Alnashmi v. Certified Analytical Group Inc.

• Decision Date: 13 September 2011
• Citation: 89 A.D.3d 10,929 N.Y.S.2d 620,2011 N.Y. Slip Op. 06465
• Parties: Doronish K. ALNASHMI, respondent,v.CERTIFIED ANALYTICAL GROUP, INC., appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 10

929 N.Y.S.2d 620

2011 N.Y. Slip Op. 06465

Doronish K. ALNASHMI, respondent,

v.CERTIFIED ANALYTICAL GROUP, INC., appellant.

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

Sept. 13, 2011.

Goldberg Segalla LLP, Mineola, N.Y. (Brian W. McElhenny of counsel), for appellant.PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.BALKIN, J.

As the law of premises liability has developed in this State, it has moved inexorably, by statute and common law, in the direction of providing greater protection to persons on premises. This appeal presents us with an occasion to re-examine the common law as to the responsibility of out- of-possession landowners for injuries arising from dangerous conditions on leased premises. We must determine whether an out-of-possession landlord that has retained a broad right of reentry for the purpose of inspection and repair thereby retained its original duty as a landowner to keep the premises reasonably safe, even where the lease placed the burden of maintenance and repair squarely on the tenant.

I

By a 20–year lease commencing in 1994, Certified Laboratories, Inc. (hereinafter CLI), leased the entire one-story building at 200 Express Street in Plainview from the owner of the building, Certified Analytical Group, Inc. (hereinafter CAG). CAG, which had no employees, was wholly owned by Martin Mitchell, who also was the majority shareholder of CLI. Mitchell signed the lease on behalf of both CLI and CAG. Under that lease, CLI was required, among other things, to

“take good care of the demised premises, fixtures and appurtenances, and all alterations, additions and improvements to either; make all repairs in and about the same necessary to preserve them in good order and condition ... [and] promptly pay the expense of such repairs.”

As well, CLI was required to

“permit at all times during usual business hours, the Landlord ... to enter the demised premises for the purpose of inspection ... suffer the Landlord to make repairs and improvements to all parts of the building, and to comply with all orders and requirements of governmental authority applicable to said building or to any occupation thereof; suffer the Landlord to erect, use, maintain, repair and replace pipes and conduits in the demised premises and to the floors above and below.”

In another section of the lease, CAG reserved the right to

“visit and examine [the premises] at any reasonable hour of the day, and workmen may enter at any time when authorized by the Landlord ... to make or facilitate repairs in any part of the building; and if the said Tenant shall not be personally present to open and permit an entry into said premises, at any time, when for any reason an entry therein shall be necessary or permissible hereunder, the Landlord or the Landlord's agents may forcibly enter the same ... it is, however, expressly understood that the right and authority hereby reserved, does not impose, nor does the Landlord assume, by reason thereof, any responsibility or liability whatsoever for the care or supervision of said premises, or any of the pipes, fixtures, appliances or appurtenances therein contained or therewith in any manner connected.”

The lease also required CLI to obtain CAG's written consent before installing or using any “water cooler, air conditioning unit or system or other apparatus.” Finally, it required CLI to indemnify CAG for any liability imposed on CAG arising from CLI's acts or omissions.

In the spring or early summer of 2005, CLI contracted and paid for the installation of a new roof because of a recurrent water condition in the building. The water condition continued to recur even after the new roof was installed, and the contractor, the third-party defendant, Griffin Bros., Inc. (hereinafter Griffin), returned two or three times to perform additional work. The condition persisted, and, during the winter of 2006, two ceiling tiles in a hallway between the lunchroom and the time clock were removed and a large drum was usually placed in and around that part of the building to catch the water.

On Sunday, April 23, 2006, a rainy day, the plaintiff, Doronish K. Alnashmi, who was employed by CLI as a laboratory technician, allegedly was injured when she slipped and fell on water that had accumulated in the hallway. According to the plaintiff's deposition testimony, drums were not present when she had reported for work that day, and she did not see at that time if water was dripping from the ceiling where the ceiling tiles had been removed (and had not yet been replaced). Later in the day, however, she saw water dripping from the ceiling in that area. The floor mat was soaked and water had puddled on the floor nearby. Some time after the date of the plaintiff's accident, Griffin returned, and eventually the water condition was resolved.

The plaintiff received Workers' Compensation Law benefits through CLI, and she commenced this action against CAG. CAG commenced a third-party action against Griffin. After the completion of discovery, CAG moved for summary judgment dismissing the complaint, asserting that it was an out-of-possession landlord with no responsibility for maintenance or repair. Griffin separately moved for summary judgment dismissing the third-party complaint. The Supreme Court denied both motions. CAG appeals, but in its brief asserts that it has discontinued the third-party action against Griffin.

II

Premises liability, as with liability for negligence generally, begins with duty ( see Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584, 611 N.Y.S.2d 817, 634 N.E.2d 189; Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 228, 513 N.Y.S.2d 356, 505 N.E.2d 922; Forbes v. Aaron, 81 A.D.3d 876, 877, 918 N.Y.S.2d 118). The existence and extent of a duty is a question of law ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485; Tagle v. Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107; Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d at 585, 611 N.Y.S.2d 817, 634 N.E.2d 189; Quinlan v. Cecchini, 41 N.Y.2d 686, 689, 394 N.Y.S.2d 872, 363 N.E.2d 578; Utkan v. Szuwala, 60 A.D.3d 755, 756, 875 N.Y.S.2d 510; cf. Donohue v. Copiague Union Free School Dist., 64 A.D.2d 29, 33, 407 N.Y.S.2d 874, affd. 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352). “Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally. The scope of any such duty of care varies with the foreseeability of the possible harm” ( Tagle v. Jakob, 97 N.Y.2d at 168, 737 N.Y.S.2d 331, 763 N.E.2d 107; see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 858 N.E.2d 1127). Determining the existence and scope of a duty “requir[es] courts to balance sometimes competing public policy considerations” ( Espinal v. Melville Snow Contrs., 98 N.Y.2d at 138, 746 N.Y.S.2d 120, 773 N.E.2d 485; see Chapman v. Silber, 97 N.Y.2d 9, 20–21, 734 N.Y.S.2d 541, 760 N.E.2d 329). As the Court of Appeals explained in Peralta v. Henriquez, 100 N.Y.2d 139, 760 N.Y.S.2d 741, 790 N.E.2d 1170:

“Courts have long fixed the duty point by balancing factors, ‘including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability’ ( Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 586, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994] ). Moreover, courts must be mindful of the future effects their ruling will have and must ‘limit the legal consequences of wrongs to a controllable degree’ ( Tobin v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 249 N.E.2d 419 [1969] )” ( Peralta v. Henriquez, 100 N.Y.2d at 144–145, 760 N.Y.S.2d 741, 790 N.E.2d 1170).

A landowner's duty may arise under the common law, by statute, or by regulation ( see Chapman v. Silber, 97 N.Y.2d at 19, 734 N.Y.S.2d 541, 760 N.E.2d 329; Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 566, 516 N.Y.S.2d 451, 509 N.E.2d 51), or it may be assumed by agreement or by a course of conduct ( see Ritto v. Goldberg, 27 N.Y.2d 887, 889, 317 N.Y.S.2d 361, 265 N.E.2d 772; Dimas v. 160 Water St. Assoc., 191 A.D.2d 290, 594 N.Y.S.2d 262; Del Giacco v. Noteworthy Co., 175 A.D.2d 516, 518, 572 N.Y.S.2d 784). In the case before us, the plaintiff's pleadings rely entirely on the common law in claiming that CAG breached a duty to her. Therefore, we must determine if CAG owed a duty to the plaintiff and, if so, the scope of that duty.

Under New York common law, as significantly modified in Basso v. Miller (40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; see also Peralta v. Henriquez, 100 N.Y.2d at 143–144, 760 N.Y.S.2d 741, 790 N.E.2d 1170), a landowner “has a duty to maintain his or her premises in a reasonably safe condition” ( Walsh v. Super Value, Inc., 76 A.D.3d 371, 375, 904 N.Y.S.2d 121), taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk ( see Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636, 781 N.Y.S.2d 249, 814 N.E.2d 419; Peralta v. Henriquez, 100 N.Y.2d at 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170; Tagle v. Jakob, 97 N.Y.2d at 168, 737 N.Y.S.2d 331, 763 N.E.2d 107; Chapman v. Silber, 97 N.Y.2d at 19, 734 N.Y.S.2d 541, 760 N.E.2d 329; Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255; Basso v. Miller, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868).¹ Historically, as explained in Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 322, 418 N.Y.S.2d 310, 391 N.E.2d 1288, cert. denied 444 U.S. 992, 100 S.Ct. 523, 62 L.Ed.2d 421, the...