Opinion
Index No. 27396/18E Motion Seq No. 002
01-13-2022
SORIE KAMARA, Plaintiff, v. 323 PAS OWNER LLC, 323 PAS ASSOCIATES LLC, 323 PAS LLC, CENTURY MANAGEMENT SERVICES, and 323 PARK AVENUE SOUTH CONDOMINIUM, Defendants.
Unpublished Opinion
Motion Date: 10/13/2021
Present: Hon. Wilma Guzman, Justice Supreme Court
DECISION/ ORDER
Hon. Wilma Guzman, Justice
Recitation as required by CPLR 2219(a). of the papers considered in the review of these motions:
Papers Numbered
CENTURY MANAGEMENT SERVICES and 323 PARK AVENUE SOUTH CONDOMINIUM'S Notice of Motion, Statement of Material Facts, Affirmation in Support and Exhibits thereto.......................................... 1
SORIE KAMARA's Affirmation in Opposition, Statement of Material Fact and Exhibits thereto................................................. 2
CENTURY MANAGEMENT SERVICES and 323 PARK AVENUE SOUTH CONDOMINIUM'S Affidavit or Affirmation in Reply and exhibits thereto................. 3
Upon the foregoing papers, the Decision/Order on this motion is as follows:
Upon deliberation of the application made by Defendants. CENTURY MANAGEMENT SERVICES, (hereinafter referred to as "Century") and 323 PARK AVENUE SOUTH CONDOMINIUM (hereinafter referred to as "Condominium") herein by NOTICE OF MOTION, and all the papers in connection therewith, and opposition to. for an order, pursuant to CPLR § 3212, dismissing Plaintiff, SORIE KAMARA's (hereinafter referred to as "Plaintiff) complaint and granting summary judgment in favor of Century and Condominium, is hereby denied.
This is an action seeking damages for injuries allegedly suffered by Plaintiff on July 24, 2017, when Plaintiff allegedly fell on the staircase leading from the first floor to the basement of the 323/325 Park Avenue South, City and State of New York (hereinafter the "Subject Premises"). Plaintiff subsequently commenced the within action. Defendants Century and Condominium jointly argue that the Court should dismiss Plaintiffs cause of action because Century and Condominium did not own, maintain, control, or make any special use of the area where Plaintiffs alleged accident took place. The location in which Plaintiff allegedly accident occurred and sustained injuries was a staircase inside Cava Mezze Grill, leading from the first floor to the basement. This is plaintiffs place of work, which is a commercial property located on the first floor of the Subject Premises and the basement area.
Defendants Century and Condominium, in their answer, admitted that the defendant. 323 Park Avenue South Condominium owned building located at 323 Park Avenue South, New York, NY. Defendant 323 Pas Associates LLC admits in their answer the following: 1) that they own a building and structure located at 325 Park Avenue South, County and State of New York; 2) that they are the '"lessor of the aforesaid building and premises located at 323 Park Avenue South. County and State of New York; 3) they leased a portion of the building to Cava Mezze Grill to occupy and conduct a business at said location; and 4) Cava Mezze Grill leased said area pursuant to a written contract, lease and/or agreement. In support, the defendants only submitted the front or first page of the lease between the co-defendant, 323 Pas Associates LLC, as Landlord and Cava Mezze Grill LLC, as Tenant. It should be noted the entire lease was not submitted for review by this court.
The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y 2d 320. 508 N.Y.S.2d 923 (1986) and Wineerad v New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party. Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 544 N.Y.S.2d 834 (1st Dept. 1989). It is well settled that issue finding is the key to summary judgment. Rose v DaEcib USA, 259 A.D. 258, 686 N.Y.S.2d 19 (1st Dept. 1999). Summary judgment will only be granted if there are no material triable issues of fact. Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 385, 144 N.E.2d 498 (1957). If the movant meets this burden, the opponent must rebut the prima facie showing by submitting evidence in admissible form demonstrating the existence of factual issues needing to be determined by a trier of fact. See Zukerman v. City of New York, 49 N.Y.2d 557 (1980). Otherwise, the motion must be denied, regardless of the sufficiency of the opposition. Wineerad, 64 N.Y.2d at 853.
Defendants claim that they do not own, maintain, control, or make special use of the property where Plaintiffs alleged accident occurred. In support, defendants rely on the deposition testimony in which Megan Harvey, a non- party witness and the Regional Director of the Cava chain, testified that Century managed the residential portion of the building while 323 Pas Associates LLC was the landlord for the restaurant.
Defendant further relies on the deposition testimony of Ari Hermann, a representative of 323 Pas Associates LLC. He is the Chief Financial Officer of Tessler Developments and he manages and oversees the development projects partially belonging to the principal of Tessler Developments. Mr. Hermann testified that 323 Park Avenue South is a company partially owned by Tessler and 323 Park Avenue South Owner LLC is the owner of 323 Park Avenue South. Mr. Hermann testified that the address for the commercial property is 325 Park Avenue South and the condominium address is 323, however it is the same building and in 2017 323 PAS Owner LLC owned 325 Park Avenue South. However, Mr. Hermann also testified that back in July of 2017 323 PAS Associates LLC owed the portion of the building that Cava was located in which was at 325 Park Avenue South. He further state that 323 PAS Associates LLC were the owner of the building where the restaurant was located, and they were the "fee owner of the space."
Defendants submit the deposition testimony of Yusuf Ekiz, who testified that he is employed by both 323 Park Avenue South Condominium and Century Management since August of 2017. He works directly for Park Avenue South Condominium. However, Mr Ekiz testified he is paid by Century Management Services. He is employed as the building superintendent for 323 Park Avenue South Condominium who testified on behalf of the defendants Century and Condominium, Mr. Ekiz testified his duties include maintenance of the building, keeping things up to date, paperwork, respond to service calls and he manages approximately five people on site. Furthermore, he would call upon contractors, if necessary, otherwise he would handle matters himself. Mr. Ekiz testified he is familiar with the Cava Mezze Grill location establishment and testified that they rent the commercial space "under 323 Park Avenue South." However, they "receive mail at 325 Park Avenue South." Mr. Ekiz further testified that the location he is the superintendent for is the building that Cava Mezze Grill is located in and it is on the first floor of said building. He further testified that "from the mail I see it could be 325 or it could be 323. It could be either," and he has been inside of Cava Mezze Grill. Mr. Ekiz further testified that he is responsible for the residential part of the building unless on occasions where there have been water leaks and then they enter the commercial premises. Mr. Ekiz further testified that the basement area of Cava Mezze Grill is separate from the basement area of the residential portion of the building. The building has its own two staircases and an elevator to get to the basement and Cava is separated from the rest of the building. There is, however, an emergency exit door which allows Cava to connect and cross into the other side of the basement of the building. Mr. Ekiz further testified that they have common units such as HVAC and has been down the stairs at Cava when observing the HVAC work being done.
In the opposition, Plaintiff provides evidence that rebuts Defendants' claim that there is no issue of material fact. Plaintiff also relies upon the testimony of Megan Harvey who testified as to the condition of the subject stairs prior to the accident. Ms. Harvey testified that the treads were slippery. She inspected the stairs and observed the stairs needed stronger treads. Plaintiff also relies on the deposition testimony of Ari Hermann who testified there was a lease between Cava and 323 PAS Associates LLC and that he participated the in negotiation of the lease. Mr. Hermann had no recollection whether the lease addressed the maintenance and repair responsibilities or indicated if the owner maintained or retained any kind of maintenance or repair responsibilities for the space, nor who was responsible for the maintenance or repair for the space in question, Mr, Hermann further testified there is a management company to manage the building and there is a contract which specify what portions of the building are to be managed. Furthermore, Mr. Hermann testified that the maintenance company "has to maintain anything that has to do with the building in general, the building at large." Mr. Hermann further testified the Cava did not construct the stairs, the stairs were previously there prior to Cava leasing the location, and there was a sushi shop prior to Cava. Mr. Hermann had visited the location upon it becoming vacant and had shown the location to perspective tenants. Mr. Hermann also testified that the building had been previously demolished in order to make space for the new one and construction started approximately between 2009 and 2010 and completed approximately between 2013 and 2016
Defendants Century and Condom has not produced the management contract to demonstrate their duties under the contract with respect to the Subject Premises and staircase. Plaintiff claims that defendant Century is not entitled to summary judgment as they have not established that they did not have a contractual duty to maintain and repair the Subject Premises and staircase where plaintiffs accident occurred. See Lee v Second Ave. Vil. Partners. LLC. 100 A.D.3d 601 (2d Dept 2012) where defendants1 motion for summary judgment was denied since defendants did not establish a prima facie case that they were not contractually obligated to maintain the subject premises. See also Riley v ISS Intern, Serv. Svs., Inc., 5 A.D.3d 754 (2d Dept 2004). "It is well settled that an out-of-possession owner or lessor is not liable for injuries that occur on the premises unless that entity retained control of the premises or is contractually obligated to repair the unsafe condition." See Gibson v. Bally Total Fitness Co., 1 A.D.3d 477 (2nd Dept. 2003); Vazquez v. Diamndrock Hospitality Company, 100 A.D.3d 502 (1st Dept. 2012).
Defendants Century and Condominium has failed to show entitlement to summary judgment. Defendants failed to provide documentary evidence to establish who was the owner of the subject premises on the date of the accident. It appears that there is conflicting evidence as to who owned the subject premises back in 2017. In addition, the defendants have filed to provide the management contract evincing that they did not have a duty to repair or maintain the commercial area of the subject premises. Clearly, there are questions of fact for the jury to determine as to who owns the building where the retail property is located and who is responsible for the maintenance of the location where plaintiffs accident occurred. As such, Defendants did not meet the required burden of proof of entitlement to summary judgment and Defendants' motion is denied in its entirety.
ORDERED AND ADJUDGED Defendants' CENTURY MANAGEMENT SERVICES and 323 PARK AVENUE SOUTH CONDOMINIUM, motion seeking summary judgment/and dismissing Plaintiffs action is hereby denied in its entirety. It is further, ORDERED AND ADJUDGED that Defendants CENTURY MANAGEMENT SERVICES, and 323 PARK AVENUE SOUTH CONDOMINIUM shall serve a copy of this order with noticed entry upon all parties within thirty (30) days from the date of entry of this order.
This constitutes the Decision and order of the Court.