Dyce v. 276 W. 135 St. Assocs., LLP

• Decision Date: 17 October 2016
• Docket Number: Index No.: 106930/2011
• Citation: 2016 NY Slip Op 31969 (U)
• Parties: DOUGLAS DYCE, Plaintiff, v. 276 WEST 135 STREET ASSOCIATES, LLP, LEMLE & WOLFF INC., and SEVEN SEAS DELI GROCERY CORP., Defendants.
• Court: New York Supreme Court

2016 NY Slip Op 31969(U)

DOUGLAS DYCE, Plaintiff, v. 276 WEST 135 STREET ASSOCIATES, LLP, LEMLE & WOLFF INC.,and SEVEN SEAS DELI GROCERY CORP., Defendants.

Index No.: 106930/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35

October 17, 2016

DECISION AND ORDER

Motion Sequence 003

CAROL R. EDMEAD, J.S.C.:

MEMORANDUM DECISION

In this personal injury action, Defendant/landlord 276 West 135 Street Associates, LLP ("276 West") and its managing agent Lemle & Wolff, Inc. ("Lemle"; collectively "the Landlord Defendants") move pursuant to CPLR 3212 for summary judgment dismissing the complaint of Plaintiff Douglas Dyce ("Dyce") and any cross-claims by Defendant Seven Seas Deli Grocery Corp. ("Seven Seas").¹ For the reasons set forth below, the Landlord Defendants' motion is granted in its entirety.

BACKGROUND FACTS²

On January 23, 2011, Plaintiff and a friend were at the Seven Seas Deli, located at 2534 8^th Avenue/276 West 135^th Street in New York, New York (the "Premises"), owned and managedby 276 West and leased by Seven Seas (Exh K; the "Lease").³ As Plaintiff and his friend exited, Plaintiff allegedly slipped on ice located on a sloped surface immediately outside the Premises' doorway.

The Landlord Defendants now move for summary judgment dismissing the Complaint and cross-claims and summary judgment on their contractual indemnification claims against Seven Seas. In support of their motion, the Landlord Defendants attach the pleadings and Bill of Particulars (Exhs A-D), the Court Order relieving Seven Seas' former counsel (Exh E), the Note of Issue (Exh F), Plaintiff's deposition transcript (Exh G),⁴ photographs of the accident location (Exh H), the affidavit of Lemle employee Jennifer Garrett (Exh J) and the Lease (Exh K). Defendants argue: first, that 276 West, as an out-of-possession landlord (and Lemle, as 276 West's managing agent), had no duty to Plaintiff, a third party; and second, that the Lease's indemnification clause shifting liability to Seven Seas is valid and enforceable.

Relying on Defendants' exhibits, Plaintiff opposes the motion, arguing: first, that summary judgment should not be granted because Plaintiff sufficiently alleged negligence in the form of a structural defect constituting a statutory violation, i.e. an improperly sloped surface at the Premises' exit; and second, that the issue of indemnification of the landlord by the tenant cannot be addressed absent a determination of the landlord's negligence.

In reply, the Landlord Defendants argue that Plaintiff's argument regarding the slope is insufficient to defeat summary judgment because such claim was absent from the bill ofparticulars and unsupported by any deposition or expert testimony.

DISCUSSION

Summary Judgment Generally

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR 3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985] ). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1^st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Powers ex rel. Powers v 31 E 31 LLC, 24 NY3d 84 [2014] ).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR 3212 [b]; Farias v Simon, 122 AD3d 466 [1st Dept 2014] ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose" (Kosovsky v Park South Tenants Corp., 45 Misc3d 1216(A), 2014 WL 5859387 [Sup Ct, NY County 2014], citing Zuckerman, 49 NY2d at 562).

The opponent "must assemble, lay bare, and reveal his proofs in order to show hisdefenses are real and capable of being established on trial ... and it is insufficient to merely set forth averments of factual or legal conclusions" (Genger v Genger, 123 AD3d 445, 447 [1st Dept 2014] lv den, 24 NY3d 917 [2015] citing Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993] ). In other words, the "issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 476 NYS2d 897 [1st Dept 1984]; see also, Armstrong v Sensormatic/ADT, 100 AD3d 492, 954 NYS2d 53 [1st Dept 2012] ).

Out-of-Possession Landlord

Generally, neither an out-of-possession landlord nor its managing agent may be held liable for a third party's injuries on the premises unless it had actual or constructive notice of the defect and retained the right to inspect the premises and make repairs (Velazquez v Tyler Graphics, 214 AD2d 489, 489, 625 NYS.2d 537 [1st Dept 1995]; Chapman v Silber; 97 NY2d 9, 21, 734 [2001] [landlord with actual notice of existence of conditions that indicate hazard may be charged with constructive notice of hazard]; see also Vasquez v RVA Garage, Inc., 238 AD2d 407, 656 NYS2d 334 [2d Dept 1997] [notice of dangerous condition can be imputed where land used for fireworks every 4^th of July]; Del Rosario v 114 Fifth Ave. Assoc., 266 AD2d 162, 163 [1st Dept 1999] [action against out-of-possession landlord and managing agent was properly dismissed because a leaky toilet did not constitute a substantial structural defect for which the were responsible under the lease] ).

Notice can be constructive when the landlord "reserves a right under the terms of a lease to enter the premises for the purpose of inspection and maintenance or repair and a specific statutory violation exists" (id.). However, in such case, "only a significant structural or designdefect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord" (id.; Bautista v 85th Columbus Corp., 42 Misc 3d 651, 658 [Sup Ct, Bronx County 2013] ["specific" violation of the building code must impose more than merely a general duty of repair to impose liability on an out-of-possession owner], citing Hinton v City of New York, 73 AD3d 407, 408, 901 NYS2d 21 [1st Dept 2010] ).

At the time of the accident, Shaif Abushaar ("Abushaar") leased the Premises, which were operated as Seven Seas Deli (Garrett Aff [Exh J], ¶ 3; Exh K).⁵ The Lease holds the tenant responsible for maintenance and repairs, including removal of snow and ice:

SECOND.- That throughout the term the Tenant will 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 order and condition

***

TWENTY-SECOND.-If the demised premises or any part thereof consist of a store, or of a first floor, or of any part thereof, the Tenant will keep the sidewalk and curb in front thereof clean at all times and free from snow and ice..." (Exh K, pp 2, 4).

Based on these provisions (the relevance of which are not disputed by Plaintiff), the Landlord Defendants have demonstrated that 276 West was an out-of-possession landlord, thereby shifting liability under the Lease to the tenant.

Plaintiff's efforts to identify a duty on behalf of Landlord Defendants are unavailing. First, despite claiming the existence of a Lease provision preserving 276 West's right of re-entry, Plaintiff does not identify it (Pl Opp, ¶ 10). Second, even if that provision can be found, the slopenow alleged to have caused Plaintiff's fall was not mentioned in the Bill of Particulars, which mentions only "a snow and/or ice laden condition" Without mention of the slope (Exh D, ¶ 3[a] ). Third, though Plaintiff noted the existence of a slope at his deposition (Exh G, 31:18-25), he testified only that he slipped on ice (id. at 27:15-24). Fourth, even now, Plaintiff fails to identify, either through counsel or an expert affidavit, precisely what makes the slope "a significant structural or design defect that is contrary to a specific statutory safety provision." Finally, there is no evidence that Lemle had complete and exclusive control of the Premises such that it could be liable as 276 West's managing agent (see Howard v Alexandra Rest., 84 AD3d 498, 499 [1st Dept 2011]).

Accordingly, the Landlord Defendants are entitled to summary judgment dismissing the Complaint.

Indemnification

"Entitlement to full contractual indemnification requires a clear expression or implication, from the language and purpose of the agreement as well as the surrounding facts and circumstances, of an intention to indemnify" (Martins v Little 40 Worth Associates, Inc., 72 AD3d 483, 899 NYS2d 30 [1st Dept 2010], citing Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777, 521 NYS2d 216, 515 NE2d 902 [1987] ). For contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability (Correia v Professional Data Management, Inc., 259 AD2d 60, 693 NYS2d 596 [1st Dept 1999]).

Where a commercial lease is the product of arm's-length negotiation between sophisticated parties who use insurance to allocate liability for injuries sustained by thirdpersons, an indemnification provision holding the tenant liable for the landlord's negligence is enforceable (Port Parties, Ltd. v Mdse. Mart Properties, Inc., 102 AD3d 539, 540 [...