Opinion
103809/07.
Decided January 7, 2011.
GORAYEB ASSOCIATES, P.C., NEW YORK, NEW YORK, ATTORNEY FOR THE PLAINTIFF.
ABRAMS GORELICK FRIEDMAN/ANO, NEW YORK, NEW YORK, ATTORNEY FOR THE DEFENDANT.
Recitation, as required by CPLR § 2219 [a], of the papers considered in the review of this (these) motion(s):
Papers Numbered
Def 601 West n/m (3212) w/BQ affirm, exhs 1 Pltf opp w/RAK affirm, RS affid, exh 2 Def 601 West reply w/BQ affirm 3Upon the foregoing papers the decision and order of the court is as follows:
In this personal injury action, defendant 601 West 162 Associates, L.P. (601 West), moves, pursuant to CPLR 3212, for an order dismissing all claims against it, on the ground that it owed no duty to plaintiff, or alternatively, that it had no notice of any alleged defective condition which allegedly caused plaintiff's injuries.
Issue has been joined by the moving defendant and the note of issue was filed by the plaintiff on May 6, 2010. Since this motion was timely brought, it will be decided on the merits CPLR § 3212 [a]; Brill v. City of New York , 2 NY3d 648 ).
For the reasons set forth below, the motion is granted.
Background
On June 19, 2006, plaintiff went into a bodega (the Premises), defendant Garcia Food Center (GFC), located at 3879 Broadway, New York, New York (the Building). The Building consists of 34 residential apartment units and five commercial store fronts, one of which includes the Premises.
The evening of the accident, plaintiff entered the Premises to buy a bottle of water. She walked down an aisle and over a trap door, which was closed, to look at the water available. She did not notice anything wrong with the trap door on her way to get the water however, on her way back she fell through the trap door, sustaining a number of injuries. Plaintiff testified at her examination before trial that the entire door fell with her.
601 West is the title owner of the Premises. On April 19, 2000, 601 West leased the Premises to Isidro Altagracia Corporation. Thereafter, on August 11, 2005, 601 West, as landlord, and Isidro Altagracia Corporation assigned the lease to Hector Garcia. The lease agreement provides, among other things, that the tenant is responsible for all nonstructural repairs ( see Lease Rider, ¶ 46.2, Affidavit of Bridget Quinn, Ex. D). According to the lease, 601 West was responsible for structural repairs, which are defined as "the roof and structural walls, and to the exterior of the premises and the sewer and water lines servicing the premises" ( id., ¶ 46.1). The lease provides that with respect to any structural repairs "Owner shall not be required to commence any repair that it is required to perform until after notice from Tenant that the same is necessary" ( id.).
The Rider of the Lease, also provides that to the extent there is any inconsistency or conflict "with any printed provision of this Lease, the provision contained in the Rider shall supercede said printed provision and shall be paramount and superior ( see Lease Rider, ¶ 56).
601 West claims that since it is an out-of-possession land owner, it did not retain sufficient dominion and control over the Premises and, therefore, liability cannot be imposed on 601 West for an allegedly defective condition existing on the premises. Furthermore, 601 West argues that even if the trap door is considered a "structure" within the meaning of the lease, the lease requires that the tenant must notify 601 West that a repair is needed, which the tenant failed to do and plaintiff has not identified any defect in the trap door.
Discussion
On a motion for summary judgment, the movant must proffer admissible evidence to make a prima facie showing of entitlement to judgment as a matter of law by producing sufficient evidence to show the absence of any material issue of fact ( Giuffrida v Citibank Corp., 100 NY2d 72, 81; Zuckerman v City of New York, 49 NY2d 557).
Once the moving party has made this showing, the burden is on the opposing party to demonstrate "evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" ( Mazurek v Metropolitan Museum of Art , 27 AD3d 227 , 228 [1st Dept 2006]; Zuckerman, 49 NY2d at 562). "If there is any doubt as to the existence of a triable issue, the motion should be denied" ( Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]).
Defendant argues that it is an out-of-possession landlord and, therefore, not liable for an allegedly defective condition at the premises.
"It is well settled that a landlord is not generally liable for negligence with respect to the condition of property after its transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs or maintain the premises, or has a contractual right to reenter, inspect and make needed repairs at the tenant's expense, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision"
( Malloy v Friedland , 77 AD3d 583 , 583 [1st Dept 2010] [internal quotation marks and citation omitted]). Here, the lease agreement did not reserve to 601 West the right to enter and repair, rather pursuant to the Lease, the tenant was obligated to notify the owner of any structural repair that needed to be made at the Premises ( see Lease Rider, ¶ 46.1). Moreover, any non-structural repairs were to be made by the Tenant ( id., ¶ 46.2).
There is a significant line of case law which holds that a "functioning" trap door is not a structural defect that could give rise to liability with respect to an out-of-possession landlord ( see Malloy, 77 AD3d 583, supra; Baez v Barnard Coll. , 71 AD3d 585 [1st Dept 2010]; Brown v Weinreb, 183 AD2d 562 [1st Dept 1992]). In those cases, however, the plaintiff has fallen through the trap door while it was open and unsecured. Here, the trap door was closed which raises a question of fact as to whether the trap door was indeed functioning properly and, therefore, a resolution of whether the trap door is "structural," within the meaning of the lease.
Even assuming that the trap door is structural, 601 West's obligation to repair a dangerous or dangerous condition of a structural nature at the premises is only triggered on notice by the tenant. For the reasons that follow, whether under the contract or by applying traditional notions of tort liability, 601 West has established that it did not have notice of a defective or dangerous condition on the premises.
To establish a prima facie case of negligence, plaintiff must demonstrate that the defendant "either created the condition which caused the accident, or had actual or constructive notice of the condition" ( Luciani v Waldbaum, Inc., 304 AD2d 537, 537 [2d Dept 2003]). "A failure to repair is not affirmative behavior necessary to establish that [601 West] created the defective condition" ( Reich v Meltzer , 21 AD3d 543 , 545 [2d Dept 2005]). Moreover, the First Department has held that "a defendant is not required to prove lack of notice where the plaintiff has not pointed to any evidence of notice" ( Wellington v Manmall LLC , 70 AD3d 401 , 401 [1st Dept 2010]).
Plaintiff claims that defendant had constructive notice of a dangerous condition involving the trap door via defendant's superintendent, Rafael Diaz, who was regularly present at the Premises. This is based on Diaz's deposition testimony that he is the superintendent for the residential tenants in the Building but sometimes he helped out the commercial tenants by occasionally unclogging a toilet or pipe when needed. He also testified, however, that he was not required to do this because the commercial properties were responsible for taking care of their own repairs. Although Diaz also shopped at the bodega and bought milk for his children, there is nothing in the record to suggest that Diaz had any notice, actual or constructive, that there was a defect in the trap door. Neither Diaz nor plaintiff ever complained about a dangerous condition involving the trap door. In fact plaintiff walked over the trap door once without any incident.
The submission of plaintiff's expert is equally unavailing and does not raise a triable issue of fact to defeat 601 West's motion. Plaintiff's expert bases his opinion on plaintiff's deposition testimony and one photograph which depicts part of the closed trap door with two "new" hinges. He opines that there are a few "possible explanations for the collapse of the door," namely that the screws used to secure the hinges became rusted, the hinges themselves became rusted or that there was significant deterioration of the wood into which the hinges were secured. Plaintiff's expert opinion is based merely on speculation and is insufficient to counter defendant's motion for summary judgment ( Suppiah v Kalish , 76 AD3d 829 [1st Dept 2010]). The presence of rust, standing alone, is insufficient to establish constructive notice of an alleged defect ( Garcia v Northcrest Apts. Corp. , 24 AD3d 208 [1st Dept 2005).
Def 601 West has met its burden on this motion which is to prove its defense, which is that it did not have notice of a dangerous condition. Plaintiff has not come forward with any material issue of fact that has to be tried. Therefore, defendant 601 West's motion must, and hereby is, granted. The claims against 601 West are hereby severed and dismissed.
Conclusion
Accordingly, it is
ORDERED that the motion of defendant 601 West 162 Associates, L.P. for summary judgment dismissal of the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records to reflect the change in the caption herein.
ORDERED that this case is ready to be tried since the note of issue was filed; the Office of Trial Support shall scheduled this case for trial; and it is further
ORDERED that any relief requested but not specifically addressed is hereby denied;
ORDERED that this constitutes the decision and order of the court.