Opinion
23006/2014E
05-03-2018
Amelia T. CORREA, Plaintiff, v. 3716–42 E. TREMONT ASSOC., LLC., et als., Defendant.
Attorneys for defendants 3716–42 E. Tremont Associates, LLC. and Weiss Realty LLC: Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. (Kaitlyn P. Long, Esq.) Attorneys for defendant AAH Corner Store: O'Connor, O'Connor, Hintz & Deveney, LLP. (Eileen M. Baumgartner, Esq.) Attorneys for plaintiff: Leav & Steinberg, LLP. (Daniela F. Henriques, Esq.)
Attorneys for defendants 3716–42 E. Tremont Associates, LLC. and Weiss Realty LLC: Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. (Kaitlyn P. Long, Esq.)
Attorneys for defendant AAH Corner Store: O'Connor, O'Connor, Hintz & Deveney, LLP. (Eileen M. Baumgartner, Esq.)
Attorneys for plaintiff: Leav & Steinberg, LLP. (Daniela F. Henriques, Esq.)
Mary Ann Brigantti, J.
Upon the foregoing papers, defendants 3716–42 E. Tremont Associates, LLC. ("ETA") and Weiss Realty LLC. ("Weiss")(collectively, "Defendants") move for (1) summary judgment, dismissing the plaintiff's complaint in its entirety and any cross-claims, (2) for costs and disbursements incurred with making this motion, and (3) for such other and further relief as this Court may deem just and proper. The plaintiff Amelia T. Correa ("Plaintiff") and co-defendant AAH Corner Store Express Corporation ("AAH"), oppose the motion.
I. Background
This action arises out of an alleged slip and fall accident that occurred on February 6, 2014. Plaintiff alleges that on that date, she was walking on the sidewalk on Randall Avenue near 3742 East Tremont Avenue in the Bronx, New York, when she slipped and fell on an accumulation of snow and ice. Defendants own and manage the property abutting the accident location. Defendant AAH is a tenant of the premises and leases a grocery store located at 3742 East Tremont Avenue. Defendant Brewski's Bar & Grill, Inc. ("Brewski's") is another tenant of the premises and was responsible for maintaining a parking lot and driveway located near Plaintiff's accident location. Defendants move for summary judgment on the grounds that they are out-of-possession landlords who did not perform any snow or ice removal on the subject sidewalks, as it was the commercial tenants' responsibility to do so. Defendants also seek summary judgment on their cross-claims against both of the commercial tenants for contractual and common law indemnification. Plaintiff and AAH both oppose the motion. For the reasons stated infra , Defendants' motion is granted in part and denied in part.
II. Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ; Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id. , see also Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC. , 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. ( Bush v. Saint Claire's Hospital , 82 NY2d 738 [1993] ).
III. Applicable Law and Analysis
A landowner has a general duty to maintain his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury, and the burden of avoiding the risk (see Broderick v. RY Management Co., Inc. , 71 AD3d 144 [1st Dept. 2009] ; citing Basso v. Miller , 40 NY2d 233, 241 [1976] ). To impose liability upon a landowner or occupier in a premises liability-related action, there must be evidence that a dangerous or defective condition existed and that the defendant either created or had actual or constructive notice of the condition (see Piacquadio v. Recine Realty Corp. , 84 NY2d 967 [1994] ).
The landowner's duty of care, however, is premised on the landowner's exercise of control over the property (see Butler v. Rafferty , 100 NY2d 265 [2003] ). Therefore, a landowner who transfers possession and control of a premises to others is generally not liable for injuries caused by dangerous conditions on the property (see Chapman v. Silber , 97 NY2d 9 [2001] ). Exceptions to this general rule apply where a landowner is contractually obligated to maintain the premises, or has a contractual right to re-enter, inspect, and make repairs at the tenant's expense, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision (see Johnson v. Urena Service Center , 227 AD2d 325 [1st Dept. 1996] ; Heim v. Trustees of Columbia Univ. , 81 AD3d 507 [1st Dept. 2011] ). When determining "out-of-possession" status of a landowner, the court looks not only to the terms of written agreements but to the parties' course of conduct, including, but not limited to, the landowner's ability to access the premises, to determine whether the landowner surrendered control over the property such that the landowner's duty of care is extinguished as a matter of law ( Gronski v. County of Monroe , 18 NY3d 374 [2011] ).
New York City Administrative Code § 7–210 provides that: "the owner of real property abutting any sidewalk ... shall be liable for any injury to property or personal injury ... proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition" (New York City Admin Code § 7–210[a] ). Subsection (b) of the statute states that "[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to ... the negligent failure to remove snow, ice, dirt or other material from the sidewalk." However, the First Department has made it clear that, notwithstanding § 7–210, where a lease provides that the tenant is responsible for snow and ice removal from a sidewalk, and a landlord has no contractual obligation to maintain the sidewalk, an out-of-possession landowner is not liable for injuries arising out of an allegedly dangerous snow and ice condition on the sidewalk (see Bing v. 296 Third Ave. Group, L.P. , 94 AD3d 413, 413–14 [1st Dept. 2012], lv. den. , 19 NY3d 815 [2012] ["...if the ramp were part of the sidewalk, landlord was not responsible for clearing it of snow or ice because the lease provided that tenant was responsible for maintaining its premises and removing snow and ice from the sidewalk. Thus, the motion court's application of Administrative Code § 7–210(b)...was misplaced."]; to the same effect, see Xiang Fu He v. Troon Management, Inc. , 157 AD3d 586, 587 [1st Dept. 2018] ; Cespeda v. KRF Realty LLC. , 148 AD3d 512 [1st Dept. 2017] ).
In this case, Defendants satisfied their initial burden of proving that they were out of possession landlords with no contractual obligation to maintain the sidewalk at issue. Defendants' witness Robert Herskowski testified that at relevant times, neither defendant Weiss nor ETA had any employees at the premises performing any maintenance or cleaning work either inside or outside (see Herskowski EBT at 19–20; 30–31). It was Herskowski's understanding that, pursuant to written lease agreements, the commercial tenants at the property were responsible for cleaning their sidewalks (id. at 28–29; 31–32). Herskowski noted that the "grocery store" tenant at 3742 East Tremont Avenue was responsible for maintaining and cleaning the sidewalks in front of the store and on Randall Avenue up until the driveway entrance (id. at 32). Another commercial tenant, Brewski's, was responsible for maintaining and cleaning the driveway (id. ). Herskowski also identified two lease agreements Defendants entered into with AAH and Brewski's, that he personally signed on behalf of Weiss and ETA (id. at 26; 33). Both of these agreements provided that the commercial tenants were responsible for inter alia snow removal and/or maintenance of their sidewalks (id. at 29; 37). Herskowski also stated that he had received no prior complaints concerning the condition of the sidewalks, aside from a lawsuit that had been filed approximately 10 years before this accident occurred (id. at 65).
The representatives who appeared on behalf of both of the tenant-defendants confirmed that it was the tenants' responsibility to perform snow and ice removal on the sidewalk. Neither of the representatives refuted Herkowski's testimony that Defendants had no employees on the premises or otherwise raised an issue of fact as to whether Defendants were in possession or control of the premises. Ali Awad, owner of AAH/the grocery store at the time of this accident, testified that AAH had a lease with the owners of the property commencing some time in 2002 or 2003 up until May 2014 (Awad EBT at 11–12). Prior to February 2014, Awad would do the snow removal in front of the building to the corner of the building, but he did not perform snow removal on the driveway (id. at 22). Awad stated that snow and ice removal was "mentioned in the lease" and prior to this accident, he had no discussions with Weiss about snow removal because he knew "that it was [Awad's] job" (id. at 26). Albert Torressen, who appeared on behalf of Brewski's, testified that his son, who managed the business, was responsible for snow and ice removal from the sidewalks in front (Torressen EBT at 8–9). With respect to the driveway and entrance, Brewski's hired a snow removal service back in February 2014 to plow the parking lot and driveway (id at 14). He further noted that the landlord was aware that he performed snow removal in the parking lot (id at 28).
Defendants also submit three leases regarding use of the premises. With respect to defendant AAH, Defendants submit a July 1, 2002 lease between Weiss and Ali A. Awad, which provides that the tenant "shall ... take good care of the demised premises and the fixtures and appurtenances therein and the sidewalks adjacent thereto" (Par. 4). Paragraph 30 of that same lease provides, in pertinent part, "[t]enant shall, at Tenant's expense, make all repairs and replacements to the sidewalks and adjacent thereto, and keep said sidewalks and curbs from snow dirt and rubbish." An October 1, 2013 lease between Weiss and Ahmed A. Awad of AAH provides that "[t]enant shall keep in good condition and repair the sidewalks and curbs adjacent thereto, and shall keep said sidewalks and curbs free from snow, ice, dirt and rubbish" (Par. 20). The October 1, 2011 lease agreement between Weiss and Brewski's provides that "[t]enant shall, at Tenant's own expense, make all repairs and replacements to the sidewalks and curbs adjacent thereto, keep said sidewalks and curbs free from snow, ice, dirt, rubbish and maintain sidewalks in a reasonably safe condition in compliance with requirements of law" (Par. 30).
The foregoing evidence demonstrates that Defendants did not create the allegedly hazardous snow and ice condition on the sidewalk or have actual notice of it. Furthermore, Defendants had no constructive notice of the allegedly defective condition because they were out-of-possession landlords who surrendered control of the premises to the commercial tenants. Defendants had no contractual obligation to maintain the sidewalks at issue, and the snow and ice condition that allegedly caused this accident does not constitute a significant structural or design defect (see Xiang Fu He v. Troon Management, Inc. , 157 AD3d 586, 587 ; Bing v. 296 Third Ave. Group., L.P. , 94 AD3d 413 ).
Plaintiff argues in opposition that Defendants failed to demonstrate prima facie entitlement to summary judgment because they failed to produce a witness on behalf of property owner-ETA. However, while Herskowitz did not have an ownership interest in the premises, he had the authority to enter into lease agreements on behalf of ETA and thus demonstrated that he had personal knowledge regarding ETA's involvement and responsibilities regarding this property. Plaintiff also argues that Defendants failed to demonstrate a maintenance routine regarding snow and/or ice removal and failed to state when the premises was last inspected. However, where a landowner claims to be out-of-possession, it need not provide a witness with actual knowledge as to the condition of the sidewalk or an inspection thereof prior to the accident in order to demonstrate an absence of constructive notice of the defective condition (see, e.g., Cepeda v. KRF Realty, LLC., supra ; see generally Lopez v. 1372 Shakespeare Ave. Housing Development Fund Corp. , 299 AD2d 230, 231 [1st Dept. 2002] ; see also Jean–Baptiste v. 153 Manhattan Ave. Housing Dev. Fund Corp. , 124 AD3d 476 [1st Dept. 2015] ). Plaintiff and AAH also asserts that Defendants remain liable for the condition on the sidewalk pursuant to New York Administrative Code § 7–210(b). However, as noted supra , the First Department has held that where a landlord claims to be out of possession and the possessors/tenants have assumed the obligation to remove snow and ice from the abutting sidewalks, the landlord/landowner is entitled to summary judgment notwithstanding § 7–210 (see Bing v. 296 Third Ave. Group., L.P ; Cepeda v. KRF Realty, LLC. ; Xiang Fu He v. Troon Management, Inc. ).
AAH asserts in opposition that the July 1, 2002 lease was not authenticated and never exchanged during discovery. This contention is unavailing because, aside from the terms of the written lease, the deposition testimony from AAH and Defendants establishes the parties' respective understanding regarding their maintenance responsibilities, and the parties' course of conduct can support a landowners' prima facie showing of out-of-possession status (see Gronski v. County of Monroe , 18 NY3d at 382 ). Here, there is no dispute that the commercial tenants understood that they were exclusively responsible for snow and ice removal, and they in fact performed snow and ice removal during their respective tenancies without any involvement from the owner/Defendants.
Plaintiff argues that Defendants have not surrendered control of the premises, because Defendants have the right to reenter the premises to, inter alia , conduct inspections, make any necessary repairs, and perform any work that may be necessary by reason of AAH and/or Brewski's failure to perform such work. However, the landlord/ETA's reservation of rights to re-enter the premises and to make inspections and repairs has no bearing on its liability where, as here, the defect at issue does not constitute a significant structural or design defect (see Cepeda v. KRF Realty, LLC. ; Xiang Fu He v. Troon Management, Inc. ; Bing v. 296 Third Ave. Group, L.P.; Kittay v. Moskowitz , 95 AD3d 451, 451–52 [1st Dept. 2012] ; compare Hakim v. 65 Eighth Ave. LLC. , 42 AD3d 374 [1st Dept. 2007] [defendants were expressly responsible under the lease for repairs to structure and the roof]; see also Guzman v. Haven Plaza Hous. Dev. Fund Co. , 69 NY2d 559 [1987] [alleged defect violated specific safety provision] ).
In light of the foregoing, Defendants are entitled to summary judgment, dismissing Plaintiff's complaint and any cross-claims asserted against them.
Defendants also seek summary judgment with respect to their cross-claims for contractual and common law indemnification against AAH and Brewski's. AAH argues that this relief should not be considered because Defendants failed to seek such relief in their Notice of Motion ( CPLR 2214[a] ). The Court finds that, although Defendants' Notice of Motion failed to specifically state that it sought summary judgment on their cross-claims, "a court may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing on the papers on both sides" (see HCE Associates v. 3000 Watermill Lane Realty Corp. , 173 AD2d 774, 774 [2nd Dept. 1991] ). Consideration of such relief is appropriate where the "relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically" (id. , see also Lubov v. Berman , 260 AD2d 236 [1st Dept. 1999] ). In this case, Defendants' the moving papers seek a grant of summary judgment pursuant to CPLR 3212, and "[f]or such other and further relief as this Court may deem just and proper," and the body of the affirmation in support clearly seeks entry of summary judgment on Defendants' cross-claims. AAH thus had ample notice that Defendants were also seeking summary judgment on their cross-claims, and such relief is not dramatically different from the relief specifically requested in the moving papers.
Defendants' cross-motion for summary judgment with respect to their cross-claims for common-law indemnification is denied as moot. Since there is no viable cause of action against Defendants, as determined herein, their cross-claims for indemnification are rendered academic (see see, e.g., Adamczyk v. Hillview Estates Dev. Corp. , 229 AD2d 940, 940 [4th Dept. 1996], lv. den. , 89 NY2d 801 [1996] ; see also Imtanios v. Sachs , 44 AD3d 383, 385 [1st Dept. 2007] ). On the issue of contractual indemnification, to the extent that Defendants seek reimbursement for fees and costs, Defendants' motion is denied because they failed to demonstrate that they have incurred "liabilities, obligations, damages, penalties, claims, costs and expenses" for which they have not or will not be reimbursed by insurance (AAH July 1, 2002 lease, at Par. 8; Brewski's lease, at Par. 8; see, e.g., Diaz v. Lexington Exclusive Corp. , 59 AD3d 341 [1st Dept. 2009] ). Furthermore, at this juncture, an award of summary judgment on cross-claims for contractual indemnification is premature because there are factual issues as to which tenant/defendant was responsible for maintaining the accident location.
IV. Conclusion
Accordingly, it is hereby
ORDERED, that Weiss and ETA's motion for summary judgment is granted to the extent that Plaintiff's complaint and any cross-claims asserted against the moving defendants are dismissed with prejudice, and it is further,
ORDERED, that Weiss and ETA's motion for summary judgment on their cross-claims for contractual and common law indemnification are denied to the extent stated herein, and it is further,
ORDERED, that any relief requested but not specifically granted herein is denied.
This constitutes the Decision and Order of this Court.