Whaley v JJ Realty of NY, LLC

[*1] Whaley v JJ Realty of NY, LLC 2007 NY Slip Op 51451(U) [16 Misc 3d 1117(A)] Decided on July 25, 2007 Supreme Court, Queens County Weiss, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 25, 2007
Supreme Court, Queens County

Anne Whaley, Plaintiff,

against

JJ Realty of NY, LLC, YU HUA YE, Individually and d/b/a "SPRINT NAILS" and AO CHUN XU, Individually and d/b/a "SPRINT NAILS", Defendants.



21407/05

Allan B. Weiss, J.

The following papers numbered 1 to 29 read on this motion by defendant, JJ Realty of NY, LLC, for summary judgment dismissing the complaint and all cross-claims insofar as they are asserted against it; cross-motion by plaintiff for an order dismissing the answer of defendant, JJ Realty of NY, LLC, for failure to respond to plaintiff's Notice of Discovery and Inspection; and cross-motion by defendants, YU HUA YE, Individually and d/b/a "SPRINT NAILS" and AO CHUN XU, Individually and d/b/a "SPRINT NAILS" for summary judgment dismissing the complaint and all cross-claims insofar as they are asserted against them.

PAPERS

NUMBERED

Notice of Motion-Affidavits-Exhibits ............1 - 4

Notice of Cross-Motion-Affidavits-Exhibits ......5 - 8

Notice of Cross-Motion-Affidavits-Exhibits ......9 - 12

Answering Affidavits-Exhibits.................... 13 - 15

Answering Affidavits-Exhibits.................... 16 - 18

Answering Affidavits-Exhibits.................... 19 - 21

Replying Affidavits.............................. 22 - 24

Replying Affidavits.............................. 25 - 27

Replying Affidavits.............................. 28 - 29

Upon the foregoing papers it is ordered that these motions are determined as follows. [*2]

The plaintiff's cross-motion to dismiss defendant's,JJ Realty's, answer for failure to respond to certain discovery demand is denied as moot. After the plaintiff served this cross-motion, a pre-trial conference was held on June 15, 2007. At the conference, the parties executed a stipulation, which was a basis of an Order of the same date, that all discovery is completed.

The defendant's, JJ Realty's motion and the defendants' tenants' cross-motion for summary judgment dismissing the complaint are granted and the complaint is dismissed.

This is an action to recover for personal injuries plaintiff sustained on April 5, 2005 when she tripped, stumbled and fell due to an uneven and irregular floor at the premises owned by the defendant, JJ REALTY OF NY, LLC. (hereinafter JJ Realty), and leased, pursuant to a lease dated December 9, 2002, to YU HUA YE and AO CHUN XU (collectively referred to as tenants) to operate as a nail salon business, now known as "SPRINT NAILS". The plaintiff alleges that she stumbled due to an overly steep incline in a portion of the floor at the premises which condition is in violation of the New York City Administrative Code. She commenced this action against the owner and tenants at the property.

It is undisputed that 22 feet from the entrance into the premises, there is a height difference of about one inch between the front 22 feet of the premises and the rear portion of the premises, and that the transition between the spaces is accomplished by a 4 ½ inch long sloped section of floor running the entire width of the space. The defendant, JJ Realty, moves for summary judgment dismissing the complaint, insofar as it is asserted against, it on the ground that it did not create the condition, and, as an out-of-possession landlord, it cannot be held liable to the plaintiff for injury caused by a condition on the premises unless the condition is a significant structural or design defect in violation of a specific statutory safety standard. The tenants cross-move for summary judgment dismissing the complaint on the ground that they did not create the condition, that it had no obligation to repair the condition which is a structural defect and that, in any event, the condition is a "trivial defect" which is not actionable.

Generally, an out-of-possession owner/landlord is not liable for injuries arising out of a condition of the premises after the transfer of possession and control to a tenant unless the owner/landlord retains control over the premises or is contractually obligated to repair or maintain the premises (see [*3]Putnam v. Stout, 38 NY2d 607, 618 [1976]). The reservation of the right to reenter the premises for inspection and repair may constitute sufficient control for the imposition of liability where liability is based on a significant structural or design defect in violation of a specific statutory safety provision (see Reichberg v. Lemel, 29 AD3d 664 [2006]; Lowe-Barrett v. City of New York, 28 AD3d 721 [2006]; Sangiorgio v. Ace Towing & Recovery, 13 AD3d 433, 433-434 [2004]).

In support of its motion, defendant, JJ Realty, submitted the deposition testimony of its managing member, Joseph Vitulli, Jr., and of the plaintiff, as well as the report of Robert L. Schwartzberg, plaintiff's expert engineer. The defendant's, JJ Realty's evidence established, prima facie, its entitlement to summary judgment by demonstrating that JJ Realty did not perform any renovation or alteration at the premises prior to turning over possession and control to the tenants in December, 2002; that under the terms of the lease, JJ Realty's only maintenance obligation was in regard to structural repairs; and that the tenants were responsible for maintenance of the premises as well as preparing it for their intended use (see generally Couluris v. Harbor Boat Realty, Inc., 31 AD3d 686 [2006]; Belotserkovskaya v. Café "Natalie,", 300 AD2d 521 [2002]). In addition, the defendant's evidence is sufficient to demonstrate that the sloped area is not a significant structural or design defect in violation of a specific statutory safety provision, inasmuch as New York City Administrative Code § 27-377, upon which plaintiff relies, is not applicable in this case.

In opposition, plaintiff has failed to raise a triable issue of fact as to whether the condition is structural in that it affects the structural integrity of the building (see Torres v. West St. Realty Co., 21 AD3d 718, 721 [2005], lv. denied 7 NY3d 703[2006] or that it is in violation of a specific statutory provision applicable to this case. Essentially the plaintiff maintains that because the defendant failed to submit expert evidence to contradict her expert's opinion, questions of fact exist as to whether the condition is significant and a structural defect and in violation of multiple statutory provisions including Administrative Code § 27-377. Plaintiff's argument is without merit.

In the first instance, the applicability of a statute or Administrative Rule or Ordinance to a particular set of facts is a question of law for the court (see Mansfield v. Dolcemascolo, 34 AD3d 763 [2006]; Gaston v. New York City Housing Auth., 258 AD2d 220, 224 [1999]; Wirth v. De Vito, 74 AD2d 827 [1980]). [*4]

In this case, the configuration and location of the sloped area of floor, the alleged ramp, is undisputed. An examination of the photographs and the description of the premises by the parties and the plaintiff's engineer, demonstrate that the area at issue does not lead from the interior of the premises to an open exterior space, therefore it is not being used as an exit and Administrative Code is not applicable (see Administrative Code of the City of New York § 27-232; Parasconda v. Seaport Redevelopment Corp., N.Y.L.J., Jan. 6, 2003, page 27, col. 4 [Sup.Ct. Kings Co.] citing Gaston v. New York City Housing Authority, supra ). Plaintiff's claims in reliance upon the contents of Table 6-1 in § 27-377, applicable to "Moving Walkways", does not warrant a different result.

The engineer's reliance upon the design and construction guidelines contained in the American Society for Testing and Materials Standard, Designation F 1637, entitled Standard Practice for Safe Walking Surfaces, is also insufficient to raise a triable issue of fact in the absence of any evidence that these guidelines or recommendations reflect a violation of an adopted and implemented industry standard or generally accepted safety practice (see Walker v. Commack School Dist., 31 AD3d 752 [2006]; Capotosto v. Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384 [2003]; Carlino v. Triboro Coach Corp., 22 AD3d 624 [2005]; cf. Trimarco v. Klein, 56 NY2d 98 [1982]).

The defendants', tenants', cross-motion to dismiss the complaint insofar as it is asserted against them is also granted.

In support of their motion, the defendants contend, inter alia, that the condition is a trivial defect and not actionable. "[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury' " (Trincere v. County of Suffolk, 90 NY2d 976, 977 [1997]). There is no particular rule that a defect must be of a certain nature or configuration in order to be actionable. However, a trivial defects, which is neither a trap or nuisance, but of a kind over which a one might merely stumble, stub her toes, or trip, are not actionable (see Outlaw v. Citibank, N.A., 35 AD3d 564; Neumann v. Senior Citizens Ctr., 273 AD2d 452). Furthermore, differences in elevation of about one inch, without more, have been held to be trivial and, thus, non-actionable (see Trincere v. County of Suffolk, 232 AD2d 400, [1996] and cases cited therein, aff'd 90 NY2d 976 [1997]; Morris v. Greenburgh Cent. School Dist. No. 7, 5 AD3d 567 [2004], lv dismissed 3 NY3d 690 [2004]).

The defendants, tenants, established, prima facie, their [*5]entitlement to summary judgment by submitting competent evidence, including, inter alia, the deposition testimony of the defendant, tenant, Ye, the plaintiff and the photographs annexed to the engineer's report, which demonstrate that the sloped section of the floor is trivial in nature. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff testified that on the day of the accident the weather was clear; she went to Sprint Nails at about 11:00 a.m. or twelve noon; there was no water or any other substance on the floor; that she had been at Sprint Nails on several prior occasions and did not notice any change in the elevation of the floor or anything else unusual about the floor; she had never tripped or fallen before; she never complained to anyone about the condition of the floor; that the wall to wall carpeting did not have any tears or holes; and that she did not see why she stumbled until she was on the floor. She further testified that while she was on the floor, she saw a "slight" indentation in the floor. The defendant, Ye, testified that she was aware that the floor was a little uneven, however, no one had ever fallen or complained about the floor.

Based upon all of the above, and after an examination of the photographs of the premises, and noting the appearance of the floor together with the time, place, and the other relevant circumstances surrounding the accident, and viewing the evidence in the light most favorable to the plaintiff, affording her every favorable inference, it is apparent that the alleged defect in this case does not have any of the characteristics of a trap or nuisance and is too trivial to be actionable (see D'Arco v. Pagano, 21 AD3d 1050 [2005]; Mendez v. De Milo, 17 AD3d 328 [2005]). This is not a case where there is an abrupt vertical one inch difference in elevation (see e.g. Cohen v. Empire City Subway Co. (Ltd.), 1 Misc 3d 902(A)[2003],[Supreme Court, New York County]). On the contrary, the one inch difference in elevation is achieved by a sloped area of flooring 4 ½ inches in length (see Guercio v. New York Lerner Co., 63 NYS2d 664, 665 [1946] [Supreme Court, Westchester County], aff'd 273 AD 782 [1974], appeal and reargument denied 273 AD 816 [1948], citing Miller v. Gimbel Bros., 262 NY 107 [1933]).

Dated: July 25, 2007

DNo. 31........................

J.S.C.