Opinion
13905 Index No. 150844/15 Case No. 2020-02864
05-25-2021
Edward MOLLETTE, Plaintiff–Respondent, v. 111 JOHN REALTY CORP., Defendant–Appellant–Respondent, 7–Eleven, Inc., Defendant–Respondent–Appellant.
Fleischner Potash LLP, New York (Kevin J. McArdle of counsel), for appellant-respondent. Sobel Pevzner, LLC, Huntington (Nicole Licata–McCord of counsel), for respondent-appellant. Paul D. Creinis, L.L.C., Brooklyn (Paul D. Creinis of counsel), for respondent.
Fleischner Potash LLP, New York (Kevin J. McArdle of counsel), for appellant-respondent.
Sobel Pevzner, LLC, Huntington (Nicole Licata–McCord of counsel), for respondent-appellant.
Paul D. Creinis, L.L.C., Brooklyn (Paul D. Creinis of counsel), for respondent.
Renwick, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered June 18, 2020, which denied defendant 111 John Realty Corp.'s motion for summary judgment dismissing the complaint as against it or, in the alternative, for a conditional order of summary judgment on its cross claims for indemnification against defendant 7–Eleven, Inc., and denied 7–Eleven's motion for summary judgment dismissing the complaint and cross claims as against it, unanimously affirmed, without costs.
Plaintiff, a fire inspector for the New York City Fire Department, was injured when he slipped on a staircase leading to the basement of a building owned by John Realty within space leased by 7–Eleven. The court properly denied John Realty's motion for summary judgment because, although it was an out-of-possession landlord and no structural or design defect violating a code is alleged, there is an issue of fact as to whether it was responsible for the creation of the wet condition that caused plaintiff's accident, as its lease with 7–Eleven provided that it had the right to enter the premises to access the electrical, plumbing, and other mechanical and electrical systems located there and to keep them in good repair (see Melendez v. American Airlines, 290 A.D.2d 241, 242, 735 N.Y.S.2d 128 [1st Dept. 2002] ).
The court likewise properly denied 7–Eleven's motion for summary judgment as it failed to satisfy its initial burden of demonstrating lack of constructive notice by submitting evidence of its maintenance activities and inspection of the area prior to the accident, but relied on its employee's vague testimony concerning his last inspection of the area (see Reyes v. Latin Am. Pentecostal Church of God Inc., 181 A.D.3d 459, 121 N.Y.S.3d 26 [1st Dept. 2020] ; Guo Ping Li v. Overseas Partnership Co., Inc., 176 A.D.3d 608, 609, 109 N.Y.S.3d 636 [1st Dept. 2019] ). Plaintiff's testimony concerning the cause of the accident was sufficiently specific and any inconsistencies present issues of fact for the jury.
Given the issues of fact regarding John Realty's and 7–Eleven's negligence, the court also properly denied John Realty's request for a conditional order of summary judgment on its cross claims for contractual and common-law indemnification (see McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 377–378, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011] ; Whitney v. Valentin, 105 A.D.3d 519, 520, 963 N.Y.S.2d 109 [1st Dept. 2013] ).