Opinion
101430/07.
Decided August 16, 2010.
Don a. Carlos, Jr., Esq., New York, New York, for Plaintiff.
Cohen, Kuhn Associates, New York, New York, for Defendants 165 East 72nd Apartment Corp., Cooper Square Realty, Inc. Madcadi, Inc.
Wilson, Elser, Moskowitz, Edelman Docker, LLP, New York, New York, for Defendants 723 Associates, LLC and the Friedlands.
Motion sequence numbers 003 and 004 are consolidated for disposition.
In motion sequence number 003, defendants 165 East 72nd Apartment Corp. (165), Cooper Square Realty, Inc. (Cooper Square) and Madcadi, Inc. (Madcadi) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims as against said defendants.
In motion sequence number 004, defendants 723 Associates, LLC (723 Associates), Melvin Friedland, Eric Friedland and Gayle Friedland (collectively, the Friedlands) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against them, and granting them summary judgment on their cross claim for contractual indemnification from Madcadi.
This action stems from a slip and fall accident that occurred on February 23, 2006, at the premises known as 1260 Third Avenue, a/k/a 165-169 East 72nd Street, New York, New York, which is a cooperative building owned by 165 and managed by Cooper Square. The accident occurred in the premises of a commercial tenant/cooperative store owned by 723 Associates and leased to plaintiff's employer, Madcadi. The Friedlands are the members of 723 Associates.
According to plaintiff's bill of particulars, she allegedly tripped and fell on the stairway leading to the basement of the premises leased to her employer, Madcadi. Motion, Ex. B. Plaintiff alleges that the accident occurred because defendants were negligent in failing to repair the stairs and in failing to conform to New York City standards set out in statutes, ordinances, standards, rules and regulations.
At the time of the accident, plaintiff was employed by Madcadi as a salesperson. At her first examination before trial (EBT) on March 4, 2008, plaintiff testified that part of her duties was to receive deliveries of boxes of merchandise which needed to be placed in the basement storeroom. On the day of the accident, she arrived at the store at about 10 in the morning, and the accident occurred between 10 and 11 A.M. Plaintiff's EBT (3/4/08), at 13. The store received a shipment of merchandise at approximately 10 A.M., and after receiving the shipment, plaintiff and her supervisor, Paula Blanco (Paula), pushed the boxes down the steps to the basement. Id. at 18. During the course of pushing the boxes down the steps, plaintiff stated that the wooden planks of one of the steps broke in half, and that she mentioned it to Paula, saying that the stair would need to be fixed. Id. at 22-24. According to plaintiff, only Madcadi employees use the stairs in question. Id. at 24.
At this deposition, plaintiff said that the accident happened between 10 and 11 in the morning ( id. at 26), when she walked down the steps again and forgot that the step was broken and slipped on it. Id. at 29, 39. Plaintiff further admitted that the step broke in half when she and Paula were pushing the boxes down the stairs earlier in the day, that the break was clearly visible, and that she could see where she was walking. Id. at 24, 28. Plaintiff also stated that the cause of the accident was the broken step. Id. at 32, 34. In addition, plaintiff said that she never reported the broken step to anyone but Paula, and never spoke to anyone else from the corporate headquarters until several weeks later. Id. at 49-50. However, later in that deposition, plaintiff said that either she or Paula, she couldn't remember who, called the superintendent to report the broken stair. Id. at 58. At her second deposition, plaintiff stated that the superintendent was not notified, because when he was called, there was no answer, and she did not know whether any message had been left. Plaintiff's EBT (10/7/09), at 32-33.
When asked if, prior to the accident, she saw anyone working on the stairs, plaintiff responded that about one year before her accident, in 2005, a person she believes was the superintendent of the building repaired one or two steps, but that she could not recall whether one of those steps was the one that caused her accident one year later. Plaintiff's EBT (3/4/08) at 52-53. When the steps were repaired in 2005, plaintiff testified that she purchased the plywood that was used for the repair, and that Madcadi told her to buy that wood, and reimbursed her for the expense. Id. at 54.
At her first deposition, plaintiff stated that the accident happened between 10 and 11 A.M., but in her second deposition, held on October 7, 2009, she said that the accident happened between 2 and 4 P.M. Motion, Ex. F. Also, plaintiff said that she spoke to the doorman of the building about the broken step, and that she or Paula, she was unsure who, attempted to call corporate headquarters about the broken step between the time the stair broke and her accident, but that the person who called was unable to reach anyone. Plaintiff's EBT (9/7/09), at 49-50; EBT (4/7/08), at 57-58.
Leandro Fernandez (Fernandez), the superintendent of the building, at his deposition, testified that the first notification that he received about the accident was approximately one week after the incident. Fernandez EBT, at 11-12. Fernandez said that he repaired the step after the accident as a courtesy at the request of Madcadi. Id. at 12-13. Fernandez also averred that 165 and Cooper Square are not responsible for repairs in the leased space, that the store premises is owned by 723 Associates, and that Madcadi had a separate lease with 723 Associates, but had no lease directly with the building. Id. at 17-19. A copy of the lease between Madcadi and 723 Associates appears as Exhibit H to the moving papers.
723 Associates is the tenant/shareholder of the shares in the cooperative relating to the subject premises. Pursuant to paragraph 4 of the lease between 723 Associates and Madcadi, Madcadi, as tenant, was responsible for all maintenance and repairs in the demised premises. Further, paragraph 8 of the lease provides that 723 Associates will not be liable for injuries to persons "resulting from any cause whatsoever, unless caused by or due to the negligence of" 723 Associates. Paragraph 8 also requires Madcadi to acquire general public liability insurance in favor of both Madcadi and 723 Associates, and states that Madcadi "shall indemnify and save harmless [723 Associates] against and from all liabilities, obligations, damages, penalties, claims, costs and expenses for which [723 Associates] shall not be reimbursed by insurance . . . suffered or incurred as a result of any breach by [Madcadi]. . . ."
Paragraph 10 of the lease grants 723 Associates the right, but not the obligation, to enter the demised premises for the purpose of examining and making such repairs that 723 Associates deems necessary and reasonable. The rider to the lease states that the lease is subject to the proprietary lease for the cooperative.
Paragraph 44c of the rider to the lease states:
"Except as may be specifically provided in this Lease,
Owner shall have no obligation to Tenant with respect to the maintenance or repair or restoration of the demised premises or the basement, or the maintenance or repair or restoration of the facilities and equipment of the building or the demised premises, or the supplying of any services, to the extent the Coop Corporation is required to perform such maintenance or repair or restoration, or supply such service, under the proprietary lease or the Consent. Tenant agrees to look solely to the Coop Corporation with respect to the performance of such maintenance and repair and restoration. . . ."
Pursuant to the proprietary lease, the Coop Corporation is only required to maintain and repair public stairways. Opp., Ex. F.
According to Fernandez, 165 did not make any prior repairs to the store premises, only replaced light bulbs, and that no maintenance work was performed by 165 in the area. Fernandez EBT, at 30. In addition, Fernandez did not walk in the area in which the stairs are located before the accident ( id. at 31-32), and states that he never made any repairs or performed any maintenance at the store. Id. at 30.
Peter Giga (Giga), employed by Larstrand Corp. (Larstrand), a non-party to this action, is the managing agent for the premises, hired by 723 Associates. Giga testified that neither 723 Associates nor Larstrand employed anyone to effectuate repairs on the subject premises, nor had they received any complaints regarding the stairs prior to the date of the accident. Giga EBT, at 6, 9-10.
165 and Cooper Square contend that they are entitled to summary judgment dismissing the complaint because they had no actual or constructive notice of any dangerous condition prior to the accident, which was created by plaintiff herself. Madcadi maintains that it is entitled to summary judgment dismissing the complaint because, as Madcadi's employee, plaintiff's sole remedy lies with the Workers' Compensation Law.
723 Associates and the Friedlands argue that the action should be dismissed as against them because they neither created the hazardous condition, nor did they have actual or constructive notice of such condition. Additionally, 723 Associates and the Friedlands seek indemnification from Madcadi, pursuant to the lease provisions.
In opposition to the instant motions, plaintiff asserts that the dangerous condition of the stairway was known to defendants for more than a year prior to her accident. In her opposition, plaintiff provides an affidavit, dated July 7, 2010, in which she states that, through the course of her employment with Madcadi, the superintendent of the building, or his employee, came on various occasions to fix the steps. She further states that, in her deposition, she testified that the year prior to her accident the superintendent came to fix two steps where the wood had fallen off.
In addition, plaintiff asserts that the basement portion of the building, to which the lease between 723 Associates and Madcadi grants Madcadi a license to use, constitutes part of the public areas of the building, and therefore, its maintenance and repair is the responsibility of 165, the cooperative corporation.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein , 35 AD3d 184 , 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art , 27 AD3d 227 , 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).
Defendants 165, Cooper Square, 723 Associates and the Friedland's motions for summary judgment dismissing the complaint as against them are granted.
The court notes that no argument has been posited that the Friedlands, as members of an LLC, may be shielded from personal liability, and so this potential defense is not discussed.
All of these defendants represent, in one form or another, the alleged owner/landlord, or that entity's agent, of the premises in question, and, as such, each one's liability is premised on the same legal doctrine.
In order to establish a prima facie case of negligence in a trip and fall case, a plaintiff must evidence that the defendant created the dangerous condition that caused the accident, or that the defendant had actual or constructive notice of the dangerous condition which it failed to remedy within a reasonable amount of time. Gordon v American Museum of Natural History, 67 NY2d 836 (1986). "To constitute constructive notice of a dangerous condition, the defect or condition must be visible and apparent, and . . . must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it [internal quotation marks and citation omitted]." Gibbs v Port Authority of New York, 17 AD3d 252, 255 (1st Dept 2005).
"Where the defendant neither created the condition nor had actual notice, a defendant seeking to dismiss the complaint must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed." Giuffrida v Metro North Commuter Railroad Co., 279 AD2d 403, 404 (1st Dept 2001); Colt v Great Atlantic Pacific Tea Company, Inc., 209 AD2d 294 (1st Dept 1994).
In the case at bar, the dangerous condition, the broken step, was created by plaintiff and Paula, her supervisor, when they pushed boxes of merchandise down the stairs, thereby breaking one of the steps. In her deposition testimony, plaintiff stated that either she or Paula, she was unsure of whom, attempted to contact the corporate owners of the store about the broken step, as well as the building superintendent, but were unable to reach them between the time of the break and plaintiff's trip and fall. Plaintiff also testified that the broken step was open and obvious, but, in her opposition, argues that the mere fact that the broken step was visible and known to plaintiff does not obviate defendants' obligation to remedy the dangerous condition. With this argument, the court agrees.
"The open and obvious nature of a hazard may obviate a claim that the property owner violated the duty to warn of, or place barriers to protect against, dangers on the premises, but does not eliminate a claim that the presence of the hazardous condition constituted a violation of the property owner's duty to maintain the premises in a reasonably safe condition." Westbrook v WR Activities-Cabrera Markets , 5 AD3d 69 , 75 (1st Dept 2004).
However, "the burden is on the plaintiff to prove not only that a dangerous condition existed on the premises but also that the landlord had notice of that condition and a reasonable opportunity to repair it." Juarez v Wavecrest Management Team Ltd., 88 NY2d 628, 642 (1996) (case involved lead paint poisoning).
In the instant case, plaintiff has failed to meet her burden of establishing that any of the defendants, excluding Madcadi, had any notice of the broken step within a reasonable time prior to her accident to have had the opportunity to remedy the dangerous situation.
"A defendant owner is charged with having constructive notice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the occurrence of an accident to permit the defendant to discover and remedy the condition." Early v Hilton Hotels Corp. , 73 AD3d 559 , 561 (1st Dept 2010).
Taking into consideration plaintiff's conflicting deposition testimony, as to what time the step broke and what time she fell, in a light most favorable to plaintiff, the period in question could be no longer than from 10 A.M. to 4 P.M., a period of no longer than six hours. By her own admission, no one received actual notice of the broken step except, perhaps, the building doorman sometime in the afternoon. Therefore, even if defendants, except for Madcadi, had notice of the broken step, there is no evidence that they would have had a reasonable time in which to remedy the situation.
In her affidavit in support of her opposition, plaintiff states, for the first time, that the dangerous condition of the staircase was well known for at least one year prior to the accident, basing this on her earlier testimony that in 2005 two or three steps on the staircase were repaired. However, "[b]ecause a general awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall, liability could be predicated only on failure of defendants to remedy the danger presented by the [broken step] after actual or constructive notice of the condition. The evidence does not establish that defendants had either actual or constructive notice of the hazardous condition that caused plaintiff to slip and fall, and accordingly the complaint should be dismissed [internal quotation marks and citations omitted]." Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 (1994).
Furthermore, in her deposition, plaintiff states that the cause of her accident was the broken step, not the generally dangerous condition of the staircase.
Plaintiff's affidavit, submitted in opposition to the instant motion, indicates that the generally dangerous condition of the staircase was well-known to defendants prior to the date of her accident. However, as discussed above, a general awareness of a dangerous condition is insufficient to render defendants liable, especially in light of the fact that plaintiff, in her deposition, categorically stated that the cause of her accident was the broken step which was caused by her and Paula when the pushed boxes down the staircase. Plaintiff's affidavit submitted in opposition to the instant motions contradicts her prior sworn testimony, which creates only a feigned issue of fact which is insufficient to defeat the instant summary judgment motion. Garcia-Martinez v City of New York , 68 AD3d 428 (1st Dept 2009); Telfeyan v City of New York , 40 AD3d 372 (1st Dept 2007); Harty v Lenci, 294 AD2d 296 (1st Dept 2002); Phillips v Bronx Lebanon Hospital, 268 AD2d 318 (1st Dept 2000).
Madcadi's motion to dismiss the complaint as against it, based on the assertion that, as plaintiff's employer, plaintiff's sole remedy as against it lies in the Workers' Compensation Law, is granted without opposition.
Lastly, that portion of 723 Associates' and the Friedlands' motion seeking contractual indemnification from Madcadi is deemed moot by this decision dismissing the complaint as against them.
CONCLUSION
Based on the foregoing, it is hereby,
ORDERED that the motion of defendants 165 East 72nd Apartment Corporation, Cooper Square Realty and Madcadi, Inc. (motion sequence number 003), seeking to dismiss the complaint as against them, is granted, and the complaint is dismissed as against said defendants with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the portion of the motion of defendants 723 Associates, LLC, Melvin Friedland, Eric Friedland and Gayle Friedland (motion sequence 004), seeking to dismiss the complaint and all cross-claims asserted as against them, is granted, and the complaint is dismissed as against said defendants with costs and disbursement as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the portion of the motion of defendants 723 Associates, LLC, Melvin Friedland, Eric Friedland and Gayle Friedland (motion sequence 004), seeking contractual indemnification from co-defendant Madcadi, Inc. is denied as moot; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.