Hecht v. Vanderbilt Associates

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAWRENCE
• Citation: Hecht v. Vanderbilt Associates, 529 N.Y.S.2d 818, 141 A.D.2d 696 (N.Y. App. Div. 1988)
• Decision Date: 20 June 1988
• Parties: Ronnie HECHT, etc., Plaintiff-Respondent, v. VANDERBILT ASSOCIATES, etc., et al., Defendants Third-Party Plaintiffs-Appellants; Crown Lift Trucks, Inc., et al., Defendants Third-Party Defendants-Appellants.

Page 818

529 N.Y.S.2d 818

141 A.D.2d 696

Ronnie HECHT, etc., Plaintiff-Respondent, v. VANDERBILT ASSOCIATES, etc., et al., Defendants Third-Party Plaintiffs-Appellants Crown Lift Trucks, Inc., et al., Defendants Third-Party Defendants-Appellants.

Supreme Court, Appellate Division Second Department.

June 20, 1988.

Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City (J. Joseph Bainton, of counsel), for defendant third-party defendant-appellant Crown Lift Trucks, Inc., a/k/a Crown Controls Corp.

Aaron J. Broder, P.C., New York City (Howard E. Shafran, of counsel), for plaintiff-respondent.

Before LAWRENCE, J.P., and WEINSTEIN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death and personal injuries suffered by the plaintiff's decedent prior to his death, (1) the defendant third-party defendant Crown Lift Trucks, Inc. a/k/a Crown Controls Corporation, appeals from so much of an order of the Supreme Court, Suffolk County (McCarthy, J.), dated July 29, 1987, as denied its motion for summary judgment dismissing the plaintiff's amended complaint insofar as it is asserted against the defendants third-party plaintiffs and dismissing the third-party complaint as against it (2) the defendants third-party plaintiffs appeal from so much of an order of the same court, dated July 29, 1987, as denied their motion for summary judgment dismissing the amended complaint and cross claims as against them, and (3) the third-party defendant Commercial Fasteners Corp. has filed a notice of appeal from those orders.

ORDERED that the appeals by the defendants third-party plaintiffs and Commercial Fasteners Corp. are dismissed, without costs or disbursements for failure to perfect the same in accordance with the rules of this court (22 NYCRR 670.20[f] ); and it is further,

ORDERED that the order is reversed insofar as appealed from by Crown Lift Trucks, Inc., its motion is granted, the amended complaint is dismissed as against the defendants Vanderbilt Associates, Rose, Gross, Manno and Wildoro Associates, and the third-party complaint is dismissed as against Crown Lift Trucks, Inc; and it is further,

ORDERED that Crown Lift Trucks, Inc., is awarded one bill of costs, payable by the plaintiff.

On June 8, 1983, at approximately 11:45 A.M., the decedent Michael Hecht received serious injuries which resulted in his death when, while operating a fork lift truck on the commercial premises known as 50 Oser Avenue, Hauppauge, New York, the fork lift overturned on a ramp leading into and out of the building.

The defendants third-party plaintiffs Vanderbilt Associates, a copartnership, and Howard Rose, Walter J. Gross, Thomas Manno and Wildoro Associates, its partners (hereinafter the landlords), were the owners and landlords of this premises. The defendant third-party defendant Crown Lift Trucks, Inc., a/k/a Crown Controls Corporation (hereinafter the manufacturer) was the manufacturer and owner of the fork lift upon which the decedent was riding at the time of his death.

The decedent was the President of Commercial Fasteners Corp. (a third-party defendant) at the time of his death. Commercial Fasteners Corp. had leased the subject premises from the defendant landlords on April 29, 1983, for a period of five years. Paragraph six of the lease assigned responsibility for repairs of the premises between the landlords and tenant as follows:

"The landlord shall make all structural repairs to the demised premises during the term of this lease with the exception of any structural repairs required as a result of the acts of negligence of the Tenant * * * 'Structural Repairs' are hereby defined as meaning repairs to the foundation, roof supports, perimeter walls and structural steel

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"The Tenant shall * * * maintain and repair sidewalks abutting the premises, driveways and repair * * * parking areas and buildings appurtenances. The Tenant shall * * * generally keep the premises, interior and exterior, in good repair, excluding only those repairs for which the Landlord shall be responsible".

In addition, the lease listed particular items of repair to be performed by the landlords on the premises. The only item pertinent to this appeal was the landlords' agreement to "seal driveway with one coat of asphalt sealer". Also, the landlords reserved the right to enter the premises at any time "for the purpose of inspecting the same, or of making repairs that tenant may neglect or refuse to make".

The amended complaint alleged, in general terms, that the accident was caused by the landlords' negligence and that the manufacturer was liable for breach of warranty and in strict products liability. The bill of particulars averred that the construction and design of the ramp upon which the incident occurred was unsafe in that it was too steep. The plaintiff further contended, in general terms, that the ramp was improperly maintained and repaired. The complaint and bill of particulars were verified by an attorney.

The landlords moved for summary judgment dismissing the amended complaint and cross claims against them and the manufacturer separately moved for summary judgment dismissing the amended complaint as against the landlords and the third-party complaint as against it on the ground that the landlords owed no duty to the plaintiff or her decedent. The lease, the complaint and an affidavit of one of the landlords stating that the landlords had made no repairs to the premises since the commencement of the lease were appended to the motions. The Supreme Court determined that the movants had failed to establish their entitlement to summary judgment dismissing the amended complaint against the landlords and denied the motions. We disagree and reverse the order denying the motion of the manufacturer, the party which has perfected its appeal.

The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. The failure to make such a showing requires the denial of the motion, regardless of the insufficiency of the opposing papers ( see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642; Raia Indus. v. Young, 124 A.D.2d 722, 508 N.Y.S.2d 228; Royal v. Brooklyn Union Gas Co., 122 A.D.2d 132, 504 N.Y.S.2d 519). Here, the movants, by appending copies of the lease to their respective motion papers, made the necessary prima facie showing.

Generally, a landlord's liability for injuries caused by defective or dangerous conditions upon the leased premises depends upon whether the landlord has retained sufficient control over...