Opinion
Index No. 154230/2020 Motion Seq. No. 002
10-12-2023
YVETTE ARIZMENDI, Plaintiff, v. ARGY 37 LLC, and R &D DELICATESSEN CORP. D/B/A CYPRIANA RESTAURANT, Defendants.
Unpublished Opinion
PRESENT: HON. DAVID B. COHEN, Justice.
DECISION + ORDER ON MOTION
DAVID B. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 were read on this motion to/for _JUDGMENT - SUMMARY.
In this premises liability action, defendant Argy 37 LLC (Argy) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it. Defendant R&D Delicatessen Corp., doing business as Cypriana Restaurant (R&D), opposes the motion and crossmoves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it. Plaintiff opposes the motion and the cross-motion.
Factual and Procedural Background
This case arises from an incident on August 2, 2019, in which plaintiff was allegedly injured when she fell down a step leading out of a building located at 47-02 37th Street in Queens (the premises) (NYSCEF Doc No. 1). The premises were owned by Argy and leased by R&D for use as a restaurant (Doc Nos. 66-67).
Deposition Testimony of Plaintiff (Doc No. 65)
At her deposition, plaintiff testified that, on the date of her accident, it was a "clear, sunny day" and that the sidewalk and concrete step leading into the restaurant were dry. As she exited the restaurant, she stepped down onto the step and her right foot twisted, causing her to fall to the sidewalk. At the time of her accident, she was looking straight ahead, and there was no water, garbage, or debris on the step. She had also successfully ascended the step roughly twenty minutes prior to the accident when she entered the restaurant for lunch. When shown photographs of the step taken shortly after her accident, she confirmed that they fairly and accurately depicted the condition of the step on the date of her accident.
Deposition Testimony of R&D (Doc No. 66)
The owner and president of R&D testified on its behalf, and confirmed that R&D leased the premises and that Argy was the property owner. She oversaw the daily operations of the restaurant and worked as a cashier. The premises were inspected daily, and she never received any complaints about the step. She indicated that it was her responsibility, as the tenant, to clean the exterior of the premises, i.e., places like the sidewalk, however, other maintenance needs, like fixing leaks in the roof, were handled by someone associated with Argy. Lastly, she confirmed that she signed the fourth amendment and modification of the lease agreement in her capacity as owner of R&D.
Deposition Testimony of Argy (Doc No. 67)
One of Argy's co-owners testified on its behalf, and confirmed that it owned the premises, which R&D leased for use as a restaurant. The lease was in effect on the date of plaintiff s accident and continued until 2021, when R&D voluntarily relinquished it after a fire. He was not involved with any daily operations of the restaurant and never received any violations or notices of dangerous conditions about the step. According to him, Argy was only responsible for structural repairs, which did not cover items like internal stairs or the concrete step; R&D, as the tenant, was responsible for maintaining those portions of the premises.
Lease Agreement. Subsequent Modifications, and Rider (Doc No. 82)
The lease agreement was signed in February 2006 by two nonparties. Eventually, through various assignments and modifications, Argy came to own the premises with R&D as its tenant. The lease agreement contained explicit language regarding repairs - Argy, as the property owner, was responsible for "maintaining] and repair[ing] the public portions of the building, both exterior and interior," whereas R&D, as the tenant, was responsible for maintaining the sidewalk and any associated "non-structural repairs." However, the lease agreement also contained a rider, which provided that the R&D would "make all necessary repairs[] to the entire premises . . ., including structural repairs and the roof," although the portion referring to structural repairs and the roof was struck through. The rider also explicitly provided that R&D was responsible for maintaining the sidewalk and the parking lot. Neither the lease nor the rider contained any language regarding which of the two documents governed should they conflict.
Argy's Expert Affidavit &Engineering Report (Doc No. 69)
In his affidavit and report, Argy's expert detailed his several visits to the site and the various measurements he took of the step. He opined that the step was built outside the property lot and the outer building line; therefore, the building code was inapplicable because the step was actually part of the sidewalk. He further explained, specifically, that the design requirements of sections 27-375 and 27-376 of the Administrative Code of the City of New York related to interior and exterior stairs were inapplicable for that reason. However, even if the building code did apply, the step complied with all requirements. Although a portion of the step was sloped to align with the slope of the sidewalk, the step's surface, where one would place his or her foot, was sufficiently level. The lack of handrails was also allowed, because the age of the premises exempted the step from any building code handrail requirements. Lastly, he provided the results from multiple inspections performed by the City of New York over time, which all indicated that the step conformed to all requirements. Ultimately, he concluded that the step contained no structural or design defects.
Plaintiff's Expert Affidavit (Doc No. 90)
Plaintiff s expert concluded that the step violated building code requirements in four distinct ways. First, there was a "lack of visual cues or cautionary warnings," in violation of sections 27-127 and 27-128 of the Administrative Code, because there were no warning signs or colored floor markings just before the restaurant's exit. Second, the "step geometry" violated sections 27-375(e)(1) and (e)(2) of the Administrative Code because the height of the step, referred to as the riser, was outside the range allowed under the building code. Third, the absence of a handrail violated sections 27-292, 27-375, and 27-376 of the Administrative Code, and their requirements for building access, interior stairs, and exterior stairs, respectively. Fourth, the step violated the design requirements of Administrative Code § 27-371 pertaining to doors, because the landing area was insufficient to allow plaintiff to perceive the change in depth. Therefore, he opined that the step contained structural and design defects.
Legal Analysis and Conclusions
A. Argy 's Summary Judgment Motion
Argy contends that it is entitled to judgment as a matter of law for several reasons. First, it asserts that it is not liable because it was an out-of-possession landlord and the step contained no structural or design defects. Next, it contends that it owed no duty to plaintiff because the step is part of the sidewalk, as the step "in no way contributes to the functionality of the building," and the lease agreement made R&D responsible for maintaining the sidewalk. Finally, it argues that it had no actual or constructive notice of the alleged dangerous condition.
"An out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it (1) is contractually obligated to make repairs or maintain the premises, or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision" (DeJesus v Tavares, 140 A.D.3d 433, 433 [1st Dept 2016] [internal quotations marks and citations omitted]; accord Padilla v Holrod Assoc. LLC, 215 A.D.3d 573, 573 [1st Dept 2023]).
Argy, however, fails to demonstrate that it was not contractually obligated to make repairs. The lease agreement and rider contain conflicting information regarding who was responsible for maintaining the step. The lease agreement indicated that Argy must "maintain and repair the public portions of the building, both exterior and interior," whereas the rider indicated that R&D must "make all necessary repairs" to the premises, and neither document specifies which controls in the event that the lease and rider conflict (cf. Monaghan v Cole, 171 A.D.3d 558, 558-599 [1st Dept 2019] ["The parties expressly agreed that the rider would override any inconsistent provisions in the contract" (citations omitted)]; Pandey v Pierce, 158 A.D.3d 460, 461 [1st Dept 2018] [similar]).
With respect to liability based on structural and design defects, even assuming Argy made a prima facie showing that no such defects existed, plaintiff has demonstrated that triable questions of fact remain. Although the alleged violations of sections 27-127 and 27-128 of the Administrative Code are insufficient to allow for liability (see Centeno v. 575 E. 137th St. Real Estate, Inc., 111 A.D.3d 531, 531 [1st Dept 2013]), and the alleged riser height and tread violations do not amount to significant structural or design defects (see Kittay v. Moskowitz, 95 A.D.3d 451, 452 [ 1 st Dept 2012], Iv denied 20 N.Y.3d 859 [2013]), the parties' experts offered differing opinions about whether sections 27-375 and 27-376 of the Administrative Code applied to the step, and plaintiff s expert opined that the design of the landing violated Administrative Code § 27-371.
Argy's contention that it cannot be liable for the step because it was part of the sidewalk, and not the structure of the building, is also unavailing. "[Although] an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under [the code]" (Xiang Fit He v Troon Mgt., Inc., 34 N.Y.3d 167,174 [2019]; see Vargas v Weishaus, 199 A.D.3d 620, 624 [1st Dept 2021]). The definition of sidewalk in the Administrative Code includes steps or stairways (see Administrative Code of the City of NY § 7-201 [c] [1] [b]), and when such steps or stairways "are integrated with, or serve as part of, a connected standard sidewalk, they plainly fall within the meaning of that already existing category" (Woodson v City of New York, 93 N.Y.2d 936,937 [1999] [holding defective concrete stairway leading from sidewalk to public park was subject to Administrative Code because it was part of sidewalk]). Therefore, viewing the step as part of the sidewalk does not allow Argy to avoid liability.
Therefore, Argy's motion for summary dismissal of the complaint as against it is denied.
B. R&D 's Summary Judgment Motion
R&D contends that it is entitled to judgment as a matter of law because it was not responsible for maintaining the step and it lacked actual or constructive notice of the alleged dangerous condition. However, as discussed above in section A, it is unclear whether R&D was contractually obligated to maintain the step, given the contradictory provisions in the lease agreement and the rider pertaining to repairs.
The parties' remaining contentions are either without merit or do not need to be addressed given the findings set forth above.
Accordingly, it is hereby:
ORDERED that the motion by defendant Argy 37 LLC for summary judgment dismissing the complaint as against it is denied; and it is further
ORDERED that the cross-motion by defendant R &D Delicatessen Corp., doing business as Cypriana Restaurant, for summary judgment dismissing the complaint as against it is denied; and it is further
ORDERED that the parties are to appear for a settlement/trial scheduling conference in person at 71 Thomas Street, Room 305, on January 31, 2024, at 9:30 a.m.