for the jury
(Francis v New York City Transit Authority, 295 AD2d 164 [1st Dept 2002]).
To the extent 717 argues they were not negligent, this is an issue of fact for the jury. The
New York City Administrative Code§ 7-210(a) imposes a nondelegable duty on property owners
to clear snow and ice from the public sidewalks abutting their buildings (Smoot v Rite Aid, 185
AD3d 411, 413 [1st Dept 2020] citing LaRosa v Corner Locations II, L.P., 169 AD3d 512 [1st
Dept 2019]). It is undisputed that 717 was the owner of the Premises where Plaintiff allegedly fell
and therefore had a duty to ensure the sidewalks abutting its property were clear of ice. Despite
this obligation, there is testimony from Decedent that he slipped on ice which had formed on the
Moving Defendants' sidewalk. It is for a jury to decide if the ice formed because of Moving
Defendants' negligence. To the extent Moving Defendants argue any defect causing Decedent's
fall was trivial, that remains an issue for the jury. Moving Defendants have not presented an expert
affidavit testifying as to the measurements and applicability of any local codes and ordinances
which precludes this Court from granting summary judgment on a trivial defect defense (see, e.g.
Shapiro v 89th Street Dev. Co. LLC, 220 AD3d 499 [1st Dept 2023]; see also Trinidad v
Catsimatidis, 190 AD3d 444 [1st Dept 2021]).
However, the Court grants ACHS' motion for summary judgment. It is undisputed that the
premises where Decedent fell were under construction at the time of the accident (NYSCEF Doc.
122 at 18-19). It is undisputed that ACHS was not the owner of the Premises and once construction
commenced, it had no obligation to maintain the sidewalks (Id. at 28). Indeed, at the time of the
accident, snow and ice removal was delegated to the non-party general contractor (Id. at 31 ).
AHRC' s crossclaim against Moving Defendants seeking common law indemnity 1s
dismissed as unopposed. Moreover, since ACHS is dismissed, AHRC's crossclaim for
160389/2019 FELICIANO, ALEXANDER vs. CITY OF NEW YORK Page 3 of 4 Motion No. 005
3 of 4 [* 3] [FILED: NEW YORK COUNTY CLERK 02/13/2025 12:58 P~ INDEX NO. 160389/2019 NYSCEF DOC. NO. 147 RECEIVED NYSCEF: 02/13/2025
contribution is dismissed as to that defendant. However, 71 Ts motion which seeks dismissal of
AHRC's crossclaim for contribution is denied as there remain triable issues of fact as to whether
717 was negligent.
Accordingly, it is hereby,
ORDERED that Defendants 717 Subsidiary, LLC and ACHS Management Corp.'s motion
for summary judgment is granted in part and denied in part; and it is further
ORDERED that Defendants 717 Subsidiary, LLC and ACHS Management Corp. ' s motion
is granted to the extent that Plaintiffs Complaint and AHRC's crossclaims asserted against ACHS
Management Corp. are dismissed; and it is further
ORDERED that that Defendants 717 Subsidiary, LLC and ACHS Management Corp. ' s
motion is granted to the extent AHRC's crossclaim for common law indemnification against 717
Subsidiary, LLC is dismissed without opposition; and it is further
ORDERED that Defendants 717 Subsidiary, LLC and ACHS Management Corp.' s motion
is otherwise denied; and it is further
ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
2/13/2025 DATE HON. MAR)' V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
160389/2019 FELICIANO, ALEXANDER vs. CITY OF NEW YORK Page 4 of4 Motion No. 005
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