Gatto v. Coinmach Corp.

• Decision Date: 22 May 2019
• Docket Number: Index No. 10107/13,2016–09311
• Parties: Marie GATTO, et al., Plaintiffs-Appellants, v. COINMACH CORP., Respondent, Highlawn Terrace, Inc., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1176

101 N.Y.S.3d 390

Marie GATTO, et al., Plaintiffs-Appellants,

v. COINMACH CORP., Respondent,Highlawn Terrace, Inc., et al., Defendants-Appellants.

2016–09311

Index No. 10107/13

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

Argued—November 27, 2018

May 22, 2019

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Coinmach Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is denied.

The plaintiff Marie Gatto (hereinafter the injured plaintiff) alleges that she fell in the laundry room in her apartment building as she was trying to open the soap tray of the washing machine she was using. According to the injured plaintiff, the washing machines in the laundry room are placed on a platform, which is 10¾ inches high, and there is a step in front of the platform, which is 5? inches high. After putting her laundry in the washing machine, the injured plaintiff stepped onto the step to put soap into the soap tray. She alleges that she pulled the soap tray out of the washing machine and the tray did not stop, as it was supposed to, but came all the way out, causing her to fall backward. At her deposition, the injured plaintiff testified that the fact that the soap tray came all the way out of the washing machine "caused [her] to fall."

Following the accident, the injured plaintiff, and her husband suing derivatively, commenced this action against Highlawn Terrace, Inc. (hereinafter Highlawn), the owner of the building, Wentworth Property Management Corp. (hereinafter Wentworth), the management company, and Coinmach Corp. (hereinafter Coinmach), which leased the laundry room from Highlawn and was responsible for maintaining it. Coinmach moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the Supreme Court granted the motion. The plaintiffs appeal, and Highlawn and Wentworth separately appeal.

The Supreme Court should have denied that branch of Coinmach's motion which was for summary judgment dismissing the complaint insofar as asserted against it. Contrary to Coinmach's contention, it failed to establish, prima facie, that it did not owe a duty to the injured plaintiff. Coinmach was the lessee of the laundry room with "the sole and exclusive occupancy, possession and control" for a term of seven years. In return, Coinmach agreed to make monthly rent payments. A tenant has a common-law duty to keep the premises it occupies in a reasonably safe condition, even when the landlord has explicitly agreed in the lease to maintain the premises (see Reimold v. Walden Terrace, Inc. , 85 A.D.3d 1144, 926 N.Y.S.2d 153 ; Cohen v. Central Parking Sys. , 303 A.D.2d 353, 354, 756 N.Y.S.2d 266 ; Chadis v. Grand Union Co. , 158 A.D.2d 443, 550 N.Y.S.2d 908 ).

Although we agree with our dissenting colleague that the height of the machine was not an actionable defect (see Zamor v. Dirtbusters Laundromat, Inc. , 138 A.D.3d 1114, 1115, 31 N.Y.S.3d 130 ), the soap tray was defective. The superintendent of the building testified at his deposition that the clip that was supposed to prevent the soap tray from sliding out of the washing machine was broken. Coinmach failed to meet its burden on its motion for summary judgment of establishing, prima facie, that the defective soap tray was not a proximate cause of the accident (see Padilla v. Park Plaza Owners Corp. , 165 A.D.3d 1272, 1275, 87 N.Y.S.3d 79 ). Since the injured plaintiff testified at her deposition that the defective soap tray caused her fall, there is a triable issue of fact as to proximate cause. The fact that she used the washing machines on many prior occasions without incident is not relevant to this analysis.

Moreover, Coinmach failed to make a prima facie showing that it did not have constructive notice that the soap tray was broken. Coinmach's area vice president testified at his deposition that Coinmach did not perform any routine maintenance on the machines, which were serviced whenever Coinmach received a service call requesting repairs. The area vice president testified that at each such service call, the technician would perform a "touch and feel test" on each machine, which would include opening the soap tray to make sure it was secure. However, there is no evidence in the record as to the date of the last service call, and therefore no evidence as to when Coinmach last inspected the subject soap tray before the injured plaintiff's accident (see Rodriguez v. New York City Hous. Auth. , 169 A.D.3d 947, 94 N.Y.S.3d 318 ; Quinones v. Starret City, Inc. , 163 A.D.3d 1020, 1022, 81 N.Y.S.3d 184 ). Contrary to the conclusion of our dissenting colleague, the fact that the building superintendent—who was not an employee of Coinmach—did not have actual notice of the defect is not relevant to whether Coinmach had constructive notice of the defect. In any event, the superintendent monitored the laundry room to insure that the machines were working, but there is no evidence that he monitored the condition of the soap trays. He testified that the porter cleaned the soap trays and therefore must have examined them, but there is no statement in the record from the porter as to what he did. Accordingly, Coinmach failed to eliminate all triable issues of fact as to whether it had constructive notice of the dangerous condition (see Reimold v. Walden Terrace, Inc. , 85 A.D.3d 1144, 926 N.Y.S.2d 153 ).

Since Coinmach did not establish its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied that branch of Coinmach's motion which was for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Moreover, the Supreme Court also should have denied those branches of Coinmach's motion which were for summary judgment dismissing the cross claims asserted by Highlawn and Wentworth against Coinmach for contractual and common-law indemnification and contribution, since Coinmach did not establish that it was free from negligence in the happening of the injured plaintiff's accident (see Dow v. Hermes Realty, LLC , 155 A.D.3d 824, 826, 63 N.Y.S.3d 698 ; Bleich v. Metropolitan Mgt., LLC , 132 A.D.3d 933, 934, 19 N.Y.S.3d 527 ; Sellitti v. TJX Cos., Inc. , 127 A.D.3d 724, 726, 6 N.Y.S.3d 559 ; Adler v. Columbia Sav. & Loan Assn. , 26 A.D.3d 349, 811 N.Y.S.2d 737 ).

BALKIN, J.P., CHAMBERS and HINDS–RADIX, JJ., concur.

ROMAN, J., dissents, and votes to affirm the order insofar as appealed from, with the following memorandum:

While I agree with my colleagues in the majority that the defendant Coinmach Corp. (hereinafter Coinmach) failed to establish, prima facie, that it did not owe a duty of care to the plaintiff Marie Gatto (hereinafter the injured plaintiff) (see Reimold v. Walden Terrace, Inc. , 85 A.D.3d 1144, 926 N.Y.S.2d 153 ; Cohen v. Central Parking Sys. , 303 A.D.2d 353, 354, 756 N.Y.S.2d 266 ), in my view, Coinmach was entitled to summary judgment on the grounds that there was no dangerous or defective condition that caused the accident and, in any event, that Coinmach did not create or have actual or constructive notice of such condition.

On January 3, 2013, the injured plaintiff, then 80 years old, allegedly was injured when she fell while using a washing machine in a laundry room in the apartment building in which she resided, which was owned by the defendant Highlawn Terrace, Inc. (hereinafter Highlawn), and managed by the defendant Wentworth Property Management Corp. (hereinafter Wentworth). The washing machine was...