Agbosasa v. City of N.Y.

• Decision Date: 16 January 2019
• Docket Number: 2016–04700,Index No. 9475/11
• Citation: Agbosasa v. City of N.Y., 168 A.D.3d 794, 92 N.Y.S.3d 100 (N.Y. App. Div. 2019)
• Parties: Basherat AGBOSASA, Plaintiff-Appellant, v. CITY OF NEW YORK, Respondent, B & R Concrete and Excavation Corp., Defendant-Appellant, et al., Defendants (And a Third-Party Action).
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 794

92 N.Y.S.3d 100

Basherat AGBOSASA, Plaintiff-Appellant,

v.CITY OF NEW YORK, Respondent,B & R Concrete and Excavation Corp., Defendant-Appellant, et al., Defendants

(And a Third-Party Action).

2016–04700

Index No. 9475/11

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 21, 2018

January 16, 2019

Hecht, Kleeger & Damashek, P.C. (Ephrem J. Wertenteil, New York, N.Y., of counsel), for plaintiff-appellant.

Law Office of Steven G. Fauth, LLC, New York, N.Y., for defendant-appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr and Tahirih M. Sadrieh of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant B & R Concrete and Excavation Corp. separately appeals, from an order of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), dated December 18, 2015. The order granted the motion of the defendant City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs, and the motion of the defendant City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is denied.

The plaintiff allegedly was injured when she fell into an uncovered access pit for an underground fuel tank located in the parking lot of premises owned by the defendant City of New York. The premises was operated as an athletic club by the defendant Fitmar Management, LLC (hereinafter Fitmar), pursuant to a license agreement between Fitmar and the City, acting through the Department of Parks & Recreation (hereinafter the Parks Department). On the morning of the plaintiff's fall, Fitmar's contractor, the defendant B & R Concrete and Excavation Corp. (hereinafter B & R), plowed the parking lot. B & R's snow plow purportedly pushed the metal cover, which allegedly was not flush with the asphalt, from the top of the access pit into a nearby snowbank, leaving the access pit uncovered prior to the plaintiff's fall.

The plaintiff commenced this action against, among others, the City, Fitmar, and B & R to recover damages for her alleged injuries. The City moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, arguing that it was an out-of-possession landlord with no obligation to maintain the premises. In an order dated December 18, 2015, the Supreme Court granted the City's motion. The plaintiff and B & R separately appeal.

Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition (see Gronski v. County of Monroe, 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). "That duty is premised on the landowner's exercise of control over the property, as ‘the person in possession and control of property is best able to identify and prevent any harm to others’ " ( Gronski v. County of Monroe, 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219, quoting Butler v. Rafferty, 100 N.Y.2d 265, 270, 762 N.Y.S.2d 567, 792 N.E.2d 1055 ). Indeed, "[i]t has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property" ( Ritto v. Goldberg, 27 N.Y.2d 887, 889, 317 N.Y.S.2d 361, 265 N.E.2d 772 ).

We agree with the plaintiff and B & R that the license agreement granted Fitmar a license to use the premises, and not a leasehold interest (see Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation, 22 N.Y.3d 648, 656, 985 N.Y.S.2d 422, 8 N.E.3d 797 ). Thus, the standard applied to out-of-possession landlords is inapplicable here (see Gronski v. County of Monroe, 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ; Thomas v. Dunkirk Resort Props., LLC, 101 A.D.3d 1721, 1721, 957 N.Y.S.2d 542 ). Rather, the City, "as landowner, remains in presumptive control over its property and subject to the attendant obligations of ownership until it is found that control was relinquished" ( Gronski v. County of Monroe, 18 N.Y.3d at 382, 940 N.Y.S.2d 518, 963 N.E.2d 1219 ).

The City failed to meet its prima facie burden of demonstrating that it relinquished control of the premises such that it owed no duty to the plaintiff to remedy the allegedly defective condition. While the license agreement assigned responsibility for maintenance of the premises, and specifically of...