Opinion
701 CA 22-01492
10-06-2023
Darcy M. BLACK and Robert J. Black, Plaintiffs-Appellants, v. 465 PAYNE AVENUE, LLC, Defendant-Respondent.
GRECO TRAPP, PLLC, BUFFALO (JOSEPHINE A. GRECO OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANT-RESPONDENT.
GRECO TRAPP, PLLC, BUFFALO (JOSEPHINE A. GRECO OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., MONTOUR, GREENWOOD, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Darcy M. Black (plaintiff) when, after walking inside from a snow-covered sidewalk, she slipped and fell on uncovered laminate flooring in the entryway of a building that was owned by defendant, leased to a related corporation (lessee), and occupied by plaintiff's employer, which paid the rent owed under the lease. Plaintiffs appeal from an order that granted defendant's motion for summary judgment dismissing the complaint. We agree with plaintiffs that Supreme Court erred in granting the motion on the ground that plaintiffs’ action was barred by the exclusive remedy provisions of the Workers’ Compensation Law (see Workers’ Compensation Law §§ 11, 29 [6] ). Contrary to the court's determination, defendant failed to meet its initial burden on the motion of establishing that it functioned as an alter ego of plaintiff's employer (see Taitt v. Shipwreck Tavern, Inc. , 162 A.D.3d 1746, 1746, 76 N.Y.S.3d 454 [4th Dept. 2018] ; Cleary v. Walden Galleria LLC , 145 A.D.3d 1524, 1525, 44 N.Y.S.3d 305 [4th Dept. 2016] ). We nonetheless affirm the order on the alternative ground raised by defendant, which is properly before us (see Parochial Bus Sys. v. Board of Educ. of City of N.Y. , 60 N.Y.2d 539, 545-546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; Stewart v. Dunkleman , 128 A.D.3d 1338, 1341, 8 N.Y.S.3d 515 [4th Dept. 2015], lv denied 26 N.Y.3d 902, 2015 WL 5125616 [2015] ), that its status as an out-of-possession landlord absolves it of liability. "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 this duty" ( Henry v. Hamilton Equities, Inc. , 34 N.Y.3d 136, 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 [2019] ; see Gronski v. County of Monroe , 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011], rearg denied 19 N.Y.3d 856, 946 N.Y.S.2d 562, 969 N.E.2d 780 [2012] ). "The duty is premised on the landowner's exercise of control over the property, [because] the person in possession and control of property is best able to identify and prevent any harm to others" ( Henry , 34 N.Y.3d at 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 [internal quotation marks omitted]; see Gronski , 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ; Butler v. Rafferty , 100 N.Y.2d 265, 270, 762 N.Y.S.2d 567, 792 N.E.2d 1055 [2003] ). In contrast, "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, 114 N.Y.S.3d 21, 137 N.E.3d 476 [internal quotation marks omitted]; see Gronski , 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ). "[W]hen a landowner and one in actual possession have committed their rights and obligations with regard to the property to a writing, we look not only to the terms of the agreement but to the parties’ course of conduct—including, but not limited to, the landowner's ability to access the premises—to determine whether the landowner in fact surrendered control over the property such that the landowner's duty is extinguished as a matter of law" ( Gronski , 18 N.Y.3d at 380-381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ). There are, however, exceptions to the general rule of nonliability for an out-of-possession landlord that has relinquished control of the premises (see Henry , 34 N.Y.3d at 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 ; Truax v. M.D. Meyer's Props., LLC , 218 A.D.3d 1328, 1328, 193 N.Y.S.3d 557 [4th Dept. 2023] ). Thus, an out-of-possession landlord may be liable for injuries that occur on its premises where, for example, " ‘the landlord ... is contractually obligated to repair the premises or ... has reserved the right to enter the premises to make repairs, and liability is based on a significant structural or design defect that violates a specific statutory safety provision’ " ( Weaver v. Deronde Tire Supply, Inc. , 211 A.D.3d 1503, 1504, 182 N.Y.S.3d 431 [4th Dept. 2022], appeal dismissed 39 N.Y.3d 1149, 190 N.Y.S.3d 4, 211 N.E.3d 94 [2023] ; see Henry , 34 N.Y.3d at 142, 114 N.Y.S.3d 21, 137 N.E.3d 476 ; Guzman v. Haven Plaza Hous. Dev. Fund Co. , 69 N.Y.2d 559, 565-567 and n. 4, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987] ).
Here, we conclude that defendant met its initial burden on the motion of establishing that it was an out-of-possession landlord that had relinquished control of the premises and was not obligated to perform repairs or maintenance of the premises, including removal of snow (see Adolf v. Erie County Indus. Dev. Agency , 174 A.D.3d 1519, 1519, 103 N.Y.S.3d 340 [4th Dept. 2019] ; Sexton v. Resinger , 70 A.D.3d 1360, 1361, 894 N.Y.S.2d 640 [4th Dept. 2010] ). In support of its motion, defendant submitted the lease between defendant and the lessee, which provided that the lessee was responsible for all maintenance and repair of the premises (see Tarantelli v. 7401 Willowbrook Rd. Assoc., LLC , 13 A.D.3d 1184, 1184, 787 N.Y.S.2d 587 [4th Dept. 2004] ). Defendant's submissions also established that the executive director of plaintiff's employer was responsible for ensuring that such maintenance was completed and that the flooring was safe—a job that included having floor mats placed in the entryway—and that a maintenance worker hired by plaintiff's employer was responsible for maintenance, repairs, and snow and ice removal at the premises (see McLaughlin v. 22 New Scotland Ave., LLC , 132 A.D.3d 1190, 1192, 20 N.Y.S.3d 172 [3d Dept. 2015] ). Contrary to plaintiffs’ assertion that defendant retained control of the premises because the lease prohibited the lessee from making any alterations, we conclude that the lease, when its language is properly construed pursuant to applicable grammatical rules (see Duane Reade, Inc. v. Cardtronics, LP , 54 A.D.3d 137, 141-142, 863 N.Y.S.2d 14 [1st Dept. 2008] ), allowed the lessee to make certain alterations to the building with defendant's preapproval; expressly prohibited only those alterations that would be for a purpose other than the one stipulated in the lease, that would be for a purpose deemed an extra hazardous fire risk, or that would be in violation of law; and otherwise contemplated that the lessee might make improvements to the premises (cf. Rios v. 1146 Ogden LLC , 136 A.D.3d 606, 607, 25 N.Y.S.3d 215 [1st Dept. 2016] ).
Moreover, contrary to plaintiffs’ further contention, a question of fact is not raised by evidence in defendant's submissions that its sole owner, who was also the sole owner of the lessee and of plaintiff's employer, approved the installation of the laminate flooring and would occasionally visit the premises to examine any work that had been completed (see Hart v. O'Brien , 72 A.D.3d 1257, 1259, 898 N.Y.S.2d 697 [3d Dept. 2010] ; cf. Gronski , 18 N.Y.3d at 380-381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ; Dill v. Lahr , 194 A.D.3d 1473, 1474-1475, 148 N.Y.S.3d 582 [4th Dept. 2021] ). The fact that defendant "retained the right to visit and examine [the] premises, and to approve alterations, additions or improvements[,] ... [is] insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord who reserves the right to enter the leased premises to make necessary repairs" ( Schwegler v. City of Niagara Falls , 21 A.D.3d 1268, 1269-1270, 801 N.Y.S.2d 873 [4th Dept. 2005] [internal quotation marks omitted]; see Hart , 72 A.D.3d at 1259, 898 N.Y.S.2d 697 ; see also Ferro v. Burton , 45 A.D.3d 1454, 1455, 846 N.Y.S.2d 850 [4th Dept. 2007] ). Although an out-of-possession landlord may be liable for injuries that occur on its premises where the landlord has " ‘reserved the right to enter the premises to make repairs, and liability is based on a significant structural or design defect that violates a specific statutory safety provision’ " ( Weaver , 211 A.D.3d at 1504, 182 N.Y.S.3d 431 ), the alleged slippery condition of the laminate flooring caused by tracked-in snow combined with the removal of floor mats from the entryway is not a structural or design defect (see Padilla v. Hope W. 118th Hous. Co., Inc. , 204 A.D.3d 545, 545, 165 N.Y.S.3d 278 [1st Dept. 2022] ; Lindquist v. C & C Landscape Contrs., Inc. , 38 A.D.3d 616, 616-617, 831 N.Y.S.2d 523 [2d Dept. 2007] ; Evans v. Citicorp , 276 A.D.2d 370, 370, 714 N.Y.S.2d 473 [1st Dept. 2000] ) and plaintiffs failed to allege a specific statutory violation pertaining to the condition of the floor (see Truax , 218 A.D.3d at 1329, 193 N.Y.S.3d 557 ; Weaver , 211 A.D.3d at 1504-1505, 182 N.Y.S.3d 431 ; Addeo v. Clarit Realty, Ltd. , 176 A.D.3d 1581, 1582-1583, 110 N.Y.S.3d 473 [4th Dept. 2019] ). Plaintiffs’ allegation that defendant violated Multiple Residence Law § 174 was improperly raised for the first time in opposition to defendant's motion (see Addeo , 176 A.D.3d at 1583, 110 N.Y.S.3d 473 ).
To the extent that plaintiffs contend that defendant affirmatively created the dangerous condition simply by approving the replacement of the old carpeting in the entryway with the smoother surface of laminate flooring, we reject that contention because, "[i]n the absence of evidence of a negligent application of floor wax or polish [or other substance], the mere fact that a smooth floor may be slippery does not support a cause of action to recover damages for negligence" ( Flynn v. Haddad , 109 A.D.3d 1209, 1209, 971 N.Y.S.2d 639 [4th Dept. 2013] [internal quotation marks omitted]; see Kline v. Abraham , 178 N.Y. 377, 379-381, 70 N.E. 923 [1904] ; Kaplan v. Menlo Realty Income Props. 28, LLC , 218 A.D.3d 1301, 1303, 193 N.Y.S.3d 807 [4th Dept. 2023] ). Additionally, defendant was not responsible for the removal of the floor mats from the entryway prior to plaintiff's slip and fall.
We further conclude that plaintiffs failed to raise a triable issue of fact in opposition to defendant's motion (see Adolf , 174 A.D.3d at 1519-1520, 103 N.Y.S.3d 340 ; Tarantelli , 13 A.D.3d at 1184, 787 N.Y.S.2d 587 ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Finally, we reject plaintiffs’ remaining contentions, including their procedural challenge to defendant's invocation of the out-of-possession landlord doctrine.