Opinion
No. 9048/2012.
06-09-2014
Burton PUGACH, individually and as Administrator of the Estate of Linda Pugach, Plaintiff, v. COHEN FASHION OPTICAL, INC., and VNV Associates, LP, Defendants.
Opinion
The following papers numbered 1 to 15 were read on this motion by defendants, COHEN FASHION OPTICAL, Inc., and VNV ASSOCIATES, LP, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendants and dismissing the plaintiff's complaint and all cross-claims asserted against them:
Papers Numbered
| Notice of Motion–Affidavits–Exhibits–Memo of Law | 1–6 |
| Affirmation in Opposition–Exhibits–Memo of Law | 7–11 |
| Reply Affirmation | 12–15 |
This is an action for damages for personal injuries sustained by plaintiff, Burton Pugach, on August 22, 2011, when he tripped and fell on the vault metal cellar doors located on the public sidewalk that abuts the premises located at 107–02 71st Avenue, Forest Hills, New York. Defendant VNV Associates LLC, s/h/a VNV Associates, LP (“VNV”) owns the building and leased the ground floor commercial premises to defendant Cohen Fashion Optical, s/h/a Cohen Fashion Optical, Inc (“Cohen”). VNV asserts that it is entitled to summary judgment because as an out-of-possession landlord it had no duty to maintain or repair the subject vault doors pursuant to the terms of the lease agreement.
Defendant, Cohen Optical leased the ground floor of the premises and the basement area. Cohen contends that it is entitled to summary judgment dismissing the complaint against it because plaintiff, in his pre-trial testimony, could not establish what caused his fall and therefore cannot establish that a dangerous condition existed or that any alleged negligence of the defendant, Cohen Optical, was a proximate cause of his accident. Secondly, defendants claim that the alleged defect regarding the metal cellar doors is trivial in nature. Defendants also contend that the plaintiff cannot establish that the defendants had actual or constructive notice of the allegedly dangerous condition.
The plaintiff commenced an action for negligence against the defendants by filing a summons and complaint on April 30, 2012. Issue was joined by service of defendants' verified answer dated June 26, 2012. A Note of Issue was filed by the plaintiff on August 9, 2013. This matter is presently on the calendar of the Trial Scheduling Part on June 26, 2014.
In his verified bill of particulars, the plaintiff alleges that “the defendants were negligent in that they allowed the ends of the vault doors to remain at an uneven level so that passersby would be caused to trip and fall. The lock holding the two doors in a closed, but uneven position was also dangerous and defective. Said lock was adjacent to the building.” Plaintiff claims that the condition was created by the defendants and was allowed to remain in a defective condition for a sufficient period of time for the defendants to have been aware of it and to have remedied the condition. Plaintiff alleges that as a result of the trip and fall he sustained a fracture of the right shoulder and lacerations to the right side of his face.Counsel for defendants, Jesse J. Prisco, Esq., now moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that VNV, as the owner of the building, had no control over his tenant's store where the accident occurred. VNV claims that the optical store was leased to co-defendant Cohen Optical, who operated the store. Defendant, VNV, contends that as the owner of the building he played no role in the operation of the store, and did not supply, own, manage, repair or have anything whatsoever to do with the alleged defect that the plaintiff claims was the cause of his injuries. VNV contends that it had no duty to repair the subject vault doors on the sidewalk of the leased premises nor can any duty be inferred by statute, contract, or course of conduct. Further, VNV contends that there is no evidence it created the allegedly dangerous condition or had actual or constructive notice of same.
In support of the motion, defendants' counsel submits his own affirmation, a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; and copies of the transcripts of the examinations before trial of plaintiff, Burton Pugach; defendant, Victor Yen, on behalf of VNV Associates; and Nicholas Protopapas, on behalf of Cohen Fashion Optical; affidavits and photographs taken by investigator, Charles Lombardi; and the affidavit of Carl Gill, manager of Cohen Fashion Optical.
In his examination before trial, taken on May 6, 2013, plaintiff, Burton Pugach, age 86, testified that on August 22, 2011, he was proceeding to his home, walking in a westbound direction on Austin Street. Cohen Optical is located on the northeast corner of Austin Street and 71st Avenue. The vault in question abuts the store on the Austin Street side. When asked the cause of the accident he stated that he tripped on the doors that close the cellar. He did not remember what foot he tripped with but he stated that when he tripped he was sent flying. He stated that the reason he tripped was because the doors were mis-leveled, one door was higher than the other. After he fell, he was removed from the scene by ambulance and taken to the emergency room at Forest Hills Hospital.
Victor Yen testified on behalf of defendant, building owner, VNV Associates. He stated that he is the owner of the building located at 107–02 71st Avenue, Forest Hills, Queens. He stated that he rents the street level commercial space to Cohen Fashion Optical. The store has a basement which is used for storage by Cohen's and is accessible through the sidewalk cellar doors which are located on the Austin Street side of the building. He stated that he has no personal knowledge of the plaintiff's accident. He states that the lease permits the tenant to use the basement for storage or for whatever purpose they see fit. The lease gives control of the basement to the tenant and the landlord has no personal use of the basement. There is a lock on the cellar door and the landlord stated that he does not have the key. He stated that he never did any work around the cellar doors and he never made use of the basement for his own storage.
Nicholas Protopapas testified at an examination before trial as a representative of Cohen Fashion Optical. He stated that he is the franchise owner of the retail establishment. He states that there is an entrance to the basement from the inside of the store as well as a trap door entrance to the basement from the sidewalk. He stated that the basement is used by Cohens to store supplies. They usually only use the outside doors to bring in large objects, otherwise, they use the inside entrance to access the basement. He stated that there is usually duct tape placed on the doors to prevent water from seeping into the basement. He was not aware someone tripped on the cellar doors until he was notified of the lawsuit. He stated that the lock on the doors belongs to Cohens. He stated that tape was on the doors for the past three years. He was never notified that anyone had tripped on the metal doors prior to the plaintiff's accident. He stated that in order to open the outside cellar doors they have to be pushed open from inside.
Defendants also submit the affidavit of investigator Charles Lombardi, who states that in August 2013, two years after the accident, he visited the scene. He states that on the day he viewed the cellar doors his inspection revealed that the doors were flush with the sidewalk. He stated that there was a slight height differential between the closed cellar doors. He stated that according to his measurements, the height differential between the cellar doors does not exceed 1/4 of an inch in any location.
Carl Gill was the manager of Cohen Fashion Optical on the date of the accident. In an affidavit dated November 23, 2013, he states that the cellar doors have not been modified, repaired, altered, or changed in any way since August 22, 2011. He states that the height differential between the closed cellar doors has not changed in any way from August 22, 2011 to August 14, 2013.
Defendants counsel asserts that defendants are entitled to summary judgment dismissing the complaint on the ground that the plaintiff was not able to identify what he tripped on or to provide any pertinent details about what caused him to fall on the cellar doors. Although the plaintiff testified that he fell because the doors were misleveled, the defendants assert that the plaintiff's testimony is devoid of any evidence that he made any observations that would indicate that the doors were in fact misleveled. Thus, defendant claims that the testimony that the doors were misleveled is purely speculative (citing Manning v. 6638 18th Ave. Realty Corp., 28 AD3d 434 [2d Dept.2006] ; Duncan v. Toles, 21 AD3d 984 [2d Dept.2005] ; Israel v. Fairharbor Owners, Inc., 20 AD3d 392 [2d Dept.2005] ; Sanchez v. City of New York, 305 A.D.2d 487 [2d Dept.2003] [the defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting the plaintiff's deposition testimony, which revealed that she did not know what caused her to fall] ). The defendants claim that since the plaintiff cannot establish that he fell as a result of misleveling of the doors or state what caused him to fall he cannot establish that any alleged negligence by the defendants was a proximate cause of his accident
Secondly, defendants claim that they are entitled to summary judgment dismissing the complaint because the alleged misleveling of the cellar doors was too trivial to be actionable. Defendants claim that the site inspection made by investigator Lombardi in August 2013 demonstrated that the height differential of the doors was 1/4 inch and that Carl Gill the manager of Cohen Optical stated that the cellar doors have not been modified, repaired, altered, or changed in any way since August 22, 2011. Counsel claims in this regard that the courts have found height differentials of one half inch to one and a half inches to be non-actionable as too trivial (citing Zalkin v. City of New York, 36 AD3d 801 [2d Dept.2007] [the defendant established its entitlement to judgment as a matter of law by demonstrating that, under the circumstances, the 3/4 of an inch difference in the height elevation between the edge of the concrete slab which had caused the plaintiff to fall and the adjacent concrete slab was too trivial to be actionable]; Taussig v. Luxury Cars of Smithtown, Inc., 31 AD3d 533 [2d Dept.2006] ; Burstein v.. City of New York, 259 A.D.2d 579 [2d Dept.2009] ).
Thirdly, defendants claims that there is no proof in the record that the defendants had constructive notice of a dangerous condition. In this regard defendants claim that there is no proof as to how long the alleged defect was in existence and whether the defendants had a sufficient period of time to discover and remedy it. Counsel claims that there is no proof that would tend to show that defendants had actual or constructive notice that the cellar doors were misleveled to such a degree that it created a dangerous or hazardous condition
Lastly, defendants claims that VNV Associates was an out-of-possession landlord who, pursuant to the terms of the lease was not responsible for any maintenance or repairs to the cellar doors. Counsel cites Article 8 of the lease which states that the tenant shall take care of the demised premises and the fixtures and appurtenances therein and the sidewalks adjacent thereto. Counsel also claims that an out-of-possession landlord retention of a contractual right to enter the premises to conduct inspections and make repairs does not constitute sufficient control over the premises to impose liability because the right to reenter does not constitute an obligation to make repairs (citing Phillips v. Sinba Assocs., L.P., 296 A.D.2d 389 [2d Dept.2002] ; Discini v. Richgold Assocs., L.P., 272 A.D.2d 366 [2d Dept.2000] ).
In opposition to the motion, plaintiff's counsel Kenneth Brown, Esq., contends that the plaintiff did establish the nature of the dangerous condition as he clearly testified that he tripped on the doors to the cellar and that the cause of his fall was the misleveling of the cellar doors and the fact that one door was higher than the other. Counsel points out that there was no other questioning at the examination before trial by defendants' counsel with regard to the plaintiff's opinion of the exact measurement, in inches, of the height differential. Counsel also contends that the affidavit of the investigator with respect to the height differential of the doors being only 1/4 inch is not competent evidence as the investigators measurements were taken two years after the plaintiff's accident. Plaintiff also asserts that there is a question of fact as to whether the defendants had actual or constructive notice of the allegedly defective condition. Counsel points to the testimony of Mr. Protopapas, the manager of Cohn Optical, who stated that the metal doors are usually taped shut to prevent water from seeping into the basement. Counsel asserts that the tape was placed there to level the doors and prevent water damage. Counsel also opposes the motion of the building owner, VNV, on the ground that the issue of whether the landlord was out-of-possession landlord is a question of fact for the jury.
Upon review and consideration of the defendants' motion, plaintiff's affirmation in opposition and defendants' reply thereto, this court finds as follows:
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 N.Y.2d 557[1980] ).
Here, the defendant, VNV, an out-of-possession landowner, failed to make a prima facie showing that it did not have a duty under the terms of the lease to repair the outside cellar doors, that it did not make a special use of the sidewalk, that it did not create the alleged defect, that it did not have constructive notice of the defect and thus failed to show it was entitled to judgment as a matter of law
An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs (see Denermark v. 2857 W. 8th St. Assoc., 111 AD3d 660 [2d Dept.2013] ; Volpe v. Hudson View Assoc., LLC, 109 AD3d 814 [2d Dept.2013] ; Alnashmi v. Certified Analytical Group Inc., 89 AD3d 10 [2d Dept.2011] ; Tragale v. 485 Kings Corp., 39 AD3d 626[2d Dept.2007] ; Knipfing v. v. & J, Inc., 8 AD3d 628 [2d Dept.2004] ). Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition. Therefore, the liability of a landlord for injuries caused by a defective condition upon leased premises depends on whether the landlord retained sufficient control of the premises to be held to have had constructive notice of the condition (see Notkin v. Gristina Vineyards, 298 A.D.2d 445 [2d Dept.2002] ).
Here the lease submitted by the defendants at paragraph 4 states that “the owner shall maintain and repair the public portions of the building both exterior and interior.” Although the lease states that the tenant shall take good care of the sidewalks, the lease also states that the tenant is only required to make non-structural repairs to the sidewalk and to keep them in good working order. Paragraph 13 provides that the owner shall have the right to enter the demised premises to inspect and make repairs to the premises. Further, paragraph 44 provides that the owner agreed to keep and maintain in good working order and repair all the exterior walls and all structural and exterior portions of the building, including ceiling, flooring, gutters downspouts, curbs, the roof and foundations and any mechanical and electrical systems serving the building.
Therefore, this court finds that the landlord failed to show that it was not obligated, under the terms of the lease, to keep the outside cellar door which was a special use of the sidewalk portion and a part of the exterior portion of the building structure in good working order. Further the lease provided the landlord with the right of entry in order to make such repairs. Thus, there is a question of fact as to whether the landlord was contractually obligated to maintain the outside cellar doors and/or repair the alleged hazardous condition.
With respect to constructive notice, the owner did not provide any testimony as to when he last inspected the subject cellar doors prior to the accident or what it looked like when he last inspected it (see Baines v. G & D Ventures, Inc., 64 AD3d 528 [2d Dept.2009] )and whether the alleged misleveled doors where the defendant fell existed for a sufficient time for the landlord to have discovered and remedied the condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986];Lawrence v. Celtic Holdings, LLC, 85 AD3d 874 [2d Dept.2011] ).
Accordingly, this court finds that the defendant VNV failed to establish, prima facie, that it lacked constructive notice of the defective condition that allegedly caused the plaintiff to slip and fall (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ).
This court finds that the tenant failed to demonstrate, prima facie, that the plaintiff was not able to identify the cause of his accident. The plaintiff clearly testified that he tripped on the cellar doors because they were misleveled and that his foot was caught because there was height differential between the two cellar doors. The facts of this case are distinguishable from the cases cited by the defendant in which the plaintiff did not know or speculated as to the cause of his or her trip and fall. Although the plaintiff did not provide specific details as to the height differential between the doors, the plaintiff testified to a hazardous or defective condition that caused him to trip and the plaintiff was not questioned at the examination before trial with respect to specific details of the hazardous condition.
In addition, the defendant did not meet its burden of proving that the height differential between the doors was a trivial defect. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable (Schenpanski v. Promise Deli, Inc., 88 AD3d 982 [2d Dept.2011] ). However, the defendants did not provide photographs which had been taken at the scene on the date of the accident. The photographs and report of the investigator concerning the metal doors concerned the condition of the doors on the date of his investigation which was two years after the accident. His report and the affidavit of the manager, Mr. Gill that the doors were not modified or altered since the date of the accident have no evidentiary value for purposes of this motion because the condition of the doors can be transient in nature depending on changes due to the public walking on the doors on a daily basis and/or whether the doors had been opened and not fully or properly closed on or about the date of the plaintiff's accident. As there was no evidence or testimony provided by the defendants as to the condition of the doors on the date of the accident, the defendants failed to demonstrate that the height differential was of a trivial nature on the date of the accident (see Lansen v. SL Green Realty Corp., 103 AD3d 521 [1st Dept.2013] ; Hahn v. Wilhelm, 54 AD3d 896 [2d Dept.2008] ; Ferington v. Dudkowski, 49 AD3d 126 2008]; Lal v. Ching Po Ng, 33 AD3d 668[2d Dept.2006] ).
Further, a defendant who moves for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it (see Arzola v. Boston Props. Ltd. Partnership, 63 AD3d 655 [2d Dept.2009] ). Here, the defendants failed to provide sufficient proof that they did not have actual or constructive notice of the alleged defect as the manager of the store did not provide any testimony as to when the doors were last inspected prior to the accident (see Jackson v. Jamaica First Parking, LLC, 91 AD3d 602 [2d Dept.2012] ).
Since the defendants did not meet their prima facie burden, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Anastasio v. Berry Complex, LLC, 82 AD3d 808 [2d Dept.2011] ; Gerbi v. Tri–Mac Enters. of Stony Brook, Inc., 34 AD3d 732 [2d Dept.2006] ; Tchjevskaia v. Chase, 15 AD3d 389 [2d Dept.2005] ).
Accordingly, based upon the foregoing, it is hereby,
ORDERED, that the motion by defendants, VNV Associates and Cohen Fashion Optical, for an order granting summary judgment dismissing the plaintiff's complaint is denied.