Garcia v Town of Babylon Indus. Dev. Agency

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Garcia v Town of Babylon Indus. Dev. Agency 2012 NY Slip Op 32687(U) October 22, 2012 Sup Ct, Suffolk County Docket Number: 10-18232 Judge: Daniel Martin 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] INDEX NO. 10- 15232 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY PRESENT: I Ion. DANIEL MARTIN Justice of the Supreme Court MOTION DATE 10-5-1 1 ADJ. DATE 10- 18-12 Mot. Seq. # 002 - MD # 003 - XMotD EDELMAN, KRASIN & JAYE, PLLC Attorney for Plaintiff One Old Country Road Carle Place, New York 1 15 14 - HAMMILL, O'BRIEN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C. Attorney for Defendants Town of Babylon and Gazzilla 685 1 Jericho Turnpike, Suite 250 Syosset, New York 1 179 1 against - THE TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY, THE TOWN OF BABYLON, GAZZILLA C O W . , and CREATIVE JUICES PRINTING & GRAPHICS, INC., O'CONNOR, O'CONNOR, HINTZ, & DEVENEY, LLP Attorney for Defendant Creative Juices Printing One Huntington Quadrangle, Suite 3C01 Melville, New York 1 1 747 / Defendants. j L'poii the Ibllon.ing papers numbered 1 to 42 read on this motion and cross motion for summary iudgiiient ; Notice ol'klotion' Ortier to Show C'z~ise and suppoi-ting papers 1 - 12 ; Notice of Cross Motion and supportirig papers 13 - 30 : Atiswering Al'litlavits and supporting papers 31 - 38 ; Iieplying Affidavits and supporting papers 39 - 40; ill - 42 ; Other ( -: ( ) i t is, ORDERED that this motion by defendant Creative Juices Printing & Graphics, Inc. for an order pi~rsuant CPLR 32 12 granting sLimmaryjud~tiientin its favor dismissing plaintiff7s complaint and all to cross claims is denied; and it is further ORDERED that that this cross motion by defendants The Town of Babylon Industrial I)evelopment Agency and Gazzilla Corp. for an order pursuant to CPLR 32 12 granting summary judgment in their fa\ or dismissing plaintiffs complaint is dctennined herein. [* 2] Garcia \ fo\\ t i o f Babylon Inde\ h o . 10- 1 s232 Page No.7 This is an action to recover damages for injuries allegedly sustained by plaintiff on January 25, 2008 at approximately 10 a.m. when she tripped and fell on an extension cord attached to a portable heater in the warehouse at her place of employment located at 90 Gazza Boulevard, Farniingdale, New l ork. Plaintiff alleges that defendants were negligent in, among other things, failing to provide a safe place to ~ v o r k creating or allowing a dangerous condition to exist in the work area by installing and ; maintaining extension cords in the area, having inadequate or improperly placed electrical outlets in the \\wchouse area, and failing to inspect the work area or to take precautions or to warn to prevent injury to pel-sons tra\,ersing the work area. At the time of the incident, plaintiff was a sandblaster for non-party A n i e t-i c a t i V i s11 a 1 Di sp 1ay (American Vis iial ), and both Aineri can Vi sual and defeiidant Creative J LI i c es Printing & Graphics, hic. (Creative) occupied the building. Gazzilla Corp. had been formed to acquire the premises from the Town of Babylon Industrial Development Agency (Babylon IDA). Defcndant Creative now moves for summary judgment on tlie grounds that the accident did not occur in the area occupied by Creative, and that it did not have actual or constructive notice of the alleged defective condition. The submissions in support of the motion include the pleadings, the bill of particulars, the deposition transcripts of plaintiff and of Michael Karmatz on behalf of defendant Creative, and color photographs of the area of the accident. Defendants Babylon IDA and Gazzilla C o y . cross-move for summary judgment on the ground that no one controlled the area where the accident occurred nor caused or created the transient condition that allegedly caused plaintiffs fall. The submissions in support of the cross motion include the pleadings, the stipulation of discontinuance dated December 6, 201 0 between plaintiff and the Town defendants discontinuing with prejudice the action against The Town of Babylon, the deposition transcript of Robert Stricoff oii behalf of defendant Babylon IDA, and the commercial lease effective .4pril 1. 2007 to April I , 2008 between Gazzilla and American Visual. In opposition to the motion and cross motion, plaintiff contends that it is ~tnclcar which of the defendants owned, occupied or controlled the area where plaintiff s accident occurred; that defendants retained sufficient control over the premises for maintenance and repair; that defendants failed to demonstrate that tlie defect was not structural in nature; that the lack of electrical outlets on the walls rendered the premises unsafe; that the structural electrical system of the premises created a foreseeable tripping ha;.ard based on the insufficient number of electrical outlets prompting the constant need for extension cords; and that there are questions of fact as to whether defendants had actual and/or constt-uctt\ e notice of the alleged dangerous condition. Plaintiff submits her own as well as her sister s af fida~ dated January 10, 2012, the affidavit and attached report of her architectural expert, David it Hunter, the lease agreement dated October 27, 2005 between Babylon IDA and Gazzilla Corp. and the Octobcr 2005 sublease agreement between Gazzilla Corp. and Creative Juices, and the lease agreement l x t n een G a m Ila and American Visual. It I S well settled that the party moving for summary judgment must make a prima facie showing of entitlement to j~idgment a matter of law, offering sufficient evidence in adniissible form to denionstrate as the absence ol any material issues of fact (sec Alvnrez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [ 1080]: Zirckerritaii v City of New York, 49 NY2d 557, 427 NYS2d 595 [ 19801; Friends of Aiiiinals, Iiic. v.4swciritecl Fiir Mps., Iizc., 46 NY2d 1065, 416 NYS2d 790 [1979]). The failure to make such a prima [* 3] Garcia \ To\\n of Babylon Index KO. 10-1 8232 Page No. 3 hcie she\\ ing lequires tlie denial of the motion regardless of tlie sufficiency of tlie opposlng papers (see IViriegrud v ,Vew York Liriiv. Med. Ctr.. 64 NY2d 85 1. 487 NYS2d 3 16 [ 19851). Once this showing has been made, h o ever. the burden shifts to the party opposing tlie motion for summary judgment to produce ~ e\ identiarir proof in admissible form sufficient to establish the existence of material issues of fact which ieqiiire a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, citing to Ziickeritiriii v C @ o New York, 49 NY2d 557, 562, 427 NYS2d 595). i f .4s a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property (see Forbes v Aaron, 8 1 4D3d 876. 91 8 NYS2d 11 8 [2d Dept 201 11). An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct (Healy v Bartolomzei, 87 AD3d 1 1 12, 1 1 13, 929 NYS2d 866 [2d Dept 201 11, qiiotiiigAlrzashmi v Certi$edAnalytical Group, Iiic., 89 AD3d 10, 18, 929 NYS2d 620 [2d Dept 201 11). A tenant may be held liable for a dangerous or defectivz condition on the premises it occupies, even where the landlord has explicitly agreed in the lease to maintain the premises and keep it i n good repair (see McNelis v Doiibleday Sports, 191 AD2d 619, 595 NTIS2d 118 [2d Dept 19931; Cliariis v Grand Union Co., 158 AD2d 443, 550 NYS2d 908 [2d Dept 19901). To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that tlie defendant either created the condition or had actual or constructive notice of it (Derzker v Century 22 Dept. Stores, LLC, 55 AD3d 527, 528, 866 NYS2d 681 [2d Dept 20081; see, Starling v Suffolk Coriiity Water Autlz., 63 AD3d 822, 823, 881 NYS2d 149 [2d Dept 20091). A defendant moving for summary judgmeit in a personal injury action has the burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence (see, Starling v Siiffolk Coiiiity Water Ai&, szipia). At her continuing deposition on April 7, 201 1, plaintiff testified that she was walking with a part in her hand and that her feet got tangled in the black cord of a portable licater and that while attempting to extricate one foot, she slipped and fell backwards. In addition, plaintiff testified that the heater was not operating a t the time and that the extension cord that it was plugged into was not plugged into the ceiling outlet. She described that the heater was simply plugged into the red extension cord and that the extension cord was merely thrown onto the floor. Michael Karinatz testified on April 20, 201 1 on behalf of defendant Creative stating that he is the onrner of Creative as well as GazLilla Corp. and that Gazzilla Coip. was formed to purchase 90 Garm Boulevard. \\ liicli consists of a cement building zoned light industrial. Mr. Kannat7 stated that he currently o\\ns tlie property and that the property was purchased i n 2004 or 2005 from the owner of American Visual through Babylon IDA. According to Mr. Kannatz, in January 2008 Creative occupied about 10 percent of the rear of the building for storage of supplies and boxes and that the rest of the building was occupied by American Visual pursuant to a lease agreement with Gazzilla Corp. He described the premises as having a front office of approxiinately 1500 square feet, a middle section where most of the production occurred of approximately 4000 square feet, then a cement wall with a door leading to two other sections of approximately 2500 square feet. In addition, Mi-. Kaniiatz stated that American Visual occupied the front office, middle production area, and most of the rear area and [* 4] Garcia I.oJ\ n o1'Babylon Inde., No. 10- 1 s232 Page No. 4 that his cotlipmy used only about SO0 square feet in tlie rear. He explainEd that upon entering the building therc are two offices and a bathrooni in the niiddle and then a hadlway that leads to the central production ar:;~ Mr. Kainlatz testified that there were outlets on the walls and outlets on the ceiling rafters spaced every 10 feet, remnants from a lighting store once on the premises. In addition, he testificd that in January 2008 he would visit the owner of American Visual once or twice a month. He could not ren- ember the t e r m of the lease between Gazzilla Corp. and defendant Creative. Robert Stricoff testified at his deposition on September 23, 201 1 that lie is chief executive officer of Babylon lDA, which he described as a public benefit corporation authorized to provide tax incentives to businesses and groups to bring businesses aiid jobs to Babylon. He explained that in 2006 Babylon IDA entered into a PILOT (Payment In Lieu Of Taxes) agreement with Creative which provided a tax incentive p h i for Creative to invest, own and operate 90 Gazza Boulevard in Famiingdale. Mr. Stricoff believed that the property was purchased by Gazzilla Corp., the company that was formed for the purpose of purcliasing the property, and that the building was not leased back to another entity after the purchase. According to Mr. Stricoff, the property could be sublet aiid alterations could be made to its interior but only with the approval of Babylon IDA. He had never heard of American Visual and during 2006 to 2008. Babylon IDA did not receive a request to sublet the subject premises to American Visual. Mr. Stricoff testified that between 2006 and 2008 Babylon had no knowledge and received no complaints concerning the outlets on the ceiling of the premises. He also testified that he had no notice of any prior accidents or code violations or electrical work regarding the interior of the subject premises and that he had never visited the building. The lease agreement dated October 27, 2005 between Babylon IDA and Gazzilla Corp. indicates that Babylon IDA would acquire fee simple title to the land and 8000 square foot building contained thereon and u-ould lease its interest to Gazzilla Corp. with an option for Gazzilla Corp. to purchase the land and 8000 square foot building and terminate the agreement by paying all the rental payments due and payable. The lease agreement was signed by Mr. Stricoff in his capacity as executive director of Babylon IDA and by Mr. Kannatz as member of Gazzilla Corp. Said agreement contemplated a sublease of the premises to Creative. Based on section 9.3 of Article IX of the lease, Gazzilla Corp. could not sublet tlie whole or any part of the premises, except pursuant to the sublease agreement, without tlie prior written consent of Babylon IDA. The sublease dated October 2005, signed by Mr. Kannat/ in his capacity as president of Gazzilla Coiy. and president of Creative, sublet 100 percent of the land and the building to Creative subject to the terms of the lease agreement between Babylon IDA and G a m l l a C'orp. Pursuant to section 4.1 of Article IV ofthe lease, Gazzilla Corp. agreed to keep the premises i n good and safe operating order and condition. Pursuant to section 6 of tlie sublease, Creative agrced to keep the premises in good and clean order and condition and to promptly make all necessary and approprta te repairs, whether structural or non-structural. 'Thc commercial lease between Ga7zilla Corp. and American Visual indicates that it was made and effectiLJeApril 1 , 2007 and that Gazzilla Corp. was the owner of the land and iniprovenients thereon and that thc Icasc term ended on April 1, 2008. Here, the adduced evidence reveals that defendant Creative, pursuant to the sublease contemplated by tlie Babylon IDA lease, leased 100 percent of the building. Contrary to the assertions of [* 5] Garcia \. Ton 1 of Babylon 1 Indeu N o . 10- 1 8232 Page No. 5 defendant Creatii e in its reply, defendant Creative has failed to clearly demonstrate through the testimony 01' Mr. Karniatz that the Babylon IDA lease and CreatiITe sublease were no longer in effect at the time that Ga77illa Coty. entered into a lease with American Visual. No deed has been submitted shobving that Babylon IDA conveyed the subject preinises to Gazzilla COT. Thus, it IS unclear which was entity, defendant Babylon IDA or defendant Gazzilla Corp., the owner and/or out of possession landlord, of the subject premises at the time of plaintiffs accident. Thus, there is the possibility that the lease betu een Gazzilla Corp. and American Visual was void under the temis of the Babylon IDA lease requiring approval by Babylon IDA, and that defendant Creative, as sublessee, would have been responsible for the maintenance and repair of the entire building at the time of plaintiff?s incident. Under thosc circumstances, defendant Creative has failed to meet its burden of demonstrating that it lacked actual or constructive notice of the alleged defective condition of a strewn cord/extension cord attached to a portable heater or that it had no control over the use of the portable heater. There is no statement, by deposition or affidavit, from Mr. Karniatz expressly indicating that he had no actual or constructive notice of the particular alleged condition during his visits to the portion of the building occupied by American Visual (conzpnve Niinez v Bell Atlantic Cory., 41 AD3d 803, 840 NYS2d 370 [2d Dept 20071; Cyiiar v U S . Trust Corp., 7 AD3d 749, 776 NYS2d 900 [2d Dept 20041). Therefore, the motion by defendant Creative for summary judgment is denied. To the extent that defendant Gazzilla Cop. was still a lessee at the time of the incident pursuant to the lease with Babylon IDA in which Gaz;.illa Corp. agreed to keep the building in good and safe operating order, defendant Gazzilla Corp similarly failed to demonstrate that it lacked actual or constructive notice of the alleged defective condition of the strewn cord on the floor or that it had no control over the use ofthe portable heater (conrpureNuiiez v Bell Atlantic Corp., 41 AD3d 803, 840 NYS2d 370; Cyizar v U.S. Trust Corp., 7 AD3d 749, 776 NYS2d 900). It so follows that the portion of the cross motion for summary judgment dismissing the complaint as against Gazzilla Corp. is denied. The proffered proof does indicate that at the time of this incident, Babylon IDA was either the out-of-possession landlord of the building pursuant to its lease with Gazzilla C o p . or had deeded the premises to Gazzilla COT. and thus had no interest in the property. There is no evidence that Babylon IDA owned, installed, maintained, or repaired the subject portable heater or its cord and/or extension cord that plaintiff allegedly tripped over, and there is no evidence that it created the alleged defective condition of;i strewn cord or had actual or constructive notice of it or had any control over the use of the ~Z portable heatlzr (see N L L Iv~Bell Atlaritic Corp., 41 AD3d 803, 840 NYS2d 370; Cyizar v U.S. Trust Cory.. 7 AD3d 749, 776 NYS2d 900; see also Guzimrz v CSC Holdings, Itic., 85 AD3d 1 113, 926 NYS2d 6 13 [2d Dept 201 11; Roiiiuiio v Browrte, 180 AD2d 5 15, 579 NYS2d 400 [ I st Dept 19921). Eve11 when viewed as a structural or design defect due to the presence solely of ceiling electrical outlets, there I S no evidence that Babylon IDA owed a duty to plaintiff as the out-of-possession landlord (see Aliiuslrmi v Certified Aizalytical Group, Iiic., 89 AD3d 10, 929 NYS2d 620 [2d Dept 201 I ] ) . There is no proof that Babylon IDA retained any control over the building, that it was contractually obligated to maintain and repair the building, or that it owed a duty to plaintiff by virtue of any statute (see Goggiiis v Nidqj Reultj, Corp., 93 AD3d 757, 940 NYS2d 674 [2d Dept 20121). Babylon IDA demonstrated that its failure to install wall outlets did not constitute a breach of any duty imposed by statute or regulation, contract, o r course of conduct (see Mercer v Hellas Glass Works Cory., 87 AD3d 987, 930 NYS2d 18 [2d Dept 201 11). When there IS no duty toward plaintiff, the foreseeability of plaintiff's trip and fall accident is rendered irrelevant (see A r m g o v Vasqiiez, 89 AD3d 875, 933 NYS2d 82 [2d Dept 201 I]). [* 6] Garcia \ Town of Babylon 111de~ NO. 18232 10Page No. 6 I n opposition, plaintiff has failed to raise a triable issue of fact with respect to Babylon IDA (see Coggirls v N i h j Rerrlty Cory., 93 AD3d 757, 940 NYS2d 674; Moltisartti v Virgin Eritertairirnerit Grozrp, Ztic.. 91 AD3d 838, 937 NYS2d 285 [2d Dept 20121). Plaintiffs architectural expert fails to cite 1 iolations of specific, relevant and applicable building codes (conipal-e Madry v Heritage Holdirzg Cory., 06 AD3d 1022, 947 NYS2d 588 [2d Dept 20121). Therefore, that portion of the cross motion for siimmary j iidgnient dismissing the complaint as against Babylon IDA is granted. Accordingly the motion is denied and the cross motion is ganted solely as to defendant Babylon IDA. The action is severed and continued as against the remaining defendants.

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