Opinion
2014-05-15
Jose HUMAREDA, et al., Plaintiffs–Respondents, v. 500A EAST 87TH STREET, LLC, et al., Defendants–Appellants.
Mauro Lilling Naparty LLP, Woodbury (Timothy J. O'Shaughnessy of counsel), for appellants. Finz & Finz, P.C., Mineola (Stuart L. Finz of counsel), for respondents.
Mauro Lilling Naparty LLP, Woodbury (Timothy J. O'Shaughnessy of counsel), for appellants. Finz & Finz, P.C., Mineola (Stuart L. Finz of counsel), for respondents.
MAZZARELLI, J.P., SWEENY, RENWICK, FREEDMAN, GISCHE, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 26, 2013, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion as to defendants 500A East 87th Street, LLC, Garson Holdings, LLC, and Garson Management Company, LLC, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint against said defendants.
Plaintiff Jose Humareda injured his right hand when, in the course of his employment, he inserted a short stick into a malfunctioning trash compactor in an attempt to loosen garbage. Plaintiff's employer, nonparty SMJ Associates LLC, was the net lessee of the premises, which were owned by defendant 500A East 87th Street (500A).
500A demonstrated that as an out-of-possession owner it had no responsibility for the complained-of defect, because the defect was not a significant structural or design defect that was contrary to a specific statutory safety provision ( see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 420, 927 N.Y.S.2d 49 [1st Dept.2011];Velazquez v. Tyler Graphics, 214 A.D.2d 489, 625 N.Y.S.2d 537 [1st Dept.1995] ). In support of his position that the trash compactor is a structural component of the building, plaintiff cited Administrative Code of City of N.Y. § 27–232 (defining “Service Equipment” to include “refuse disposal”). However, that provision is not a safety provision. Plaintiff's argument that as an out-of-possession owner 500A remained liable for any dangerous condition that existed at the time it net leased the building—four years before the accident—is unavailing, since the net lessee “had reasonable time to discover and remedy the defect” after the conveyance of the property interests ( see Armstrong v. Ogden Allied Facility Mgt. Corp., 281 A.D.2d 317, 318, 722 N.Y.S.2d 503 [1st Dept.2001] ).
In view of the foregoing, defendants Garson Holdings, LLC and Garson Management Company, LLC, as direct and indirect owners of 500A, a limited liability company, cannot be held liable to plaintiff, since there was no showing that they dominate and control 500A with respect to the matter in issue ( see Retropolis, Inc. v. 14th St. Dev. LLC, 17 A.D.3d 209, 210, 797 N.Y.S.2d 1 [1st Dept.2005];Limited Liability Company Law § 609).
The admission by defendants' counsel that S. Garson, LLC had control over the trash compactor and the method of its operation raises an issue of fact whether S. Garson is liable to plaintiff for injuries caused by the malfunctioning trash compactor ( see Morel v. Schenker, 64 A.D.3d 403, 882 N.Y.S.2d 112 [1st Dept.2009];Walsh v. Pyramid Co. of Onondaga, 228 A.D.2d 259, 260, 643 N.Y.S.2d 576 [1st Dept.1996];see also People v. Brown, 98 N.Y.2d 226, 232 n. 2, 746 N.Y.S.2d 422, 774 N.E.2d 186 [2002] [an informal judicial admission is “not conclusive on the defendant in the litigation”] [internal quotation marks omitted] ). Further, the record suggests some interchangeability or, at the very least, confusion, concerning which entity was responsible for managing the building. For example, when asked who he considered to have been the managing agent of the building at the time of the accident, Staffard Garson, the individual who is the principal of both entities, testified, “My company.... Staffard Garson Properties, S. Garson, LLC, my office.” Accordingly, it is impossible to conclude, as a matter of law, that the latter was not the managing agent for the building, or for that matter, that it did not exercise control over the property.
Defendants argue that plaintiff's act of inserting his hand into the trash compactor was a superseding cause of his accident, severing any causal link between their negligence and his injuries. However, since the record shows that plaintiff and other building workers had been using sticks to unclog garbage in the trash compactor for years, we cannot conclude as a matter of law that plaintiff's conduct was unforeseeable (although it raises an issue of comparative negligence) ( see Litts v. Best Kingston Gen. Rental, 7 A.D.3d 949, 777 N.Y.S.2d 556 [3d Dept.2004] ).