Rutherford v JDLC, LLC
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Rutherford v JDLC, LLC 2012 NY Slip Op 30065(U) January 9, 2012 Supreme Court, New York County Docket Number: 109416/2009 Judge: Ling-cohan 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] - NEW YORK COUNTY SUPREME COURT/OF THE STATE OF NEW YORK PART PRESENT: Index Number : 10941612009 36 INDEX NO. RUTHERFORD, ANN MOTION DATE VS. JDLC, LLC MOTION SEa. NO. SEQUENCE NUMBER : 002 MOTION CAL. NO. SUMMARY JUDGMENT Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... /, ' , 7 Answarlng Affidavits - Exhlbfta Replying Affidavits ,+ NEW YORK COUNTYCLERK'S OFFICE Dated: Check one: 0 FINAL DISPOSITION @NON-FINAL DISPOSITION Check if appropriate: DO NOT POST REFERENCE 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. [* 2] FILED S U P R E M E COURT OF THE STATE OF N E W YORK COUNTY OF N E W YORK: PART 36 ___-l__f_________ll__---_---------I JAN 13 201% X ANN RUTHERFORD, NEW YORK COUNTY CLERK'S OFFICE Plaintiff, Index No.: 1 0 9 4 1 6 / 0 9 -againstMotion Seq. No.: 0 0 2 JDLC, LLC, YAMASAK RESTAURANT LE FIGARO CAFk, I N C . , CORP. and DECP$ION/Orn Defendants. _________________________________ DORIS L I N G - C O W , -X J. : sACRGROUND Defendant JDLC, Inc. ( J D L C ) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and a l l CEOSS claims and/or counterclaims asserted as against it, and for summary judgment on i t s cross claim against co-defendants Yamasak Restaurant C O K ~ . (Yamasak) and L e Figaro C a f k , Inc. (Figaro), directing said co-defendants to defend and indemnify it in the underlying action based on theories of common-law and contractual indemnification. The facts of t h e underlying personal injury action were stated in this court's earlier decision, dated May 26, 2010, and will only be reiterated here as necessary. Such decision denied JDLC's prior motion seeking summary judgment on its cross claim f o r breach of contract and contractual indemnification from 1 [* 3] Yamasak and Figaro. This case involves a slip and f a l l at a restaurant owned by Yamasak and Figaro at a premises that they leased from JDLC. At her examination before trial (EBT), plaintiff testified that she saw a shiny substance that was water or grease on the stairs as she ascended them after her fall, and that she did not remember there being any structural issues or defects on those stairs. Plaintiff s EBT, at 71, 81. Plaintiff stated that the substance on the stairs was muddy, dirty and grayish in color (id. at el), and that she observed some water on the stairs. Id. at 13. Buck S. Lee (Lee), president of JDLC, was also deposed in this matter. According to Lee, the l e a s e between JDLC and Yamasak requires Yamasak, as the commercial tenant, to make repairs to the premises (Lee EBT, at 9-10), and that the only repairs JDLC ever made were repairs to the roof. I d . at 11. Lee further stated that he only visited the building twice a year, and that he never performed any repairs on the staircase where plaintiff fell. Id. at 13, 1 7 . Ross Isaacs (Isaacs), the restaurant manager for Yamasak and Figaro, testified for those defendants. Isaacs stated that the cleaning of the restaurant floors and the restaurant interior was the responsibility of the restaurant s dishwasher. at 18. Isaacs EBT, Further, Isaacs averred that h e did not have any knowledge of the particular staircase on which plaintiff 2 [* 4] allegedly fell, which leads from the main f l o o r to the restrooms in the basement, ever being cleaned. Id. at 18-19. According to Isaacs, he was only aware of those s t a i r s being swept, but never cleaned. Id. at 19. Isaacs outlined the cleaning procedures f o r the basement and bathrooms as follows: those f l o o r s would be mopped and cleaned in the morning prior to opening the restaurant, the kitchen would be cleaned in-between the day and evening shifts, and there were no procedures in place for cleaning the stairs where plaintiff f e l l . Id. at 23. Isaacs further testified that no one had swept or cleaned the stairs on the day that plaintiff f e l l . Id. at 2 4 . Isaacs also witnessed the accident, and averred that plaintiff fell because she was moving at a high rate of speed, she was not holding the handrail, and she lost her footing. Id. at 4 2 - 4 3 . Isaacs also stated that plaintiff was walking unsteadily as she approached the stairs prior to her f a l l . Id. at 62. According to the lease between JDLC and Yamasak: "Tenant shall, throughout the term of this lease take good care of the demised premises and the fixtures and appurtenances therein, and the sidewalks adjacent thereto, and at its s o l e cost and expense, make all non-structural repairs thereto and when needed to preserve them in good working order. 9r * * Owner or its agents shall not be liable f o r any damage to property of tenant or of others entrusted or to employees of the building, nor f o r l o s s of or damage to any property of tenant by theft or otherwise, nor f o r any injury or damage to persons or p r o p e r t y resulting from any cause whatsoever nature, unless caused by or due to the negligence of the owner, its 3 [* 5] agents, servants or employees.'' Motion, Ex. E. The Rider to the lease states, in pertinent p a r t : "Said-basement space shall be maintained by Tenant, at Tenant's expense, and the use thereof shall be at Tenant's own r i s k , without liability to landlord for damage to property o r injury to person or persons." Id. The Rider a l s o states that, if there is any conflict between the provisions of the main lease and the provisions in the Rider, the Rider prevails. Id. In opposition to that portion of J D L C ' s motion seeking to dismiss the complaint as against it, plaintiff argues that the lease provides that the "Owner shall maintain and repair the public portions of the building, both exterior and interior." Motion, Ex. E. Further, the lease also states: "Owner o r Owner's agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, a n d , at other reasonable times, to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonably desirable to a n y portions the building on which Owner may elect to perform, in the premises, following tenant's failure to make repairs or perform any work which Tenant is obligated to perform under this lease, or for the purpose of complying with laws, regulations and other directions of governmental authorities." Id. Plaintiff asserts that this presents a question of fact as to whether such obligation included the staircase in question. 4 [* 6] Moreover, plaintiff contends that an owner cannot escape liability f o r allowing nonstructural defects to exist in the premises. Also, plaintiff asserts that there were structural defects associated with the staircase, based on the affidavit of an expert. Opp., Ex. D. According to the e x p e r t , the following structural defects existed on the staircase where plaintiff f e l l , which, according to the expert, violate several provisions of the New Y o r k City Building Code (Building C o d e ) : 1. The top rises is approximately 20% higher than the next riser; 2. There is only one handrail associated with the stairway; 3. The handrail does not overlap the landing; and 4. There is a vertical post on the first step beneath the top landing onto which the sole handrail lies. Id. At her deposition, plaintiff testified that there were handrails on both sides of the staircase (Plaintiff's EBT, at 59, 6 3 ) , that, at the time of her f a l l , she was holding on to the handrail on her left side (id. at 68, 7 0 ) , that she fell on the fifth or sixth stair from the top of the staircase (id. at 6 7 ) , and that she did not know what caused her to f a l l , j u s t that her right foot slipped (id. at 70). Further, according to her deposition testimony, plaintiff averred that the lighting on the stairs was dim and b a d l y lit 5 [* 7] (Plaintiff's EBT, at 61), and that the staircase was dark (id. at 69). Although plaintiff said that she did n o t know exactly what caused her t o fall, she noted that there was debris on the stairs, and that, when she was being assisted back up the stairs after her fall, she looked directly at each step, which is when she noticed that t h e r e was water or grease on the stairs. 69- 71. I d . at At the time of the accident, the restaurant had been closed f o r approximately one-half hour. Lee testified that lighting of the staircase was the responsibility of the tenant. Lee's EBT, at 19. Isaacs stated that, prior to plaintiff's accident, other people had fallen down the stairs and there were complaints about the steepness of the stairs. Isaacs' EBT, at 64. Further, according to Isaacs, he told the owner of Yamasak and Figaro about the complaints, b u t the owner said that it was not his responsibility. Id. Plaintiff also a r g u e s in her opposition that JDLC's motion is defective in that it fails to attach a copy of the pleadings and plaintiff's deposition transcript and, therefore, must be summarily denied. However, the court notes that the copy filed with the court does contain those documents. Yamasak and Figaro opposed that portion of JDLC's motion seeking contractual and common-law defense and indemnification from them, arguing that, as stated in this court's previous 6 [* 8] motion, such relief must be denied if there is a question of fact as to whether the accident was caused by a defect in the stair, due to the negligence of JDLC or Yamasak and Figaro. Yamasak and Figaro assert that those factual questions remain, even though depositions and discovery have now taken p l a c e . Yamasak and Figaro point to plaintiff's bill of particulars, in which she alleges that there was a hole in the stairs (Opp., Ex. B), as well as to the fact that JDLC has failed to rebut plaintiff's expert regarding lighting and handrail defects on the staircase. In reply to Yamasak and Figaro's opposition, JDLC states that the Rider to the l e a s e specifically states: "Tenant has examined and inspected the demised premises. Tenant agrees to accept possession of the demised premises 'AS IS' except as otherwise expressly provided herein. Landlord shall not be responsible for making any improvements, alterations or repairs therein or for spending any other money to prepare the demised premises for tenant's occupancy, except as expressly provided herein. All other improvements and alterations to the demised premises prior to or at any time after the commencement of the term of this lease shall be made at tenant's sole cost and expense, in accordance with the provisions of t h i s lease." Motion, Ex. E. JDLC argues that these lease provisions vitiate any argument by co-defendants to place liability for maintenance of those stairs on JDLC. JDLC has replied to plaintiff's opposition, arguing that plaintiff has failed to raise any questions regarding JDLC's liability. According to JDLC, plaintiff alleges that her fall 7 [* 9] was due to a slimy substance on the s t a i r s , and affirmatively states that there were no structural defects on the steps. Therefore, JDCL maintains that, as an out-of-possession landlord, it cannot be held responsible for non-structural maintenance conditions which it did not cause nor of which it had no actual or constructive notice. DISCUSSION "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering s u f f i c i e n t evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted] ." (1" Dept 2006). Santiago v F i l s t e i n , 3 5 AD3d 184, 185-186 The burden then shifts to the motion's opponent to "present evidentiary f a c t s in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of A r t , 27 AD3d 227, 228 ( l S t Dept 2006); see Zuckerman v City of N e w Y o r k , 4 9 NY2d 557, 562 (1980). If there is any doubt a s to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba E xtruders, I n c . v Ceppos, 46 NY2d 223, 231 (1978). That portion of JDLC's motion seeking summary judgment dismissing the complaint as against it is granted. "An out-of-possession landlord is not liable for personal injuries sustained on the premises unless the landlord retains control of the property or is contractually obligated to perform maintenance and [* 10] repairs . . . . Although a reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession landlord f o r i n j u r i e s caused by a dangeroue c o n d i t i o n which constitutoa a v i o l a t i o n of a duty imposed by s t a t u t e , this exception applies only where a specific statutory violation exists and there is a significant structural or design defect. However, t h e p l a i n t i f f d i d not a l l e g e either a v i o l a t i o n of a s p s a i f i a s t a t u t o r y safmty p r o v i a i o n or the exiatencm o f a s i g n i f i c a n t atruatural or design d e f s u t [emphasis added; internal quotation marks and citations omitted]. I n g a r g i o l a v Waheguru Management, Inc., 5 A D 3 d 732, 733-734 (2d Dept 2004); see also Couluris v Harbor Boat Realty, Inc., 31 AD3d 686 (2d Dept 2006); Nunez v A l f r e d Bleyes & Co., I n c . , 304 AD2d 7 3 4 ( 2 6 Dept 2003). In the case at bar, plaintiff proffers three arguments for denying that portion of JDLC s motion seeking to dismiss the complaint as against it: (1) JDLC, pursuant to the lease, was required to maintain and repair all public areas of the building, so that the staircase in the restaurant used by the restaurant s patrons is past of the public areas; (2) there were structural and design defects on the staircase, which renders an out-ofpossession liable f o r personal injuries occurring in the demised premises; and (3) the motion is procedurally insufficient, lacking the pleadings and plaintiff s EBT. The court disagrees w i t h each of these propositions. First, the staircase is clearly within the demised portion of the restaurant, intended f o r use by t h e restaurant s patrons 9 [* 11] and w o r k e r s . There is not a scintilla of evidence that the staircase was used by general members of the public accessing the building outside of the restaurant. Hence, this argument is specious, and must f a i l . Second, although plaintiff has p r o v i d e d the affidavit of an expert to assert that there were several Building Code violations, none of those violations are alleged to have contributed to plaintiff s accident. Most of t h e statutory violations alleged by the expert concern the handrail. Not only did plaintiff testify that she was holding on to the handrail at the time that she f e l l , but she also never alleged that the handrail was defective, collapsed, or in any way caused h e r accident. See Silverman v Blenheim Dept 2 0 0 2 ) . Associates Realty Corp., 291 AD2d 214 ( l a t Further, although the expert opines a violation in the top step riser being 20% higher than the next step, plaintiff did n o t fall from the t o p step, but five or six steps beneath the t o p step. Therefore, even if this constitutes a statutory violation, it played no part in plaintiff s accident. As for the lighting on the staircase, plaintiff never alleged that the lighting caused her to fall. In fact, when ascending the stairs immediately after the accident, plaintiff, in the same lighting, was able to o b s e r v e every detail of each step. Therefore, despite the expert s opinion as to the lighting 10 [* 12] being a statutory violation, plaintiff has never alleged that she fell because of dim lighting; plaintiff testified that she f e l l because of some slippery substance on the stairs and never said that she could not see that substance. Moreover, pursuant to the terms of the lease quoted above, maintenance and repair of the demised premises, except for structural repairs, was the duty of the tenant, and deposition testimony was adduced indicating that the tenant was responsible for lighting on the stairs. Most importantly, the "claim that the defendant violated {certain statutory provisions] . . .was never pleaded in h e r complaint or bills of particulars and is otherwise without merit." Chery v Exotic Realty, Inc., 34 AD3d 412, 414 (2d Dept 2006). Although the court believes that JDLC has met its burden of demonstrating that the lease provisions evidence that JDLC had no duty to maintain or repair the area in which the accident occurred (Meija v E r a Realty C o . (69 AD3d 816 [2d Dept 2 0 1 0 1 ; S p a r o z i c v B o v i s L e n d Lease LMB, I n c . ( 5 0 AD3d 1121 [ 2 d Dept 2008]), even if the c o u r t were to rule that JDLC had such a duty, plaintiff would still not be able to prevail. According to plaintiff, the cause of her accident was some slippery substance on the stairs. "Generally, an out-of-possession landlord's liability for injuries caused by defective or dangerous conditions upon 11 [* 13] leased premises hinges on whether the landlord has retained sufficient control over the premises to be held to have constructive notice of the condition [internal . quotation marks omitted]. Massucci v Amoco Oil Company, 292 AD2d 351, 352 (2d Dept 2002). A defendant who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. Bloomfield v Jericho Union Free School District, 80 AD3d 637, 638 (2d Dept 2011). There is no evidence that JDLC in any way caused a slippery substance to be on the staircase, and, even assuming t h a t JDLC had actual or constructive notice of a slippery substance on the stairs, there is no evidence that there was sufficient time for it to remedy the situation prior to plaintiff s fall. As a consequence of the foregoing, the court is unpersuaded by plaintiff s second argument concerning the alleged Building Code violations or the presence of a hazardous condition of which JDLC had a c t u a l or constructive notice. Third, as mentioned above, the motion p a p e r s filed by JDLC contain both the pleadings and plaintiff s EBT and, therefore, plaintiff s third argument f o r denying JDLC s motion is unavailing. Based on the foregoing, the complaint is dismissed as against JDLC. 12 [* 14] That portion of JDLC s motion seeking indemnification from its co-defendants is denied as moot. That portion of J D L C s motion seeking summary judgment directing Yamasak and Figaro to defend it in the action is granted. Summary relief is appropriate on a claim f o r contractual defense where, as here, the lease agreement is unambiguous and clearly sets forth the parties intention that a lessee provide a defense to the lessor for injuries sustained. I Maldonado v South Bronx Development Corp., 6 6 A D 3 d 612, 612 ( l g t Dept 2009). Yamasak and Figaro s opposition to this branch of the motion rests on the fact that it is not obligated to provide defense for JDLC for claims arising from JDLC s own negligence. However, since it has been determined that JDLC is not liable f o r plaintiff s injuries, it is entitled to defense costs from Yamasak and F i g a r o . Moreover, it is well-settled law that a contractual duty to defend is broader than a contractual duty to indemnify, and that the duty to defend is triggered whenever the allegations in the complaint even suggest the possibility of liability. As stated in BP Air C o n d i t i o n i n g Corp. v One Beacon Insurance Group (8 NY3d 708, 714 [ 2 0 0 7 ] ) , A duty to defend is triggered by the allegations contained in the underlying complaint. The inquiry is whether the allegations f a l l within the risk of loss undertaken by the insured . . . . /I 13 [* 15] Yamasak a n d F i g a r o h a v e a d m i t t e d t h a t , p u r s u a n t t o i t s l e a s e and t o p r o t e c t i t s e l f , i t p u r c h a s e d g e n e r a l commercial l i a b i l i t y i n s u r a n c e i n which i t named JDLC a s an a d d i t i o n a l i n s u r e d . A s an a d d i t i o n a l i n s u r e d , JDLC would be e n t i t l e d t o d e f e n s e c o s t s , p r o v i d e d t h a t t h e a l l e g a t i o n s i n t h e c o m p l a i n t possibly e n g e n d e r l i a b i l i t y on t h e p a r t of JDLC. Regal C o n s t r u c t i o n Corp. v N a t i o n a l Union F i r e Insurance Company of Pittsburgh, Pa., 1 5 NY3d 34 ( 2 0 1 0 ) . I n t h e c a s e a t b a r , t h e c o m p l a i n t f i l e d by p l a i n t i f f p r e s e n t s t h e p o s s i b i l i t y t h a t JDLC c o u l d b e l i a b l e t o p l a i n t i f f f o r her i n j u r i e s u n d e r c i r c u m s t a n c e s i n which Y a m a s a k a n d F i g a r o might be r e s p o n s i b l e . Hence, JDLC i s e n t i t l e d t o be d e f e n d e d i n t h e a c t i o n by Yamasak and F i g a r o . CONCLUSION Based on t h e f o r e g o i n g , i t i s h e r e b y ORDERED t h a t t h e b r a n c h of JDLC, L L C ' s m o t i o n f o r summary judgment s e e k i n g t o d i s m i s s t h e c o m p l a i n t a s a g a i n s t i t i s g r a n t e d and t h e c o m p l a i n t i s s e v e r e d and d i s m i s s e d a s a g a i n s t i t w i t h c o s t s and d i s b u r s e m e n t s t o s a i d d e f e n d a n t a s t a x e d by t h e C l e r k upon s u b m i s s i o n of a n appropriate b i l l of c o s t s ; and i t i s further ORDERED t h a t t h e b r a n c h of JDLC, LLC's m o t i o n s e e k i n g a n order t h a t i t s co-defendants a r e r e q u i r e d t o defend it i s g r a n t e d ; and i t i s f u r t h e r 14 [* 16] conversation. 15
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