Opinion
702089/2013
06-10-2015
Nora M. Harrison, Plaintiff, v. Dr. Daniel Yi and PAUL LUCIANO, Defendants.
This is an action for damages for personal injuries sustained by plaintiff, Nora M. Harrison, on April 20, 2012, when she allegedly fell down a staircase in the office of Dr. Daniel Yi, a licensed acupuncturist, located at 207-03 43rd Avenue, Bayside, New York. Dr. Yi leased the premises, a single family, two-story home from the owner, co-defendant Paul Luciano. Dr. Yi used the first floor of the premises as his office. At the time of the accident, Ms. Harrison, age 85, was a patient of Dr. Yi. As a result of her fall, the plaintiff allegedly sustained a fractured wrist as well as a compression fracture and herniation of the thoracic spine, and disc bulges of the cervical spine.
This action was commenced by the filing of a summons and complaint on June 5, 2013. Issue was joined by service of defendant Luciano's answer with cross-claims dated September 19, 2013. Defendant, Dr. Yi, joined issue by service of a verified answer with cross-claims dated July 19, 2013. The plaintiff served and filed a Note of Issue on September 5, 2014. This matter is presently on the calendar of the Trial Scheduling Part for July 23, 2015.
Defendant, Paul Luciano, the owner of the building, and an out-of-possession landlord, now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. Defendant argues that as an out-of- possession landlord he owed no duty to the plaintiff and no control over his tenant's office where the accident occurred. He contends that pursuant to the lease all responsibility to maintain the premises rested with the co-defendant, Daniel Yi. Further, defendant argues that plaintiff has failed to identify any defective condition which caused her accident. In addition, Mr. Luciano claims that there is no evidence he created the allegedly dangerous condition or that he had actual or constructive notice of a defective or hazardous condition existing in the house.
Defendant, Daniel Yi moves separately for summary judgment on the ground that the evidence does not show that there was a dangerous or hazardous condition on the premises at the time of the plaintiff's fall. Dr. Yi claims that he did not create a dangerous condition and did not have actual or constructive notice of any condition on the premises that could be characterized as dangerous. He states that the evidence shows that the stairway was reasonably safe, that there was no slippery substance or debris on the stairs, and that the steps were not cracked, broken, or uneven. Thus, Dr. Yi claims that he is entitled to summary judgment on the ground that the plaintiff has failed to identify a dangerous condition on the stairway and his expert's affidavit states that the stairway was safe.
In support of the motion, defendant, Luciano submits an affirmation from counsel, Brian J. McGeough, Esq., a copy of the pleadings; plaintiff's verified bill of particulars; the transcript of the examination before trial of the plaintiff, Nora M. Harrison; a copy of the deposition transcripts of the defendants, Daniel Yi and Paul Luciano; a copy of the lease agreement between Paul Luciano as owner and Daniel Yi as tenant; and the affidavit of Paul Luciano dated December 22, 2014.
Defendant, Dr. Yi, submits an affirmation from his counsel, John Hunt, Esq; a copy of the pleadings; a copy of the deposition transcripts of the parties; the affidavit of Professional Engineer, Brian E. Flynn; color photographs depicting the location in issue; and a copy of the lease agreement between the defendants.
In her verified bill of particulars the plaintiff states that the accident was caused by a trap like condition of the unmarked, unlocked door leading to an unlit staircase. Plaintiff contends that the defendants were negligent in the ownership, operation, management maintenance, control and/or repair of the basement stairs as a result of the unlit, dangerous and trap like condition of the basement stairs; in causing the basement stairs to become and remain in an unlit, dangerous and hazardous condition; in failing to provide the plaintiff with a safe place to walk. The plaintiff alleges that she was caused to fall due to a defective and hazardous condition of the basement staircase and in failing to insure that the walking areas within the premises were free of hazardous conditions.
The plaintiff, Nora M. Harrison, age 85, testified at her examination before trial, taken on May 14, 2014, that she was told by an opthamologist that she has impaired vision and glaucoma such that she can no longer drive. She was driven to the office by her driver, Fred Feingold. She stated that she first began seeing Dr. Yi in March 2012 for acupuncture for pain in left knee, ribs and mid-back. She stated that she suffers from osteoporosis and has sustained several fractures. On the date of the accident, her third or fourth visit to the office, she arrived at 11:00 a.m. She never used the bathroom in the office prior to that occasion. She did not notice if the bathroom had a sign indicating it was a restroom for men and women.
When she finished her session she sat down on a couch in the waiting area to rest and to wait for her driver. She decided that she needed to use the rest room. She got up, and when she saw a door (not the marked bathroom door) she opened the door took a step in and fell down several stairs. She did not see any signs on the door. She stated that when she opened the door and stepped in she realized she made a "fatal mistake" because she then went down the stairs. When asked what caused her to fall she stated "there was no floor." She did not realize that the door opened into the staircase leading to the basement. She testified that she believed the door led into the bathroom. Prior to falling, she did not ask anyone where the bathroom was and she did not ask anyone for help or assistance because, she stated, there was no one available to ask. She did not know if the stairs were slippery, were in a state of disrepair, were cracked or if there was garbage on the stairs. She did not know if the light in the stairway was on or off but she testified that it was dark. She did not recall seeing any signs on the doors. She didn't look for any signs she just thought that was the door to the bathroom. She put her hand down to brace her fall. She did not describe a dangerous condition on the stairs or that the staircase was unlit however, she stated that as the door led to the basement staircase she believed the door should have been locked. She stated that the EMTs came quickly and took her to the hospital in an ambulance.
Dr. Daniel Yi testified an at examination before trial on May 21, 2014 that he presently works as a licensed acupuncturist at Bliss Acupuncture and Wellness Center. He began there in August 2012 following the plaintiff's accident. Prior to that he had his own clinic, known as Well Being Acupuncture and Herbs located at 207-03 43rd Avenue in Bayside. He stated that he used the living room, dining area, bathroom and basement for his office. The living room and dining room were used as the consultation room and treatment room. The basement was used for record keeping and supplies. He treated about ten patients per day at that location. He employed a receptionist at that location known as Ana Nam. He stated that there was a sofa in the waiting area and a bathroom and closet area. He also stated that the door leading to the basement was also in close proximity to the waiting area. He stated that the basement door was not kept locked while patients were being treated. He stated that the basement door opened outward and led directly to the staircase. He stated that there was a light switch for the stairway which was situated inside the staircase on the wall to the right. He stated that sometimes the light was kept on and sometimes it was not on.
Dr. Yi stated that he treated Ms. Harrison only once prior to the date of the accident. She told him during her interview that she had glaucoma. He stated that he was in the office April 20, 2012 when Ms Harrison fell onto the landing going down to the basement but he did not witness the accident. He stated there was no sign on the door indicating that the door led to the basement. He stated that he heard a scream when the plaintiff fell and he came over and saw her lying down on the landing. She told him she was trying to use the restroom and she fell. He stated that twice at the initial visit and once on the day of the incident, before her treatment, she had used the restroom and he had assisted her on all three occasions. He assisted her because she has low grade glaucoma and she has vision issues. After the treatment, before she fell he escorted her to the waiting area and asked her to call him if he needed anything. After she fell she told him she thought she broke her wrist so he called an ambulance. His receptionist arrived for work at 1:00 p.m. just as the ambulance was taking the plaintiff out of the office. He stated that he did not keep the basement door locked because he had to go downstairs frequently to get his supplies. There was no sign on he basement door and it was not cordoned off in any way.
Dr. YI testified further that he had put a sign on the bathroom door. He stated that if you opened the door leading to the basement it would be dark unless the light was turned on. He stated that from the time he started practicing at the house to the date of the accident, no one else had ever fallen down the staircase or complained about the condition of the staircase. He stated he never complained to the landlord, Mr. Luciano about the door or the condition of the stairs. He stated that he never received any violations from the City building inspectors regarding the condition of the basement door.
He testified that he was a tenant at the 43rd Street location. He had originally leased the premises to use as his residence only. After moving his residence he continued to use the premises as his office pursuant to a verbal agreement with Luciano. The lease was with the original owners of the home, Mr. and Mrs. Paxinos. He stated that the lease was adopted by Mr. Luciano and when the lease expired he became a month to month tenant. He stopped occupying the premises in August 2012 when he took a job with Bliss Acupuncture.
Paul Luciano, a licensed real estate broker, testified at an examination before trial on May 21, 2014. He operates a business known as Luciano's Utopia Realty Inc. d/b/a Utopia Real Estate. He stated that in April 2012 he owned the subject property in Bayside. He sold it in September 2013. When he first purchased it there was a tenant living there known as Ms. Kim. Dr. Yi, who was Ms. Kim's son, converted the first floor to be used as his office. Luciano bought the property from Speros Paxinos. He stated that Ms. Kim was a month to month tenant for the two years that he owned the premises. He was told by his attorney that there was an accident involving Ms. Harrison. He asked Dr. Yi what had happened and Dr. Yi told him that the plaintiff was sitting on the couch in the waiting area, had to use the bathroom, got up and opened the basement door, did not turn on the light, and fell down a step or two. He could not recollect visiting the property in April 2012 but he stated that if he had it would have been just to collect the rent. He did not know if the door leading to the basement had a lock on it. He stated that the door was not marked as leading to the basement. He stated that he never entered the premises and would just stand on the landing outside when he came to collect the rent and if he did come in he never walked around. He was not aware of any other incident or falls on the property before or after Ms. Harrison fell.
He stated that the original lease was between Speros Paxinos with Daniel Yi as the tenant. When he took over the property the lease was transferred to him. The original lease was from February 1, 2009 to January 31, 2011 and then became month to month.
Mr. Luciano also submits an affidavit dated December 22, 2014. He states that he purchased the premises in 2011 and he was the owner as of the date of the plaintiff's accident. He states that the home is a single family detached residence consisting of three stories plus a basement. The property was leased to Daniel Lee, his wife, and mother, Mrs. Kim and her daughter at the time he purchased the premises. He understood that Dr. Yi was an acupuncturist and uses part of the house to perform acupuncture. He states that pursuant to the lease the tenants are responsible for the maintenance of the property including the interior of the premises. He states that at no time prior to the accident was he made aware of any problems or defects with regard to the subject premises including the doorway and steps where the plaintiff had her accident. He is not aware of any prior accidents in that area of the house and he never received any complaints from the tenants or any other individuals regarding the subject doorway and steps.
In his affirmation in support of the motion for summary judgment, Luciano's counsel contends there can be no liability as a matter of law on the part of Paul Luciano because as an out-of-possession landlord he owed no duty to the plaintiff. Counsel contends that pursuant to the lease between the defendants all responsibility to maintain the premises rested with the co-defendant, Daniel Yi, the tenant. Thus, counsel contends that Luciano did not have a statutory or contractual duty to the plaintiff as the lease provides that the tenant is responsible for repairs and maintenance of the premises (citing McNeil v HMB E. 40th St. Corp., 117 AD3d 997 [2d Dept. 2014]; Castillo v Wil-Cor Realty Co., Inc., 109 AD3d 863 [2d Dept. 2013]; Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2d Dept. 2011]).
Further, it is argued that the plaintiff has failed to identify any defective condition which caused her accident and Luciano had no notice of any defective condition and did not cause or create a defective condition causally related to the plaintiff's accident. Luciano and Yi both testified that they were not aware of any prior accident involving that staircase.
Counsel for Dr. Yi, submits an affidavit of service stating that the instant motion for summary judgment was served on January 5, 2014, and therefore, the motion is timely as the note of issue was filed on September 5, 2014. With respect to the merits, Dr. Yi states that the defendant did not have a duty to the plaintiff because the plaintiff's accident was not foreseeable as a matter of law. He states that Dr. Yi testified that the plaintiff used the bathroom on three prior occasions prior to the accident and further, no one had ever fallen down the staircase. Counsel claims that the unlocked basement door was not a hazardous or dangerous condition and Dr. Yi did not have actual or constructive knowledge of any condition on the premises that could be characterized as dangerous. He states that the stairway was safe as the plaintiff testified there was no slippery substance, and no cracked broken or uneven steps. In addition, defendant submits the affidavit of expert, Brian Flynn, a licensed professional engineer, who states that the basement door and the basement stairway complied with New York City and New York State building Codes as they existed in 2012. He states that there is no requirement that the door to the basement be locked and no requirement that there be a sign on the door indicating that the door leads to the basement. Further, he argues that the photographs show that the bathroom door properly displayed a sign indicating it was a bathroom door. It is also argued that the stairway was adequately illuminated such that the a reasonable person would see the steps if he or she turned on the light. Thus, defendant concludes that there is no evidence in the record that there was a dangerous condition on the premises.
In opposition, Dana Whitfield, Esq., counsel for the plaintiff, contends that the plaintiff was injured due to the negligence, carelessness, and recklessness of the defendants who failed to properly demarcate and/or lock the basement door which was adjacent to the waiting room in the premises used as an office by Dr. Yi.
Counsel asserts first that Dr. Yi's motion is untimely as it was served more than 120 days after the plaintiff served and filed her note of issue on September 5, 2014 and the defendant has failed to show good cause for his delay in making the motion. As the note of issue was filed on September 5, 2014, to be timely the motion would have had to have been served on or before January 3, 2015.
In addition, plaintiff argues that defendants Luciano and Yi were both negligent in failing to maintain the property in a reasonably safe condition and failing to warn the plaintiff of the danger posed by the basement door which was in close proximity to the bathroom door and identical in appearance to it. She also states that Dr. Yi testified that he kept the basement door unlocked because he often went to the basement to get supplies. Yi also stated that the light switch was inside the doorway and that sometimes the light was on and sometimes the light was off. Plaintiff asserts that the issue is not whether plaintiff looked to see what was inside the door after opening it, but whether the defendants had a duty to warn or to keep the door locked because the door, which led directly to the basement steps, could be considered a traplike condition for the unwary.
Plaintiff asserts that there are questions of fact as to whether the proximity and appearance of the basement and bathroom doors posed a danger and if it was reasonable to leave the basement door unlocked and unmarked when the first floor of the premises was open to the public as it was being used as a commercial space. She contends that the similar appearance of the doors could create confusion and a dangerous condition for an unfamiliar plaintiff. Counsel also asserts that even though Mr. Flynn, the defendant's engineer, opined that the steps were in a reasonably safe condition, it is not alleged that it was the condition of the steps that caused the accident or precipitated her fall, rather it was the fact that the basement door was unmarked and unlocked creating a traplike and negligent condition. Further, the doctor left the plaintiff alone in the waiting area knowing that she had a vision problem and he had no staff on duty at the time. Thus, it is alleged that Dr. Yi breached his duty to warn of dangers particularly in view of the physical arrangement of the doors in close proximity to each other.
Further, plaintiff claims that Mr. Luciano was negligent because as the owner of the house he was responsible for the design and layout of the premises.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).
Firstly, this court finds that the motion by Dr. Yi for summary judgment is denied as untimely. The Note of Issue was filed with the court on September 5, 2014. The affidavit of service also shows that it was served on the defendants the same day. As this motion was served on January 5, 2015 (122 days after filing) it is untimely as it was served more than 120 days from the date of the filing of the note of issue (see CPLR 3212(a)). Moreover, the plaintiff failed to move to extend the time to serve the motion or to provide "good cause" for its failure to timely move for summary judgment (see Lyebyedyev v Hoffman, 84 AD3d 751 [2d Dept. 2011]; Rivers v City of New York, 37 AD3d 804 [2d Dept. 2007]; Gaines v Shell-Mar Foods, Inc., 21 AD3d 986 [2d Dept. 2005]; Gonzalez v Zam Apartment Corp., 11 AD3d 657 [2d Dept. 2004]). In the absence of a "good cause" showing, the court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (Brill v City of New York, supra; Bivona v. Bob's Disc. Furniture of NY, LLC, 90 AD3d 796 [2d Dept. 2011]; Thompson v New York City Bd. of Educ., 10 AD3d 650 [2d Dept. 2004]). Further, Brill, supra., expressly prohibits consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial. Here, there is nor legitimate reason presented by the defendant which would have prevented it from making the motion for summary judgment returnable within the required time.
Further, Dr. Yi, failed to make a prima facie showing that he is entitled to judgment as a matter of law on the ground that the unlocked basement door leading to the stairway was not a dangerous condition. Here, the plaintiff was a patient who had only been to the premises a few times prior to the accident. She stated she never used that bathroom before. She was not familiar with the layout or where the bathroom was located. The photographs show that although one door was marked with a sign for a bathroom, it was foreseeable that a patient unfamiliar with the layout could mistake the basement door for a bathroom door. Further, there is no proof that there was a light on in the landing area when the door was opened. The plaintiff testified it was dark when she opened the door. Thus, because Dr. Yi failed to take any precautions to warn of the danger, such as locking the door, cordoning off the door, putting a sign on the door, or having a receptionist stationed in the area, there is a question of fact as to whether the danger posed by the proximity and appearance of the bathroom and basement doors was open and obvious and not inherently dangerous and whether Dr. Yi maintained the property in a reasonably safe condition under the circumstances (See McKnight v Coppola, 113 AD3d 1087 [4th Dept. 2014]; Sawyers v Troisi, 95 AD3d 1293 [2d Dept. 2012]; Pollack v Klein, 39 AD3d 730 [2d Dept. 2006]). "Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary, where the condition is obscured or the plaintiff is distracted" ( Stoppeli v Yacenda, 78 AD3d 815 [2d Dept. 2010]).
This Court finds however, that Mr Luciano's motion for summary judgment dismissing the plaintiffs complaint against him is granted. "An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct" (Villarreal v CJAM Assoc., LLC, 125 AD3d 644 [2d Dept. 2015] cited by Poole v MCPJF, Inc., 127 AD3d 949 [2d Dept. 2015]). Here, it is clear that Luciano had relinquished control of the premises to the tenant. As the tenant was in control of the premises, the determination as to whether to lock the basement door or to warn patients that the door led to basement steps was within his sole discretion (see McNeil v HMB E. 40th St. Corp., 117 AD3d 997 [2d Dept. 2014]; Castillo v Wil-Cor Realty Co., Inc., 109 AD3d 863 [2d Dept. 2013]). The landlord demonstrated that he did not retain control over the premises and that pursuant to the lease adopted by both parties, the tenant was responsible for maintenance of the property.
In opposition, the plaintiff failed to raise a triable issue of fact as to whether, there was a structural or design defect or that the defendant retained control over the premises or had a contractual duty to maintain the area of the premises where the accident occurred.
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that the motion for summary judgment dismissing the plaintiff's complaint against defendant Dr. Yi is denied, and it is further,
ORDERED, that the motion by defendant, Paul Luciano, for an order granting summary judgment dismissing the plaintiff's complaint and all cross-claims against him is granted, and it is further,
ORDERED, that this matter remains on the calendar of the Trial Scheduling Part for July 23, 2015.
Dated: June 10, 2015
Long Island City, NY
_____________________
ROBERT J. MCDONALD
J.S.C.