Gelbuda v. Opera Owners, Inc.
| Decision Date | 11 July 2012 |
| Docket Number | Index No. 101017/2009 |
| Citation | 2012 NY Slip Op 31808 |
| Parties | DAVID GELBUDA, Plaintiff, v. THE OPERA OWNERS, INC., BROADWAY PHOENIX COMPANY LLC, LAWRENCE PROPERTIES, INC., TOWN SPORTS INTERNATIONAL, INC., SECOND STAGE THEATER, INC., VITAL THEATER COMPANY, INC. and ABS PARTNERS REAL ESTATE, LLC, Defendants. |
| Court | New York Supreme Court |
For Plaintiff:
Gersowitz Libo & Korek, P.C.
For Defendants Broadway Phoenix and Opera
Vincent P. Crisci
For Defendant Second Stage:
Gordon & Silber
For Defendant Vital:
James J. Toomey
For Defendant ABS:
Levy Davis & Maher
For Defendant Town Sports International Inc.:
Wilson Elser Moskowitz & Edelman
In this action to recover damages for personal injuries, defendant ABS Partners Real Estate, LLC ("ABS") moves (motion seq. no. 003) for summary judgment dismissing plaintiff David Gelbuda's ("Gelbuda") complaint and the cross claim of codefendants The Opera Owners Inc. ("Opera"), Broadway Phoenix Company LLC("Broadway Phoenix"), and Lawrence Properties, Inc. ("Lawrence"); Opera, Broadway Phoenix, and Lawrence move (motion seq. no. 004) for summary judgment dismissing the complaint and all cross claims, and striking Gelbuda's demand for punitive damages; Broadway Phoenix moves for summary judgment on its contractual indemnification cross claim against codefendant Town Sports International, Inc. ("TSI"); TSI moves (motion seq. no. 005) for summary judgment dismissing the complaint; defendant Second Stage Theater, Inc. ("Second Stage") moves (motion seq. no. 006) for summary judgment dismissing the complaint and all cross claims; defendant Vital Theater Company, Inc. ("Vital") moves (motion seq. no. 007) for summary judgment dismissing the complaint and any cross claims; and Gelbuda, who opposes the applications of all defendants, except those of Vital and Lawrence, cross moves for an order granting it spoliation sanctions against the remaining defendants. Motion sequence numbers 003, 004, 005, 006, and 007 are consolidated for disposition.1
On August 8, 2007, Gelbuda was injured shortly before 9:30 A.M. when he rested his hand on the frame of a light box affixed to the exterior of a building, located at 2162 Broadway, and received an electrical shock. The building had two addresses; one was 2162 Broadway, which related to commercial space which, in essence, occupied several lower floors and the other was 2166 Broadway, the building's 113 cooperative apartments, which principally occupied about 20 upper floors. The two addresses hadseparate management, lobbies, entrances, and electrical systems. The whole building was owned by Opera, the co-op corporation, which, in 1979, leased the entire commercial premises to Broadway Phoenix's predecessor in interest.2 Keith Lipstein ("Lipstein") was 2162 Broadway's property manager since the time Broadway Phoenix acquired the premises, which Lipstein believed was in 1993.
According to Lipstein, in about December 2006, one of Broadway Phoenix's commercial tenants, the Promenade Theater ("Promenade"), which had been on the premises since an unspecified date in the late 1970's, vacated its space, so that a new tenant, Sephora, could move in. When Promenade vacated, it did not remove a light box fixture, which was located on the building's exterior wall next to the southern entrance to the commercial space's lobby. Promenade had used that light box to advertise its productions. Lipstein testified that if anyone wanted to use that fixture after Promenade vacated, they would have had to contact him. Lipstein could not recall whether, after Promenade vacated, anyone contacted him using that fixture.
Under a 1999 lease between Promenade and Broadway Phoenix, Promenade was permitted, with Broadway Phoenix's permission, to erect exterior signage and was required to keep that signage in good repair. Broadway Phoenix consented to signs and marquees placed by Promenade under its prior lease. Signs included lights or other advertising objects. Under that 1999 lease, all fixtures, except trade fixtures, were theproperty of Broadway Phoenix, irrespective of who installed them, but trade fixtures were the property of Promenade. If Promenade vacated and left a trade fixture, Broadway Phoenix could opt to keep it as its own or remove it at Promenade's expense.
After Sephora signed a lease and took possession of its premises, it began an extensive renovation project. Meanwhile, on May 30, 2006, in anticipation of Sephora's signing the lease, Broadway Phoenix and TSI, a Broadway Phoenix tenant which operated a New York Sports Club ("NYSC") in part of the commercial space's basement, entered into a fifth lease amendment. That amendment required NYSC, if the Sephora deal came to fruition, to temporarily suspend its operations to permit renovations to be carried out, which renovations including the moving of NYSC's entryway in a southerly direction. That lease amendment also required Broadway Phoenix to remove NYSC's light box fixture, which was on the northern side of the commercial space's lobby entrance, which was near where the new Sephora space was to be. The amendment also permitted TSI to install that light box or a new one on the southern side of the entrance, the locale of the light box used by Promenade. Promenade was permitted to use the southerly light box until it vacated the premises in about December 2006. Lipstein testified that, when Promenade vacated, it removed its poster from the light box. Lipstein did not know when the light box used by Promenade was installed prior to his involvement with the property.
Under its original lease with Broadway Phoenix's predecessor,3 TSI was requiredto maintain any outside signs it installed. TSI was further required to take good care of fixtures and make non-structural repairs to preserve them in good working order, "reasonable wear and tear, obsolescence and damage from the elements, fire or other casualty, excepted." Damage to the demised premises, the remainder of the building, and fixtures caused by the tenant's negligence, carelessness, or improper conduct was to be repaired by the tenant. During the renovations, NYSC was not in operation from about December 2006 until about March 2007.
Second Stage was a commercial tenant since the early 1980s and operated a theater on several lower floors of the building. During the time in issue, it occupied its space from May until September. Second Stage subleased its premises to Vital, another theater company, from September through April. (The sublease indicates that Second Stage's subtenant was in the space from November 1 through May 31 each year). According to Stephen Sunderlin ("Sunderlin"), Vital's president, after Promenade vacated, Vital allegedly obtained Lipstein's permission to use the light box, which had been used by Promenade. Vital used that light box for at least one production, Game Boy, which ran between March 10 and April 22, 2007. Sunderlin testified that it was his recollection that Promenade's poster was still in the light box, which he believed is what had prompted him to ask Lipstein whether Vital could use the box. Sunderlin was not quite sure when the Game Boy poster was removed, but assumed that it was removed by April 22, 2007. He further testified that, by May 1, no one would have known that Vital had ever existedthere. According to Lipstein, Sunderlin, and Second Stage's building manager, Jason Walters ("Walters"), the light box in issue was constructed without any front panel, so that when advertising was removed, the box's interior, which included bulbs and wiring, would be exposed.
Photographs taken of the light box containing the Game Boy poster, show that the light box had intact side panels inscribed with Promenade's name. A wire appears on the outside of the box on the right side, near the top. Although the box was designed to illuminate the signage from behind, Vital did not use the type of sign through which light could penetrate, so, Sunderlin was unaware of whether the light box's lighting was operational during the time Vital used the box.
After Vital left, at the end of April 2007, Second Stage used the light box for one production, The Butcher of Baraboo, which ran from May 24 through July 30, 2007. Undated photographs of the light box with the poster for that production again showed intact side panels with Promenade's name, and some wiring coming out of the right side near the box's top. There is no evidence that Second Stage ever secured Lipstein's permission to use the light box, and Walters, who was unsure of whether permission had ever been obtained, surmised that Second Stage may have used the box because Vital had used it. Hector and Nathan, two Second Stage marketing personnel, placed The Butcher ofBaraboo poster, which came with a lexan cover, into the light box. While it is not entirely clear, it seems that at some point Second Stage removed the light box's sidepanels, which were imprinted with Promenade's name, and inserted side panels with its name.
Walters, who could not recall whether the light box was illuminated when Second Stage first used it for its play, was, at some point, informed by Hector that the light box was not illuminating. Consequently, on June 13, 2007, Walters sent Lipstein an e-mail regarding "the marquee sign on the right side of the entrance way." Walters testified that this e-mail referred to the southerly light box. Walters advised Lipstein that the sign was not working, that wiring was hanging from the light box, and that the Fire Department had performed an inspection and was unhappy with that sign and an exit sign in the lobby, which also was not working. Walters asked Lipstein to have an electrician fix both to avoid a violation, and advised that, because the power in the lobby was only working at 50% capacity, that might be the cause of the problem. Walters testified that only half of...
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