Opinion
No. 01 Civ. 6531 (GEL)
January 3, 2003
Attorney for Plaintiff, Raphael Ortiz: Erik J. Swenson with the Law Offices of Felix Nihamin, P.C., from New York, NY.
Attorney for Defendant, Rock Cut Deli.: Christopher R. Ingrassia with the Law Office of Patrick Colligan from Harrison, NY.
OPINION AND ORDER
Plaintiff Raphael Ortiz was injured when a pizza oven he was delivering to defendant Rock Cut Deli fell from a platform dolly onto his ankle. Defendant moves for summary judgment in the ensuing personal injury action. The motion will be granted.
The facts of the case are straightforward and undisputed. Ortiz was employed by Dirisi Trucking a trucking company, as a trucker's assistant. (Ortiz Dep. at 7-11.) On June 11, 1998, he and his boss. Robert Dirisi, were delivering a pizza oven from the warehouse of a company called National Electronic Transit to the defendant Deli. V/hen they arrived at the Deli, which is a combination deli and gas station surrounded by a parking lot, Ortiz and Dirisi backed their truck as close to the building as they could, and proceeded to lift the heavy oven, using the truck's hydraulic lift, onto two platform dollies to push it to the building. No one from the Deli provided any assistance, equipment or instructions to Ortiz and Dirisi. As the two truckers were moving the oven across the parking lot toward the door, they stopped after only about six to ten feet "because it was cracks on the street there, like it was too bumpy for us." (Id. at 33, 35-36.) While Dirisi was putting a ramp into position to assist in pushing the dollies over a curb, and Ortiz was holding the oven in position, the oven "started tilting on [Ortiz]," and fell onto his ankle, causing a serious injury. (Id. at 37.)
Under New York law, in order to be liable in negligence, a defendant must have a duty to the plaintiff and must have breached that duty, thus proximately causing the plaintiffs injuries. Pulka v. Edelman, 40 N.Y.2d 781 (1976). Whether a duty is owed is a question of law. DeAngelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055 (1983); Palsgraf v. The Long Island R.R. Co., 248 N.Y. 339, 341 (1928). The complaint advances two theories of negligence against the Deli, asserting first, that the Deli was negligent "in failing and omitting to provide proper equipment and proper support" for the delivery, and second, that the Deli failed to properly maintain the sidewalk or parking lot where the accident occurred. Both theories are legally flawed.
With respect to the first theory, the Deli had no duty to provide tools, supervision, or assistance to a delivery person delivering merchandise. So far as the record reflects, the Deli had merely purchased the oven, and neither Ortiz nor his employer had any contractual relationship with the Deli. It is undisputed that Ortiz worked at all times under the supervision of his own employer, that the equipment being used was provided by Dirisi Trucking, and that no agent or employee of the Deli was responsible for either the equipment used or the decisions made with respect to how the oven should be moved. The Deli had no responsibility to intervene in or supervise the efforts of Dirisi and Ortiz. Ortiz fails to cite any New York authority for the proposition that a business owner owes a duty to supply assistance or materials to a trucking delivery service hired by a vendor to deliver an appliance to the business. Indeed, in his response to defendant's summary judgment motion, Ortiz makes no effort to defend this theory of negligence, and so must be held to have abandoned it. General Motors Corp. v. Villa Marin Chevrolet, Inc., No. 98 Civ. 5206 (JG), 2000 WL 271965, at *16 (E.D.N.Y. Mar. 7, 2000).
With respect to the second theory, the Deli offers an undisputed affidavit from an officer of the Albany Post Property Association, Inc., who avers that the premises are owned by that company, not by the defendant Deli, which leases the building in which its store is located. (Cheung Aff. ¶ 3.) The affidavit goes on to state that under the terms of the lease, the property owner "is responsible for all structural repairs to . . . the asphalt parking lot and cement pad surrounding the pumps," and that the tenant Deli has "no . . . duty to maintain or repair these areas and has never engaged in such repairs and maintenance." (id. ¶ 4.) Ortiz offers no evidence to contradict the affidavit, nor does he seek an opportunity to depose the affiant, or suggest any other evidence that could support a contrary finding.
Thus, assuming that genuine issues of fact exist as to the condition of the pavement and the causal relationship between any defect and the accident, on the undisputed facts, the Deli was not responsible for the pavement. Although New York law provides that occupiers of land, as well as landowners, owe a duty to persons foreseeably present on the land to maintain it in a reasonably safe condition, Duclos v. County of Monroe, 685 N.Y.S.2d 549, 550 (4th Dep't 1999), a lessee, such as the Deli, may be held liable for injuries that occur on common areas not included within the lease only if it had the "control necessary to effect repair" of the common areas. Putnam v. Stout, 38 N.Y.2d 607, 613 (1976) (holding that tenant could be held liable for injuries sustained on adjoining driveway because lease gave it responsibility for repairs to the driveway). This rule stems from the recognition that "liability for a dangerous condition on property is predicated upon occupancy, ownership, [or] control . . . of such premises," Balsam v. Delma Eng'g Corp., 532 N.Y.S.2d 105, 108 (1st Dep't 1988), and, absent an explicit covenant to do so, a tenant does not exercise control over common areas not included in her lease, even if she and her guests are entitled to use those areas. Dollard v. Roberts, 130 N.Y. 269 (1891). Here, the Deli's lease included only the building in which the Deli was located; not the parking lot and the gas pumps (Cheung Aff. ¶ 3), and the landlord expressly assumed all responsibility for repairing the parking lot in the lease. (Id. ¶ 4.) In a recent case involving almost identical facts and relationships between the parties, the Appellate Division found that a restaurant-tenant could not be held liable for injuries sustained by its customer in the restaurant's parking lot, since the restaurant's lease did not include the parking lot, and the landlord had assumed "all control and responsibility for the maintenance of the . . . parking lot."Kozak v. Broadway Joe's, 745 N.Y.S.2d 139, 141 (3d Dep't 2002). Thus, the Deli, as tenant, has no duty to third parties to make repairs to the pavement surrounding its building, because the Albany Post Property Association remains solely responsible for that portion of the premises.
Finally, Ortiz's memorandum of law appears to argue a third theory of liability, not asserted in his Complaint, that the Deli had a duty to warn Ortiz of the defects in the pavement, and that issues of fact exist as to the condition of the pavement and Ortiz's knowledge of that condition. (Pl. Mem. at 2-3.) This theory of liability is undermined by Ortiz's deposition testimony. Under New York law, a lessee or other occupier of property has no duty "to warn against a condition that can readily be observed by those employing the reasonable use of their senses." Gustin v. Ass'n of Camps Farthest Out, Inc., 700 N.Y.S.2d 327, 330 (4th Dep't 1999) (quoting Duclos, 685 N.Y.S.2d at 550-51). Since Ortiz testified that he noticed that the pavement was cracked and bumpy (Ortiz Dep. at 33), the condition of the pavement was visible, and Ortiz had actual notice of it. Thus, the Deli had no duty to warn him of the condition of the pavement.
Accordingly, Ortiz has not presented a legally viable theory of negligence on the part of the Deli, which accordingly is entitled to summary judgment. The defendant's motion for summary judgment is granted, and the Clerk is respectfully directed to enter judgment for the defendant and close the case.