Harris v Carlisle 11TH Ave. Assoc., LLC

[*1] Harris v Carlisle 11TH Ave. Assoc., LLC 2009 NY Slip Op 51521(U) [24 Misc 3d 1219(A)] Decided on July 8, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2009
Supreme Court, Kings County

Rosalind Harris and Lamont Harris, Plaintiffs,

against

Carlisle 11TH Avenue Associates, LLC and Feinberg Properties LLC, Defendants.



Carlisle 11TH Avenue Associates, LLC and Feinberg Properties LLC, Third-Party Plaintiffs,

against

City of New York Department of Citywide Administrative Services Division Of Real Estate Services, Third-Party Defendant.



30466/06



The plaintiffs are represented by Seener & Seener, by Steven Seener, Esq., of counsel, the defendants third-party plaintiffs are represented by the Law Offices of Margaret G. Klein & Associates, by Kevin P. Fouhy, Esq., of counsel, the third-party defendant the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Mark Galen Towes, Esq., of counsel.

Robert J. Miller, J.

Plaintiff Rosalind Harris ("Harris") filed suit to recover damages for personal injury sustained against Carlisle 11th Avenue Associates, LLC., and Feinberg Properties LLC (collectively "Carlisle"). Carlisle commenced a third party action against the City of New York ("City"). Plaintiff allegedly sustained injuries on October 29, 2003, at 6:00 a.m. at 558 West 27th Street, New York, New York (the Premises) when she was caused to trip and fall on wet cardboard on the sidewalk. It was raining heavily at the time of the accident. Plaintiff was an employee of the City of New York, which rented the building abutting the sidewalk where the [*2]incident occurred.

Carlisle, the owner of the Premises, moves for summary judgment against plaintiff to dismiss the complaint, arguing that it was an out-of-possession owner, and that it did not have notice of the condition on the sidewalk. Carlisle also moves for summary judgment against it's tenant, the City, on the theory of contractual indemnification.

A motion for summary judgment is a drastic measure and is to be used sparingly. (Andre v. Pomeroy, 35 NY2d 361 [1947]). The court's function is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). The evidence presented on a motion for summary judgment must be construed in the light most favorable to the party opposing the motion. (Corvino v. Mount Pleasant Cent. School Distr., 35 AD2d 364 [2d Dept 2003]). To prevail on a motion for summary judgment, the moving party must tender sufficient evidence to eliminate all material issues of fact. (Winegard v. New York University Medical Center, 64 NY2d 851 [1985]). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form

sufficient to create a question of fact requiring a trial. (Kosson v. Algaze, 84 NY2d 1019 [1995]).Carlisle asserts that it should be granted summary judgment because it was an out of possession landowner and it had no notice of the dangerous condition. An out of possession owner is liable if he retains a right to reenter premises to inspect and make necessary repairs for "any structural defects, design defects, violations of Multiple Dwelling Law and violations of the Administrative Code, absent the assumption to make repairs." (Guzman v. Haven Plaza Housing Development Fund Co., Inc., 69 NY2d 559 [1987]). Reservation of a right to enter the premises for the purposes of inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition, but only where the condition violates a specific statutory provision. (Brewster v. Five Towns Health Care Realty Corp., 59 AD3d 483 [2 Dept 2009]).

Article 35 of the lease between Carlisle and the City provides that the landlord or its agent shall have the right to enter the demised premises "to examine the same and to make such repairs and replacements as Landlord may deem necessary to the Demised Premises or to any other portion of the Building or which Landlord may elect to perform." Carlisle contends that its right to reenter is irrelevant because the debris on the sidewalk was not a structural defect of the building. Carlisle as the owner of the abutting property to the sidewalk, even though out of possession, is liable for injuries resulting from failure to maintain the sidewalks pursuant to Administrative Code New York Administrative Code § 7-210. (James v. Blackmon, 58 AD3d 808 [2 Dept 2009]). Section 7-210 shifts liability from the City to the owners of the property abutting the sidewalk, aside from one- two- or three-family residences, for "any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks...in reasonably safe condition." The lease provisions combined with the application of Administrative Code § 7-210 expose the out of possession landowner to liability for the unsafe condition [*3]

With respect to whether Carlisle had notice, it is well-settled that a landlord will generally be held liable for a defective condition upon the premises if the landlord has actual or constructive notice of the condition for a long enough period of time that, in the exercise of reasonable care, he would be able to correct it. (Putnam v. Stout, 38 NY2d 607 [1976]; Murphy v. 136 Northern Blvd. Associates, 304 AD2d 540 [ 2d Dept 2003]). To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. (Gordon v. Museum of Natural History, 67 NY2d 836 [1986]). Plaintiff must offer evidence to establish that debris was present in the specific location for an appreciable period of time, or that prior complaints of debris in the specific area were made to the owner. (Smith v. Funnel Equities, Inc., 282 AD2d 445 [2d Dept 2001]). To establish that the hazardous condition was ongoing and recurring, plaintiff must show evidence that it was routinely left unaddressed in the specific area. (O'Connor-Miele v. Barhite & Holzinger, Inc., 234 AD2d 106 [1 Dept 1996]).

Plaintiff fails to raise an issue of fact that Carlise had notice with evidence of the cardboard boxes being an ongoing and recurring condition in the area where she fell that was routinely left unaddressed. (Smith v. P & J Edwards, Inc., 271 AD2d 313 [1st Dept 2000]). Plaintiff never filed a complaint nor was she aware of any complaints filed about the pieces of cardboard boxes. Moreover, at her deposition, plaintiff admitted that she did not usually use the 27th Street entrance where the accident occurred, but rather the 26th Street side.

Carlisle presented evidence that the area was routinely swept and debris was promptly removed twice a day by City employees. The City's managing custodian testified that maintenance crews swept the sidewalks between 8:00 AM and 8:30 AM every morning. He further testified that City

employees would regularly remove cardboard left by homeless persons after they left the area. The accident occurred at approximately 6:00 AM in the morning before most of the City employees arrived for work. It cannot be inferred that the debris existed for a sufficient period of time to enable the maintenance crew to discover it and remove it prior to the start of the 8:00 A.M. shift. (Mercer v. City of New York, 223 AD2d 688 [2d Dept 1996]). Accordingly, Carlisle's motion for summary judgment is granted. In light of the granting of summary judgment, the Court need not address Carlisle's motion against the City with regards to contractual indemnity.

The Clerk of the Court is directed to enter judgment dismissing the complaint and the third-party complaint with prejudice.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C. [*4]

July 8, 2009