Opinion
Index No.: 152520/2014
03-12-2018
WILLIAM LAWRENCE, Plaintiff, v. 239 EAST 115TH STREET HOUSING DEVELOPMENT FUND CORPORATION AND HOPE COMMUNITY, INC., AND ORIGINAL JNS PIZZA, Defendants.
NYSCEF DOC. NO. 99
DECISION/ORDER
Mot. Seq. 004 HON. CAROL R. EDMEAD, J.S.C.: MEMORANDUM DECISION
This is an action for personal injury. Defendants 239 East 115th Street Housing Development Fund Corporation and Hope Community, Inc. (collectively "239 East"), now move pursuant to CPLR § 3212 for summary dismissal of the complaint ("Complaint") of plaintiff, William Lawrence ("Plaintiff"), summary judgment on its cross-claim against co-defendant Original JNS Pizza ("JNS"), and for an order precluding JNS from "offering any evidence" (Carfora Aff. ¶3c). JNS now cross-moves pursuant to CPLR § 3212 for summary dismissal of the Complaint and cross-claims of 239 East and for an order modifying this Court's order dated July 11, 2017 (the "July order").
Factual Background
Plaintiff alleges that he slipped and fell on snow and ice while he was walking along the sidewalk abutting the storefront ("premises") located at 2032 Lexington Avenue, New York, New York. The building is owned by 239 East and the area where Plaintiff fell was allegedly adjacent to the storefront leased by JNS. Plaintiff filed the Complaint alleging, inter alia, negligence on behalf of 239 East. On May 28, 2015, Plaintiff amended the Complaint to add JNS as an additional defendant (E-File Doc. No. 27). On June 2, 2015, 239 East filed its amended answer, including a cross-claim seeking, among other things, contractual indemnification from JNS. On October 23, 2015, JNS entered its answer (E-File Doc. No. 32).
239 East's Motion
In support of its motion, 239 East argues that under the January 1, 2014 commercial lease agreement between JNS as tenant and 239 East as owner (the "Lease"), JNS was responsible for removing ice and snow from the sidewalk abutting the premises. Next, 239 East argues that as an out of possession landlord, it did not owe a common-law duty to remove naturally accumulated snow and ice from the subject sidewalk. Next, 239 East requests that the Court preclude JNS from offering any evidence. Finally, 239 East argues that the Lease requires JNS to indemnify and hold harmless 239 East, since it was the responsibility of JNS to remove the ice and snow from the subject sidewalk.
JNS' Cross-Motion and Opposition
In support of its cross-motion, JNS argues that it is entitled to summary dismissal of the Complaint, since it has no duty to Plaintiff to maintain the subject sidewalk, and because there is no evidence that JNS worsened the condition of the subject sidewalk. JNS further argues that the Lease does not create a duty that runs from JNS to Plaintiff.
Moreover, JNS argues that 239 East is not entitled to contribution or common-law and contractual indemnification because it is not free from negligence, as its acts or omissions created the conditions that caused Plaintiff's fall. Specifically, JNS contends that 239 East failed to take any measures to remove the snow from the subject sidewalk, despite being aware that JNS was closed and that snow was present on the sidewalk.
Additionally, counsel for JNS argues that the Court's July 11, 2017 order requiring that the deposition of JNS take place within thirty days from the date of that order, or be waived, should be modified to allow JNS an additional sixty days to produce a witness on its behalf. Counsel for JNS argues he was initially unable to locate the principal for JNS, but affirms that the principal has now consented to appearing for an examination before trial.
Plaintiff's Opposition
In opposition to JNS' cross-motion, Plaintiff argues that JNS has failed to demonstrate any reasonable excuse as to why they could not locate the principal in the time that this action was pending. Moreover, Plaintiff argues that 239 East, as owner of the storefront, was required to remove the snow and ice present in the area where Plaintiff's fall occurred. Further, Plaintiff argues that the Lease created a contractual duty on behalf of JNS to clean snow and ice in front of the store front, which extended to Plaintiff.
239 East's Reply and Opposition
In reply to Plaintiff's opposition, 239 East argues that Plaintiff fails to rebut the provision of the Lease stating that JNS, and not 239 East, was responsible for all maintenance at the subject sidewalk and to keep the sidewalk free from snow and ice. In opposition to JNS' cross-motion, 239 East argues that JNS' request for more time to produce someone to be deposed should be denied, since JNS indicates that it only attempted to locate the principal twice prior to the July order and that JNS fails to indicate the date in which it first located the principal. 239 East further contends that the dates suggested by counsel for JNS to depose the principal are outside the deadline imposed by the July order.
JNS' Opposition and Reply
In reply, JNS reiterates its argument that the Complaint and 239 East's cross-claim for contribution should be dismissed because it did not owe Plaintiff a duty. JNS further contends that the cross-claim for common-law indemnification should be dismissed, since 239 East failed to remove snow from the subject sidewalk. Further, JNS argues, for the first time in its reply, that the "contractual cross-claim" should be dismissed, since it was not pled with the requisite specificity (Adler Reply Aff., ¶12). Moreover, JNS argues that 239 East was responsible for removing snow from the subject sidewalk, since JNS vacated the premises. Additionally, JNS argues that it made sufficient efforts to contact the principal of JNS and that it will be prejudiced if it is precluded from offering the testimony of the principal.
JNS' argument that the contractual cross-claim should be dismissed is made for the first time on reply, and thus, not considered by the Court (see Ambac Assurance Corp. v. DLJ Mortg. Capital, Inc., 92 A.D.3d 451, 452 (1st Dept 2012) ("[T]ne function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion.").
Discussion
On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim" (id.). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Siegel v. City of New York, 86 A.D.3d 452 [1st Dept 2011], citing Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]).
"An out-of-possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct" (Mercer v. Hellas Glass Works Corp., 87 A.D.3d 987, 988 [2d Dept 2011]; see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534 [2006]). New York City Administrative Code § 7-210 imposes upon owners of real property the affirmative duty to maintain abutting public sidewalks in a reasonably safe condition. This includes the duty to keep an abutting sidewalk sufficiently clear of snow and ice (see McKenzie v. City of New York, 116 A.D.3d 526 [1st Dept 2014]). The duty imposed on property owners by § 7-210 is non-delegable (Cook v. Consolidated Edison Co. of N.Y., 51 A.D.3d 447, 448 [1st Dept 2008]).
However, as recently reiterated by the Appellate Division, First Department, a "[landlord defendant] cannot be held liable for injuries allegedly sustained by plaintiff when he slipped on snow and ice on the sidewalk adjacent to their property, because [defendant was an] out-of-possession landlord[] with no contractual obligation to keep the sidewalks clear of snow and ice, and the presence of snow and ice does not constitute a significant structural or design defect" (Xiang Fu He v. Troon Mgmt., Inc., 157 A.D.3d 586 [1st Dept 2018], citing Bing v 296 Third Ave. Group, 94 A.D.3d 413, 414 [1st Dept 2012] [noting that the lower court's application of § 7-210 imposing liability on the landowners for, inter alia, their negligent failure to remove snow and ice from the sidewalk, was misplaced since the lease provided that the tenant was responsible for removing snow and ice from the sidewalk]; see Cepeda v KRF Realty, 148 A.D.3d 512, 513 [1st Dept 2017]).
Here, it is uncontested that 239 East was an out-of-possession landlord and that under the Lease, JNS agreed to maintain the subject sidewalk, including the removal of snow and ice (Carfora Aff., Ex. K, 4). Moreover, neither JNS nor Plaintiff submitted any evidence demonstrating that 239 East caused or created the alleged defective condition, and, in any event snow or ice is not a significant structural or design defect (Bing, 94 A.d.3d at 414). Accordingly, since 239 East was an out-of-possession landlord and it contracted the obligation of snow and ice removal of the subject sidewalk to JNS, the Complaint is dismissed against 239 East.
As to JNS, the defendant-tenant established that it does did not owe a duty to Plaintiff. The Lease, while it does require JNS to remove snow and ice from the subject property, does not create a duty on behalf of JNS to Plaintiff (Collado v. Cruz, 81 A.D.3d 542 [1st Dept 2011], citing Tucciarone v. Windsor Owners Corp., 306 A.D.2d 162, 163 [1st Dept 2003]; see Bi Fang Zhou v. 131 Chrystie St. Realty Corp., 125 A.D.3d 429, 430 [1st Dept 2015] [lease provision requiring tenant to keep the sidewalks clear of snow and ice does not create a duty to plaintiff]). Moreover, neither 239 East nor Plaintiff contend that JNS created the condition that caused Plaintiff's accident or made special use of the subject sidewalk (see Collado, 81 A.D.3d 542, 542 [1st Dept 2011]; Bleich v. Metro. Mgmt., LLC, 132 A.D.3d 933, 935 [1st Dept 2015]; Leary v. Dallas BBQ, 91 A.D.3d 519 [1st Dept 2012]). Accordingly, the branch of JNS' motion for summary dismissal of the Complaint is granted.
The Court notes that the parties' papers failed to address whether the Lease, wherein JNS agreed to clear the subject sidewalk and keep it clear of snow and ice, was so "comprehensive and exclusive" as to sidewalk maintenance as to entirely displace the 239 East's duty to maintain the sidewalk.
Common-Law Indemnification and Contribution
As addressed above, no issues of fact exist as to whether negligence on the part JNS caused Plaintiff's injuries. Accordingly, the branch of JNS' motion seeking summary dismissal of 239 East's cross-claim for common-law indemnification is granted (see Naughton v. City of New York, 94 A.D.3d 1, 4 [1st Dept 2012] [noting that to establish a right to common-law indemnification, "a party must show (1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work"]; see also McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 377-378 [2011]; Muriqi v. Charmer Indus. Inc., 96 A.D.3d 535, 536 [1st Dept 2012]).
JNS also established its entitlement to summary judgment dismissing the cross-claim for contribution by demonstrating that they did not owe a duty of reasonable care to the Plaintiff (see Davis v. Catsimatidis, 129 A.D.3d 766, 768 [2d Dept 2015]; Baratta v. Home Depot USA, Inc., 303 A.D.2d 434, 435 [2d Dept 2003]). Thus, the branch of JNS' motion to dismiss the cross-claim for contribution is granted.
Contractual Indemnification
The right to contractual indemnification depends upon the specific language of the contract" (George v. Marshalls of MA, Inc., 61 A.D.3d 925, 930 [2d Dept 2009]). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (id. at 930). "Pursuant to General Obligations Law § 5-321, a lease provision which purports to exempt a lessor from liability for its own acts of negligence is void and unenforceable" (Rego v. 55 Leone Lane, LLC, 56 A.D.3d 748, 749 [2d Dept 2008]; General Obligations Law § 5-321). Further, a tenant may be required to indemnify the owner notwithstanding the owner's nondelegable obligations under § 7-210 if the tenant was contractually responsible for clearing snow from the sidewalk and failed to comply with that contractual duty (see Wahl v. JCNYC, LLC, 133 A.D.3d 552, 552 [1st Dept 2015], citing Collado, 81 A.D.3d 542).
Here, 239 East made a prima facie showing of its entitlement to summary judgment of its cause of action for contractual indemnification. The Lease provides that JNS was "responsible for all and or any maintenance or janitorial work" at the premises (Carfora Aff., Ex. K, 4). The Lease also provides that JNS was required to "keep the sidewalks and gutter areas in front of the premises and along the perimeter of the demised premises . . . clean and free of obstructions, snow and ice" (id. at 5). Moreover, the Lease states that 239 East is "not responsible for loss or damages to the property, or injury to persons, occurring in or about the demised premises . . . for the acts, omissions, or negligence of other persons or tenants in and about the said property (id. at 7). Further, the Lease indicates that JNS is required to "indemnify and save [239 East] harmless from all claims and liability for losses of or damage to the property, or injuries to persons occurring in or about the demised premises" (id.). 239 East also submits the deposition testimony of Plaintiff, wherein he testified that he slipped on ice and snow located on the sidewalk abutting the premises (Carfora Aff., Ex. G, Plaintiff's Trans., 31:11-15; 38:11-20).
The Lease provisions above demonstrate the intent of JNS to indemnify 239 East for claims arising out of the condition of the sidewalk abutting the premises. However, 239's application for contractual indemnification is moot, as the court is dismissing the complaint as against it, and it faces no liability to plaintiff.
239 East does not move for attorney's fees, and the lease agreement does not confer a right to them.
Modification and Preclusion
" '[A] trial court is given broad discretion to oversee the discovery process' " (Maiorino v. City of New York, 39 A.D.3d 601, 601 [2d Dept 2007], quoting Castillo v. Henry Schein, Inc., 259 A.D.2d 651, 652 [2d Dept 1999]). Thus, "[t]he supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d 798, 799 [2d Dept 2016] [internal quotation marks omitted]).
Further, the nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is left to the discretion of the Supreme Court (see 348 Krause v. Lobacz, 131 A.D.3d 1128, 1128-1129 [2d Dept 2015]; see also Kanic Realty Assoc., Inc. v. Suffolk County Water Auth., 130 A.D.3d 876, 877 [2d Dept 2015]). "To invoke the drastic remedy of preclusion, the Supreme Court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious" (Pryzant v. City of New York, 300 A.D.2d 383, 383 [2d Dept 2002]; see Hernandez v. City of New York, 100 A.D.3d 433, 434 [1st Dept 2012]). "The willful and contumacious character of a party's conduct may be inferred from the party's repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time" (New York Timber, LLC v. Seneca Cos., 133 A.D.3d 576, 577 [2d Dept 2015]; see Keller v. Merch. Capital Portfolios, LLC, 103 A.D.3d 532, 533 [1st Dept 2013]; Gen. Motors Acceptance Corp. v. New York Cent. Mut. Fire Ins. Co., 104 A.D.3d 523, 525 [1st Dept 2013]; Ripka Rotter & King, LLP v. Kahn Gordon Timko & Rodriguez, P.C., 83 A.D.3d 613, 614 [1st Dept 2011]).
Here, modification of the July 11, 2017 order is warranted, as the record does not suggest that JNS' failure to comply with the July order to produce a witness for a deposition was willful and contumacious. First, the July order was the first order requiring JNS to produce a witness for a deposition. While the August 17, 2015 Compliance Conference Order required that all parties' depositions take place by September 24, 2015 (E-File Doc. No. 31), JNS was not present, and had not even filed its answer to the Complaint.
Next, counsel for JNS sufficiently explained the efforts undertaken to locate and secure a witness to produce for deposition. Counsel for JNS affirms that he attempted to contact the principal of JNS by mail on November 5, 2015 and October 21, 2016, but that the mail was returned as undeliverable (Adler Aff., ¶3). Counsel discovered that JNS was no longer in business, and that mail was not being forwarded to the principal (id.). Counsel further affirms that he located the principal at a convenience store in upper Manhattan (id., ¶4), and that in July 2017 he made telephone calls to the location and personally visited on two occasions, the second time of which he spoke to someone on the telephone purporting to be the principal who indicated that he would call counsel to discuss deposition dates (Adler Reply Aff., ¶¶17-18). However, counsel's phone call was never returned. Counsel also affirms that on August 24, 2017, counsel retained a private investigator, who spoke with the principal on August 28, 2017 and secured his cooperation to appear for a deposition on behalf of JNS (id., ¶20).
In light of the above, it is clear that this is not a case where discovery deadlines were not taken seriously or disregarded (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 83 [2010]). Considering the strong preference in this State that actions should be resolved on the merits whenever possible (see, e.g. Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213 [1st Dept 2002]), modification of the July order permitting JNS additional time to produce a witness for deposition is warranted. In the event JNS fails to produce a witness on behalf of JNS within forty-five (45) days of the notice of entry, JNS will be precluded from producing a witness to testify at trial on their behalf. Accordingly, the branch of 239 East's motion to preclude JNS from presenting "any evidence" is denied.
While 239 East did not articulate the legal basis to preclude JNS from offering any evidence, the Court construes 239 East's motion as being made pursuant to CPLR § 3126. Section 3126 states that where a party "[r]efuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article," the court may prohibit the disobedient party from producing, among other things, testimony.
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion of defendants, 239 East 115th Street Housing Development Fund Corporation and Hope Community, Inc. (239 East) is resolved as follows: • The branch seeking dismissal of plaintiff's complaint as against it is granted; • The branch seeking summary judgment on its claim for contractual indemnification against co-defendant, Original JNS Pizza (JNS), is denied as moot; • The branch seeking penalties against JNS pursuant to CPLR 3126 is denied; and it is further
ORDERED that JNS's cross motion is granted and the complaint and all cross claims against it are dismissed; and it is further
ORDERED that the Clerk is to enter judgment accordingly; and it is further
ORDERED that counsel for 239 East is to serve a copy of order with notice of entry upon all parties within 20 days of entry. This constitutes the decision and order of the Court. Dated: March 12, 2018
/s/_________
Hon. Carol Robinson Edmead, J.S.C