Opinion
# 2019-050-006 Claim No. 130431 Motion No. M-92978
02-26-2019
MARGARET WALSH v. THE STATE OF NEW YORK
Krentsel & Guzman, LLP By: Jared B. Dubin, Esq. Seiger, Gfeller, Laurie, LLP By: Gary Strong, Esq.
Synopsis
Defendant's motion for summary judgment is granted. Defendant has established a prima facie case that it is an out-of-possession landlord which does not retain control of the premises and is not contractually obligated to maintain or repair the premises and thus, has carried its burden of demonstrating its entitlement to judgment as a matter of law.
Case information
| UID: | 2019-050-006 |
| Claimant(s): | MARGARET WALSH |
| Claimant short name: | WALSH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130431 |
| Motion number(s): | M-92978 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Krentsel & Guzman, LLP By: Jared B. Dubin, Esq. |
| Defendant's attorney: | Seiger, Gfeller, Laurie, LLP By: Gary Strong, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | February 26, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim herein states that on September 16, 2017 claimant suffered personal injuries when she tripped and fell on an uneven sidewalk while walking from the parking lot to the Paddock Entrance at Belmont Park. Belmont Park is operated by the New York Racing Association (NYRA), which leases the property from the State. Defendant now moves for summary judgment arguing that it is an out-of-possession landlord and thus cannot be held liable for any negligence on NYRA's part. Claimant opposes the motion, arguing it is premature, that it is not possible to ascertain whether the relevant lease was in effect on the day of the alleged incident and that in any event, the State as property owner has a non-delegable duty.
Upon a motion for summary judgment, the initial burden is on the moving party to come forward with proof in admissible form showing its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Once this showing has been made . . . the burden shifts to the party opposing the motion . . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial" (Sonne v Bd. of Trustees of Vil. of Suffern, 67 AD3d 192 [2d Dept 2009], [internal quotation and citation omitted]). The evidence submitted in support of a motion for summary judgment must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (see Open Door Foods, LLC v Pasta Machines, Inc., 136 AD3d 1002 [2d Dept 2016]).
Initially, claimant argues that the motion is premature as discovery is ongoing. However, CPLR 3212 (a) provides that "[a]ny party may move for summary judgment in any action, after issue has been joined." Defendant's answer was filed and served on or about November 29, 2017 and the motion is therefore timely. Further, for a summary judgment motion to be delayed pending further discovery, it must be likely that "facts essential to justify opposition may exist but cannot then be stated" and the "mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is not enough" (Mazzaferro v Barterama Corp., 218 AD2d 643 [2d Dept 1995], [internal quotation and citation omitted]). Here, claimant argues that it should be permitted to take depositions regarding the "terms and specifications" of the lease and whether it was in effect on the day of the incident. For the reasons discussed below, this is not sufficient to defeat or delay the motion.
An out-of-possession landlord is not responsible for injuries that occur on its premises unless it has retained control over the premises or is contractually obligated to maintain or repair unsafe conditions (see Deerr'Matos v Ulysses Upp, LLC, 52 AD3d 645 [2d Dept 2008]; Taylor v Lastres, 847 NYS2d 139 [2d Dept 2007]). "Control may be evidenced by lease provisions making the landlord responsible for repairs or by a course of conduct demonstrating that the landlord has assumed responsibility to maintain a particular portion of the premises" (Taylor v Lastres, 45 AD3d 835 [2d Dept 2007]).
Here, the September 12, 2008 lease between the State of New York and NYRA provides that "[l]essee shall perform all maintenance, repair and upkeep of the Premises, including the Improvements thereon, so as to keep the same in good order and repair . . . The costs of such maintenance shall be borne solely by Lessee" (defendant's exhibit A, art.V [5.3]). The lease further provides that:
Lessee shall permit Lessor and its agents, upon no less than twenty-four (24) hours prior notice, to enter into and upon the Premises during normal business hours for the purpose of inspecting the same on the condition that Lessor and its agents shall use reasonable efforts to ensure that Lessee's and Lessee's invitees' use and quiet enjoyment of the Premises is not interfered with
(defendant's exhibit A, art. XIV [14.1]). The September 11, 2018 affidavit of William McCarthy, Assistant General Counsel for NYRA, states that the lease was in effect on the day of claimant's accident and remains in effect. He further attests that, having reviewed the claim and photographs depicting where the accident took place, NYRA is responsible for maintaining the sidewalks at Belmont Park, including the area where claimant fell.
In sum, defendant has established a prima facie case that it is an out-of-possession landlord which does not retain control of the premises and is not contractually obligated to maintain or repair the premises and thus, has carried its burden of demonstrating its entitlement to judgment as a matter of law. Contrary to claimant's assertion in its opposition to the motion, the lease provision reserving defendant's right to inspect the premises is insufficient to raise a question of fact regarding liability as the lease specifically designates NYRA as the party responsible for maintenance and repairs (see Dalzell v McDonald's Corp., 220 AD2d 638 [2d Dept 1995]; Jones v Bartlett, 275 AD2d 956 [4th Dept 2000]).
Based on the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed.
February 26, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on defendant's motion for summary judgment: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Affirmation in Opposition. 3. Reply Affirmation in Support of Motion.