Torres v. West Street Realty Company

• Decision Date: 01 September 2005
• Docket Number: 5569.
• Citation: 21 A.D.3d 718,800 N.Y.S.2d 683,2005 NY Slip Op 06563
• Parties: RICARDO TORRES et al., Respondents-Appellants, v. WEST STREET REALTY COMPANY et al., Appellants-Respondents. WEST STREET REALTY COMPANY et al., Third-Party Plaintiffs, v. TOBIN HOME FASHIONS, INC., Third-Party Defendant, and APARTMENT FURNITURE RENTALS ASSOCIATES, Third-Party Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 718

800 N.Y.S.2d 683

2005 NY Slip Op 06563

RICARDO TORRES et al., Respondents-Appellants, v. WEST STREET REALTY COMPANY et al., Appellants-Respondents.

WEST STREET REALTY COMPANY et al., Third-Party Plaintiffs, v. TOBIN HOME FASHIONS, INC., Third-Party Defendant, and APARTMENT FURNITURE RENTALS ASSOCIATES, Third-Party Defendant-Appellant-Respondent.

5569.

Appellate Division of the Supreme Court of the State of New York, First Department.

September 1, 2005.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about February 4, 2004, which, insofar as it denied the motions of defendant West Street Realty Company and its partners, Frank Carrano, Blanche Goldberg and Jeanette Sherkin (West Street) and third-party defendant Apartment Furniture Rentals (Rentals) for summary judgment dismissing plaintiffs' negligence claims, unanimously reversed, on the law, without costs or disbursements, the motions for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

West Street leased a warehouse to Rentals pursuant to a lease requiring the lessor to build four interior loading docks and modify another in accordance with the general requirements of Rentals. West Street hired and paid a contractor to do the work. Under the lease, other than specified repairs to the electric, plumbing, sprinkler and heating systems and roof, as well as structural repairs to the exterior walls, foundation and steel framing, Rentals was responsible for the repair and maintenance of the premises. West Street also had the right of entry for the purpose of inspection, repairs, compliance with governmental orders and showing the premises to prospective buyers or tenants. Article 48 of the lease ("Owner's Liability") provided, in part: "Except by reason of their willful misfeasance or gross negligence, Owner . . . shall not be liable to Tenant, Tenant's agent and employees . . . for any injury to person . . . because of failure to repair, defect in, or failure of, equipment, . . . or by . . . water, snow, ice . . . leaking, escaping or flowing into the Demised Premises."

Plaintiff Ricardo Torres, employed by Rentals as a truck driver, alleges that on the snowy morning of February 4, 1995, after retrieving his 24-foot truck from an outdoor parking lot and clearing snow from its windshield and mirrors, he drove to Rentals' warehouse and backed the truck, the top of which was still covered with snow, into indoor loading bay number 2. The loading dock was recessed and completely within the premises. The docking bay sloped downward so that when a truck is fully backed in, its rear would be at the same level as the platform and its front higher. As a result of this configuration, once the snow on top of the truck began to melt in the heated warehouse, it slid off the back of the truck and onto the platform. When the plaintiff returned to the loading platform, after loading his truck and getting the necessary paperwork, he slipped on the slush and water that had accumulated on the dock, causing him to fall to the concrete floor and to sustain multiple fractures. Although a wet condition existed on the dock every time it snowed, he never complained to anyone on the day of the accident or at any time before. Nor did he clean the loading dock on the day of the accident. He had no trouble with the lighting conditions in the loading dock area. West Street did not have offices in the warehouse, and once Rentals took possession, West Street never inspected or entered the premises to perform maintenance or repairs; on occasion, a representative went there to collect rent. Rentals was responsible for the removal of water, snow and ice from the loading...