Pagliaro v Boston Prop., Inc.

Annotate this Case

Download PDF

Pagliaro v Boston Prop., Inc. 2013 NY Slip Op 30290(U) January 23, 2013 Sup Ct, New York County Docket Number: 108022/2008 Judge: Shlomo S. Hagler 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. SCANNED ON 21812013 [* 1] I SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Shlomo S. Hagler PART: 17 Justice INDEX NO.: MICHAEL R. PAGLIARO, IO802212008 MOTION SEQ. NO.: Plaintiff, 001 - against BOSTON PROPERTIES, INC., 90 CHURCH STREET LIMITED PARTNERSHIP, and TURNER CONSTRUCTION COMPANY, DECISION and ORDER Defendants. Motion by Boston Properties, Inc. and 90 Church Street Limited Partnership for summary judgment dismissing the complaint and all cross-claims against them. Papers Numbered Notice of Motion with Affirmation of Kenneth S . Ross, Esq., In Support of Motion, & Exhibits "A" through "G" .................................................................................. 1,2,3 Affirmation of Plaintiffs Counsel Steven J. Horowitz, Esq., in Opposition to Motion & 4, 5 Exhibits 1 through 6 ...................................................................................... 6 ................ Reply Affirmation of Kenneth S. Ross, Esq., in Support$M,tiL . ~ . . ~ ................ 7 Transcript of Oral Argument of June 11, 201 2 . . . . . . . . . . . . . . . . . . . . . . . . . . I, I, 11 I1 I Cross-Motion: IfNo Cross-Motion(s) by 0 Yes for Number of Cross-Motions: FEB 08 2013 NEWYORK COUNTY CL ¬RCs QWGE Upon the foregoing papers, it is hereby ordered that this Motion is denied as set forth in the attached separate written Decision and Order. ~ Dated: January 23, 201 3 New York, New York Check one: 0 Final Disposition Motion is: 0 Granted $Denied Check if Appropriate: 0SETTLE ORDER DO NOT POST J** Hon. Shlomo S. Hagler, J.S.C. dNon-Final Disposition 0 Granted in Part 0 Other 0 SUBMIT ORDER 0 REFERENCE [* 2] Index No. 108022/2008 Plaintiff, Motion Sequence Nos: 001 & 002 -againstIIOSTON l l<Ol ERlW,S, I NC., 90 C 1IUKC I-I STREET LIMITED YAKTNISKSHlP, aticl 1.U 1ZN E l i CONS IKIJCTI O N COMPANY, UECISION & ORDER 1) efend ants. I ION. SHLOMO S. HAGLEK, J.S.C.: FEB 0 8 2013 In this pcrsond injury action, def endants B o ~ m e s Inc. ( Boston Properties ) and , U - M h!TY C XERK$ QFF@g 00 C hiirch Street Limited Partnership ( 90 Church ) mcwc, pursuant lo CPIX 5 3212, for summary 1 wigtnctit diwlissing the complaint N o . 00 I j. and all cross-claims asserted against them. (Motion Sequence 1)cfcndant l urncr C onstruction Company ( Turner Construction ) separately movcs, pursuant to C I I.Ii $ 33 13. t or suminary judgment dismissing the complaint and all cross-claims asscrtcti against it. (Motion Sequence No. 002). Plaintiff Michael R. Pagliaro ( Pagliarn or plaiii\ill ) opposes defendants motions. Both motions arc coiisolidated herciii for disposition. BACKG K O I INI) Tlic Pat-ticx F)luintif I was employed by the Unitcd Statcs Postal Service (L LJSPS ) a postal cawicr. as 1ISl Y owns a 15 story bidding at 90 C JiiircJi Streel, New apprusimatoly one ( 1 iiiillioii York, New York, containing square I e t , and operates a post oftice therein on thc first three floors Iic Pi-opcrt) ) The I ropt r(y is locatcd acrms thc strcct from the World Trade Center site. [* 3] (hNovember 17, 1995, the USPS, Boston Propertics and 90 Church sirnultaneouslyentercd I into ~i lease, subleasc, mid nianagcinent agreement. The LJSPS executcd a lease to rent the entire Property to 90 C hurch f or ;i term of thirty (30) years ( l.casc ). (SLY Exhibit 3 to the opposition papers ) At the sairic tinic, 90 C hurch entered into a sublease with the USPS for thc lJSPS to sublet tho tirst three floors of thc Propcrty for use as a post olfice ( Sublease ). (See Exhibit 4 lo the oppo\ition papers.) I I I addition. 90 Church entered into a rnanagernent agreemcnt with Boston Propertics f01*Doston Properties to manage thc cntire Propcrty ( Management Agreement ). (See, i?xhibit 3 to the opposition papers.) 90 C hurch is an aftiliatcd entity of Boston Properties. (See Ikposi tion of Ralph Scelfb, senior property manager of Boston Properties, Exhibit F to the Turncr ( o~i\tl-uc(ion motloti, at p 34 ) Sincc 1995, Boston Properties has continually maintaincd an on-site otfice at the Property. ( I d . , at p, 12.) I hc LJSPS opcratcs its own rnaintcnance department and, according l o Boston Properties, is responsible to inspect and maintain the first t h e e floors of the t ropcl-ty. (U..at p. 13.) /Z lier thc terror attlic i t the World Trade Center on September 1 1 2001, the eiitirc Property ~ became contaminated from debris and sui fered sevcrc damagc. Hoston Properties, as agent for 90 ( liurcli. r-ctainecil iirncr ( (instruction to perfi,rm necessary conslruction services. (Sw Ikposition of liohcrt Scliubert. senior vicc prcsidcnt for construction of Boston Propertics [ Schubert EBT ], Exhibit 4 to tlic opposition papers, at pgs. 16-18.) I umcr Construction acted as the general contractor m d was responsi blc fbrall aspccts ofthe p i ~ j e csuch as plumbing, electrical atid I WAC: t w o A ? hut it \ub-conlractt.d all tho work to othcrs. (,See Deposition of Kcit11 Halvin, project supcrintcndcrit for Turner C onstruction, I xhi bit to Turner Construction s motion, at p. 17.) Spcciticdly, I u~-ner C onslruction sub-contractcd thc rcplacernerit ofduct-work in thc arca whcrc thc -2- [* 4] iccidetit occurrcd t o Nelson Air. (Id.,at p. 32.) Turner Construction admittcd that it, or inore likely Nelson Air, possibly itistallecl ;I lot of duct work and the associated support brackets. (Id., at p. 5 5 . ) Turner C onstruction cornplctcd thc project in or about August or September, 2004. (Id., at p. 53 .) Boston Properties confirmed that Turner Construction replaced or installed for the first IIIIIC the duct-work a1 i s b i i c (Sot Schubert EBrJ, Ikliibit 4 to the opposition papers, at p. 3 1 .) Thc Acciderit On October 3 1, 2006, plaintifl was working as a postal carrier on the second floor of tlic Property. His postal supervisor aslced him to bring mail from the sccond lloor sorting area to the box mea locatcd on the first lloor. Plaintifftook the elevator to the t7rst floor and proceeded lefi toward two sets of swinging doors (utiliLed for cquipiiient or fkcight) approximately 30 feet away. 1 le walhed through a L i~~ati (used for people without freight) on the lcft to enter the box area. door Approximately si,: fcct hcyond the man door, plaintiff tripped over a nietal bar nieasuring +pto\iiiici~cly 1 X inches in Iciigth near c~ c o l m n . The object plaintiff tripped over was a metal support bar eutcnding to a large duct running from the floor to the ceiling. (See Exhibit 1 to the opposition pipers ) I heduct was most likely a toilet cxhaust duct (or an air duct) as there is a toilet iir~dcrncnthIt. ( S c r Schubert ERT, 1:xhibit 4 to the opposition papcrs, at p. 49.) The bar was I , \ i w c f c ~ b oonc c t ~ i c <I halfinchcs abvve u~ l (tic tlour and was thc same greyish color as the floor. The iiietal bar w t ~ cut smaller and cl ycllow caution ape was added to the floor area sui-rounding tlic latcr diict i15 clepictcd in J-uliibit I lo the opposition pipers. -3 - [* 5] J3ISC llSSION It 15 wcll scttlccl that ltlhe proponent o f a summary judgment niotion must makc a prima hcic showing of entitlement to judgment as a matter of law, tendering sufficient evidence to climintilc m y S i//j\o, niatenal iss~ies lict iioiii the case. (Szdmitorno M ~ Iui) Banking C urp v C redil 01 , 89 AD3d 561, 563 [ 1st Dept 301 I]; sctl d s o Winrgrird v New York Ilniv. Mcd. ( l r . , 64 N Y W 85 I , 853 19851.) Once the proponelit has made a prinia facie showing, the burden shifts to thc opposing party to prcseiit evicicntiary lacts in admissiblc form sufllcient to raise a genuine, 11 I~IIJIL 155iic ot tact (( u , $ p r ( ii\hwzrrvi CY. 11 lWukefield, 74 A133d 669 [ 1 st Dept 20 IO], Iv dismissed 16 NY3d 766 [20 I I] [internal quotation marks and citation omitted].) If therc is any doubt as to the existence of ;I triable issilt: of f act, siimniary judgment inust bc dcnied. (RolztbnExtruders v C ~ p p s , 40 NY2d 223,331 119781 ) A RC;Il M 15NTS Boston l roperties claims that it arid 90 Church can not be held liable for plaintilf s pcrsonal thcy did not havc rcspcmsibility to inspect or maintain the TJSPS s arca where the iii1ui IC\ ~ C C : I U ~ C accident nccur~cd.Mor.cover, B3cxtcon Propertics and 90 Church argiie that there is neither evidence e\tabli\liing that they created the alleged dangerous coiiditioii nor had actual or constructivc notice coiiclitioii. Turner Consti uctioii similarly argues the above two points and emphasizes that 01 thih I( h~ui completed its work at the I ruperly more than two ( 2 ) ycars before thc accident occurred. l l;iiiiti!l conknds that Hoston Properties and (30 C hurch owcd a duty, pursuant tu the Leasc, Sublcnsc, c i ~ i d Managelimit Agreerncnt, to niaintain the IJSPS s lirst floor spacc, including the ductW O I I ,iiicl t t h u 171otrucliiig iiictal support bar that was ; i n apparent trip-hamrd. Plaintiffalso argues that I urner C uii\truction caused and created thc conclitioii that gave rise to plaintiffs accident. -4- [* 6] A landowner o r possessor hac a duty to excrcise reasonable care to maintain its premises in ;I s a l i condillon. (Bus50 1) Miller, 40 NY2d 233, 238 (1976).) For the landowner to be held liable for d dangcrous condition on its premises, the injured party must prove that the landowner creatcd the alleged dangcrous condition or had actual or constructive notice of the condition. (Gordon v Atiit~Y.iuin Musrurri pos5cswi lo 5 of Nutiirul Hzstoiy, 67 NY2d 836, 838 (1 9861.) However, a landowner's or diity to m a i n t a i n rcasonablc s d c premises is scparatc and distinct from his or her duly w m i oi'a daiigcrous condition. (C'ohcn v Shopwell, IHL., 309 AD2d 560, 561 [lsl Dept 2003j.) ''[b,]veii if the alleged dangerous condition qualifies as 'open and obvious' as a matter o l law, that characteristic merely eliminates the propcrty owiicr's duty to warn of the hazard, but does no1 c l I t i i i i i ~ l c the property owiicr's hroader duty t o maintain tlic premises is a reasonably safc condition." ' Wosthrook M/H Ac.tivifie,5-C'LihrL)I'LI MLirke/.r, 5 AD3d 69, 72 [ 1st Dcpt 20041.) 11 In this ca\c, it i5 qirite apparent that Boston Properties and 90 Church have displaced the IJSPS as tlic owner of'the Property to maintain the premises in ; reasonably safc condition. Under 1 4rticlc 1 1 o f t l ~ cI c a w . 00 Chiirch undei-took to niake "all repairs and replacements (whether \tr ~ict~i~iil or nun-structural, h c l)c~mlscclPI c1111 forosccn or ~ r i f ~ l i * s ordinary or extraordinary) necessary to maintain ~en, '' ( , ~ ' c L > Exhibit "3" to the opposition papers.) Similarly, under paragraph 3 ol thc Mmagement hgrecment, Hoston Propcrtics bore the responsibility and duty lor inaintcnancc of'llie I'ropcrty, (,Sc.c I :xhibit "2" to the opposition papers.) However, in thc Sublcase, 90 Church and thc IUSI'S el'lictively modificcl Articlc 1 1 o f tlic I,casc, tn the extent that the LISPS took back responsibility to iiiniiitain aiid repair i t s sub-leased premises on the fyrst tlircc floors "except that Sublessor IO0 c'hiiruli] shall providc iiiaintcnaiicc and repair services . . . i n accordance with -5- [* 7] Euhibit D rinncuud hereto In paragraph 2 of Fxhibit D, 90 Church was contractually obligated to opeiate and maintain the buildmg syste1ns withiii thc LISPS s subleased premises suchas plumbing and air-handling systems including the ducts. (,Se ~le Exhibit 5 to the opposition papers.) Notwithstanding detendants assertions that thc LJSPS exclusively maintained and repaired its s u b h s e d premises oii its own, the inescapable conclusion is that Boston Properties and 90 Church h e 1c ~ ~ ~ ~ i ~ i ~ ~ c hound tol maintain the subject toilet exhaust duct and the protruding metal duty ~ i i ~ i l y 5uppor-t h - was an apparent trip-haLard. i that c o 11 st r u c 1i v c N o t ice While the duty of defendants 90 C hurch and Boston Propertics to maintain the prcniises in It ieasonably safe condltlon has been established, that does riot end the inquiry, as the plaintiff must prove tli it thc defendants crcatccl tlic allcgcd dangcrous condition or had actiral or constructive notice ofthc condition Plaintif l allegesthat defendants 90 Church and Boston Properties had constructive iiotlcc To conslitute constructivc notice, tlit: dangerous condition or dcfcct must be vjsiblc and LiplxiIcill loi A wllicient Icngth of time to permit def tndants tu discover- and remedy it. (Atirshi v k r o d L ) o u ~ I I,L( I , 87 AD3d 45.5 I 1 s i ncpt 201 1 I.) Ilcfcndants 00 Church and Boston Properties acknowledgcd that it rctained I iirmr Construction who rcplaccd or installed for tlic first time the duct-wor-b af I\SLIC (,%e Schubert EBT, Exhibit 4 to the opposition papcrs, at p. 3 1 ,) Defcridants 00 ( I i i i i L I i and 13ostr)ii t ropcrtics also adniittcd that its cmployees were in the precisc area where the qpal-ent dangerous condition cxistcd hundrcds oftimes for at least two years prior to the accident. ( I d . , at p. 30.) l hus, It is ; I question of Liict whether delendants 90 C hurch and Boston Propcrtics may have had constructivc notice of thc dangerous condition. [* 8] Cause and (:reate Dangerous Condition Plaintif f argued that Turner C onstruction caused and crcated the condition that gave rise to plaintiff s accident. While I urncr Construction statcd that it generally installed duct work during the constriictioii phase Lit the l roperty, Turner Construction contends thcrc was no proof that it specitjcnlly installed the duct at issuc as there was no identifying tag displayed. This, however, is belied by h c deposition testimony of Robert Schubert of Boston Properties who testificd that I urncr C onstruclion, eithcr dircctly o r through onc of its sub-contractors, replaced or installed for thc fii \ t Iiiiic the duct-worlt it issiic (LScc>, Schubcrt t 3 1Exhibit 4 to the opposition papers, at T 7 , p. 3 1 .) Thus, whcthcr Turner Construction caused and creattcd thc condition that gave rise to plaintill s iiccidcat is also i i qucstion of fact. Opcn sind Obvious Hazards Wh11c the p ii-tios did n o t argue whether or not the sub.jcct toilct exhaust duct and thc protruding iiictal cupport bar was an open and obvious condition which was ricitlicr a def ect nor an iiihcren~lydangeroiis condition, a hricf discussion of this issuc is nccessary. Whether a hazard is open and ubvious or latent I S gc~icrdly specific and thus usually an issue that should be decided fact !,I tlic Iur? ( Trrglc I h k o h . 97 N Y 2 d 16s- 1 hX [ZOO 1 1.) NoiietlieIrss, a court may dctcrrnine a condition to be open and obvious coiicliis~o~i nay do and 50 ab a inuttcr of law when tlic cstahlislieci facts compel that on the basis of clear and undisputed evidence. (Id-,at 168 [internal citaticrnx omittcdl ) Proof chat a dangerous condition is open and obvious does not prcclude a findingof liability against ii landowner for ttic failure to maintain the property in a safe condition but 1 5 iclev,int to ~ h ISSLLCo f thc plaintill \ comparative neglIgelice. (Wcs/hruok, c 5 A1)3d, at 72-73.) -7- [* 9] I n the instanl cast , there is ;i question of fact whether the sub-ject exhaust duct and protruding metal siipporl bar was an open and obvious condition which may have been a hazard and/or inherently d an g c ro11s CONCLIJSION Inasmuch as there arc triable issues of fact, summaryjudgment in this case is inappropriate. Accordingly, it is ( ) R ~ ) l : l U ~ , l h ~t the motion (sequence i i m b e r 00 1) of dcfendants Boston Properties, Inc. t)a aiid 90 Church Street 1,imitcd Partnership for summaryjudgment is denied; and it is furthcr ORDF,l<l~l). that tlic motion (sequcnce number 002) of defendant Turner C onsti-uction (. ompimy for. summary .judgment is denied. l he fbrcgoing constitute\ h e decision and order of this Clocirt. E N I E R : Ilntcd: .lanuary 23, 301 3 New York, Ncw York -8-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.