Opinion
No. 3776/2011.
2013-03-6
Rosealin RAMPARDARATH, Plaintiff, v. CRUNCH HOLDINGS, LLC, Crunch Fort Green, LLC, Fort Green Sports Club, LLC, Mylaw Realty Corporation, Defendants.
ROBERT J. McDONALD, J.
This is an action for damages for personal injuries sustained by plaintiff, Rosealin Rampadarath, on April 20, 2010, during a spinning class at the Crunch Gym owned by co-defendants Crunch Holdings LLC, Crunch Fort Green LLC and Fort Green Sports Club LLC when the pedal on an exercise bike broke off causing her to injure herself. Defendant Mylaw Realty Corporation owns the building housing the gym which is located at 691 Fulton Avenue Brooklyn, New York.
The plaintiff commenced an action for negligence against Crunch Holdings LLC, Crunch Fort Green LLC, Fort Green Sports Club LLC, and Mylaw Realty Corporation by filing a summons and verified complaint on February 16, 2011 and a supplemental summons and complaint on May 23, 2011. Issue was joined by the service of defendants' verified answers on or about March 29, 2011 (Crunch Holdings) and May 27, 2011 (Mylaw Realty). Plaintiff filed a note of issue and certificate of readiness on May 2, 2012. The gravamen of the complaint is that the defendants were negligent in the ownership, maintenance, operation, management, and control of the gym, created a dangerous condition and failed to remedy the dangerous condition despite having actual and constructive notice. In her verified bill of particulars, plaintiff alleges that defendants were negligent in failing to provide safe exercise equipment, specifically the exercise bicycle as a pedal was not properly attached, fastened and/or tightened and in allowing the pedal to remain loosened, unfastened and/or unattached. Plaintiff also alleged that defendants failed to inspect, maintain or repair the defective pedal, and failed to warn or apprise the plaintiff of the hazardous condition.
Plaintiff claims that the defendants had actual and constructive notice of the hazardous condition in that the condition existed for such period of time that defendants, in the exercise of due care, should have recognized and remedied it.
Counsel for defendant, Mylaw Realty Corporation, now moves for an order granting summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against it on the ground that Mylaw Realty is the owner of the building and had no control over the gym where the accident occurred. The gym where the accident occurred is leased to co-defendant Crunch Holdings, who operated the gym. Defendant, Mylaw, contends that as the owner of the building it played no role in the operation of the gym, did not conduct the spinning class and did not supply, own, manage, repair or have anything to do whatsoever with the alleged defective bicycle that plaintiff claims was the cause of her injuries. Mylaw asserts that since the allegedly defective pedal on an exercise bicycle that fell off during a spinning class run exclusively by co-defendant Crunch Gym there is no basis to impose liability on the owner of the building as it as the building owner had no control, did not maintain, repair, or have any other connection with the gym equipment in question.
In support of the motion, defendant's counsel, Robert J. Cava, Esq., submits his own affirmation dated August 17, 2012; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the lease between Mylaw Realty Corp, landlord and Fort Greene Sports Club, LLC, tenant; and copies of the transcripts of the examinations before trial of plaintiff Rosealin Rampadarath and Robert Corwen Jr. on behalf of defendant Mylaw.
In her examination before trial, taken on October 20, 2011, plaintiff, Rosealin Rampadarath, age 48, testified that she is employed as a babysitter. At the time of the accident she was a member of Crunch Gym. She stated that she went to the gym on almost a daily basis where she participated in yoga classes, treadmill, elliptical, weight lifting and spinning classes. She stated that the first time she was on the bike during a 45 minute spinning class she had no problems with the bike. Her accident occurred on April 20, 2010 at 7:30 in the evening. Her spinning class instructor was Carl Hall. She testified that at the beginning of the class Mr. Hall buckled a strap on the pedal over her feet and showed her what to do. She stated that she was pedaling during the class and after about 40 minutes, just before the class finished, the right pedal and the strap flew off of the bike into the front of the class. When the pedal came off she almost fell off the bike. She leaned to her left and hit her left knee on something and also injured her right shoulder. She waited on the bike a few minutes until the end of the class and then told Carl about the pedal coming off and showed him her knee. He told her to go home and put ice on it. Plaintiff testified that Hall then put the pedal back on the bike and said the bike was defective. She did not have a problem with the pedal prior to it detaching from the bike. She never made a complaint regarding the bicycles prior to that time. She did not fill out an accident report. She did not go back to the gym after the accident.
Defendant also submits a copy of the transcript of the examination before trial of Robert Corwen, Jr., taken on March 21, 2012. He testified that at the time of the accident he was the President of John Mullins and Sons, a real estate management company that managed the property on behalf of the landlord. He stated that the lease was between Mylaw Realty Group as landlord and Fort Green Sports Club as tenant. He stated that the building super would enter the gym on a regular basis. He stated that if the building super saw an issue that he thought needed to be looked at he would bring me on one of my periodic visits to the area. He stated that pursuant to the lease if there were any issues with the building that pertained to the lease he had the right to enter. However, he stated the right to enter did not include problems with the gym equipment. He testified that Mylaw did not have the right nor did it ever inspect, maintain or manage or control any of the gym equipment. Corwen also testified that Mylaw was not informed if there was a complaint regarding broken gym equipment and further, no complaints were ever made to Mylaw regarding broken gym equipment prior to the date of the accident. He stated that after the lease was entered into on July 23rd 2003, neither the landlord or the management company brought in any of the gym equipment and neither entity was involved in the acquisition or purchasing of the gym equipment
Mylaw contends that the testimony of the parties, including the owner's testimony demonstrates, prima facie that the owner of the building had no actual or constructive knowledge of a defective bike on the premises nor was it involved in the acquisition of the gym equipment. Further, the owner claims he has no liability for the plaintiff's injuries as the gym equipment was under the control of the tenant and that under the terms of the lease the landlord had no duty or right to inspect the gym equipment and therefore is not liable for plaintiff's injuries which were alleged to have resulted from a defective bicycle pedal.
In opposition, plaintiff's counsel contends that the plaintiff was injured in a public portion of the commercial premises and as such the out of possession landlord is liable based upon his non-delegable duty to provide a safe premises and safe ingress and egress. Counsel also contends that Mylaw failed to meet its initial burden of demonstrating prima facie that it lacked actual or constructive notice of the allegedly hazardous condition.
Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's 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 evidence submitted by Mylaw was sufficient to demonstrate that as a landlord and under the terms of the lease, it was not liable for making repairs or maintaining the property and equipment belonging exclusively to the gym. The lease states that the tenant is required to repair and maintain items within the tenants exclusive control, whereas the landlord was required to maintain and repair all public areas, facilities and systems in the building. Mr. Corwen testified at his examination before trial that he had the right to enter to make repairs as necessary to the building itself but that the landlord did not have the right, nor did it ever inspect, maintain or manage or control any of the gym equipment. Further, the evidence submitted demonstrates prima facie, that the landlord did not create or have actual or constructive knowledge of the allegedly dangerous condition.
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] ).
“It is well settled that an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable to employees of a lessee for personal injuries caused by an unsafe condition existing on the premises” (Ferro v. Burton, 45 AD3d 1454 [4th Dept.2007] ). Here, the record establishes that Mylaw did not retain control of the leased premises under the terms of its lease with Fort Green Sports Club and the landlord did not undertake a course of conduct whereby it assumed responsibility to make nonstructural repairs. Although the landlord is required to provide safe ingress and egress in public areas of the building as pointed out by the plaintiff, here the defective bicycle pedal located within the leased property does not constitute a structural defect and is obviously not a matter of ingress or egress. The landlord did not purchase, maintain, control or repair the bicycles on the tenant's premises. Therefore, this Court find that liability may not be imposed on Mylaw realty for a defect of this nature (see Greco v. Starbucks Coffee Co., 58 AD3d 681 [2d Dept.2009]; Seney v. Kee Assocs., 15 AD3d 383 [2d Dept.2005]; Regensdorfer v. Central Buffalo Project Corp., 247 A.D.2d 931 [4th Dept.1998] ). Further, the defendant demonstrated that it did not retain sufficient control of the gym or bicycles to have constructive notice imputed to it of the alleged defect see Alnashmi v. Certified Analytical Group, Inc., 89 AD3d 10 2d Dept.2011]; Notkin v. Gristina Vineyards, 298 A.D.2d 445 [2d Dept.2002]
In opposition, plaintiff has failed to raise a triable issue of fact regarding the landlord's control over the leased premises or whether the landlord had a contractual obligation to maintain or repair the bicycles on the premises. Plaintiffs also failed to meet their burden of showing that Mylaw created or had actual or constructive notice of the defective condition or that it maintained control over personal property and gym equipment such as the bicycles which were owned by the tenant.
Therefore, based upon the foregoing it is hereby,
ORDERED, that the motion of the defendant MYLAW REALTY CORPORATION, for an order granting summary judgment dismissing plaintiff's complaint and all cross-claims against it is granted.