Opinion
10916 Index 155323/14
01-30-2020
Deborah J. BENTLEY, Plaintiff–Respondent, v. ALL–STAR, INC., Defendant, Madison Avenue Realties, LLC, et al., Defendants–Respondents–Appellants, 314 5th Enterprises, Inc., doing business as Turntable Chicken Jazz, et al., Defendants–Appellants–Respondents.
Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellants-respondents. Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for Madison Ave Realties, LLC and 314 Fifth Avenue, Inc., respondents-appellants. Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for Treatsa Pizza Corp., respondent-appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Deborah J. Bentley, respondent.
Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellants-respondents.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for Madison Ave Realties, LLC and 314 Fifth Avenue, Inc., respondents-appellants.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for Treatsa Pizza Corp., respondent-appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Deborah J. Bentley, respondent.
Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.
Plaintiff alleges she sustained injuries when the ceiling in defendant Treatsa Pizza's pizzeria collapsed on her. Defendants Madison Avenue Realties, LLC and 314 Fifth Avenue, Inc. are owners of the building, and defendant 314 5th Enterprises (Turntable) operated a restaurant on the second floor, above the pizzeria.
The court properly determined that issues of fact exist as to the liability of each of the defendants. The building owners and Treatsa contend that they had no notice of the defective condition of the plaster ceiling above the dropped ceiling in the pizzeria, because it was a latent condition that would not have been discovered even if inspected (see Figueroa v. Goetz, 5 A.D.3d 164, 165, 774 N.Y.S.2d 9 [1st Dept. 2004] ). "Where, as here, an object capable of deteriorating is concealed from view, a property owner's duty of reasonable care entails periodic inspection of the area of potential defect.... If no such program of inspection is in place, constructive notice of the defect is imputed" ( Hayes v. Riverbend Hous. Co., Inc. , 40 A.D.3d 500, 501, 836 N.Y.S.2d 589 [1st Dept. 2007], lv denied 9 N.Y.3d 809, 844 N.Y.S.2d 784, 876 N.E.2d 513 [2007] [internal quotation marks and citations omitted] ). However, where evidence shows that such an inspection would not have disclosed the defect, "even if there was a breach of the duty to inspect, it was not causally related to the accident" ( id. ).
While all three experts agree that the primary cause of the accident was a deterioration of the plaster due to age and exposure to changing moisture and humidity levels, issues of fact exist as to whether a reasonable inspection by defendant building owners and/or Treatsa would have revealed a defect in the plaster ceiling (see Stubbs v. 350 E. Fordham Rd., LLC, 117 A.D.3d 642, 644, 988 N.Y.S.2d 579 [1st Dept. 2014] ; Perez v. 2305 Univ. Ave., LLC, 78 A.D.3d 462, 463, 911 N.Y.S.2d 38 [1st Dept. 2010] ). Even though Treatsa further asserts that it was not obligated to inspect, it failed to offer any factual or legal support for its contention that it had no responsibility for the plaster ceiling under the terms of its tenancy.
As to Turntable, issues of fact exist as to whether recurring leaks emanating from various locations in its premises caused or contributed to the plaster falling, given that its own expert acknowledged that the exposed wooden lath from which the plaster fell displayed water damage, as well as the evidence of a history of leaks from the premises and that some witnesses observed water in the area of the collapsed ceiling.