Johnston v Central Parking Sys.

[*1] Johnston v Central Parking Sys. 2008 NY Slip Op 50611(U) [19 Misc 3d 1109(A)] Decided on March 13, 2008 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 28, 2008; it will not be published in the printed Official Reports.

Decided on March 13, 2008
Supreme Court, New York County

Derek Johnston, Plaintiff,

against

Central Parking System, Central Parking System of New York, Inc., Central Parking System Realty of New York, Inc., Metropolitan 810 7th Avenue, LLC, RCPI Trust and Tishman Speyer Properties, L.P., Defendants.



100567/05

Carol R. Edmead, J.

MEMORANDUM DECISION

Defendant Metropolitan 810 7th Avenue, LLC ("Metropolitan") moves, and defendants Central Parking System, Central Parking System of New York, Inc., ("Central Parking") and Central Parking System Realty of New York, Inc. (collectively the "Central Defendants") cross move, for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint of plaintiff Derek Johnston ("plaintiff").

This is a personal injury action. Plaintiff has alleged that, as he was leaning against a railing in a parking garage located at 810 7th Avenue, New York, New York (the "subject garage") while waiting on a raised platform for his car to be retrieved, the railing gave way and he fell off the platform. He has sued the company that leased the garage (Central Parking) and the owner of the building where the garage was located (Metropolitan).

Plaintiff's Deposition Testimony

For five to six months in 2003, plaintiff parked his car at the subject garage on a monthly basis. In 2004, he parked in the subject garage approximately 5-10 times (pp. 17-18). While waiting for his car to be delivered, plaintiff was standing, leaning against the railing. The railing instantly gave way and he fell (pp. 29-30). The railing is a permanent metallic railing that has a horizontal piece and three vertical pieces (p. 31). On previous occasions when he used the garage, plaintiff sat in the waiting area and did not lean on the railing (p. 33). Plaintiff had not seen other customers lean on the railing in the past (pp. 33-34). When the railing gave way, the railing broke free completely from the wall and all harnesses, and the railing fell to the ground with the plaintiff at a very hard, fast velocity (p. 34).

Plaintiff was not aware of any complaints made to the parking garage regarding the [*2]guardrail before the date of the accident, and he never looked at the guardrail before the date of the accident (p. 121).

Deposition of Carlos E. Natalio

Carlos Natalio ("Natalio") is employed as assistant manager by Central Parking at the subject garage, and was employed there for four years at the time of his deposition (p. 66). His job is to check everything in the garage and the main floors. As soon as he reports to work, he checks the entire garage. He checks the ramp, checks for dirt and debris, he checks for cracks or any dangerous conditions in the garage, and if he sees that something is a problem, he reports it to Central Parking maintenance (pp. 6-8). At some time before plaintiff's accident, Central Parking maintenance did work on the guardrail; they tightened up the screws because the guardrail was loose (pp. 18-19). Prior to the date of plaintiff's accident, Natalio never observed or noticed the guardrail to be loose. Twice a week, he would hold and shake the guardrail to check to see if it was secure (p. 29). He recalls checking the guardrail the week before plaintiff's accident, and nothing was wrong (p. 31). And, he checked the guardrail at the point that it is connected to the wall (p. 32). No one with whom he worked told him the guardrail was loose at any time before plaintiff's accident (p. 35).

He observed plaintiff's accident. Plaintiff backed up and tripped. Plaintiff tried to hold onto the guardrail, and he fell (pp. 43-44). Plaintiff was holding onto the guardrail with his left hand, he tripped, and when he fell, he was not holding onto the guardrail. Plaintiff lost his balance (p. 45). The guardrail twisted out of position. The guardrail did not completely dislodge (pp. 47-48). The portion of the guardrail affixed to the wall dislodged, but not completely (pp. 50-51). One of the vertical bars closest to the soda machine was no longer screwed into the platform (p. 52). One or two of the screws affixing the guardrail fell out (p. 53). He was not aware of any other similar accidents involving the guardrail prior to plaintiff's accident (p. 81). No customers or employees of Central Parking ever complained about the guardrail prior to plaintiff's accident (p. 86).

Deposition of Henry Alexandre

Henry Alexandre ("Alexandre") is an area manager of Central Parking. His job is to supervise the garages and the employees and to report maintenance problems (p. 6). He visited the subject garage 2-3 times a week in the year 2004 (p. 11).

Deposition of Tomas Almenares

Tomas Almenares ("Almenares") is a retired carpenter working in the maintenance department for Central Parking (pp. 8-9). He performed repairs at the subject garage prior to plaintiff's accident (p. 12). Prior to plaintiff's accident, he never did any repairs to the guardrail, and never tightened or adjusted any of the screws for the guardrail. He is not aware of anyone doing so (p. 22). He was sent to repair the guardrail after plaintiff's accident (p. 24). Prior to his repair of the guardrail after plaintiff's accident, he never received any complaints about the guardrail, nor did anyone ever tell him that the guardrail needed to be tightened or secured. He is not aware of anyone from Central Parking performing any repair work on the guardrail prior to plaintiff's accident (p. 63).

Deposition of Jose E. Arbelaez

Jose Arbelaez ("Arbelaez") is the garage manager for Central Parking at the subject garage (p. 7). He never observed anything wrong with the guardrail. The employees used the [*3]telephone in the waiting area, and leaned on the guardrail, and nothing ever happened. No employee nor customer ever told him anything was wrong with the guardrail (16). He is not aware of any complaints about the guardrail at any time prior to plaintiff's accident. And, he never advised maintenance to tighten or secure the guardrail (p. 17). Prior to the date of plaintiff's accident, the guardrail had never been removed from where it had been before and up until the time of plaintiff's accident (p. 43). It was Central Parking's responsibility to repair something such as the broken guardrail (p. 50).

Meghann Gill's Deposition

Meghann Gill ("Gill") is the property manager for SL Green Realty Corp. (p. 7). SL Green purchased Reckson Associates, and Metropolitan was part of Reckson (pp. 9-10). According to the lease, the landlord had the right to reenter for purposes including inspection and repairs to HVAC, and structural repairs (p.20). Maintenance or repairs of the guardrail is not structural (p. 24). She is not aware of any complaints made about the customer waiting area at the subject garage (p. 28). There were no complaints in the tenant file concerning the guardrail (p. 29).

Metropolitan's Contentions

Plaintiff cannot prove that Metropolitan had actual or constructive notice of the defective condition that caused his accident. And, whatever caused the railing to fall was a latent defect that was not discoverable upon reasonable inspection.

Metropolitan did not have notice of whatever caused the railing to fall. Central Parking's garage manager acknowledged at his deposition that repairs and general maintenance of the garage, including the railing, were the responsibility of Central Parking, not of the building owner. He also stated that no representatives of the building owner ever inspected or repaired the railing, or told any of the garage staff what to do. And, Metropolitan's witness testified that the company did not have notice of any hazardous condition involving the railing. Plaintiff himself did not have any knowledge of any prior complaints.

Plaintiff has never served expert disclosure, or any other document, that suggests why the railing collapsed. During his deposition, Central Parking's assistant manager testified that twice a week he would shake the railing to make sure it was secure. Plaintiff did not detect any problem with the railing before the accident. The building's property manager testified that Metropolitan did not receive notice of any problem with the railing before plaintiff's accident.

Accordingly, the uncontradicted evidence establishes that whatever caused the railing to falter was a latent defect not discoverable upon reasonable inspection.

Central Defendants' Contentions

Central Defendants contend that they did not have actual or constructive notice of the allegedly defective condition that caused the accident, and whatever caused the railing to give way and fall was a latent defect not discoverable under reasonable inspection. The Central Parking witnesses testified that the Central Defendants had no notice of the defective or hazardous condition of the railing. Central Defendants, too, argue that plaintiff has never served an expert disclosure that would explain why the railing collapsed. There is no evidence of anyone being aware of any problems with the railing or having received complaints about the railing prior to plaintiff's accident. [*4]

Plaintiff's Opposition

Plaintiff first argues that the Central Defendants' cross motion for summary judgment is untimely. The Notice of Issue was filed on October 16, 2007, thus the motion for summary judgment should have been filed on or before February 13, 2008. The Central Defendants' cross motion for summary judgment was dated February 15, 2008 and mailed February 19, 2008, more than 120 days after plaintiff's Note of Issue was filed.

Plaintiff claims that the defendants caused and created the defective condition of the railing by improperly designing, constructing and installing the railing, and the railing failed for these reasons. As such, defendants are on notice of the dangerous and defective condition.

In addition, the record reflects that the screws connecting the end railing to the masonry wall had been loose in the past and three employees from Central Parking maintenance repaired the railing prior to this accident. And, defendants knew or should have known of the defective condition based on simple inspection.

According to the expert affidavit of Scott Silberman, P.E. ("Silberman"), an expert in the area of building safety, in his expert opinion, the railing system was maintained in violation of the Administrative Code of the City of New York §§ 27-127 and 27-128 as well as good and accepted safe building practice. The railing system was improperly designed and installed, and as such, the railing failed to safely withstand lateral and vertical loads as it should have been designed and installed to do so. The design and installation of the guardrail prior to this accident was not in accordance with applicable code and thus was maintained in violation of the afore-mentioned Building Codes and good and safe building practices.

Analysis

The Central Defendants' cross motion for summary judgment is denied as untimely. The merits of an untimely motion for summary judgment may be considered by the court only if the movant demonstrates "good cause for the delay in making the motion - a satisfactory explanation for the untimeliness" ( Brill v City of New York, 2 NY3d 648, 652, 781 NYS2d 261, 814 NE2d 431 [2004] ). The Central Defendants do no offer any explanation for the lateness of their cross motion.

Further, the local rules of Supreme Court, New York County and the rules of the individual justices of that county are available, among other places, on-line (www. nycourts. gov/ supctmanh/ UNIFRLrev. 2007.507.pdf, revised Feb. 28, 2006). The instant cross motion was untimely under this court's individual rules. This court's individual rules require summary judgment motions be made within 60 days of the filing of the Note of Issue. And, the instant cross motion was late even under the 120-day rule. That the cross motion was only a few days late under the 120-day rule does not eliminate the requirement that good cause be demonstrated ( see Milano v George, 17 AD3d 644, 792 NYS2d 906 [2005] ), and this court is not free, for the sake of judicial economy, to consider an untimely summary judgment motion in the absence of a showing of good cause ( see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 786 NYS2d 379, 819 NE2d 995 [2004]; Brill, supra ; Perini Corp. v City of New York, 16 AD3d 37, 789 NYS2d 29 [2005] ). The court reiterates, the Central Defendants have offered no explanation for the untimely cross motion.

Assuming arguendo that the court were to overlook the lateness of the cross motion, summary judgment would still be denied as to the Central Defendants and is denied as to [*5]Metropolitan.

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002] [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212[b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Opponent "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (Kornfeld v NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984]).

In the instant case, issues of fact exist as to who is responsible for the creation and/or design of the subject guardrail and whether the guardrail is - in fact - defective. And, plaintiff's expert Silberman affidavit has sufficiently raised questions of fact regarding the propriety of the design, and securing of the subject guardrail. There is a triable issue of fact with respect to whether the guardrail created a dangerous condition by its improper installation, and which defendant(s) created this dangerous condition.

Further, an issue exists as to whether Metropolitan breached a non-delegable duty arising as a result of a violation of the Administrative Code. Summary judgment dismissing the complaint is not warranted even assuming, in favor of Metropolitan that it did not have notice of [*6]any defect in the subject guardrail. For this garage that was open to the public, Metropolitan had a nondelegable duty to provide the public with reasonably safe premises.

Where a member of the general public, having been invited into a place of public assembly, such as the subject garage, is injured when he leaned on the guardrail allegedly improperly constructed, liability be imposed upon the owner based on the nondelegable duty of the owner to provide the public with a reasonably safe premises. This duty arises whenever the general public is invited into stores, office buildings and other places of public assembly - such as a parking garage. The owner of such premises is charged with the duty to provide members of the general public with a reasonably safe premises. Gallagher v St. Raymonds R.C. Church, 21 NY2d 554, 557, 289 NYS2d 401, 236 NE2d 632).

Even assuming that Metropolitan as owner of the subject premises net leased his property to the Central Defendants, without reserving to itself any right of re-entry or inspection and repair, Metropolitan may nevertheless be held responsible in tort, pursuant to its non-delegable duty for defects at the premises through the imputation of constructive notice, much as if it had retained a right of re-entry.

And, New York City Administrative Code §§ 27-127, 27-128 generally impose a nondelegable duty upon an owner to safely maintain its premises ( see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 516 NYS2d 451, 509 NE2d 51; Worth Distr., Inc. v Latham, 59 NY2d 231, 464 NYS2d 435, 451 NE2d 193). In the instant case, the Silberman affidavit raises an issue of fact as to whether the specific structural or design defect in the guardrail of the subject garage would give rise to liability under the Administrative Code.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion of defendant Metropolitan 810 7th Avenue, LLC for summary judgment is denied; and it is further

ORDERED that the cross motion of defendants Central Parking System, Central Parking System of New York, Inc., and Central Parking System Realty of New York, Inc. for summary judgment is denied.; and it is further

ORDERED that counsel for defendant Metropolitan 810 7th Avenue, LLC shall serve a copy of this order with notice of entry within twenty days of entry on all counsel.

This constitutes the decision and order of this court.

Dated:March 13, 2008

______________________________

Carol Robinson Edmead, J.S.C.