Opinion
100652/04.
Decided August 18, 2005.
This is a personal injury action arising out of an alleged trip and fall in a grocery store. According to plaintiff, she fell down stairs located inside of the store when she reached for something on a shelf located near the stairs. Because the stairs appeared to be the same height as the nearby, level floor, plaintiff states, she could not tell where the floor ended and the staircase began; and as a result she fell, fracturing both elbows and wrists and injuring her left knee. She commenced this lawsuit against two defendants: ACP Amsterdam Development LLC ("Amsterdam"), the owner of the building; and, D S Plaza Incorporated ("D S"), which leased and managed the building. Discovery is complete in the case and the Note of Issue has been filed. Now, Amsterdam moves for summary judgment dismissing all claims and counterclaims against it. Alternatively, it seeks an order declaring that D S must indemnify Amsterdam under the parties' lease agreement.
In support of the portion of its motion that seeks summary judgment, Amsterdam argues that as an out-of-possession landlord, it cannot be held liable for plaintiff's injuries. It emphasizes that D S, as tenant, had responsibility for maintenance, repairs, alterations and improvements to the premises. It also points to the relevant lease provision to substantiate this statement.
As Amsterdam asserts, generally "[a]n out-of-possession landlord is not liable for injuries sustained on the premises. . . ." Seney v. Kee Assoc., 15 AD3d 383, 383, 790 NYS2d 170, 173 (2nd Dept. 2005). However, plaintiff notes that the lease between Amsterdam and D S also gives Amsterdam a right of reentry. Section 17.02 of the lease provides:
Tenant shall permit Landlord . . . to enter upon the Leased Premises . . . to inspect the same and to make any necessary repairs or replacements thereto upon Tenant's failure to do so, or for any other purpose for which the Landlord would have the right to enter upon the Leased Premises . . .
Where a right of reentry exists, it "may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition" if "liability is based on a significant structural or design defect that violates a specific statutory provision." Seney, 15 AD3d at 383, 790 NYS2d at 173. Therefore, where there are "triable issues of fact as to whether any alleged structural defect was a proximate cause of the plaintiff's injuries," summary judgment must be denied.
Spencer v. Schwarzman, LLC, 309 AD2d 852, 853, 766 NYS2d 74, 75 (2nd Dept. 2003).
Here, plaintiff argues that a triable issue exists as to whether the design of the stairs was unsafe and was the proximate cause of her injuries. She submits the affidavit of Harold A. Krongelb-Heimer ("Heimer"), a professional engineer licensed by the State of New York, in support of this argument. In Heimer's affidavit, he asserts: "It is my professional opinion within a reasonable degree of engineering certainty, that the step protruding into the floor created a hazardous hidden trap due to the improper construction at the top of the steps." (Heimer Aff. at ¶ 7). He also concludes that "the proximate cause of this accident was the fact that the building was not maintained in a safe condition as required by the City of New York Building Code § 27-127 Maintenance Requirements and § 27-128 Owner Responsibility." ( Id. at ¶ 8).
Contrary to Amsterdam's assertion, if the affidavit were adequate these violations would be sufficient to raise an issue of fact as to Amsterdam's liability. Amsterdam correctly notes that in Ahmad v. City of New York, 298 AD2d 473, 474, 748 NYS2d 777, 778 (2nd Dept. 2002), the Second Department found that Building Code §§ 27-127 and 27-128 were too generalized to impose liability on an out-of-possession landlord. In addition, at least one First Department case has also found these provisions insufficient to create an issue as to liability. See Dixon v. Nur-Hom Realty Corp., 254 AD2d 66, 678 NYS2d 613 (1st Dept. 1998). However, a number of First Department cases have expressly held that a violation of these same provisions create potential liability for an out-of-possession landlord. E.g., Kraus v. Caliche Realty Estates, Inc., 289 AD2d 9, 9, 734 NYS2d 14, 14 (1st Dept. 2001); Nameny v. The East New York Savings Bank, 267 AD2d 108, 109, 699 NYS2d 412, 413-14 (1st Dept. 1999); Perez v. City of New York, 168 AD2d 227, 562 NYS2d 116 (1st Dept. 1990), lv dismissed, 77 NY2d 872, 568 NYS2d 906, lv denied, 78 NY2d 854, 573 NYS2d 467 (1991). This court would follow the bulk of the controlling First Department precedent on this issue and find that Building Code §§ 27-127 and 27-128 are sufficient to create liability against an out-of-possession landlord.
Nevertheless, the court finds that the affidavit itself is insufficient because, in reaching his conclusions, the expert relies solely on plaintiff's affidavit in opposition to this motion. Even an expert's affidavit based on the deposition transcript of a party can be considered "speculative and conclusory" unless the expert also has relied on additional information of evidentiary value. Campanella v. Marstan Pizza Corp., 280 AD2d 418, 419, 720 NYS2d 501, 503 (1st Dept. 2001). Here, Heimer did not even compare the affidavit, which plaintiff created for the purpose of defeating this motion, to the more complete statement of the facts she provided in the deposition. Thus, he limited his review to a document which is less complete in fact, it is barely over one page in length and in which plaintiff is not subject to examination of any sort.
In addition, the affidavit is not adequate because Heimer did not consider any other evidence to bolster his conclusion that there were Code violations. Compare Allison v. D'Agostino Supermarkets, Inc., 282 AD2d 219, 219, 723 NYS2d 30, 31 (1st Dept. 2001) (expert affidavit describing history of accidents similar to plaintiff's and history of similar problems with mat, and relying on testimony of defendant's employee who was at the scene of the accident, was adequate). Among other things, Heimer did not visit the site where the accident occurred. See Kasner v. Pathmark Stores, Inc., 18 AD3d 440, ___, 794 NYS2d 418, 419 (2nd Dept. 2005) (failure to visit site was basis for rejection of affidavit). Heimer assert that he did not look at the grocery store himself because alterations have been made to the area in question and therefore it no longer reflects the pertinent conditions at the time of the accident. However, there are photographs of the site as it existed when the accident occurred photographs which plaintiff clearly has in her possession, as she submitted along with the opposition papers and the expert did not review these photographs to verify the description of the floor and steps that is contained in plaintiff's affidavit. See Santiago v. United Artists Communications, Inc., 263 AD2d 407, 408, 693 NYS2d 44, 45 (1st Dept. 1999) (expert affidavit insufficient even where on-site inspection had been conducted, as expert did not examine photographs showing site at time of incident).
Finally, and perhaps because Heimer relied on nothing but plaintiff's self-serving statement, the expert affidavit is conclusory. There is little in the way of analysis supporting Heimer's conclusion that "[t]he step protruding into the floor created a hazardous hidden trap which ensnared its victim." (Report on Trip and Fall Injury, at p. 3). For this reason, too, the expert's affidavit is insufficient. See Picerno v. New York City Transit Authority, 4 AD3d 349, 350, 771 NYS2d 549, 550 (2nd Dept. 2004).
For the reasons above, the court concludes that plaintiff has provided insufficient support for her contention that there is a basis for liability against Amsterdam. Accordingly, Amsterdam should be dismissed from the case. Because the court grants the prong of the motion seeking to dismiss as against Amsterdam, it does not reach the issue of whether Amsterdam should be indemnified. Therefore, it is
ORDERED that the prong of the motion seeking to dismiss as against Amsterdam is granted, and the action and any crossclaims asserted against ACP Amsterdam Development LLC are severed and dismissed; and it is further
ORDERED that the prong of the motion seeking a declaration regarding Amsterdam's right to indemnification is denied as moot. The action continues as to the remaining defendants.