Opinion
11840/2011
03-10-2015
Carmen Robles, Plaintiff, v. The City of New York, THE NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, MELCARA CORP., PREET & B CONSTUCTION CORP, LOJO REALTY HOLDING CORP. ACCREDITED HOME LENDERS, INC and MIL CAMP REALTY CORP., Defendant.
Kelby N. Bowman, Esq. Talisman & Delorenz & Pinnisi, P.C. Attorney for Plaintiff 14 Wall Street, Suite 3D New York, New York 10005 Steven Morgenlender, Esq. Shein & Associates Attorney for Defendant Melcara Corp. 575 Underhill Boulevard-Suite 112 Syosset, New York 11791 Zachary W. Carter, Esq. By: P. Max Colmers, Esq. The Corporation Counsel Attorney for Defendant The City of New York Law Department 350 Jay Street, 8th Floor Brooklyn, New York 11201 Peter M. Kutil, Esq. King & King, LLP Attorney for Defendant Preet & B Construction 27-12 Thirty-seventh Avenue Long Island City, New York 11101
Kelby N. Bowman, Esq.
Talisman & Delorenz & Pinnisi, P.C.
Attorney for Plaintiff
14 Wall Street, Suite 3D
New York, New York 10005
Steven Morgenlender, Esq.
Shein & Associates
Attorney for Defendant Melcara Corp.
575 Underhill Boulevard-Suite 112
Syosset, New York 11791
Zachary W. Carter, Esq.
By: P. Max Colmers, Esq.
The Corporation Counsel
Attorney for Defendant
The City of New York
Law Department
350 Jay Street, 8th Floor
Brooklyn, New York 11201
Peter M. Kutil, Esq.
King & King, LLP Attorney for Defendant Preet & B Construction
27-12 Thirty-seventh Avenue
Long Island City, New York 11101
Lara J. Genovesi, J.
Upon the foregoing papers, defendant Melcara Corp. ("Melcara") moves by motion, sequence number three, for an order to: (1) dismiss Plaintiff's Carmen Robles ("Plaintiff") complaint; (2) dismiss all cross claims of Preet & B Construction Corporation ("Preet)", New York City ("City") and New York City Department of Housing Preservation and Development ("HPD"); and (3) grant summary judgment pursuant to CPLR §3212 on the basis that the claims lack merit and there are no triable issues of fact. Plaintiff opposes the application.
A short form order was entered into on January 16, 2015, wherein Melcara's application was marked off the calendar due to a pending settlement between Plaintiff and Melcara. Subsequently, by letter dated January 28, 2015, on notice to all parties, Melcara informed this Court that they withdrew their motion as to Plaintiff. Melcara's motion to dismiss all cross claims of Preet, New York City, and HPD's was also granted.
The letter states that "we are in receipt of the closing papers from plaintiff's counsel; therefore the portion of our Motion referable to the plaintiff can be decided/withdrawn as moot"
Defendant Preet cross moves by motion, sequence number four, for an order granting: (1) summary judgment pursuant to CPLR §3212; (2) dismissal of the complaint against Preet; (3) summary judgment and dismissal of all cross claims against Preet for contribution or indemnification; and (4) for such other relief as the court may deem just and proper. Plaintiff opposes the application. Melcara supports the application.
Plaintiff cross moves by motion, sequence number five, seeking an order to (1) compel the City and Preet to produce witnesses for depositions on a date certain or to be precluded from testifying at time of trial; (2) striking the City's answer for failing to comply with a prior court order and failing to respond to Plaintiff's notice of discovery and inspection dated July 2, 2013; and (3) extending Plaintiff's time to file a note of issue which was due to be filed on August 29, 2014.
Defendants City and HPD cross move by motion sequence number six seeking an order to: (1) dismiss the complaint and any and all cross-claims; (2) grant summary judgment in favor of the City pursuant to CPLR §3212; and (3) for such other and further relief as the court may deem just and proper. Plaintiff opposes the application for summary judgment.
Facts and Procedural Background
Plaintiff allegedly sustained injuries on December 10, 2010, when she tripped and fell on an interior staircase located at 27 Beaver Street, Brooklyn, New York. This location, which is a six family dwelling, is Plaintiff's residence. Plaintiff alleges that as a result of Defendants' negligence there was a raised, loose or uneven metal stripping or nosing on the step and the lights were not working properly.
At the time of the alleged accident on December 10, 2010, it is undisputed that Defendant Mil Camp Realty was the record owner of the property. Default judgment against Defendant Mil Camp Realty was granted on November 18, 2011 by the Hon. Richard Velasquez. Also at the time of the alleged accident, the property was under the control of a 7-A Administrator pursuant to Real Property and Proceedings Law ("RPAPL") §778 .
Upon finding that there is a condition dangerous to life, health or safety, a 7—A Administrator can be appointed. Pursuant to RPAPL § 776, the administrator is responsible for rehabilitating the building. The 7—A Administrator is typically empowered to, among other things, order the necessary materials, labor and services to remove or remedy the conditions (RPAPL § 778).
The subject privately owned property was part of HPD's Alternative Enforcement Program ("AEP") from 2008 until the appointment of the 7-A Administrator. This program was created as a means to alleviate emergency conditions in the most distressed buildings in New York City. During this AEP period, the City entered into a HPD Construction Management Contract ("contract") with co-Defendant Melcara to perform construction management services for work at various buildings for HPD. The term of the contract is from February 15, 2008, through February 14, 2011. 27 Beaver Street is not specified in the contract, nor are other addresses. Rather, "Requests for Scope of Work" and "Open Market Orders" were issued by HPD to Melcara in furtherance of the contract. Neither the request orders nor the work reports include any work on the interior staircase or lighting at or near the interior staircase of 27 Beaver Street where plaintiff's alleged accident occurred.
Melcara provides an affidavit of merit of John Chatzky, President of Melcara, dated December 12, 2013. Mr. Chatzky's affidavit indicates Melcara was contracted by HPD to perform delineated work at 27 Beaver Street. Melcara, thereafter, subcontracted the work to Preet. Mr. Chatzky's sworn affidavit indicates that Melcara and Preet were not authorized to make, nor did they make or have a duty to make repairs to the interior staircase. In the spring of 2009, Melcara finished its work and received payment from the City. At that time, the City closed out the contract with Melcara and there is no indication that the City made complaints to Melcara about the performance of their work.
Additionally, Mark Pavlick, a Melcara supervisor and its senior project manager, testified at an examination before trial on May 22, 2013, and August 9, 2013. Mr. Pavlick testified that Melcara had several similar AEP contracts with the City. Accordingly to Pavlick, the City calls on Melcara to make emergency repairs at various sites and provides a list of items to be fixed. Further, Pavlick avers that Melcara assesses and verifies the work, prepares scope of work drafts based on HPD's direction and its own findings and thereafter, Melcara then engages a subcontractor to perform the work.
Mr. Pavlick, states that as project manager for Melcara, he entered into a Construction Management Subcontract ("subcontract") with Preet, by Bishan Ghotra, President of Preet. In furtherance of the subcontract, Mr. Pavlick alleges that he and Mr. Ghotra had daily communications and Mr. Pavlick often visited 27 Beaver Street and observed Preet's work pursuant to Melcara's role as construction manager. Mr. Pavlick testified that Preet performed work in bathrooms, kitchens, painted and performed some structural work to apartments pursuant to the scope of the work orders. The subcontract, entered into on October 27, 2008, had a completion date of December 15, 2008, however, Preet maintains that it completed the work at the premises in the spring of 2009. This Court notes that the alleged incident herein occurred on December 10, 2010.
Preet annexed the affidavit of Bishan Ghotra dated May 19, 2014. Mr. Ghotra indicated in his affidavit that Preet was subcontracted by Melcara to "perform certain specific items" at the subject premises during the AEP. Ghotra indicates in his affidavit that the subcontract did not call for Preet to make any repairs or perform any work related to the interior staircase at 27 Beaver Street. Ghotra further indicates that Preet did not make, had no legal duty or responsibility to make and did not perform any repairs or work at or related to the interior staircase at the premises. Ghotra further avers that Preet completed the work stated in the subcontract in the spring of 2009 and has not returned since that time. Thereafter, Preet received payment for the work it performed under the subcontract and is not aware of any complaints from Melcara or the City regarding the work completed under the subcontract.
The City contends, by counsels affirmation, that none of the contracted work with Melcara or various detailed scope of work orders indicate that work was to be performed by Melcara or its subcontractor at or on the staircase where the December 10, 2010, accident occurred. Additionally, the City maintains that Melcara assumed all liability because it performed its duties under the contract as an independent contractor, pursuant to Article 20.1 of the contract. The City also contends that Melcara is required to indemnify the City for any and all claims arising out of its performance of the contract, pursuant to Article 15.5 of the contract.
During the latter part of the AEP period and after the emergency repair work was allegedly completed by Preet, the property was considered for a 7-A appointment. Pursuant to HPD's procedure, a 7-A counselor was assigned to the property to determine the feasibility of such appointment; Mike Bruen was the 7-A counselor assigned to 27 Beaver Street. Bruen testified at an examination before trial, on June 28, 2013, as to the general responsibilities and duties of a 7-A counselor, but he did not specifically recall his assessment of 27 Beaver Street. He testified that the duties and responsibilities of 7-A counselor include: walk-throughs of the property; conducting an investigation; and generating a feasibility report to assess and recommend potential properties for a 7-A administrator appointment. Notes and photos are generally taken in connection with these assessments. The feasibility reports, photos and notes are stored at HPD headquarters at 100 Gold Street, New York, New York.
Based on the assessments, findings and recommendations of the 7-A counselor, an action was commenced in Housing Court pursuant to Article 7-A of the RPAPL where HPD sought an order appointing a 7-A administrator for 27 Beaver Street. On October 12, 2010, Miriam Rodriguez, of Innovative Properties, was appointed the 7-A
administrator of the property, by order and judgment of the Honorable Inez Hoyas.3 This was two months prior to Plaintiff's alleged trip and fall herein.
Plaintiff testified during a deposition on July 11, 2012, August 15, 2012 and September 10, 2012. During the deposition, Plaintiff testified to the circumstances related to the alleged accident on December 10, 2010. At the deposition for the within matter, Plaintiff also testified to a prior accident she had at 27 Beaver Street on July 3, 2009, when she tripped and fell on a door saddle or floor, at the premises. Plaintiff commenced an action for injuries sustained on July 3, 2009, and settled that action in October 2014.
Plaintiff's prior action is Carmen Robles vs. Wade, Mil Camp Realty, LoJo Realty, Accredited Home Lenders (Supreme Court, Kings County, Index No.: 5580/2010)
Plaintiff generally contends that the work was ongoing at 27 Beaver Street, including painting the hallways, adding metal and wood to edges of staircases and doors and the placement of floor tiles. Plaintiff's testimony, in relevant part, provides,
Q. At the time your accident that happened on July 3, 2009[1st incident], I want you to describe for me what repair work was done?
A. They were painting the hallways, they were adding metal to the edges, and painting. Nothing else and placing some tiles on the floor.
Q.And you just said "added metal to the edges.", [sic] the edges of what?
A. Of the staircases and doors.
Q. Would that be the two doors at the front entrance?
A.Yes, they placed some wood and it was badly done. Badly done. (EBT of Carmel Robles, August 15, 2012, p23-24, ll 21-9).
Plaintiff further testified that no work was done between the first accident on July 3, 2009, and the second accident on December 10, 2010,
Q. Now, between your first accident [July 3, 2009] and your second [December 10, 2010] was any additional work done in this building
A. No, none. (EBT of Carmen Robles, August 15, 2012, p25-26, ll 24-2).
Plaintiff further testified that she complained of the condition of the staircase and lighting, only after she fell in December 2010,
Q. . . . You testified that you specifically told them about this piece of metal that you tripped on before you tripped on it?
A. No, not before I fell. After I fell.
Q.Before you fell, do you remember telling them anything that they had to fix?
A.Yes, I had informed them.
Q. But this piece of metal that fell on [sic], you only told them after you fell?
A. Yes. I told them about the lights and the piece of metal.
Q. After you fell?
A.Yes, after I fell.
Q. Do you remember when you fell?
A. December 10, 2010. (EBT of Carmen Robles, September 10, 2012, p7-8, ll 20-9).
Plaintiff further testified that,
Q. When do you first remember seeing the piece of metal on the step?
When they first come to fix the building that was happened [sic], the metal was like that. (EBT of Carmen Robles, July 11, 2012, p29, ll 22-25).
Q.Did you notice the piece of metal that caused you to trip prior to your accident?
A.Yes. Before my accident I take my precautions.
Q. Did you notice the piece of metal that caused your accident before your accident, yes or no?
A.Yes
Q.Was it more than a month before the accident?
A.Like two years before. Two years back or more. (EBT of Carmen Robles, July 11, 2012, p33, ll 8-15).
Q.Prior to the incident, was anything ever done to fix the piece of metal on the step?
A. No (EBT of Carmen Robles, July 11, 2012, p34, ll 15-17).
Plaintiff also testified on July 11, 2012, that prior to the accident, she complained about the lighting conditions on the stairs to her neighbors and the inspectors that came daily, and by calling 311 approximately every two to three days a week, for seven years. She further testified that her neighbor tried to correct or minimize the condition by replacing a light bulb. She states that the inspectors never did anything in response to her alleged complaints.
Discussion
Discovery
Plaintiff avers that there are two court orders directing the deposition of Preet. Upon a search of the court record, this Court found four court orders directing the deposition of Preet:
September 18, 2012 by the Hon. Carl J. Landicino wherein the City is to produce a witness for deposition on November 26, 2012 and Preet was to produce a witness for deposition on November 28, 2012;
February 5, 2013 by the Hon. Carl J. Landicino wherein the City was to produce a witness from HPD for deposition on May 16, 2013, at 350 Jay Street at 10:00 a.m., Preet was to produce a witness for deposition on May 23, 2013, and the filing of the note of issue was extended to July 25, 2013;
January 21, 2014, by the Hon. Martin Schneier wherein the City was to conduct a search for the 2010 feasibility report, Preet was to produce a witness for deposition on April 8, 2014, and the note of issue was extended to May 27, 2014; and
April 29, 2014, by the Hon. Martin Schneier wherein Preet was to produce a witness for deposition on May 29, 2014 and the filing of the note of issue was again extended to August 29, 2014.
The City produced a witness from HPD, Mike Bruen, for deposition on June 28, 2013. Thereafter, the Plaintiff sought the feasibility report conducted by the City for 27 Beaver Street. The compliance conference order dated January 21, 2014, ordered the City to "conduct search for 2010 Feasibility Report for 27 Beaver Street, Brooklyn, NY 11206, which may include notes, photos to the extent they exist and provide results within 60 days". Plaintiff's counsel avers that they reserved the right for a further deposition of the City once the feasibility report was received. The City responded to Plaintiff's discovery demand on April 4, 2014, by stating "[u]pon information and belief, a search has been conducted for any such 2010 Feasibility Report for 27 Beaver Street and no such report exists". Inasmuch as the feasibility report was not produced, no further deposition was held.
Plaintiff does not provide an explanation as to why the deposition of a representative from Preet did not proceed. In fact, Plaintiff's motion herein is made well after the defendant's sought summary judgment. Plaintiff's counsel failed to provide the required affirmation of a good faith effort to resolve the parties' discovery dispute (see 22 NYCRR 202.7[a]; see also Ponce v Miao Ling Liu, 123 AD3d 787, 996 N.Y.S.2d 548 [2 Dept., 2014]; Murphy v. County of Suffolk, 115 AD3d 820, 982 N.Y.S.2d 380 [2 Dept., 2014] ["The Supreme Court properly denied the plaintiff's motion to compel certain disclosure by the defendants. The affirmation of good faith submitted by the plaintiff's counsel did not satisfy 22 NYCRR 202.7, as it did not refer to any communications between the parties evincing a diligent effort to resolve the dispute, or indicating good cause why no such communications occurred'"]; Quiroz v. Beitia, 68 AD3d 957, 893 N.Y.S.2d 70 [2 Dept., 2009]; Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 AD3d 784, 857 N.Y.S.2d 697 [2 Dept., 2008]). Accordingly, Plaintiff's cross-motion is denied in its entirety.
Summary Judgment and Dismissal of the Complaint
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues of material fact" (Bonaventura v Galpin, 119 AD3d 625, 988 N.Y.S.2d 866 [2 Dept., 2014], citing Andre v. Pomeroy, 35 NY2d 361, 362 N.Y.S.2d 131 [1974]). The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact (see Gammons v. City of New York, 24 NY3d 562, ? N.E.3d ?- [2014], citing Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 [1986]).
Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Hoover v. New Holland N. Am., Inc., 23 NY3d 41, 988 N.Y.S.2d 543 [2014]; see also Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle, 61 AD3d 915, 878 N.Y.S.2d 755, [2 Dept., 2015], citing Vega v Restani Const. Corp., 18 NY3d 499, 942 N.Y.S.2d 13 [2012]).
Defendants Contend
The City contends that it did not own, maintain, control or operate the subject property at any time and as such, it did not owe a duty of care with respect to Plaintiff. The City further contends that it cannot be held liable where all of Plaintiff's allegations against the City arise out of the ownership, operation, management, maintenance, repair and control of the subject premises. The City contends that it did not perform any work on the interior staircase at 27 Beaver Street and Melcara and Preet concur.
Plaintiff Contends
Plaintiff opposes the application, contending that the City is liable when it is appointed administrator, which is clearly not the case herein. Plaintiff further contends that the City is liable prior to the appointment of a 7-A administrator, because it stands in the shoes of the owner. Plaintiff asserts that the City managed the property when the City performed inspections and repairs as part of the AEP. Relying on the testimony of Mike Bruen, Plaintiff avers that the City is effectively the administrator of the property while the property is participating in the AEP, because it assumed the duties of the owner and therefore is liable pursuant to RPAPL Law § 778 (7).
RPAPL 7-A
The Court of Appeals in Lauer v. City of New York (95 NY2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000]) held that, "[m]unicipalities long ago surrendered common-law tort immunity for the negligence of their employees." In this case, to maintain their action against the City, the Plaintiff endeavors to establish municipal liability by contending that during the AEP the City was the manager of the property and is therefore liable. It is undisputed that the City had a presence at 27 Beaver Street during the AEP from 2008 to October 12, 2010. When a 7-A administrator was appointed, thereafter, pursuant to the order and judgment of the Honorable Inez Hoyas, Miriam Rodriguez of Innovative Properties, was named the administrator of 27 Beaver Street. Plaintiff's alleged accident occurred on December 10, 2010, which is two months after the appointment of the 7A Administrator.
RPAPL 778 states, in part, that 6. Such administrator shall be liable only in his or her official capacity for injury to persons and property by reason of conditions of the premises in a case where an owner would have been liable; he or she shall not have any liability in his or her personal capacity. Appointment of an administrator pursuant to subdivision one of this section shall not relieve an owner of liability for injury to persons and property in such case.
7. No city or county specified in section seven hundred sixty-nine of this article shall be liable to any party, including such administrator or the owner, for injury to persons or property by reason of conditions of the premises or the acts or omissions of such administrator, except that when the city of New York is appointed administrator, liability shall be determined in accordance with subdivision six of this section.
The City contends, that in accordance with RPAPL section 788(7), HPD, as an agency of the City, is exempt from liability for properties managed by a 7-A Administrator. Furthermore, the City was not the appointed administrator.
RPAPL7-A was enacted as a result of a concern for the public safety and the difficulty in compelling property owners under the current statutory scheme. A review of the legislative history indicates that as a result of a legislative finding that there exists in New York City multiple dwellings with conditions that endanger the life, health or safety of their occupants and that additional enforcement powers are necessary in order to compel the correction of such conditions and increase the supply of adequate and safe dwellings units, the shortage of which constitutes a public emergency and is contrary to public welfare (Louis J. Lefkowitz, Attorney General, State of New York Memorandum for the Governor, July 14, 1965).
The intended purpose of Article 7-A is to provide tenants with an effective legal remedy to compel the correction of extremely dangerous conditions. An Article 7-A application is made based on the recommendation and assessments of a 7-A counselor, who is employed by HPD. The courts have consistently held that a municipality is statutorily exempt from liability for damages sustained inside a building, which is under the control of a 7A administrator (see Peri v. City of New York, 8 Misc 3d 369, 798 N.Y.S.2d 332 2005 , aff'd, 44 AD3d 526, 843 N.Y.S.2d 618 [1 Dept., 2007], aff'd, 11 NY3d 756, 864 N.Y.S.2d 802, 894 N.E.2d 1192 [2008] ["The City is statutorily exempt from liability when a building is under the control of a 7A administrator. RPAPL 778(7)."]; see also Chand v. City of New York, 6 Misc 3d 1025, 800 N.Y.S.2d 344 [Sup. Ct., 2005)]).
Plaintiff concedes that the City is exempt of responsibility pursuant to RPAPL 778(7), but contends that the City is responsible when it "stands in the shoes of the owner prior to the appointment of a 7A administrator" (see Kelby N. Bowman, Esq., Affirmation in Opposition [papers numbered 12], January 15, 2015, p 3 paragraph 13). Prior to the appointment of the 7-A administrator, the subject property was part of the AEP (2008 until October 12, 2010) and that program was terminated two months prior to plaintiff's alleged accident on December 10, 2010.
Alternative Enforcement Program
AEP is an enforcement program that provides HPD with the ability to identify the most distressed multiple family dwellings. It was created as a means to enforce housing maintenance standards by compelling building owners of distressed buildings to make effective repairs to alleviate emergency conditions and the underlying physical conditions which lead to housing code violations (see NYC Administrative Code §27-2153; see also Wilson Realty, LLC v New York City Dept. of Hous. Preserv. and Dev., 25 Misc 3d 1221(A), 901 N.Y.S.2d 911 Ct, 2009). HPD provides written notification to the owner of any building identified for participation in the AEP. HPD then performs a building-wide inspection and issues an order to correct any existing, newly discovered and related underlying conditions. If the owner does not correct conditions within the first four months, HPD then hires a contractor to make the repairs and monitors the work as it is performed (see NYC Admin.Code § 27-2153).
The NYC Administrative Code section 27-2153 provides authority to alleviate the serious physical deteriorating condition of a distressed building by compelling the owner to make effective repairs. If the owner fails to comply, the City can make the repairs at the ultimate expense of the owner, by the placement of a lien on the property. The selection of "distressed buildings", such as the property herein, for participation in AEP is rationally related to the City's legitimate interest in ensuring that buildings with histories of building code violations are in good repair and kept safe for occupancy by their inhabitants (see Wilson Realty, LLC v New York City Dept. of Hous. Preserv. and Dev., 25 Misc 3d 1221(A), 901 N.Y.S.2d 911 Ct 2009).
The Code is silent with respect to HPD's liability for work conducted in a building that is subject of the AEP.
Plaintiff alleges in the summons and complaint, at paragraph 73, that on December 10, 2010, the City and HPD were negligent in the ownership, operation, management, maintenance, repair and control of the property by allowing the steps to become uneven, cracked, defective, broken, deteriorated, in a state of disrepair and failing to inspect the property. Paragraph 75 of the complaint states "[t]hat upon information and belief, the defendants affirmatively created the defective condition".
In the bill of particulars the Plaintiff states, in part, that the accident was 3. caused wholly and solely by the negligence of the defendants and /or said defendant's agents, servants, employees and/or licenses in the ownership, operation, management, maintenance, repair and control of the aforesaid property, including the steps and lighting thereat; in allowing the steps to become uneven, cracked, defective, broken, deteriorated, and/or in a state of disrepair and/or improper repair; in allowing the metal strip/nosing of the steps to be broken, cracked, defective and missing metal strips/nosing, in failing to have adequate and/or functioning lighting; in failing to inspect said property, including the steps and lighting thereat; in causing, permitting and allowing a trap, hazard an nuisance to be and exist for an excessive and unreasonable period of time, despite actual and constructive notice thereof; in failing to take any necessary steps to alleviate said condition; in failing to undertake proper and/or adequate safety studies and/or surveys; in failing to properly repair the steps before authorizing its use; in failing to properly repair the lighting before authorizing use of the steps; in negligently hiring, training, supervising and retaining others with respect to the operation, maintenance, care, control, repair and oversight of the property, including the steps and lighting thereat . . .
4-11. Plaintiff will claim that defendant, their agents, servants and/or employees affirmatively created the dangerous condition, which caused the accident. Plaintiff is unaware of how long the said condition has existed prior to the occurrence, however plaintiff reserves a right to amend this answer until completion of discovery (Plaintiff's Verified Bill of Particulars, October 12, 2011, p1-2 and p3).
First, this Court will address Plaintiff's allegation that the incident occurred because of the Defendants' failure to inspect and repair the stairs and lighting during the AEP period. The claim is based on a duty of reasonable care or nonfeasance.
As "a general rule, an agent is liable to third persons only for affirmative acts of negligence" (Lennon v Oakhurst Gardens Corp., 229 AD2d 897, 645 N.Y.S.2d 652 [3 Dept., 1996]).
The law is clear that where a managing agent has complete and exclusive control of the management and operation of the building—in other words where he stands in the owner's shoes so to speak—he is liable for negligence just as the owner would be and cannot be excused by claiming that he was guilty only of nonfeasance [citations omitted]. But if the defendant were not in complete and exclusive control then there would be no liability on its part since a managing agent not in complete control is not liable for mere nonfeasance [citations omitted]. (Gardner v 1111 Corp., 286 AD 110, 112 [1 Dept., 1955] aff'd, 1 NY2d 758 [1956]).
The City can be subjected to liability for nonfeasance only if it was in complete and exclusive control of the management and operation of the building (see Hagen v Gilman Mgt. Corp., 4 AD3d 330, 773 N.E.2d 485 [2 Dept., 2004]). To show the existence of a duty to the plaintiff on the part of the defendant, the plaintiff was required to show that the maintenance contract between the defendant and the owner constituted a comprehensive and exclusive set of obligations which the parties could have reasonably expected to displace the duty of the owner (see Id., citing Perkins v Cosmopolitan Care Corp., 308 AD2d 437 [2 Dept., 2003]).
In this case, HPD did not have control of the property to the exclusion of the owner. Having such exclusive control would run contrary to the intended purpose of NYC Administrative Code §27-2153, which was enacted in order to compel responsibility upon the owner of the property and not relieve them of their responsibility, ownership, control or liability. HPD contracted with Melcara to make emergency repairs at 27 Beaver Street, due to the owner's unwillingness and failure to act, not to displace the owners of their duty to do so. Rather, the City's role is one of enforcer and not owner, operator or manager and as such, the City does not owe a duty of care to Plaintiff for failure to act. HPD is not the owner or managing agent of the property within the meaning of City Administrative Code. The building owner was not excluded from the property nor did the City have exclusive control. The City is therefore, not liable for nonfeasance (see Lennon v Oakhurst Gardens Corp., 229 AD2d 897, supra; see also Ioannidou v. Kingswood Management Corp., 203 AD2d 248, 610 NYS2d 277 [2 Dept., 1994] ["As managing agent of the building in which the plaintiff was injured, Kingswood could be subject to liability for nonfeasance only if it were in complete and exclusive control of the management and operation of the building"]); Gardner, 286 A.D. 110, supra).
Secondly, this Court will address Plaintiff's allegation that the City, through Melcara and Preet, and Preet individually were negligent in that they caused and created the condition during their time at 27 Beaver Street for the AEP. The Court of Appeals has held that there are three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care?and thus be potentially liable in tort?to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launche[s] a force or instrument of harm" (Moch, 247 NY at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (see Eaves Brooks, 76 NY2d at 226) and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see Palka, 83 NY2d at 589). These principles are firmly rooted in our case law, and have been generally recognized by other authorities (see e.g. Restatement [Second] of Torts § 324A). (Espinal v. Melville Construction, 98 NY2d 136, 773 N.E.2d 485 [2002]).
The defendants meet their prima facie burden to entitlement to summary judgment inasmuch as they establish that neither the City, Melcara nor Preet performed any work on the interior staircase lighting or the stairs at 27 Beaver Street. Plaintiff's does not substantiate the allegation that the City, Melcara or Preet created or exacerbated the alleged dangerous conditions in the interior staircase and interior staircase lighting. Plaintiff did not demonstrate that the defendants failed to exercise reasonable care in the performance of a duty. First, there is no indicia that the Defendants launched a force or instrument of harm; secondly, there is no reasonable basis for Plaintiff to detrimentally rely on HPD's continued performance of any repairs; and lastly, as discussed above, the City has not entirely displace the owners of his duty to maintain the property.
Plaintiff failed to demonstrate a question of fact as to the defendant's performing any work in the interior staircase at 27 Beaver Street. Plaintiff's deposition testimony clearly established that the lighting issues at 27 Beaver Street existed for more than seven years prior to the accident. Plaintiff further testified that she complained to the inspectors on a regular basis about the metal stripping in the staircase which existed two or more years prior to the accident and they did nothing. Preet, the only subcontractor sued herein that worked at 27 Beaver Street, contends by affidavit and Melcara, the contractor, contends by affidavit and deposition testimony that no work was done in the interior staircase at 27 Beaver Street. Neither the request orders nor the work reports which reflect the Defendant's work at 27 Beaver Street during the AEP show that any work on the interior staircase or lighting at or near the interior staircase of 27 Beaver Street was performed. Accordingly, the City and HPD's motion for summary judgment and dismissal of the complaint is granted in its entirety. Preet's motion to dismiss the complaint is also granted in its entirety.
Conclusion
Plaintiff's cross motion for further discovery, to strike the answer and to extend the time to file the note of issue is denied. Plaintiff is directed to file the note of issue/notice of inquest on April 15, 2015. Defendants cross-motions seeking summary judgment pursuant to CPLR §3212 in favor of the City, HPD and Preet and dismissing Plaintiff's complaint are granted.
The Clerk of the Court is directed to enter judgment dismissing the complaint with prejudice.
The foregoing constitutes the decision and order of this Court.
E N T E R:
Hon. Lara J. Genovesi
J.S.C.