Maliqi v 17 E. 89th St. Tenants, Inc.

[*1] Maliqi v 17 E. 89th St. Tenants, Inc. 2008 NY Slip Op 52688(U) [24 Misc 3d 1219(A)] Decided on December 23, 2008 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2008
Supreme Court, Bronx County

Jashar Maliqi, Plaintiff

against

17 East 89th Street Tenants, Inc., and DOUGLAS ELLIMAN PROPERTY MANAGEMENT, Defendants



23309/2006



For Plaintiff

Ylber Albert Dauti Esq.

299 Broadway, New York, NY 10007

For Defendant

Patrick Crowe Esq.

Crowe & Fassberg, PC

3000 Marcus Avenue, Lake Success, NY 11042

Lucy Billings, J.

I. BACKGROUND

Plaintiff sues to recover for personal injuries he sustained June 13, 2006, when a large mail cart being handled by an employee of defendant 17 East 89th Street Tenants, Inc., fell over onto plaintiff as he was engaged in his job of painting the baseboards in the hallway of a building defendants owned and managed. Plaintiff moves to reargue or renew his prior motion for summary judgment on liability, which the court denied in an order dated May 15, 2008. C.P.L.R. §§ 2221(d) and (e), 3212(b) and (e).

In opposition to plaintiff's prior motion for partial summary judgment, defendants cross-moved to dismiss his complaint because it demanded an amount of damages in violation of C.P.L.R. § 3017(c). Plaintiff then also cross-moved to amend his complaint in the form of his proposed amended complaint, which the court granted without qualification. C.P.L.R. § 3025(b). Based on that disposition, the court denied defendants' cross-motion in its entirety, as moot, and denied plaintiff's original motion, as premature until defendants answered the amended complaint. C.P.L.R. §§ 3025(d), 3212(a).

Separately from plaintiff's motion for reargument or renewal of his prior partial summary judgment motion, plaintiff now moves again for partial summary judgment and further seeks relief beyond what he sought in that prior motion. He now seeks dismissal of defendants' affirmative defenses, C.P.L.R. § 3211(b), as well as summary judgment on liability. C.P.L.R. § [*2]3212(b) and (e).

For the reasons explained below, the court decides plaintiff's separate motions as follows. In sum, the court denies plaintiff's motion for reargument or renewal of his prior summary judgment motion on liability. The court grants his new motion for summary judgment on defendant 17 East 89th Street Tenants' liability, but denies this latter motion insofar as it seeks a determination of defendant Douglas Elliman Property Management's liability and plaintiff's lack of comparative fault. The court also denies his companion motion to dismiss defendants' affirmative defenses, except that the court dismisses their fourth affirmative defense.

II.PLAINTIFF'S MOTION TO REARGUE HIS PRIOR MOTION FOR PARTIAL SUMMARY JUDGMENT

Motions for reargument must be based on facts or law overlooked or misapprehended in the prior decision. C.P.L.R. § 2221(d)(2); Mendez v. Queens Plumbing Supply, Inc., 39 AD3d 260 (1st Dep't 2007); Jones v. Budhwa, 23 AD3d 154 (1st Dep't 2005); C.R. v. Pleasantville Cottage School, 302 AD2d 259, 260 (1st Dep't 2003); Johnson v. New York City Commn. on Human Rights, 270 AD2d 186, 187-88 (1st Dep't 2000). Reargument is not a vehicle for arguments not raised in the initial motion. Ping Lee v. Consolidated Edison Co. of NY, 40 AD3d 481, 482 (1st Dep't 2007); Pryor v. Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 436 (2d Dep't 2005).

Nonetheless, plaintiff now complains that the court did not provide him the relief he sought in May 2008: the denial of defendants' cross-motion to dismiss his complaint and permission to serve and file his proposed amended complaint. Plaintiff did not seek simply to strike his demand for an amount of damages in his original complaint. C.P.L.R. § 3024(b). To eliminate a damages amount in a complaint, this remedy is permitted, but is used when it is sought, by either the plaintiff or the defendant, e.g., Boothe v. Lawrence Hosp., 188 AD2d 435 (1st Dep't 1992); Rice v. Vandenebossche, 185 AD2d 336, 337-38 (2d Dep't 1992); Raus v. White Plains Hosp., 156 AD2d 354 (2d Dep't 1989), or when the complaint is to be amended for other purposes as well. Robinson v. Caniff, 22 AD3d 219, 220 (1st Dep't 2005); Boothe v. Lawrence Hosp., 188 AD2d 435. Upon granting the relief that plaintiff sought here, the court lacked the authority to grant summary judgment before defendants answered the new complaint. C.P.L.R. § 3212(a). E.g., Gold Medal Packing v. Rubin, 6 AD3d 1084, 1085 (4th Dep't 2004). See Orenstein v. Brum, 27 AD3d 352, 353 (1st Dep't 2006).

Plaintiff urges, however, that the interest of judicial economy constrained the court to proceed then to decide plaintiff's motion for partial summary judgment, because his amended complaint, amending only his demand for relief, did not necessitate an amended answer. Nonetheless, plaintiff's service and filing of an amended complaint, as he sought and was permitted to do, entitled defendants to serve and file an amended answer. See C.P.L.R. §§ 3025(d), 3212(a). Once the court granted plaintiff's motion to serve and file his proposed amended complaint, summary judgment was impermissible when defendants had not yet answered the amended complaint. Gold Medal Packing v. Rubin, 6 AD3d at 1085. See Orenstein v. Brum, 27 AD3d at 352-53.

Plaintiff's interest in judicial economy, moreover, is belied by his new motion for partial summary judgment on the heels of his motion to reargue and renew the prior motion for partial summary judgment, accompanied by a motion to dismiss defendants' affirmative defenses, C.P.L.R. § 3211(b), relief beyond summary judgment on liability, as sought by that prior motion. C.P.L.R. § 3212(b) and (e). Given this new motion, surely the most efficient course of action now would be to decide his new motion for partial summary judgment, accompanied by his additional motion to dismiss defendants' defenses.

III.PLAINTIFF'S MOTION TO RENEW HIS PRIOR MOTION FOR PARTIAL SUMMARY JUDGMENT [*3]

A motion for renewal must be based on evidence establishing "new facts not offered" previously "that would change the prior determination," C.P.L.R. § 2221(e)(2), as well as "reasonable justification" for not offering these facts previously. C.P.L.R. § 2221(e)(3); Luna v. Port Auth. of NY & N.J., 21 AD3d 324, 325 (1st Dep't 2005). See CLP Leasing Co., LP v. Nessen, 27 AD3d 291, 292 (1st Dep't 2006); Garner v. Latimer, 306 AD2d 209 (1st Dep't 2003); Cuccia v. City of New York, 306 AD2d 2 (1st Dep't 2003). The only new facts bearing on the partial summary judgment plaintiff previously sought are that he amended his complaint as he sought, and defendants answered his amended complaint and included two new affirmative defenses. Since none of these events had occurred when the court previously denied plaintiff's motion for partial summary judgment, they could not change that prior determination. These facts do, however, bear on his new motion for partial summary judgment, again weighing toward simply proceeding to decide this new motion.

IV.TIMELINESS OF PLAINTIFF'S NEW MOTION FOR PARTIAL SUMMARY JUDGMENT

C.P.L.R. § 3212(a), cited in the May 2008 order, defines both the beginning of the period to move for summary judgment, "after issue has been joined," and the end of the period, "one hundred twenty days after the filing of the note of issue." Because plaintiff waited until well after filing the note of issue October 1, 2007, to move to amend the complaint December 20, 2007, returnable January 9, 2008, by the time defendants answered the amended complaint, well more than 120 days had elapsed since he filed the note of issue. Thus, to render his new motion for summary judgment timely, plaintiff needed to vacate the note of issue, which he neither sought nor agreed to.

The question now is whether this sequence of events constitutes "good cause" to extend plaintiff's time for his new summary judgment motion. C.P.L.R. § 3212(a); Filannino v. Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 (1st Dep't 2006); Perini Corp. v. City of New York, 16 AD3d 37, 39 (1st Dep't 2005). See Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 128 (1999). If untimeliness under C.P.L.R. § 3212(a) is not explained satisfactorily, that failure to show good cause requires denial of the motion, regardless of its merit. Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 (2004); Crawford v. Liz Claiborne, Inc., 45 AD3d 284, 285 (1st Dep't 2007); Transcare NY, Inc. v. Finkelstein, Levine & Gittlesohn & Partners, 23 AD3d 250, 251 (1st Dep't 2005); Asaro v. City of New York, 19 AD3d 167 (1st Dep't 2005).

The denial of plaintiff's prior motion because it was premature until after defendants answered the amended complaint implies that, after defendants answered the amended complaint, a summary judgment motion would be ripe for disposition. Given the course plaintiff charted, however, another summary judgment motion was already overdue at the same time the motion was premature, unless the note of issue was vacated, a course plaintiff opted not to pursue.

Plaintiff's original motion for summary judgment on liability, which was not accompanied by a motion to dismiss defenses, was timely, served 46 days after the note of issue was filed. Although plaintiff's subsequent cross-motion to amend his complaint required the court to deny his original motion for partial summary judgment, ultimately the court's order placed plaintiff in his predicament, where a summary judgment motion was simultaneously premature and overdue. See Mayer v. New York City Tr. Auth., 39 AD3d 349 (1st Dep't 2007); Bullard v. St. Barnabas Hosp., 27 AD3d 206 (1st Dep't 2006); Sarigul v. New York Tel. Co., 4 AD3d 168, 171 (1st Dep't 2004); Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 AD2d 891, 894 (1st Dep't 2003). Plaintiff had a means to extricate himself from his predicament through vacatur of the note of issue, but, given that the amended pleadings have not prompted a need to reopen disclosure, vacating the note of issue would serve no purpose other than rendering plaintiff's current motion for partial summary judgment timely. See Certified Elec. Contr. Corp. v. City of New York (Dept. of Transp.), 23 AD3d 596, 598

(2d Dep't 2005); Cooper v. Hodge, 13 AD3d 1111, 1112 (4th Dep't 2004). [*4]

The test for assessing plaintiff's showing of good cause is a reasonable standard, Bovis Lend Lease LMB, Inc. v. Butt, 47 AD3d 338, 340 (1st Dep't 2007), "a satisfactory explanation for the untimeliness," Brill v. City of New York, 2 NY3d 648, 652 (2004); Crawford v. Liz Claiborne, Inc., 45 AD3d at 286 (emphasis added), not an airtight, unassailable explanation. The explanation for plaintiff's untimeliness boils down to his belated request to delete his demand for an amount of damages from his complaint. To disallow his summary judgment motion on that basis would be unreasonable. Bovis Lend Lease LMB, Inc. v. Butt, 47 AD3d at 340. Moreover, the accompanying relief sought, dismissal of all affirmative defenses because they fail to state a meritorious defense, is timely. C.P.L.R. § 3211(b) and (e). The procedural history and current posture of this action, albeit caused in large part by plaintiff, therefore demonstrate good cause for the filing of his current motion at this juncture. Orenstein v. Brum, 27 AD3d at 353.

V.MERITS OF PLAINTIFF'S NEW MOTION FOR PARTIAL SUMMARY JUDGMENT A.Evidence

Defendants' witness Declan McGlynn, the superintendent of defendants' building, testified at his deposition that on June 13, 2006, plaintiff was employed as a painter at the building. Plaintiff testified at his deposition, without contradiction, that as he was kneeling down painting the baseboards in a hallway of the building he noticed Irving Matos exiting an elevator while pulling a tall, narrow mailbox on wheels. According to plaintiff, he then turned his attention back to the baseboards. McGlynn testified that defendant 17 East 89th Street Tenants owned the mail cart and employed both him and Matos, who was working within the scope of his job duties when moving the mail cart through the hallways. Matos testified at his deposition that the cart was over six feet tall with a handle on each side, which he regularly pulled through that hallway and the doorway from that hallway into the lobby. Thus he was familiar with the doorway saddle that he had to pull the cart over.

Matos recounted that plaintiff was injured when, as Matos pulled the mail cart through the doorway and lifted the cart over the saddle, the cart toppled over onto plaintiff. Matos had control over the cart's movement and then lost control as he maneuvered the cart over the doorway saddle. B.Defendants' Liability

Defendants, as the owner and manager of the building in which plaintiff was injured, assumed a duty to operate the building in a reasonably safe condition, Peralta v. Henriquez, 100 NY2d 139, 144 (2003); Kellman v. 45 Tiemann Assocs., 87 NY2d 871, 872 (1995); Branham v. Loews Orpheum Cinemas, Inc., 31 AD3d 319, 322 (1st Dep't 2006), aff'd, 8 NY3d 931 (2007), so that the building furnishings or employees, in the scope of their employment, did not endanger building invitees, such as plaintiff. E.g., Ross v. New York Quarterly Mtg. of Religious Soc. of Friends, 32 AD3d 251, 252 (1st Dep't 2006); Westbrook v. WR Activities-Cabrera Mkts., 5 AD3d 69, 73-74 (1st Dep't 2004); Pakkou v. Pergament Home Ctr., 269 AD2d 120 (1st Dep't 2000); Monge v. Home Depot, 307 AD3d 501, 502 (3d Dep't 2003). Defendants maintain that they are not liable for the owner's mail cart toppling over onto plaintiff because Matos was reasonably unaware that the conditions of the hallway, door saddle, and mail cart and its movement through the hallway and doorway would cause the cart to tip over as it did. In sum, defendants contend he lacked notice that handling the mail cart under those conditions would endanger persons nearby; hence, their injury was unforeseeable.

The dimensions of the owner's mail cart and Matos's conduct indisputably contributed to the mail cart toppling over. E.g., Havas v. Victory Paper Stock Co., 49 NY2d 381, 385-86 (1980); Figueroa v. Lazarus Burman Assocs., 269 AD2d 215, 217 (1st Dep't 2000); Hernandez v. New York Post Co., Inc., 205 AD2d 447 (1st Dep't 1994). See Garcia v. New York City Tr. [*5]Auth., 40 AD3d 399, 400 (1st Dep't 2007); Genen v. Metro-North Commuter R.R., 261 AD2d 211, 215 (1st Dep't 1999). Matos was aware of the mail cart's height, comparatively narrow width, weight, and degree of stability when pulled on wheels. Havas v. Victory Paper Stock Co., 49 NY2d at 385-86; Murphy v. Columbia Univ., 4 AD3d 200, 202 (1st Dep't 2004). He was equally aware of the narrow width of the hallway and doorway, the extent to which the doorway saddle obstructed the cart's horizontal movement, and any difficulties in changing its direction. Havas v. Victory Paper Stock Co., 49 NY2d at 385-86; Murphy v. Columbia Univ., 4 AD3d at 201-202; Kerins v. Vassar Coll., 15 AD3d 623, 625 (2d Dep't 2005); Griffin v. Sadaukas, 14 AD3d 930, 931 (3d Dep't 2005). The fact that the mail cart may not have tipped over or injured anyone previously does not alter Matos's notice of the conditions encountered when he moved the cart through the hallway. See Van Valkenburgh v. Philip Morris Cos., 304 AD2d 382, 383 (1st Dep't 2003); Figueroa v. Lazarus Burman Assocs., 269 AD2d at 217; Ohanessian v. Chase Manhattan Realty Leasing Corp., 193 AD2d 567 (1st Dep't 1993).

While defendants' duty to operate the building safely is limited to reasonably perceived risks of harm, Peralta v. Henriquez, 100 NY2d at 144; Sanchez v. State of New York, 99 NY2d 247, 252 (2002); DiPonzio v. Riordan, 89 NY2d 578, 583 (1997); Lee v. New York City Hous. Auth., 25 AD3d 214, 217 (1st Dep't 2005), as long as the risk of harm is foreseeable, defendants' liability does not depend on the particular way plaintiff's injury occurred. Sanchez v. State of New York, 99 NY2d at 252; Buckley v. Sun & Surf Beach Club, 95 NY2d 914, 915 (2000)); DiPonzio v. Riordan, 89 NY2d at 584; Kriz v. Schum, 75 NY2d 25, 34 (1989). None of the conditions that contributed to plaintiff's injury was unexpected: the mail cart, the hallway, the doorway saddle, the cart's movement when pulled through the doorway, plaintiff's presence on the far side of the doorway, and Matos's control over the cart's movement toward plaintiff. E.g., Havas v. Victory Paper Stock Co., 49 NY2d at 386. Matos was aware of them all. No unexpected conditions arose.

Moreover, in exercising control over the cart's movement, which caused plaintiff's injury, Matos testified that he pulled the cart while walking backward, obstructing his view of where he was pulling the cart; lifted it to clear the saddle; and turned the cart "at an angle" in a purposeful attempt to avoid hitting plaintiff. Aff. of Ylber Albert Dauti, Ex. F at 34. See Pichardo v. Urban Renaissance Collaboration Ltd. Partnership, 51 AD3d 472, 473 (1st Dep't 2008); Spence v. Lake Serv. Sta., Inc., 13 AD3d 276, 278 (1st Dep't 2004); Fields v. King Kullen Grocery Co., 28 AD3d 513, 514 (2d Dep't 2006); Howe v. Golub Corp., 240 AD2d 982, 983 (3d Dep't 1997). See Hernandez v. New York Post Co., Inc., 205 AD2d 447. Thus perceiving the risks, Matos undertook them and exposed plaintiff to them, when, in complete control of the circumstances, Matos could have refrained from lifting the precarious mail cart through the doorway, turning it awkwardly, or pulling it through the hallway altogether, until he assured that plaintiff was out of range. Bahan v. Green Bus Lines, 61 NY2d 922, 923 (1984); Torres v. American Bldg. Maintenance Co. of NY, 51 AD3d 905 (2d Dep't 2008); Lopez v. WS Distrib., Inc., 34 AD3d 759, 760 (2d Dep't 2006).

This undisputed evidence, principally from defendants' own witnesses, establishes that plaintiff's injury from Matos's operation of the mail cart was foreseeable. Bahan v. Green Bus Lines, 61 NY2d at 923; Havas v. Victory Paper Stock Co., 49 NY2d at 386; Connors v. Wilmorite, Inc., 225 AD2d 1040 (4th Dep't 1996). See Torres v. New York City Tr. Auth., 305 AD2d 165, 166 (1st Dep't 2003); Isler v. BUILD Inc., 293 AD2d 389, 390 (1st Dep't 2002); Galasso v. Wegman's Food Mkts., Inc., 53 AD3d 1145 (4th Dep't 2008); Holloway v. Willette Corp. of N.J., 280 AD2d 876, 877 (3d Dep't 2001). Hence, the evidence likewise establishes that Matos's failure to control the cart so as to avoid injuring plaintiff negligently caused his injury. Pichardo v. Urban Renaissance Collaboration Ltd. Partnership, 51 AD3d at 473; Spence v. Lake Serv. Sta., Inc., 13 AD3d at 278; Torres v. American Bldg. Maintenance Co. of NY, 51 AD3d 905; Lopez v. WS Distrib., Inc., 34 AD3d at 760. See Lopez v. 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d 230, 232 (1st Dep't 2002); Hernandez v. New York Post Co., Inc., 205 AD2d 447; England v. Vacri Constr. Corp., 24 AD3d 1122, 1124 n.3 (3d Dep't 2005). [*6] C.Plaintiff's Comparative Fault

On the other hand, Matos's testimony that plaintiff's continued presence in his position painting the baseboard necessitated turning the mail cart at an anglea maneuver beyond what was ordinarily necessary to pull the cart through the doorway along its regular routeraises an issue whether plaintiff was culpable in contributing to his injury. According to Matos, plaintiff was facing the mail cart as Matos approached with it, but plaintiff made no adjustment in his position, to move away from the cart's observable path toward him or to alleviate Matos's evident difficulty steering the cart away from plaintiff. Although Matos could have warned plaintiff, plaintiff presents no evidence that he reasonably failed to appreciate the risk of remaining in his kneeling position without such a warning. See Tagle v. Jakob, 97 NY2d 165, 169-70 (2001); Westbrook v. WR Activities-Cabrera Mkts., 5 AD3d at 71-72; England v. Vacri Constr. Corp., 24 AD3d at 1124; Cupo v. Karfunkel, 1 AD3d 48, 51 (2d Dep't 2003). Thus, despite Matos's failure to affirmatively advise plaintiff regarding the risk of remaining in place, plaintiff has failed to meet his burden to demonstrate that he was unaware of that risk such that he did not assume it through his own conduct. Maddox v. City of New York, 66 NY2d 270, 276 (1985); Abrams v. Port Auth. Trans-Hudson Corp., 39 AD3d 350 (1st Dep't 2007); Morlock v. Town of N. Hempstead, 12 AD3d 652, 653 (2d Dep't 2004); Gamble v. Town of Hempstead, 281 AD2d 391, 392 (2d Dep't 2001). See Boltax v. Joy Day Camp, 67 NY2d 617, 620 (1986); Bello v. Fieldhouse at Chelsea Piers, 18 AD3d 272, 274 (1st Dep't 2005); Clark v. Interlaken Owners, 2 AD3d 338, 339-40 (1st Dep't 2003); Trainer v. Camp Hadar Hatorah, 297 AD2d 731, 732 (2d Dep't 2002).

Plaintiff, to obtain summary judgment on his lack of comparative fault, also may establish that, even if he was negligent or assumed a risk of injury, his conduct did not lead to the event that produced his injury. Maheshwari v. City of New York, 2 NY3d 288, 295 (2004); Torres v. City of New York, 32 AD2d 347, 349-50 (1st Dep't 2006); Abrahamian v. Tak Chan, 33 AD3d 947, 949 (2d Dep't 2006). See Boltax v. Joy Day Camp, 67 NY2d at 620; Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 316 (1980); Ruiz v. 30 Real Estate Corp., 47 AD3d 432 (1st Dep't 2008). For plaintiff to establish that Matos's actions were the sole cause of plaintiff's injuries and plaintiff bore no responsibility, he must show that his encounter with the mail cart was not a foreseeable consequence of a situation to which his conduct contributed. See Butler v. Seitelman, 90 NY2d 987, 989 (1997); Kriz v. Schum, 75 NY2d at 35-36; Boltax v. Joy Day Camp, 67 NY2d at 620. If plaintiff's injury from not moving out of the mail cart's path was a foreseeable result of Matos maneuvering the cart in plaintiff's direction, however, plaintiff is partially at fault, unless his stationary position was unavoidable. E.g., Abrams v. Port Auth. Trans-Hudson Corp., 39 AD3d 350; Shutak v. Handler, 190 AD2d 345, 348-49 (1st Dep't 1993). See Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632, 636 (1988); Emanuel v. Sheridan Transp. Corp., 10 AD3d 46, 57-58 (1st Dep't 2004); Toyos v. City of New York, 304 AD2d 319, 320 (1st Dep't 2003); Gross v. New York City Tr. Auth., 256 AD2d 129, 130-31 (1st Dep't 1998).

Here, plaintiff has shown neither the unforeseeability of being hit by the cart if he remained in place, nor that his stationary position was unavoidable, due the lack of time after the cart's movement toward him was observable, or otherwise. E.g., Abrams v. Port Auth. Trans-Hudson Corp., 39 AD3d 350; Centeno v. Regine's Originals, 5 AD3d 210, 211 (1st Dep't 2004); Westbrook v. WR Activities-Cabrera Mkts., 5 AD3d at 71-72; Newman v. Consolidated Edison Co. of NY, Inc., 35 AD3d 824, 825 (2d Dep't 2006). See Skibinski v. Salvation Army, 307 AD2d 427, 428 (3d Dep't 2003); Warren v. Town of Hempstead, 246 AD2d 536, 537 (2d Dep't 1998); Laylon v. Shaver, 187 AD2d 983, 984 (4th Dep't 1992). Therefore, while Matos's negligent handling of the mail cart was a cause of plaintiff's injury, plaintiff has not sustained his burden to establish that Matos's conduct was the sole cause and that plaintiff's own culpable conduct did not contribute to the mail cart veering off course and injuring him. Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993); Abrams v. Port Auth. Trans-Hudson Corp., 39 AD3d 350; Holloway v. Willette Corp. of N.J., 280 AD2d at 877-78; Pisciotta v. Parisi, 155 AD2d 422 [*7](2d Dep't 1989). See Pinto v. Selinger Ice Cream Corp., 47 AD3d 496, 497 (1st Dep't 2008); Turner v. City of New York, 290 AD2d 336 (1st Dep't 2002); Murray v. New York City Hous. Auth., 269 AD2d 288, 290 (1st Dep't 2000).

VI.PLAINTIFF'S MOTION TO DISMISS DEFENSES

Even in the context of a motion for summary judgment by plaintiff, it is not defendants' burden to establish their affirmative defenses by admissible evidence, but plaintiff's burden to establish that they are legally inapplicable. E.g., Vita v. New York Waste Servs., LLC, 34 AD3d 559 (2d Dep't 2006); Santilli v. Allstate Ins. Co., 19 AD3d 1031, 1032 (4th Dep't 2005). To defeat a motion to dismiss their affirmative defenses, defendants only need allege the factual elements of their defenses, whether in their answer or as supplemented by affidavits or other admissible evidence. E.g., Willett v. Lincolnshire Mgt., 302 AD2d 271 (1st Dep't 2003); 49-50 Assoc. v. Free-Tan Corp., 248 AD2d 128, 129 (1st Dep't 1998); Vita v. New York Waste Servs., LLC, 34 AD3d at 559-60. See Cron v. Hargro Fabrics, 91 NY2d 362, 366 (1998); Leon v. Martinez, 84 NY2d 83, 88 (1994); L. Magarian & Co. v. Timberland Co., 245 AD2d 69 (1st Dep't 1997).

Defendants' first and fifth affirmative defenses, which defendants added in their amended answer, claim that plaintiff is barred from recovering past and future lost wages and future medical expenses based on wage and medical expense levels in the United States, because plaintiff resides in the United States illegally and is subject to deportation. Plaintiff concedes, however, that his legal status is still to be determined. Therefore these defenses remain viable, but only for any future period that defendants ultimately prove plaintiff is an illegal resident of the United States and will be deported. Plaintiff still may recover lost wages and medical expenses based on levels in the United States for any period he has resided here. Balbuena v. IDR Realty LLC, 6 NY3d 338, 362 (2006); Public Adm'r of Bronx County v. Equitable Life Assur. Socy. of U.S., 192 AD2d 325 (1st Dep't 1993); Gomez v. F & T Int'l LLC, 16 Misc 3d 867, 873-74 (Sup. Ct. NY Co. 2007); Barahona v. Trustees of Columbia Univ. in City of NY, 11 Misc 3d 1035, 1038 (Sup. Ct. Kings Co. 2006). If plaintiff is ultimately subject to immediate deportation, conceivably he may be deported even by the time of the trial. Therefore, even the defense as to past lost wages remains viable if defendants prove these facts.

In seeking dismissal of defendants' second affirmative defense, that plaintiff has failed to mitigate his damages, he faults defendants for not supporting their claim by admissible evidence. As set forth above, plaintiff bears the burden to establish that this defense is legally inapplicable to any of the amended complaint's claims. Instead, plaintiff shifts the initial burden to defendants without any showing why plaintiff is not under any duty to mitigate his damages. See Balbuena v. IDR Realty LLC, 6 NY3d at 361; Murphy v. Columbia Univ., 4 AD3d at 203; Thompson v. Port Auth. of NY & N.J., 284 AD2d 232, 233 (1st Dep't 2001); Rio Mar Rest. v. New York State Div. of Human Rights, 270 AD2d 47, 48 (1st Dep't 2000). Even if defendant does not dispute that plaintiff's injuries prevent him from returning to his former work, plaintiff retains the duty to seek potential alternative employment and, if necessary, vocational rehabilitation. Thompson v. Port Auth. of NY & N.J., 284 AD2d at 233; Rio Mar Rest. v. New York State Div. of Human Rights, 270 AD2d at 48.

Plaintiff similarly faults defendants for not presenting evidentiary support for their third affirmative defense that plaintiff's culpable conduct contributed to his injuries. Given the disposition of his motion for summary judgment on his lack of contributory conduct, this defense obviously remains viable.

Defendants' fourth affirmative defense claims that C.P.L.R. § 1601 applies, without alleging any factual support for this claim. Plemmenou v. Arvanitakis, 39 AD3d 612, 613 (2d Dep't 2007); Petracca v. Petracca, 305 AD2d 566, 567 (2d Dep't 2003). Consequently, the court is at a loss to ascertain from whom defendants seek contribution or indemnification. The two defendants have answered and continued to defend this action jointly. See, e.g., Clark v. N-H [*8]Farms, Inc., 15 AD3d 605, 606 (2d Dep't 2005). They have not given the least hint of another potentially culpable party. Since plaintiff claims defendant 17 East 89th Street Tenants is vicariously liable for its employee Matos's negligence, defendants may not rely on C.P.L.R. § 1601(1) to apportion liability between them and 17 East 89th Street Tenants' employee. C.P.L.R. § 1602(2)(iv) bars defendants from disclaiming vicarious liability under C.P.L.R. Article 16 on the ground that 17 East 89th Street Tenants' employee is the tortfeasor. Faragiano v. Town of Concord, 96 NY2d 776, 778 (2001); Rangolan v. County of Nassau, 96 NY2d 42, 47 (2001); Guiga v. JLS Constr. Co., 255 AD2d 244, 245 (1st Dep't 1998); Rucker v. Allis, 288 AD2d 822 (4th Dep't 2001). These circumstances therefore establish that defendants' fourth defense does not apply here.

VII.CONCLUSION

Plaintiff has shown his entitlement to summary judgment on the liability of defendant 17 East 89th Street Tenants, Inc., through admissible evidence. C.P.L.R. § 3212(b); JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384 (2005); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003). Defendant 17 East 89th Street Tenants has failed to raise a factual issue regarding the owner's notice of conditions causing its mail cart to topple over while being handled by its employee Irving Matos and its contribution to plaintiff's injury in its building. Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004). The owner's employee Declan McGlynn, as superintendent of the building, supervised both its operations and its employee Matos.

While the undisputed evidence conclusively establishes that Matos's negligence contributed to plaintiff's injury, plaintiff has failed to demonstrate that co-defendant Douglas Elliman Property Management played any part, in supervising Matos or McGlynn, who were not the management's employees, in managing operation of the mail cart, or otherwise. Nix v. Yang Gao Xiang, 19 AD3d 227 (1st Dep't 2005); Bowie v. 2377 Creston Realty, LLC, 14 AD3d 457, 459 (1st Dep't 2005); Prenderville v. International Serv. Sys., Inc., 10 AD3d 334, 338 (1st Dep't 2004); Deluna-Cole v. Tonali, Inc., 303 AD2d 186 (1st Dep't 2003). Therefore factual issues remain on this defendant's liability. Accepting defendants' version of the facts as true and construing the evidence in the light most favorable to defendants, Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d at 315, factual issues also remain as to whether plaintiff's negligence contributed to the mail cart toppling over onto plaintiff.

Consequently, the court grants plaintiff's new motion for summary judgment on defendant 17 East 89th Street Tenants' liability, but denies the motion insofar as it seeks a determination of defendant Douglas Elliman Property Management's liability or plaintiff's lack of comparative fault. C.P.L.R. § 3212(b) and (e). For the reasons set forth above, the court denies plaintiff's motion for reargument or renewal of his prior summary judgment motion on liability. C.P.L.R. §§ 2221(d) and (e), 3212(b) and (e). The court likewise denies plaintiff's motion to dismiss defendants' affirmative defenses, except the court grants dismissal of their fourth affirmative defense of limited liability through contribution or indemnification. C.P.L.R. § 3211(b).

DATED: December 23, 2008

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Lucy Billings, J.S.C.