Moers v Mansion Realty II, LLC

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Moers v Mansion Realty II, LLC 2018 NY Slip Op 30498(U) March 16, 2018 Supreme Court, New York County Docket Number: 152026/13 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 1] INDEX NO. 152026/2013 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ----------------------------------------x JOHN MOERS III and DEBRA MOERS, Index No. 152026/13 Plaintiffs, -againstMANSION REALTY II, LLC and LIMELIGHT PUB LLC d/b/a CROSSBAR at LIMELIGHT MARKETPLACE, Defendants. ----------------------------------------x JENNIFER G. SCHECTER, J.: Motion sequence numbers 04 and 05 are consolidated for disposition. Defendants Mansion Realty II, LLC (Mansion) and Limelight Pub LLC d/b/a Crossbar at Limelight (Crossbar) move for summary judgment in this premises-liability personal Mansion also moves for conditional summary injury action. judgment on its common-law cross claim for indemnification Plaintiffs John Moers III from Crossbar. (Moers) and Debra Moers oppose the motions. Background This action from arises an accident at Crossbar restaurant on December 14, 2011 at 7:30 PM when Moers tripped on an outside step, fell and then caught,,. his finger in / entrance doors to the restaurant. The Leases Mansion owns the property located at 47 West 20th Street in Manhattan (Building) . between Mansion, as operating under the There is a lease agreement (Lease) landlord, trade and name 2 of 13 Limelight Limelight Retail, LLC, Marketplace, as [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 2] NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 Moers v Mansion Realty II, LLC tenant INDEX NO. 152026/2013 Index No.152026/13 Page 2 (Affirmation in Support of Motion Sequence Number 04 [Supp 04], Ex I) between Magj ic There is a sublease agreement I LLC, I doing business (Sublease) as Limelight Marketplace, as landlord, and Crossbar, as tenant (Affirmation in Support of Motion Sequence 05 [Supp OS, Ex H] [Sublease]). Crossbar operates a restaurant at the premises. The Sublease The premises number 85 is described in the for an approximate square Sublease foot as area of "Space 525" as measured from the outside exterior walls and from the center interior walls at 47 West 20~ Street (Sublease at §§ 1.01, 2. 01) . The Sublease states that the tenant "shall be responsible for the maintenance and repair of the Premises and to all fixtures and equipment therein or appurtenant thereto" except that the landlord is responsible for structural repairs not caused by the tenant (Sublease at Sections 2.01 (b) and (c) § 7.01). provide that nothing in the Sublease "shall be construed as a grant of rental of any right in . Demised Premises shall not include) [on] exterior of the building . Demised Premises is located" and (and the land upon which the that common "subject to the exclusive control and management areas are . by Landlord and Landlord shall have the absolute right to modify 3 of 13 [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 3] NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 Index No.152026/13 Page 3 Moers v Mansion Realty II, LLC [or] INDEX NO. 152026/2013 the change thereto II common areas (Sublease at § 2. 01 and the improvements [b] , [c]) The Sublease further sets forth that the "Landlord may, at any reasonable time or times, upon prior notice to Tenant (except in the event of an emergency, in which event no notice shall be required) , enter upon the Premises for the purpose of: [a] inspecting the [b] same; making such repairs, replacements or alterations which Landlord may be required to perform . . . or which it may deem desirable for the Premises II (Sublease at § 7.02). Moers Deposition Moers testified that his accident took place on Wednesday, December 14, 2011, at approximately 7:30 PM at the Limelight Marketplace at Crossbar restaurant (Affirmation in Support of Motion Sequence Number 05 [Supp 5] , Ex at 13). J [Tr Moers] He was stopping by the restaurant to get a drink and had been there three to 10 times in the past (id. at 14-15). When approaching the entrance area outside of the restaurant, there is a small step onto a platform and then another step leading to an upper platform and then a small lift to get to the doors (id. at 19-20; Supp 5, Ex K). Moers described the lighting by the entrance to the restaurant as "[t]errible, very dark" (Tr Moers 15-16). Moers, recounted that he was looking at the ground and the door and did not actually step 4 of 13 [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 4] NYSCEF DOC. NO. 139 INDEX NO. 152026/2013 RECEIVED NYSCEF: 03/28/2018 Index No.152026/13 Page 4 Moers v Mansion Realty II, LLC onto the second step; rather, his foot caught the step while he was walking and he tripped (id. at 20-21) . He stated that the step was not mis-leveled and did not have any cracks (id. at 22). He did not see the step, one of his feet caught the step as he was walking and he tripped forward (id. at 22). He crashed into the doors of the restaurant when he fell and his left index finger got lodged between the front doors (id. at 23-24, 95-97). After the accident, when he looked at the door he noticed that there was a space in between the doors but he could not remember how much space (id. at 101, 104). He explained that when he had been to the restaurant in the past, he never had difficulty seeing the step or walking up the steps (Moers Tr at 38, 80-81). He thinks that the lighting conditions on the day of the accident were the same as on his prior visits (id. at 82). His wife tripped on the step once and he believed that they said something to the restaurant but did not recall any details (id. at 38-39, Supp 5, Ex L [Transcript of Debra Moers Deposition] at 23, 29 [Ms. Moers testified that she had complained to the bartender that the step was dangerous because she had tripped] ) . Horvath Deposition Daniel Horvath was the General Manager of Crossbar at the time of the accident and filled out the incident report (Supp 5, Ex N [Horvath Tr] at 13, 23). 5 of 13 He recalled being in his [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 5] INDEX NO. 152026/2013 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 Index No.152026/13 Moers v Mansion Realty II, LLC Page 5 office when the bartender called and notified him that a gentleman tripped up the stairs and jammed his finger in the door. He came down and spoke with Moers who told him that he tripped, landed on the door and that his finger went in between the two doors and that "his body weight then closed the door on his finger" at (id. 25-26). Moers did not indicate the reason he tripped (id. at 27). After Moers was taken to the hospital, Mr. Horvath inspected the stairs and the doors and observed nothing out of the ordinary (Horvath Tr at 28) . doors to be self-closing He did not remember the at 28) . (id. To the best of his recollection, there were outdoor lights on either side of the door and street lights (id. at 29). Mr. Horvath gave no opinion on whether it was dark or light in the accident area He was (id.) . never made aware of any outdoor lighting issues, stair issues, door issues or building violations (id. at 35-36, inside, he structural 51, 57) would issue, Generally, change he it would management (id. at 31, 35). when there was a light out himself report and it if to there the were a Building's Other than the Moers incident, Mr. Horvath was unaware of any patrons being injured at the premises (id. at 16). 6 of 13 [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 6] NYSCEF DOC. NO. 139 INDEX NO. 152026/2013 RECEIVED NYSCEF: 03/28/2018 Index Moers v Mansion Realty II, LLC No.152026/13 Page 6 Experts In opposition to defendants' motions, plaintiff submits the affidavit of Stanley Fein,P.E. an engineering consultant (Opposition to Motion Sequence Number Af f] ) . Mr. 05 [Opp] , Ex [Fein F Fein visited the location of the accident on September 13, 2016 and read the "relevant portions" of the transcripts of the depositions of Mr. Horvath and Moers (id. at ~ He concludes that the premises did not have a 4) . Certificate of Occupancy in violation of the Building Code and that the accident was caused by the negligence of the owner because the Building hazardous condition was (id. maintained at ~~ in a dangerous and He further observed 4-5) . violations of the 2008 Building Code including an improper door, lack of handrails, an un-leveled landing, stairs with varying rise heights and inadequate lighting but he did not specify any measurements to support his findings. In Bernard Sequence response, P. 05 visited the defendants Lorenz, P. E. [Reply 05) , premises submitted (Affirmation Ex A the in affidavit Reply 2017 (id. at to Motion Mr. [Lorenz Aff]) in January of Lorenz ~ 1). He reviewed the Department Of Buildings Information System and submits that although there is no Certificate of Occupancy, there is a Letter of No Objection from 2010 approving the establishment for eating and drinking on the first floor along 7 of 13 [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 7] NYSCEF DOC. NO. 139 INDEX NO. 152026/2013 RECEIVED NYSCEF: 03/28/2018 Index Moers v Mansion Realty II, LLC No.152026/13 Page 7 with a 1990 approved application for new kitchen equipment in ~ an existing kitchen (id. at 6). He asserts that there was no need for a new Certificate of Occupancy, that the 1968 Building Code applies to the Building--not the 2008 Building Code that Mr. Fein relies on--and that the alleged violations do not apply to Crossbar (id. 04 [Reply 04] at ~~ 10-12). at~ 7[D]; Affirmation in Reply Mr. Lorenz found no evidence that the Building was not properly maintained, no hazard in the elevation between the threshold extension and the platform and nothing to substantiate Mr. lighting (Lorenz Aff at~ Fein' s claims of insufficient 7[E-G]). Analysis Summary Judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of material triable issues(see Glick & Dolleck v Tri-Pac Export Corp, 22 NY2d 439, 441 [1968] [denial of summary judgment appropriate where an issue is "arguable" J ; Sosa v 46th Street Develop. LLC, 101 AD3d 490, 493 [1st Dept 2012]). movant to judgment make as admissible a a prima matter of facie law showing by The burden is on the of entitlement presenting evidence to in form demonstrating the absence of any disputed material facts. "Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non-moving party bears no burden to otherwise persuade the Court against 8 of 13 [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 8] INDEX NO. 152026/2013 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 Index No.152026/13 Page 8 Moers v Mansion Realty II, LLC summary judgment. a prima facie Indeed, the moving party's failure to make showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers" met its heavy burden (id.). that It is only if the movant has the burden then shifts to the opponent to establish, through competent evidence, that there is a material issue of fact that warrants a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986)). Defendants minimum, and defendants failed to meet regardless of their heavy burden. which Building Code failed to establish that they kept entrance area in a reasonably safe condition. At a applies, the outdoor "Whenever the general public is invited into stores, office buildings and other places of public assembly, the owner is charged with the duty of providing the public with a reasonably safe premises, including a safe means of ingress and egress. In general, [the owner's] duty is to use reasonable care at all times and in all circumstances" (Gallagher Catholic Church, 21 NY2d 554 at 557 v St. Raymond's [1968]) Roman And, although "it is usually stated that the occupier of the land is not the insurer of the safety of those who enter with its permission, [the] 'obligation of reasonable care is a full one' . Thus, while it is not enough for a plaintiff merely to show that danger existed, if he demonstrates 9 of 13 that the defect which [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 9] INDEX NO. 152026/2013 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 Moers v Mansion Realty II, LLC Index No.152026/13 Page 9 caused . jury harm was of such character or duration that a could reasonably conclude that due care would have uncovered it, recovery may be had against the occupier of the land" (Putnam v Stout, 38 NY2d 607, 611-12 [1976]). Significantly, defendants have not demonstrated that the step was not inherently dangerous absent adequate lighting or a sufficient warning (see Haibi v 790 Riverside Drive Owners, Inc., 156 AD3d 144 [1st Dept 2017] [inadequate lighting itself may constitute a dangerous condition]; Lee vNew York City Tr. Auth., 138 AD3d 579, 579 Street Partnership, [1st Dept 2016] Inc., 96 AD3d 690 Rachlin v [1st Dept 34th 2012] [defendant failed to of fer evidence on lighting conditions] ; Amador v City of New York, 2012] 96 AD3d 475, see also Grazidei v Mezeny Inc., [Sup Ct, Kings defendant must condition was 475-476 26 Misc 3d 1221[A] County 2010] [in the absence of a demonstrate as a matter both open and obvious [1st Dept of and not law warning, that the unreasonably dangerous]; Miner vNorthport Yacht Club, 15 AD3d 362 [2d Dept 2005]; contrast Remes v 513 West 26th Realty, LLC, 73 AD3d 665 [1st Dept 2010] [summary judgment granted where photographs showed obvious drop in elevation, that trimmings outlined the steps and that bright lights illuminated the stairway]). Nor have they established that they neither created nor had notice of the alleged inadequate lighting (Lee, 138 AD3d 10 of 13 [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 10] INDEX NO. 152026/2013 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 Index Moers v Mansion Realty II, LLC No.152026/13 Page 10 at 579; Rodriguez v Board of Educ. AD3d 651, 651-652 of the City of N.Y., [1st Dept 2013]; Rachlin, 107 96 AD3d at 691; Amador, 96 AD3d at 476) . Plaintiff testified that the lighting at the entrance to the restaurant was "[t]errible, very Defendants dark." explain that there were no prior incidents or complaints about However, the adequacy of the lighting. Ms. Moers herself tripped in the past and testified that she complained about the step to a bartender There incident. was in no the year testimony or before Mr. evidence Moers' moreover establishing sufficient lighting of the entry path leading to Crossbar at Limelight lighting is necessarily whether the dangerous. Marketplace.* implicated The in adequacy of any inquiry as step was open and obvious and not In addition, the to inherently there was no indication of whether there were any cues that would minimize or negate any danger at the time of the accident. Because defendants have a duty of reasonable care and could be found responsible, defendants' motions for summary judgment are denied (Putnam v Stout, 38 NY2d 607 at 611-12 [1976]; Peralta v Henriquez, 100 NY2d 139 [2003] [defendant's relieve a creation plaintiff from of a having dangerous to prove condition notice of may the •There was evidence of lighting in other areas including a street light, lights illuminating the Building, lights illuminating the shrubbery and lights by the garbage area. 11 of 13 [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 11] INDEX NO. 152026/2013 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 03/28/2018 Moers v Mansion Realty II, LLC condition; jury should Index have been asked to No.152026/13 Page 11 determine if defendants knew or should have known existing lighting was not adequate] ; Gallagher, 21 NY2d at 557-58 [exterior of building should be lit during the times it is open to the public because the public is entitled to safe and reasonable means to enter and exit a building, which is a simple precaution that comes at a low cost to the owner]). Mansion additionally urges entitlement to summary judgment because it was an out of possession landlord and bore no responsibility premises. for the repairs or maintenance of the As Mansion not only retained the right of re-entry, but also agreed to maintain the Building and was in control of the common areas, liability may be imposed, because it has not sufficiently established that it was an out of possession landlord that had no responsibility over the outside area where the accident took place (Helena v 300 Park Ave., LLC, 306 AD2d 170 at 171 [1st Dept 2003]; Elsayed vAl Farah Corp., 132 AD3d 942 [2d Dept 2015] [owner failed to establish that it was out of possession and that the condition was open and obvious and not inherently dangerous]; Sublease at§§ 2.0l[b] and [ c ] , 7 . O1 , 7 . O2 ) . Mansion's argument that it is entitled to conditional summary judgment against Crossbar 12 of 13 for common law [*FILED: NEW YORK COUNTY CLERK 03/28/2018 11:48 AM 12] NYSCEF DOC. NO. 139 INDEX NO. 152026/2013 RECEIVED NYSCEF: 03/28/2018 Index No.152026/13 Moers v Mansion Realty II, LLC Page 12 indemnification because Crossbar was the active tortfeasor is denied based on the analysis (Supp 04 at Accordingly, it is ORDERED that ~~ 30, 47-49). motions for summary judgment by Mansion Realty II, LLC and Limelight Pub LLC d/b/a Crossbar are denied. This is the decision and order of the court. Dated: March 16, 2018 HON. J 13 of 13

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