Opinion
INDEX NO. 503227/2017
01-03-2020
REVITAL SHALEM GAZAL, Plaintiff, v. 1357 BERGEN STREET, LLC, Defendant.
NYSCEF DOC. NO. 79 At an IAS Term, Part 90 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 3rd day of January, 2020. PRESENT: HON. EDGAR G. WALKER, Justice. DECISION and ORDER Motion Sequence 4 The following e-filed papers read herein:
| NYSCEF No.: | |
|---|---|
| Notice of Motion/Cross Motion,Affirmation (Affidavit), and Exhibits Annexed | 53-54, 66 |
| Affirmation (Affidavit) in Opposition and Exhibits Annexed | 67, 69, 71 |
| Reply Affirmation (Affidavit) and Exhibits Annexed | 75 |
Defendant 1357 Bergen Street, LLC (1357 Bergen), the property owner herein, moves, in motion sequence four, for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint of plaintiff, Revital Shalem Gazal (Ms. Gazal), in this premises liability action.
Background
Ms. Gazal served as the designer for a renovation project of the parlor level apartment (the apartment) located at 1357 Bergen Street in Brooklyn, New York (the premises). As designer, she selected various aesthetic elements for the apartment, and, on July 29, 2016, arrived there with her business partner to photograph the completed work. Ms. Gazal raised the lower sash of one of the two front facing, double-hung parlor windows in the living room to reduce glare for the photographs. However, the window, as she lifted the lower sash, became unmoored from its frame and fell on her causing facial injuries. She then commenced this action against 1357 Bergen, and this summary judgment motion has ensued.
The Parties Positions
1357 Bergen supports its motion by presenting the deposition transcripts of Ms. Gazal and Mr. Paul Fischer, its employee, who managed the premises as well as the expert affidavit of professional engineer Peter Delano (Mr. Delano). Ms. Gazal recounts that she visited the apartment several times over the course of the renovation project and had not noticed any issues with the subject window nor knew if anyone had touched the window. However, she avers that she informed a worker about issues relating to a bedroom window in the apartment.
Mr. Fischer testified that, as manager of the premises, he was charged with overseeing the renovation project. Consequently, he performed a walk through when he first visited the apartment, but did not inspect any of the fixtures or windows. He states that at no point did he or any of his staff perform any work on the parlor windows nor did anyone open or touch the windows. Mr. Fischer also testified that the only window that his employees highlighted was a bedroom window, which was missing a sash.
Mr. Delano's expert affidavit relates that he reviewed the deposition transcripts of Mr. Fischer and Ms. Gazal and visited the apartment. He states that the subject window had been replaced, but he examined the other, unreplaced parlor room window, as an exemplar. Mr. Delano opines that he deduced that the subject window was a double-hung window, manufactured by Crystal Window and Door Systems, Ltd. between 1998 and 2006, with a lower sash equipped with a plastic latch to permit the lower sash to be tilted inward for cleaning. Mr. Delano contended that, in his expert opinion, a defective latch mechanism could have enabled the lower sash to become unmoored from the frame and track, causing it to rotate inward and fall on Ms. Gazal. He states that, with a reasonable degree of engineering certainty, such a defect would be latent and undiscoverable during a reasonable window inspection.
1357 Bergen argues that it has demonstrated its entitlement to judgment as a matter of law dismissing the action. It essentially claims that the defect is latent, therefore, constructive notice cannot be imputed to it, and that the evidence produced shows that it did not create the defective condition nor did it have actual knowledge of the hazardous condition. 1357 Bergen thus maintains it is entitled to an order granting it summary judgment dismissing the action.
Ms. Gazal, in opposition, proffers the affidavit of an apparent relative, Victor Gazal (Mr. Gazal), who avers that he was responsible for renting the apartment upon the renovation's completion. Mr. Gazal notes that he had visited the apartment several times during the renovation period and that he observed the subject window to have been manipulated (i.e. opened, closed, and adjusted) over the course of his visits.
Ms. Gazal also presents the expert affidavit of professional engineer Harold Krongelb (Mr. Krongelb), who opines that he reviewed Mr. Fischer and Ms. Gazal's deposition transcripts and visited the apartment. Mr. Krongelb adds that he reviewed public records which the New York City Department of Housing, Preservation, and Development maintained (HPD records). Mr. Krongelb agrees with Mr. Delano's expert opinion about the accident's circumstances, namely, the latch mechanism's failure to prevent an inward tilt of the lower sash, but rejects Mr. Delano's remaining assertions. Mr. Krongelb opines that the apartment, though referenced as the parlor level, is structurally the premises' second floor. He further asserts that reviewing the HPD records revealed two open violations significant herein. The first, a violation of Administrative Code of City of New York § 27-2005, for a failure to properly repair the broken or defective lower sash in the first living room, located in apartment three on the second floor. The second, a violation of Administrative Code § 27-2005, for failing to properly repair the broken or defective lower window sash in the third bedroom, also located in apartment three on the second floor. Mr. Krongelb asserts that as these violations are consistent with the two windows that were ultimately replaced in the parlor level apartment, that he is certain that the first violation concerns the subject window. He further opines, with a reasonable degree of engineering certainty, that a casual inspection would have revealed the defect which caused Ms. Gazal's accident and that the hazardous condition could not be considered a latent defect.
Thus, Ms. Gazal argues that 1357 Bergen is not entitled to summary judgment as questions of fact exist. Critically, she submits that the competing expert evidence prevents accelerated judgment and that Mr. Gazal's affidavit raises questions as to whether an employee's manipulation of the subject window created the hazardous condition. She also cites the violations relating to the premises windows and contends that the open violations allow imputing constructive knowledge of the defect to 1357 Bergen.
1357 Bergen, in reply, initially asserts that Mr. Krongelb's expert affidavit should be rejected, as it had previously moved, in mot. seq. two, for summary judgment, and, rather than opposing the motion, Ms. Gazal cross-moved, in mot. seq three, to compel certain disclosure. 1357 Bergen then argues that the alleged open violations do not relate to the apartment or subject window herein, but to a different apartment located at the premises. 1357 Bergen contends that the controlling documents relating to the premises, principally the certificate of occupancy, do not identify the parlor level apartment as located on the second level and thus conflicts with Mr. Krongelb's assertions that the violations, specifying a second floor apartment are addressed to the parlor level apartment. Finally, 1357 Bergen challenges the substance of Mr. Krongelb's affidavit and regards his opinion as simply speculative. Thus, 1357 Bergen maintains that Ms. Gazal has failed to raise a material factual question and that it is entitled to summary judgment dismissing the action.
The court's short form order entered January 29, 2019 denied 1357 Bergen's earlier summary judgment motion, mot. seq. two, "without prejudice [and] with leave to renew after discovery is complete." The Hon. Lizette Colon in the Central Compliance Part, resolved Ms. Gazal's cross motion, mot. seq. three, by a short form order, on consent, entered February 20, 2019.
Discussion
A property owner is charged with the duty of maintaining its premises in a reasonably safe condition (Cassone v State of New York, 85 AD3d 837, 838 [2d Dept 2011]). A defendant property owner moving for summary judgment in a personal injury action arising from an alleged hazardous or defective condition on its property bears the burden of establishing that it did not create the hazardous or defective condition or have actual or constructive notice of its existence (see Parietti v Wal-Mart Stores, Inc., 29 NY3d 1136, 1137 [2017]; Reed v 64 JWB, LLC, 171 AD3d 1228, 1228 [2d Dept 2019]; Schnell v Fitzgerald, 95 AD3d 1295, 1295 [2d Dept 2012]). A defendant is deemed to have constructive notice of a defect when it was visible and apparent and existed long enough for the defendant to have discovered and remedied it before plaintiff's injury (Arevalo v Abitabile, 148 AD3d 658, 659 [2d Dept 2017]). When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed (Marinaro v Reynolds, 152 AD3d 659, 660 [2d Dept 2017]). Where an object capable of deteriorating is concealed from view, a property owner's duty of reasonable care entails periodically inspecting the potential defect's area (Hoffman v United Methodist Church, 76 AD3d 541, 542-543 [2d Dept 2010], quoting Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [1st Dept 2007], lv denied 9 N.Y.3d 809 [2007]; see also Mirkinson v Stonehill Realty Corp., 53 AD3d 534, 534 [2d Dept 2008]). It is also well settled that a property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition (Anderson v Central Val. Realty Co., 300 AD2d 422, 422 [2d Dept 2002] [internal citations omitted]).
Where the defendant has satisfied its burden of showing the absence of actual or constructive notice of the allegedly dangerous condition, the plaintiff is required to show by specific factual references that the defendant had knowledge of the allegedly recurring condition (Manzione v Wal-Mart Stores, 295 AD2d 484, 484-485 [2d Dept 2002] [internal quotation marks and citation omitted]). However, where there is evidence of a violation or citation issued concerning the defective condition, constructive notice may be imputed to the owner (see generally Morson v 5899 Realty, LLC, 171 AD3d 916, 917 [2d Dept 2019] [discussing precluding plaintiff from offering evidence that defendant had constructive notice by way of HPD-issued violations]; cf. Johnson v Wythe Place, LLC, 134 AD3d 569, 569 [1st Dept 2015]).
Here, 1357 Bergen established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not cause or create the defective condition or have actual or constructive notice of the defective condition (Parietti, 29 NY3d at 1137). Mr. Fischer's deposition and Mr. Delano's expert affidavit demonstrates that 1357 Bergen neither created nor possessed actual or constructive notice of the defective window. Mr. Fischer testified that he never performed an inspection of fixtures of the apartment, including the subject window, but Mr. Delano responds that, even if the subject window was inspected, the defect was latent and could not have been reasonably identified before the accident (Fischer deposition tr at 17, lines 4-5, at 38, lines 21-25; aff of Mr. Delano at 3, ¶ 7). Further, Mr. Fischer testified that the renovation project was limited to tiling, painting, and installing lighting fixtures (Fischer deposition tr at19-20) and that no one manipulated the subject window during the renovation project (id. at 24-25). 1357 Bergen thus demonstrated that it did not cause the alleged defect. Finally, Mr. Fischer testified that he never observed an apparent defect in the subject window and only was notified of a window issue regarding a bedroom window (id. at 25-26). Therefore, 1357 Bergen demonstrated that it neither created nor had actual or constructive notice of the defective window.
Hence, the burden shifts to Ms. Gazal to present sufficient evidence raising a material question of fact (Zuckerman, 49 NY2d at 562), which she satisfied by offering, among other evidence, Mr. Krongelb's expert affidavit. That affidavit presents both the traditional notion that competing expert opinions present a credibility issue for the trier of fact to determine (Rapaport v Sears, Roebuck & Co., 28 AD3d 449, 450 [2d Dept 2006], citing Gerard v Inglese, 11 AD2d 381, 382 [2d Dept 1960]), and explains that reviewing relevant materials led him to conclude, with a reasonable degree of engineering certainty, that the defect was not latent, and would have been revealed with a reasonable inspection (Hoffman, 76 AD3d at 542-543). In addition, Mr. Fischer acknowledges never checking any of the apartment windows despite there being multiple open violations concerning premises' windows and an employee making him aware of a specific defect with an apartment window. Thus a factual question has arisen whether 1357 Bergen satisfied its landowner's duty to maintain its premises in a reasonably safe condition (Cassone, 85 AD3d at 838; Hoffman, 76 AD3d at 542-543; Anderson, 300 AD2d at 422). The parties' remaining contentions, to the extent specifically not addressed herein, are moot and/or without merit. Accordingly, it is
ORDERED that 1357 Bergen's motion, mot. seq. four, is denied.
This constitutes the decision and order of the court.
ENTER,
/s/
J. S. C.