Cange v 18-15 215th St. Owners', Inc.
Annotate this CaseDecided on December 17, 2013
Supreme Court, Queens County
Adeline Cange, Plaintiff,
against
18-15 215th Street Owners', Inc., THE NATIONAL BIRCHWOOD CORPORATION, SEVILLE CONDO, SHAMSI COHANIM and FOREYDOON COHANIM, Defendants.
21179/2008
Robert J. McDonald, J.
Plaintiff, Adeline Cange, commenced an action to recover damages for personal injuries she sustained on October 20, 2006, when a portion of the ceiling in the bathroom of the premises located at 18-15 215th Street, Apartment 7F, Queens County, New York, allegedly fell on her, injuring her eye. In her complaint, filed on August 22, 2008, the plaintiff alleges that the National Birchwood Corporation ("National Birchwood"), 18-25 215th Street Owners' Inc., Seville Condo and Shamsi Cohanin were the owners or tenants of the premises and that said defendants, including National Birchwood, operated, managed, maintained, or controlled the subject premises.
The complaint alleges that it was the duty of the defendants to maintain the subject premises in reasonably safe and adequate condition and repair. Plaintiff alleges that her right eye was injured as a result of a dangerous, defective and unsafe condition in the ceiling of the bathroom of Apartment 7F. In her bill of particulars, the plaintiff alleges that defendants were negligent in the ownership, operation, management maintenance and control of the premises in question including the ceiling of the bathroom which was permitted to remain in a hazardous, dangerous and defective condition, that the defendants failed to repair or warn of the defective ceiling condition and the defendants created the condition, or had actual or constructive notice.
Issue was joined by National Birchwood by service of a verified answer with cross-claims dated February 5, 2009. On July 2, 2009, National Birchwood commenced a third-party action for indemnification naming the leaseholder of the apartment, Foreydoon Cohanim, as third-party defendant.
In the instant motion, National Birchwood seeks an order dismissing the plaintiff's complaint against it on the ground that National Birchwood is not a proper party to the lawsuit as it had no involvement in the premises where the incident occurred, nor any ownership interest, nor any duty to maintain the premises, the ceiling or the pipes therein. Counsel contends that the lease agreement for the premises was between Birchwood Associates and third-party defendant, Cohanim. National Birchwood contends that Birchwood Associates is a separate entity from National Birchwood, and that National Birchwood did not own the [*2]apartment, was not a party to the lease, and did not lease the premises or the apartment in question to the third-party defendant.
In support of the motion, National Birchwood submits copies of the pleadings; a copy of plaintiff's verified bill of particulars; copies of the transcripts of the plaintiff's examination before trial, and the examination before trial of Ron Horowitz, the CEO of National Birchwood; copies of the Cohanim's lease and lease renewal for apartment 7F; a blank copy of a proprietary lease; and an additional affidavit from Ron Horowitz, on behalf on National Birchwood.
In her examination before trial, taken on November 15, 2011, the plaintiff, age 42, testified that on the date of the accident she was employed as a home health care worker. She had been assigned to care for Shamsi Cohanim at her residence located at 18-15 215th Street, Apartment 7F, Bayside, Queens County. She stated that on the date of the accident she went into the hallway bathroom at approximately 9:00 a.m to wash her hands. She was standing in front of the sink when she felt something dripping on her head. She looked up and something fell on her face and into her right eye causing a burning sensation. Shamsi's daughter called an ambulance and the plaintiff was taken to the emergency room at the Flushing Hospital. She stated that she was treated with drops in her eyes and had a patch placed over her eye. The following day her eye was still burning so she went to the emergency room at Queens Hospital. She followed up with specialists Drs. Lee, Banano and Chu.
The plaintiff further testified that two or three weeks before the accident she had seen water dripping from the ceiling of the bathroom in the same place where pieces of the ceiling fell into her eye. She stated that on the prior occasion she cleaned up the water and notified Fred and Jilla who lived in the apartment of the problem. She stated that Fred called the office but no one came to repair the ceiling.
Ron J. Horowitz testified on March 14, 2012 that he is the CEO of Birchwood Park Homes and the CEO of National Birchwood Corporation. He stated that there is no relationship between the entities. He stated that the cooperative apartment building known as the Seville, is owned by 18-15 215th Street Owners Corp. and that all the apartments have a proprietary lease. He states that Irving Aaron was his rental agent for all of the Birchwood companies who owned proprietary leases and Mr. Aaron was assigned [*3]to the Seville to respond to inquiries from tenants that Birchwood entities rented to. He stated that he did not believe that the entity known as National Birchwood Corporation had any connection to the Seville. He did state that The National Birchwood Corporation is part of the entities subsumed under Birchwood Park. He stated that he was never advised by Mr. Aaron of the ceiling problem in Apartment 7F. He stated that although one of the Birchwood entities owned apartment 7F, he did not know which Birchwood entity owned Apartment 7F in October 2006. He stated that the information would be in the proprietary lease and in the sublease.
In his affidavit dated June 13, 2013, Mr. Horowitz states that the owner of the Seville Cooperative building at the time of the incident was 18-15 215th Street Owners' Inc. He states that the National Birchwood Corporation did not own the Seville Cooperative building nor did it maintain or manage said cooperative apartment building. He states that the pertinent lease for Apartment 7F shows that the lease was in full force and effect at the time of the incident and shows that the owner and landlord of Apartment 7F was Birchwood Associates and the tenant for Apartment 7F was Foreydoon Cohanin. He states that The National Birchwood Corporation is a separate and distinct corporate entity from Birchwood Associates and National Birchwood is not related or connected to Birchwood Associates. He states that the two entities are not subsidiaries or otherwise related corporate entities nor did they have any form of agency relationship. He states that National Birchwood did not have any ownership responsibility with respect to apartment 7F or have any duties to maintain or repair the building or to maintain or repair the apartment or the bathroom in question.
The lease submitted by the defendant shows that on November 13, 2003, the unit owner, Birchwood Associates leased Apartment 7F to Foreydoon Cohanim. The lease extension dated October 31, 2005 was also executed by an individual on behalf of Birchwood Associates as landlord and Foreydoon Cohanim as tenant.
Counsel for National Birchwood asserts that the evidence submitted with the motion is sufficient to demonstrate, prima facie, that The National Birchwood Corporation is not a proper party. Counsel asserts that the lease indicates that the owner of the subject apartment was Birchwood Associates and not The Birchwood National Corporation and therefore, Birchwood National had no duty to maintain the ceiling in the apartment and no liability for the plaintiff's injuries. Further, Mr. Horowitz the CEO of Birchwood National stated at his deposition and in his affidavit that although there were several subsidiaries of [*4]Birchwood Park, there was no business relationship between Birchwood National and Birchwood Associates and that Birchwood National has no relationship with the Seville or with the owners of the Seville building who is the 18-15 215th Street Owners Corp. Thus, counsel argues that Birchwood National was under no obligation to perform any services within Apartment 7F as the evidence shows that it did not own, operate, manage or lease the premises. Counsel claims that as there is no evidence to establish any duty of care owed to the plaintiff by Birchwood National and therefore, it is argued that said defendant is entitled to summary judgment dismissing the plaintiff's complaint as a matter of law. Counsel contends that liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control or special use of the property (citing Ruffino v New York City Tr. Auth., 55 AD3d 817 [2d Dept. 2008]; Casale v Brookdale Med. Assoc., 43 AD3d 418 [2d Dept. 2007]), and thus the movant cannot be liable for the accident on premises which they did not own, occupy, manage, control or maintain.
In opposition to the motion, defendants 18-15 215th Street Owners' Inc. and Seville Condo submit a letter from Arlene Pino, manager of the Seville stating that Apartment 7F is a Birchwood owned apartment. She states in the letter that she was notified immediately after the accident, went to the apartment and observed the plaintiff holding her right eye. She was advised that the ceiling came down in the bathroom. She states that she observed that a portion of plaster had come away from the ceiling. She states that she tried to get in touch with Irving Aaron from Birchwood. However, when she could not reach him, the owners of the building sent workers to scrape the entire ceiling to make sure no more plaster would fall. She stated that after Mr. Aaron returned, it was determined that the Seville would repair the ceiling but that Mr. Aaron's office would paint and plaster the apartment.
Counsel contends that in his deposition, Mr. Horowitz stated that Mr. Aaron was a rental agent for all of the Birchwood properties and therefore counsel suggests that The National Birchwood Corporations as part of the Birchwood companies is a proper party to this action. He states that the address for Birchwood Park is identical to the address where National Birchwood Corporation is located and that Mr. Aaron had his office there as well. Counsel contends therefore that there is a question of fact as to whether all the Birchwood properties are intertwined and whether National Birchwood has properly been named as a defendant. Counsel claims that the evidence shows that all of the entities are related and their names used [*5]interchangeably.
Erik Roth Esq., counsel for the plaintiff, also submits an affirmation in opposition stating that he adopts the arguments made in opposition to the motion by counsel for the Seville. Plaintiff also refers to the third-party complaint filed by National Birchwood seeking indemnification against the tenant. Further, plaintiff submits a written statement made by Mr. Aaron stating that he is employed as a property manager for Birchwood Associates. He states that one of the properties he managed was Apartment 7F at the Seville. He states that Birchwood Associates is the sponsor and owns 115 apartments in the building. Counsel also submits a letter from Travelers to plaintiff's counsel stating that the name of the insured in National Birchwood Corp. and that the insured is the landlord for Apartment 7F.
In reply, National Birchwood submits that there has been no admissible evidence submitted by either the plaintiff or the co-defendant which is sufficient to contradict the sworn statements of Mr. Horowitz to the effect that National Birchwood is not a party to the lease nor does it have any ownership interest in the subject premises. Moreover, movant asserts that there has been no evidence submitted to contradict the fact that the lease for the apartment shows that owner of the apartment is Birchwood Associates.
Upon review and consideration of the defendant third-party plaintiff's motion, this court finds as follows:
As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property (see Suero-Sosa v Cardona, 2013 NY Slip Op 8240 [2d Dept. 2013]; Sanchez v 1710 Broadway, Inc., 79 AD3d 845 [2d Dept. 2010]; Kydd v Daarta Realty Corp., 60 AD3d 997 [2d Dept. 2009]). Where none of these factors is present, a party cannot be held liable for injuries caused by a dangerous or a defective condition (see Gover v Mastic Beach Prop. Owners Assn., 57 AD3d at 730 [2d Dept. 2008]; also see Sanchez v 1710 Broadway, Inc., 79 AD3d at 846 [2d Dept. 2010]; Kydd v Daarta Realty Corp., 60 AD3d at 998 [2d Dept. 2009]).
Here, movant, The Birchwood National Corporation demonstrated, prima facie, its entitlement to judgment as a matter of law through, the affidavit and deposition testimony of its CEO, Ron Horowitz, who testified that National Birchwood, although part of the Birchwood Park group of companies, did not own or control the subject premises. The documents submitted [*6]clearly showed that the entity that owned the apartment on the date in question was Birchwood Associates (see Mitchell v Icolari, 108 AD3d 600 [2d Dept. 2013]; Delgardio v Davis, 86 AD3d 589 [2d Dept.2011]; Forbes v Aaron, 81 AD3d 876 [2d Dept. 2011]; Pollard v Credit Suisse First Boston Mtge. Capital, LLC, 66 AD3d 862 [2d Dept.2009]; Rinzler v Jafco Assocs., 21 AD3d 360 [2d Dept. 2008]).
In opposition, the plaintiff and co-defendant fail to submit any evidence to raise a triable issue of fact as to whether Birchwood National owned, maintained or exercised any control over the premises at the time the plaintiff was injured or assumed any duty to the plaintiff which might serve as a predicate for liability. Although the plaintiff asserts that all of the Birchwood properties are intertwined, there was insufficient proof in the record to show that The National Birchwood Corporation exercised any ownership interest in the apartment in question. Plaintiff did not submit sufficient evidence to contradict the fact that the actual lease for the premises was signed by a representative of Birchwood Associates and that when Mr. Aaron arranged for repairs to the ceiling he was doing so in his capacity as managing agent for Birchwood Associates. In addition, although the third-party complaint sought indemnification from the tenant, the defendant is permitted to plead inconsistent or alternate theories (see CPLR 3014; Corsello v Verizon NY, Inc., 77 AD3d 344 [2d Dept. 2010]).
Accordingly, for the reasons set forth above, it is hereby,
ORDERED, that the motion by THE NATIONAL BIRCHWOOD CORPORATION for an order pursuant to CPLR 3211 and 3212 dismissing the plaintiff's complaint and all cross-claims and counterclaims against said defendant/third-party plaintiff on the ground that THE NATIONAL BIRCHWOOD CORPORATION did not owe a duty of care to the plaintiff, and is not a proper party to the action is granted, and it is further,
ORDERED, that the Clerk of Court is authorized to enter judgment accordingly.
Dated: Long Island City, NY
December 17, 2013
[*7]______________________________
ROBERT J. MCDONALD
J.S.C.
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