Myszka v Colonial Plaza Corp.

[*1] Myszka v Colonial Plaza Corp. 2009 NY Slip Op 52369(U) [25 Misc 3d 1232(A)] Decided on November 24, 2009 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2009
Supreme Court, Dutchess County

Kenneth R. Myszka, Plaintiff,

against

Colonial Plaza Corp., COLONIAL PLAZA COMPANY and SSD & B CORPORATION, Defendants.



1957/05



WARD W. INGALSBE, III, ESQ.

RYAN, ROACH & RYAN, ESQS.

Attorneys for Plaintiff

P.O. Box 3153

115 Green Street

Kingston, New York 12402

JODIE M. HANRAHAN, ESQ.

McCABE & MACK, LLP

Attorneys for Defendants

COLONIAL PLAZA CORP. and

COLONIAL PLAZA COMPANY

63 Washington Street

P.O. Box 509

Poughkeepsie, New York 12602

SSD & B Corporation

Defendant, Pro Se

c/o Frank Stortini

67 Mill Street

Rhinebeck, New York 12572

James D. Pagones, J.

Defendant Colonial moves for summary judgment dismissing the plaintiff's complaint and the cross-claims of co-defendant SSD & B Corporation. The plaintiff cross-moves for a default judgment against defendant SSD & B Corporation.

The plaintiff alleges in his complaint that on December 6, 2003, he was an employee of the Toucan Bar & Grill located on premises owned by defendant Colonial Plaza Corp. (Colonial Plaza Company) and leased by defendant SSD & B Corporation. Specifically, the plaintiff alleges that while carrying a large audio speaker down a set of interior wooden stairs leading from the bar's kitchen to the basement storage area, a portion of a wooden stair tread broke causing him to fall on his back.

It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

It is uncontroverted that the moving defendant is an out-of-possession landlord. The movant has presented documentary evidence in the form of a lease which establishes that the tenant agreed to accept the premises in an "as is" condition and that:

"...landlord shall not be obligated or required to do any work or to make any repairs or replacements to or on the demised premises in order to fit the same for tenant's use."

Additionally, the lease limited the landlord's responsibility for repairs as follows: [*2]

"will make all necessary repairs to the foundation, exterior walls, structural columns and structural beams of the building of which the premises are a part; as used in this subsection, the term exterior walls' does not include glass, windows, doors, window sashes or frames of door frames."

Finally, the lease specifically requires that:

"The Tenant shall take good care of the premises and, shall at the Tenant's own cost and expense make all repairs..."

It has been held that tort liability will not be imposed on the owner of real property that is not in control of the premises. (Ritto v. Goldberg, 27 NY2d 887, 889 [1970].) Control may be established by lease provisions imposing responsibility for repairs upon the landlord or by a course of conduct demonstrating that the landlord has assumed responsibility for specific repairs. (Ever Win, Inc. v. 1-10 Industry Associates, LLC, 33 AD3d 845, 846 [2d Dept. 2006].)

On this application, defendant Colonial has established that there was no contractual obligation for the landlord to make repairs to the interior stairway at issue and that Colonial had not engaged in a course of conduct whereby it assumed such responsibility. The plaintiff contends that since the lease contains a right for the landlord to reenter the premises and examine and make any necessary repairs, that it did assume the requisite responsibility for fixing the stairs. It has been held that:

"... a right of reentry reserved in the lease does not impose liability for any dangerous condition that subsequently arises.' (Citations omitted.) Consequently, the landlord's reservation of a right of reentry cannot be relied on by the plaintiff to establish control." (Gelardo v. ASTHMA Realty Corp., 137 AD2d 787, 788 [2d Dept. 1988].)

The remaining conclusory assertions made by the plaintiff in opposition to this motion are insufficient to establish that there are any triable issues of fact.

Therefore, it is ordered that defendant Colonial's motion is granted and the plaintiff's complaint and the co-defendant's cross-claims against it are hereby dismissed.

The plaintiff cross-moves, pursuant to CPLR §3126, for a judgment against defendant SSD & B Corporation for failing to comply with outstanding demands for discovery. The plaintiff's counsel failed to provide an affirmation of good faith effort as required by 22 NYCRR §202.7. Counsel's affirmation in support of the instant motion fails to articulate what efforts, if any, were made to obtain compliance with its discovery demands. Therefore, it is ordered that the plaintiff's motion, pursuant to CPLR §3126, is denied.

The Court read and considered the following documents upon these applications:

PAGES NUMBERED

1.Notice of Motion.........................1-2

Affirmation-Hanrahan................1-10

Exhibits............................A-R

2.Notice of Cross-Motion...................1-2

Affirmation-Ingalsbe................1-14

Exhibits............................A-F

Affidavit-Kenneth Myszka............1-3 [*3]

Exhibit.............................A

Affidavit-Paul Economos.............1-11

Exhibits............................A-E

3.Reply Affirmation-Hanrahan...............1-15

Exhibits............................A-C

4.Sur-Reply Affirmation [FN1]-Ingalsbe..........1-3

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

November 24, 2009

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

112309 decision & order Footnotes

Footnote 1:Although there is no provision in the CPLR for a sur-reply, the Court has considered this submission in the interest of justice.