Opinion
2018–11162 Index No. 503253/15
11-13-2019
Theresa RODRIGUEZ, Respondent, v. SHERIDAN ONE COMPANY, LLC, Appellant.
Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Stephanie C. Gorin and Peter J. Scutero of counsel), for appellant. Napoli Shkolnik PLLC, New York, N.Y. (Joseph P. Napoli and Kristina Georgiou of counsel), for respondent.
Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Stephanie C. Gorin and Peter J. Scutero of counsel), for appellant.
Napoli Shkolnik PLLC, New York, N.Y. (Joseph P. Napoli and Kristina Georgiou of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when she tripped and fell on a raised floor divider that separated the carpet from the linoleum floor at premises owned by the defendant and leased to the plaintiff's employer. Thereafter, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in the accident. The defendant moved for summary judgment dismissing the complaint, arguing, among other things, that it was an out-of-possession landlord with no duty to maintain the premises, that it did not have any notice of the condition, and that the alleged defect was trivial and non-actionable as a matter of law. In the order appealed from, the Supreme Court, inter alia, denied the defendant's motion, and the defendant appeals.
An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a "duty imposed by statute or assumed by contract or a course of conduct" ( Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620 ; see Casson v. McConnell, 148 A.D.3d 863, 864, 49 N.Y.S.3d 711 ). "Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it" ( Davidson v. Steel Equities, 138 A.D.3d 911, 912, 30 N.Y.S.3d 275 ; see Washington–Fraser v. Industrial Home for the Blind, 164 A.D.3d 543, 544, 83 N.Y.S.3d 503 ). Here, the defendant demonstrated, prima facie, that it was an out-of-possession landlord, that it was not contractually obligated to maintain the carpeting, that it did not assume such a duty through a course of conduct, and that it did not create the alleged defect by installing the carpeting or the floor divider (see Crosby v. Southport, LLC, 169 A.D.3d 637, 639, 94 N.Y.S.3d 109 ). However, the evidence submitted in opposition to the motion, which included the affidavits of the plaintiff and two of her former coworkers, raised a triable issue of fact as to whether the defendant assumed a duty to maintain the carpeting by its course of conduct (see Milham v. Port Auth. of N.Y. & N.J., 117 A.D.3d 694, 695, 985 N.Y.S.2d 595 ), or created the alleged defect by replacing the carpeting a few months before the plaintiff's fall. The defendant's contention that the affidavits of the plaintiff's former coworkers should not have been considered was improperly raised for the first time on appeal in its reply brief (see County of Nassau v. Expedia, Inc., 120 A.D.3d 1181, 1183, 993 N.Y.S.2d 39 ; Hendrickson v. Dynamic Med. Imaging, P.C., 78 A.D.3d 999, 1001, 913 N.Y.S.2d 666 ).
Furthermore, the defendant failed to demonstrate, prima facie, that it did not have constructive notice of the allegedly defective condition that caused the plaintiff to fall (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 ). In addition, the defendant failed to establish, prima facie, that the alleged defect was trivial and, therefore, not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77–79, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). In this regard, the defendant failed to eliminate all triable issues of fact as to the dimensions of the alleged defect (see Craig v. Meadowbrook Pointe Homeowner's Assn., Inc., 158 A.D.3d 601, 603, 70 N.Y.S.3d 557 ), and the photographs upon which the defendant relied were not authenticated by evidence sufficient to establish that the condition at the time of the plaintiff's fall was substantially as shown in the photograph (see Matter of Bramble v. New York City Dept. of Educ., 125 A.D.3d 856, 859, 4 N.Y.S.3d 238 ; Matter of Valentine v. City of New York, 72 A.D.3d 981, 982, 898 N.Y.S.2d 515 ).
Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion for summary judgment dismissing the complaint.
CHAMBERS, J.P., ROMAN, COHEN and DUFFY, JJ., concur.