Opinion
# 2019-049-001 Claim No. 131979 Motion No. M-93074
01-18-2019
ROBIN RECTOR v. THE STATE OF NEW YORK
Law Firm of G. Wesley Simpson, P.C. By: G. Wesley Simpson, Esq. Letitia James, New York State Attorney General By: Lawrence E. Kozar, Assistant Attorney General
Synopsis
Case information
| UID: | 2019-049-001 |
| Claimant(s): | ROBIN RECTOR |
| Claimant short name: | RECTOR |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131979 |
| Motion number(s): | M-93074 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant’s attorney: | Law Firm of G. Wesley Simpson, P.C. By: G. Wesley Simpson, Esq. |
| Defendant’s attorney: | Letitia James, New York State Attorney General By: Lawrence E. Kozar, Assistant Attorney General |
| Third-party defendant’s attorney: | |
| Signature date: | January 18, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In a claim filed September 13, 2018, claimant Robin Rector seeks damages for personal injuries she allegedly sustained to her right knee on September 19, 2016, when she fell descending a stopped escalator from the second to the first floor of the building at 159 East 125th Street, New York 10035 (“Premises” or “Building”), which housed the New York State Department of Motor Vehicles (“DMV”) on the second floor. According to the claim, the steps at the bottom of the escalator were of different height from the rest of the escalator steps, thus causing Rector to trip. The claim further alleges that Rector’s injuries were due to the negligence of defendant State of New York in its “management, control, maintenance, repair, inspection and supervision of the escalator” (Affirmation in Support of Motion to Dismiss of Lawrence E. Kozar, Esq., dated October 25, 2018 [“Kozar Aff”], Ex A).
The State now moves to dismiss the claim pursuant to CPLR 3211. The basis for the motion is defendant’s contention that it does not own the subject Premises and was not responsible for the maintenance or repair of the escalator (Kozar Aff ¶ 4). It supports the motion with the affirmation of counsel and various supporting exhibits. In particular, defendant submits a New York City OASIS block and lot map showing the street location of the Building at 159 East 125th Street, Manhattan, located on the block referred to as 1774 (id.). Also provided are the electronic search results by parcel identifier for block 1774, lot 30, taken from the New York City Department of Finance, Office of the Registrar’s web page (id.). These results reveal that the deed for the Premises was recorded on December 11, 2003, and transferred ownership from Gotham Plaza Associates, LLC to BDG Gotham Plaza, LLC (“BDG”) (id.).
The State also provides portions of a lease agreement between the New York State Commissioner of the Office of General Services and BDG for the Building. It provides, among other things, that DMV shall be the tenant on the entire third floor of the Building (id., Ex B). It also states with regard to “Elevator Service and Building Access” that BDG, as the landlord:
“shall, at its expense, furnish adequate elevator services (i.e., at least two (2) elevators) and access to the Building daily on State business days from 6:00 A.M. to 8:00 P.M. . . . Landlord reserves the right to stop service of the HVAC System or the electrical, plumbing or other Building systems when necessary, by reason of accident or emergency, or for repairs, additions, alterations, replacements or improvements which, in the judgment of the Landlord, are desirable or necessary, until said repairs, alterations, replacements or improvements shall have been completed . . . Landlord agrees to use reasonable efforts to minimize interference with the conduct of Tenant’s business in the Premises in connection with the exercise of Landlord’s rights hereunder” (id., Ex B, ¶ 10 [emphasis added]).
In opposition to the State’s motion, claimant submits an affirmation from counsel, in which claimant argues that, because the State only provided portions of the lease agreement, there may be other lease provisions evidencing that the State had duties and responsibilities relative to the escalator (Affirmation of G. Wesley Simpson, Esq., dated November 23, 2018 [“Simpson Aff”] ¶ 3). Claimant also faults the State’s motion for not providing a certified, or otherwise authenticated, copy of the lease, and claims that the portions of the lease provided only refer to elevators, not escalators, and, therefore, are insufficient to support summary judgment (id. ¶ 4). Claimant further argues that the motion is premature under CPLR 3212(f), since discovery has yet to be completed and information needed to oppose the motion is exclusively in the control of the defendant.
Discussion
Defendant’s motion to dismiss does not indicate the section of 3211 on which it is brought, but given that it is premised on documentary evidence as to the State’s non-ownership of the Premises, I will presume that the motion is made pursuant to CPLR 3211(a)(1) – “a defense founded upon documentary evidence.” Such a motion “may be appropriately granted only where the documentary evidence utterly refutes the [claimant’s] factual allegations, thereby conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]; see also Treeline 1 OCR, LLC v Nassau County Indus. Dev. Agency, 82 AD3d 748, 750 [2d Dept 2011] [same]).
In order to qualify as “documentary,” the evidence must be “unambiguous, authentic, and undeniable” (Mehrhof v Monroe-Woodbury Central School District, 168 AD3d 713 [2d Dept 2019] [internal quotations omitted]). Examples of the types of records that qualify as “documentary” are “documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable” (id. [internal quotation and citation omitted]); see also 150 Broadway N.Y. Associates, L.P. v Bodner, 14 AD3d 1 [1st Dept 2004] [lease qualifies as documentary evidence for purposes of CPLR 3211(a)(1)]).
Here, the portions of the lease submitted by defendant, and the publicly available property records – authenticated by the defendant’s counsel (Kozar Aff ¶ 4) – constitute “documentary evidence” within the meaning of CPLR 3211(a)(1), because they reflect out-of-court transactions concerning the ownership of the Premises by BDG. Those documents show that (1) the State does not own the Building; (2) its lease covered only the third floor as of the time of the incident; (3) BDG is responsible for providing “access to the Building” and has the authority to stop “Building systems”when necessary for repair. Although this section of the lease is entitled “Elevator Service and Building Access”, it is clearly meant to cover all of the “Building systems” - HVAC, electrical, plumbing, and, even though not expressly listed, escalators, which are a Building system and directly related to “Building Access” (Kozar Aff, Ex B ¶ 10; see also Goldenberg v 425 Park-South Tower Corp., 151 AD3d 522, 522 [1st Dept 2017] [where lease unambiguously puts responsibility for maintenance, repair, and replacement on the landlord for all building equipment, it includes all previously installed fixtures and equipment]). This is sufficient to rebut claimant’s allegations that the State’s negligence in controlling or maintaining the escalator was responsible for its stoppage (see Midorimatsu, Inc. v Hui Fat Co., 99 AD3d 680, 682 [2d Dept 2012][lease that “expressly makes the plaintiff responsible for the cost of making structural repairs or alterations” constituted documentary evidence rebutting claim that defendant had such responsibility]).
Claimant has not provided any evidence to refute this proof. The generalized argument by claimant’s counsel that there is a question of fact as to whether the State had any duties or responsibilities concerning the Building’s escalator, and that defendant’s motion should be denied pursuant CPLR 3212(f) until there has been an opportunity to complete discovery, are insufficient to overcome defendant’s showing. Conclusory allegations in a pleading are not sufficient to rebut documentary evidence to the contrary (see Hefter v Elderserve Health, Inc., 134 AD3d 673, 675 [2d Dept 2015]). Moreover, to oppose a dispositive motion prior to the completion of discovery under CPLR 3212(f), it is insufficient for a party to merely offer “hope that evidence sufficient to defeat the motion might be uncovered during the discovery process” (Lamore v Panapoulos, 121 AD3d 863, 864 [2d Dept 2014]; see also Savage v Quinn, 91 AD3d 748, 750 [2d Dept 2012] [same]; Safier v Saggio Restaurant Inc., 151 AD3d 543, 544 [1st Dept 2017] [same]). Indeed, CPLR 3212(f) cannot be used for a “fishing expedition premised upon surmise conjecture and speculation” (Kennerly v Campbell Chain Co., 133 AD2d 669, 670 [2d Dept 1987]; see also Markov v Spectrom Group Intern, Inc., 136 AD3d 413, 414 [1st Dept 2016] [CPLR 3212(f) “may not be used as a means to embark upon a ‘fishing expedition’ to explore the possibility of fashioning a viable cause of action against the [defendant]”]).
Counsel does not point to any factual information that would reasonably support an inference that further discovery will unearth the information sought. The mere hope that claimant will uncover evidence to prove a connection between the defendant and the escalator that could give rise to liability provides no basis under CPLR 3212(f) for postponing a decision in defendant’s favor (see Lamore, 121 AD3d at 864).
Accordingly, it is
ORDERED that defendant’s motion to dismiss, Motion no. M-93074, be granted, and that claim no. 131979 be dismissed.
January 18, 2019
Albany , New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered:
1. Defendant’s Notice of Motion, Affirmation in Support and annexed exhibits.
2. Claimant’s Affirmation in Opposition.