Owens v. Morris Park Ave. Props., LLC, Index No. 305635-2009

• Citation: 2013 NY Slip Op 33707 (U)
• Decision Date: 25 November 2013
• Docket Number: Index No. 305635-2009
• Parties: Michael Owens Plaintiff, v. Morris Park Avenue Properties, LLC, Subcon, Inc., and Nezam A. Immamalee, individually, d/b/a NBC Foods, Inc., Defendants
• Court: United States State Supreme Court (New York)

2013 NY Slip Op 33707(U)

Michael Owens Plaintiff,
v.
Morris Park Avenue Properties, LLC,
Subcon, Inc., and Nezam A. Immamalee,
individually, d/b/a NBC Foods, Inc., Defendants

Index No. 305635-2009

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX

FILED: December 2, 2013
November 27, 2013
November 25, 2013

DECISION/ORDER

Howard H. Sherman J.S.C.

Facts and Procedural Background

Michael Owens seeks recovery for injuries allegedly sustained on December 13, 2007, when in the course of a delivery, he fell to the basement level of commercial premises located at 966-970 Morris Park Avenue, Bronx County, New York.

This action, which alleges the breach of the duty to maintain the stairway in a reasonably safe condition, was commenced as against the out-of-possession owner of the premises, Morris Park Avenue Properties, LLC ("Morris Park"), as well as the "fast food" restaurant¹ to which the delivery was being made, and the individual franchisees and their corporation.

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By decision and order of this court dated November 9,2012, the unopposed motion of Morris Park for an award of summary judgment dismissing the complaint and all cross-claims asserted against it, was denied upon a finding that the defendant failed to sustain its initial burden.

The Note of Issue was filed on March 8, 2013 .

Motions

1) Defendant Morris Park moves to renew and reargue the court's determination on its dispositive motion contending that there is no evidence in the record that at the time of the incident the out-of -possession landlord possessed either actual or constructive knowledge of the causative defect alleged here.

With respect to the prior decision, Morris Park argues that it was plaintiff's burden to prove prior notice of the alleged dangerous condition, and plaintiff failed to so, and "the burden does not shift to defendant to disprove the absence of proof in plaintiff's case in chief, nevertheless, for this court's reconsideration of its prior Decision/Order, Morris Park now submits proof by way of affidavits from its two principals and the lease agreement detailing the contractual obligations between Morris Park and Subway." [Affirmation in Support of Motion ¶ 7]

In opposition, plaintiff contends that the motion is procedurally defective as it fails to seek leave of the court for reargument/renewal, and fails to separately identify and

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support each of the items of relief sought (see, CPLR 2221 (f)).

Plaintiff argues that to the extent it seeks renewal, the motion fails as lacking any justification for the failure to present the newly submitted facts on the original motion. To the extent reargument is sought, plaintiff contends that the court neither overlooked facts nor misapplied law in reaching the determination.

Finally, concerning that branch of the motion seeking dispositive relief, plaintiff argues that there are unresolved issues of fact as to whether Morris Park failed in its duty to conduct periodic inspections of the subject staircase, and whether defendant was liable under the doctrine of res ipsa loquitur.

2) Subcom, the individual defendant and NBC Foods, Inc. move for summary judgment dismissing the complaint and the cross-claim on the grounds that: l)the tenant did not have a duty to maintain or to repair the stairway because it was not located within the premises as leased to the moving defendants, i.e., the Subway restaurant and the basement beneath it; 2) the causative defect, i.e., a broken step, was structural in nature, and its repair, the responsibility of the building's owner, and 3) prior to the accident, the moving defendants had no notice of a dangerous condition on the stairway.

In opposition, plaintiff argues that defendants have failed to sustain their burden to prove as a matter of law that they had no duty to keep the staircase in good repair and to perform regular inspections in order to ensure that it was. It is argued that pursuant to the

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terms of the lease, Subcom was "responsible through its permissive use of the ladder/staircase to repair any damage to [it ] that it created or was created by third party invitees." [Affirmation in Support ¶ 20].

It is argued that there are questions of fact as to whether defendants' negligence may be inferred by application of the doctrine of res ipsa loquitur to the circumstances of this case, including the testimony of the owner's managing agent concerning Subway's exclusive use of the staircase and the defendant franchisee's sole possession of the key that unlocked the sidewalk door.

In reply, defendants reassert their contention that they had no prior notice of the causative defect, and argue that the res ipsa loquitor claim first raised in an amended bill of particulars dated nearly two months after the return date of their motion, should not be considered to defeat defendants' prima facie showing.

In addition, defendants argue that the theory is inapplicable here as "there can be no finding that this alleged accident could not have happened without negligence, which requires notice of some kind on the part of the defendant to be proven", nor could there be a finding that the stairs were under the exclusive control of the Subcom defendants in light of the fact that the owner acknowledged by testimony and by conduct, i.e., replacing the structure at its own expense, that the repair of any dangerous condition on the staircase was the landlord's responsibility.

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3) Plaintiff cross-moves for an order pursuant to CPLR 3216 precluding defendants from offering any proof on liability issues at the trial of this action based alternatively, upon the intentional, or negligent destruction of, and failure to preserve crucial evidence, i,e, the wooden cellar staircase on which plaintiff fell.

In opposition, the owner maintains that the replacement of the staircase was precipitated by the observation of a broken portion of a riser on a bottom step² made on an inspection in September 2008 that was conducted at the request of the defendant franchisee . This event preceded by nearly a year, the first notice of plaintiff's accident upon receipt of service of the pleadings in this action.

Also in opposition, the co-defendants argue that there is no basis to grant the relief requested as against Subcom and the individual defendants as they neither removed nor destroyed the staircase, nor, at the time of the installation of the new staircase, were they on notice of any claim involving the old. With respect to the latter contention, defendants point to the undisputed facts that the unwitnessed accident occurred at 2:00 AM, when the Subway location was closed, and that plaintiff never reported the incident to anyone at the restaurant nor did he return to the location. Nor at anytime were defendants notified of the accident by plaintiff's employer.

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Testimony

As pertinent here, plaintiff testified that on the date of the accident his job entailed the delivery of pre-loaded foodstuffs to Subway restaurants. The route, which he had been working for the previous three to four months, included the subject location to which he had delivered goods on approximately ten to twelve previous occasions [OWENS EBT: 17-20].

Arriving at the location at approximately 2:00 AM, plaintiff parked his truck and unlocked the sidewalk cellar door³, and then descended the vaulted stairway to the basement where he turned on the lights [Id. 23-26]. He went back upstairs to commence the loading of the goods onto the "shoot" adjacent to the left-side of the steps . After all the goods had gone down to the basement floor, plaintiff began to walk down the stairs to pick them up and place them in the restaurant's basement .⁴ When he reached either the second or the third step from the top, the step "broke" and plaintiff "fell through the step." [Id. 28:10;16]. Nails "came out from the side" of the wooden step, and it "had fallen down on the step below it." [Id. 29]. He fell straight down, "hitting the step below and slipped off" falling down to the bottom of the stairs [Id. 30:4-32]. Plaintiff climbed back out of the basement after completing the delivery , and returned to his truck to

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complete his route . When he got back to his employer's Pennsylvania office, he advised his manager that he had fallen when the step broke [Id. 35-36], The manager's secretary filled out an accident report, however, plaintiff could not recall whether he had ever looked at it [Id. 36].

Laura Torco testified that she and her sister were the members of Morris Park Avenue Properties, LLC and she, the property manager of the two commercial properties the L.L.C. owned that were located on adjacent corners of Morris Park Avenue.

At the time of the accident, the subject property, 966-970 Morris Park Avenue, had four tenants: the Subway franchise; offices for a contractor, and one for a property manager, and a second-floor "Xerox" office [TORCO EBT: 8-11;...