Opinion
Index No. 115654/10
04-30-2013
KATHARINE S. BROOKS, Plaintiff, v. EMPLOYEES ONLY LLC d/b/a EMPLOYEES ONLY, CHRISTOPHER DAVID ADAMS and SUSAN CURRY ADAMS,
, J.:
In this personal injury action, defendants move for summary judgment dismissing the complaint against them. Plaintiff opposes the motion. For the reasons set forth below, the motion is denied.
Background
This is an action to recover damages for personal injuries allegedly sustained by plaintiff on May 13, 2010, when she allegedly tripped and fell on a cellar door on the sidewalk next to an establishment called Employees Only, located at 510 Hudson Street in Manhattan (the "premises"). Defendants Christopher David Adams ("Christopher Adams") and Susan Curry Adams ("Susan Adams") (together the "Adams defendants") own the premises, and leased the ground floor and basement to non-party Zingara Corporation ("Zingara") in April 2000, to be used as a cafe and restaurant. In 2004, defendant Employees Only, LLC ("Employees Only") took over the lease from Zingara and became tenants of the ground floor and basement.
Plaintiff testified at her deposition that her accident was caused when her foot "got caught in the cellar door of the grate that was ajar a couple of inches." Plaintiff dep. at 18. She also testified that she did not notice that one of the cellar doors was ajar prior to the time her foot got caught in it. Id.
Defendants argue that summary judgment is warranted as a cellar door in the sidewalk is not a defective condition or inherently dangerous and that plaintiff's fall was due to her own negligence in failing to observe an open and obvious condition. Alternatively, the Adams defendants argue that as an out-of-possession landlord they are not responsible for any nonstructural defective condition on the premises as they did not agree to maintain or repair the exterior cellar doors. In support of their position, the Adams defendants refer to Paragraph 22 of the lease agreement, which provides, inter alia, that the tenant shall "keep the sidewalk and curb in front thereof clean and free of snow and ice." In his affidavit, Christopher Adams states that the landlord did not assume responsibility for the maintenance and repair of the exterior cellar doors under the lease and that they were not notified of any defects or problems with the exterior cellar doors.
Plaintiff opposes the motion, arguing that defendants created a dangerous tripping hazard by leaving one of the cellar doors in an uneven and raised condition, and that the design of the mechanism used to keep the door closed, involving a hook and metal rod, constituted a structural or design defect for which the Adams defendants were responsible. In support of her opposition, plaintiff submits her affidavit in which she states that the difference in the elevation of the cellar doors caused her to trip. Plaintiff also submits photograph which she states accurately depict the condition of the doors at the time she fell. Plaintiff's allege that the defective cellar door constitutes a significant defect in violation of New York City Administrative Code sections 7210 and 19-152.
In further support of her opposition, plaintiff submits an affidavit from Richard Berkenfeld, P.E. ("Berkenfeld"), a professional engineer. Berkenfeld states the cellar doors were designed so that a metal rod is to be placed in a hook located on the northern cellar door prior to closing, but that when the metal rod is placed in the designated hook, the cellar doors do not fully close. Rather, the placement of the metal rod in the designated hook will cause a vertical difference in the elevation of the doors measuring approximately two inches. Berkenfeld further states that the uneven cellar door represented a dangerous structural defect and a violation of various New York City Administrative Code provisions including section 7-210.
Berkenfeld also cites § 2-09 but this appears to be a typographical error and that he intended to cite §19-152.
In reply, defendants argue that plaintiff's fall was not caused by a structural defect but by leaving the cellar doors partially open, and that they cannot be held liable for plaintiff's failure to notice "an open and obvious condition." Defendants further argue that plaintiff's statements in her affidavit to the effect that the cellar doors were improperly closed should be disregarded as she had previously claimed in her bill of particulars and testified at her deposition that the cause of her fall was that the cellar doors were partially open or ajar.
Defendants further argue that as Berkenfeld's site inspection was not conducted, and the photographs submitted by plaintiff were not taken, until over one and a half years after the accident, they should not be considered by the court. Defendants also argue that Berkenfeld's affidavit is without probative value as Berkenfeld cites non-existent code sections and makes legal conclusions. Finally, defendants argue that the record shows that Employees Only could have closed the door flush with the sidewalk if it had properly used the hook mechanism, and that this evidence establishes that the defect is not structural in nature.
Discussion
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case...." Winegrad v. New York Univ. Med. Center. 64 N.Y.2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986).
Defendant Employee's Only is not entitled to summary judgment on the ground that the gap between the cellar doors was an open and obvious condition. The issue of "whether a condition is open and obvious is generally a jury question and the court should only determine that a risk was open and obvious as a matter of law when the facts compel such conclusion." Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72 (1st Dep't 2004). As the First Department noted "the mere fact that a defect or hazard is capable of being discerned by a careful observer is not the end of the analysis. The nature or location of some hazards, while they are technically visible, make them likely to be overlooked." Id.; see also Thornhill v. Toys "R" Us NYTEX, Inc., 183 A.D.2d 1071 (3rd Dep't 1992)(finding that based on the surrounding circumstances it could not be determined as a matter of law that the raised platform over which plaintiff fell was an open and obvious condition even though plaintiff initially saw the platform and avoided it).
In any event, a finding that a condition is open and obvious does not eliminate a defendant's duty to maintain the property in a reasonably safe condition. Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d at 73. See generally, O'Connor-Miele v. Barhite & Holzinger. Inc., 234 A.D.2d 106 (1st Dep't 1996). In this case, the record raises issues of fact as to whether defendant Employees Only breached its duty to maintain the property in a reasonably safe condition with respect to the cellar doors on the sidewalk by improperly closing the doors or leaving them partially opened.
The court next considers the issue of whether the Adams defendants are entitled to summary judgment. In general, "an out-of-possession landlord may not be held liable for a third-party's injury on his or her premises unless the landlord has notice of the defect and has consented to be responsible for maintenance or repair." Lopez v. 1372 Shakespeare Ave. Housing Development Fund Corp., 299 A.D.2d 230, 231 (1st Dept. 2002). "Constructive notice may be found. . .where. . .the landlord expressly reserves a right under the terms of lease to enter the premises for the purpose of inspection, maintenance and repair, and there is a specific statutory violation." Id.
Here, the Adams defendants reserved the right to re-enter to make repairs (See Lease, 18), such that they would be deemed to have constructive notice of any statutory violation. In addition, certain of the sections of the New York City Administrative Code relied by plaintiff provide a basis for finding a statutory violation in connection with the condition of the cellar doors. Section 7-210 is entitled "[l]iability of real property owner for failure to maintain sidewalk in a reasonably safe condition," imposes a nondelegable duty on the owner of the abutting premises to maintain and repair the sidewalk. Collado v. Cruz, 81 A.D.3d 542 (1st Dept 2011). While this section does not specifically address defects in cellar doors in sidewalks, section 19-152, entitled "[d]uties and obligations of property owner with respect to sidewalks and lots," which lists nine categories of "substantial defects" that the Commissioner of Transportation may order a property owner to repair, has been viewed as "a guidepost for determining the scope of a landlord's duty of maintenance [of the sidewalk]." King v. Alltom Props., Inc, 16 Misc.3d 1125(a)(Sup Ct Kings Co. 2007); see also, Calise v. Millennium, 26 Misc.3d 1222(a)(Sup Ct. NY Co. 2010); Langston v. Gonzalez, ____ Misc.3d ____ 2013 WL 425950 (Sup Ct Kings Co. 2013).
Of relevance here, section 19-152(a)(6) includes as one of the categories of substantial defects "hardware defects which shall mean ... (ii) cellar doors that deflect greater than one inch when walked on, are not skid resistant or are otherwise in a dangerous or unsafe condition." When read together, Section 7-210 and 19-152(a)(6) indicate that "[t]he [owner's] obligation to repair is ...not limited to defects in the actual masonry material of the sidewalk flag but includes the hardware or other items installed in the sidewalk ..." Langston v. Gonzalez, 2013 WL 425950, *5. Here, based on the record, an issue of fact exists as to whether the elevated cellar doors on which plaintiff fell constituted a substantial defect in violation of 19-152(a)(6). Accordingly, based on such alleged statutory violation and the right to re-enter and repair reserved for the Adams defendants under the Lease, the Adams may be deemed to have constructive notice of the statutory violation related to the purportedly elevated cellar doors, and thus are potentially liable to plaintiff.
In addition, the record raises triable issues of fact as to whether the cellar doors were dangerous as a result of a defect in the mechanism used to keep the doors closed, as opposed to the method used by the tenant's employees to close the doors. In this connection, the court finds that the expert affidavit relied on by plaintiff is sufficiently detailed and based on facts in the record to support plaintiff's position that the hooking mechanism was defective. In any event, even in the absence of the opinion of plaintiff's expert, the record contains sufficient evidence of the defective condition, including deposition testimony of the plaintiff and the tenant's employee and the photographs of the cellar doors, to warrant the denial of summary judgment.
Furthermore, contrary to the Adams defendants' position, such a defective condition, as opposed to the tenant's use of negligent use of the cellar door, may give rise to potential liability on the part of an out-of-possession owner, like the Adams defendants, based on a theory that the owner caused or created the condition. See Torres West Street Realty Co., 21 A.D.3d 718 (1st Dept 2005), lv denied 7 N.Y.3d 703 (2006) (holding that an out-of-possession owner may be held liable if it caused or created a defective condition): Koullias v. Farm, 8 Misc.3d 598 (Sup Ct Kings Co. 2005)(holding that design configuration of cellar doors where plastic curtains were placed so as to obscure view of cellar doors was equivalent to structural defect for which the landlord may be held liable); compare Brown v. Weinreb, 183 A.D.2d 562 (1st Dept 1992)(finding that defendants could not be held liable for injuries to plaintiff who fell in open trap door where there was no evidence that the door was negligently constructed but rather was only unsafe due to being left in the open position). Notably, Christopher Adams does not specifically deny in his affidavit that the Adams defendants installed the mechanism to close the cellar doors, or caused the mechanism to be installed, while they were in possession of the premises.
Accordingly, the defendants' motion for summary judgment must be denied.
Conclusion
In view of the above, it is
ORDERED that the defendants' motion for summary judgment is denied; and it is further
ORDERED that the parties are prosed to mediation.
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J.S.C.