Opinion
2021-03808 Index 25776/14E 43140/15E 43212/16E 43195/17E
06-15-2021
Deya Aldalali, Plaintiff-Respondent, v. Sungold Associates Limited Partnership, Defendant-Respondent, Saba Live Poultry Corp. I Doing Business as Saba (2) Live Poultry (Halal), etc., et al., Defendants. Sungold Associates Limited Partnership, Third-Party Plaintiff-Respondent, v. HKSM G.C. Co. Inc., Third-Party Defendant-Appellant. [Second Third-Party Action] Sungold Associates Limited Partnership, Third Third-Party Plaintiff-Respondent, v. Henry Kessler, Third Third-Party Defendant-Appellant. Appeal No. 14053&M-1559 No. 2020-04477
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. Robert G. Goodman, P.C., New York (Robert G. Goodman of counsel), for Deya Aldalali, respondent. Gallo Vitucci Klar LLP, New York (Shanna R. Torgerson of counsel), for Sungold Associates Limited Partnership, respondent.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant.
Robert G. Goodman, P.C., New York (Robert G. Goodman of counsel), for Deya Aldalali, respondent.
Gallo Vitucci Klar LLP, New York (Shanna R. Torgerson of counsel), for Sungold Associates Limited Partnership, respondent.
Before: Renwick, J.P., Kern, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered September 16, 2020, which denied third-party defendant (HKSM) and third third-party defendant's (Kessler) motion for summary judgment dismissing all claims, cross claims, and third-party claims as against them, unanimously affirmed, without costs.
Plaintiff's right thumb was severed after he leaned on the exterior metal gate at the entranceway to a building owned by defendant Sungold Associates Limited Partnership and leased to HKSM and Kessler. At the time of the accident, defendant Saba (2) Live Poultry Store was the sublessee of the ground floor store and had exclusive access to the gate.
Supreme Court properly found that HKSM and Kessler, out-of-possession sublessors, failed to establish their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). The evidence established that HKSM and Kessler subleased the ground floor store with knowledge that members of the public would be invited onto the premises. HKSM and Kessler therefore had a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress (Branham v Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 322 [1st Dept 2006], affd 8 N.Y.3d 931 [2007]; Richardson v Schwager Assoc., 249 A.D.2d 531, 531-532 [2d Dept 1998]).
HKSM and Kessler failed to establish that they lacked constructive notice of the operational condition of the gate (see Joachim v AMC Multi-Cinema, Inc., 129 A.D.3d 433 [1st Dept 2015]; Schiavone v Seaman Arms, LLC, 178 A.D.3d 529 [1st Dept 2019]). Kessler's testimony establishes that they never inspected the exterior entranceway to the store, including the gate that caused plaintiff's injuries, before the accident.
M-1559” Aldalali v Sungold Assoc., L.P., et al. Motion to strike the respondent's brief filed by third-party plaintiff-respondent/third third-party plaintiff-respondent, and for costs for the motion, denied.