Kittay v. Moskowitz

• Decision Date: 03 May 2012
• Parties: David R. KITTAY, etc., Plaintiff–Appellant–Respondent, v. Herbert MOSKOWITZ, Defendant–Respondent, Hudson River International LLC, Defendant–Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 451

944 N.Y.S.2d 497

2012 N.Y. Slip Op. 03520

David R. KITTAY, etc., Plaintiff–Appellant–Respondent,

v. Herbert MOSKOWITZ, Defendant–Respondent,Hudson River International LLC, Defendant–Respondent–Appellant.

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

May 3, 2012.

Brian M. Levy, New York, for appellant-respondent.

Weiner, Millo, Morgan & Bonanno, LLC, New York (Alissa A. Mendys of counsel), for respondent-appellant.

Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.

SAXE, J.P., SWEENY, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered July 5, 2011, which granted defendant Herbert Moskowitz's motion for summary judgment dismissing the complaint as against him, denied plaintiff's cross motions for leave to amend his bill of particulars, for spoliation sanctions, and to dismiss defendant Hudson River International LLC's (HRI) ninth affirmative defense, and denied HRI's motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to grant HRI's motion, and otherwise affirmed, without costs.

The record demonstrates that defendant Moskowitz was an out-of-possession landlord, with no duty to maintain the premises. Notwithstanding that he had a limited right to re-enter the premises, at reasonable times, to make repairs not made by the tenant, Moskowitz cannot be held liable for plaintiff's decedent's injuries because the record does not establish that the basis of that liability is “a significant structural or design defect that is contrary to a specific statutory safety provision” ( see johnson v. urena serv. ctr., 227 a.d.2d 325, 326, 642 n.y.s.2d 897 [1996],lv. denied88 N.Y.2d 814, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996];Devlin v. Blaggards III Rest. Corp., 80 A.D.3d 497, 497–498, 916 N.Y.S.2d 580 [2011],lv. denied16 N.Y.3d 713, 2011 WL 1755603 [2011] ).

Former Administrative Code of City of N.Y. §§ 27–127 and 27–128 were general safety provisions ( see Boateng v. Four Plus Corp., 22 A.D.3d 323, 802 N.Y.S.2d 418 [2005] ). Administrative Code § 27–375(f), which requires, inter alia, handrails on “interior stairs,” is not applicable, because the subject staircase was not an “interior stair[ ],” i.e., not one that “serve[d] as a required exit” (Administrative Code §§ 27–232; see Cusumano v. City of New York, 15 N.Y.3d 319, 324, 910 N.Y.S.2d 410, 937 N.E.2d 74 [2010];Maksuti v. Best Italian Pizza, 27 A.D.3d 300, 811 N.Y.S.2d 375 [2006],lv. denied7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006] ). Non-compliance with regulations that govern tread width and depth and lighting does not constitute a significant structural or design defect ( see Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [2010];Bethea v. Weston House Hous. Dev. Fund Co., Inc., 70 A.D.3d 470, 895 N.Y.S.2d 364 [2010];Peck v. 2–J, LLC, 56 A.D.3d 277, 866 N.Y.S.2d 661 [2008] ). The alleged violation of Multiple Dwelling Law § 190 cannot serve as a basis for liability since the accident is not alleged to have been caused by the presence of a combustible material.

In light of the foregoing, the court correctly denied plaintiff's motion for leave to amend the bill of particulars and for sanctions against Moskowitz for spoliation.

Defendant HRI demonstrated that it was the alter ego of plaintiff's decedent's employer, Antonio Thomas International Corp. (ATIC), HRI's parent company, which operated dental offices under the “Vital Dent” trademark and completely dominated and controlled HRI, and therefore that decedent's exclusive remedy against HRI is the Workers' Compensation Law ( seeWorkers' Compensation Law § 11; ICarty v. East 175th St. Hous. Dev. Fund Corp., 83 A.D.3d 529, 921 N.Y.S.2d 237 [2011];Morato–Rodriguez v. Riva Const. Group, Inc., 88 A.D.3d 549, 931 N.Y.S.2d 282 [2011];Hernandez v. Sanchez, 40 A.D.3d 446, 836 N.Y.S.2d 577 [2007] ). The fact that ATIC is organized into separate legal entities does not negate alter ego status since, inter alia, the record reflects that ATIC controlled and dominated HRI ( see Ramnarine...