Elie-Pierre v. 2285 Realty Assocs. LLC, INDEX NO. 159114/2014
| Decision Date | 16 October 2017 |
| Docket Number | INDEX NO. 159114/2014 |
| Citation | 2017 NY Slip Op 32189 (U) |
| Parties | MARIA ELIE-PIERRE, Plaintiff, v. 2285 REALTY ASSOCIATES LLC, LORI ZEE CORP., Defendants. |
| Court | New York Supreme Court |
MOTION DATE __________
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 60, 62, 63, 64, 65, 66, 67, 68, 69
were read on this application to/for __________.
In this personal injury action, defendants 2285 Realty Associates LLC (2285 Realty) and Lori Zee Corp. (Lori Zee) move for summary judgment, pursuant to CPLR 3212, dismissing the complaint filed against them by plaintiff Maria Elie-Pierre. Plaintiff opposes.
BACKGROUND
Plaintiff alleges that she sustained injuries on April 4, 2014, when while at work, she slipped and fell on carpeting covering the landing of a staircase while descending same in her capacity as key holder for the Talbots store located at 2289 Broadway in Manhattan (2289 Broadway). 2285 Realty was the out-of-possession landlord of 2289 Broadway, and Talbots was one of its tenants. Lori Zee was the managing agent for 2285 Realty. Plaintiff was an employee of Talbots.
Plaintiff's Deposition Testimony
At her examination before trial, Plaintiff testified that as part of her responsibilities as key holder for Talbots, she would go to an office in the store's basement to "close the [computer] system" (Elie-Pierre Tr. at 17, 38). She used the subject staircase, which included two sets of stairs separated by a carpeted landing, to access the basement (Id. 25, 29-31). Plaintiff testified that she slipped on carpeted landing while going down the stairs (Id. at 65). As she slipped, she physically "couldn't reach out" for anything, including the handrail, because of the way her body was moving (Id. at 66-67). When Plaintiff "looked back," she saw "the carpet was flipping up" (Id. at 65). Prior to the incident, she had not seen the carpet flipped up (Id.). Further, Plaintiff testified that the carpeting that was on the staircase on the day of the incident had been there since she began working at that Talbots location (Id. at 88).
Plaintiff also testified that on the day before the incident, some carpeting had been removed from the staircase, but she had not seen it actually being removed (Id. at 82-83, 85). While she observed construction workers constructing a staircase in the basement, she did not see "any of the [old] stairs being worked on" nor did she see "anybody replacing portions of the actual [old] stairs themselves" (Id. at 86, 87-88). She did testify, however, that the "stair" that she began to slip on was a stair that "was replaced" because she "saw the construction guy putting it together" (Id. at 89).
President of Lori Zee Stanley Zabar's Deposition Testimony
Stanley Zabar, President of Lori Zee and a part owner of 2285 Realty, testified at his examination before trial that Lori Zee had eight full-time employees, including property manager David Luft, whose duties included receiving complaints from tenants at 2289 Broadway, such as Talbots (Zabar Tr. at 19-21). He testified that Mr. Luft made monthly inspections and was responsible for inspections concerning any alteration that was being made by Talbots (Id. at 61-62, 74-75). Mr. Zabar also testified that the term "alteration" under the lease agreement between 2285 Realty and Talbots, Inc. only applies to structural items and that Lori Zee would not be involved in the day-to-day operation of Talbots (Id. at 25-27, 85). When asked whether he considered the replacement of an entire staircase a day-to-day operation, he testified that he would not (Id. at 85-86).
Property Manager of Lori Zee David Luft's Deposition Testimony
At his examination before trial, Mr. Luft testified that Lori Zee is the managing agent for 2289 Broadway, and Lori Zee's responsibilities included visiting and checking the building and addressing "whatever comes up" (Luft Tr. at 59-60) He testified that Talbots would be required to contact Lori Zee regarding any construction or renovation, including the renovation of a staircase (Id. at 71-72, 84-85). Mr. Luft could not remember whether Talbots had notified him with respect to any staircase alteration or whether he had reviewed a work order for same (Id. at 87-88, 95).
Lease
Pursuant to the lease agreement between 2285 Realty and Talbots, Inc. dated January 25, 1993 (the Lease), which was in effect on the date of the incident:
Owner or Owner's agents shall have the right (but shall not be obliged) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonably desirable to any portion of the building or which Owner may elect to perform, in the premises, following Tenant's failure to make repairs or perform any work which tenant is obliged to perform under this lease, or for the purposes of complying with laws, regulations, and other directions of governmental authorities (Ex. J, Standard Form Of Store Lease, pg. 2).
The Lease also states that with respect to "Alterations:"
Tenant shall make no structural changes in or to the demised premises of any nature without Owner's prior written consent. Subject to the prior written consent of Owner, and to the provisions on this article, Tenant at Tenant's expense, may make alterations, installations, additions or improvements which are non-structural and which do not affectutility services or plumbing and electrical lines, in or to the interior of the demised premises (Ex. J, Standard Form Of Store Lease, pg. 1).
The Lease defines "alteration" as follows: "any improvement, addition, change or installation of, in or to the demised premises, including, without limitation, any of such involving ... stairways ... whether or not the same are made in connection with the repair, replacement or addition to trade fixtures, machinery or equipment" (Ex. J, Rider Annexed To Lease Dated January 25, 1993 By And Between 2285 Realty Associates; As Landlord and The Talbots, Inc., As Tenant, Article 43 (xi), pg. 6).
ARGUMENTS
Defendants argue that they are entitled to summary judgment because there is no evidence that they (1) were contractually obligated to maintain or repair the carpet on the staircase or had any duty to maintain the subject staircase; (2) controlled the premises where the alleged incident occurred; (3) created any defective condition or had notice of said condition; or (4) violated any specific statute involving a structural defect. Plaintiff contends that Defendants' motion for summary judgment should be denied because 2285 Realty had a right of reentry, pursuant to the Lease, and liability in the instant case is based on a significant structural or design defect in violation of a specific statutory safety provision. Moreover, Plaintiff alleges that Defendants had a non-delegable duty to remedy several New York City Building Code violations.
The parties do not dispute that 2285 Realty was an out-of-possession landlord and that it had a right to reenter the premises; rather, they disagree as to the nature of the alleged defect and whether the subject staircase is an "access stair" or an "interior stair," the latter of which would be under the purview of New York City Building Code Section 153.
Defendants contend that Plaintiff's claim is based on Plaintiff having slipped on loose carpeting and that that does not qualify as a significant structural or design defect. Defendantsfurther contend that the subject staircase is an "access staircase," outside the scope of the New York City Building Code violations cited by Plaintiff and submit the affidavit of Stan Pitera, P. E., in support.
Plaintiff argues that the subject staircase underwent an alteration, of which Defendants would have been given notice and for which Defendants would have had to provide approval pursuant to the terms of the Lease, and that said alteration resulted in the dangerous condition that caused Plaintiff's slip and fall.
Plaintiff refers to the deposition testimony of Mr. Zabar and of Mr. Luft and to the Lease to contend that there is at least a question of fact as to whether Defendants had notice of the alteration to the subject staircase. Mr. Zabar testified that replacement of a staircase would have qualified as an alteration as defined by the Lease, and Mr. Luft testified that "usually" Lori Zee would be notified if Talbots wished to renovate the staircase, and he could not remember if he was notified regarding any construction concerning the subject staircase nor could he remember if he had seen a work request order (Zabar Tr. at 85-86; Luft Tr. at 84, 87-88, 92, 95). The Lease itself requires that the owner receive written consent prior to any alteration (Kazansky, Aff. in Supp., Ex. J, Standard Form Of Lease, pg. 1). Accordingly, Plaintiff argues, Defendants have not established a prima facie case that they did not have constructive notice of the condition resulting from the alteration.
Furthermore, Plaintiff submits the expert affidavit of Nicholas Bellizzi, P.E., in which he concludes the subject staircase is an "interior stair" under the purview of New York City Building Code Section 153. Mr. Bellizzi states that the staircase is an "interior stair" because the subject stairs are the main egress to the basement. Mr. Bellizzi further opines that consequently the subject stairs violate Sections 153 1(c) Tread Slipperiness, 153 (4) Treads and Risers, and 153 (6) Handrails for construction. Mr. Bellizzi concluded: ...
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