Amodeo v. ASN 50th St.

• Docket Number: Index No. 160293/2019,Motion Seq. No. 001,Third-Party Index No. 595333/2020
• Decision Date: 12 May 2022
• Citation: Amodeo v. ASN 50th St., 2022 NY Slip Op 31570(U), Index No. 160293/2019, Motion Seq. No. 001, Third-Party Index No. 595333/2020 (N.Y. Sup. Ct. May 12, 2022)
• Parties: JILL AMODEO, Plaintiff, v. ASN 50TH STREET LLC, Defendant. ASN 50TH STREET LLC Plaintiff, v. PALM WEST CORPORATION Defendant.
• Court: New York Supreme Court

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2022 NY Slip Op 31570(U)

JILL AMODEO, Plaintiff, v. ASN 50TH STREET LLC, Defendant.

ASN 50TH STREET LLC Plaintiff, v. PALM WEST CORPORATION Defendant.

Index No. 160293/2019, Motion Seq. No. 001, Third-Party Index No. 595333/2020

Supreme Court, New York County

May 12, 2022

Unpublished Opinion

MOTION DATE 03/09/2022

DECISION + ORDER ON MOTION

HON SABRINA KRAUS, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 were read on this motion to/for JUDGMENT - SUMMARY.

BACKGROUND

This action arises out of claims for personal injuries allegedly sustained by the plaintiff, on June 11, 2019 at approximately 10:30 p.m. at The Palm West Side restaurant located at 250 West 50th Street, New York, NY 10019.

Plaintiff was an employee of The Palm and was in the process of cleaning, clearing and closing down Private Dining Room 1 (PDR1) after the conclusion of a private dinner party. While in the process of doing these activities, plaintiffs right foot became ensnared in a galvanized cable affixed to the bottom of the room divider partition wall separating PDR1 from PDR2 and PDR3, causing her to fall.

ASN 50^th Street LLC (ASN) is the landlord of the restaurant pursuant to a lease renewal agreement entered into by its sole member Aval on Bay and Palm West Corporation (Palm West).

ASN filed a Third-Party Complaint against Palm West alleging that it was the owner of the subject premises and that pursuant to a lease with Palm West it was owed indemnity.

PENDING MOTIONS

On September 30, 2021, Palm West moved for summary judgment in favor of ASN pursuant to CPLR 3212 and CPLR 1008, and ASN cross-moved for summary judgment and dismissal of plaintiff s complaint as well as summary judgment on their claims against Palm West.

On January 31, 2022, plaintiff cross-moved for an order compelling discovery and for related relief.

On April 29, 2022, the motions were fully briefed and submitted to the court for determination.

ALLEGED FACTS

Plaintiffs accident occurred at night on June 11, 2019, when she was cleaning up after a party in Private Dining Room 1 (PDR1). The private dining rooms at Palm West had two sets of retractable walls that slid on a track and when put into place would create smaller private dining areas. The servers would put the panels into place depending on the size of the party. There is a pulley system in the panel that when pulled secures the panel and allows the bottom of the panel to lie flush with the floor. The pulley is connected to a wire that is at the bottom of the panel.

Plaintiff was putting chairs on top of tables when her foot got caught in a wire that was sticking out from under the panel door. She never saw the wire sticking out from under the panels before she fell. The wire that caused her fall is not an electrical wire but one that she described as being part of the pulley system.

Cosmin Anghel, the maintenance manager for Avalon Bay and the subject building at the time of the accident testified on behalf of ASN. Mr. Anghel testified that the only aspect that the owner of the building oversees for the commercial spaces are the mechanicals that are shared with the rental spaces in the building. This refers to booster pumps; cooling towers; and ejecting pits. The only reason Avalon Bay/ASN would be called would be because of issues with shared mechanicals such as a leak. The building did not do inspections or walk-arounds of the retail spaces as, commercial spaces are completely responsible for everything that's built inside their space.

Mr. Anghel testified that if there was an issue Palm West had with an interior panel in their space, they would not ask Avalon Bay/ASN to fix it.

Kelsey Coughlin, the Palm West Assistant General Manager at the time of the accident, also testified that Palm West used Jason Perna, a contractor, to deal with any interior issues in Palm West that needed to be fixed, including the panels. In November 2018, the Assistant Manager of Palm West emailed Jason Perna to ask for an immediate repair on the door to PDR 1.

The only time Avalon Bay/ASN came into the space was for a leaking pipe that was shared with the building.

The owners of the building never did work in the private dining room or any other parts of Palm West. Craig Levy, the General Manager of Palm West told Ms. Coughlin that the owner of the building was only in charge of maintaining the shared mechanicals with the building such as HVAC and plumbing. Ms. Coughlin was working at Palm West at the time of the accident and it was reported to her. She did not notify the building owners of the wire issue because it did not fall under their responsibility for maintenance.

On May 24, 2018, Palm West renewed its lease with AvalonBay Communities, Inc. as Landlord.

Article 4, "Repairs" provides that Tenant shall take good care of the demised premises and the fixtures and appurtenances therein at its sole cost and expense. Specifically, "Tenant shall, throughout the term of this lease take good care of the demised premises and the fixtures and appurtenances therein at its sole cost and expense, make all non-structural repairs thereto as and when needed to preserve them in good working order and condition, reasonable wear and tear....".

The Rider dated 11/17/98 at Article 75: "Landlord's Exercise of Self Help: Any reservation of right by Landlord to enter upon the demised premises to make or perform any repairs, alterations, or other work in, to, or about the demised premises that, in the first instance, is Tenant's obligation pursuant to this lease, shall not be deemed to (a) impose any obligation on Landlord to do so; (b) render Landlord liable to Tenant or to any third party for Landlord's failure to do so; or (c) relieve Tenant from any obligation to indemnify Landlord as otherwise provided in this lease.

DISCUSSION

In order to prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v City of New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (Dallas-Stephenson v Waisman, 39 A.D.3d 303, 306 [1st Dept 2007], citing Alvarez, 68 N.Y.2d at 324). "[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 A.D.3d 535, 544 [1st Dept 2008]).

"On a motion for summary judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact" (Martin v Citibank, N.A., 64 A.D.3d 477, 478 [1st Dept 2009]; see also Sheehan v Gong, 2 A.D.3d 166, 168 [1st Dept 2003] ["The court's role, in passing on a motion for summary judgment, is solely to determine if any triable issues exist, not to determine the merits of any such issues"], citing Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]).

ASN is entitled to Summary Judgment as an Out of Possession Landlord

It is widely accepted under New York law that property owners have a non-delegable duty to maintain their premises in a reasonably safe condition for the protection of persons whose presence thereon is reasonably foreseeable. Peralta v. Henriquez, et ah, 100 N.Y.2d 139 (2003). However, a property owner is generally not liable for negligence with respect to the condition of property after the transfer of possession and control to a tenant, unless: (1) the landlord is either contractually obligated to make repairs and/or maintain the premises, or has retained a right to re-enter, inspect, and make repairs; and (2) liability is based on a significant structural or design defect contrary to a specific statutory safety provision. Johnson v. Urena Serv. Ctr., 227 A.D.2d 325 (1st Dep't. 1996). See also Henry v. Hamilton Equities, Inc., et ah, 161 A.D.3d 418 (IstDep't. 2018); Sapp v. S.J.C. Lenox Ave. Family Ltd. Partnership, 150 A.D.3d 525, 527 (1st Dep't. 2017); Velazquez v. Tyler Graphics, Ltd., 214 A.D.2d 489, 489 (1st Dep't 1995); Brooks v. Dupont Associates, Inc., 164 A.D.2d 847, 848- 49 (1st Dep't 1990).

ASN fully transferred possession and all maintenance responsibilities to a tenant, retaining only a limited right of re-entry but with no obligation to perform inspections, maintenance or repairs. As such, the wire sticking out from under a panel/partition door, cannot impose liability on ASN because it is not a significant structural or design defect and does not violate a specific statutory provision.

In Devlin v. Blaggards III Rest. Corp., 80 A.D.3d 497 (1st Dep't. 2011), the First Department made clear that violation of a specific statute that constitutes a structural or design defect is the sine qua non of a claim against an out-of-possession landlord. See also Ross v. Betty G Reader Revocable Trust, 86 A.D.3d 419, 420 (1st Dep't 2011); Malloy v. Friedland, 77 A.D.3d 583, 584 (IstDep't. 2010).

Defects pertaining to interior doors have generally not been considered to be a structural defect for which an...