Bour v 259 Bleecker LLC
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Bour v 259 Bleecker LLC 2011 NY Slip Op 32593(U) October 3, 2011 Supreme Court, New York County Docket Number: 101313/2009 Judge: Solomon 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. ANNEDON 101412011 [* 1] II\ 1259 BLEECKER LLC %,/ \,,/ MOTION DATE MOTION SEQUENCE NUMBER : 003 \ 1 , sm. NO. MOTION CAI.. NO. - PARTIAL SUMMARY JUDGMENT this motion tolfor '1 I PAPERS NUMBERED 1/7 Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits FILED OCT 04 2011 NEW YORK ' % e Y E 0 i= 0 5 sIT ION 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE u SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. Check one: ~~~~~ -. . .. . [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 55 FILED OCT 04 2011 Plaintiff, Index @,,,,w 13/09 COUNTY CLERKS OFFICE -against- DECISION and ORDER 259 BLEECKER LLC, Defendant. Jane S . Solomon, J.: Defendant moves for partial summary judgment dismissing plaintiff's claims f o r personal injury and for punitive damages and to strike plaintiff's jury demand. Plaintiff cross-moves for summary judgment, to compel discovery and for l e a v e to serve an amended bill of particulars. Defendant separately moves to quash two subpoenas, each dated May 11, 2011, served by plaintiff on Broadway Exterminating Co. (Broadway) and Metro Pest Control, Inc. (Metro). The motions and cross motion are consolidated for disposition and decided as noted below. Parties Plaintiff is the former tenant of apartment 22 (the Apartment) of a building (the Building) located at 259 Bleecker Street, New Y o r k , N.Y. pursuant to a residential-leasedated April 7, 2008 (the Lease). Building. Defendant is the owner of the Plaintiff alleges that she suffered from a bedbug infestation, incurred while she lived at the Apartment, causing 1 [* 3] her physical injury and property damage (bill of particulars, item 9). Plaintiff filed a note of issue on January 31, 2011, contending that, except for post-deposition document requests, discovery was complete, that medical reports were not required to be exchanged and that a physical examination of the plaintiff was not required. Parties Contentions Plaintiff alleges that she moved into the Apartment on April 7, 2008 (plaintiff E B T , at 41), pursuant to the Lease (id. at lo), and that she lived there until July 20, 2008. She asserts that, in mid-May, she noticed very large red itchy welts all over [her] body , that she initially thought that they were mosquito bites, but that after researching on the Internet, she came to believe that the b i t e s were the result of bedbugs (id. at 21-23). She further states that she called the landlord s office and that the building superintendent, Nick Iberhysaj (Nick), came over and sprayed t h e Apartment, b u t that she does not know what chemicals he used ( i d . at 24-27). Plaintiff contends that the infestation recurred and that Nick sprayed the Apartment again, b u t that when she had a house guest over, she observed a bedbug crawling on her friend and later saw about 15 bedbugs ( i d . at 32-33). She states that she contacted defendant, advising it of the condition and that she 2 [* 4] moved o u t of the Building (id. at 36-41), and she had her possessions (the Property) removed and destroyed, due to her concern that the property might be infested. Plaintiff states that she did not seek a n y medical attention and has no residual physical injury (id. at 44, 56). She further states that she used over-the-counter topical ointments and has not seen any mental health professional (id. at 44, 46, 5 7 ) . Plaintiff hired an entomologist, Richard Cooper (Cooper), to examine the Apartment (id. at 47). Cooper alleges that he went to the Apartment on October 29, 2008 and that the Apartment was infested with bedbugs, which he believes predated plaintiff's entry into the Apartment in April 2008 (Cooper affidavit, 6). ¶¶ 3, In his report, Cooper stated that he observed numerous bedbugs throughout the Apartment, mainly in the living room and He inferred from these bedroom, near hot water risers. observations that the bedbugs had originated from other apartments in the Building and come through the pipes, rather from plaintiff's Property, which had fewer bedbugs. Defendant alleges that it sprayed apartments in the Building when necessary (Nick EBT, at 13) and, specifically, that Nick sprayed the Apartment twice, but never found any physical evidence of bedbugs there ( i d . at 31-32). It also states that it obtained the chemicals f o r spraying from Broadway, a licensed 3 . - . . ... .. . [* 5] exterminator (Vergara EBT, at 18) and that it had building-wide preventative spraying done in November and December 2007 by Metro, a licensed exterminator ( i d . at 30, 46). Proposed Amended Bill of Particulars and P o s t N o t e of Issue Di acovery Initially, plaintiff seeks to amend her bill of particulars. However, she has failed to annex a copy of a proposed bill of particulars and, therefore, the court cannot judge the merits of the proposed amended bill of particulars and, consequently, this portion of her cross motion is denied. Plaintiff also seeks additional discovery in her cross motion, made on May 19, 2011, more than t h r e e and a half months after the note of issue was filed on January 31, 2011. Generally, post note of issue discovery is inappropriate (Leon v T c h a i k a R e n e w a l Co., 225 AD2d 390 [lst Dept 19961; Price v Bloomingdale's, 166 AD2d 151 [lst Dept 19901). Plaintiff had an adequate opportunity to obtain discovery, no unusual circumstances have been shown and the court declines to compel defendant to provide additional post note of issue discovery and denies that portion of plaintiff's cross motion. Summary Judgment A party seeking summary judgment must m a k e a prima facie case showing that it is entitled to judgment as a matter of law 4 [* 6] by proffering sufficient evidence to demonstrate the absence of any material issue of fact ( A l v a r e z v Prospect Hosp., 68 NY2d 320, 324 [1986]). If the movant fails to make this showing, the motion must be denied ( i d , ) . Once the movant meets its burden, then the opposing party must produce evidentiary p r o o f in admissible form sufficient to raise a triable issue of material fact ( Z u c k e r m a n v City of N e w Y o r k , 49 NY2d 557, 562 [1980]). In deciding the motion, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt as to the existence of a material issue of fact (Dauman Displays v M a s t u r z o , 168 AD2d 204, 205 [lst Dept 19901, lv dismissed 77 NY2d 9 3 9 [1991]). Premises Liability Generally, a landowner must act as a reasonably prudent person in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury, the potential seriousness of injury and the burden of avoiding the r i s k ( P e r a l t a v H e n r i q u e z , 100 NY2d 139, 144 [2003]). Additionally, a party must be aware of the alleged defective or dangerous condition, either through having created it, actual knowledge of the condition or constructive notice of it through the defect s visibility f o r a sufficient amount of time prior to the accident to enable a defendant to discover and remedy it 5 [* 7] (Gordon v Amesican Museum of N a t u r a l History, 67 NY2d 836, 837 [1986]) . Plaintiff contends that there was a bedbug infestation, that defendant knew or should have known of it, that i t s remedial and preventative spraying w e r e inadequate and that, as a result of this condition, she suffered personal injury and damage to the P r o p e r t y and, therefore, s h e seeks summary judgment. However, defendant has contested the existence of the infestation in the Apartment and its extent in the Building as a whole ( N i c k EBT, at 17) and has asserted that i t s spraying was adequate. Since the court must accept the non-moving party s factual allegations as true f o r the purpose of deciding the motion, the degree of infestation and the adequacy of defendant s spraying are, at best, contested issues of material fact and the portion of plaintiff s cross motion that seeks summary j u d g e m e n t is denied. P u n i t i v e Damages Generally, a claim for punitive damages must show much more than individually sustained wrong . . . [rather , it must show] pervasive and grave misconduct affecting the public generally ( F a b i a n 0 v Philip Morris Inc., 54 AD3d 146, 150 [lst Dept 20081, c i t i n g W a l k e r v S h e l d o n , 10 N Y 2 d 401, 406 [1961]; s e e also Rocanova v Equitable L i f e A s s u r . S o c y . of U . S . , 8 3 NY2d 603, 613 [1994]). 6 [* 8] Plaintiff has not presented evidence of pervasive or grave misconduct of a quasi-criminal nature aimed at the public in general sufficient to sustain a claim for punitive damages and, accordingly, the portion of defendant's motion that s e e k s to dismiss plaintiff's claim for punitive damages is granted ( F a b i a n o , 54 AD3d at 150). Personal Injury A party p l a c e s her physical and mental condition at issue by commencing an action and seeking compensation for damages f o r these injuries and must, therefore, provide appropriate authorizations for medical records and submit to a medical examination (Cynthia B. v N e w R o c h e l l e Hosp. Med. Ctr., 60 NY2d 452, 456-457 [1983]; Hoenig v Westphal, 52 NY2d 605 [1981]; AbdaIla v M a z Z Taxi, Inc., 66 A D 3 d 803, 804 [ 2 d Dept 20091). Plaintiff failed to s u p p l y any medical authorizations or to submit to any medical examination. She contends that since there was no medical treatment and no residual physical injury (plaintiff EBT, at 44, 46), such discovery is unnecessary. However, since p l a i n t i f f sought recovery for alleged emotional damages, her psychological condition was placed in issue (AbdaLla, 66 A D 3 d at 804). To the extent that plaintiff has stated that there was no injury, she may not seek recovery. Therefore, the portion of defendant's motion that seeks dismissal 7 [* 9] of plaintiff's claim f o r personal injury is granted. Jury Waiver C l a u s e The Lease contains a j u r y waiver clause (the Jury Waiver Clause) that states as follows: " 2 4 . Jury T r i a l and Counterclaims. Landlord and Tenant agree not to use their right to a T r i a l by J u r y in any action or proceeding brought by either against the other, for any matter concerning this Lease or the Apartment. This does not include actions f o r personal injury o r property damage." [bold in original] Generally, "by written agreement parties may expressly waive their right to a jury trial on any claim" ( T i f f a n y a t Westbury Condominium v Marelli Dev. Coxp., 34 AD3d 791, 791 [Zd Dept 20061). Moreover, Joinder of legal claims, which are triable by jury, with equitable claims has been held to constitute a waiver of the right to demand a j u r y trial, if the claims arise from the same transaction (id. at 792; W i l l i s R e Inc. v Hudson, 29 AD3d 489 [lst Dept 20061). However, in this action, while plaintiff h a s sought recission, an equitable remedy (Symphony S p a c e v Pesgola Props. , 8 8 NY2d 466, 485 [1996]), the Jury Waiver Clause explicitly states that it "does not include actions for personal injury or property damage." The court should interpret a contract provision in accordance with its plain language ( W . W . W . Assoc. v 8 [* 10] G i a n c o n t i e r i , 77 N Y 2 d 157, 162 [1990]). The plain language of the c l a u s e indicates the parties' intention not to waive a jury trial for personal injury or property damage. The court has previously dismissed the plaintiff's claim for personal injury damages. Accordingly, the portion of defendant's motion that seeks to strike plaintiff's demand f o r a trial by jury is granted to the extent of striking the jury demand except for plaintiff's claim f o r property damage. Subpoenas Plaintiff i s s u e d subpoenas to Metro and Broadway seeking the entire extermination f i l e for the Building from January 1, 2007 through the present. Plaintiff asserts that it learned of Broadway at defendant's deposition on November 1, 2010 a n d states t h a t defendant has not provided discovery as to records (Sciangula affirmation dated June 3, 2011, ¶¶ 10-11). The subpoenas are overbroad (Rodriguez v Crescent C o n t r . C o r p . , 305 AD2d 215 [lst Dept 2 0 0 3 1 ; Grotallio v S o f t Drink L e a s i n g C o r p . , 97 AD2d 383 [lst Dept 19831) In opposing the motion, plaintiff offers no explanation as to why it seeks extermination records from January 1, 2 0 0 7 to the present, or t h e relevance of such records to plaintiff's complaint that her apartment was infested from April through July 2008. The subpoenas are being improperly used as a discovery device to 9 [* 11] belatedly secure what plaintiff's counsel failed to obtain in pretrial' disclosure ( S o h o Generation of N.Y. v T r i - C i t y I n s . Brokers, 236 A D 2 d 276, 277 [lst Dept 19971; Mestel Masterson & Judd, 2 1 5 A D 2 d 329, 3 2 9 - 3 3 0 & Co. v Smythe [Ist Dept 19951). It is neither the defendant's n o r the Court's role to "\cull the good from the bad"' (Soho G e n e r a t i o n , 236 A D 2 d at 2 7 7 , q u o t i n g Grotallio, 97 A D 2 d at 383). Consequently, defendant's motion to quash the subpoenas is granted. It is, therefore, ORDERED that the portion defendant's motion t h a t seeks to dismiss plaintiff's claims f o r personal injury and punitive damages is granted; and it further is ORDERED that the portion of defendant's motion that seeks to strike plaintiff's jury demand is granted to the extent of striking said demand except as to plaintiff's claim f o r p r o p e r t y damage, and as to said claim, is denied; and it further is ORDERED that plaintiff's cross motion for sumnary judgment, to compel discovery and to amend her bill of particulars is 10 [* 12] Exterminating Co. is g r a n t e d ; and it f u r t h e r is ORDERED t h a t counsel shall appear f o r a pre-trial conference in P a r t 55 on October 31, 2011 a t 2 PM. Dated: &f3 , 2011 ENTER : FILED OCT 04 2011 NEW YORK COUNTY CLERK'S OFFICE 11
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