Opinion
017131/09.
March 31, 2011.
Shafran Mosley, P.C., Howard E. Shafran, Esq. New York, New York, Counsel for Plaintiffs Daniel Wisniewski and Cecelia Wisniewski.
Churbuck Calabria Jones Materazo, P.C., Joseph A. Materazo, Esq. Hicksville, New York, Counsel for the Defendants Geismar, LLC and Steven Geismar.
Law Offices of Stewart H. Friedman, Thomas C. Awad, Esq., Garden City, New York, Counsel for Defendant PACOA, Inc.
The Defendants, Geismar, LLC and Steven Geismar, Cross-motion seeking an Order, pursuant to CPLR § 3212, granting them summary judgment dismissing the Plaintiffs' complaint on the issue of liability is also determined as hereinafter provided.
The Plaintiffs have discontinued their action against the Defendants, Steven Geismar, individually and 7 Harbor Park Drive Realty, LLC.
This is an action sounding in negligence brought by the Plaintiff, Daniel Wisniewski ("Daniel") to recover for personal injuries he allegedly sustained on December 18, 2007 at approximately 5:15 a.m. when he slipped and fell on snow and ice in the parking lot of the premises located at 7 Harbor Park Drive, Port Washington, New York (the "Subject Premises").
At the time of the accident, the Plaintiff was employed as a truck driver by Ho-Ro Trucking and was making a delivery to the Defendant, Pacoa, also known as Paint Applicator Corporation of America. Pacoa is a wholesale distributor of paint and related hardware and is a tenant at the subject premises.
Under a "triple-net" lease agreement, the subject property, owned by non-party, Nassau County Industrial Development Agency ("NCIDA"), was leased to the Defendant, Geismar, LLC ("Geismar") for a term of ten years commencing on March 21, 2005 and was to expire on December 31, 2015. Pursuant to the lease, Geismar was required to keep the facility in good condition and to effect needed repairs to it, to pay all taxes and utility charges and to maintain liability insurance for itself and the NCIDA. Geismar, in turn, subleased the parcel to Pacoa for the same term of ten years commencing on March 21, 2005 and set to expire on December 31, 2015. Further, section 5 [c] of the Sublease states as follows:
The Sublessee hereby agrees to be bound by each and every obligation, term, covenant, condition and agreement of the Lease by which the Sublessor as lessee thereunder is bound and hereby assumes all of the Sublessor's obligations under the Lease as if the Sublessee was the named lessee under the Lease and agrees to keep and perform all of the obligations, terms, covenants, conditions and agreements of the Lease and to pay all sums due under the Lease on the part of the Sublessor thereunder to be kept and performed and paid and further assumes all obligations as specifically relate to the Sublessee as are contained in the lease. Those obligations of the Sublessor in the Lease which are set forth as surviving the termination of the Lease shall similarly survive its obligations of the Sublessee and survive the termination of the Sublease Agreement.
The Defendant, Steven Geismar is the sole member of the Defendant, Geismar, LLC. He is also the President of the Defendant, Pacoa.
At his examination before trial, the Plaintiff, Daniel testified that on the morning of the accident, at around 5:15 a.m., he was in the course of making a delivery to Pacoa. He testified that after backing his tractor trailer up to the loading dock, he exited the cab and walked approximately 100 feet in the parking lot to the entrance door to the warehouse ( Wisniewski Transcript, p. 72). The Plaintiff testified that he observed some piles of snow on the side of the walkway and in the vicinity of the warehouse door. He never reached the warehouse door. Instead, as he went to touch the doorknob, he fell backwards on a slippery surface, landing on a pile of ice and snow that was alongside the door. Afterwards, he observed that he slipped on a patch of clear ice.
Bryan Hallock, Pacoa's warehouse manager, testified at his Examination Before Trial that Pacoa retained the services of a landscaper named Angelo Gregorio to perform snow removal at the Premises. Mr. Hallock testified that the landscaper would perform all of the snow removal after a storm and any remaining snow would be removed by Pacoa employees. Mr. Hallock stated that Pacoa owned a small snow blower, shovels, ice-choppers and salt for purposes of snow removal. He stated that as the warehouse manager, he would make the decision to deploy personnel and equipment to remove snow and ice from the exterior portion of the Premises. On these occasions he would walk the exterior perimeter of the facility to determine whether the property was safe to walk on and not slippery. If he determined that snow and ice removal was necessary, he would direct one of the warehouse workers to do that job.
According to Mr. Hallock, in December 2007, the Pacoa facility was equipped with exterior video surveillance. It had cameras on the top of the roof in two exterior zones that monitored the parking lot. Mr. Hallock testified that the very first time he looked at any film from any zone was after the Director of Operations at Pacoa, Larry Lasher, looked at the cameras on the computer in his office. Mr. Hallock testified that although he does not know how long the video surveillance system maintained the images, he was aware that at a certain point in time, as the cameras record, they start to write over whatever was previously recorded. He did not know, however, how long that period was.
At his Examination Before Trial, Steven Geismar explained that the surveillance system only recorded on motion and that as a facility, Pacoa did not archive data on the DVRs. Steven Geismar also clarified that it was Pacoa that installed the surveillance equipment at the facility.
Mr. Hallock further stated that to the best of his knowledge, there is no video showing the door in question where the Plaintiff fell. He stated that he did not see the Plaintiff fall anywhere in the surveillance tape he viewed of that warehouse door between the loading bays. To the best of his knowledge, the surveillance Mr. Hallock saw did not show the Plaintiff at all. Steven Geismar further stated that there was nothing in the surveillance tape from the date of the Plaintiff's accident that suggested to him that the surveillance was tampered with or otherwise not authentic.
In bringing this action, the Plaintiffs claim that the Defendants were negligent in their maintenance, management, operation and control of a walkway or sidewalk upon the subject premises. Specifically, in his Bill of Particulars, the Plaintiff alleges that the Defendants were negligent, inter alia: in allowing the subject walkway to be snow and ice covered, in creating said dangerous and defective conditions by actually attempting snow and ice removal and doing so in an incomplete, inadequate manner, in partially removing snow and ice, in allowing snow and ice to remain, in allowing the re-freezing of snow and ice by failing to remove same, despite the fact that no active storm was taking place at the time and place of the occurrence.
The Bill of Particulars also alleges that the Defendants violated Article 4 of the Code of Town of North Hempstead, Sections 48-10(a) and (b) which state as follows:
48-10: Cleaning sidewalks.
A.Every owner, lessee, tenant, occupant, or other person in charge of any property within the Town shall remove snow, ice, dirt or any other object or material from any sidewalk between such property line and the curbline of all adjacent streets within four hours after snow has ceased to fall or after the deposit of any dirt, object or other material upon such sidewalks. The period between 9:00 p.m. and 7:00 a.m. shall not be included in computing such requirements.
B.Every owner, lessee, tenant, occupant or other person in charge of any property within the Town shall at all times keep such sidewalk in good and safe repair and maintain the same clean, free from filth, dirt, weeds or other objects or materials.
On January 27, 2010, the Plaintiffs served a Demand for Surveillance Materials and Combined Demands for Discovery and Inspection. On August 2, 2010, the Defendant, Pacoa served its Response to Combined Demands for Discovery and Inspection and responded that it had no surveillance materials. Subsequently, on August 5, 2010, the Plaintiffs took the deposition of the Defendant, Pacoa's witness, Mr. Hallock, who testified thereat that he viewed the surveillance video after the Plaintiff's accident. On September 3, 2010, the Defendant, Pacoa, then served a CD-ROM with the surveillance materials referred to by Mr. Hallock at his deposition. The Defendant, Pacoa, concedes that the subject surveillance video was not disclosed to the Plaintiff until after Mr. Hallock's deposition. However, counsel for the Defendant, Pacoa, cites to a discussion on the record held at the close of Mr. Hallock's deposition with counsel for the Plaintiffs that confirms that there was an agreement that the Plaintiffs reserved their right to take a further deposition of Mr. Hallock with respect to the surveillance material. Said deposition however was never held.
Upon the instant application, the Plaintiffs seek an Order, inter alia, awarding them summary judgment based on the doctrine of spoliation of evidence.
In addressing the Plaintiffs' motion, this Court notes that there are two issues at hand: (1) whether the Defendant, Pacoa, failed to properly disclose the subject video surveillance; and (2) whether the Defendant, Pacoa's answer should be stricken or summary judgment be awarded to the Plaintiffs based on the doctrine of spoliation.
To grant summary judgment, the court must find that there are no material, triable issues of fact, that the movant has established his cause of action or defense sufficiently to warrant the court, as a matter of law, directing judgment in his favor, and that the proof tendered is in admissible form ( Menekou v. Crean, 222 AD2d 418, 419-420 [2d Dept. 1995]). If the movant tenders sufficient admissible evidence to show that there are no material issues of fact, the burden then shifts to the opponent to produce admissible proof establishing a material issue of fact ( Id. at 420). Summary judgment is a drastic remedy that should not be granted where there is any doubt regarding the existence of a triable issue of fact ( Id).
In this case, the Plaintiffs have failed to make a prima facie showing that they are entitled to summary judgment based on spoliation of evidence. "Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the nonresponsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading" ( Gotto v. Eusebe-Carter , 69 AD3d 566 , 567 [2d Dept. 2010]). That is, where a party negligently or intentionally destroys essential physical evidence "such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence, the spoliator may be sanctioned by the striking of its pleading" ( New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., 280 AD2d 652, 653 [2d Dept. 2001]). Even in situations where "the evidence was destroyed before the spoliator became a party, [a sanction may justified] provided [the offender] was on notice that the evidence might be needed for future litigation" ( DiDomenico v. C S Aeromatik Supplies, Inc., 252 AD2d 41, 53 [2d Dept. 1998]; see also, Std. Fire Ins. Co. v. Fed. Pac. Elec. Co. , 14 AD3d 213 , 220 [1st Dept. 2004]).
However, "[w]here a party did not discard crucial evidence in an effort to frustrate discovery, and cannot be presumed to be responsible for the disappearance of such evidence, spoliation sanctions are inappropriate" ( Cordero v. Mirecle Cab Corp. , 51 AD3d 707 , 709 [2d Dept. 2008]; see O'Reilly v. Yavorskiy, 300 AD2d 456, 457 [2d Dept. 2002]). Similarly, where the evidence lost is not central to the case, or its destruction is not prejudicial a sanction may not be appropriate ( Klein v. Ford Motor Co., 303 AD2d 376 [2d Dept. 2003]; Mylonas v. Town of Brookhaven, 305 AD2d 561, 563 [2d Dept. 2003]).
Ultimately, the determination of whether to impose sanctions for spoliation of evidence is a matter within the broad discretion of the court ( Denoyelles v. Gallagher , 40 AD3d 1027 [2d Dept. 2007]).
There is nothing on this record to establish, as the Plaintiffs suggest, that the Defendant, Pacoa, intentionally destroyed and/or edited the subject surveillance video as the Plaintiffs suggest. While the Plaintiffs argue that "notice" was provided to the Defendant, Pacoa via an April 10, 2008 letter sent by their former counsel, Jacoby Meyers, said letter is insufficient and does not establish any requisite "notice to preserve" evidence relating to a potential lawsuit. A plain and simple reading of this letter makes it clear to this Court that the letter does not specifically request the Defendant, Pacoa, to preserve any evidence relating to the date of the accident, whether it be photographs or surveillance, etc. Further, even if this Court were to find that there is sufficient evidence to indicate that the action had commenced prior to the destruction of the video recordings and that there was enough information available to the Defendants on the day of the incident to indicate that these materials "might" become necessary in the future, that loss of said materials can not be construed as having been intentional.
"The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to defend [the] action" ( Utica Mut. Ins. Co. v. Berkoski Oil Co. , 58 AD3d 717 , 718 [2d Dept. 2009]). "Generally, striking a pleading is reserved for instances of willful or contumacious conduct" ( Dean v. Usine Campagna , 44 AD3d 603 , 605 [2d Dept. 2007]). When a party neglectfully disposes of evidence, the Court must consider the prejudice which results from the spoliation in determining what type of sanction if any is warranted as a matter of fundamental fairness ( Dean v. Campagna, supra; Scarano v. Bribitzer , 56 AD3d 750 [2d Dept. 2008]). Based upon this record, including the deposition testimony of Mr. Hallock and Steven Geismar explaining the video recording procedures and the well settled law of spoliation, this Court is persuaded that the Defendant, Pacoa's conduct was not willful or contumacious ( Denoyelles v. Gallagher, supra; Koehler v. Midtown Athletic Club LLP. , 55 AD3d 1444 [4th Dept. 2008]).
Further, the Plaintiffs have not established that they will be prejudicially bereft of making out their case without said subject surveillance video.
Nevertheless, while the Court is not convinced that the alleged loss of the "relevant" portions of the surveillance video places the Plaintiff at any significant disadvantage in proving his claim that he slipped and fell on a patch of ice at the subject premises, the Plaintiff nevertheless, may be entitled to an adverse inference charge, pursuant to Pattern Jury Instructions 1:77.1 at trial with respect to the loss of the relevant video ( Gotto v. Eusebe-Carter, supra; Tapia v. Royal Tours Serv., Inc. , 67 AD3d 894 [2d Dept. 2009]; Scarano v. Bribitzer , 56 AD3d 750 , 751 [2d Dept. 2008]). That is, even though the Plaintiff fails to demonstrate that the surveillance tape is crucial or key evidence such as to warrant the extreme sanction of striking the Defendant's Answer or granting the Plaintiff summary judgment based upon a broad preclusion order, if it becomes clear that a sanction for losing the "relevant" portions of the surveillance tape is warranted ( see e.g. Lebron v. Rite Aid Corporation, 9 Misc 3d 137[A] [App. Term, 1st Dept. 2005]), an adverse inference charge may be given at the time of trial ( Minaya v. Duane Reade International , 66 AD3d 402 , 403 [1st Dept. 2009]; Tomasello v. 64 Franklin, Inc. , 45 AD3d 1287 , 1288 [4th Dept. 2007]).
The Defendant, Geismar's Cross-motion for summary judgment dismissal of the Plaintiffs' complaint is GRANTED. The Defendant asserts three bases for its application for summary judgment. First, that as an out of possession landowner, it did not owe a duty to the Plaintiffs; that is, as the lessor, it did not retain any control of the operations at the premises and that the duty to maintain and operate the premises was assigned to the Defendant, Pacoa, in the sublease. Second, it did not directly control or supervise the snow and ice removal at the premises and whatever role Steven Geismar may have performed himself was in his role as President of the Defendant, Pacoa, not as lessor. Finally, that it did not create any dangerous and/or trap like condition which may have caused the Plaintiff's accident. Essentially, the Defendant, Geismar, relies herein on the provisions of the "triple net lease" under which, it argues, it is an out of possession landlord not responsible for repairs or maintenance.
An owner or possessor of property has a duty to maintain the property in a reasonably safe condition and may be held liable for injuries resulting from a breach of that duty ( Sowa v. S.J.N.H. Realty Corp. , 21 AD3d 893 , 894 [2d Dept. 2005]). An out-of-possession landlord is not relieved of liability for accidents that occur on the leased premises if the landlord creates a dangerous condition that results in injury or either retains control over the property or is contractually obligated to maintain or repair the premises ( Wolfe v. Long Is. Power Auth. , 34 AD3d 575 [2d Dept. 2006]).
It is well settled that generally an owner who leases property is not liable for injuries sustained upon his land absent an agreement or covenant to keep the demised premises in good repair ( Putnam v. Stout, 38 NY2d 607), and absent actual control, or a course of conduct demonstrating assumed responsibility to maintain the premises ( Reidy v. Burger King Corporation, 250 AD2d 747 [2d Dept. 1998]).
The determinative question is one of possession or control. The Defendant, Geismar, has established its prima facie entitlement to judgment as a matter of law. The record is clear that as the sublessor, the Defendant, Geismar LLC lacked possession and control of the subject premises. Rather, it was the Defendant, Pacoa, which possessed, controlled and managed the day to day operations of the warehouse and which directed the snow and ice removal. The Defendant, Pacoa's employees were in the custom and habit of performing their own snow and ice removal and in fact the Defendant, Pacoa, also contracted with a landscaper to perform the snow removal, sanding and salting.
Further, the Lease demonstrates that the owner of the subject premises is NCIDA and that the NCIDA had leased the premises to the Defendant, Geismar. In its Sublease, Geismar had in turn assigned to its tenant, Pacoa, every obligation, term, covenant, condition and agreement of the lease to which Geismar had been bound in the Lease. It is clear that nothing in the Lease and Sublease, taken together, required Geismar to maintain the Premises.
Based on this showing, this Court finds that the Defendant, Geismar has established its prima facie showing of entitlement to judgment as a matter of law. The burden therefore shifts to the Plaintiffs, as the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial ( Alvarez v. Prospect Hosp., 68 NY2d 320).
In opposition, the Plaintiff argues that as Steven Geismar, a former defendant in this action, is an officer and a director of both Geismar LLC and Pacoa, and as there is proof in the record that he was running a business on the property, was there virtually every day, had supervisory authority over those employees, and whose responsibility it was to remove snow and ice and otherwise maintain the property, there is an issue of fact as to whether Geismar LLC was truly an out of possession landlord and therefore whether it can avoid liability by attempting to delegate that duty to maintain the property to a subtenant.
It is true that an out of possession landlord can be held liable for the condition of his property if he has reserved a right to re-enter the premises, inspect and repair any defects of which he has actual or constructive notice ( Putnam v. Stout, supra; Reidy v. Burger King Corporation, supra). "The reservation of the right to enter the premises for inspection and repair may constitute sufficient control to permit a finding that the owner or lessor had constructive notice of a defective condition provided a specific statutory violation exists and there is a significant structural or design defect" ( Thompson v. Port Auth. of NY NJ, 305 AD2d 581, 582 [2d Dept. 2003]). However, that is not the case at hand. While the record confirms that Steven Geismar was the President of both Geismar LLC and Pacoa, the record is equally clear that contrary to the Plaintiff's arguments, Steven Geismar did not operate the facility as the President of Geismar LLC; rather, he ran the property as the President of Pacoa. Taken together with the documentary evidence, including the Lease and the Sublease, it is clear to this Court that not only was the subject property immediately and simultaneously subleased from Geismar LLC to Pacoa and that the terms of the sublease specified that the entire premises shall be occupied, used and operated by the sublessee, Pacoa, but the terms and conditions of the Sublease also explicitly specified that Geismar shall retain no possession of the Premises and they shall be entirely occupied by Pacoa. The provisions of the Lease and Sublease are sufficient to establish Geismar's entitlement to judgment as a matter of law.
Inasmuch as the Plaintiff argues that the Defendants had an obligation to clear snow off the sidewalk where the Plaintiff fell pursuant to the sections of the Town of North Hempstead Code, said arguments are herewith dismissed.
The provisions of the Code of Town of North Hempstead alleged to have been breached by the Defendants, supra, plainly apply to a public sidewalk to the curb outside the premises and not a private walkway within the property lines of Pacoa's Premises, as in this case.
Therefore, in light of the Plaintiffs' failure to raise a triable issue of fact in opposition to Geismar's prima facie showing, this Court herewith grants Geismar's Cross-motion for summary judgment dismissal of Plaintiff's complaint as against it.
This decision constitutes the decision and order of the court.
All applications not specifically addressed herein are DENIED.