Araujo v. Mercer Square Owners Corp..

• Decision Date: 01 September 2011
• Court: New York Supreme Court
• Parties: Patricia ARAUJO, Plaintiff,v.MERCER SQUARE OWNERS CORP., Mercer Square Associates, Mercer Square LLC, Residential Management Group LLC, Residential Management Group doing business as Douglas Elliman Property Management, Douglas Elliman Property Management, Insignia Residential Group, Inc. and Bath & Body Works, LLC, Defendants.

33 Misc.3d 835

929 N.Y.S.2d 439

2011 N.Y. Slip Op. 21308

Patricia ARAUJO, Plaintiff,

v.MERCER SQUARE OWNERS CORP., Mercer Square Associates, Mercer Square LLC, Residential Management Group LLC, Residential Management Group doing business as Douglas Elliman Property Management, Douglas Elliman Property Management, Insignia Residential Group, Inc. and Bath & Body Works, LLC, Defendants.

Supreme Court, New York County, New York.

Sept. 1, 2011.

Bergman Bergman Goldberg & Lamonsoff, LLP by Allen Goldberg, Esq., Mineola, for Plaintiff.Marshall, Dennehey, Warner, Coleman & Goggin, Esqs. by Steven M. Christman, Esq., New York, for Defendant Bath & Body Works, LLC.D'Amato & Lynch, LLP, by Megan Marchick Le, Esq., New York, for Defendant Mercer Square, LLC.Owners Corp., Residential Management Group, LLC, Residential Management Group, LLC d/b/a Douglas Elliman Property Management, Garcia & Stallone, by Eric Bailey, Esq., Deer Park, for Defendants Mercer Square Assoc., Mercer Square.PAUL G. FEINMAN, J.

Defendant Mercer Square LLC (“LLC”) moves pursuant to CPLR 3212 for summary judgment dismissing the verified complaint and all cross claims against it. Defendant Bath & Body Works, LLC (“BBW”) cross-moves to dismiss plaintiff's complaint and all cross claims asserted against it. By separate cross motion, defendants Mercer Square Owners Corp. (“Owners Corp.”), Mercer Square Associates (“Associates”), Residential Group, LLC, Residential Group LLC doing business as Douglas Elliman Property Management, Douglas Elliman Property Management and Insignia Residential Group, Inc. (collectively, the “Douglas Group”) cross-move also seeking dismissal of all claims and cross claims. Each motion and cross motion has been opposed, with the exception of Associates' cross motion for summary judgment.

For the reasons explained below, LLC's motion is denied, BBW's cross motion is granted, Owners Corp.'s cross motion is denied in part and granted in part, and the Douglas Group's cross motion is granted. Also, Associates' unopposed motion is granted in its entirety.

Background

In this action, plaintiff alleges that on April 15, 2005, she tripped and fell over a broken portion of the sidewalk in front of a mixed-use building located at 693 Broadway/250 Mercer Street, New York, New York (hereinafter, “the Building” or “250 Mercer Street” or “Condominium”). The Building is a condominium consisting of only two units: (1) a residential unit owned by defendant Owners Corp., a residential cooperative; and (2) a commercial unit formerly owned by Associates but transferred to LLC in 2000. The commercial unit contains several retail and commercial subunits and is located entirely on the first floor. The residential unit includes a lobby and a few storage areas on the first floor, and everything from the second floor up. Defendant BBW operates a retail store in the Building pursuant to a lease with LLC. The Douglas Group is the Building's management company, pursuant to a management agreement entered into with Owners Corp. Although the management agreement is between Owners Corp. and Insignia Residential Group, it applies to all of the various entities that have grouped together under the name the “ Douglas Group,” because they “are all names under which the managing agent Douglas Elliman Property Management has done business. They are different names for the same entity, a singular managing agent and defendant in the above-captioned matter” (Doc. 72–3, Ex. C, Ballison affidavit at ¶ 2).

The Condominium's Declaration and By–Laws govern the operations of the Property as between the individual unit owners. Article 9(1) of the Declaration defines “common elements” to include, among other things, “[a]ll of the sidewalks outside of and immediately appurtenant to the Building” (Doc. 35–3, Declaration at 8). However, it also provides the following:

“Excluded from the Common Elements are windows and doors in the exterior walls of the Building which are utilized exclusively in relationship to either the Residential or Commercial Unit. The Commercial Unit Owner shall have an exclusive easement for use of that portion of the Common Elements that includes the store fronts, entrances and sidewalks. The Commercial Unit Owner shall have the right to alter and improve the store fronts and entrances ... The Common Interest of the Residential Unit in the Common Elements shall be 82.3 percent thereof and the Common Interest of the Commercial Unit shall be 17.7 percent thereof”

( id. at 9 [ emphasis added ] ). This easement is reaffirmed in Article 13, which lists several easements that “shall affect the Condominium,” including an “(b) easement in favor of the Unit having the exclusive use of portions of the Common Elements” ( id. at 12). Furthermore, “[t]he user of any easement granted by the above subparagraphs of this Article 13 shall have the responsibility of repairing any damage resulting therefrom” ( id. at 13). The parties do not appear to dispute that plaintiff's alleged accident occurred on the sidewalk in front of the retail store operated by BBW under a lease agreement with LLC.

Plaintiff commenced this action by filing the summons and verified complaint with the New York County Clerk's office on June 20, 2007. The verified complaint asserts one cause of action sounding in negligence, plead in a conclusory manner and providing very few details regarding the nature of the alleged defect in the sidewalk, the specific location of the incident, and plaintiff's alleged injuries. Thereafter, defendants answered and asserted various cross claims against each other. Discovery has been exchanged and the parties have conducted depositions of their designated individuals.

Analysis

1. Procedural Mattersa. Use of Cross Motion

The parties were advised on the record at oral argument of their improper use of a cross motion to obtain relief against a nonmoving party ( see CPLR 2215 [a party may serve upon the moving party a notice of cross-motion demanding relief] [ emphasis added ] ). However, because any objection on this procedural ground has been waived by addressing the cross motions of their merits, and in the absence of a claim by any party of prejudice, the court will exercise its discretion to ignore the defect and reach the merits of the motion and cross motions ( see CPLR 2001).

b. Submission of sur-reply papers

Counsel for plaintiff, BBW and LLC have each requested leave, by way of separate letters submitted to the court, asking for permission to file sur-reply papers to address material evidence presented for the first time in Owners Corp.'s reply papers in support of its cross motion for summary judgment. As described in further detail later in this decision and order, Owners Corp. now offers evidence that it argues shows that John O'Sullivan, the individual deposed on behalf of Owners Corp. in this action, is not in fact an employee of Owners Corp., in contrast to the unequivocal deposition testimony of O'Sullivan and deponents from the Douglas Group, as well as the arguments made by Owners Corp. in its moving papers. Although the Part 12 rules strongly discourage the parties from sending correspondence directly to the court, based on the circumstances involved here, the court will exercise its discretion and deem these letters part of the record to be considered in connection with the instant motion and cross motions. The propriety of the “newly discovered” evidence presented for the first time in Owners Corp.'s reply papers will be addressed later in this decision and order.

2. Summary Judgment

A movant seeking summary judgment in its favor must first make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). If this standard is met, the burden then shifts to the opposing party who, to defeat the motion, must demonstrate the existence of a triable issue of fact ( Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). If the credibility of evidence is an issue, summary judgment should not be granted ( see Hartford Acc. Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907 [1973] ).

Under CPLR 3212(b), the motion must “be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.” The affidavit must be “by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit” (CPLR 3212[b] ). The bare affirmation of a party's attorney who demonstrates no personal knowledge is “without evidentiary value and thus unavailing” ( Zuckerman, 49 N.Y.2d at 563, 427 N.Y.S.2d 595, 404 N.E.2d 718). “The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form, ‘e.g., documents, transcripts” ( id.).

3. Administrative Code § 7–210 and LLC's motion for summary judgment

Plaintiff's complaint in this action asserts a single cause of action against all defendants sounding in negligence. “A defendant stands liable in negligence only for breach of a duty of care owed to the plaintiff” ( Sanchez v. State of New York, 99 N.Y.2d 247, 253, 754 N.Y.S.2d 621, 784 N.E.2d 675 [2002] ). Where the complaint alleges plaintiff tripped and fell due to the defective condition of a public sidewalk, the Administrative Code of City of New York § 7–210 is the starting point for the duty analysis. This provision imposes a “nondelegable duty on the owner of the abutting premises to maintain and repair the sidewalk” ( Collado v. Cruz, 81 A.D.3d 542,...