Opinion
101160/2005.
Decided September 23, 2005.
Defendant American Museum of Natural History ("Museum") moves to dismiss the complaint for failure to state a cause of action pursuant to CPLR § 3211(a)(7). Defendant Museum argues that pursuant to its lease with defendant City of New York, it had no duty to maintain the premises upon which plaintiff Santo Scavuzzo ("Scavuzzo") was allegedly injured, and therefore, plaintiff cannot make out a prima facie claim of negligence against it.
To sustain a claim of negligence, plaintiff must allege facts that, if proven, establish (1) that defendant Museum owed him a "duty of reasonable care", (2) a breach of that duty, and (3) a "resulting injury proximately caused by the breach." Abdul-Azim v. RDC Commercial Center, Inc., 210 AD2d 191 (2nd Dept. 1994). Plaintiff alleges that on November 1, 2003 he slipped and fell on a defective condition on the stairway leading to the entrance of the Museum at 79th Street and Central Park West, New York, NY. Plaintiff also alleges that defendant Museum operates, manages, and controls the premises upon which he fell and therefore, breached its duty to maintain a safe premises.
Defendant's motion to dismiss is denied. "An owner or tenant in possession of realty owes a duty of reasonable care to maintain the property in a reasonably safe condition." Abdul-Azim, 210 AD2d at 191; See Basso v. Miller, 40 NY2d 233, 241 (1976). "The determinative question is one of possession or control." Hoberman v. Kids R Us, 187 AD2d 187, 190-191 (1st Dept. 1993). The submissions of defendant Museum in support of its motion to dismiss do not demonstrate that it did not have any duty to maintain or control the stairway. See Abdul-Azim, 210 AD2d 191. In support of the argument that it has no structural maintenance or repair responsibilities for the area where plaintiff allegedly fell, defendant Museum offers an affidavit from Richard Pribnow ("Pribnow"), the Museum's Director of Construction, Capital Projects and Facilities Operations since 2000. However, the affidavit fails to allege specific facts that absolve defendant Museum of any responsibility over the area. Pribnow's affidavit relies on the December 22, 1877 lease with the City of New York. However, upon examination, the plain terms of the lease do not show that the City of New York "specifically retained the obligation to maintain in good condition the external portions of the building, including the staircase" and therefore, at this stage in the proceeding, defendant Museum's motion to dismiss must be denied. Sullivan v. Specialty Glass Corp., 229 AD2d 572 (2nd Dept. 1996). The only reference to any responsibility for maintenance and repair is found on page 2 of the lease: "Secondly . . . the said party of the first party (City of New York) will keep said building, from time to time, in repair." This does not establish that the City of New York was to assume all maintenance and responsibility for repair for defendant Museum. Moreover, as plaintiff cites, page 3 of the lease also states that the Museum "shall have and enjoy exclusive use of the whole of said building . . ."
"Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises . . ." and ". . ." may be found where there is some indication that the tenant created the dangerous condition, owned or retained any control . . . or had authority to correct the condition." Kozak v. Broadway Joe's, 296 AD2d 683, 684 (3rd Dept. 2002). There remains, at the very least, an indication that defendant Museum had some control over the premises upon which plaintiff allegedly fell. The cases upon which defendant Museum relies can all be distinguished by the fact that the lease in those cases established that the tenant had no responsibility to maintain the premises. See Soto v. Michael's New York, Inc., 282 AD2d 300 (1st Dept. 2001); Fraher v. JNPJC Brusco Assoc., 286 AD2d 289 (1st Dept. 2001); Raffile v. Tower Air, Inc., 264 AD2d 721 (2nd Dept. 1999). Here, a material issue of fact remains as to who controlled and maintained the premises, whether the control was exclusive or partial, and how the lease has been interpreted in regards to this issue since it was signed in 1877.
Furthermore, no discovery has occurred in this case and these issues need to be explored. Defendant Museum is directed to answer the complaint within 20 days of the date below. A preliminary conference is scheduled in Part 24, Room 418 at 60 Centre Street on October 26, 2005 at 10am
Therefore, based on the foregoing reasons, defendant American Museum of Natural History's motion to dismiss is denied.