Rodriguez v. Sheridan One Co.

• Court: New York Supreme Court — Appellate Division
• Citation: Rodriguez v. Sheridan One Co., 177 A.D.3d 801, 110 N.Y.S.3d 316(Mem) (N.Y. App. Div. 2019)
• Decision Date: 13 November 2019
• Docket Number: Index No. 503253/15,2018–11162
• Parties: Theresa RODRIGUEZ, Respondent, v. SHERIDAN ONE COMPANY, LLC, Appellant.

177 A.D.3d 801

110 N.Y.S.3d 316 (Mem)

Theresa RODRIGUEZ, Respondent,

v.SHERIDAN ONE COMPANY, LLC, Appellant.

2018–11162

Index No. 503253/15

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

Argued—May 20, 2019

November 13, 2019

Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Stephanie C. Gorin and Peter J. Scutero of counsel), for appellant.

Napoli Shkolnik PLLC, New York, N.Y. (Joseph P. Napoli and Kristina Georgiou of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured when she tripped and fell on a raised floor divider that separated the carpet from the linoleum floor at premises owned by the defendant and leased to the plaintiff's employer. Thereafter, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in the accident. The defendant moved for summary judgment dismissing the complaint, arguing, among other things, that it was an out-of-possession landlord with no duty to maintain the premises, that it did not have any notice of the condition, and that the alleged defect was trivial and non-actionable as a matter of law. In the order appealed from, the Supreme Court, inter alia, denied the defendant's motion, and the defendant appeals.

An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a "duty imposed by statute or assumed by contract or a course of conduct" ( Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18, 929 N.Y.S.2d 620 ; see Casson v. McConnell, 148 A.D.3d 863, 864, 49 N.Y.S.3d 711 ). "Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it" ( Davidson v. Steel Equities, 138 A.D.3d 911, 912, 30 N.Y.S.3d 275 ; see Washington–Fraser v. Industrial Home for the Blind, 164 A.D.3d 543, 544, 83 N.Y.S.3d 503 ).

Here, the defendant demonstrated, prima facie, that it was an out-of-possession landlord, that it was not contractually obligated to maintain the carpeting, that it did not assume such a duty through a course of conduct, and that it did not create the alleged defect by installing the carpeting or the floor divider (see Crosby v. Southport, LLC, 169 A.D.3d 637, 639, 94 N.Y.S.3d 109 ). However, the evidence submitted in opposition to the motion, which included the affidavits of the plaintiff and two of her former coworkers, raised a triable issue of fact as to whether the defendant assumed a duty to maintain the carpeting by its course of conduct (see Milham v. Port Auth. of N.Y. & N.J., 117 A.D.3d 694, 695, 985 N.Y.S.2d 595 ), or created the alleged defect by replacing the carpeting a few months before the plaintiff's fall. The defendant's contention that the affidavits of the plaintiff's former coworkers should not have been considered was improperly raised for the first time on appeal in its reply brief (see County of Nassau v. Expedia, Inc., 120 A.D.3d 1181, 1183, 993 N.Y.S.2d 39 ; Hendrickson v. Dynamic Med. Imaging, P.C., 78 A.D.3d 999, 1001, 913 N.Y.S.2d 666 ).

Furthermore, the...