Gruninger v Gawker Media, LLC

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Gruninger v Gawker Media, LLC 2012 NY Slip Op 31582(U) June 13, 2012 Supreme Court, New York County Docket Number: 108651/11 Judge: Louis B. York 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. SCANNED ON 611512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: 3, Justlce INDEX NO. MOTION DATE MOTION SEQ. NO. The following papers, numbered 1 to Notice of MotlonlOrder to Show Cause / , were read on this motion tolfor - Affldavlts - Exhiblts JUN 15 2012 NEW YORK COUNJY Cl ¬FI)cs OFFICE @ NON-FINAL DISPOSITION , 0 CASE DISPOSED ! OTHER J GRANTED IN PART DENIED 2. CHECK AS APPROPRIATE: .............. MOTION IS: 0GRANTED 0SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER DO NOT POST 0FIDUCIARY APPOINTMENT [? REFERENCE I . CHECK ONE: .................................................................... ; [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 2 ___-____________ ___ .______ X SUSANNA GRUNINGER, Plaintiff, Index No.: 108651/11 -against- DECIS TON FILED GAWKER MEDIA, LLC and OSCAR 2 . IANELLO ASSOCIATES, INC., - - -- - - - --- - - ------ LOUIS B. YORK, J.: Defendants. -- - - I JUN 15 2012 X NEW YORK COUNTY CLERK'S OFFICE Defendant Oscar Z. Ianello Associates, Inc. (Ianello) moves, pursuant to CPLR 3212, f o r summary judgment dismissing the complaint and all cross claims as asserted against it. BACKGROUND sustained by plaintiff as a result of a trip a n d fall on September 14, 2010, at the deck located on the f o u r t h f l o o r of 210 Elizabeth Street, New York, New York 10012. The accident occurred while plaintiff was attending an event sponsored by defendant Gawker Media, LLC ( G a w k e r ) , wherein plaintiff tripped and fell on a step of the deck, leading to an exit on the f o u r t h floor of the premises. Plaintiff alleges that the accident occurred because the area was not properly lit. Ianello contends that the action s h o u l d be dismissed as asserted against it because it did not create t h e condition that allegedly caused ... .. ~ .. . [* 3] plaintiff's i n j u r i e s and because it is owed contractual indemnification by Gawker. Ianello, the owner of the premises, and Gawker entered into a lease for the fourth floor of the premises at which t h e accident took place on October 17, 2007. The lease provides, in pertinent part: "Tenant's Liability Insurance P r o p e r t y Loss, Damage, Indemnity: 8. Owner or its agents shall not be liable for any . , . injury or damage to person or property resulting from any cause of whatsoever nature, unless caused by, or due to the negligence of Owner, its agents, servants or employees . . . . Tenant shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs and expenses f o r which Owner shall not be reimbursed by insurance . . . Motion, Ex. C. ,'I The rider to the lease provides, in pertinent part: "Insurance (a) Tenant shall carry and keep in force, at its own expense, w i t h respect to the demised premises, a polfcy or policies of public liability and property damage insurance with an insurance company or companies and in a form reasonably satisfactory to landlord . . . personal injury including death in the sum of $1,000,000 for each person . . . . Such policy or policies shall include OSCAR Z . IANELLO ASSOCIATES, LLC., 021 MANAGEMENT CORP., OSCAR IANELLO 2006 REVOCABLE TRUST and PETER A. IANELLO named as an interest with Landlord named as an insured . . . . I 1 Id. Ianello asserts that the deck that is the subject of this litigation was constructed at Gawker's request, that Gawker had a social event on the deck to which it invited plaintiff, and that, pursuant to the lease, Gawker must indemnify Ianello. -2- [* 4] In opposition t o the instant motion, plaintiff contends that Ianello, as the owner of the premises, has a nondelegable d u t y to maintain the premises in a reasonably safe condition. In addition, plaintiff says that Ianello's answer to the complaint is unverified and, therefore, it is a nullity, requiring dismissal of the instant motion. The thrust of plaintiff's argument is that the lease only mentions the fourth floor and makes no mention of a deck. It is plaintiff's position that, if the d e c k was not part of the leased premises, the duty to maintain it remained with Ianello as the property owner. Further, the plans submitted to the New York City Department of Buildings for approval of the construction of the deck do not name either defendant, but indicate that the applicant is Synchro P r o j e c t Management. Opp., E x . 7. Hence, plaintiff argues that it is possible that Ianello was responsible for the construction of the deck where h e r accident took place, and that the motion is premature because discovery is needed to determine who actually constructed and maintained the deck. ~n the pleadings, both defendants deny responsibility for maintaining the fourth floor roof d e c k . Gawker has also submitted opposition to Ianello's motion, in which it asserts that Ianello has failed to meet its burden for summary judgment because: (1) the lease is silent with respect to -3- [* 5] the roof deck; (2) the moving p a p e r s fail to establish who (3) Ianello has failed to establish that constructed the d e c k ; Gawker had a social event to which plaintiff was invited; and (4) the rider to the lease provides that each p a r t y t h e r e t o releases the other for all claims and liabilities t h a t a r e c o v e r e d by ' insurance. Motion, Ex. C. Gawker agrees w i t h plaintiff t h a t dismissal of the complaint as asserted against Ianello is premature at this pre-discovery stage, because material questions of fact exist as to who was responsible for constructing a n d maintaining the roof deck where the incident occurred. No reply p a p e r s have been submitted. DISCUSSION "The p r o p o n e n t of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted] (lSt Dept 2006). .Ir S a n t i a g o v F i l s t e i n , 35 AD3d 184, 185-186 The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to r a i s e a genuine, triable issue of fact. " Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (' Dept 2006); see Zuckerman v 1' City of New Y o r k , 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary -4- [* 6] judgment must be denied. See Rotuba Extruders, I n c . v Ceppos, 46 NY2d 223, 231 (1978). Ianello's motion is denied. "[O]wners of real property onto which members of the pub.lic are invited have a nondelegable d u t y to provide the public with reasonably safe premises and a safe means of ingress and egress [internal citations omitted]." Sarisohn v 3 4 1 Commack R o a d , Inc., 8 9 AD3d 1007, 1008 (2d Dept 2011); Roros v O l i v a , 54 A D 3 d 398 (2d Dept 2008). However, "an out-of-possession landlord will not be h e l d liable f o r a third party's injuries on its premises unless the landlord has notice of the defect and has consented to be responsible for maintenance and repair." Pappalardo v New York Health & R a c q u e t C l u b , 2 7 9 A D 2 d 134, 140-141 ( l a t Dept 2000); see generally Pulliam v Deans Management of N. Y., Inc. , 61 AD3d 519 (ft Dept 2009). In the case at b a r , the lease is silent with respect to the roof deck area, only referring to fourth floor office space, a n d the affidavit provided by Ianello's owner was artfully crafted so as to state only that "the deck on the fourth floor ... was constructed at the request of G a w k e r Media, LLC," (Motion, Ex. D), which does not indicate who constructed the deck or who was responsible for maintaining the deck. In addition, pursuant to the terms of the lease, Ianello -5- [* 7] its liability exceeded the amount covered by insurance. Ianello has failed to produce a n y evidence of its insurance coverage, thereby raising an issue of fact as to whether it would be entitled to indemnification from Gawker. Not only has Ianello failed to "meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law" (Surujnaraine v V a l l e y Stream C e n t r a l H i g h School 8 8 AD3d 866, 867 [2d Dept 2011]), because it -has not District, offered any p r o o f in admissible form t h a t it was not obligated to maintain the fourth floor roof ( s e e generally Vera v Dance Space C e n t e r - , Inc. , 66 AD3d 554 [ l S t Dept 20091), b u t , since no discovery has yet taken place, its motion is premature. S p o r t i e l l o v C i t y of N e w Y o r k , 6 AD3d 421 (2d Dept 2004). CONCLUSION Based on the foregoing, it is hereby ORDERED that defendant Oscar 2 . Ianello Associates, Inc.'s motion f o r summary judgment is denied with leave to FILED renew at the conclusion of discovery. JUN 15 2012 ENTER: fi NEW YORK W Louis Sf. York, J . S . C . J.S.C. -6- c K ' S OFFICE

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