Santiago v Millennium Realty, LLC

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Santiago v Millennium Realty, LLC 2012 NY Slip Op 30801(U) March 21, 2012 Sup Ct, Nassau County Docket Number: 22352/09 Judge: Denise L. Sher 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. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice WILFREDO SANTIAGO and ELENA SANTIAGO TRIAL/IAS PART 31 NASSAU COUNTY Index No. : 22352/09 Motion Seq. No. : 01 Motion Date: 12/08/11 Plaintiffs - against - MILLENNIUM REALTY , LLC Defendant. The following papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits and Memorandum of Law Affirmation in O osition and Exhibits Reply Affrmation and Memorandum of Law Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendant moves , pursuant to CPLR 3212 , for an order granting it summar judgment and dismissing plaintiffs ' Verified Complaint. Plaintiffs oppose the motion. This is an action to recover damages for personal injuries allegedly sustained by plaintiff Wilfredo Santiago (" WS" ) on May 29 2007 , when he fell in the internal staircase between the third and fourh floors of the premises known as Milennium Super Store , Ltd. , located at 286 North Franklin Street , Hempstead , New York. Defendant is a domestic limited liabilty company organized in the State of New York with a Florida business address. Mr. John Staluppi is the sole member of defendant , as well as the sole officer , director and shareholder of Milennium Super Store , Ltd. In 1998 , defendant purchased the land and buildings10cated at the [* 2] subject premises. On the date in issue , Milennium Super Store , Ltd. operated and conducted business under the name of Milennium Toyota. Plaintiff WS was employed by Milennium Super Store , Ltd. on the date of the subject incident and was injured during the scope of his employment. Plaintiffs commenced the instant action with the filing of a Summons and Verified Complaint on or about November 2 , 2009. Issue was joined on or about Februar 23 , 2010. In their Verified Complaint, plaintiffs allege that defendant failed to care for, maintain and repair the interior staircase at the subject premises where the incident took place. Defendant argues that the evidence proves that it is an out-of-possession landlord and , as such , it owed no duty to plaintiff WS and canot be held liable for any alleged injuries sustained by plaintiffWS at the subject premises. Defendant submits that, on December 31 2001 , it entered into a lease agreement whereby defendant as landlord , leased the land and buildings at several locations in Hempstead , New York to Milennium Super Store , Ltd. , as tenant. Said lease agreement included the land and buildings located at 286 North Franlin Street , the See location of the subject incident. Defendant's Affdavit in Support Exhibit 3. Said lease was in effect at the time of the subject incident , as the terms of the lease ran from January 1 2003 through December 31 , 2013. Defendant contends that the second paragraph of the lease specifically states that the tenant is responsible to " take good care of the demised premises fixtures and appurenances , and all alterations , additions and improvements together; make all repairs in and about the same necessar to preserve them in good order and condition.. . forever indemnify and save harmless the Landlord for an against any and all liability, penalties damages , expenses and judgments arising from injur occasioned wholly or in par by any act or omission or omissions of the Tenant.. " person or property, See 2. Additionally, the third paragraph of the lease Defendant's Affidavit in Support Exhibit 3 states that " acts , during said term to the Tenant wil not obstruct or permit the obstruction ofthe light , halls , stairway or entrance s to the building,... See Defendant's Affdavit in Support Exhibit 3 Defendant submits that it is well-settled that an out-of- possession owner or lessor is not liable for injuries that occur on the premises unless that entity retained control of the premises or is contractually obligated to repair the unsafe condition. Defendant states that, according to plaintiffs ' Verified Bil of Particulars , plaintiffWS was descending the stairway of the subject [* 3] premises when he was " caused to be precipitated to the floor by reason of the dangerous hazardous and defective condition of the stairway and lighting. Support Exhibit 4 See Defendant's Affirmation in 7 and 8. Defendant argues that plaintiffs ' Verified Bil of Pariculars does not allege any structural defect on the subject premises nor on the subject internal staircase. Defendant contends that , according to the aforementioned lease agreement , it did not retain any obligation to repair or maintain the subject premises , including the internal stairway. Defendant alternatively argues that , even if plaintiffs allege and prove that defendant is an in- possession landlord to its tenant , Milennium Super Store , Ltd. , in that event Milennium Super Store , Ltd. would be the alter-ego of defendant and plaintiffWS' s sole remedy would be possible benefits under the New York State Workers ' Compensation Law. Defendant submits that , at the time of the alleged incident , John Staluppi was the sole member of defendant and the sole officer , director and shareholder of Milennium Super Store , Ltd. , which , as previously mentioned , was plaintiffWS' s employer at the time of said incident. in Support Exhibits 1 and 2. Defendant states See Defendant' s Affidavit (i)f the position of the Plaintiffs in this action is that Milennium Realty is an ' in- possession landlord' with control over the Premises , in paricular the stairway and the Mr. Santiago lighting, then Milennium Realty and Milennium Super Store s employer , meet the threshold of being alter ego entities , as Milennium Super Store was a ' dominated entity ' as defined by the Appellate Division , Second Deparment. First Mr. Staluppi , at the time of the alleged incident , was the sole member of Milennium Realty (the owner of the Premises), as well as the sole owner of 100% of the outstanding shares of Milennium Super Store (the lessee ofthe Premises).... Second , as stated above , there is a clear overlap in ownership, officers , directors , and personnel' between Milennium Realty and Milennium Super Store , as evidenced by the role played by Mr. Staluppi with regard to both entities.... Third , as evidenced by the Lease , between the two entities owned and operated by the same individual , leasing the Premises from Milennium Realty to Milennium Super Store , the two entities clearly did not engage in ' arms length transactions. ", In opposition to defendant' s motion , plaintiffs first argue that there are questions of fact as to whether defendant , as an out-of-possession landlord , is liable for the dangerous and defective lighting in the stairway at the subject premises. Plaintiffs submit that it is well-settled [* 4] that an out-of- possession landlord that retains the right to re-enter premises and make repairs can only be held liable for a significant structural or design defect that constitutes a specific statutory violation. Plaintiffs contend that defendant' s lease establishes that it not only maintained a right of re-entry, but it also retained the right to make repairs. Plaintiffs contend that triable issues of fact exist as to whether the absence oflighting in the subject stairway constituted a strctural defect and comprised a statutory violation. Plaintiffs state " while defendant argues that the duty was that of the tenant to repair the subject dangerous and defective condition , it is submitted that the defect , the absence of any lighting fixture in the internal staircase , was structural in nature , and as such the onus was on the landlord to not only remedy same , but wil also render the landlord liable for any injuries that were proximately caused by said structural defect. Defendant's argument that the tenant was under a duty to repair (sic) the lighting in the internal stairway must fail. This was not in good working condition , but rather there was not the case where the lighting fixture lighting fixture. As such , itfalls within the landlord' s responsibilty. Plaintiffs add that it is well settled that dangerous and defective conditions regarding lighting in stairways constitute structural defects. Plaintiffs furher add that New York State Uniform Fire Prevention and Building Code , Par 1 03.1 (a) & (b) is applicable to the case at hand. Plaintiffs also argue that their failure to specify the New York State Building Code violations prior to the fiing of the Note oflssue and the fact that they served their subsequent Second Supplemental Bil of Particulars after defendant fied its Motion for Summar Judgment is not fatal to plaintiffs' claim. Plaintiffs contend that the Building Code violations alleged by plaintiffs raise no new theories of liability or any surprise or prejudice. Plaintiffs state that their service , without leave of court , of a supplemental bil of particulars identifying an (sic) the Building Code violations was proper under C. L.R. ~ 3043(b) since allegations of the Building Code violations merely amplify and elaborate upon facts and theories already set forth in the original bil of particulars and raise no new theory ofliability. Plaintiffs furher submit that there is no evidence that defendant and plaintiffWS' employer were a single entity entitled to tort insulation afforded by the Workers ' Compensation Law. Plaintiffs state (i)n the instant matter , plaintiffs employer has already been identified as Milennium Super Store , Ltd. and there has been no evidence submitted by defendant that it had [* 5] the right to control plaintiff s work , furnished equipment to the plaintiff, or had the right to fire the plaintiff. Plaintiffs contend that defendant and Milennium Super Store , Ltd. are separate legal entities as they were formed for different purposes , their finances are not integrated , neither is a subsidiar of the other , their assets are not commingled and the principal treat the two entities as separate and distinct. Additionally, the lease between defendant and Milennium Super Store Ltd. clearly contains provisions which indicate that the entities were not operating as one , but rather , maintained separate and distinct roles set down by the provisions of said lease. In reply to plaintiffs ' opposition , defendant states (i)n opposition to Milennium Realty s motion for summary judgment , Plaintiff does not dispute that Milennium Realty is an out-of-possession landlord. Rather , Plaintiff argues that Milennium Realty s motion should be denied because (a) Milennium Realty retained the right to re-enter the premises; and (b) the alleged defect in question , to wit, insufficient lighting, was a ' structural defect' which constitutes a specific statutory violation.... Plaintifffails to establish that Plaintiffs accident was caused by any structural defect , or that such alleged defect constitutes a specific statutory violation. Defendant contends that , in an attempt to defeat defendant' prima facie showing of entitlement to summar judgment , plaintiffs offer the argument that insufficient lighting at a premises is tantamount to a structural defect. Defendant submits that plaintiffs allege , for the first time in opposition to defendant's motion , that defendant violated a particular statutory code relating to lighting conditions. Defendant argues that " Plaintiffs purorted Supplemental actually an Amended Bil of Particulars) Bil of Pariculars (which should not be considered by this Cour , as the new code section was alleged for the first time more than three' months after the filing ofthe Note of Issue , without leave of Court. The code sections cited in Plaintiffs initial Bil of Pariculars do not provide any notice to Milennium Realty that Plaintiff might amend the Bil of Pariculars to allege a violation of a building code relating to lighting. In fact, the code sections cited by Plaintiff in the original Bil of Pariculars do not specify the lighting requirement which Plaintiff alleges Milennium Realty violated. As such , Plaintiff should not be permitted to unfairly prejudice Milennium Realty by attempting to amend the Bil of Pariculars without leave of Court almost two months after service of Defendant's summary judgment motion. ," [* 6] Defendant adds that plaintiffs ' citation to the Building Code is insuffcient to create an issue of fact in opposition to defendant' s motion because plaintiffs failed to retain an expert to proffer an opinion as to whether defendant violated said Building Code. Defendant further states contrar to Plaintiffs contention , the First and Second Departments have both held that claims relating to inadequate lighting are not significant structural defects.... Plaintiffs claim that the existing light fixtures , as testified to by Mr. Rizzuto , were inoperative at the time ofthe accident , is , at best , a transitory maintenance condition that did not constitute structural or design defects.... Notably, this Court is bound by the principles of stare decisis to follow the very clear decisions of the First Department that inadequate lighting does not constitute a significant structural or design defect that violates a specific statutory building code provision, absent a contrar ruling from the Second Department... As the First Department holding on the issue is very clear , this Cour is bound to adhere to the precedent set forth in its decision. It is well settled that a motion for summar judgment is a drastic remedy that should not See Silman be granted where there is any doubt as to the existence of a triable issue of fact. Twentieth Century- Fox Film Corp. 3 N. Y.2d 68 N. Y.2d 320 508 N. Prospect Hospital, 49 N. Y.2d 557 , 427 N. Y.S.2d 595 (1980); 395 , 165 N. Y.S. 2d Bhatti v. v. Zuckerman S.2d 923 (1986); Alvarez 498 (1957); City of New York 140 A.D. 2d 660 528 N. Roche, S.2d 1020 (2d Dept. 1988). To obtain summar judgment , the moving pary must establish his or her claim or defense by tendering proof, in admissible form , sufficient to warant the Cour to direct See Friends of Animals, Inc. judgment in the movant's favor. Y.2d 1065 v. Associated Fur Mfrs. , Inc. , 46 2d 790 (1979). Such evidence may include deposition transcripts , as 416 N. well as other proof annexed to an attorney See s affirmation. CPLR ~ 3212 (b); Olan v. Farrell Lines Inc. 64 N. Y.2d 1092 489 N. Y.S.2d 884 (1985). If a suffcient showing is demonstrated , the burden then shifts to the non- prima facie moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of summar See Zuckerman judgment and necessitates a trial. S.2d 595 (1980), supra. City of New York 49 N. Y.2d 557 , 427 It is incumbent upon the non-moving part to lay bare all of the facts which bear on the issues raised in the motion. 529 N. v. See Mgrditchian v. Donato 141 A.D.2d 513 2d 134 (2d Dept. 1998). Assertions set forth by an opposing attorney, which are unsupported by competent proof, lack probative value and are insufficient to raise a triable issue [* 7] of fact. v. See Zuckerman summary judgment , at 562. When considering a motion for City of New York, supra the function of the court is not to resolve factual issues but rather to 428 N. Y.S.2d 665 (1980); Daliendo v. See Barr determine if any such material issues of fact exist. v. Albany County, 50 N. Y.2d 247 Johnson 147 AD.2d 312 543 N. Y.S. 2d 987 (2d Dept. 1989). An out-of-possession landlord establishes its entitlement to judgment as a prima facie matter of law dismissing a claim for premises liabilty by establishing lack of control over the Lube Intern. , Inc. 86 AD. 3d 553 , 926 N. AD. 3d 757 898 N. Y.S. (2010); Euvino v. v. See Panico premises and no contractual obligation to maintain or repair the premises. McElroy 2d 833 (2d Dept. 2011); 15 N. lvapp. den. 2d 471 (2d Dept. 2010) Loconti 67 AD. 3d 629 888 N. v. Jif Bernstein , 72 3d 704 , 907 N. Y.S.2d 752 2d 571 (2d Dept. 2009). A landlord' reservation of the right to inspect and repair does not suffce to establish liabilty where the alleged defect violated no statutory obligation. 1276 903 N. S.2d 237 (2d Dept. 2010); v. See Espada Connell v. City of New York, 74 AD.3d L.B. Realty Co. 50 AD. 3d 752 856 Y.S. 2d 165 (2d Dept. 2008). The reservation of the right to enter premises for inspection and repair may constitute sufficient retention of control to impose liabilty upon a landlord for injuries caused by a dangerous condition , but only where the condition violates a specific statutory provision and there is a signifcant structural design or defect. 3d 827 , 835 N. See Nikolaidis v. La Terna Restaurant, 40 S.2d 726 (2d Dept. 2007). The Court first finds that defendant is an out-of-possession landlord. Defendant although organized as a limited liabilty company in the State of New York , has a Florida business address and its sole member, John Staluppi , resides in Palm Beach Gardens , Florida. As previously mentioned , paragraph two of the lease between defendant and Milennium Super Store , Ltd. , the tenant of the building where plaintiffWS' s accident occurred , specifically states that the tenant is responsible to "take good care of the demised premises , fixtures and appurtenances , and all alterations , additions and improvements together; make all repairs in and about the same necessary to preserve them in good order and condition... forever indemnify and save harmless the Landlord for an against any and all liability, penalties , damages , expenses and judgments arising from injury during said term to person or property, occasioned wholly or in part by any act or acts , omission or omissions of the Tenant.. " See Defendant's Affidavit in [* 8] Support Exhibit 3 ~ 2. Additionally, the third paragraph of the lease states that " the Tenant wil not obstruct or permit the obstruction ofthe light , halls , stairway or entrances to the building,... See Defendant's Affidavit in Support Exhibit 3 ~ 3. Furthermore , while said lease contains a right of re-entry in favor of defendant , defendant canot be held liable based upon any constructive notice which may result therefrom given the absence of any evidence as to a significant structural or design defect that is contrary to a specific statutory safety provision. v. See Jackson 325, 642 N. us. Tennis Ass ' , Inc. , supra , quoting Johnson Urena Servo Ctr. v. 227 AD.2d S.2d 897 (1st Dept. 1996). While plaintiffs are correct that defendant' s lease maintained a right to re-entry and also (see maintained the right to make repairs Defendant' s Affdavit in Support Exhibit), they have failed to raise a triable issue of fact that the alleged defect in the premises constituted a statutory violation. Even accepting plaintiffs ' Amended Bil of Pariculars Plaintiffs ' Affrmation in (see (see Opposition Exhibit B), despite defendant's arguments against doing so Defendant's Reply Memorandum of Law , Point II , A), the Court finds that plaintiffs ' mere allegations that defendant violated The New York State Uniform Fire Prevention and Building Code Par 103. 1 (a) & (b) do not create an issue of fact. Plaintiffs have failed to provide any evidence that said statutory violations exist. The affirmation of plaintiffs ' counsel and plaintiffWS' s own Examination Before Trial testimony do not constitute evidence that defendant violated said statutes. As previously stated , assertions set forth by an opposing attorney, which are unsupported by competent proof, lack probative value and are insufficient to raise a triable issue of fact. See Zuckerman v. City of New York, supra at 562. Plaintiffs did not provide the Court with any type of report or affidavit from a qualified expert to support their allegations that alleged defect in the premises constituted a statutory violation. Plaintiffs ' opposition , lacking an expert report stating that defendant violated any applicable section of The New York State Uniform Fire Prevention and Building Code Par 103.1 (a) & (b), is insuffcient defendant's motion for summary judgment. See Garcia-Rosales v. 370 Seventh Avenue Associates, LLC 88 AD.3d 464 930 N. Y.S.2d 183 (2d Dept. 2011); Pistol Club, Ltd. to defeat Veccia V. Clear Meadow 300 AD.2d 472 , 752 N. Y.S.2d 84 (2d Dept. 2002). Since the Court has determined , based upon the evidence before it , that defendant is an out-of- possession landlord , it need not address defendant's arguments that it be treated as the [* 9] alter-ego of Milennium Super Store , Ltd. , thereby limiting plaintiffWS' s remedy to benefits under the New York Workers ' Compensation Law. As plaintiffs have failed to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of summary judgment and necessitates a trial , defendant's motion , pursuant to CPLR ~ 3212 , for an order granting it summary judgment and dismissing plaintiffs ' Verified Complaint is hereby GRANTED. All applications not specifically addressed are hereby denied. This constitutes the Decision and Order of this Cour. yNiSE L. S::' A. ENTERED Dated: Mineola, N ew York March 21 , 2012 MAR 2 6 2012 NAS8AUCOUNTY COUNTY CLERK' S OFfiCE

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