Opinion
8072 Index 107724/09
01-10-2019
Kobe REID, et al., Plaintiffs–Respondents, v. The CITY OF NEW YORK, et al., Defendants, Aguila, Inc., Defendant–Appellant.
Correia, King, Fodera, McGinnis & Liferiedge, New York (Kevin J. McGinnis of counsel), for appellant. Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondents.
Correia, King, Fodera, McGinnis & Liferiedge, New York (Kevin J. McGinnis of counsel), for appellant.
Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondents.
Acosta, P.J., Renwick, Manzanet–Daniels, Webber, Kahn, JJ.
The injured plaintiff alleges that he tripped on a defect on a landing and fell down a staircase while residing in a hotel used as transitional housing for homeless families. Defendant Aguila argues it did not owe any duty of care to plaintiff because, at the time of the accident, it did not occupy, control or make special use of the premises (see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296–297, 532 N.Y.S.2d 105 [1st Dept. 1988], app dismissed in part, denied in part 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671 [1988] ). However, the evidence submitted by Aguila in support of its motion, including a contract between Aguila and the City, was insufficient to demonstrate it lacked "any authority to maintain or control the area in question, or to correct any unsafe condition" ( Gibbs v. Port Auth. of N.Y., 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 [1st Dept. 2005] ; cf. Jackson v. Board of Educ. of City of N.Y., 30 A.D.3d 57, 60, 812 N.Y.S.2d 91 [1st Dept. 2006] ). Although Aguila's employee testified that co-defendant Lades Group was solely responsible for maintenance, that employee did not know who owned the premises and neither she nor the City's witness was personally familiar with the contract, if any, under which Aguila operated at the premises at the time of the accident. Thus, Aguila failed to meet its prima facie burden on the motion for summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). The motion court also properly denied the motion on the alternate basis that the motion was premature because neither Aguila nor defendant City had provided full responses to discovery demands pertinent to the issues of ownership, control and maintenance of the premises ( CPLR 3212[f] ; Marabyan v. 511 W. 179 Realty Corp., 165 A.D.3d 581, 84 N.Y.S.3d 780 [1st Dept. 2018] ).