Reeves v Georgia Props. Inc.

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[*1] Reeves v Georgia Props. Inc. 2012 NY Slip Op 51879(U) Decided on September 28, 2012 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 28, 2012
Supreme Court, Queens County

Paulette Reeves, Plaintiff,

against

Georgia Properties Inc. and RCR MANAGEMENT, LLC, Defendants.



821/12

Robert J. McDonald, J.



The following papers numbered 1 to 17 read on this motion by third-party defendant, ERENA BRAMOS, for an order pursuant to CPLR 3211(a)(7), dismissing the third-party complaint on the ground that it fails to state a cause of action:

Papers

Numbered

Notice of Motion-Affirmation-Exhibits..............1 - 5

Affirmation in Opposition..........................6 - 11

Reply Affirmation.................................12 - 17 [*2]

Upon the foregoing papers this motion is determined as follows:

In the main action, plaintiff, PAULETTE REEVES, commenced an action on September 17, 2011 to recover damages for personal injuries she sustained on August 9, 2011, when she allegedly tripped and fell on a radiator near the 88th Street entrance door to the premises located at 275 Central Park West. The building is owned by the defendant, GEORGIA PROPERTIES INC. and managed by defendant RCR MANAGEMENT, LLC. In her bill of particulars the plaintiff alleges that the radiator was improperly placed and was in violation of certain sections of the New York City Building Construction Code. She alleges that the building owners were negligent in failing to maintain the premises in a reasonably safe condition and to properly make repairs to its premises. As a result of the accident plaintiff alleges that she sustained, inter alia, a fracture of her 1st vertebrae requiring surgery.

The owners of the building, brought a third-party action against third-party defendant, Erena Bramos, the principal tenant of Unit No.1W, alleging that the radiator was located in her apartment, that the accident was a result of her negligence and asserting that Bramos signed a lease which required her to indemnify and reimburse the building owners for damages incurred as a result of accidents occurring in Unit #1W which resulted from the negligence of the tenant. In addition to causes of action for common law indemnification and contractual indemnification, the third-party complaint also alleges that third party defendant breached the lease provisions by failing to maintain insurance in favor of the building owners. The third-party complaint also requests contribution and an apportionment of liability.

In the instant motion, Ms. Bramos asserts that the third- party complaint must be dismissed because the plaintiff's injuries were sustained in a common area of the building and not in Unit #1W. Further, Bramos alleges that indemnification does not lie because liability in this matter is the result of negligence of the building owner and not of any negligence on her part. Bramos also asserts that the indemnification provision contained in her lease does not encompass claims of negligence asserted against the landlord only. In addition, Bramos alleges that there is no provision in the lease which required her to obtain general liability insurance protecting the building owner against claims asserted by third parties.

In support of the motion, third-party defendant's counsel [*3]submits an affidavit from Ms. Bramos dated June 1, 2012. In her affidavit, Ms. Bramos, a psychotherapist, states that on December 5, 2005 she signed a lease with Georgia Properties for Unit # 1W. She states that Unit #1W is configured as a professional office suite consisting of five offices. She states that she uses one of the offices for her practice and sublets the other four offices. She states that on the date of the accident, the plaintiff had an appointment with Dr. Bienenfeld who shared one of the offices in the suite. Ms. Bramos states that Unit #1W is on the ground floor of 275 Central Park West but cannot be accessed from the main lobby on Central Park West. The suite must be accessed via a separate entrance to the building on 88th Street. She states that the door to Unit #1W does not open into the street, rather it opens into a small vestibule at the end of which is a second door which opens onto the street. A patient must first pass through the exterior door, ascend a single step into the vestibule, and press the buzzer to obtain access to the Unit itself. She states that during the day the door from the street is usually left open. Ms. Bramos states that the radiator on which the plaintiff tripped is located in the vestibule between the door to Unit # 1W and the street. She states that if one enters the vestibule from the street the radiator is against the wall on the right hand side as one ascends the one step to the entrance of the Unit. She states that she was informed by Dr. Bienenfeld that his patient had fallen in the vestibule between the door to the Unit and the exterior 88th Street door to the building.

Ms. Bramos states that as long as she has been a tenant of Unit #1W, Georgia Properties and RCR have always controlled the and maintained the vestibule area including the radiator and the exterior door. She states that the defendants access the vestibule to paint and perform maintenance including work on the radiator without having to notify her in advance, whereas, they always provide notice prior to accessing the unit itself. She states that she was informed by a superintendent that the vestibule is considered part of the building's lobby.

Counsel for third-party defendant asserts that Ms. Reeves complaint and verified bill of particulars alleges negligence on the part of the building owners in connection with the radiator near the entrance door in the vestibule area. Thus counsel contends that the complaint is insufficient to support a claim of common law indemnification because the third-party complaint does not allege any facts to support their claim against Ms. Bramos. Further, counsel clams that the radiator was in the vestibule area which they assert is part of the building's lobby and not part of the leased premises. For the same reason counsel also states that Ms. Bramos is not liable for contractual [*4]indemnification as the lease states that Ms. Bramos must only indemnify the landlord against liability arising from injury occasioned wholly or in part by any act or acts, omission or omissions of the tenant or for any matter or thing growing out of the occupation of the demised premises or of the streets sidewalks or vaults adjacent thereto. Counsel claims that as the radiator is outside the leased premises and as the owners have maintained the radiator since Bramos became a tenant, that under the contractual indemnification provision she is not liable for accident occasioned by the radiator in the lobby area of the building.

With respect to the cause of action for breach of contract for failure to maintain a policy of insurance in favor of the landlord, Ms. Bramos claims that there is no provision in the lease which requires her to maintain general liability insurance for the benefit of the landlord, and therefore, the cause of action for breach of contract must be dismissed.

In opposition to the motion, third-party plaintiff contends that the third-party defendant lacks standing to bring the motion because the third-party defendant has not yet answered the third-party complaint. In addition, counsel asserts that there are questions of fact that would preclude granting the motion to dismiss the third-party complaint at this time. In addition, counsel asserts that the motion is premature as discovery, including an EBT of the plaintiff, has not yet taken place. Counsel contends that without the deposition of the plaintiff there are factual questions that are yet to be resolved regarding the facts surrounding how and where her accident occurred at the premises. Further, counsel submits an affidavit from Mr. Ari Paul, the managing agent for Georgia Properties. In his affidavit dated June 19, 2012, he states that the vestibule in Unit # 1W is part of the demised premises of Unit #1W and it is used exclusively to gain access to Unit #1W. Counsel states that Mr. Paul's affidavit clearly raises a question of fact as to whether or not the vestibule area is part of the demised premises or part of the lobby of the building.

Upon review and consideration of the third-party defendant's motion, this court finds as follows:

Although the third-party defendants did not file an answer to the third-party complaint prior to making the motion, pursuant to CPLR 3211((f) a motion to dismiss a complaint for failure to state a cause of action may be brought before service of a responsive pleading and the motion extends the time to serve the responsive pleading until ten days after the service of notice of [*5]entry of the court's order. Therefore, the third-party plaintiff's contention that the third-party defendant has no standing to bring the within motion is without merit.

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Greer v National Grid, 89 AD3d 1059 [2d Dept. 2011]; also see Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]; Leon v Martinez, 84 NY2d 83[1994]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679[2d Dept. 2011]; Peery v United Capital Corp., 84 AD3d 1201 [2011]; Sokol v Leader, 74 AD3d 1180 [2d Dept. 2010]).

Generally, the test of the sufficiency of the complaint is whether it gives sufficient notice of the transaction, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments. (see JP Morgan Chase v J.H. Elec. of New York, Inc., 69 AD3d 802 [2d Dept. 2010]). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]; Sokol v Leader,74 AD3d 1180 [2d Dept. 2010]). When evidentiary material is considered" on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Basile v Wiggs, 98 AD3d 640 [2d Dept. 2012]).

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Matter of Chin, 79 AD3d 867[ 2d Dept. 2010] citing Leon v Martinez, 84 NY2d 83 [1994]). Here, third-party defendant asserts that the cause of action for contribution, common law indemnification, contractual indemnification and breach of contract must be dismissed based upon the terms of the lease and the averments of the plaintiff contained in her complaint and bill of particulars.

However, based upon the documents submitted including the affidavits of managing agent Ari Paul and Ms. Bramos as well as a copy of the lease between the parties, there is clearly a question of fact as to whether the vestibule area leading to the door to Unit #1W is a part of the leased premises or whether it is a lobby area controlled and maintained by the landlord. Here, lease provides that the tenant is required to indemnify the [*6]landlord for liability arising from injuries occasioned by acts or omissions of the tenant and for anything arising from the occupation of the demised premises. The third-party complaint along with the documentary evidence sufficiently alleges that Bramos was responsible for injuries which occurred as a result of the negligence of the tenant which occurred in portions of the demised premises. Here, the plaintiff has not yet been deposed as to her version of how and where the accident occurred. If it is found that the vestibule is considered to be part of the demised premises and if it is found that the accident occurred in the demised premises and was proximately caused by the negligence of the tenant, than the tenant would be responsible under common law indemnification and contribution and pursuant to the lease to indemnify the landlord.

Accordingly, this court finds that the documentary evidence submitted does not resolve all factual issues as a matter of law and does not conclusively establish a defense to the asserted claims. In view of the foregoing, it is hereby,

ORDERED, that the motion by the third-party defendant to dismiss the first two causes of action contained in the third-party complaint for indemnification and contribution for failure to state a cause of action is denied and it is further,

ORDERED, that the branch of the motion to dismiss the third cause of action which alleges breach of contract for failure to obtain liability insurance on behalf of the landlord is granted. The third-party plaintiff has not opposed that branch of the motion and the third-party plaintiff has failed to provide any documentation to show that the tenant was so obligated.

Dated: Long Island City, NY

September 28, 2012

______________________________

ROBERT J. MCDONALD

J.S.C.

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