Stimmel v. Osherow

• Decision Date: 17 November 2015
• Citation: 20 N.Y.S.3d 29,133 A.D.3d 483
• Parties: Barbara STIMMEL, et al., Plaintiffs, v. Julianne OSHEROW, etc., Defendant–Appellant, Jeff Kamin, Defendant. Julianne Osherow as Administratrix of the Estate of Ina K. Berkowitz, Third–Party Plaintiff–Appellant, v. Gumley Haft Kleier Inc., et al., Third–Party Defendants, Prudential Douglas Elliman Real Estate, et al., Third–Party Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 483

20 N.Y.S.3d 29

Barbara STIMMEL, et al., Plaintiffs,

v.Julianne OSHEROW, etc., Defendant–Appellant,Jeff Kamin, Defendant.

Julianne Osherow as Administratrix of the Estate of Ina K. Berkowitz, Third–Party Plaintiff–Appellant,

v.Gumley Haft Kleier Inc., et al., Third–Party Defendants,Prudential Douglas Elliman Real Estate, et al., Third–Party Defendants–Respondents.

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

Nov. 17, 2015.

Law Office of James J. Toomey, New York (Louis C. Annunziata of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for respondents.

GONZALEZ, P.J., MAZZARELLI, SWEENY, RICHTER, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered March 6, 2014, which granted third-party defendants Prudential Douglas Elliman Real Estate and Nora Leonhardt's motion for summary judgment dismissing the third-party complaint and all cross claims against them, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff Barbara Stimmel tripped and fell while viewing a condominium unit owned by defendant Jeff Kamin and occupied by Ina K. Berkowitz, defendant Julianne Osherow's decedent. Plaintiff was considering renting the unit, which was being shown by third-party defendant Nora Leonhardt. Leonhardt was a real estate broker with third-party defendant Prudential Douglas Elliman Real Estate, which had contracted with Kamin to act as exclusive rental agent. The accident occurred as plaintiff was reentering the apartment after having viewed the terrace, which was accessible from the living room.

The entrance to the terrace was adorned with floor-to-ceiling drapes, which were drawn open at the time of the accident. Plaintiff testified at her deposition that she did not see the cord used to open and close the drapes before the accident, and that her foot caught it as she stepped back into the apartment, causing her to fall forward into the apartment. Leonhardt testified that it was her custom when showing the apartment (she had shown it approximately 20 times) to open the drapes, if they were not open already when she arrived, and to attach the cord to a hook next to the short staircase leading to the terrace. However, she stated that, while the drapes were open at the time of the accident, she had no specific recollection whether she was the person who opened them.

Plaintiff commenced this action against Kamin and Berkowitz's estate. The estate commenced a third-party action against Leonhardt and Prudential.¹ Prudential and Leonhardt moved for summary judgment dismissing the third-party complaint, arguing that they owed plaintiff no duty to keep the apartment in a reasonably safe condition. They asserted that a real estate agent, who has no prior knowledge of a dangerous condition and only shows a premises to potential buyers and/or tenants, cannot be held liable for an alleged defective condition on the premises. They also contended that there was no evidence that Leonhardt had created the condition or launched the instrument of harm. In support of their motion, they submitted an affidavit by Leonhardt in which she reiterated that, although she did not recall raising the shades that adorned the glass doors leading to the terrace before the accident, it was her practice to "ma[k]e sure to place the cord in the six-inch space between the steps and the wall towards the right of the steps so that the cord would not obstruct the steps." She also averred that she had never observed the cord obstructing the steps "prior to or on the date of the accident," and "did not coil, drape, hang or otherwise place the cord on the steps leading to the terrace at any time on the date of the accident."

Plaintiff moved to amend the complaint to assert a negligence claim directly against Prudential and Leonhardt. She also opposed Prudential and Leonhardt's motion for summary judgment, arguing that they had failed to meet their initial burden of establishing that they did not control the apartment when the accident happened, because Leonhardt had voluntarily assumed a duty to make sure the accident location was safe.

Plaintiff also argued that Leonhardt had failed to use reasonable care to prevent the launching of an instrument of harm because she knew that a tripping hazard would result if the cord were not properly secured by the hook next to the door. Plaintiff claimed that a broker has a duty to make a reasonable inspection and to warn prospective buyers who tour a property of defects that are reasonably discoverable, and that Leonhardt breached this duty by failing to inspect the premises before showing the apartment to her. Plaintiff further contended that, even if Prudential and Leonhardt had made a prima facie showing that they did not exercise sufficient control over the apartment to create liability, they had raised a triable question of fact as to the issue by demonstrating that Leonhardt had visited the apartment on many occasions before the...