Opinion
Index No. 903915-19, Index No. 90391
05-04-2021
David MAZZEO, as Administrator of the Goods, Chattels and Credits of Paula Mazzeo, Plaintiffs, v. The LATHAM FOUR PARTNERSHIP, Charles L. Touhey and Avion Management Corporation, Defendants.
Law Office of Patrick Sorsby, Attorney for Plaintiff, 1568 Central Avenue, Albany, New York 12208 O'Connor, O'Connor, Bresee & First, P.C., Elizabeth J. Grogan, Esq. of Counsel, Attorneys for Defendants, 20 Corporate Woods Boulevard, Albany, New York 12211
Law Office of Patrick Sorsby, Attorney for Plaintiff, 1568 Central Avenue, Albany, New York 12208
O'Connor, O'Connor, Bresee & First, P.C., Elizabeth J. Grogan, Esq. of Counsel, Attorneys for Defendants, 20 Corporate Woods Boulevard, Albany, New York 12211
Denise A. Hartman, J.
Plaintiff David Mazzeo, as Administrator of the Estate of Paula Mazzeo, brings this wrongful death litigation against defendants The Latham Four Partnership, Charles L. Touhey, and Avion Management Corporation, claiming that defendants negligently caused the death of the decedent Paula Mazzeo (hereinafter decedent) by failing to prevent her from staying overnight in an unheated self-storage unit that she rented from them. Defendants move for summary judgment dismissing plaintiff's complaint on the ground that they had no duty to protect decedent from the harms that befell her and that decedent's actions were the sole proximate cause of her demise. Plaintiff opposes and cross-moves for partial summary judgment seeking dismissal of defendants’ affirmative defense of comparative negligence.
For the reasons that follow, defendants’ motion is granted, plaintiff's cross motion is denied, and the complaint is hereby dismissed.
Background
Decedent Paula Mazzeo rented an unheated storage unit at a self-storage facility located at 1750 Central Avenue, Albany, New York. The storage facility was owned by defendant The Latham Four Partnership and operated by defendants Avion Management Corporation. On the morning of January 14, 2018, decedent was found deceased on the floor of her storage unit. The door to the storage unit was partially open, with a portion of decedent's body visible. The autopsy report lists the cause of death as cardiac arrhythmia due to seizure disorder and possible hypothermia. A toxicology report shows that the alcohol content of decedent's vitreous fluid was .30% and her blood alcohol content was .16%.
On July 1, 2019, plaintiff commenced this wrongful death action against The Latham Four Partnership, Charles L. Touhey, and Spareroom LLC. Defendants The Latham Four Partnership and Charles L. Touhey answered, and defendant Spare Room, LLC moved to dismiss the claims against it. On December 20, 2019, the Court granted defendant Spare Room, LLC's motion to dismiss. Pursuant to stipulation among the parties, on or about January 20, 2020, plaintiff filed and served an amended complaint adding Avion Management Corporation as a party defendant. On or about January 28, 2020, defendants The Latham Four Partnership, Charles L. Touhey, and Avion Management Corporation (hereinafter referred to collectively as defendants) answered the amended complaint.
Plaintiff alleges in the amended complaint as follows: Defendants, as owners and operators of the storage unit facility, breached their duty to maintain the facility in a reasonably safe condition; defendants had actual or constructive notice that decedent had been living in her storage unit; habitation of an unheated storage unit is an inherently dangerous condition; defendants breached their duty by failing to act as a reasonably prudent property owner would under similar circumstances by canceling decedent's lease agreement and removing her from the premises; and decedent's death in her storage unit, after prolonged exposure to the extreme cold, was foreseeable. Plaintiff also asserts a claim of negligence per se, alleging that defendants allowed decedent to live in her unheated storage unit in violation of New York State Housing Code and State law. Plaintiff's bill of particulars elaborates on the negligence per se claim, asserting more specifically that defendants violated provisions governing certificates of occupancy, property maintenance, unsafe structures and equipment, and structures unfit for human occupancy in the New York State Uniform Fire Prevention and Building Code.
Discovery is complete and plaintiff has filed note of issue. Defendants move for summary judgment dismissing the complaint. Defendants argue that they did not breach any duty to decedent. And in any event, they argue, decedent's own reckless behavior broke the chain of causation, superseding any alleged negligence on the part of defendants. Defendants further argue that a violation of the New York State Uniform Fire Prevention and Building Code, a set of regulations promulgated by the State Fire Prevention and Building Code Council pursuant to article 18 of the Executive Law ( see 19 NYCRR 1219 et seq.), does not constitute negligence per se.
Plaintiff in opposition acknowledges that "only a violation of state law can form the basis of negligence per se" and instead argues that "[a] violation of applicable building code may be evidence of negligence, but does not constitute negligence per se," citing Elliott v City of New York (95 NY2d 730 [2001] ). Plaintiff's claim of negligence per se is therefore dismissed as abandoned.
Plaintiff opposes the motion and cross-moves for partial summary judgment dismissing defendants’ affirmative defense of comparative negligence. Plaintiff argues that defendants, as owners of the storage unit facility, had a duty to maintain the property in a reasonably safe condition and that habitation of an unheated storage unit is an inherently dangerous condition. Plaintiff contends that defendants knew or should have known that decedent was living in her storage unit. Defendants had previously taken steps to limit her access to the unit to daytime hours and to evict her from the facility, but abandoned eviction proceedings approximately two months before her death after decedent promised not to be present in the storage unit after hours and stated her intent to vacate the storage unit. Plaintiff argues that, under the circumstances, defendants had a duty to take reasonable steps to ensure that decedent was not staying in her unheated storage unit overnight during freezing winter weather. And that, as owner and operator of the facility, defendants "were in the best position to prevent [decedent's] death because they had the least onerous means to eliminate the danger of her living in her unit" by, at a minimum, locking her storage unit.
Defendants have produced the following evidence in support of their summary judgment motion. In August 2016, decedent leased a storage unit from The Latham Four Partnership d/b/a Spare Room, located at 1750 Central Avenue, Colonie, New York. In leasing the unit, decedent signed two separate lease agreements, dated August 20, 2016 and May 4, 2017. Each agreement contained a provision forbidding use of the storage unit for residential purposes: "The unit is for the storage of personal property only and may not be used for residential purposes or live animals." Under the lease terms, decedent had access to her storage unit and its contents from 7:00 a.m. to 9:00 p.m. Decedent could access the facility during business hours through an open pedestrian entrance and after hours by using her access code to enter through a locked vehicle gate.
On January 14, 2018, decedent was found dead inside her storage unit. According to the employee who found her, the unit door was open approximately two feet and her head was visible from the outside. Police and EMS responded to the scene, but decedent's body was frozen, and no attempts were made to revive her. The police report and autopsy report noted no signs of trauma. Next to her body, police found two empty bottles of gin. According to the toxicologist report, decedent had a blood alcohol content of .16% and a vitreous alcohol content of .30%. The autopsy report and death certificate list as cause of death cardiac arrhythmia, with possible hypothermia as one of the other significant conditions contributing to death.
Plaintiff argues that defendants had a duty to decedent to take steps to prevent this tragedy because they had actual or constructive notice that she was staying in her unheated storage unit overnight and posit facts gleaned from discovery in support of their argument. For purposes of this motion, defendants do not dispute the factual allegations indicating that they knew or should have known that decedent was staying overnight in her unheated storage unit.
In November 2016, the manager of the storage facility revoked decedent's access to her storage unit for several days until she was able to discuss with decedent the management's suspicion that she was staying in her unit overnight in violation of the storage unit lease agreement. The manager told decedent that, if this behavior continued, defendants would ask her to vacate her unit, and management would be monitoring "her punch in activity daily." After their conversation, the manager again permitted decedent access to her storage unit pursuant to the lease agreement.
On September 8, 2017, another tenant at the storage facility informed the manager that decedent was inside her storage unit with candles lit. And on October 19, 2017 the Colonie Police Department informed the manager that they had received a report that decedent was sleeping in her storage unit. As a result, from October 20, 2017 until November 1, 2017, defendants restricted decedent's access to her storage unit to daytime hours. The manager physically locked decedent's storage unit when she left for the day at 5:00 p.m. and unlocked it again the next morning. On the evening of November 1, 2017, when the manager asked decedent to leave, decedent belligerently refused. The manager told decedent that if she stayed in the unit overnight, she would begin the eviction process in the morning. On November 3, 2017, the manager printed an eviction notice, but withheld service when decedent came to the office and assured the manager that she would not be in the facility after hours and would voluntarily vacate her unit.
On January 12, 2018 at approximately 8:00 a.m., the manager saw decedent in her storage unit with the door partly open. When the manager left that day, the door appeared shut. On the morning of January 13, 2018, another employee of defendants noticed that decedent's storage unit was closed, but when she left later that day it was open a couple of feet. The temperature at 4:00 p.m. on January 13, 2018 was 17 degrees Fahrenheit. Upon arriving at the facility on the morning of January 14, 2018, the employee discovered decedent's frozen body beneath the partially open door. In spite of the cold, decedent was wearing a tank top and stretch pants. Plaintiff contends this is evidence that she was suffered hypothermia, as "paradoxical undress" is one of the final stages of hypothermia.
Plaintiff contends that decedent was unable to perceive the risks associated with her behavior due to mental illness. According to plaintiff, decedent was diagnosed in her thirties with schizoaffective disorder, bipolar type. In spite of her diagnosis, she became a registered nurse. Her condition was progressive, and her cognition deteriorated over time. Decedent was prescribed lithium, among other drugs, to manage her schizoaffective disorder. She had a history of noncompliance with her medications. When she stopped taking her lithium, she mentally decompensated, resulting in psychiatric hospitalizations occurring in May 2016 and May 2017. Decedent's toxicology report indicates that she did not have lithium in her system at the time of her death. Plaintiff submitted sworn affidavits from two psychiatrists, both of whom opined that decedent was not taking her prescribed lithium in the days preceding her death and, as a result, she would have been in a decompensated state that would have prevented her from perceiving the risks or dangers associated with her behaviors and surroundings, or exercising the free judgment necessary to avoid such risks. Plaintiff adduced no evidence, however, that defendants had knowledge of the decedent's mental health diagnosis or history.
Analysis
"On a motion for summary judgment, the movant has the initial burden to establish its prima facie entitlement to summary judgment as a matter of law by submitting evidentiary proof in admissible form, demonstrating the absence of any material issues of fact" ( Reed v New York State Elec. & Gas Corp. , 183 AD3d 1207, 1209-1210 [3d Dept 2020] [internal quotation marks and citations omitted]; see CPLR 3212 ; Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Matter of Martirano , 172 AD3d 1610, 1612 [3d Dept 2019] ). If the movant satisfies this burden, the burden shifts to the nonmovant to demonstrate the existence of triable issue of fact ( see id. ; Aretakis v Cole's Collision , 165 AD3d 1458, 1459 [3d Dept 2018] ). "[The Court] must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" ( Reed v New York State Elec. & Gas Corp. , 183 AD3d at 1210 [internal quotation marks and citations omitted]; accord Aretakis v Cole's Collision , 165 AD3d at 1459 ).
In order to prevail on a negligence claim, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" ( Pasternack v Laboratory Corp. of Am. Holdings , 27 NY3d 817, 825 [2016], rearg denied 28 NY3d 956 [2016] [internal quotations marks and citations omitted]). "In the absence of a duty, as a matter of law, there can be no liability" ( id. ; see Lauer v City of New York , 95 NY2d 95, 100 [2000] ["(w)ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm"]). The definition and scope of an alleged tortfeasor's duty owed to a plaintiff is a question of law ( see Palka v Servicemaster Mgt. Servs. Corp. , 83 NY2d 579, 585 [1994] ). The courts "fix the duty point by balancing factors, including the reasonable expectations of the parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability" ( Pasternack v Laboratory Corp. of Am. Holdings , 27 NY3d at 825 [internal quotation marks, brackets and citations omitted]).
Defendants Had No Duty to Protect Plaintiff from Harm Due to Exposure to Ambient Weather Conditions.
In Basso v Miller (40 NY2d 233 [1976] ), the Court of Appeals eliminated the rule that an injured party's status determines the scope of a landowner's duty, holding instead that a landowner has a general duty to " ‘act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ " ( Peralta v Henriquez , 100 NY2d 139, 144 [2003], quoting Basso v Miller , 40 NY2d at 241 [brackets omitted]; see Desroches v Heritage Bldrs. Group, LLC , 187 AD3d 1369, 1370 [3d Dept 2020] ; Taylor v Lands End Realty Corp. , 93 AD3d 1062, 1063 [3d Dept 2012] ). But Basso v Miller's elimination of the common-law categories does not mean that every case involving an injury on private property raises a question for the jury's consideration ( see Scurti v City of New York , 40 NY2d 433 ). And while foreseeability is a major factor in determining the scope of a landowner's duty ( see Desroches v Heritage Builders Group, LLC , 187 AD3d at 1370-1371 ), the concepts are not identical, and courts continue to serve a gatekeeper's role in weighing the policy factors related to the finding of duty as a threshold matter ( see Pink v Rome Youth Hockey Assn., Inc. , 28 NY3d 994, 997-998 [2016] ; Pulka v Edelman , 40 NY2d 781, 785-786 [1976], rearg denied 41 NY2d 901 [1977] ; Drake v Sagbolt, LLC , 112 AD3d 1132, 1133 [3d Dept 2013] ; Rothbard v Colgate Univ., 235 AD2d 675 [3d Dept 1997] ).
Defendants’ contract with decedent for leasing the storage unit did not give rise to a duty to protect decedent from the activities that allegedly led to her death — either by locking her out of the unit or by making the storage unit habitable and compliant with residential building codes. The intended purpose of the unheated storage unit was to store personal property only, and plaintiff does not allege that the unit was in any way defective for its intended purpose. The storage unit lease agreements, signed by decedent, unequivocally provided that the storage unit was not to be used for human habitation. And decedent was repeatedly told that the storage unit was not to be used for residential purposes or for overnight stays. During the latest incident in November 2017, defendants directed decedent to cease using the storage unit for residential purposes and advised her that they would be initiating eviction proceedings because she was breaking the terms of the lease. And when threatened with lockout and eviction, decedent agreed that she would no longer stay in the storage unit and stated that she intended to vacate the premises. But while the lease agreements gave defendants the right to lock out and evict decedent for violating the terms of the contract, they did not create a duty for defendants to take such actions.
Nor did defendants have a duty generally as landowners to supervise decedent, to monitor her comings and goings, to remove her from the premises, or to undertake other measures to prevent her from engaging in unauthorized conduct that created a risk to herself ( see Slater v Hitchcock , 276 AD2d 998, 999-1000 [3d Dept 2000] ). The weather in Albany, New York is an ambient condition observable by all. The risks of exposure on a frigid January night in Albany are observable by all. And, to the extent that substance abuse and mental illness contributed to her actions, such circumstances did not create a duty for the property owners to protect her from the elements. Where there is nothing inherently defective or dangerous in the property itself, it would constitute an unreasonable burden on landowners to impose liability on them for the death or injury to persons who subject themselves to risks of exposure to the elements while on the landowner's property.
Macey v Truman (70 NY2d 918 [1987] ) is instructive. There, the landowner defendant authorized the plaintiff and his companion to enter his land to cut certain trees which had been marked for removal to build plaintiff's log cabin. Plaintiff was injured when a tree fell on him while he and his companion attempted to dislodge one of the marked trees. The Court recited the rule from Basso v Miller : "A landowner owes a duty to another on his land to keep it in a reasonably safe condition, considering all of the circumstances including the purpose of the person's presence and the likelihood of injury" ( Macey v Truman , 70 NY2d at 919 ). The Court observed that the injury to the tree-feller "resulted not from any unsafe condition defendant left uncorrected on his land, but as a direct result of the course plaintiff and his companions decided to pursue in attempting to dislodge the marked tree" ( id. ). Under these circumstances, the Court held, "the law imposed no duty on defendant as landowner to protect plaintiff from the unfortunate consequences of his own actions" ( id. ).
Rothbard v Colgate University (235 AD2d 675 [3d Dept 1997] ), cited by defendants, is also illustrative. There, plaintiff sued the university and owner of a fraternity house after he fell from a portico over the entrance to the fraternity house. The portico abutted the window of his second-floor room. Plaintiff was found on the ground below the portico in the early morning hours, unconscious and bleeding, with blood alcohol content of .18%. The Court reasoned that colleges generally have "no legal duty to shield their students from their own dangerous activity which creates a risk of harm to themselves" ( Rothbard v Colgate Univ. , 235 AD2d at 676 ). And the Court rejected plaintiff's contention that the university assumed a duty to plaintiff by providing a student handbook, writing, "plaintiff was not a young child in need of constant and close supervision; he was an adult, responsible for his own conduct" ( id. ). Likewise, the Court held, there was "no basis to impose upon the owner of the fraternity house the legal duty to affirmatively supervise plaintiff, an adult, and prevent him from engaging in conduct that creates a risk of harm to himself" ( id. at 677 ).
The Court held that the owner of the fraternity house could, however, be held liable for failing to maintain the fraternity house in a reasonably safe condition, and found a question of fact about whether the absence of window safety stops created an unreasonably dangerous condition ( see Rothbard v Colgate Univ., 235 AD2d at 677-678 ).
As in Macey v Truman and Rothbard v Colgate University , plaintiff was an adult who created her own risk of harm; the risk was not created by any defect or danger on the property itself. Without a defective or dangerous condition, defendants had no duty to supervise her comings and goings at the storage facility, or to prevent her unauthorized use of the premises and protect her from the harm caused by exposure to frigid temperatures — an open and obvious risk on a mid-January night in Albany ( see Slater v Hitchcock , 276 AD2d 999-1000 [holding defendant had no "duty to warn against a condition that is readily observable by the reasonable use of one's senses"] [internal quotation marks and citation omitted]; see Jarvis v Eastman , 202 AD2d 826, 828 [3d Dept 1994] ). And, even if defendants knew or should have known that decedent may have been staying overnight in an unheated storage unit on a freezing night in upstate New York — the danger was of her own creation, not that of the property owner ( compare O'Neill v Ithaca Coll. , 56 AD3d 869, 871-872 [3d Dept 2008] ; with Oja v Grand Ch. of Theta Chi Fraternity , 255 AD2d 781,781-782 [3d Dept 1998] ; see also Rothbard v Colgate Univ., 235 AD2d at 677 ). While plaintiff contends that decedent was mentally ill and unable to appreciate the risk of her environment, there is no evidence that defendants were aware of her diagnosis or her mental state in the days leading up to her death. In any event, defendants would have had no duty even if they knew of such mental illness.
Recent Third Department decisions denying summary judgment where plaintiffs alleged that landowners negligently failed to protect unauthorized persons from dangerous conditions on their property are distinguishable. In Desroches v Heritage Builders Group, LLC (187 AD3d 1369 [3d Dept 2020] ), the Court held that the defendant landowner could be held liable for injuries sustained by an unauthorized, intoxicated person who fell through an opening in the second floor of a house that was under construction. In Lathers v Denero (155 AD3d 1174 [3d Dept 2017] ), the Court held the defendant landowner potentially liable for injuries that occurred at an uncontrolled party arranged by the defendants’ son on their vacant property. In both cases, the Third Department held that the question of the landowner's duty rested on foreseeability, a factual question to be decided by the jury. And in both cases, the plaintiffs alleged that the landowner created the dangerous condition. But "foreseeability and duty are not identical concepts" ( Pink v Rome Youth Hockey Assn., Inc. , 28 NY3d 994, 998 [2016] [internal quotation marks and citations omitted]). And the result would be different if, for example, the intoxicated plaintiff in Desroches had suffered hypothermia due to exposure to the cold after passing out in the unfinished building, instead of falling through the dangerous opening in the floor of the unfinished building. In other words, without a dangerous condition inherent in their property, it would require an expansion of the landowners’ duty to impose upon landowners a further duty to protect unauthorized persons on their property from the risks of exposure to ambient, mid-January temperatures in upstate New York.
This Court declines to expand the existing caselaw to impose a duty on the landowner defendants in this case so as to require them "to protect plaintiff from the unfortunate consequences of [her] own actions" ( Macey v Truman , 70 NY2d at 919 ). Doing so would impose upon landowners too great of a burden — one that would require landowners to step into the role of parens patriae and take affirmative steps to protect the welfare of compromised or homeless adults harmed by exposure to frigid weather, or other risks the landowners did not create. The nature of such duty would be too amorphous: Would it entail a duty to lock the individual out of the property? To physically remove her from the property? To call law enforcement authorities to have her removed from the property? To seek help from service agencies to protect her from her compromised capacity for decision-making? To some, defendants may have had a moral duty to try to protect decedent from her own risky behavior. But in this Court's view, defendants did not have a legal duty to do so.
Defendants’ Actions Were Not the Proximate Cause of Decedent's Demise.
Having found no duty, the Court need not address the proximate cause issue. In any event, in this case, the proximate cause analysis is the flip side of the duty analysis. Defendants owed no duty to decedent because the tragic consequences that decedent suffered were the result of her own agency. In other words, assuming for purposes of this motion that decedent died from exposure to freezing temperatures, defendants’ actions did not cause her death. Whether she was compromised by alcohol or mental illness, or not, it would be speculative for any factfinder to conclude that evicting decedent or locking her out of the storage unit — when she apparently lacked shelter — would have prevented her death from exposure to the elements. In short, decedent's own actions were the proximate cause of her death.
Plaintiff's Cross Motion to Dismiss Defendants’ Affirmative Defense of Comparative Negligence Is Denied.
Finally, even if plaintiff's cause of action were to survive defendants’ motion for summary judgment motion, decedent's own actions were at the very least a proximate cause of her demise. Plaintiff's cross motion to dismiss defendants’ affirmative defense of comparative negligence is therefore denied.
Accordingly, it is
Ordered and Adjudged that defendants’ motion for summary judgment is granted; and it is
Ordered and Adjudged that plaintiff's cross motion for partial summary judgment is denied; and it is
Ordered and Adjudged that the complaint is hereby dismissed.
This constitutes the decision and judgment of the Court. The original decision and judgment is being uploaded to NYSCEF. The signing of this decision and judgment does not constitute entry or filing under CPLR 2220 or 5016 and counsel is not relieved from the applicable provisions of the rules respecting filing and service.
Papers Considered
1. Notice of Motion, dated December 28, 2020;
2. Attorney Affirmation of Elizabeth J. Grogan, Esq., dated December 28, 2020, with Exhibits A-T;
3. Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, dated December 28, 2020;
4. Plaintiff's Memorandum of Law in Opposition, dated January 23, 2021;
5. Notice of Cross Motion, dated January 29, 2018 [sic];
6. Plaintiff's Memorandum of Law in Support of Cross Motion, dated January 29, 2021;
7. Affirmation in Opposition to Summary Judgment and In Support of Plaintiff's Motion to Dismiss Affirmative Defense, dated January 29, 2018 [sic], with Exhibits 1-43;
8. Material Statement of Facts in Opposition, dated January 29, 2018 [sic];
9. Attorney Affirmation of Elizabeth J. Grogan, Esq. in Reply, dated February 22, 2021;
10. Response to Plaintiff's Material Statement of Facts in Opposition; dated February 22, 2021;
11. Attorney Affirmation of Elizabeth J. Grogan, Esq. in Opposition, dated February 22, 2021, with Exhibit A;
12. Affirmation of Robert L. Weisman, D.O., dated February 18, 2021, with Exhibit A;
13. Memorandum of Law in Opposition to Plaintiff's Cross Motion for Partial Summary Judgment, dated February 22, 2021.