Blandon v 60 W. 57 Realty, Inc.
Annotate this CaseDecided on September 13, 2016
Supreme Court, Queens County
Daniel Blandon, Plaintiff,
against
60 West 57 Realty, Inc., AND JEFFRIES MORRIS, INC., Defendants.
22042/2013
Robert J. McDonald, J.
The following papers numbered 1 to 11 read on this motion by defendants for an order, pursuant to CPLR 3212, granting summary judgment in favor of defendants and dismissing plaintiff's complaint:
Papers Numbered
Notice of Motion-Affirmation-Exhibits 1-4
Affirmation in Opposition-Exhibits 5-7
Reply Affirmation 8-9
Plaintiff's Letter-Affidavit of Translation 10-11
Defendants' Letter 12
This is an action for damages for personal injuries sustained by plaintiff on January 25, 2013, in the basement of Champion Parking Garage, located at 65 West 56th Street, New York, New York. Plaintiff alleges that he was injured when he tripped and fell on a drain cover.
Plaintiff commenced this action by filing a summons and verified complaint on December 3, 2013. Issue was joined by the service of defendants' verified answer dated March 4, 2014. Plaintiff filed a note of issue on February 19, 2016. Defendants now move for summary judgment on the ground that they did not have a duty to maintain or repair the drain cover which plaintiff alleges caused him to fall. Defendants further contend that they were not on notice of any defective or dangerous condition.
In support of their motion, defendants submit an affirmation from counsel, Kristine A. Renna, Esq.; a copy of the pleadings; a copy of plaintiff's verified bill of particulars; a copy of the transcripts of the examinations before trial of plaintiff and defendants by Timothy O'Connor; a copy of the Lease between 60 West 57 Realty, Inc. and New York Parking 56th St. Corp.; a copy of the note of issue; a copy of the Preliminary Conference Order; and color copies of photographs [*2]of the subject drain cover.
Pursuant to a Standard Form Store Lease, the basement and sub-basement of the subject parking garage was leased by 60 West 57 Realty, Inc. (defendant landlord) to New York Parking 56th St. Corp. (tenant). The Rider to the Lease provides that the tenant expressly agrees that it will "maintain and repair drains (including thorough cleaning of all drains at least every three (3) months or more frequently as needed)." The Lease further provides that the landlord shall have the right "to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, placements and improvements . . ."
In his examination before trial, taken on October 14, 2015, plaintiff testified that on the date of the accident, he was working for Champion Parking located at 56th Street in Manhattan. The incident occurred at approximately 8:30 to 9:00 p.m. when he was going to pick up a car in B-4 of the basement of the garage. He tripped when his foot entered a grid covering a drain. He identified the color photographs which are annexed to the motion papers as the subject drain cover where his foot got caught.
Timothy O'Connor appeared for an examination before trial on behalf of defendants on February 24, 2016. He is employed by defendant Jeffries Morris, Inc. Jeffries Morris, Inc. acts as the building manager. Mr. O'Connor testified that the tenant was responsible to maintain, repair, and clean all of the drains in the subject parking garage. Neither he nor his employees have ever been called by the tenant to "look at anything" nor has he ever hired anyone to make any repair of any kind at the garage. He does not inspect or do any work in the garage. He has never inspected the drains.
Based on the Lease and the deposition testimony, counsel for defendants contends that defendants did not have a duty relative to the maintenance and repair of the drains in the parking garage. Rather, it was the tenant's duty to maintain and repair the drains. Counsel further contends that plaintiff cannot establish that defendants had notice of the alleged condition as defendants were not responsible for the maintenance and repair of the drains in the garage. Additionally, even if defendants had a duty to maintain the drains, defendants never inspected or had any duties relative to the maintenance or repair of the drains. Thus, there was no opportunity for defendants to remedy any condition.
In opposition, plaintiff submits an affirmation from counsel, Martin J. Moskowitz, Esq.; his own affidavit dated August 2, 2016; and a discovery response from defendants dated February 18, 2016. This Court is also in receipt of a letter dated August 31, 2016 from plaintiff's counsel with an Affidavit of Translation, which was to accompany plaintiff's affidavit annexed to the opposition papers. Defendants' counsel also submitted a letter dated September 7, 2016, contending that the Affidavit of Translation should be rejected as untimely. The Court is mindful of the procedural defect, but in the interest of justice and as public policy favors a disposition on the merits, the Affidavit of Translation along with plaintiff's affidavit will be considered herein.
In his affidavit, plaintiff affirms that on January 25, 2013, while he was working as a parking attendant for Champion Parking Garage, his foot went into a hole in the drain cover grid that was missing two or so bars and was rusted. Plaintiff affirms that there was a problem about every one and a half months with the garage's drainage system that would cause a back-up of water through the drain grid and flooding. Either he, his supervisor, Bernardo Duran, or a co-worker would report the flooding to the building superintendent. Since 2000, he spoke with the [*3]building superintendent on approximately six occasions about a flood from drain. The building superintendent would tell him that he would take care of it, and soon after a plumber would arrive to do the work and clear the drain. Plaintiff affirms that due to the rising water, the drain cover rusted and deteriorated. On the date of the incident, two or more bars from the grid had gone missing due to such.
Counsel for plaintiff argues that actual and constructive notice is imputed to defedants because the drainage system was defective and would regularly back-up and flood the parking garage. Additionally, based on plaintiff's affidavit, defendant landlord would be called upon to fix or clear the drainage lines and would send a plumber. Accordingly, counsel contends that summary judgment must be denied as defendants have failed to demonstrate that they lacked notice of the subject condition.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557[1980]). Summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue (see Kwong On Bank, Ltd. v Monrose Knitwear Corp., 74 AD2d 768 [2d Dept 1980]). The evidence will be construed in a light most favorable to the non-moving party (see Benincasa v Garrubbo, 141 AD2d 636 [2d Dept 1988]).
Generally, an out of possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord "has a duty imposed by statute or assumed by contract or a course of conduct" (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2d Dept. 2011]; Rossal-Daub v Walter, 58 AD3d 992 [3d Dept. 2009]). Thus, an out of possession landlord may be liable for failing to repair a dangerous condition, of which it had notice, if the landlord assumes a duty to make repairs and reserves the right to enter to inspect of make such repairs (see Litwack v Plaza Realty Investors, Inc., 11 NY3d 820 [2008]; Chapman v Silber, 97 NY2d 9 [2001]).
Considering the evidence in the light most favorable to the nonmoving party, plaintiff, questions of fact remain as to, inter alia, whether defendants had notice that a dangerous condition existed on the subject premises and as to whether defendants created the dangerous condition. Here, defendant landlord had the right of re-entry to make repairs under the subject Lease. Plaintiff affirmed that defendant landlord exercised that right when it sent plumbers to fix the drainage lines in the garage after receiving complaints of flooding. Thus, an issue of fact exists as to whether defendant landlord may have created the dangerous condition or had constructive or actual notice of the dangerous condition, but failed to repair it.
Although Mr. O'Connor testified that neither he nor his employees ever repaired anything, an issue of fact exists as to who sent the plumbers or agents to make the repairs. Moreover, defendants did not submit an affidavit from the building superintendent contesting plaintiff's statements that plaintiff spoke to the building superintendent about the drain and the flooding. Lastly, any discrepancies between plaintiff's affidavit, his own deposition testimony, and Mr. O'Connor's testimony are issues of credibility which must be determined by the trier of fact rather than on a motion for summary judgment as a "court may not weigh the credibility of witnesses on [*4]a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned" (Conciatori v Port Auth. of NY & N. J., 46 AD3d 501 [2d Dept. 2007]).
Accordingly, based upon the foregoing it is hereby,
ORDERED, that the motion by defendants for summary judgment dismissing the plaintiff's complaint is denied.
Dated: September 13, 2016
Long Island City, NY
ROBERT J. MCDONALD
J.S.C.
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.
