Gallo v Alan Poritz, Poritz & Assoc., LLC
Annotate this CaseDecided on November 22, 2011
Supreme Court, Richmond County
Salvatore Gallo, Plaintiff(s),
against
Alan Poritz, Poritz & Associates, LLC, JOSEPH SCHWARTZ, ONE STOP CHECK CASHING CORP., Defendant(s).
101034/2009
Philip G. Minardo, J.
The following papers numbered 1 to 5 were fully submitted on the 18th day of August, 2011.
Papers Numbered
Defendants JOSEPH SCHWARTZ's and ONE STOP
CHECKING CASHING CORP.'s Notice of Motion, dated
April 29, 2011, with Supporting Papers and Exhibits______________________ 1
Defendants ALAN PORITZ's and PORITZ & ASSOCIATES'
Notice of Cross-Motion for Summary Judgment, dated May 11,
2011, with Supporting Papers and Exhibits______________________________ 2
Plaintiff's Affirmation in Opposition, dated July 29, 2011, with
Exhibit __________________________________________________________ 3
Defendants JOSEPH SCHWARTZ's and ONE STOP
CHECKING CASHING CORP.'s Affirmation in Opposition to
Cross-Motion, dated July 8, 2011 _____________________________________ 4
Defendants ALAN PORITZ's and PORITZ & ASSOCIATES'
Reply Affirmation, dated August 16, 2011 ______________________________ 5
______________________________________________________________________________
Plaintiff SALVATORE GALLO claims that he sustained serious injuries on November 5, 2007 when he tripped and fell in the parking area of premises located at 160 Broad Street, Staten Island, New York (the "premises"). Plaintiff alleges that he was caused to fall as a result of a metal rod that protruded out of the asphalt on the parking area. [*2]
The premises are owned by defendant ALAN PORITZ. In January 1, 1998, ALAN PORITZ entered into a ten (10) year triple net lease of the premises with Staten Island Payment Center, Inc. (The demised premises includes the interior and exterior of 160 Broad Street as well as the subject parking area). Defendant JOSEPH SCHWARTZ (hereinafter SCHWARTZ) was a principal of Staten Island Payment Center, Inc. ("SIPC") at the time the lease was executed. SCHWARTZ not only executed the lease agreement on behalf of SIPC but also personally executed a Guaranty.
The terms of the lease provided that the tenant was to, among other things, maintain and repair the public portions of the premises (including the parking area) at its own cost and expense, and to hold ALAN PORITZ harmless from any lawsuit involving the premises other than a lawsuit based on the negligence of ALAN PORTIZ. The tenant was also obligated to obtain insurance naming ALAN PORITZ as an additional insured and to provide a defense and indemnify ALAN PORITZ in actions or proceedings brought against ALAN PORITZ related to the premises.
In 2002, approximately four (4) years after the lease was executed, SCHWARTZ purchased the business from his partners and changed its name from SIPC to ONE STOP CHECK CASHING, INC. ("ONE STOP"). SCHWARTZ, as successor in interest, continued to operate the business as its owner and sole shareholder and he remained obligated for all of the terms of the subject lease.
Defendants SCHWARTZ and ONE STOP move, pursuant to CPLR 3212, to dismiss plaintiff's complaint and to dismiss all cross-claims asserted by co-defendant ALAN PORITZ. Defendants ALAN PORITZ and PORITZ & ASSOCIATES, LLC have cross-moved, pursuant to CPLR 3212, to dismiss plaintiff's complaint and for summary judgment on its cross-claims against SCHWARTZ and ONE STOP for breach of contract and to dismiss all cross-claims asserted against them by SCHWARTZ and ONE STOP.
Dismissal of Plaintiff's Complaint
Plaintiff has not interposed any opposition to the motion of defendants ALAN PORITZ and PORITZ & ASSOCIATES LLC to dismiss plaintiff's complaint. Accordingly, summary judgment, pursuant to CPLR 3212, is granted in favor of defendants ALAN PORTIZ and PORITZ & ASSOCIATES, LLC dismissing plaintiff's complaint.
Defendants SCHWARTZ and ONE STOP move to dismiss plaintiff's complaint on the grounds that the plaintiff has failed to establish that SCHWARTZ and ONE STOP had actual or constructive notice of the alleged defective condition and/or the accident did not take place on the leased premises.
The "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" Chance v. Felder, 33 AD3d 645, 645-646 [2006]).
"It is well settled that in order to impose liability upon a landowner for injuries resulting from an allegedly defective condition, the plaintiff must establish that the landowner either created, or had actual or constructive notice of the defective condition" (Freeman v. Cobos, 240 [*3]AD2d 698, 699 [1997]). In order to constitute "constructive notice", the "defect must exist for a sufficient length of time before the accident so as to permit the defendant's employees to discover and remedy it"(Salvia v. Hauppauge Route 111 Associates, 47 AD3d 791[2008],DeGiacomo v. Westchester County Healthcare Corp., 295 AD2d 395 [2002]).
In opposition to the motion for summary judgment, plaintiff has produced color photographs which he testified were taken one day after his accident and which allegedly depict the metal rod protruding from the subject area. "Photographs may be used to prove constructive notice of an alleged defect shown in the photographs if they are taken reasonably close to the time of the accident, and if there is testimony that the condition at the time of the accident was similar to the condition shown in the photographs" (Gonzalez v. New York City Transit Authority, 87 AD3d 675, 677 [2011], quoting DeGiacomo, supra., at 395, see also, Salvia, supra.). Therefore, defendants SCHWARTZ and ONE STOP have failed to establish its prima facie entitlement to summary judgment as a matter of law because there remains questions of fact as to whether these defendants had actual or constructive notice of the alleged defect and/or whether plaintiff tripped and fell at the area in question.
Dismissal of Cross-Claims
As set forth above, the incident occurred on November 5, 2007 or approximately 2 months prior to the expiration of the subject lease. Defendant ALAN PORITZ seeks summary judgment on its cross-claims against defendants SCHWARTZ and ONE STOP pursuant to the terms of the lease.
It is uncontroverted that ONE STOP (with SCHWARTZ as its owner and sole shareholder) became obligated to all of the terms of the lease as successor in interest. For example, ONE STOP continued to pay rent, procure the requisite insurance, and perform maintenance and repairs to the premises (including the parking area) for a period of approximately five (5) years prior to the incident. Additionally, there has been no testimony or other evidence presented which establishes that the personal guaranty provided by SCHWARTZ in the original lease was ever terminated. Additionally, the lease renewal agreement between ALAN PORITZ and ONE STOP (which was also personally guaranteed by SCHWARTZ) is not relevant to this action as it became effective on January 1, 2008 which was after the date of occurrence of plaintiff's accident.
Therefore, that portion of the cross-motion for summary judgment by defendants SCHWARTZ and ONE STOP to dismiss any and all of the cross-claims asserted against them by defendant ALAN PORITZ is denied and, based on uncontroverted and undisputed documentary evidence, the cross-motion by ALAN PORITZ for summary judgment on his claim for breach of contract against defendants ONE STOP and SCHWARTZ.is granted.
Accordingly, it is
ORDERED that the portion of the motion for summary judgment by defendants JOSEPH SCHWARTZ's and ONE STOP CHECK CASHING CORP. to dismiss plaintiff's complaint is denied; and it is further
ORDERED that the portion of the motion for summary judgment by defendants JOSEPH SCHWARTZ's and ONE STOP CHECK CASHING CORP. to dismiss the cross-claims of defendants ALAN PORITZ and PORITZ & ASSOCIATES LLC is denied; and it is further
ORDERED that the portion of the motion for summary judgment by defendants ALAN [*4]PORITZ and PORITZ & ASSOCIATES LLC JOSEPH SCHWARTZ's to dismiss plaintiff's complaint is granted; and it is further
ORDERED that the portion of the motion for summary judgment by defendants ALAN PORITZ on his claim against defendants JOSEPH SCHWARTZ and ONE STOP CHECK CASHING CORP. is granted; and it is further
ORDERED that the Clerk enter Judgment accordingly.
This shall constitute the decision and order of the Court.
Dated: November 22, 2011
E N T E R,
/s/ Philip G. Minardo
HON. PHILIP G. MINARDO
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