Mannor v Feldstein

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Mannor v Feldstein 2012 NY Slip Op 30210(U) January 26, 2012 Sup Ct, NY County Docket Number: 104156/09 Judge: Manuel J. Mendez Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - .. . ANNED ON 113112012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK J, MENDEZ Justlce PRESENT: DR. SHLOMO MANNOR, MAROALIT MANNOR and DR. DANA MANNOR, .m,- - NEW YORK COUNTY PART 13 INDEX NO.: 104158/09 Plrlntlff(s), -vRICHARD FELDSTEIN, SHARON FELDSTEIN, 605 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORP., Defondant(r) , Plaintiffs, the owner and tenant8 of 605 Park Avenue, New York, NY, a cooperative apartment, #IA, used as a medical office, brought this action to recover for property damages incurred from flooding of the unit. The flooding occurred as a result of a broken toilet valve in the master bedroom of apartment, #2C, the unit dlrectly above apartment #IA. Rlchard Feidstein and Sharon Feidstein (hereinafter referred to as the Feldstelns ) are the proprletary lessees of apartment #2C. 605 Apartment Corp. (hereinafter referred to as 605 ) Is the proprietary lessor and owner of the building. Rudd Realty Management Corp., (hereinafter referred to as Rudd Realty ) is the management company acting on behalf of 605, in charge of maintenance and repairs of the building. Motlon sequence 001, Is 605 and Rudd Realty s motion for summary judgment pursuant to CPLR 53212, seeking an Order dismissing ail causes of action and crossclaims against them based on the provisions of the proprietary lease. 605 and Rudd Realty claim that pursuant to the proprietary lease the Feldsteins are solely liable for maintenance of the toilet and that the reservation of right of reentry does not apply to the toilet valve which is not a slgniflcant structural or design defect. Plaintiffs oppose 605 and Rudd Realty s motlon claiming that there remain issues of fact eoncernlng their fallure to respond to the lncldent in a timely manner and r their fallure to use proper methods o procedures to dlrnlnish damages to the property. Plaintiffs also claim that 605 and Rudd Realty dld not use personnel wlth the proper skills or expertise to handle the incident. Motion sequence 002, is the Feidsteins motlon for summary judgment pursuant to CPLR 53212, seeking an Order dlsmlsslng all the causes of actlon and cross-clalms against them. The Feldsteins claim that after purchasing apartment # 2C in January of 2006, they did not reside there through the date of the incident. The Feldsteins also claim that a walk-through of the apartment at or before the date of the closing Indicated ,- [* 2] that the fixtures, including the tollet, functioned normally and they dld not create, have constructive notice, or the opportunity to correct, the condltlon. plaintiffs oppose the motlon clalming that the Feldstelns are llable based on the doctrine of res Ipsa loquitur and the provlslons of the proprietary lease. Plalntlffs also claim that the Feldstelns breached thelr legal duty and were negllgent In falling to perform a proper lnspectlon of the bathroom fixtures and toilets when they purchased the apartment and should have had a quallfled, licensed plumber present. Plalntiffs cross-move pursuant to CPLR §3025[b] to amend the Blll of Particulars by supplernentlng the provisions concerning 605 and Rudd Realty to further assert constructlve notlce. Plalntlffs clalm that constructive notlce was asserted agalnst the Feldstelns but not speciflcally agalnst 605 and Rudd Realty. Plalntlffs also claim that the revision to the Bill of Partlcualrs would not prejudlce the parties slnce It Is merely clarlfylng and not adding to existing provlslons. 605 and Rudd Realty oppose the cross-motion clalmlng that plaintlffs have flled thelr Note of Issue and dlscovery Is complete, thls amendment sought after the motions for summary Judgment were submitted would be prejudicial. 605 and Rudd Realty also claim that the plaintlffs did not annex the proposed amended Bill of Particulars to the motlon papers, therefore, the specific revlsions cannot be addressed and the motion should be denled. Motlon sequence 003, is the plaintlffs motlon pursuant to CPLR 93212, seeklng summary Judgment agalnst all the defendants In thls action. Plaintlffs claim that they are entitled to summary judgment agalnst the Feldstelns based on the doctrine of res Ipsa loquitur and the negllgent fallure to properly maintain apartment #2C. Plalntiffs clalm they are entitled to summary Judgment against 605 and Rudd Realty because the lncldent was mishandled and the buildlng personnel Involved were not supervised, or have the proper sklll and expertise to handle the April 3, 2006 Incident. The Feldsteins oppose plaintlffs motlon clalming the papers were insufflcient because the unsworn expert disclosure prepared by plalntiffs counsel does not constitute admlsslble evldence. The Feldstelns also claim that the doctrlne of Res Ipsa Loquitur does not apply based on the facts of thls case and only gives rise to a permissible inference of negligence to be drawn by a Jury, not a basis to grant summary Judgment. The Feldsteins state that the plaintiffs cannot establlsh they were negligent because the defective valve was installed before they purchased the apartment, there were no prevlous problems with the tollet, they had not yet moved Into the apartment and had no notice of the condltlon. 605 and Rudd Realty, oppose the motlon clalming that the plaintlffs allegations of negllgence cgncerning falllng to respond to the incldent In a timely manner, as well as, fallure to use personnel with proper skills or expertise to handle and supervlse the Incident, were not pled in the Bill of Partlculars and are prejudicial. 605 and Rudd Realty also claim that the plaintiffs conceded that exclusive control of the toilet valve was with the Feldstelns. [* 3] In order to prevall on a motion for summary judgment pursuant to CPLR 53212, the proponent must make a prima facie showlng of entltlement to judgment as a matter of law, through admissible evidence, ellmlnatlng all material Issues of fact (Klein v. Clty of New York, 89 N.Y. 2d 833,875 N.E. 2d 548,652 N.Y.S. 2d 723 [1990] and Alvarez v. Prospect Hospltal, 08 N.Y. 2d 320,501 N.E. 2d 572,508 N.Y.S. 2d 923 [1986]). Once the movlng party has satisfled these standards, the burden shifts to the opponent to rebut that prima facle showing, by produclng contrary evidence in admlsslble form, sufflclent to requlre a trial of materlal factual Issues (Amatulll v. Delhl Constr. Corp., 77 N.Y. 2d 525, 571 N.E. 2d 645; 569 N.Y.S. 2d 337 [ISSS]). In determlnlng the motion the Court must construe the evldence In a llght most favorable to the non-moving party ( Martin v. Briggs, 235 A.D. 2d 193, 663 N.Y.S. 2d 184 [N.Y.A.D. lot 199a and Amatulll v. Dept., Delhi Constr. Corp., 77 N .Y. 2d 525, 571 N.E. 2d 645, 569 N.Y.S. 2d 337 [1999]). The ProPrietary Lease Summary judgment may be granted based on a clause In a proprietary lease that places duty for the malntenance and repalrs on the unit owner and not the owner of the building (Moore v. 158 Riverside Dr. Hous. Co., Inc., 59 A.D. 3d 245, 873 N.Y.S. Dept. 2d 569 [N.Y.A.D. lot 20091 and 905 5thAssoclates, Inc. v. Weintraub, 85 A.D. 3d Dept., 687,927 N.Y.S. 2d 29 [N.Y.A.D. lmt 20111). A claim against the bullding s owner based on the resewatlon of the right of reentry In a proprietary lease can only be sustained upon a showing of, a slgnlflcant structural or deslgn defect that vlolated a speclflc statutory provlslon (Nussbaum v. 150 W. End Ave. Owners Corp., 70 A.D. 3d 914,9097 N.Y.S. 2d 874 [N.Y.A.D. I Dept., 20101). An as is clause In a proprletary lease is enforceable and acts as a bar to an action agalnst the owner of the bulldlng for property damage (DD & TJ, Inc. v. Estate of Sol Goldman, 33 A.D. 3d 497, Dept., 823 N.Y.S. 2d 59 [N.Y.A.D. let 20061). The proprietary lease between 605 Apartment Corp., as lessor and the Feldsteins, as lessees(M0t. Seq. 001, Exh. E), specifically state8 at paragraph 18(a), The Lessee shall take possession of the apartment and its appurtenances and flxtures is as of the commencement of the term hereof, ...the Lessee shall keep the Interlor of the apartment (Including interior walls, floors, and celllngs, but excluding wlndows, window panes, window frames, sashes, sills entrance and terrace doors, frames and saddles) In good repair, and shall be solely responsible for the malntenance, repair, and replacement of plumblng, gas and heatlng flxtures and equlpment ...Plumblng, gas and heating flxtures as used hereln shall Include exposed gas, steam and water plpes attached to fixtures, appllances and equlpment and the fixtures, appliances and equlpment to which they are attached, and any special pipes or equlpment which the Lessee may Install within the wall or ceiling, or under the floor, but shall not Include gas, steam, water or other pipes or conduits wlthln the walls, s ceilings or floors or air condltionlng or heating equlpment which I part of the sta nda rd buiIding equIpment ... ... [* 4] The defendant 605 meets its burden of proof on its motion for summary judgment based on the provisions of paragraph 18 of the proprietary lease. The piaintlffs and the Feldstelns have failed to sufficiently raise a triable issue of fact agalnst 005. Rudd Realty is not a party to the proprietary lease. The plaintiffs have asserted causes of action against Rudd Realty based on negligence and the doctrine of res ipsa loquitur (Mot. Seq. 001, Exh. A). Cros$-Motion to Amend BIII of Particuiars A motion for leave to amend should be freely granted, so long as there is no surprise or prejudice to the opposlng party (Kocourek v Booz Allen Hamilton, Inc., 85 A.D. 3d 392,834 N.Y.S. 2d 51 [N.Y.A.D. Iat Dept., 20111). in support of a motion to amend after the note of issue is flled, the plaintiff should provide an affidavit of merit and a reasonable excuse for the delay (Jennings v. 1704 Realty, LLC, 39 A.D. 3d 392,834 N.Y.S. 2d 160 [N.Y.A.D. 1lt Dept., 20071). Judicial discretion In granting an amendment to the bill of particulars sought at or on the eve of trial, ...should be, dlscreet, circumspect, prudent and cautious ... (Kassis v. Teachers inb. and Annuity Assn., 258 A.D. 2d 271,685 N.Y.S. 2d 44 [N.Y.A.D. lat Dept., 19991). Plaintiffs seek to amend the bill of particulars after the note of issue was flied on , June 15,201I and as a response to the defendants 605 and Rudd Realty s opposition to their motion for summary judgment. The tlme to file dispositive motlons was extended by Order of this Court to August 15, 201 1 (Mot. Seq. 2, Exh. J). The crossmotion was made returnable on October 18,2011. Plaintiffs cialm that they are not really seeking to amend the bill of partlcuiars only to modify It to clarify that the clalm of constructlve notice applies to all defendants, Including 605 and Rudd Realty, not just the Feidsteins. Plaintiffs do not annex a copy of the proposed amended or modified bill of particulars to their papers, or an affldavit of merit. They claim the basls for seeking to apply constructive notice to 605 and Rudd Realty is that the amount of water volume involved Is sufficient to establlsh that the flood had been going on for Borne time and all the defendants failed to act to mitigate the damages. The only excuse provided for the delay is that the modification sought was previously asserted against the Feidsteins and Plaintiffs are cialmlng that they will consent to a further deposition to avoid preJudice because there is still tlme before trial. Plaintiffs verified blil of particulars to defendant 605 and Rudd Realty dated January 8, 2010, includes a claim for constructlve notice at paragraph 7 (Cross-Mot. Exh. A, sub. Exh. A). The claim for constructive notlce starting at paragraph 7 only refers to Installation and maintenance of the defective toilet valve, there is no mention of failure to respond to the flooding In a timely or proper manner. Plaintiffs have not bufflclently established that the volume of water In their unit was directly affected by 605 and Rudd Realty s failure to respond in a timely manner, or a bash to modify their claim based on constructive notice. The cross-motion is denied. [* 5] Res ipsa Loquitur A plaintiff seeking to recover under the doctrine of res ipsa loquitur is required to establlsh that, (I) the event must be of a kind which ordinarily does not occur in the absence of someone s negligence (2) it must be caused by an agency or Instrumentality within the exclusive control of the defendant (3) it must not have been due to any voluntary action or contribution on the part of the pialntlff (Morejon v. Rais Constructlon Company, 7 N.Y. 3d 203,851 N.E. 2d 1143, 818 N.Y.S. 2d 792 [2006] citing to Corcoran v. Banner Super Mkt., I 9 N.Y.2d 425, 227 N.E. 2d 304,280 N.Y.S. 2d 385 [1907]). A management company does not have exclusive control for purposes of res ipsa ioqultur, Ifthere exists a wrltten contract whlch provldes responsibility for repair and maintenance to another (Singh v. United Cerebral Palsy of New York City, he., 72 A.D. 3d 272,896 N.Y.S. 2d 22 [N.Y.A.D. l Dept., 20101). . .. Common Law N e m e n c e and Premises L I ~ A landowner has a duty to maintain Its property in a reasonably safe condition under existing circumstances, which include avoidlng the ilkellhood of Injury to a third patty and the burden of avoidlng the risk (Basso v. Miller, 40 N.Y. 2d 233,352 N.E. 2d 868,386 N.Y.S. 2d 564 [1976]). To maintain an actlon to common law negligence, the plaintiff must demonstrate the landowner breached the duty and created or had actual or constructlve notice of the hazardous condition which resulted in the injury(Mejia v. Dept. New York City Transit Authority, 291 A.D. 2d 225, 737 N.Y.S. 2d 350 [N.Y.A.D. lat 20021). To estabilsh that the defendant Is liable for a dafective condition on the premises the plaintiff has the burden of proving the condition was vislbie and apparent for a sufficient length of tlme prior to the accldent to permlt employees to discover and remedy it. A general awareness of a dangerous condition or notice that occurs ten minutes before the condition can be remedied is insufficient to establish constructive notice (Gordon v. Amerlcan Museum of Natural History, 67 N.Y. 2d 836,501 N.Y.S. 2d 646,492 N.E. 2d 774 [1986]). Without actual or constructlve notlce of a latent defect, a defendant has no duty to Inspect for speciflc problem (Giaccio v. 179 Tenants Corp., 45 A.D. 3d 454, 845 N.Y.s. 2d 328 [N.Y.A.D. lat 20071). Dept. Rudd Realty the management company for the building did not have exclusive control of the premises, because the responsibility for repair and rnalntenance of the plumbing belonged to the Feldstelns pursuant to the proprietary lease. Plalntlffs have not sufficiently raised an issue of fact as to 605 and Rudd Realty under the doctrine of Res Ipsa Loqultor. Plaintiffs did not sufficiently allege or establish a basis for their claim of constructive notice against 805 and Rudd Realty. Defendants 005 and Rudd Realty s motion for summary judgment (Mot. Seq. 001) is granted. The Feldsteins motion for summary judgment (Mot. Seq. 002) on the plaintiffs causes of action based on the doctrlne of res lpsa loquitur, is denled. Plalntlffs have established that they entitled to summary judgment under the theory of res ipsa ioqultur, based on the provlslons of the proprietary lease. Pialntlffs motion for summary judgment (Mot. Seq. 003) is denied a8 to 605 and Rudd Realty. Plaintiffs have met their burden of proof and their motlon for summary [* 6] judgment is granted as to the Feldstelns pursuant to the doctrine of res Ipsa loquitur. The Feldstelns pursuant to paragraph 18(a) purchased the unit as is and agreed to be responslble for the maintenance, repair and replacement of the plumbing fixtures. The Feldsteins maintained excluslve control of the toilet and defective valve and the circumstantial evidence establishes that they are liable to the plaintiffs. Accordingly, It Is ORDERED that Motion Sequence 001,605 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORPA, motion for summary judgment pursuant to CPLR 53212, Is granted, all causes of action and cross-claims agalnst 605 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORP., are severed and dlsmls8ed, and It Is further, ORDERED that Motion Sequence 002, RICHARD FELDSTEIN and SHARON FELDSTEIN s motion for summary Judgment pursuant to CPLR 53212, Is denied, and it is further, ORDERED that the plalntlffs Cross-Motion to Amend the Bill of Particulars s pursuant to CPLR §3025[b], I denied, and It Is further, ORDERED that Motlon sequence 003, the plaintiffs motion for summary judgment pursuant to CPLR 53212, agalnst all of the defendants, Is granted only as to RICHARD FELDSTEIN and SHARON FELDSTEIN on the issue of Ilablllty, the remainder of the motion, is denied, and It Is further, ORDERED that an assessment of damages agalnst RICHARD FELDSTEIN and s SHARON FELDSTEIN, is directed, and It I further, ORDERED, that plaintiff shall, within 20 days from entry of thls order, serve a copy of thls order with notice of entry upon counsel for all parties hereto and upon the Clerk of the Trial Support Office (Room 158), and said Clerk shall cause the matter to be placed upon the calendar for the assessment hereinabove directed. This constitutes the decision and order of thls court. Dated: January 26,2012 ENTER: - MANUEL\ J. MENDEZ J.S. C. --. . . L I V D O [* 7] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. MANU& J, M N D E Z - NEW YORK COUNTY 13 PART Justlce INDEX NO. lo4168/09 MOTION DATE DR. SHLOMO MANNOR, MAROALIT MANNOR and DANA MANNOR, Plaintlff(r), 11-30-201 I -v- 001 MOTION SEQ. NO. RICHARD FELDSTEIN, SHARON FELDSTEIN, 005 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORP., MOTION CAL. NO. Dsfendant(8) . The followlng papers, numbered 1 to 4 Notlce of Motion/ Order to Show Cause -Affldavlta - Exhlbltm ... Knswerlng Affldavlta - Exhlblb were read on thls motlon to/ for Summary Judgment : 1-2 3 cross motlon A Replylng Affldavlts .. n % Cross-Motion: Yes X No Upon a reading of the foregoing cited papers, it is Ordered that Mot. Seq. 00 605 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORP. s, motlon for summary judgment pursuant to CPLR 53212, dismlsslng all causes of action and cross-claims agalnst 005 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORP., I decided in accordance wlth the memorandum decision filed herewith. s Aceordlngly, It I ORDERED that 605 APARTMENT CORP. and RUDD REALTY s MANAGEMENT CORP. s, motlon for summary judgment pursuant to CPLR 53212, dlsmlsslng all causes of actlon and cross-clalms RUDD REALTY MANAGEMENT CORP., I granted, all s clalms agalnst 605 APARTMENT CORP. and RUDD severed and dlsmlssed. JAN 3 I 2012 Thls con8tltutes the decision and order of thls court. NEW YORK COUNTY CLERK S OFFICE Dated: January 26,2012 MANUEL J. MENDEZ J*s.z* MAKUEL J. MENDEZ J.S. C. Check one: 0 FINAL DISPOSITION Check if appropriate: X NON-FINAL DiSPOSlTlON DO NOT POST 0 REFERENCE [* 8] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. MANUEL J. MENDEZ - NEW YORK COUNTY PART - 13 Justlco DR. SHLOMO MANNOR, MAROALIT MANNOR and DANA MANNOR, Plalntlff(r), INDEX NO. I 1- 3 0 - r n MOTION DATE -vMOTION SEQ. NO. RICHARD FELDSTEIN, SHARON FELDSTEIN, 606 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORI?., Dsfendant(8) 002 MOTION CAL. NO. . The following papers, numbered 1 to z 5 F 8 o5 f E 3: 4 3 L 7 were read on thlm motlon to/ for Summary Judgment : Upon a reading of the foregoing clted papers, It Is Ordered that Mot. Seq. 002, RICHARD FELDSTEIN and SHARON FELDSTEIN s motion for summary judgment pursuant to CPLR 53212, dismissing ail causes of action and crosslclalms agalnst RICHARD FELDSTEIN and SHARON FELDSTEIN, and Plaintiffs cross-motion to Amend the Bill of Particulars pursuant to CPLR §3025[b], is decided in accordance wlth the memorandum decision filed herewith. Accordingly, it Is ORDERED that Motion Sequence 002,RiCHARD FELDSTEIN and SHARON FELDSTEiN s motion for summary judgment pursuant to CPLR 93212, is denled, and it is further, ORDERED that the plaintiffs Cross-Motion to Amend the Bill of Particulars s pursuant to CPLR §3025[b], I denled. - This constitutes the decision and order of this court. I\IIANUEL J. MENDEZ Dated: January 26,2012 J.S.C. MANUEL J. MENDEZ J,S. C. Check one: 0 FINAL DISPOSITION Check if appropriate: X NON-FINAL DISPOSITION DO NOT POST 0 REFERENCE [* 9] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY PART 13 Justlco DR. SHLOMO MANNOR, MARGALIT MANNOR and DANA MANNOR, Plalntlff(r), -V- INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. lo4166/09 003 RICHARD FELDSTEIN, SHARON FELDSTEIN, 606 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORP., Defendant(#) . The followlng papers, numbered I to 6 were read on thls motlon to/ for Summary Judgment : PAPFRa NUWERED Notice of Motion/ Order to Show Cause Answorlng Affldavlta - Exhlbltr -Affldavlta - Exhlblta ... crosa motlon 3 4 , Replying Affldavlta Cross-Motion: Yes X No Upon a reading of the foregoing cited papers, It I Ordered that, Mot. Seq. 003, s the plaintiffs' motion for summary judgment pursuant to CPLR 53212, agalnst all of the defendants, is decided In accordance with the memorandum declslon flied herewith. Accordingly, It Is ORDERED that the plalntlff8' motlon for summary judgment pursuant to CPLR 53212, against all of the defendants, Is granted only as to RICHARD FELDSTEIN and SHARON FELDSTEIN on the Issue of liablllty, the remainder of the motion, I denled, and It I further, s s ORDERED that the only Issues of fact remaining relate to the amount of damage8 to which the plalntlfb are entitled, and It I further, s ORDERED, that plaintiff shall, wlthln 20 days from entry of this order, serve a copy of thla order with notlce of entry upon counsel for all parties hereto and upon the Clerk of the Trial Support Office (Room 158), and 8ald Clerk shall cause the matter to be placed upon the calendar for the assessment hereinabove directed. This constltutes the declslon and order of this court. MANUEL J. MENDEZ J.S.C. Dated: January 26,2012 MANUEL J. MENDEZ J.S. C. Check one: FINAL DISPOSITION Check If appropriate: X NON-FINAL DISPOSITION DO NOT POST 0 REFERENCE

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