Lansen v SL Green Realty Corp.
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Lansen v SL Green Realty Corp. 2012 NY Slip Op 30683(U) March 20, 2012 Supreme Court, New York County Docket Number: 112719/2009 Judge: Judith J. Gische 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 312112012 [* 1] * SUPREME COURT OF THE STATE OF NEW YORK m W YORK COUNTY PART - Number : 11271W2009 Index c - -- - Jumtkr LANSEN, DESSA vs. SL QREEN REALTY SEQUENCE NUMBER : 003 I 1 0 INDEX NO. MOTION DATR MOTION 8RQ. NO. AMEND CAPTIONPARTIES Upon the farrgolng papam, it Ir ordoml that thle motlon b c J.8.C. [* 2] SUPREME or THE STATE OF N W YORK COURT E COUNTY NEW OF YORK:IAS PARTI O X Dessa Lansen, Plaintiff ( 8 ), DECISION/ ORDER Index No.: 112719-08 Seq. No.: 003 PRESENT: J.S.C. SL Green Realty Cop. and Outback Steakhouse-NYC Ltd., Recitation, as required by CPLR Q 2218 [a] of the papers considered in the review of this (these) motion($): Papers Numbored Pltf s n/m (amend) w/BJS affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . I SL Green xlm (3212) w/DM afflrm, RA affld, exhs . . . . . . . . . . . . . . . . 2 Pitfs opp to SL Green and reply w/BJS afflrm, SF affid, exhs . . . . . . . 3 SL Green reply to opp w/DM affirm, exhs . . . . . . . . . . . . . . . . . . . . . . 4 Variousstips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 - C I I - - - - - - - - - Upon the fomgoing papers, the decision and order of the court is as follows: GISCHE J.: This action is for personal injuries. Issue was joined by SL Green Realty Cop. ( Realty ) and Outback Steak House-NYC Ltd. ( Outback ). Outback was dismissed from the case by stipulation among the parties. Presently before the court is plaintiff8 motion to serve an amended complaint. SL Green has cros8 moved for summary judgment. The note of issue has not been filed. Since summary judgment relief i s available once issue has been joined, this motion can be decided on the merits (CPLR Q 3212; Brw v. Citv of New York, 2 NY3d 648 [2004]). -Page 1 of 9- [* 3] The following facts are established or unrefuted: Facts Plaintiff Dessa Lansen ( plaintiff ) claims to have Buffered personal injuries when she fell on the sidewalk abutting the building located at 91Q Third Avenue, New York, New York ( building ). The accident occurred March 3, 2007 and this action was timely commenced with the flling of the summons and complaint on September 8,2009, well before the applicable three (3) year statute of limitation expired on March 3, 2010 (CPLR Q 214 [5]). Plaintiff now seeks to amend her complaint to add claims against two new defendants that have since been identffled as possibly having an ownership interest in the building. Those entities are Metropolitan 919 3d Avenue LLC ( Metropolitan ) and SL Green Management LLC ( Green Management ). Plaintiff claims SL Green Realty Corp ( Green Realty ) a named defendant, is a holding company with a 51% controlling interest in Metropolitan and that Green Management is the property manager of the building. This information was, according to plaintiff, obtained when it deposed Ralph Ardolina, an employee of Green Management, on June 23,2010, after the statute of limitations had run. Thereafter, on December 28, 2010, plaintiff served Green Realty with 8 Notice to Admit. In its response dated February 7, 2011, Green Realty admitted that Metropolitan was the owner of the, building and Green Realty owned 51% of Metropolitan on the date of the accident. Plaintiff contends the amendment should be allowed because the claims arise from the same occurrence, the party to b e joined is united in interest with Green Realty, but for the plaintiffs mistake, the action would have been timely commenced -Page 2 of 9- [* 4] * against the intended defendants and Metropolitan and Green Management Ghould have reasonably anticipated being hauled into court. In opposition, Green Realty states that it denied ownership of the building in its answer, well before the statute of limitations expired, but that plaintiff delayed in making this motlon. Thus, Green Realty argues that plaintiff made no "mlertake" In styling this case as it has. Green Realty provides correspondence that it sent to plaintiff dated May 7, 2010. That letter notifles plaintiffs lawyer that "Metropolitan 918 3d Avenue, wa8 the owner of certain premises known as 918 Third Avenue, New York on or about March 3, 2007. In addition, upon information and bellef, 818 Group Lease LLC owned 218-220 East 58" Street, New York, New York, a portion of the land known as 819 Third Avenue, New York, New Yo& on or about March 3,2007." Thus, Green Realty alleges that not only did plaintiff fail to timely move, now that she has this infomation, she should discontinue her clairna against Green Realty. In support of its cross motion for summary judgment, Green Realty raises several arguments. First, that plaintiff cannot prove that she fell because of a defect in the sidewalk or because there was snow andlor ice on it. Green Realty provides meteorologicalreports and the statement of Ardolina to support its claim that it had not snowed in the days before the accident and, it had, in fact rained, meaning that any possible accumulation of snow or ice was washed away. Ardolina testified about Green Management's practice of snow and ice removal, stating that Green Management always does "8 complete job." He also testified he never 8aw any kind of defect on the sidewalk although he walked along it frequently. In a later sworn affldavit, Ardolina states that he personally measured the "defect" plaintiff testified about and that it was -Page 3 of 9- [* 5] no bigger than 3/8 of an inch near one of the joints. Outback proprietor, Jeffrey Abbate was deposed about the condition of the sidewalk. He denies there was any unevenness in it or that anyone had made complaints about a dangerous condition. There is testimony by Stephanie lollo, a friend who attended a bachelorette party with plaintiff. Loll0 testified she could not recall seeing any rain, snow mist or sleet on the sidewalk nor did she notice anything like a hole or crack, Though recalling that plaintiff was wearing heels that evening and they were "happy" when they left the party, Loll0 could not recall exactly how much they had to drink. According to Green Realty, plaintiff was inebriated and wearing high heels when shes fell. Although claiming there was snow and/or on the sidewalk, the temperature was 48 degrees and it had rained which Green Realty claim would have washed away andlor melted any snow andlor ice, Plaintiff opposes the motion as premature, pointing out that she has not yet filed her note of issue. She contends that weather reports support her case because they show it had snowed 3 days before the accident, tending to raise triable issues about whether any of the defendants improperly clear8d the sidewalk of snow and/or ice. While acknowledging she was wearing heels and had drinks that evening, plaintiff testified that it was the defect between two flagstones, coupled with the icy condition that caused her to fall. Plaintiff also provides the sworn affidavit of her expert ("Fein"), a professional engineer, who did an Inspection and looked at photographs. The sidewalk has been tepaired but, according to Fein, the photographs show a difference in elevation which is greater than l/t inch. -Page 4 of 9- [* 6] In addition to opposing the cross motion on the merits, plaintiff maintains the cross motion is defective because none of the transcripts are certified. Thus, plaintiff argues the cross motion should be denied for that remon alone. DbCU88iOn Leave to amend and supplement pleadings should be freely given upon such terms as may be just as a matter of discretion in the absence of prejudice or surprise (CPLR 5 3025 [b]; Stroock & Stroock & Lavan v. Be , 157 A.D.2d 590 [l" Dept., 1990J).A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading (CPLR 203 [fJ). The statute of limitations for a negligence action is three (3) years, running from the date of injury (CPLR Q 214 [5)). It is undisputed that the statute of limitations expired on March 3,2010. CPLR 5 203 codifies the "relation back doctrine." This doctrine allows an otherwise untimely claim asserted against a defendant in an amended filing to "relate back" to timely claims asserted 8 codefendant, provided "( 1) both claims arose out of same conduct, transaction or occurrence, (2) the new party is 'united in interest' with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well." w a n v. Cound, 87 N.Y.2d 173, 178 [1895] -Page 5 of Q- [* 7] Since the new defendants have not been served, Green Realty's CFOSS motion for summary judgment is premature as to them since summary judgment is not available unless and until issue is joined (CPLR 5 321 1 [c]; of t h Orient v. Linden m AD2d 508 [I" Dept. 1982J).Evidently both sides intend the court to , 89 decide thlls cross motion on its merits, because issue was joined by Green Realty. Significantly Green Realty has not moved on the basis that it is an improper party, but on the merits of plaintiffs claims. The cross motion must be denied for the reasons that follow: It is hornbook law that the court's function in dsciding a motion for summary judgment is issue finding, not issue determination (5illmsn v, Twentieth Century-Fox Film C ~ r g .3 NY2d 395 119573). To grant summary judgment, it must clearly appear , that no material and triable issue of fact i presented (Zuckerman v. City of New Yorkw s 49 N.Y.2d 567 [1980]). Where there is any doubt as to t h e existence of a factual issue or where the existence of a factual issue ia arguable, then summary judgment must be denied. At best, Green Realty's cross motion underscores the many factual disputes that exist in this case. The issue of whether plaintiffs fall was due to her own instability is for the juv to decide. Similarly, disputes about whether there was or was not any snow and/or ice on the sidewalk In the early morning of March 3, 2007 cannot be resolved on a flat record but also presents factual disputes. While the weather reports are prima facie evidence of the weather conditions on a particular day, they do not establish the conditions that existed on the sidewalk at the time of the accident. Green Realty's argument, that Fein is an unreliable expert, asks that the court -Page 7 of 9- [* 8] r r ' evaluate his credibility. Fein has set forth his sworn affldavit stating his opinion and his opinion is supported by facts that are in the record and his own observations (see Jinmbsch v. New York Citv tranait Authorib, 83 N.Y.2d 723 [IQM]). Whether Fein's opinion is reliable and trustworthy is for the jury to decide. Other Issues raised by Green Realty about whether the imperfection in the sidewalk is "trivial" or not and related issues about notice have not been proved by Green Realty. In opposing defendant's motion, plalntiff does not have to prove that Green Realty had notice of the dangerous condition alleged, rather it is the burden of the moving defendant to prove the lack of notice (Spinner V. 1725 York Owners Gorp *t 56 A.D.3d 324 [la' ZOOS]). Defendants have also failed to show the defect is Dept trivial, as a matter of law. Importantly, they did not provide photographs of the sidewalk, only Androlino's statement he had measured it (Sokolovakava v. Zemnovitsch, 89 A.D.3d 918 [2 Dept. 2011I). Whether a dangerous or defective condition exists on the property "depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Trincere v. COUII~ Suffolh, 80 N.Y.2d 876 Of [1QSlr]). The photographs plaintiff has provided show something a reasonable juror could flnd to be more than a mere trivial defect. s Plaintlff 8 argument, that the cross motion I fatally defective because the transcripts provided are not in admissible form is rejected and not the basis for Green Realty's motion being denied. Frequently motions for summary judgment are supported by sworn deposition transcripts as they are evidence in admissible form, satisfying the evidentiary raquirements of CPLR § 3212 (CPLR §Q 3116 [a] and 3212). A certified transcript may be used in lieu of a signed transcript (CPLR Q 3116 [a]). -Page 8 of 9- [* 9] a P ' In accordance with the foregoing reasons, Green Realty's cross motion for summary judgment must be denied. Since this case was adjourned without 3 date but new defendants are being added, the court hereby schedules 8 compliance conference for May 10, 2012 at 9 9 0 a.m. to allow the new defendants to be served and appear. Conclusion It is hereby ORDERED the motion by plaintiff to $ewe 8n amended complaint to add new that defendants is granted and such claims shall relate back to the commencement date of this action (CPLR 5 306);and it is further ORDERED the cross motion of defendant SL Green Realty Corp. for summary that judgment is denied; and it is further ORPERED any relief requested but not specifleally addressed is hereby that denied; and It is further ORDERED this constitutes the decision and order of the court. that Dated: New York, New York March 20,2012 Sa Ordered: Hon. -Page 9 of 9-
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