Opinion
13450/05.
Decided June 24, 2008.
Nadia Lescott, Esq., for Plaintiff.
Kevin A. Hickman, Esq., Brian P. Heermance, Esq., for Defendant Burnside Associates.
Michael A. Cardozo, Esq., Corporation Counsel, for Defendant City of New York.
In this consolidated negligence proceeding, Movant herein, Defendant Burnside Associates, LLC, seeks summary judgment, dismissing the Plaintiff's complaint, together with such other and further relief as this Court may deem just and proper.
This case involves personal injury occurring when Plaintiff, on April 30, 2004, tripped and fell in a parking lot located at 2032 Creston Avenue, Bronx County. Plaintiff claims that she sustained serious injury when she fell in a sunken area of asphalt nearby her employer's facility. Plaintiff was employed at the time by St. Barnabas Hospital.
Movant and St. Barnabas Hospital had entered into a triple net lease in which the hospital was obligated to pay all costs, expenses, and charges relating to the operation, maintenance and repair of two parcels encompassing the 18,000 square foot lot. The lease specified the hospital's responsibility for structural and nonstructural repairs; the lease is to expire on March 31, 2010. The owner/lessor Burnside Associates LLC was initially responsible for construction and improvements to convert the parcels to parking usability by the hospital.
In her original complaint, Plaintiff demanded an unspecified amount in damages, for physical injuries and unspecified other losses, from Defendants, including Burnside Associates and her then employer St. Barnabas Hospital. Movant admits owning the lot, but alleges that it did not retain control over it, but rather was an out-of-possession landlord. Defendant Burnside Associates seeks summary judgment upon the issue of whether its status as an out-of-possession landlord bars liability for Plaintiff's injuries as a matter of law.
Plaintiff's claims against her employer, St. Barnabas Hospital, were dismissed because Plaintiff's action was barred by the exclusivity provisions of Worker's Compensation Law § 11.
Plaintiff opposes summary judgment arguing that an out-of-possession landlord who, as here, reserves the right of reentry onto property for inspection purposes retains sufficient control to impose liability for injuries caused by a dangerous condition arising from a structural defect (see, Couluris v. Harbor Boat Realty, Inc. , 31 AD3d 686 [2nd Dept. 2006]).
In reply, Movant counters that Plaintiff failed to show that Defendant retained a right of inspection and (emphasis added) repair, or that a statue or regulation imposed a duty upon Burnside Associates that could result in liability in this matter (see generally, Davis v. HSS Properties Corp. ,1 AD3d 153 [1st Dept. 2003]). Further, the lessee (St. Barnabas Hospital), who has been dismissed as a party, had the sole responsibility to repair the parking lot under the leasehold.
Legal Discussion
A summary judgment motion must be granted if, upon all the papers and proof submitted, a movant establishes that a plaintiff has no cause of action and a court is warranted, as a matter of law, to direct judgment in the movant's favor. Notwithstanding, a summary judgment motion must be denied where a party shows facts sufficient to require a trial of any factual issue (see, Lan Duong v. City University, 150 AD2d 349 [2nd Dept. 1989]). In determining the instant motion, the evidence must be viewed in a light most favorable to the nonmoving parties and least favorable to the movant (see generally, Glennon v. Mayo, 148 AD2d 580 [2nd Dept. 1989]).
Liability against a defendant landowner may be predicated only upon the owner's possession and control of the premises (see, Butler v. Rafferty, 100 NY2d 265). An out-of-possession owner who did not create an unsafe condition will not be liable for injuries that occur on the premises unless it has either retained control over the premises or is otherwise contractually or statutorily obligated to maintain and repair the property (see, Negron v. Rodriguez Rodriquez Storage Warehouse, Inc. ,23 AD3d 159 [1st Dept. 2005])
There are exceptions to the general rule that an out-of-possession landlord is not generally liable for injuries that occur on the premises. Among them is that an out-of-possession landlord may be found liable for failure to repair a dangerous condition on leased premises if the landlord: (1) assumes a duty to make repairs; and (2) reserves the right to enter to inspect or to make such repairs (see, McDonald v. Riverbay Corp., 308 AD2d 345 [1st Dept. 2003])
Movant asks the Court to find a distinction between the right to inspect and the right to repair (see, Dallas v. ZCWK Associates, LP, 287 AD2d 304 [1st Dept. 2001] [right to inspect and right of reentry for structural repairs existed, but not liability for negligent maintenance of tenant's store room floor]). Defendant argues that an out-of-possession landlord must retain the right to re-enter for both inspection and (emphasis added) repair in order to be charged with constructive notice of the defect (see, Wiesen v. Moppa, 199 AD2d 312 [2nd Dept. 1993]). The Court disagrees.
In this case, where the right of inspection normally required a two day notice, an emergency waiver provision of the lease indicates something more than passive inspection. Even with the lease's repair provision running to St. Barnabas Hospital, there can be no explanation other than the owner/lessor envisioned situations where Defendant would need to exercise the emergency right to enter. From that provision, an inference arises that such extraordinary power inherently carries with it a concomitant obligation to repair. The lease provision(s) must be viewed also in light of the construction and improvements that the lessor was initially obligated to undertake for the lessee in converting the parcels into a parking lot. The Court finds that Movant here is in the same position as an owner/lessor that retains both the right to inspect and repair. Obviously, there is a factual issue concerning whether Movant itself created the unsafe condition (see generally, Negron v. Rodriguez Rodriquez Storage Warehouse, Inc. ,23 AD3d 159 [1st Dept. 2005])
This situation is different from that considered by the First Department in Canela v. Foodway Supermarket, 188 AD2d 416 (1st Dept. 1992). In that case, a landlord who retained a right of reentry for inspection without any affirmative obligation to repair was not liable for a subsequently arising dangerous condition where the condition arose from a piece of lawful equipment that the tenant installed.
Plaintiff failed to cite an Administrative Code or other statutory or regulatory provision that imposes a repair obligation upon Movant. Therefore, the exception discussed in Couluris v. Harbor Boat Realty, Inc. ,31 AD3d 686 (2nd Dept. 2006) (exception where a specific statutory violation exists and there is a significant structural or design defect) is not applicable here.
Conclusion
Upon consideration of the entire record, and viewing the evidence in a light most favorable to the nonmoving party, it is determined that the evidence does not support Defendants' summary judgment motion. Plaintiff adequately rebuts Defendants' case to the extent that she has shown that certain factual issues remain concerning the nature of the condition in the parking lot that caused her injury. Further, Plaintiff shows that the lease agreement between Burnside Associates and the hospital gave Defendant something more then a right to enter to inspect the property. Therefore, Defendant Burnside Associates' summary judgment motion is denied; there is no other conclusion except that issues of fact remain to be decided herein.
Summary judgment should not be granted, unless there is no doubt as to the absence of triable issues (see, Andre v. Pomeroy, 35 NY2d 361). Under the circumstances, summary judgment in any party's favor is not appropriate. Factual issues remain. Clearly, various inferences can reasonably be drawn from the current record and that record must be viewed in the best light for the nonmoving party.
BASED UPON THE FOREGOING, it is
ORDERED that Defendant Burnside Associates' motion, pursuant to CPLR Rule 3212, for an Order granting summary judgment and dismissal of the complaint as a matter of law is DENIED.
The foregoing constitutes the decision and order of this Court. Dated: Bronx, New York