Selkin v. N.Y. Convention Ctr. Operating Corp.
| Decision Date | 21 November 2018 |
| Docket Number | Index No. 155635/2016 |
| Citation | 2018 NY Slip Op 33105 (U) |
| Parties | SUSAN SIEGEL SELKIN, Plaintiff v. NEW YORK CONVENTION CENTER OPERATING CORP. and GREATER NEW YORK DENTAL MEETING, Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
Plaintiff sues defendants for personal injuries she sustained December 1, 2015, when she slipped and fell as she was descending steps in the food court at the Javits Convention Center, 655 West 34th Street, New York County, where she was attending defendant Greater New York Dental Meeting's annual dental convention. Greater New York Dental Meeting leased space in the Convention Center from co-defendant New York Convention Center Operating Corp. through a Licensing Agreement.
Greater New York Dental Meeting moves for summary judgment dismissing the complaint and New York Convention Center's cross-claims against Greater New York Dental Meeting. C.P.L.R. § 3212(b). Greater New York Dental Meeting's executive director, Dr. Robert Edwab, at his deposition testified that he signed the Licensing Agreement between the two defendants and authenticated it. Greater New York Dental Meeting establishes, without rebuttal, that Greater New York Dental Meeting did not create any hazardous condition on the food court steps and, based on the Licensing Agreement and New York Convention Center public safety supervisor Philip DiSalvio's admission at his deposition, did not lease the space encompassing the food court steps or maintain that space. Therefore the court grants Greater New York Dental Meeting's motion insofar as it seeks summary judgment dismissing the complaint and New York Convention Center's cross-claims for non-contractual indemnification and contribution against Greater New York Dental Meeting. C.P.L.R. § 3212(b) and (e); Vivas v. VNO Bruckner Plaza LLC, 113 A.D.3d 401, 402 (1st Dep't 2014); Aiello v. Burns Intl. Sec. Servs. Corp., 110 A.D.3d 234, 247-48 (1st Dep't 2013); Casey v. New York El. & Elec. Corp., 107 A.D.3d 597, 599 (1st Dep't 2013); Vargas v. New York City Tr. Auth., 60 A.D.3d 438, 441 (1st Dep't 2009).
New York Convention Center cross-moves for summary judgment dismissing the complaint and Greater New York Dental Meeting's cross-claims against New York Convention Center. It also seeks summary judgment on its cross-claims against Greater New York Dental Meeting for contractual indemnification and for breach of a contract to procure insurance as provided in the Licensing Agreement. C.P.L.R. § 3212(b).
Plaintiff discontinues any claim that defendants violated the New York City Building Code. Plaintiff Claims only that thedesign, construction, and maintenance of the three food court steps created an optical illusion that they were only two steps, so that the second of the three steps was unexpected, causing her to miss a step as she descended. Haibi v. 790 Riverside Dr. Owners, Inc., 156 A.D.3d 144, 147 (1st Dep't 2017); Buonchristiano v. Fordham Univ., 146 A.D.3d 711, 712 (1st Dep't 2017); Saretsky v. 85 Kenmare Realty Corp., 85 A.D.3d 89, 92-93 (1st Dep't 2011). Specifically, she alleges that the platform of the first step appeared to extend all the way to the edge of the platform of the second step, so that the apparent edge of the first step was actually the edge of the second step. As explained by her engineer:
Aff. of Benjamin S. Goldstein Ex. C ¶¶ 9-10. The engineer also recommends how this optical illusion would be easily remedied by changing the metal strips or erecting a warning sign, without redesigning or reconstructing the steps.
Although no evidence demonstrates that New York Convention Center Operating Corp. owned the Convention Center, New York Convention Center Operating Corp. identified itself as the operator of the center in the Licensing Agreement. The operatoror manager of the premises owed a duty of care to keep the premises reasonably safe. Branch v. County of Sullivan, 25 N.Y.3d 1079, 1082 (2015); Jackson v. Board of Educ. of City of N.Y., 30 A.D.3d 57, 60 (1st Dep't 2006). Thus New York Convention Center's control over the Convention Center as the Center's operator furnishes a basis for liability for a hazardous condition on the premises. Adriana G. v. Kipp Wash. Hgts. Middle School, 165 A.D.3d 469, 469-70 (1st Dep't 2018).
New York Convention Center does not rebut the described optical illusion, nor disclaim control over the steps. Instead, New York Convention Center insists that any optical illusion created by the steps could not have caused plaintiff to miss a step, because at her deposition she could not recall whether she was even looking at the steps before she fell. See Abraido v. 2001 Marcus Ave. LLC, 126 A.D.3d 571, 572 (1st Dep't 2015); Franchini v. American Legion Post, 107 A.D.3d 432, 432 (1st Dep't 2013). Yet New York Convention Center acknowledges her testimony that she was aware when she reached the top of the steps, expressing confidence that she did in fact observe the steps: "I know I saw them." Aff. of Heidi M. Weiss Ex. C, at 43. See Buonchristiano v. Fordham Univ., 146 A.D.3d at 712. Thus, even if at other points in her testimony plaintiff could not recall or was unsure whether she was looking at the steps, this conflict in her testimony only raises a factual question precluding summary judgment.
Dr. Edwab admitted that Greater New York Dental meeting was required to procure insurance covering New York Convention Center as an insured, as set forth in the Licensing Agreement, Yet New York Convention Center fails to show that Greater New York Dental Meeting did not satisfy that requirement. The Licensing Agreement also establishes that, even though Greater New York Dental Meeting's leased space did not encompass the food court, since its attendees were permitted use of the entire Convention Center, which included the food court, its obligation to indemnify New York Convention Center extends to any injury in connection with its attendees' use of the Center. Yet New York Convention Center concedes that the indemnification provision is inapplicable if New York Convention Center's sole negligence caused the injury. See Great N. Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 417 (2006); Hogeland v. Sibley. Lindsay & Curr Co., 42 N.Y.2d 153, 156 n.2 (1977).
New York Convention Center relies on evidence of plaintiff's negligence to establish that New York Convention Center was not solely negligent in causing her fall: the testimony that plaintiff could not recall whether she was looking at the steps and that she did not avail herself of the handrail as she took the first step down before she fell. See Parra v. Ardmore Mgt. Co., 258 A.D.2d 267, 268 (1st Dep't 1999); Armstrong v. Ogden Allied Facilities Mgt. Co., 234 A.D.2d 235, 236 (1st Dep't 1996)....
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