Opinion
2013-04-11
Sarah WHITNEY, Plaintiff–Respondent, v. Argentina VALENTIN, doing business as La Esquina Restaurant, Defendant–Respondent, Roma Realty, LLC, et al., Defendants–Appellants.
Wade Clark Mulcahy, New York (Cheryl D. Fuchs of counsel), for appellants. Kelner and Kelner, New York (Gail S. Kelner of counsel), for Sarah Whitney, respondent.
Wade Clark Mulcahy, New York (Cheryl D. Fuchs of counsel), for appellants. Kelner and Kelner, New York (Gail S. Kelner of counsel), for Sarah Whitney, respondent.
Law Offices James J. Toomey, New York (Eric P. Tosca of counsel), for Argentina Valentin, respondent.
ANDRIAS, J.P., MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered on or about October 3, 2012, which, insofar as appealed from, denied defendants Roma Realty, LLC and PNC Enterprises, LLC's motion for summary judgment dismissing the complaint as against them and on their cross claim for contractual indemnification against defendant Valentin, unanimously affirmed, without costs.
Roma Realty's witness testified that, after purchasing the property, Roma replaced the cellar doors over which plaintiff subsequently fell, and that he knew that the doors were not equipped “with strong railings,” as required by Administrative Code of City of N.Y. § 19–119. Defendants' argument that Administrative Code of City of N.Y. § 19–119 is not applicable to the subject cellar doors is unavailing ( see Lowenstein v. Normandy Group, LLC, 51 A.D.3d 517, 519, 859 N.Y.S.2d 29 [1st Dept. 2008] ). Given Roma's witness's undisputed testimony as to the violation of a specific statute, Roma, as an out-of-possession landlord with the right to reenter the premises to inspect and repair, is charged with constructive notice of the defective condition ( see Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 565, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987];Landy v. 6902 13th Ave. Realty Corp., 70 A.D.3d 649, 894 N.Y.S.2d 497 [2d Dept. 2010] ). The testimony also raises an issue of fact whether Roma created or had actual notice of the condition that allegedly caused plaintiff's fall.
Issues of fact also exist as to the scope of PNC's duties as Roma's managing agent and therefore whether PNC may be held liable for plaintiff's injuries.
Since, contrary to defendants' argument, the record does not demonstrate conclusively that Valentin proximately caused plaintiff's injuries, defendants are not entitled to summary judgment on their cross claim for contractual indemnification against her.
We have considered defendants' remaining contentions and find them unavailing.