Opinion
Index No. 000000/2021
07-25-2024
J.P.M, Plaintiff, v. FK Allure LLC, FRG ALLURE I LLC, FRG ALLURE II LLC, FRG ARBOR, LLC, MLF ALLURE LLC, NP ALLURE LLC, MINEOLA 150 LLC, CREATE-A-COLOR CARPET SPECIALISTS, INC., and BOZZUTO MANAGEMENT COMPANY, Defendants FK ALLURE LLC, FRG ALLURE I LLC, FRG ALLURE II LLC, FRG ARBOR, LLC, MLF ALLURE LLC, NP ALLURE LLC and BOZZUTO MANAGEMENT COMPANY, Third-Party Plaintiffs, v. GBM SERVICES OF NY, INC., Third-Party Defendant.
Plaintiff - Represented by: Block, O'Toole & Murphy, LLP Defendants, FK Allure, FRG Allure, FRG Arbor, MLF Allure, NP Allure - Represented by: Segal, McCambridge, Singer & Mahoney, LTD Mineola 150 LLC- Represented by Wilson, Elser, Moskowits, Edelman & Dicker, LLP Create A Color Carpet Specialists - Represented by: Milber, Makris, Plousadis & Seiden, LLP Bozzuto Management Company - Represented by: Barker, Patterson, Nichols, LLP
Unpublished Opinion
Plaintiff - Represented by: Block, O'Toole & Murphy, LLP
Defendants, FK Allure, FRG Allure, FRG Arbor, MLF Allure, NP Allure - Represented by: Segal, McCambridge, Singer & Mahoney, LTD
Mineola 150 LLC- Represented by Wilson, Elser, Moskowits, Edelman & Dicker, LLP
Create A Color Carpet Specialists - Represented by: Milber, Makris, Plousadis & Seiden, LLP
Bozzuto Management Company - Represented by: Barker, Patterson, Nichols, LLP
Conrad D. Singer, J.
The following papers were read on these motions:
Defendant Create-A-Color Carpet Specialists' Motion for Summary Judgement [Seq. 001]
Notice of Motion and Supporting Papers X
Plaintiff's Affirmation in Opposition to Motion and Supporting Papers X
Defendant Create-A-Color's' Affirmation in Reply and Supporting Papers X
Defendant Bozzuto Management Company's Affirmation in Partial Opposition X
Defendant Create-A-Color's Affirmation in Reply X
Defendant Bozzuto's Amended Affirmation in Partial Opposition X
Defendant Bozzuto's Motion for Summary Judgment [Seq. 002]
Notice of Motion and Supporting Papers X
Plaintiff's Affirmation in Opposition to Motion for Summary Judgment X
Defendant Create-A-Color's Affirmation in Partial Opposition to Motion for Summary Judgment X
Defendant Bozzuto's Affirmation in Reply to Plaintiff's Affirmation in Opposition to Motion for Summary Judgment X
Defendant Allure's Motion for Summary Judgment [Seq. 003]
Notice of Motion and Supporting Papers X
Plaintiff's Affirmation in Opposition to Motion for Summary Judgment X
Defendant Allure's Affirmation in Reply X
Upon the foregoing e-filed documents, the motion of the Defendant, Create-A-Color Carpet Specialists Inc. ("Create A Color"), for an Order pursuant to CPLR § 3212, granting it summary judgment against the Plaintiff, J.P.M, ["Plaintiff"], and dismissing the Plaintiff's Complaint and all cross-claims asserted by Co-Defendants, FK Allure LLC, FRG Allure I LLC, FRG Allure II LLC, FRG Arbor, LLC, MLF Allure LLC, NP Allure LLC [collectively, "Allure Defendants"] and by Co-Defendant Bozzuto Management Company ["Bozzuto"] against Create-A-Color [Seq. 001]; and the motion for summary judgment by Co-Defendant Bozzuto, seeking dismissal of Plaintiff's claims in their entirety as well as the dismissal of any and all existing cross-claims and third-party actions [Seq. 002]; and the cross-motion for summary judgment by the Allure Defendants seeking dismissal of the Plaintiff's Amended Verified Complaint and any and all crossclaims or counterclaims against them [Seq. 003], are consolidated for disposition and are determined as set forth below:
The Plaintiff's accident occurred on September 6, 2019, while he was working at the Allure Mineola, an apartment complex located at 140 Old Country Road in Mineola, Nassau County, New York [the "Allure Mineola"]. The Allure Mineola is owned by the Allure Defendants. Allure contracted with Bozzuto to manage this residential apartment building pursuant to the property management agreement. Bozzuto would hire vendors as needed to perform various tasks at the Allure, including interior cleaning of apartments and the common areas of the building. At the time of the Plaintiff's accident he was employed by non-party GBM Services ["GBM"] and worked in maintenance. Bozzuto entered into an agreement with GBM to perform cleaning tasks at the property. Plaintiff testified that his duties included sweeping the apartment complex's three main staircases every day. (Tr. 25). The three staircases were referred to as "A, B, C". Plaintiff further testified that his duties included mopping the steps when there was animal excrement, which there often was (Tr. 25), and that he inspected the stairs twice daily to ensure that there were no hazardous conditions present for the residents.
On or about March 29, 2023, the Allure Defendants and Bozzuto commenced a third-party action against GBM. GBM served its Answer to the Third-Party Summons and Complaint on or about April 4, 2023. The Third-Party action against GBM was discontinued on September 14, 2023.
The Plaintiff's accident occurred in Stairway C. He testified that he last broom cleaned Stairwell C at around 9 AM on the date of his accident. He swept from the fifth floor and worked his way down, using a normal stick broom. He cleaned the stairs and landings. There was no debris on the stairs when he cleaned it in the morning. When Plaintiff cleaned the stairs that morning he did not see any hoses in Stairwell C. He did not observe any liquid on the floor, any buckets, or any hoses at that time.
Defendant Create-A-Color ["Create-A-Color"] is a cleaning business and has been cleaning the carpets in the Allure Mineola since around 2017. Create-A-Color was hired by Bozzuto pursuant to a written agreement. Create-A-Color cleans the carpets in the apartments vacated by tenants and in those awaiting new tenants. Create-A-Color also cleans the interior hallways of the building once or twice a year, upon request from Bozzuto Management. (Tr. 26).
Plaintiff testified that while working, he often notices carpet cleaners who are cleaning the interiors of vacant apartments. When asked how often he observed carpet cleaners, Plaintiff testified it "could be once a week. Every time they go wash the apartments". These cleaners line hoses from the apartment they are cleaning to the company truck at the bottom of the staircase in the parking areas. Plaintiff testified in his deposition that there were hoses one foot to his right as he was walking down the staircase. (Tr. 110) However, he could not be certain if carpet cleaning activities were going on at the time (Tr. 117).
Plaintiff testified that he "almost always" saw hoses on the steps; he would see them every time "they" would go wash the vacated apartments. (Tr. 30). He did not know what company operated the hoses. He would see workers from the carpet cleaning company, when they went in and out from the apartment. The Plaintiff testified that the hoses would sometimes leak, but he could not testify specificity about the liquid or water that leaked from the hoses. He could not testify to any particular scent of the liquid, nor could he distinguish between the color of the leaking liquid and dog urine, because of the appearance on the yellow stairs.
Plaintiff testified that his accident occurred at approximately 2:50 P.M., while he was traveling down staircase C from the third floor traveling down to the second floor, conducting his afternoon inspection of the staircases. He testified that he had about ten steps left to get where he was going when his accident occurred. He placed his right foot on the step and slipped, and hit the handrail with his chest.
The stairwell was well-lit. [Tr. 104]. He testified that between the third and second floor, when he was roughly ten steps from the landing, his right foot slipped on a clear, transparent [Tr. 122] liquid, and he hit the handrail with the right side of his chest [Tr. 41] and lost consciousness. When he regained consciousness, he felt a "dent" in his chest, and when he tried to breathe it sounded "like if a balloon had exploded inside." He left the building and went to his car after waiting 15 minutes for the initial pain to subside.
Initially, the Plaintiff testified that he did not remember if he saw any hoses within the Allure Mineola on the date of his accident. (Tr. 34) After a recess, the Plaintiff changed his testimony and stated that he could recall a hose being in the staircase at the time of the accident. (Tr. 42). He identified the hose as one used by the carpet cleaning company. Plaintiff testified that the hose was not present when he was walking down the stairs from the fifth floor down to the fourth floor, or from the fourth floor down to the third floor, but only when he was walking from the third floor down to the second floor.
Plaintiff could not specifically identify the type of liquid he slipped in. The color of the stairs was yellow, and he could not recall if it was urine or water due to its translucence. He stated that the substance smelled "like the shampoo used to clean the carpets." He also stated that there were no wet floor signs or buckets present. (Tr. 45). Plaintiff filled out an accident report on the Friday after his accident [Tr. 59], which stated that - he slipped on a "smooth" liquid that wasn't dog urine and went down where he hit the railing along the way. However, there was no mention of hoses or buckets in this report (Tr. 106).
Plaintiff testified that he never saw the people who cleaned the carpets come to the building two days in a row. (Tr. 84) He further testified that he doesn't think anything else besides the liquid could have caused his accident. (Tr. 127). He testified that he did not have any idea how long the liquid was present before his accident.
Plaintiff testified that he was wearing his normal workwear during the accident, which is a GBM T-shirt and tennis shoes. Plaintiff testified that he owned the tennis shoes for about four years before the accident, and that he always wore them to work, and he only wore them for work.
L.U. ["U."] testified as Create-A-Color's witness. He is the company's general manager, and he testified that Create-A-Color uses a truck mount to clean - everything is powered by the vehicle's engine, including the power to pump water from the truck's tank and suction water out of the apartments. This is in contrast to a portable unit brought into the apartment. The truck mount is more powerful and more cost-effective. He further testified that at the Allure Mineola, it is often required for hoses to be run from the truck to the apartment unit itself through the Allure's staircase. However, sometimes they will run the hoses from the unit through a window down to the truck.
U. testified that two hoses come from the truck - one vacuum hose for suction, and one water hose. (Tr. 30). They are both hydraulic, pressurized hoses. U. stated that "if a hose for some reason starts leaking or gets disconnected we can immediately tell". (Tr. 30). U. testified that Create-A-Color workers are required to put down yellow and black wet floor signs while working at The Allure. He testified that the signs were always placed at every level of the staircase (Tr. 38). U. further testified that the hoses were inspected for damage every day. If at the end of the day a hose for some reason was damaged, it would be replaced and the truck would be put back into service. If there was damage or a spill, there was no paperwork for this, and it would simply be fixed. (Tr. 71). They would be "unable to do any work if the hose is damaged" because it is "air pressured (Create a Color) wouldn't be able to do the work". (Tr. 40).
During the deposition, U. was shown Exhibit 1, a daily list that Create a Color exchanged, dated September 5th. It's a Word document that was used internally by Create a Color that listed the crews and their stops for the day. According to Exhibit 1, on September 5, 2024, Create-A-Color workers named M. and R. were to deodorize and disinfect the carpets of "FF Thunderbird, Avalon Rockville Center, and Allure Mineola". (Tr. 43). They were assigned to two units, 345 and 426. (NYSCEF 56). The following day, September 6th was shown to U. as well, which did not list The Allure as one of the daily stops for any of Create-A-Color's teams.
U. testified that he did not have an independent recollection of where Create-A-Color was working on September 6, 2019, as he was basing his testimony on the documents in his possession (Tr. 48-49).
U. testified that when he learned of the accident, he doublechecked his records to see if Create-A-Color was on site the date of the accident, and that based on such review he concluded that Create-A-Color was not present at The Allure at the time of the accident. (Tr. 50). His investigation consisted of looking at the in-house book where they schedule their work, he looked at e-mails, and he looked at the invoices of the particular dates. The matter was discussed internally and it was agreed that the claim did not make sense because Create-A-Color was not present on September 6, 2019, and there were no reports of leaks or defective hoses when they were there the day before on September 5, 2019.
U. was questioned about an internal schedule used by Create-A-Color, which showed that two employees were scheduled to go to Allure Mineola on September 5, 2019, and clean two carpets, two unit apartments. (Tr. 43-44). U. further testified that after work is done Create-A-Color maintains an invoice to indicate that scheduled work was actually done. U. was shown the invoice dated September 5, 2019, for the carpet cleaning of units 345 and 426 at the Allure. The invoice is for work that was done on the same date as the invoice.
The Plaintiff's Amended Complaint asserts a single cause of action for negligence against all the Defendants, including Create-A-Color, and the Plaintiff alleges that the Defendants were negligent, inter alia, in servicing the Allure Mineola, by permitting a dangerous and hazardous condition to exist thereat; by failing to keep the Allure Mineola in a reasonably safe condition prior to and including September 6, 2019, in causing, creating, allowing, and/or permitting a dangerous and hazardous condition; and in failing to remedy said condition.
Defendant Create-A-Color contends that it is entitled to summary judgment dismissal of the Plaintiff's Complaint because Create-A-Color did not owe a duty of care to the Plaintiff, and there is no evidence that Create-A-Color caused or created the alleged defect or that they had actual or constructive notice of the same. Create-A-Color contends, inter alia, that the evidence demonstrates they were not present at the Allure Mineola on the date of the Plaintiff's accident, that their work was completed prior to the date of the Plaintiff's accident, and that the Plaintiff inspected the stairwell where his accident occurred on the date of his accident and observed no liquid there before his accident.
Bozzuto contends that they are entitled to dismissal of the Plaintiff's Complaint as Bozzuto does not owe a duty to the Plaintiff, as the Plaintiff was hired to remedy the condition complained of. Bozzuto further contends that it cannot be held liable due to a lack of actual or constructive notice of the hazardous condition.
The Allure Defendants contend that they were out-of-possession owners of the subject building at the time of the accident, and that they have submitted sufficient evidence to demonstrate that the Allure Defendants did not owe or breach a duty of care and that therefore this negligence action must be dismissed.
"The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact". (Orellana v. Mendez, 208 A.D.3d 888, 888 [2d Dept. 2022]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). "This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." (Cach, LLC v. Khan, 188 A.D.3d 1135, 1136 [2d Dept. 2020]). "Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non- moving party bears no burden to otherwise persuade the court against summary judgment." (Cach, LLC, 188 A.D.3d at 1136).
Create-A-Color argues that as a contractor, it owed no duty to the Plaintiff, a third-party. "Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party, such as the plaintiff here". (Nesbitt v Advanced Serv. Sols., 224 A.D.3d 841, 842, 206 N.Y.S.3d 153, 155-56 [2d Dept 2024][citing to Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 140 [2002]).
"'However, a party that enters into a contract to render services may be said to have assumed a duty of care, and thus, be potentially liable in tort to third persons, where (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely'". (Nesbitt, 224 A.D.3d at 842; citations omitted).
Where a contractor may be said to have assumed a duty of care to third persons, a Defendant contractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of". (Bruce v Edgewater Indus. Park, LLC, 169 A.D.3d 753, 754 [2d Dept 2019] [citations omitted]).
In this case, Create-A-Color demonstrated, prima facie, that it is not liable for the Plaintiff's accident under any of the exceptions to the Espinal rule. (Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 140 [2002]). Create-A-Color's motion is supported by, inter alia, the deposition testimony of the Plaintiff, and of Create-A-Color's witness, U., as well as Create-A-Color's business records. Create-A-Color's evidence establishes, prima facie, that Create-A-Color worked in the Allure Building on September 5, 2019, that it finished its scheduled work on September 5, 2019, and that it was not present in the building on September 6, 2019, the date of the Plaintiff's accident.
However, even to the extent that the Create-A-Color did not conclusively establish that it worked in the Allure Mineola Building on September 5, 2019, and not on September 6, 2019, Create-A-Color has established, as a matter of law, that the subject hazard cannot be attributed to Create-A-Color's work without impermissibly relying on speculation.
The Plaintiff initially testified that he did not observe any hoses running down the interior stairwells on the date of his accident, then subsequently testified that he did observe Create-A-Color's two hoses running down the interior staircase between the third floor down to the second floor, which is also where his accident occurred. He testified that on his final inspection of the staircase on the date of the accident, he observed the two hoses running down the stairwell, but he did not observe any liquid on the steps before he fell, and he did not observe any liquid coming out of Create-A-Color's hoses that were allegedly on the stairwell.
The Plaintiff's testimony concerning the substance that allegedly caused his accident was wholly speculative, including when Plaintiff was asked if the substance had any particular characteristics such as a particular smell or consistency, and the Plaintiff testified that he "wasn't paying attention to - to that - to it, but I imagine it - it was chemicals used to clean the carpet". (Tr. 35). He subsequently testified that he slipped on a substance that he "imagined" was "like water with shampoo", and compared the scent to "the shampoo used for [ sic ] to clean the carpets". (Tr. 50-51). He was also asked if he could distinguish the substance from "any other type of liquid", and he responded, "No. I couldn't distinguish them because the stairs were yellow color" and he testified that he could not tell the difference between the substance and urine, that he didn't even know what color the substance was. (Tr. 35).
In any event, the unrefuted testimony by Create-A-Color's witness is that neither of its two hoses that would arguably be running down the stairwell would have a "shampoo" or cleaning solution in it. One hose is a vacuum hose, and the second hose is only water, which is subsequently mixed with a solution in the unit where the carpet is being cleaned. Thus, accepting the Plaintiff's testimony as true, i.e., that the spill was created by a leak from one of the hoses on the stairwell, Create-A-Color has established conclusively that neither of its hoses would be leaking a shampoo-scented or cleaning solution. Create-A-Color's witness also testified that both hoses are "hydraulic hoses", such that its workers could tell immediately if there was a leak or disconnection, and the hose would be repaired immediately so that Create-A-Color could complete its work.
Finally, while the Plaintiff contends that Create-A-Color placed "wet-floor" caution signs to warn against leaking hoses, U. testified that in fact the signs were placed to warn people that the hoses were tripping hazards and not due to the presence or danger of a spill.
Even construing the evidence in the light most favorable to the non-moving Plaintiff, the Court finds that the documentary evidence and testimony establishes that Create-A-Color was not present on the date of the Plaintiff's accident, but that even if Create-A-Color arguably failed to conclusively establish that it was not present on September 6, 2019, the evidence conclusively establishes that it was not Create-A-Color's work that created the subject hazard. The Plaintiff's vague, conclusory, and speculative testimony fails to raise an issue of fact in opposition to Create-A-Color's prima facie showing. (See Jaffa v Afrodiam, Ltd., 93 A.D.3d 758, 759 [2d Dept 2012]).
As Create-A-Color established, prima facie, that it did not owe a duty of care to the Plaintiff under Espinal, and the Plaintiff failed to raise an issue of fact in opposition thereto, Create-A-Color's motion for summary judgment [Seq. 001] shall be GRANTED, in its entirety, and the Plaintiff's claims and all cross-claims asserted against Create-A-Color shall be DISMISSED.
Defendant Bozzuto, the property management company for the Allure Mineola Building, contends that it is free from liability as the Plaintiff's claimed injuries are the result of an alleged dangerous condition which he had been hired to remedy, and because Bozzuto did not have notice of the claimed condition. In support of its motion, Bozzuto relies upon the deposition testimony of Bozzuto's witness, D.L. ["L."]; the Allure Defendants' witness, Z.K. ["K."]; Create-A-Color's witness, U.; and the Plaintiff. Bozzuto also submits a copy of its agreement with the Plaintiff's employer, GBM, to perform cleaning tasks of the property, a copy of its agreement with Create-A-Color to perform carpet cleaning of the common area and interior apartments, and a copy of its property management agreement with the Allure Defendants.
A Plaintiff cannot recover on a cause of action for negligence where the Plaintiff was injured by the condition he had undertaken to remedy. (Bedneau v New York Hosp. Med. Ctr. of Queens, 43 A.D.3d 845, 846, 841 N.Y.S.2d 689 [2d Dept 2007]). In this case, Defendant Bozzuto has established, prima facie, that the Plaintiff cannot maintain his cause of action for negligence because Bozzuto retained the Plaintiff's employer GBM, to perform certain cleaning tasks at the Allure Mineola Building, and the Plaintiff was allegedly injured while in the process of carrying out one of his assigned tasks, inspecting the stairwell, and his alleged injury was caused by the very same condition that the Plaintiff was retained to remedy or correct. (See Waiters v N. Tr. Co. of New York, 29 A.D.3d 325, 327-28 [1st Dept 2006] [Plaintiff who slipped on slippery condition on the bathroom floor while engaged in his bathroom cleaning duties has no claim at law for injury suffered from allegedly dangerous condition that he or she was hired to remedy]; see also Marku v. Moore Capital Mgt., 7 A.D.3d 443, 444 [1st Dept 2004], leave denied, 3 N.Y.3d 606 [2004]).
Additionally, Bozzuto demonstrated, through the Plaintiff's testimony, that Bozzuto did not exercise any supervisory control over, or had any input into how the Plaintiff's work was performed. (Bedneau v New York Hosp. Med. Ctr. of Queens, 43 A.D.3d 845, 846 [2d Dept 2007]).
The Plaintiff failed to raise an issue of fact in opposition to Bozzuto's prima facie showing. The Plaintiff contends that Bozzuto failed to establish that Plaintiff was brought on the premises for the purpose of detecting and correcting "the subject cleaning liquid spill". However, the Plaintiff's deposition testimony and the agreement between Bozzuto and Plaintiff's employer GBM establish that the Plaintiff's broad cleaning duties included inspecting, sweeping, and mopping the subject stairwell where his accident occurred. The Plaintiff specifically testified that he inspected the stairs twice daily to ensure that there were no hazardous conditions present for the residents. He also testified that if, during his inspection of the stairs, he identified a condition present on the stairs, he would stop and clean it. Therefore, the Court finds that Bozzuto has established that Plaintiff's negligence claim fails because he was allegedly injured due to the same hazard or condition that he was retained to remedy. (See Jackson v Bd. of Educ. of City of New York, 30 A.D.3d 57, 63 [1st Dept 2006] ["[S]ince it was plaintiff's job to clean the floor of the type of foreign substance that he slipped on, FIT owed him no duty to keep the floor clean of such material [and] 'could not have provided plaintiff with a work place that was safe from the defect that his employer was engaged to eliminate'"]).
Moreover, Bozzuto established that it is not liable for the Plaintiff's accident because it did not create, or have actual or constructive notice of the subject condition. (Piacquadio v Recine Realty Corp., 84 N.Y.2d 967, 969 [1994]). Bozzuto's evidence on this issue included the Plaintiff's testimony that he did not observe any substance on the stairs during his inspections conducted on September 5, 2019, and earlier in the day on September 6, 2019, and that he did not observe any substance as he was conducting his final inspection leading up to his fall on September 6, 2019. Given the absence of any testimony or evidence establishing how long the condition existed before the Plaintiff's accident, and considering that the Plaintiff testified that he did not observe the subject condition during his morning inspection of the stairs or at any time before he fell during his subsequent inspection, the Court finds that "there is no evidence to permit a finder of fact to infer, without speculating, that defendant had constructive notice of a dangerous condition". (Dombrower v Maharia Realty Corp., 296 A.D.2d 353, 353 [1st Dept 2002]). The Court further finds that Plaintiff's contentions that Bozzuto had actual notice of the subject condition are based purely on vague and speculative assertions which are likewise insufficient to defeat Bozzuto's summary judgment motion. (Id.; citations omitted).
Therefore, Bozzuto's motion for an Order pursuant to CPLR 3212 granting it summary judgment and dismissing the Plaintiff's Complaint [Seq. 002] shall be GRANTED, in its entirety.
The Allure Defendants argue that under their property management agreement, Bozzuto was responsible for undertaking any type of repair or maintenance of the Allure Mineola Building, such that the Allure Defendants were out-of-possession landlords. "An out-of- possession landlord is generally not responsible for injuries that occur on its premises unless it has retained control over the premises or is contractually obligated to maintain or repair the alleged hazard". (Kane v Port Auth. of New York and New Jersey, 49 A.D.3d 503 [2d Dept 2008] [citations omitted]). In this case, the Allure Defendants have submitted sufficient evidence, through the witnesses' testimonies and the property management agreement with Bozzuto, that they did not retain control over the subject building and were not contractually obligated to maintain or repair the alleged hazard.
Additionally, the Allure Defendants established, prima facie, that they did not create the allegedly dangerous condition that caused the Plaintiff's injuries, nor did they have actual or constructive notice of such condition. (Panico v Jiffy Lube Intern., Inc., 86 A.D.3d 553 [2d Dept 2011] [citations omitted]).
To the extent that the Plaintiff raised an issue of fact as to whether the Allure Defendants were actually "out-of-possession" landlords, since the Allure Defendants submitted a copy of their property management agreement with Bozzuto and did not submit a copy of any lease agreement, the Plaintiff still failed to raise an issue of fact concerning whether the Allure Defendants may be held liable for the Plaintiff's accident, as the Plaintiff failed to address the Allure Defendants' prima facie showing that their property management agreement with Bozzuto "displaced" the Allure Defendants' duty to maintain the premises' safety. (Espinal v. Melville Snow Contractors, 98 N.Y.2d 136 [2002]). To that end, as discussed above, Defendant Bozzuto established that the Plaintiff's negligence claim fails because his injury was allegedly caused by the condition that he was retained to remedy or correct. (Jackson v Bd. of Educ. of City of New York, 30 A.D.3d 57, 63 [1st Dept 2006]).
As the Allure Defendants established entitlement to judgment as a matter of law, and the Plaintiff failed to raise an issue of fact in opposition thereto, the Allure Defendants' motion for an Order pursuant to CPLR 3212 granting them summary judgment and dismissing the Plaintiff's Complaint shall be GRANTED, in its entirety, and the Plaintiff's Complaint shall be DISMISSED.
Accordingly, it is hereby, ORDERED, that the motion by Defendant Create-A-Color Carpet Specialists, Inc. for an Order pursuant to CPLR 3212 granting it summary judgment and dismissing the Plaintiff's Complaint and any cross-claims asserted against it [Seq. 001] is GRANTED, in its entirety; and it is further, ORDERED, that the motion by Defendant Bozzuto Management Company for an Order pursuant to CPLR 3212 granting it summary judgment and dismissing the Plaintiff's Complaint and any cross-claims asserted against it [Seq. 002] is GRANTED, in its entirety; and it is further, ORDERED, that the motion by the Allure Defendants for an Order pursuant to CPLR 3212 granting them summary judgment and dismissing the Plaintiff's Complaint and any and all cross-claims or counterclaims asserted against them is GRANTED, in its entirety; and it is further, ORDERED, that this case is DISMISSED; and it is further, ORDERED, that all other requests for relief which are not specifically addressed herein shall be deemed DENIED.
This constitutes the Decision and Order of the Court.