Opinion
Index 152327/2018
02-14-2022
ROY GOLDBERG, Plaintiff, v. 231-235 EAST 53RD STREET, LLC, LITTLE THAI KITCHEN III, INC, JITTANUCH CORP., and VOTE FOR PEDRO, LLC, Defendants. Motion Seq. No. 003 004
Unpublished Opinion
DECISION + ORDER ON MOTION
LOUIS L. NOCK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 86, 88, 90, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 125, 126, 127, 130, 131, 132, 133, and 134 were read on this motion for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 87, 89, 91, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 128, 129, and 135 were read on this motion for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is hereby ordered that the motions for summary judgment pursuant to CPLR 3212 of defendants Vote for Pedro, LLC (Mot. Seq. No. 003) and Jittanuch Corp. (Mot. Seq. No. 004) are consolidated and decided in accordance with the following memorandum decision.
Background
In this personal injury action, plaintiff Roy Goldberg ("plaintiff") alleges that, on November 7, 2017, he slipped and fell on the exterior stairs of the building located at 231 East 53rd Street, New York, New York, due to defendants' negligence. Defendants Vote for Pedro, LLC ("VFP") and Jittanuch Corp. ("Jittanuch") move, pursuant to CPLR 3212, for summary judgment dismissing the complaint against them. Defendant 231-235 East 53rd Street, LLC ("landlord") does not move for summary judgment, but opposes the moving defendants' motions. As set forth further below, landlord is the record owner of the building located at 231 East 53rd Street, and VFP and Jittanuch are commercial tenants on the first floor of the building.
VFP Lease and Responsibilities
Pursuant to a lease (the "VFP lease") entered into in June 2017, landlord leased to VFP "certain upper level floor retail space" (the "VFP premises"), in which VFP operated a restaurant (NYSCEF Doc. No. 65). Relevant to the instant motions, the VFP lease provides that VFP shall "cause the exterior and interior of the windows and storefronts, glass, plate glass, doors . . . of the [VFP premises], the perimeter walls thereof and the exterior stairway . . . between the sidewalk and the entrance to the [VFP premises] to be cleaned and maintained not less frequently than once a week" (id., ¶ 3.4). Landlord agreed, subject to VFP's cleaning responsibilities, to "maintain and make all necessary repairs . . . [to] the public portions of the building and the structural portions of the [VFP premises], both exterior and interior, and the structural components of the [VFP premises]" (id., ¶ 4.4[a]). Absent necessary repairs, VFP agreed to keep "the [VFP premises] . . . and all doors, windows and glass in and about the [VFP premises] (including, without limitation, all storefronts and entrance doors and the exterior stairway) in good condition" (id., ¶ 4.4[b]).
Anthony Monticello, VFP's owner (NYSCEF Doc No. 64 at 13:7-9), testified regarding the exterior staircase and VFP's maintenance responsibilities. While he was unaware if VFP was required to clean the exterior staircase, he testified that he has cleaned the stairs a few times, and that if there was debris located on the step, he would clean it (id. at 29:15-23). VFP employees were not required to clean the steps as part of their daily tasks, and Monticello did not know if they ever had (id. at 30:10-16). He further testified that he had seen the building superintendent clean the stairs perhaps five times, but that he was usually at the VFP premises late in the day (id. at 28:10-29:11).
Jittanuch Lease and Responsibilities
Pursuant to a lease dated February 11, 2016 (the "Jittanuch lease"), landlord leased the "S-West Store" to Jittanuch (the "Jittanuch premises"), in which Jittanuch operated a restaurant (NYSCEF Doc No. 83). Relevant to the instant motions, the lease provides that landlord "shall maintain and repair the public portions of the building, both exterior and interior" (id., ¶ 4). Jittanuch agreed to "take good care of the [Jittanuch premises] . . . and the sidewalks adjacent thereto . . . make all non-structural repairs thereto as and when needed to preserve them in good working order and condition, reasonable wear and tear, obsolescence and damage from the elements, fire or other casualty, excepted" (id.). Unlike the VFP lease, the Jittanuch lease does not specifically refer to any exterior stairway of the building.
Kasiya Jittanuch, owner of the restaurant operated by Jittanuch at the Jittanuch premises (NYSCEF Doc. No. 115 at 15:6-16:10), testified that she or her employees would sweep the exterior stairway every day before the restaurant opened, between 10:00 AM and 10:30 AM (id. at 25:22-26:16, 29:15-22). If, after cleaning the stairs, someone observed something on the stairs, she testified that she or her employees would clean the stairs again (id. at 72:15-18).
Landlord's Responsibilities
Cathy Maharaj, an employee of landlord's property manager ATA Enterprises, testified on behalf of landlord (NYSCEF Doc. No. 114 at 13:22-15:5). The building superintendent was responsible for cleaning the exterior stairway, which he did at least twice a week (id. at 25:17-20, 35:7-36:2, 37:10-20, 40:11-15). Periodically, the superintendent would also power-wash the stairs, as needed (id. at 115:3-116:8, 118:18-24). While Maharaj testified that she believed VFP and Jittanuch also were responsible for cleaning the stairs in conjunction with landlord, there were no issues with the stairs' cleanliness because of them (id. at 52:24-53:19, 74:22-25, 108:16-24). Between all three parties, she believed the stairs were cleaned twice a day (id. at 108:25-109:13). Further, she testified that the stairs were sealed and manufactured to prevent slip and falls (id. at 105:17-106:16).
The Accident
On November 7, 2017, plaintiff went to 231 West 53rd Street planning to get food from Jittanuch's restaurant sometime between 1:30 and 3:30 PM (NYSCEF Doc. No. 61 at 26:9-13). He testified that it had been drizzling all day and he had been carrying an umbrella, which he opened and closed repeatedly at the foot of the exterior stairs to shake water out (NYSCEF Doc. No. 55 at 23:13-14, 68:9-17). As he climbed the steps, drizzle continued to fall. He testified that he did not observe the steps or the handrails on the stairway as he climbed, but given that it was drizzling out, he assumed that the steps were wet (id. at 36:7-16, 37:10-17). As he reached the fourth step, his foot slipped off the step and he fell forward (id. at 38:3-7). He attempted to grab the handrail to his right but was unable to reach it (id. at 47:5-48:2). He landed on his left hand on the upper landing and stated that he felt it "crack and break," as well as pain in his left leg and foot (NYSCEF Doc. No. 55 at 47-49; NYSCEF Doc. No. 61 at 30:13-17). He dragged himself into Jittanuch's restaurant and remained in the front of the restaurant for approximately 25 minutes, whereupon, having previously called 911, an ambulance arrived and transported him to the hospital (NYSCEF Doc. No. 61 at 71-73, 77-78).
In his Bill of Particulars served on landlord, plaintiff asserted that "he was caused to slip and fall on wet stairs, that were negligently designed, not in conformance with the building code, and did not have adequate handrails, thus being dangerous, hazardous and trap like conditions" (NYSCEF Doc. No. 59, ¶ 4). In a later Bill of Particulars served on VFP, plaintiff similarly stated that the exterior stairway "was caused, permitted and allowed to be, become, and remain slippery, wet, uneven, worn, irregular, deteriorated and trap-like for a long and/or unreasonable length of time" (NYSCEF Doc No. 58, ¶ 3). At his deposition, plaintiff testified for the first time that he had slipped on a "green mossy substance." (NYSCEF Doc. No. 60 at 38:3-39:7). He did not see the substance before he fell, but later observed it while he was lying on the ground. He stated that he did not know what it was, but that it looked "like green moss that would grow in standing water" (id. at 38:15-16). When he noticed the mossy substance, he stated that he also saw "water dripping from a fire escape above me which seemed to be pooling and collecting in that area for some time" (id. at 39:5-7). He believed that the mossy substance covered less than half of the step (id. at 44).
None of defendants' witnesses conclusively identified the last time that the exterior stairway was cleaned on the day of the accident. Kasiya Jittanuch testified that her employees had swept the steps that morning at 10:00 AM (NYSCEF Doc. No. 115 at 42:3-6). She further stated that she has never seen or noticed "pooling of water on rainy days on the steps . . . water drip[ping] from the fire escape above the stairs onto the stairs . . . a green mossy substance on the stairs . . . [or] any slippery conditions on the steps" (id. at 40:11-24; 59:18-60:12). Monticello, testifying for VFP, stated that he had seen water dripping from the fire escape but not pooling on the steps (NYSCEF Doc. No. 64 at 27:23-28:9). He also never observed any "green mossy substance or buildup of moss or algae" on the stairs (id. at 42:7-10). The day of the accident, he stated that his employees would have started arriving at the building at between 3:00 and 3:30 (id. at 17:7-15).
Procedural History
Plaintiff commenced this action by filing a summons and complaint on March 15, 2018, in which he named landlord, Jittanuch, and Jittanuch's restaurant Little Thai Kitchen III, Inc. as defendants (NYSCEF Doc. No. 1). Landlord (NYSCEF Doc. No. 10) and Jittanuch (NYSCEF Doc. No. 9) appeared and answered the complaint. After proceeding through discovery, plaintiff then moved to amend his complaint and add VFP as a defendant (NYSCEF Doc. Nos. 25-29). By decision and order dated August 1, 2019, the court granted the motion (NYSCEF Doc. No. 31). VFP appeared and answered the amended complaint (NYSCEF Doc. No. 43), as did landlord (NYSCEF Doc. No. 40) and Jittanuch (NYSCEF Doc. No. 35). Discovery having closed, VFP (Mot. Seq. No. 003) and Jittanuch (Mot. Seq. No. 004) now move for summary judgment dismissing the amended complaint and all cross claims asserted against them pursuant to CPLR 3212.
Standard of Review
Summary judgment is appropriate where there are no disputed material facts (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The opposing party must proffer its own evidence to show disputed material facts requiring a trial (id.). However, the reviewing court should accept the opposing party's evidence as true (Hotopp Assoc. v Victoria's Secret Stores, 256 A.D.2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all reasonable inferences (Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]).
Discussion
Plaintiff's Claims
"Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property" (Russo v Frankels Garden City Realty Co., 93 A.D.3d 708, 710 [2d Dept 2012]). The moving defendants' primary argument is that the exterior stairway is not a part of their individual demised premises, and any duty to clean or maintain the stairs is limited by the terms of their respective leases. As those documents make clear, any cleaning and maintenance obligation regarding the stairs is separate and apart from the spaces VFP and Jittanuch occupy, as well as from landlord's own continuing obligations where maintenance and repair of the building are concerned (NYSCEF Doc. No. 65, ¶¶ 3.4, 4.4; NYSCEF Doc No. 83, ¶ 4). Plaintiff is not a party to either lease, and the moving defendants have no duty to him outside of certain well-settled exceptions (Laronga v Atlas-Suffolk Corp., 164 A.D.3d 893, 895 [2d Dept 2018]). As first set forth by the Court of Appeals, they are as follows:
"(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launche[s] a force or instrument of harm,' (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely"(Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d 136, 140 [2002].) Plaintiff's argument that Espinal and its progeny do not apply is unavailing; the terms of the subject leases establish that the exterior stairway was not a part of either moving defendant's premises, and the liability of a tenant for injuries sustained on a part of the property they do not exclusively control is firmly grounded in Espinal (Rothstein v 400 E. 54th St. Co., 51 A.D.3d 431, 432 [1st Dept 2008]).
As the leases and the deposition testimony make clear, the defendants equally shared responsibility for cleaning the exterior stairway (NYSCEF Doc. No. 65, ¶¶ 3.4, 4.4; NYSCEF Doc No. 83, ¶ 4; NYSCEF Doc. No. 114 at 52:24-53:19, 74:22-25, 108:16-109:13). Pursuant to the leases, landlord retains responsibility for maintaining and repairing the stairs, to the extent that damages are not caused by defendants' actions (NYSCEF Doc. No. 65, ¶¶ 3.4, 4.4; NYSCEF Doc No. 83, ¶ 4). Moreover, it is well-established that a property owner retains responsibility for its safe maintenance (e.g. Farrugia v 1440 Broadway Assoc., 163 A.D.3d 452, 454 [1st Dept 2018]; Administrative Code of City of NY § 28-301.1). Accordingly, the moving defendants have not entirely displaced landlord's duty to maintain the premises safely.
Further, the record does not reflect, and plaintiff does not raise a triable issue of fact that he detrimentally relied specifically on the moving defendants' performance of their cleaning obligations, or that they launched a force or instrument of harm that caused his injuries. As a general matter, a fall on wet stairs does not raise a triable issue of fact (Mermelstein v E. Winds Co., 136 A.D.3d 505 [1st Dept 2016] ["mere wetness on a walking surface due to rain is insufficient to raise a triable issue of fact"]). To the extent that the design, maintenance, or repair of the stairway caused plaintiff to fall, such are issues for landlord, as set forth above, and there is no evidence that the moving defendants caused or created any alleged green mossy substance on the steps. As the moving defendants owe no duty to plaintiff, the moving defendants are entitled to summary judgment dismissing the amended complaint (Fairclough v All Serv. Equip. Corp., 50 A.D.3d 576, 578 [1st Dept 2008] [contractor entitled to summary judgment where none of the three Espinal exceptions applied]).
Cross Claims
The moving defendants seek summary judgment dismissing all cross claims for common-law and contractual indemnity, contribution, and failure to procure insurance filed against them, and neither of them opposes that relief as sought by the other. Landlord opposes this branch of the motions by alleging, in conclusory terms, that issues of fact exist as to whether the moving defendants sufficiently carried out their cleaning duties with respect to the exterior stairway. Such conclusory assertions are insufficient to raise a triable issue of fact with respect to the moving defendants' liability to landlord (e.g., Smith v Bd. of Educ. of City of Yonkers, 226 A.D.2d 362, 363 [2d Dept 1996] ["an affirmation of counsel which alleged in a conclusory fashion that issues of fact existed as to how the accident occurred and whether the defendants' violation was a proximate cause of the injuries . . . is insufficient to raise a triable issue of fact"]).
Accordingly, it is hereby
ORDERED that the motions for summary judgment of defendants Vote for Pedro, LLC (Mot. Seq. No. 003) and Jittanuch Corp. (Mot. Seq. No. 004) are granted and the amended complaint is dismissed against them; and it is further
ORDERED that the cross claims against said defendants by defendant 231-235 East 53rd Street LLC, and the cross claims alleged between the moving defendants are dismissed; and it is further
ORDERED that plaintiff Roy Goldberg's claims against defendant 231-235 East 53rd Street LLC are severed and the balance of the action shall continue; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of defendants
Vote for Pedro, LLC and Jittanuch Corp. dismissing the claims and cross claims made against them in this action, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.
This constitutes the decision and order of the court.