Opinion
Index No. 506707/19
01-12-2024
RAMO HUSEINOVIC, Plaintiff, v. LEE WILSON MANAGEMENT, LLC, PANINI INC., PANINI CAFE CORP, and PANINI LA CAFE INC., Defendants.
Unpublished Opinion
ORDER
Hon. Ingrid Joseph Supreme Court Justice
The following e-filed papers read herein: ______NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ ____
Petition/Cross Motion and ____
Affidavits (Affirmations) Annexed ____ 153-171,172-189,190-201
Opposing Affidavits (Affirmations) ____ 225-235, 236, 241-241, 244-246
Affidavits/ Affirmations in Reply____ 240, 259
Upon the foregoing papers, defendant Lee Wilson Management, LLC (LWM), moves, in motion (mot.) sequence (seq.) 7, for an order, granting summary judgment dismissing plaintiff Ramo Huseinovic's (plaintiff) complaint as against it. LWM also moves, in mot. seq. 8, for an order, pursuant to CPLR 3212, awarding it summary judgment under its contractual indemnification and breach of contract cross claims against defendant Panini La Cafe Inc. (Panini). Panini cross-moves, in mot. seq. 9, for an order, pursuant to CPLR 3212 and 3211, dismissing LWM's cross claims against it.
On February 1, 2010, LWM, as owner, leased to non-party David Lowenstein the first floor of the premises located at 45 Lee Avenue in Brooklyn, New York (the premises). The written lease agreement was for a three-year term and contained multiple options to renew for a total of up to 10 years. After entering into the lease agreement, Mr. Lowenstein operated a restaurant out of the premises. After some period of time, Mr. Lowenstein became delinquent in paying his rent and informed LWM's principal, David Oberlander, that he could not afford to pay the rent on the premises. Thereafter, Mr. Lowenstein located individuals representing Panini who were willing to take over his restaurant business. According to Mr. Oberlander, Panini then paid off all rental arrears owed by Mr. Lowenstein and agreed to assume Mr. Lowenstein's obligations and abide by the terms of the lease agreement. Thereafter, Panini operated a restaurant out of the premises and continues to do so to this day.
Plaintiff was originally employed by Mr. Lowenstein and then became an employee of Panini when it took over the operation of the restaurant. In August of 2018, plaintiff was employed by Panini as a chef in its restaurant. On August 30, 2018, plaintiff allegedly sustained injuries in a slip and fall accident in a kitchen extension area in the rear of the restaurant while attempting to put food into a walk-in refrigerator. At his deposition, plaintiff testified that he sustained injuries when he fell on a wet floor and that this kitchen area was constantly wet and had been so for years as a result of a leak in the ceiling above the kitchen area. In addition, plaintiff testified that this wet condition, as well as foot traffic, caused most of the tiles in the kitchen floor to become loose and cracked. When asked what caused him to slip and fall, plaintiff specifically testified that he fell when he stepped on the wet, loose and cracked tiles. Finally, when asked if he ever complained about the leak in the ceiling, plaintiff stated, "[t]he landlord came so many times in the back, I told him, why don't you fix the roof, we can't keep working like this. It was going on for years." Although he could not recall the landlord's name, when asked how he knew that this individual was the landlord, plaintiff testified "100 percent he was the landlord," that this individual identified himself as the landlord and that plaintiffs boss told him that this individual was the landlord.
By summons and complaint dated March 26, 2019, plaintiff brought the instant action against LWM and defendants Panini Inc. and Panini Cafe Corp, alleging that their negligence was the proximate cause of his slip and fall, and the injuries flowing therefrom. Subsequently, plaintiff filed an amended complaint which added Panini as a party defendant. Thereafter, LWM interposed an answer in which it asserted four cross claims against Panini seeking common-law indemnification, common-law contribution, contractual indemnification, and damages for breach of contract based upon Panini's alleged failure to procure liability insurance listing LWM as an additional insured.
On April 4, 2019, plaintiff and Panini entered into a written "Separation Agreement and General Release" (the Release Agreement) whereby, in exchange for the sum of $3,000, plaintiff released Panini from any and all claims and causes of action "of any kind whatsoever in tort, contract, by statute, or on any other basis for compensatory, punitive or other damages."
After all parties joined issue, but prior to the completion of discovery: (1) Panini moved to dismiss plaintiffs complaint against it based upon the Release Agreement; (2) plaintiff moved for a default judgment against Panini, Panini Cafe Corp., and Panini Inc; (3) LWM moved for summary judgment under its cross claims against Panini; and (4) Panini moved to dismiss LWM's cross claims against it. In an order dated August 6, 2020, Hon. Kathy J. King of this court granted Panini's motion to dismiss plaintiffs complaint against it. Justice King further granted those branches of plaintiffs motion for a default judgment against Panini Cafe Corp, and Panini Inc. but denied that part of his motion for a default judgement as against Panini. In addition, Justice King denied LWM's motion for summary judgment under its cross claims against Panini with leave to renew upon the completion of discovery. Finally, Justice King granted Panini's motion to dismiss LWM's common-law indemnification and contribution cross claims against it but denied Panini's motion to dismiss LWM's contractual indemnity and breach of contract cross claims with leave to renew upon the completion of discovery.
Discovery is now complete and the instant motions are now before this court.
LWM moves for summary judgment dismissing plaintiffs complaint as against it. In connection with its motion, LWM raises several arguments. LWM argues that it was an out-ofpossession landlord who had no involvement in, or control over, the kitchen area where the accident occurred and as such, had no common-law, statutory, contractual or assumed duty to maintain or repair the area where the alleged accident occurred. In support of this argument, LWM points to the lease agreement which provided that the tenant was wholly responsible for the condition of the premises and for making any and all repairs to the premises. Additionally, LWM points to Mr. Oberlander's deposition testimony and affidavit to the effect that LWM was not responsible for performing maintenance or making repairs to the premises, including the kitchen area where the accident occurred, as these duties were solely Panini's obligation.
In further support of its motion for summary judgment, LWM contends that plaintiffs claims against it must be dismissed inasmuch as plaintiff could not identify what caused him to slip and fall citing to plaintiffs deposition testimony that he did not look down to the particular tile upon which he allegedly slipped. LWM also argues that it did not create and lacked constructive or actual notice of any alleged dangerous condition that may have caused the accident. In this regard, LWM notes that Panini never responded to its Notice to Admit and thereby conceded that it did not provide LWM notice of any dangerous condition in the kitchen area. In addition, LWM points to Mr. Oberlander's affidavit and deposition testimony, both of which indicate that he was never notified of any issues involving loose tiles or water in the kitchen area. Finally, LWM argues that the plaintiffs testimony regarding informing the "landlord" about the condition in the kitchen is immaterial since plaintiff could not identify the landlord and Mr. Oberlander testified that he never met plaintiff.
In opposition to LWM's motion, plaintiff maintains that LWM's argument that it was an out-of-possession landlord with no responsibility with respect to the maintenance and repair of the premises is contradicted by the record, including plaintiff and Mr. Oberlander's deposition testimony. Plaintiff notes that Mr. Oberlander specifically testified that LWM was responsible for repairing leaks in the kitchen roof and that he hired people to make repairs to the roof prior to the accident. In addition, plaintiff points to his own deposition testimony, wherein he stated that there was a leak in the roof for years prior to the accident which resulted in the kitchen floor being constantly wet. Further, with respect to the issue of notice, plaintiff notes that he testified that he complained to the landlord (i.e., Mr. Oberlander) about the leak in the roof on numerous occasions, but nothing was done to fix the leak. Similarly, plaintiff points out that Mr. Oberlander admitted during his deposition that he hired someone to repair the leak in the roof. Finally, plaintiff argues that contrary to LWM's claim, he specifically and clearly identified what caused him to slip and fall, namely water leaking through the kitchen ceiling onto cracked/loose tiles on the kitchen floor below.
"'Landowners generally owe a duty of care to maintain their property in a reasonably safe condition, and are liable for injuries caused by a breach of that duty'" (Maharaj v Kreidenweis, 214 A.D.3d 717, 718 [2023], quoting Henry v Hamilton Equities, Inc., 34 N.Y.3d 136, 142 [2019]). However, in order to be held liable for a dangerous condition on its property, it must be established that the landowner either created or had actual or constructive notice of the condition (Saravo-Schectman v Pinchback, 219 A.D.3d 647, 648 [2023]). Furthermore a "landowner who has transferred possession and control [i.e., an out-of-possession landlord] is generally not liable for injuries caused by dangerous conditions on the property" (Henry, 34 N.Y.3d at 142). Nevertheless, "[e]ven where it is established that the landowner is an out-of-possession landlord, liability may be imposed, inter alia, where the landlord has retained control over the premises and has assumed responsibility to perform the relevant maintenance or repair by contract or a course of conduct" (Maharaj, 214 A.D.3d at 718).
Here, the evidence before the court indicates that plaintiffs accident was caused by dangerous conditions in the rear kitchen area of the premises in the form of a wet floor and cracked/loose floor tiles that were caused in whole or in part by a chronic leak in the ceiling/roof above the kitchen area. Furthermore, LWM has failed to demonstrate that it was an out-of possession landlord with respect to these conditions. In particular, the rider to the lease agreement specifically states that LWM was responsible for roof repairs. In addition, Mr. Oberlander testified that he hired workers to repair a leak in the roof above the kitchen area prior to the accident. LWM has also failed to demonstrate that it lacked actual notice of the leaking roof. Since, Mr. Oberlander admitted to making repairs to the roof prior to the accident. Moreover, plaintiff testified that he complained to the landlord about the leak in the roof and the issues this created with the kitchen floor on numerous occasions prior to the accident, but nothing was done to remedy this problem. In this regard, although plaintiff could not recall Mr. Oberlander's name, and Mr. Oberlander denied ever meeting the plaintiff, the issue of whether or not plaintiff actually complained to Mr. Oberlander rests on the credibility of the witnesses, which can only be determined by the trier of fact. LWM has also failed to demonstrate that it lacked constructive notice of the leak in the roof since it has not introduced any evidence as to when it last inspected this area (Oliveri v Vassar Bros. Hosp., 95 A.D.3d 973, 975 [2012]). In any event, based on plaintiffs testimony that the roof had been leaking for years, there are issues of fact as to whether LWM had constructive notice of this condition.
As a final matter, the court finds no merit to LWM's argument that plaintiffs negligence claim must fail because he could not identify what caused him to slip and fall. In particular, plaintiff testified at length that he slipped and fell as a result of the wet floor and numerous loose/cracked tiles on the floor that were damaged as a result of the leak in the roof. The fact that plaintiff could not identify the specific tile that he stepped on when he slipped does not provide a basis for dismissing his negligence claim against LWM.
Accordingly, LWM's motion for summary judgment dismissing plaintiffs complaint against it is denied.
LWM separately moves for summary judgment under its contractual indemnification cross claim against Panini. At the same time, Panini cross-moves to dismiss this claim pursuant to CPLR 3211 and 3212. In support of its motion, LWM argues that, through its course of conduct, Panini assumed from Mr. Lowenstein all of the tenant's obligations in the lease agreement that Mr. Lowenstein and LWM originally entered into. In support of this contention, LWM notes that Panini obtained liability insurance listing LWM as an additional insured as required under the lease agreement. In addition, LWM points out that its Notice to Admit specifically alleged that Panini assumed the lease and, inasmuch as Panini failed to respond to this notice, it is deemed admitted. In further support of its motion, LWM notes that under section 2 of the lease agreement, the tenant agreed to indemnify LWM "for and against any and all liability ... arising from injury during said term to persons .. .occasioned wholly or in part by any act or acts, omission or omissions of the Tenant." Here, since Panini was solely responsible for making repairs to the premises under the terms of the lease agreement, LWM maintains that the subject indemnification clause was clearly triggered. Finally, LWM argues that the indemnification provision is enforceable since it was an out-of-possession landlord and the accident was not caused by any negligence on its part.
In opposition to LWM's motion, and in support of its own cross to dismiss LWM's contractual indemnification cross claim, Panini raises three arguments. Panini maintains that this claim must be dismissed under CPLR 3211 (a)(5) as the claim is barred by the statute of frauds. Panini notes that under General Obligations Law § 5-703 (2), "[a] contract for the leasing for a longer period than one year ... of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized in writing." Here Panini points to the undisputed fact that it never executed the lease agreement (which was for a three-year term) or any written agreement whereby the lease was assigned to Panini.
Alternatively, Panini avers that that the contractual indemnification cross claim is barred by General Obligations Law § 15-108, which provides that a release given to one tortfeasor relieves that tortfeasor from "liability to any other person for contribution." In this regard, Panini points out that plaintiff released it from any and all liability in this case in exchange for a $3,000 payment. Panini further contends that, although LWM denominates its cross claim as seeking contractual indemnification, it is actually a claim for contribution. In particular, Panini points out that a true indemnification claim is where a non-negligent party is held liable solely on account of the negligence of another by operation of law or by virtue of some relationship with the tortfeasor. According to Panini, since any damages assessed against LWM must necessarily result at least partially from LWM's own negligence, its cross claim against Panini is actually one seeking contribution, and therefore barred under General Obligations Law § 15-108.
Finally, Panini maintains that LWM's contractual indemnification claim against it is barred under Workers' Compensation Law §11, which precludes third-party indemnification claims against employers unless the claim is based upon a provision in a written contract entered into prior to the accident. Panini maintains that, inasmuch as it never signed a lease agreement with LWM, it never assumed an obligation to indemnify LWM in a written agreement entered into prior to plaintiffs accident.
Turning first to Panini's argument that plaintiffs contractual indemnification claim is barred under General Obligations Law § 15-108 (b), this provision states in pertinent part that "[a] release given in good faith by the injured person to one tortfeasor ... relieves him from liability to any other person for contribution." In such cases, the release "reduces the claim of the releasor against the other tortfeasors ... in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is greatest" (General Obligations Law § 15-108 [a]).
Here, in exchange for the sum of $3,000, plaintiff released Panini from all tort liability, including liability in this case. Moreover, although LWM's cross claim against Panini is identified as one seeking contractual indemnification, in reality, it seeks contribution. Thus, "[t]he statutory bar to contribution may not be circumvented by the simple expedient of calling the claim indemnification" (Rosado v Proctor & Schwartz, 66 N.Y.2d 21, 25 [1985]). "Where one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent" (D 'Ambrosio v City of New York, 55 N.Y.2d 454, 462 [1982]). "Conversely, where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy" (Glaser v Fortunoff of Westbury Corp., 71 N.Y.2d 643, 646 [1988]). In the instant case, LWM does not face any potential vicarious liability as plaintiffs sole claim against it sounds in negligence. Thus, any liability that LWM ultimately faces will be for its own negligence. Consequently, plaintiffs third cross claim actually seeks contribution and is barred under General Obligations Law § 15-108(b). Accordingly, that branch of Panini's cross motion which seeks an order dismissing LWM's contractual indemnification cross claim against it is granted and that branch of LWM's motion which seeks summary judgment under this cross claim is denied.
As previously noted however, any liability award against LMW will be reduced by either $3,000, or Panini's equitable share of the damages under Article 14 of the CPLR, whichever is greater.
In any event, the court notes that LMW's motion for summary judgment under its contractual indemnification claim would necessarily have been denied inasmuch as there are issues of fact as to whether LWM's own negligence contributed to the accident (General Obligations Law § 5-321).
Although the court has determined that LMW's contractual indemnification cross claim must be dismissed under General Obligations Law § 15-108, in order to create a complete record, the court will address Panini's alternate arguments in support of its motion to dismiss this claim. Panini's arguments that LWM's contractual indemnification claim is barred by the statute of frauds is without merit since,"[a] tenant may assume a lease by its actions, even where no written lease is present [and] [t]he presence of a tenant in possession that is paying rent gives rise to a presumption of an assignment sufficient to satisfy the statute of frauds" (Gateway I Group, Inc. v Park Ave. Physicians, P.C., 62 A.D.3d 141, 147 [2009]). Here, it is undisputed that Panini was in possession of the premises and paying rent at the time of the accident. Further, by failing to respond to LWM's notice to admit, Panini has conceded that it assumed the written lease originally entered into by LWM and Mr. Lowenstein.
Panini's argument that LWM's contractual indemnification claim is barred by Workers' Compensation Law § 11 is also without merit. This statute "precludes third-party indemnification claims against employers unless the claim is 'based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the ... person asserting the cause of action for the type of loss suffered'" (Trombley v Socha, 113 A.D.3d 921, 922 [2014], quoting Workers' Compensation Law § 11[1]). Here, LWM's contractual indemnification claim is based upon a written provision in the lease agreement which Panini assumed prior to the accident (see Flores v Lower East Side Serv. Ctr., Inc., 4 N.Y.3d 363 [2005]).
LWM moves for summary judgment under its breach of contract to procure liability insurance cross claim against Panini. At the same time, Panini cross-moves to dismiss this claim. In support of its motion, LWM reiterates its argument that Panini assumed the lease agreement and the tenant's obligations contained therein. LWM also notes that the lease contains a provision requiring that the tenant obtain liability insurance which lists LWM as an additional insured. Finally, LWM notes that Panini has failed to defend or indemnify it in this action. Accordingly, LWM maintains it is entitled to summary judgment under its breach of contract cross claim against Panini.
In opposition to this branch of LWM's motion, and in support of its own cross motion to dismiss LWM's breach of contract cross claim, Panini again argues that any agreement between the parties whereby it agreed to procure liability insurance covering LWM violates that statute of frauds.
A party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with (Meadowbrook Pointe Development Corp, v F&G Concrete &Brick Industry, Inc., 214 A.D.3d 965 [2d Dept. 2023]; Breland-Marrow v RXR Realty, LLC, 208 A.D.3d [2d Dept. 2022]; Dibouno v Abbey, LLC, 83 A.D.3d 650 [2d Dept. 2011]). Summary judgment dismissing a cause of action alleging failure to procure additional insured coverage is warranted where the movant demonstrates, prima facie, that it procured the requisite insurance (Meadowbrook Pointe Development Corp, at 969; Georges v Resorts World Casino N.Y.City, 189 A.D.3d [2d Dept. 2020]).
Here, the court finds that LMW has failed to meet its prima facie burden in moving for summary judgment under its breach of contract claim against Panini for failure to procure liability insurance naming LWM as an additional insured. Panini's argument that any agreement between the parties whereby it agreed to procure liability insurance covering LWM violates that statute of frauds is without merit because it through the course of its actions and by failure to respond to LWM's notice to admit, Panini has conceded that it assumed the written lease originally entered into by LWM and Mr. Lowenstein, and therefore was obligated to procure insurance covering LWM. Nonetheless, the record demonstrates that copies of the Certificate of Liability Insurance, Evidence of Commercial Property Insurance, and Workers Compensation and Employers' Liability Insurance Policy forms were submitted which named LMW as an additional insured. Moreover, in his affidavit, Mr. Oberlander, the principal of LWM, states that Panini was obligated to procure liability insurance of at least $ 1,000,000.00/$2,000,000.00, that
See Defendant's Supplemental Response to Panini LA Cafe Inc.'s Notice to Admit - Exhibit B; NYSCEF Doc. No. 184; See also Defendant Panini La Cafe Inc.'s Response to Defendant Lee Wilson's Combined Demands, pg. 88, 129-133; NYSCEF Doc. No. 182
LWM was supplied with a copy of the insurance policy procured by Panini providing the above referenced coverage and that LWM was named as an additional insured. Thus, LMW has failed to demonstrate that the insurance provision was not complied with (Mathey v Metropolitan Transp. Auth., 95 A.D.3d 842, 845 [2012]).
Accordingly, it is hereby, ORDERED, that LWM's motion, (mot. seq. 7), for summary judgment dismissing plaintiffs complaint against it is denied; and it is further, ORDERED, that LWM's motion, (mot. seq. 8), for summary judgment under its contractual indemnification and breach of contract cross claims against Panini is denied; and it is further, ORDERED, Panini's cross motion (mot. seq. 9), is granted to the extent that LWM's contractual indemnification cross claim is dismissed pursuant to General Obligations Law 15-108.
This constitutes the decision and order of the court.