Opinion
100570/09.
May 12, 2011.
SULLIVAN PAPAIN BLOCK ET AL,PC, NEW YORK, NEW YORK, ATTORNEY FOR THE PLAINTIFF.
MARGARET G. KLEIN ASSOCS., NEW YORK, NEW YORK, ATTORNEY FOR THE DEFENDANT.
BARRY MCTIERNAN MOORE, ESQS., NEW YORK, NEW YORK, ATTORNEY FOR THE DEFENDANT.
In this personal injury action, defendants Seaport Park Condominium (Seaport Park) and Cooper Square Realty, Inc. (Cooper Square) move to dismiss the complaint as to themselves, as well as all cross claims against them. Defendant Wendy's Old Fashioned Hamburgers of New York, Inc. (Wendy's) cross-moves for an order dismissing the complaint as to it.
I. Background
Seaport Park is a condominium located at 117 Beekman Street, New York, New York, made up of several residential units, and one commercial unit. Cooper Square is Seaport Park's managing agent. The commercial unit (premises) is owned by non-appearing defendant One Seaport Park Associates (One Seaport), and is leased by Wendy's.
On September 7, 2008, plaintiff Louis Castellano (plaintiff) fell on steps leading down to Wendy's entrance in an area of the building called the arcade. The accident happened when plaintiff, who walks with a cane, reached with his left hand for a handrail which did not exist, causing him to lose his balance and fall.
Plaintiff Gloria Castellano brings a derivative action.
Plaintiff maintains that the lack of a handrail is a structural defect under numerous sections of the New York Building Code, and that defendants, as owners and lessee of the premises, are liable to plaintiff for his injuries.
Seaport Park and Cooper Square move to dismiss the complaint on the ground that neither of these parties owned, operated, managed, maintained or controlled the premises. Seaport Park and Cooper Square maintain that, contractually, the responsibility for the condition of the premises was of One Seaport, the premise owner, and Wendy's, One Seaport's lessee. As such, Seaport Park and Cooper Square argue that, in the absence of any duty to maintain the premises, plaintiff cannot make a prima facie case of negligence against them.
Wendy's cross-moves for dismissal of the complaint on the ground that, under its lease, it had no obligation to make changes or repairs to structural elements of the premises, such as, allegedly, a handrail, and that One Seaport was responsible, as owner, for the condition of the stairs.
II. Discussion
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman , 39 AD3d 303 , 306 (1st Dept 2007), citing Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact.'" People v Grasso , 50 AD3d 535 , 545 (1st Dept 2008), quoting Zuckerman v City of New York, 49 NY2d 557, 562 (1980).
If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied. Rotuba Extruders v Ceppos, 46 NY2d 223 (1978); Grossman v Amalgamated Housing Corporation, 298 AD2d 224 (1st Dept 2002).
In order to plead a cause of action in negligence, there must be evidence of a duty owed to the plaintiff by the defendant, a breach of such duty, and injury proximately caused by the breach. See Solomon v City of New York, 66 NY2d 1026 (1985); Jiminez v Shahid, ___ AD3d ___, 2011 NY Slip Op 03212 (2d Dept 2011). "It is well settled that a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances." Galindo v Town of Clarkstown , 2 NY3d 633 , 636 (2004). "As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of that property [internal quotation marks and citation omitted]." Sanchez v 1710 Broadway, Inc. , 79 AD3d 845 , 846 (2d Dept 2010).
A. Motion of Seaport Park and Cooper Square
The parties are not here disputing plaintiffs' claim that the lack of a handrail was a defective condition; rather, the sole question raised is that of which entity is responsible to ensure the safety of the stairway. Seaport Park and Cooper Square refer to the deposition testimony of Seaport Park's board president, and a Cooper Square employee, to demonstrate, prima facie, that neither Seaport Park or Cooper Square had any responsibility to care for the area owned and controlled by the premise owner or its lessee, and hence, owed no duty of care to plaintiff.
Seaport Park and Cooper Square also turn to the language of the condominium by-laws (Opp. to Motion., Ex. E), which states, in pertinent part, that "[a]ll determinations . . . which affect only the Commercial Unit and do not adversely affect the Residential Section or the use of Residential Units for their permitted purposes, shall be made by the Commercial Unit Owner." Id., section 2.2. Under the by-laws, the Commercial Unit Owner has "exclusive right of use" of the Commercial Unit, and is responsible for the "operation, maintenance and repair" of the common areas appurtenant to that area. Id., section 6.15-5.
Plaintiff retorts that, under the by-laws, Seaport Park and Cooper Square retained the right to enforce the responsibilities of its commercial unit owner. Specifically, section 2.2-2 of the by-laws states that:
Subject to the provisions of subsection 2.2-1. and without limiting the generality thereof, the Condominium Board shall be empowered to make determinations and take appropriate actions with respect to the following matters: . . . 2.2-2.12. Enforcing obligations of unit owners.
In order to effect such action, the by-laws give Seaport Park the following right of access: "Each Unit Owner shall grant a right of access to his Unit to the Board, the managing agent, manager, superintendent and/or any other person authorized by any of the foregoing for the purposes of . . . removing violations . . . or for the purpose of curing defaults hereunder. . . ." Id., section 6.17-1.
Violations of a unit owner's maintenance obligations are addressed in section 6.10-1. of the by-laws, as follows:
In the event that any Unit Owners, after receipt of written notice from the Board, fails or neglects in any way to perform any obligations of his with respect to the painting, decorating, maintenance, repair or replacement of his Unit as provided in the Declaration or these By-Laws, or of any General Common Elements or Residential Limited Common Elements or Commercial Limited Common Elements for which such Unit Owner is responsible under the declaration or these By-Laws, the Board shall perform or cause to be performed such painting, decorating, maintenance, repairs or replacements unless such Unit Owner, within five days after receiving notice of such default by the Board, cure such default or in the case of a default not reasonably susceptible of a cure within such period, commences and thereafter prosecutes to completion, with due diligence, the curing of such default. All sums expended and all costs and expenses incurred in connection with the making of any such painting, decorating, maintenance, repairs, or replacements in such Unit Owner's Unit, together with interest thereon . . . shall be immediately payable by such Unit Owner to the Board.
Seaport Park further demonstrates, in the by-laws, that
Except as otherwise provided herein, all costs and expenses incurred by the Board in connection with the repair, maintenance, replacement, restoration and operation of, and any alteration, addition improvement to, the Commercial Limited Common Elements, whether or not located within the Residential Section, performed on behalf of the Commercial Unit Owner, shall be borne and promptly paid by the Commercial Unit Owner.
By-Laws, section 6.1-2.
As the forgoing language indicates, there are some situations in which Seaport Park retained to itself the right to reenter the premises to effect repairs and replacements. It is unclear, however, whether that would include attending to a missing handrail, or if the failure to attend to the correction of this alleged defect could be considered a default. As a result of the foregoing, there is a question of fact as to whether Seaport Park or Cooper Square should have entered the premises to correct the alleged defect.
B. Wendy's Cross Motion
Wendy's also denies any obligation to plaintiff, because, allegedly, under its lease (Wendy's Cross Motion, Ex. D) (Lease), it was not obligated to install or maintain a handrail on the stairs.
With regard to the "maintenance of Premises" in the Lease, section 13.A. reads as follows:
Lessee at all times during the terms of this Lease, and at Lessee's expense, Lessee shall keep the Leased Premises, and all equipment therein, including any vault and vault space to which Lessee shall have the sole and exclusive right of possession, if any, in a good and clean order and condition and shall promptly make all necessary nonstructural repairs thereto. All such nonstructural repairs shall be equal in quality and class to the original work. With respect to repairs, replacements and renewals which are of a structural nature, then, in the first instance, Lessee (and at Lessee's request, Lessor) shall request that the Board of Managers shall make such repairs in accordance with the Condominium Documents. However, in the event that the Board of Managers fails or refuses to make such structural repair[s], replacements and renewals (of [ sic] if the Board of Managers is not required to do so pursuant to the Condominium Documents), then in such instance, Lessor covenants and agrees to make such structural repairs, replacements and renewals at Lessor's expense. If the Board of Managers fails to commence such structural repairs, replacements and renewals within sixty (60) days after written demand thereof, or to diligently prosecute same through completion, then Lessor shall make such repairs, replacements and renewals as aforesaid.
Based on the foregoing language, Wendy's argues that the installation of a handrail where one had never stood, owing to the design of the arcade by Seaport Park, is a structural change to the premises which Wendy's would have no responsibility to make under the Lease.
Plaintiff correctly responds that, as the movant, Wendy's must make a prima facie showing of a right to summary judgment, which is not met by conclusory assertion that the lack of a handrail was a structural defect which could only be addressed by One Seaport or Seaport Park. Further, plaintiffs refer to other obligations covered by the Lease. For instance, under the Lease, repairs necessitated by the negligence of either party to the Lease are to be repaired by the negligent party. Lease § 13.B. However, in the event the Lessor does not make repairs for which it is obligated, "then Lessee shall have the right without prejudice to its other rights and remedies, to make such repairs and Lessee may charge the cost and expense of such repairs to Lessor which shall pay the same to Lessee. . . ." Id. Based on this language, plaintiff argues that Wendy's did have the right to make necessary repairs, even to structural elements, and could have resolved the Building Code violations allegedly created by the lack of a handrail.
Although a handrail could be found to be a structural element, it is Wendy's burden on this motion to come forward with evidence, in admissible form, such as an expert's testimony, to prove that fact, which it failed to do. Had Wendy's done so, the burden would have shifted to plaintiff to establish, in similar vein, that the lack of a handrail was a structural defect. See Pimentel v Marx Realty Improvement Co., Inc. , 55 AD3d 480, 480 (1st Dept 2008) (issue of fact as to whether "lack of a handrail in the stairwell was a structural defect that violated a specific statutory provision"); see also Zeller v Stasi, 2010 NY Slip Op 32513(U) (Sup Ct, Nassau County 2010)(same). Because Wendy's did not provide admissible support for its claim that the absence of a handrail is structural, plaintiff is not required to produce evidence that the alleged defect is nonstructural. See O'Halloran v City of New York , 78 AD3d 536 , 537 (1st Dep 2010) (if movant fails to meet its burden of proof, "summary judgment must be denied, regardless of the sufficiency of the opposition papers"). Further, the Lease indicates that Wendy's could, under some circumstances, make certain repairs to the premises, and charge the costs to One Seaport. Consequently, there is evidence that Wendy's might have been contractually obligated to correct the alleged defect itself, at One Seaport's expense. As such, Wendy's cross motion must be denied.
III. Conclusion
Summary judgment must be denied to both movants and cross movant. Questions of fact exist as to whether, under the condominium by-laws, Seaport Park and Cooper Square had an obligation or right to discern and remedy the allegedly defective condition, despite occupancy of the premises by a commercial owner. Further, Wendy's has failed to make a prima facie showing that the lack of a handrail was a structural defect that it need not address, and questions of fact exist as to Wendy's obligations under the Lease to make repairs on behalf of its lessor, One Seaport.
Accordingly, it is
ORDERED that the motion brought by defendants Seaport Park Condominium and Cooper Square Realty, Inc. for summary judgment dismissing the complaint as to themselves is denied; and it is further
ORDERED that the cross motion brought by defendant Wendy's Old Fashioned Hamburgers of New York, Inc.'s cross motion for summary judgment dismissing the complaint as to it is denied; and it is further
ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon all parties with notice of entry.