Opinion
26685/2003.
Decided March 5, 2008.
Defendants, RJM ABRAMSON FAMILY LIMITED PARTNERSHIP (referred to herein as RJM) and GLAZER-GARAY ESTATE PROPERTIES, move for summary judgment dismissing the action and any cross claims as against them, and for related relief.
Introductory Facts
This is an action to recover for personal injuries allegedly sustained by Plaintiff, ANTONIO ROJO, a Coca Cola delivery man, at about 8:30 A.M., on July 2, 2002. Defendant, 35 WEST 64th STREET ASSOCIATES, LP, s/h/a PICHOLINE RESTAURANT CORP., and BRENNAN RESTAURANT GROUP, INC., (referred to herein as PICHOLINE RESTAURANT), is the tenant who operated a restaurant on premises leased from the owner, Defendant, RJM ABRAMSON FAMILY LIMITED PARTNERSHIP. Defendant, GLAZER-GARAY ESTATE PROPERTIES, was the former owner of the premises. Only Defendant PICHOLINE RESTAURANT opposes that part of the instant motion relating to Defendant RJM; Plaintiff does not oppose this motion.
Plaintiff, ELIZABETH ROJO, is ANTONIO ROJO `s wife, and asserts a cause of action for loss of services ( See Complaint).
( See Plaintiff's Bill of Particulars).
( See Answers).
( See Polish Aff, dated May 3, 2007). That part of the motion which seeks dismissal as to Defendant, GLAZER-GARAY ESTATE PROPERTIES, the former owner, is not opposed, and so it is granted without opposition.
Plaintiff, ANTONIO ROJO, alleges that his accident occurred when he was making a delivery to PICHOLINE RESTAURANT, while he was descending the steps of the service entrance with his hand truck loaded with six boxes of Coca Cola syrup. At the third or fourth step going down, the wheels of his hand truck hit a hose, causing the boxes to lurch forward. As he moved to grasp the boxes, Plaintiff sustained injuries, including a lumbar disc herniation. Plaintiff testified that the stairs and sidewalk were a little wet, and so he thought that PICHOLINE might have just cleaned them.
(Plaintiff EBT, p. 73-81).
( See Plaintiff's Bill of Particulars).
(Plaintiff EBT, p. 79-80).
Negligence Standards
We have consistently held that in order for a plaintiff to establish a prima facie case of negligence, he or she must show that the . . . foreign substance was "present under circumstances sufficient to charge the defendant with responsibility therefor" (Goodman v 78 W. 47th Corp., 253 AD2d 384, 386, 677 NYS2d 116 [1998] [internal quotation marks and citations omitted]; see Lewis v Metro. Transp. Auth., 99 AD2d 246, 250, 472 NYS2d 368 [1984], affd 64 NY2d 670, 474 NE2d 612, 485 NYS2d 252 [1984]). In other words, we have required proof that the defendant either had actual or constructive knowledge of the dangerous condition or proof that defendant caused the condition to be created. Thus, we have rejected mere speculation as inadequate to sustain the cause of action (Segretti v Shorenstein Co., E., L.P., 256 AD2d 234, 682 NYS2d 176 [1998]). [emphasis added]
Acevedo v. York Intl. Corp. , 31 AD3d 255 (1st Dept. 2006).
Discussion
Defendant RJM has met its burden on its summary judgment motion to show that it did not create the condition (the hose on the steps) which allegedly caused Plaintiff's accident, and that it did not have actual or constructive notice of the condition. In this regard, Mr. Abramson, RJM's principal, states that: "RJM never received any complaints from Picholine or from anyone else regarding a hose on the basement steps prior to July 9, 2002, and was never issued any violations regarding those steps. Further, RJM never used a hose on those steps and had no reason to do so. Picholine utilized a hose to clean the steps on a daily basis, as was their duty to do so." ( See Abramson Aff, dated June 5, 2007).
See this Court's Interim Order, dated October 9, 2007, which gave Defendant, PICHOLINE RESTAURANT, the opportunity to respond to movants' Reply papers. See Matter of Kennelly v. Mobius Realty Holdings, LLC , 33 AD3d 380 (1st Dept. 2006); Hoffman v. Kessler , 28 AD3d 718 (2nd Dept. 2006).
Defendant PICHOLINE RESTAURANT fails to meet its consequent burden, in its frivolous opposition papers. Rather, the uncontroverted testimony, and documentation, indicates that, if anyone created the alleged condition complained-of (the tripping hazard of the hose on the steps), it would have been Defendant PICHOLINE RESTARANT's employee. Defendant PICHOLINE RESTAURANT's President admits that his restaurant was given the privilege of using the service entrance in exchange for keeping the service entrance clean and free of items, and garbage, and cleaning the service entrance as well as the sidewalk. ( See Terrance Brennan Aff, dated Nov. 13. 2007). This is also evidenced by a letter agreement between the owner and the tenant stating that PICHOLINE RESTAURANT had the "privilege, for the term of its tenancy, of using the service entrance", as long as it kept the area around the service entrance clean. ( See Letter Agreement, dated Aug. 30, 1995, at Movant's Exhibit "L").
Elaborating on its responsibility to clean the steps of the service entrance, PICHOLINE RESTAURANT's own witness, Mr. Rabarijaona (employed as the restaurant's steward), stated that its dishwasher would clean the steps every morning beginning sometime after 7:00 A.M., with a hose and/ or a mop. Defendant PICHOLINE RESTAURANT was the only tenant who used the subject steps.
(Rabarijaona EBT, p. 15-18, 51).
(Rabarijaona EBT, p. 51).
Likewise, PICHOLINE RESTAURANT's back house manager acknowledges that it was responsible "to keep the sidewalk, stairs and hallway clean", and would "use a hose in connection with the cleaning"; and, significantly, he concedes that he did "not have any knowledge of whether anyone else at the building had a hose or utilized a hose at the premise for any other purpose ." ( See Presher Aff, dated Nov. 13, 2007, p. 3).
Further, the premises' Managing Agent confirmed that PICHOLINE RESTAURANT was responsible for cleaning the subject stairs, which descended from the street into the basement area.
(Syskrot EBT, p. 7).
As Mr. Abramson, (RJM's principal), had discussed with Mr. Brennan, (PICHOLINE's principal), PICHOLINE RESTAURANT was "solely responsible for maintenance and cleaning of the service entrance/basement staircase ." ( See Abramson Aff, dated June 5, 2007. See Polish Aff, dated May 3, 2007, p. 4).
In addition to Plaintiff's testimony that the stairs were a little wet, Mr. Rabarijaona testified that it would take about two minutes for the stairs to dry after the dishwasher mopped them after hosing them. Under these circumstances, Defendant RJM, the owner of the premises, could not be charged with constructive notice of the condition because " on the evidence presented, the [transitory object] that caused plaintiff's fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation ." [emphasis added] Gordon v. American Museum of Natural History, 67 NY2d 836, 838 (1986).
(Rabarijaona EBT, p. 23).
The Court of Appeals recently reiterated these principals in a case with similarities to the case at bar involving a slip and fall in a stairwell, stating:
In this slip and fall case, tenant failed to raise a triable issue of fact on the issue of whether the landlord had constructive notice on any theory of a dangerous condition in the stairwell. Tenant asserted that while descending the steps at 5:00 A.M., he tripped over a beer bottle. Yet he acknowledged that the bottle was not on the steps at 8:30 P.M. the night before and no evidence was offered indicating that the landlord was notified of the debris that night or that the bottle was present for a sufficient period of time that defendant's employees had an opportunity to discover and remedy the problem (Gordon v American Museum of Natural History, 67 NY2d 836, 837, 492 NE2d 774, 501 NYS2d 646 [1986]). "[O]n the evidence presented, the [beer bottle] that caused plaintiff's fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation" (id. at 838).
Rivera v. 2160 Realty Co., L.L.C. , 4 NY3d 837, 838-839 (2005).
As far as Defendant PICHOLINE RESTAURANT's arguments regarding the owner's responsibility for illumination, they are unavailing, since it fails to "submit evidence sufficient to demonstrate that an alleged inadequate lighting condition was a proximate cause of the accident." Leib v. Silo Rest., Inc. , 26 AD3d 359 (2nd Dept. 2006). The incident occurred outdoors in broad daylight, on a summer morning, at 8:30 A.M., and Plaintiff had just begun to descend the stairs to the service entrance. Plaintiff's testimony indicates that the accident was caused as a result of the wheels of the hand truck hitting the hose, (Plaintiff EBT, p. 74-77), not "as the result of inadequate illumination." DiGeorgio v. Morotta, 2008 NY Slip. Op. 446, 1 (2nd Dept. Jan 2008).
Plaintiff also testified that there was an illuminated light bulb located to the left of the door of the service entrance, at the bottom of the steps. Plaintiff had never complained about the lighting conditions on the previous occasions that he went to the basement, and although he vaguely mentions that "once you go down the basement" that the visibility was not that good, Plaintiff had not, yet, gotten down to the basement at the time of the accident. (Plaintiff EBT, p. 74-77).
In another case with similarities to the case at bar, a plaintiff had "tripped over a cable and fell down the steps" at a movie production set leased by Universal Pictures; and the lease provided that the owner "could conduct its usual operations on the premises and could have personnel present to observe the lessee's operations. The record reflect[ed] that [the owner] R.P.I.'s general partner visited the premises for brief periods twice a week and that R.P.I. employed a building superintendent who would frequently stop by the building to check on its general condition." Sagnelli v. R.P.I. 6 Harrison Street, Ltd. Partnership, 185 AD2d 153, 153-154 (1st Dept. 1992). The First Department granted the owner's motion for summary judgment dismissing the case against it, holding that, despite the fact that the owner had "retained the right to enter and conduct its usual operations, and did have personnel monitoring the general workings and general conditions of the building in which the leased premises were located, it is clear that [the owner] R.P.I. had no control or authority over the lessee's day to day operations such as the placement of cables or the layout of props and sets. This is not a case involving structural defects or conditions at the premises with respect to which the owner could reasonably be charged with actual or constructive notice based on its reservation of a right to enter the premises." Sagnelli v. R.P.I. 6 Harrison Street, Ltd. Partnership, 185 AD2d 153, 153-154 (1st Dept. 1992).
Likewise, the owner herein, RJM, had no control or authority over PICHOLINE RESTAURANT's day-to-day operations, such as its placement and use of a hose to meet PICHOLINE RESTAURANT's sole responsibility to maintain and clean the subject steps.
An owner "will not be held responsible for unsafe conditions brought about through the acts of its tenant." Davison v. Wiggand, 259 AD2d 799 (3rd Dept. 1999). See Sauer v. Mannini, 309 AD2d 1053, 1054 (3rd Dept. 2003). In Davison, a plaintiff was injured when he struck his head on metal pipes protruding from the ceiling of the building owned by Defendant. The undisputed evidence showed that the tenant had "created the condition giving rise to plaintiff's accident", in that the tenant had made an interior modification consisting of constructing "a 15-foot-high loft, the top of which was situated only 5 feet below the pipes' lowest extension." Thus, the Court held:
As such, it is apparent that the dangerous condition giving rise to plaintiff's injury related not to any defect in the pipes — they functioned properly and required no "repairs" — but to the location of the loft in relation to the pipes.Under the circumstances, we are unpersuaded by plaintiffs' contention that defendant's "control" of the pipes or its notice of the dangerous condition (even if established) imposed a duty upon defendant to make structural modifications necessary to remedy the condition. . . . there was no defective condition requiring repair and defendant took no action such as would have provided a separate basis for liability.
Davison v. Wiggand, 259 AD2d 799, 802 (3rd Dept. 1999).
Likewise, in the case at bar, Plaintiff ANTONIO ROJO's injury was not related to any defect in the stairs they required no repair but, rather, to the hose having allegedly been left on the steps.
If Plaintiff's version of the incident and theory of liability is believed by the jury, RJM would, nonetheless, be entitled to indemnification from PICHOLINE RESTAURANT. The Lease provides that the Tenant (PICHOLINE RESTAURANT) shall indemnify and hold the Owner (RJM) harmless for all claims for any injury to persons "in or about the demised premises in any way connected with, related to, or arising out of the use, condition or occupation of the demised premises." ( See Lease and Rider, at p. 5, at Movant's Exhibit "I"). See Donohue v. Walter, 156 AD2d 149 (1st Dept. 1989).
Accordingly, this Motion by Defendants RJM and GLAZER-GARAY ESTATE PROPERTIES, is granted, and this action and any cross claims as against them are dismissed.
This constitutes the decision and order of this Court.