Davidson v 247 West 37th St. Assocs., LLC
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Davidson v 247 West 37th St. Assocs., LLC 2012 NY Slip Op 30932(U) March 20, 2012 Sup Ct, New York County Docket Number: 113177/10 Judge: Paul Wooten 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] 'SUPREME COURT OF THE STATE OFrNEW YORK --INFWV YORK COUNTY PRESENT: HQN. PAUL WOOTEN l P A R T , ,7 Justice Notice of Motion/ Qrder to Show Cause - Affidavits - PAPERS NUMBERED Exhibits ... I,, 2 Answering Affidavlts - Exhibits (Memo) 3,4 Replyipg Affidavlts (Reply Memo) 5, 6 Plaintiff Steven Davidson (Davidson) brings this personal iqjury action against the defendants to recover for injuries allegedly su5tained when he slipped and fell an water in the hallway on the 8"' floor within the premises known as 247 West 3JthStreet, New York, NY (premises). Discovery has not been completed and the Note of Issue has not been filed Defendants Falcon Engraving Co., Inc. (Falcon) and Imperial Network Printing, LTD. (Imperial) (collectively, moving defendants) now move pursuant to CPLR $5 3212 and 321 l ( a ) ( l ) ,for summary judgment dismissing the complaint and all cross-claims asserted against them. Plaintiffs Steven Davidson and Sandra Davidson (collectively, plaintiffs), as well as defendants 247 West 47'h Street Associates, LLC (247 West), owner of the premises, Newmark & Company Real Estate, Inc. (Newmark), and Jeffbar, Inc (collectively, non-moving defendants) are all in opposition to the motion. Page 1 of 6 I 2] [* .. . - . . .. . . - . . BACkFROUND On or about October 5, 2010, plaintiffs commenced this action by the filing of a Summons and Complaint. On Or about November 5, 2010 issue was joined when ppn-moving defendants interposed an Answer. Moving defendants interposed an answer on gr about I December 21, 2010. Before the Court is moving defendants' m d i o n to dismiss all claims asserted against them. In support of their motion, moving defendants submit an Affirmation of their attorney Danielle Goldstein, plaintiffs' Summons and Complaint, moving defendants' Answer, nonmoving defendants' Answer, plaintiffs' Bill of Particulars, affidavit af Falcon's President, Howard SwHd Ioff (Swerd loff Affidavit) , moving defen nts' lease gqreement, and Affidavits of Imperial's I 1 President, Jeffrey Weintraub (Weintrqub), dqte'd March 18, 201 1 and June 24, 201 1, respectively. The relevant portion of plaintiffs' complaint alleges that moving defendants leased, controlled, maintained and managed the hallway? on the 8'h flow of the premises. According to the Swerdloff Affidavit, moving defendants "jointly and severally" leased a portion of the 8"' floor I of the premises where plaintiff allegedly sustained his injury, and said lease was in effect at the time Qf plaintiff's injury (Affirmation in Support, fi 9). This lease agreement was between Newmark as agent for 247 West as owner, and Imperial, Falcon and Precision Engraving Co , Inc.' as tenants The lease agreement was signed by Weintraub on behalf of Imperial and by Swerdloff on behalf of Falcon. Moving defendants aver that pursuant to said lease, the portion of the 8"' floor leased by moving defendants did not include any portion of the common hallway/elevator lobby, which is where plaintiff allegedly fell. Furthermore, moving defendants proffer that under the lease agreement, they did not have any duties or responsibilities ' Precision Engraving Co , Inc (Precision) is a party to the lease but not a party to the herein action, nor do any of the parties mention Precision in their papers Page 2 of 6 [* 3] ' whatsoever to maintain the common hallvvay/elevator lobby because this was outside of their leased premises. In support of this claim, moving defendants point to the lease agreement as well 8s the affidavits of Weintraub and Swrdloff which state that the common hallway/elevator lobby of the 8"' floor was not under moylng defendants' control, nor was it the responsibility of the moving defendants tp maintain that h r w , Mdving defendahts also proffer that they did not cause or contribute to the defective condition which allegedly caused plaintiff to fall. In opposition, pldintlffs submit Affirmation of their attorney, a copy of their Verified Bill of Particulars and Notice for Discovery and Inspection In opposition, non-moving defendants submit an Affirmation of their attorney. In opposition, both plaintiffs and ngn-moving defendants state that this motion is premature as discovery has not yet been completed. Plaintiffs aver that I if this motion is granted it should be withgut pr'ejudice a? there are outstanding discovery demands, namely a demand for video surveillance of the area where Davidson fell, that have not been responded to by moving defendants. In reply, moving defendants state that neither plaintiffs' nor non-moving defendants' opposition papers are sufficient to raise any issues of triable fact as they did not submit proof in admissible form Specifically, plaintiffs qnd non-moving defendants do not submit an affidavit of a person with personal knowledge of the incident, and moving defendants cite to CPLR 3212(f) in support of this proposition. STANDARD Summary Judqment Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 3 2 0 , 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of page 3 of 6 [* 4] I 1 1 1 , I lLl 1 material issues of fact (see Winegrad v New York Univ. Wed. Ctr., 64 NY2d 851, 853 [1985], CPLR 3212 [b]) The failure to make sdch a showing requires denial of the motion, I egardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., lnc., 10 NY3d 733, 735 [2008]). Once a prima facie showing has been made, howbler, the burdet? shifts to the nonmaving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (Giuffridav Citibaiih Corp., 100 NY2d 72, 81 [2003]; see also Zuckefman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212 [b]). When deciding a summ&y judgment motion, the Court s role is solely to determine if any triable issues exist, not to determine the merit$ df any such issues (see Sillman v Twentieth I I I CBntury-Fox Film Corp. 3 NY2d 395, 404 [I 9571). The Court views the evidence in the light I most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, lnc., 65 NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, scirrlrnary judgment should be denied (soe Rotiiba Extruders, Inc v Ceppos, 46 NY2d 223, 231 [1978]). I CPLR 321 1(a)(l) A party may move for dismissal pursuant to CPLR 5 321 1(a)(l), based upon documentary evidence, and in order to prevail on a motion to dismiss based on documentary evidence, the documents relied upon must definitively dispose of plaintiff s claim (Bronxville Knolls v Webster Tow11 Ctr. Pshp., 221 AD2d 248, 248 [ l s t Dept. 19951; see Dernas v 325 W. End Ave. Corp. ,127 AD2d 476 [I Dept 19861). A CPLR st 5 321 I (a)( I ) motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff s factual allegations, conclusively establishing a defense as a matter of law (Goshen v Muf. Life Ins. CO.,98 NY2d 314, 326-27 [2002]). Page 4 of 6 [* 5] DISCUSSION The Court finds that the moving defendant? have met their prima facie burden of establishing through the submission of documentary evidence, the lease agreement, that the area where Davidson fell was not 9 part of their leased premises, As such, moving defendants have also shown that they did not have GI duty to maintain this area, nor was this area under their control. Said lease agreement states that moving defendants Eased from 247 West, [plart [of the] 8 Floor, as hatched on attached plan (floor plan) (Affirmation in Support, exhibit E). The floor plan was attached to and made a part of the lease agreement as a rider (id). The floor plan depicts the Sth floor and marks the portion therein leased by moving defendants As designated on the floor plan, the said leased premises does oot include the interior I elevator/lobby area, which is where plaintiff fell. Furthermore, Section 4 of the lease agreement, entitled Repairs indicates that the owner has t h e duty to maintain and repair the public portions of the building, which would include the common hallway and elevator bank of t h e 8thfloor (Affirmation in Support, exhibit E, p 1). Moreover, in opposition plaintiffs and non-moving defendants fail to submit evidence which raises material issues of fact which would require denial of moving defendants motion or which supports their contention that this motiop is premature because discovery remains outstanding. Accordingly, moving defendants motion for summary judgment dismissing the complaint and all cross-claims, if any, asserted against them is granted. CONCLUSION For these reasons and upon the foregoing papers, it is, ORDERED that Defendants Falcon Engraving Co., Inc. and Imperial Network Printing, LTD.s niotion dismissing the complaint and any cross-claims asserted against them is granted; and it is further, ORDERED that Defendants Falcon Engraving Co,, Inc. and Imperial Network Printing, Page 5 of 6 [* 6] I LTD s' counsel shall serve a copy of this Order, with Notice of Entry, upon all parties and the Clerk of the Court who ISdirected to enter judgment accordingly, within 30 days; and it is further, ORDERED that the remaining parties are directed to appear at the already scheduled , Status Conference On June 20, 2012, at 2:30 p.m., in #art 7, at 60'Centre Street, Room 341. This constitutes t h e Decision and Order of the Court. Datad: I b, a-20-E check one: 0FINAL DISPOSITION Check if appropriate: NON-FINAL DI$PQSITION 1 DQ NOT POST 7 I Page 6 of 6
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