Opinion
INDEX NO. 159909/2016
09-18-2019
LAURA PETTINATO, DUSTIN FISHLER, Plaintiff, v. EQR-RIVERTOWER, LLC,EQR-RIVERTOWER A, LLC,EQR-RIVERTOWER B, LLC,EQR-RIVERTOWER C, LLC,EQR-RIVERTOWER D, LLC,EQR-RIVERTOWER E, LLC,RIVER TOWER OWNER, LLC,OLDCASTLE BUILDINGENVELOPE, INC. Defendants.
NYSCEF DOC. NO. 144 PRESENT: HON. ARLENE P. BLUTH Justice MOTION DATE N/A MOTION SEQ. NO. 003
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141 were read on this motion to/for DISMISSAL.
The motion by defendants EQR Rivertower LLC, EQR-Rivertower, LLC, EQR-Rivertower B, LLC, EQR Rivertower C, LLC, EQR-Rivertower D, LLC, EQR-Rivertower E, LLC (collectively, "EQR") to dismiss plaintiff's complaint and all cross-claims against it is denied.
Background
This personal injury arises out of an accident that occurred when plaintiff slipped and fell on a shower door enclosure in her apartment. EQR claims that it is the prior owner of the premises and that it sold the property in January 2016, nearly two months before plaintiff's accident in March. EQR also points out that the contract selling the premises to defendant River Tower Owner, LLC ("River Tower') contained as an "as is" clause. This provision, according to EQR, eliminates any possibly that EQR could be held liable.
In opposition, River Tower claims that a prior owner may face liability for a dangerous condition if the condition existed at the time the property was sold and the new owner did not have a reasonable time to discovery and fix the problem. Plaintiff also opposes and asserts that 48 days (the time between when the property was sold and plaintiff's accident) was not enough time for River Tower to examine the more than 300 units in the premises.
Discussion
"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]).
"While liability for a dangerous condition on land generally does not extend to a prior owner, a narrow exception exists where the condition existed at the time of the conveyance and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known. Further, where the prior owner does not disclose a dangerous condition, and the new owner has no knowledge of it, liability remains with the [prior owner] until the [new owner] has had a reasonable time to discover and remedy it" (Gramazio v 370 Lexington Ave., L.L.C., 40 AD3d 303, 304, 836 NYS2d 84 [1st Dept 2007] [internal quotations and citations omitted]).
Here, there is an issue of fact with respect to whether River Tower had a reasonable time to inspect and discover the alleged dangerous condition (the sharp shower/worn bathtub track). The Court is unable to find as a matter of law that less than two months was enough time for River Tower (see e.g., Brown v O'Connor, 193 AD2d 1088, 1088, 598 NYS2d 629 [4th Dept 1993] [finding an issue of fact as to whether 52 days was enough for a new owner to discover an alleged defect]). The presence of the "as is" clause has no bearing on EQR's potential liability to plaintiff.
The Court also denies EQR's motion to the extent it seeks to dismiss the cross-claims asserted against it. "In contractual indemnification, the one seeking indemnity need only establish that it was free from negligence . . . Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant" (Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65, 693 NYS2d 596 [1st Dept 1999]).
"Common-law indemnification is predicated on vicarious liability, which necessitates that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefits of the doctrine" (Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364, 367 [1st Dept 2006] [internal quotations and citations omitted]). "[I]n the case of common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident" (Correia, 259 AD2d at 65). Here, there has been no finding that EQR was free of negligence and, therefore, it is not entitled to dismissal of these claims.
The Court also observes that EQR failed to cite any binding case law holding that the presence of an "as is" clause completely insulates it from liability. "It is settled that the law frowns upon contracts intended to exculpate a party from the consequences of his own negligence and ... such agreements are subject to close judicial scrutiny. Unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts" (Sweeney v Hertz Corp., 292 AD2d 286, 288, 740 NYS2d 19 [1st Dept 2002] [internal quotations and citations omitted]).
The "as is" clause at issue here does not unmistakably state that EQR was purporting to contract away its own negligence; rather, it is a standard contractual provision. The Court observes that this clause, when included while selling property, "generally extinguishes claims for after-discovered defects or breakdowns" (see Caldwell v 302 Convent Ave. Hous. Dev. Fund Corp., 272 AD2d 112, 114, 707 NYS2d 423 [1st Dept 2000] [internal quotations and citation omitted]). "Claims" usually refers to the ability of the new owner to seek compensation for repairs it makes for conditions discovered after title has passed. For instance, if the new owner finds out after purchasing the property that it has to fix the roof, it cannot seek reimbursement from the prior owner if there was an "as is" clause (assuming, of course, that this condition was not fraudulently concealed). However, the Court cannot interpret an "as is" clause to mean that the new owner accepts liability for a prior owner's negligence—that is simply too broad a reading of this provision.
Accordingly, it is hereby
ORDERED that the motion by defendants EQR Rivertower LLC, EQR-Rivertower, LLC, EQR-Rivertower B, LLC, EQR Rivertower C, LLC, EQR-Rivertower D, LLC, EQR-Rivertower E, LLC is denied.
Next Conference: December 17, 2019 at 2:15 p.m. 9/18/19
DATE
/s/ _________
ARLENE P. BLUTH, J.S.C.