Ospina v Long Is. Indus. Group One LLC

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Ospina v Long Is. Indus. Group One LLC 2011 NY Slip Op 32644(U) October 3, 2011 Supreme Court, Nassau County Docket Number: 5619/08 Judge: Roy S. Mahon 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. [* 1] S2#J SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ROY S. MAHON Justice TRIAUIAS PART 6 JORGE OSPINA, INDEX NO. 5619/08 Plalntiff(s), MOTION SEQUENCE NO. - against LONG ISLAND INDUSTRIAL GROUP ONE LLC and CAMMEBY' S MANAGEMENT COMPANY LLC CAMMEBY' S MANAGEMENT COMPANY OF LONG ISLAND, LLC MOTION SUBMISSION DATE: July 27, 2011 Defendant(s). The following papers read on this motion: Order to Show Cause Affrmation in Opposition Reply Affrmation 3212 granting Upon the foregoing papers , the motion by defendants for an Order pursuant to CPLR these defendants summary judgment and dismissing the complaint , is determined as hereinafter provided: This personal injury action arises out of an incident that occurred on April 14 , 2005 at approximately 2:00 pm at the premises located at 575 Underhil Avenue, Syosset , New York. At that time, the plaintiff who was employed by the Third- party defendant Quest Diagnostics, Inc. which was a tenant at the premises leased from the defendants was struck on the head by a piece of sheet rock which allegedly fell from the ceiling in the warehouse area. The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651 (Second Dept., 1994): It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law , offering suffcient evidence to demonstrate the absence of any material issues of fact (Winegradv. New York Univ. Med. Center 64 N. 2d 851 853, 487 N.Y. Zuckerman v. City of New York 49 N. 2d 557 , 562 316 , 476 N. 2d 642; [* 2] 2d 595, 404 N. E.2d 427 N. 718). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albanyv. McAuliffe 97 A.D. 2d 607 2d 944), but once a prima facie showing has been made, the 467 N. burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material (Alvarez v. Prospect Hosp., 68 issues of fact which require a trial of the action Zuckerman v. City of 2d 923, 501 N. E.2d 572; 2d 320, 324 , 508 N. 2d 595 404 N. E.2d 718). New York, supra 49 N.Y. 2d at 562 427 N. The Court initially observes that the submissions by the defendant of the deposition transcripts of James Mugford and John Piscitello , together with said witness ' respective post deposition affdavits together with the deposition transcript of the Third Party defendant' s witness Ellen Extract and the affdavit of Jeff Cohen establish in totality that the defendants have no records and/or evidence or knowledge that would establish what entity installed the sheet rock panel that allegedly fell nor that the defendants had any notice of a defective condition. In examining the liability of an out of possession landlord , the Court in Alnashmi v Certified , 2011 WL 4090289 stated: NYS2d Analytical Group, Inc., _AD3d Historically, cases arising under the common law concerning an out-of possession landlord' s " Control" generally spoke of two different concepts. The first, which applied in situations where the plaintiff was not actually on the premises when injured , described the abilty of the landlord to remedy a NY 278, 283- 284, 186 NE 785; 262 (see Appel v Muller, 534- 535, 15 NE 424). For example, Jennings v Van Schaick, 108 NY at NE 785 , the plaintiff was injured when part Appel v Muller 262 NY 278, 186 of a plate-glass window fell on him as he as walking on the sidewalk past the defendant' s building. A provision in the lease required the tenant to maintain the windows in good condition , but the landlord retained the right to enter the premises " at all reasonable hours " to make repairs. No convenant in the (id. at 283, 186 lease , however , obligated the landlord to make repairs 785). Nevertheless , the Court of Appeals found the landlord' s retention of the right to reenter to make repairs dispositive, holding that this right continued the landlord' s original duty (t)he landlord... had never parted so completely with possession and control that he had disabled himself from performing his duty of care... He continued under the duty to keep his building in a safe condition (id, at 283- , 186 NE 785; see Jennings v Van Schaick, 108 NY Co. v Evans Constr. of NY Corp., 257 at 534- 535, 15 NE 424; cf. Federal Ins. NYS2d 223). AF2d 508, 509, 684 dangerous condition The second concept of control , which generally was applied in cases concerning dangerous conditions within the leased portion of premises out-of- referred to the power to exclude people from the premises; an possession landlord had no duty of care with respect to the leased portion of 848, 345 premises (see Putman v Stout 38 NY2d 607 613- 618, 381 NYS2d Appel v 256 NY 287 , 176 NE 397); NE2d 319 (oveffuling Cullings v Goetz, Muller, 262 NY at 281- 282, 186 NE 785). In Cullngs, the Court of Appeals had held that even a landlord' s covenant in a lease to repair premises did not [* 3] on the premises , give rise to a duty in tort to people reasoning that the landlord lacked the power to exclude them: Liability in torts is an incident to occupation or control... By preponderant opinion, occupation and control are not reserved through an agreement that the landlord wil repair... The tenant and no one else may keep visitors away til the danger is abated , or adapt the warning to the need. The landlord has at most a privilege to enter for the doing of the work , and at times not even that if the occupants protests. The power of control necessary to raise the duty... implies something more than the right or liabilty to repair the It implies the power and the right to admit people to the premises premises. 176 and to exclude people from them " (Cullngs v Goetz 256 NY at 290, 397 (citations and internal quotations omited' emphasis added)). After Putman v 38 Stout, 848, 345 NYS2d 617, 381 NY2d at NE2d 319 four months later and the Court of Appeals decided Cullngs overruled this second concept of control was no longer utilzed. Now , control refers to Basso the abilty of an out-of possession landlord to remedy dangerous conditions, (see and it pertains to conditions on any portion of the leased premises 526 615 892 599 NYS2d Lesocovich v 180 Madision Aven. Corp. 81 NY2d 801 NYS2d 870; 1278, 1279, NE2d 1010; Abdellatif b Khoukas 21 AD3d most commonly in 896, 897, 544 NYS2d 90), AD2d 152 Haner v DeVito, (see Guzman v Haven Plaza Worlh 51; NYS2d 451 509 NE2d cases where the duty is imposed by status Hous. Dev. Fund Co. 59 Distribs. v Latham, 69 559, NY2d NY2d 516 231, 238 , 464 435, 451 NYS2d NE2d 193; Indeed , our 372). 574, 511 NYS2d right to reenter in order colleagues in the First Department utilze the phrase " AD3d 419, 86 Reader Revocable Trust, G. to inspect or repair (Ross v Betty (see Babich v R.G. T. Rest. 49) or a similar phraseology NYS2d 927 420, Johnson v Urena Servo Ctr. , 227 528; 439 440, 906 NYS2d Corp. 75 AD3d Helena v 300 Park Ave. , 306 AD2d 170 897; cf. NYS2d 325, 326, 642 AD2d (see 542), where we continue to use the term " control" NYS2d 172, 763 171741, 918 NYS2d 510). Gen Assoc. 82 AD3d 740, Sa/aices v Gar127 Pellegrino ov Walker Theatre, first blush , AD2d it would seem reasonable out-ofpossession landlord that retains a broad right of entry to inspect and repair Thus , at to find that an would be deemed to have retained suffcient control over the demised premises to subject it to liability under the common law. There is a lot to recommend such a holding. For example, at least when the dangerous (see e. g. Worlh Distribs. v Latham condition arises from a structural condition (see e. NE2d 193) or a design defect 435, 451 231 , 464 NYS2d 59 NY2d 559, 516 NYS2d 451 Guzman v Haven Plaza Hous. Dev. Fund Co. 69 NY2d 51), the landlord may have the greater incentive to ensure that the 509 NE2d condition is remedied , in order to protect its investment. As well , in may instances, the landlord has greater resources than the tenant to deal with expensive repairs. Finally, at least as a lease nears the end of its term , the tenant , whose interest in paying for expensive repairs diminishes, may be less likely to address premises conditions , thereby endangering people on the leased portion of the premises NYS2d 848, 345 NE2d 319). (cf. Putman v Stout 38 NY2d at 617- 618, 381 ', ............ [* 4] But we are not writing on a blank slate. The Court of Appeals has restated several times in recent years the general common- law rule of limited liabilty for out-of- possession landlords with respect to leased premises; an out-ofpossession landlord has a duty imposed by statute or assumed by contract or a course of conduct , and no merely through its " control" as that term is Rivera v Nelson Realty, LLC NY3d at 534, 825 NYS2d currently used (see 422 858 NE2d 1127; Chapman v Silber, 97 NY2d at 19- 20, 734 NYS2d 541 760 NE2d 115, 672 329; NE2d Juarez v Wavecrest Mgt. Team, 88 NY2d at 642, 649 NYS2d 135). Alnashml v Certified Analytical Group Inc., supra In regards to the foregoing, paragraph 49 of the lease in issue sets forth: 49th. LANDLORD' S REPAIRS, MAINTENANCE AND CLEANING: During the term of this lease, the Landlord shall make all structural repairs to the demised premises and shall maintain all parking lot lighting, except those repairs or maintenance which shall have been occasioned by the acts of omissions or commission of the Tenant, its agents, employees or invitees. Tenant shall promptly give written notice to Landlord with respect to any damage to the interior or exterior of the demised premises. Structural repairs are hereby defined to be and limited to repairs to the roof deck , to the bearing walls and foundations. The plaintiff in opposition to the defendants ' requested relief offer an expert' s affdavit of Nicholas Bellzzi, PE which sets forth that the sheet rock in issue that fell was improperly installed in that it was attached to wall/ceilng by paste rather than nails and/or staples. Based upon all of the foregoing and in the absence of a submission by the defendants that sets forth that the defendants as owners of the premises did not install the sheet rock there is an issue of fact which precludes the defendants ' requested relief. As such , the defendants ' application for an Order pursuant to CPLR ~3212 granting these defendants summary judgment and dismissing the complaint , is denied SO ORDERED. DATED: k........ /44 ENTEREf' OCT 062011 NASSAU COUi- coTY Cte

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