Grant v Metropolitan

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Grant v Metropolitan 2018 NY Slip Op 31824(U) August 1, 2018 Supreme Court, New York County Docket Number: 150603/16 Judge: Paul A. Goetz 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 08/01/2018 04:18 PM 1] NYSCEF DOC. NO. 48 INDEX NO. 150603/2016 RECEIVED NYSCEF: 08/01/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Hon. Paul A. Goetz. JSC PART_'\~_ PRESENT: Justice INDEX No. \ so loo& 116 MOTION DATE _ _ _ __ -V• 06L MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affi~ayits- ~xhibits - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s),,_ _.,__ __ I No(s). _ ___;7.-;...__ __ I No(s). _ __.e;3_ __ In this personal injury trip and fall action, defendants move for summary judgment pursuant to ,_ • C.P.L.R. § 3212 seeking dismissal of the complaint. On February 28, 2015, plaintiff Dov Grant attended an opera at the Metropolitan Opera House located at Lincoln Center in Manhattan. During the first intennission, he descended the stairs and allegedly tripped over the legs of a patron who was sitting in the aisle with his legs outstretched and suffered injuries (Verified Complaint dated September 30, 2015, ~ 16). Plaintiff alleges negligence on the part of Lincoln Center for the Performing Arts ["Lincoln Center"], the owner of the opera house, and Metropolitan Opera Association, Inc. ["The Met"], the lessee and operator of the opera house, in failing to prevent the existence of a dangerous condition (id.,~ 17). The Met argues that it cannot be held liable for plaintiffs injuries because the act of the patron sticking his leg out into the aisle and causing plaintiff to fall was an independent, intervening act that was not a normal or foreseeable consequence of defendant's alleged negligence. It is well-established that "[w ]here the acts of a third person intervene between the defendant's conduct and the plaintiffs injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315 [1980]; see also De 'L.A. v. City of New York, 158 A.D.3d 30, 36 [l st Dep't 2017). Since questions regarding what is foreseeable or not "may be the subject of varying inferences ... these issues generally are for the fact finder to resolve" (Derdiarian, 51 N. Y .2d at 315). In this case, it cannot be said as a matter of law, that it was unforeseeable that a person sitting in the aisle of the theater would stick out his leg and cause another patron to trip and fall. Indeed, James Naples, House Manager at the Met, testified at his deposition that if an opera employee would see a patron sitting in an aisle of the theatre, the employee would ask the patron to get up to prevent another person from tripping over that person (Beyrer Aff'm, Ex. J, p. 17-19). Thus, the Met was clearly aware of the risks posed by a patron sitting in the aisle. Dated: -----~~:-h~'- - - • J.S.C. ---W"'-""--- 1. CHECK ONE: ............................................"....................... 0 CASE DISPOSED 0DENIED 2. CHECK AS APPROPRIATE: .........,.................MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER ODO NOT POST 1 of 6 0 lffNON-FINAL DISPOSITION SlGRANTED IN PART 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 08/01/2018 04:18 PM 2] NYSCEF DOC. NO. 48 INDEX NO. 150603/2016 RECEIVED NYSCEF: 08/01/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Hon. Paul A. Goetz. JSC PART 'fit INDEX No. PRESENT: I r-o 6o311 ~ Justice MOTION DATE _ _ _ __ MOTION SEQ. NO. C) CJ 2_ The following papers, numbered 1 t o _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ _ __ INo(s),__ __ __ t Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits- Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ -z... ____ .... 3.....____ Upon the foregoing papers, It is ordered that this motion is ~ <O D .., e ~ « UJ tb x .. 3f ~ co 25 UJ A. <O 0 UJ Z * ~8 The Met cites to Po/ye v. Nederlander Org., 131A.D.3d1031, 1032 [2d Dep't 2015) in support of its argument. In Polye, a patron of a Broadway show sat in the aisle of the theater during the entire show. At the conclusion of the show, plaintiff got up to leave the theater and attempted to go around the patron who was seated in the aisle. At that point, the patron in the aisle stood up and spread her coat open, causing plaintiff to fall down the aisle. The Second Department held that any negligence on the part of the defendant in allowing the patron to sit in the aisle was not the proximate cause of the accident (Id. at 1031). "[!]he patron's act of spreading her coat open in the aisle after the show ended was an independent, intervening act that was not a normal or foreseeable consequence of the situation created by the defendants' alleged negligence" (Id. at 1031-32). Polye is distinguishable from the case at hand. In Polye, the act of standing up and spreading open a coat, thereby causing plaintiff to fall, "was not a normal or foreseeable consequence of the situation created by the defendants' alleged negligence" (id.). Here, by contrast, it cannot be said that it was unforeseeable that a person sitting in the aisle would stick out his leg and cause someone passing by to fall. A person sitting in an aisle can be expected to move his limbs and change positions, including sticking out his leg. Indeed, as mentioned above, Metropolitan was clearly aware of such risks as it had a policy in place to remove people sitting in the aisle. Thus, a reasonable jury can conclude that the patron's act of sticking out his leg was a foreseeable consequence of allowing the patron to sit in the aisle and summary judgment is inappropriate on this basis. UJ ..J (Q ..J < ~ fl UJ Qf a~ -----w-1--1·.______, Dated:----~"'--- 1. CHECK ONE: ............................,........................................ 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRlATE: ................................................ 0 0 0 ~NON-FINAL DISPOSITION CASE DISPOSED GRANTED 0 DENIED 2 of 6 ~RANTED IN PART 0 SETTLE ORDER ODO NOT POST J.s.c. 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [*FILED: NEW YORK COUNTY CLERK 08/01/2018 04:18 PM 3] NYSCEF DOC. NO. 48 INDEX NO. 150603/2016 RECEIVED NYSCEF: 08/01/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART Justice 't':\- INDEX NO. l Jo 6 0 S/ ( b MOTION DATE _ _ _ __ •V• 06 L MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _,..-_ _ _ _ _ _ __ ___ Notice of Motion/Order to Show CauH - Affidavits - Exhibits Answering Affidavits- E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Ui ~ <O ..., D g 0 ~~ a: UJ th .. x §f ~ co UJ ti. <O 25 * 0 U.J Z ~8 UJ ..J (Q .... <o 2 u. z UJ Qf a~ INo(s)..__~I I No(s). --...,.2-......--1No(s). _ _ ::s _ __ Upo11 the foregoing papers, it is ordered that this motion is Next, the Met argues that it cannot be held liable for plaintiffs injuries because it did not create the allegedly dangerous condition that existed at the premises nor had actual or constructive notice thereof. It is well-established that "[a]n owner of land has a duty under the common law to maintain its premises in a reasonably safe condition" (Kellman v. 45 Tiemann Assoc., Inc., 87 N.Y.2d 871, 872 [1995] [internal citations and quotations omitted]). "This duty applies with equal force to landowners and tenants who operate places of public assembly, such as theaters, and requires them to provide members of the public with reasonably safe premises, including safe means of ingress and egress" (Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 322 [1st Dep't 2006]). "However, as a prerequisite for recovering damages, a plaintiff must establish that the landlord created or had either actual or constructive notice of the hazardous condition that precipitated the injury" (Irizarry v. 15 Mosholu Four, LLC, 24 A.D.3d 373, 373 [1st Dep't 2005]). ''To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 [1986]). Here, there are several factors that could lead a jury to conclude that the Met had constructive notice of the dangerous condition at the premises. Honey Grant, plaintiffs wife who attended the performance with him, testified at her deposition that she noticed a patron in the aisle when she got up to use the restroom (Beyrer A.ff'm, Ex. I, p. 17). Plaintiff testified at his deposition that he waited approximately 15 to 20 minutes after his wife left before getting up to use the restroom during intermission at which point the patron was still sitting in the aisle (Beyrer A.ff'm, Ex. H, p. 36). Further, the lights were on during the intermission (Beyrer A.ff'm, Ex. H, p. 35) and there were approximately six ushers stationed in the family circle area where the accident took place (Beyrer AjJ'm, Ex. J, p. 17). Based on this evidence, a jury may conclude that that the patron w~s sitting in the aisle for at least 15-20 minutes before the incident and that one of the six ushers working in the area should have noticed him. Thus, there is an issue of fact as to whether the Met had constructive notice of the dangerous condition. Dated: , ¥ ~ 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 0 GRANTED 3. CHECK IF APPROPRlATE: ......................................,......... 0 12SDNON-FINAL DISPOSITION SETTLE ORDER 1. CHECK ONE: ..................................................................... CASE DISPOSED ODO NOT POST 3 of 6 0 ,J.S.C. DENIED ~RANTED IN PART 0 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [*FILED: NEW YORK COUNTY CLERK 08/01/2018 04:18 PM 4] NYSCEF DOC. NO. 48 INDEX NO. 150603/2016 RECEIVED NYSCEF: 08/01/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Hon. Pou\ A. Goetz. JSC PRESENT: PART 't1: Justice INDEX NO. j )lJ00 S/ / C, MOTION DATE _ __,__ _ •V• 0_0_L_ MOTION SEQ. NO. __ The following papers, numbered 1 to _ _ , were read on this motion to/for ~-----------------~ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits- E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s),.___.,...l_ __ I No(s). _ _ 'Z-.....-_ _ INo(s). _ _ _ __ 3_· Upon the foregoing papers, it is ordered that this motion is ~ •fo .., ··D e §} ar:: ~ x .. §f ~ c~ ~~ <O 0 U.J Z ~~ U.J ..I <O 0 < 2 LI. UJ ~f a2 The Met cites to Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319 [1st Dep't 2006] in support of its argument that it did not have constructive notice. In Branham, plaintiff went to see a movie at the Loews Cinema in Manhattan (id at 319). At one point during the movie, plaintiff left the theater to go to use the restroom, using the center aisle (id.). As she left the theater, she did not observe anyone in the aisle (id.). It was very dark in the theater when she left and when she returned (id.). Plaintiff testified at her deposition that she was gone from the theater for about seven or eight minutes (id.). When she returned to her seat, she tripped over a young boy who was sitting in the aisle and she sustained injuries (id. at 320). Plaintiff sued Loews, the operator of the theater, alleging that it was negligent in allowing a child to occupy the aisle and thereby create a dangerous condition (id.) . . Lowes moved for summary judgment, arguing that it did not have constructive notice of the alleged dangerous condition of the boy sitting in the aisle (id. at 321). The First Department granted Lowes' motion, agreeing with Lowes that it did not have constructive notice of the condition (id. at 323). Plaintiffs testimony established that the boy was not sitting in the aisle for more than eight minutes before the accident occurred (id.). "This time line, supplied by plaintiffs own testimony, [negated] any inference that the boy was present for a sufficient period of time to permit an inference of constructive notice" (id.). There are several factors that distinguish the case at hand from Branham. Unlike Branham, the evidence in this case shows that the patron may have been sitting in the aisle for at least 15-20 minutes before the accident occurred. Furthermore, unlike Branham, the theater was well-lit during the intermission and there were several ushers stationed in that area that could have the patron sitting in the aisle. Based on these factors, a jury could rationally conclude that the Met could have discovered the patron sitting in the aisle. -------'l~i.++·---• J.S.C. Dated: _ _·_.~.__ __ 1. CHECK ONE: ........... l......................................................... 0 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ ~NON-FINAL DISPOSITION CASE DISPOSED D GRANTED 0 0 SETTLE ORDER ODO NOT POST 4 of 6 DENIED )lGRANTED IN PART 0 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [*FILED: NEW YORK COUNTY CLERK 08/01/2018 04:18 PM 5] NYSCEF DOC. NO. 48 INDEX NO. 150603/2016 RECEIVED NYSCEF: 08/01/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Hon. Poul A Goetz. JSC PRESENT: PART Justice 'ft 1NoEXNo. l 5"--0bo3/ I b MOTION DATE _ _ _ __ •V• MOTION SEQ. NO. The following papers, m1mbered 1 to _ _ , were read on this motion to/for 0 6L ~-------------~ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits- Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s),.,_ _ I No(s). _ _"1...--_ __ _ I No(s). _ ____ '3 ..1.-_ __ Upon the foregoing papers, it is ordered that this motion is Ui ~ D .., g 0 &d CIC UJ tt .. x §f ti g 25 UJ 1:1. <O 0 UJ Z * ~8 UJ :l < 2 LI. (0 0 UJ ~f a2 Finally, in support of its motion, the Met argues that it cannot be held liable for plaintiff's injuries because plaintiff admitted that he caused his own accident. To support this contention, moving defendants cite to a report prepared by Metropolitan Security Department after the accident which states that Mr. Grant said that he "missed a step and fell down the steps landing by Row B" (Beyrer Aff'm, Ex. G. ). However, at his deposition, plaintiff testified that he fell because he tripped over the patron's leg (Beyrer Aff'm, Ex. H, p. 40). At a minimum, an issue of fact exists at to the cause of plaintiff's injuries and thus summary judgment must be denied . With respect to the Lincoln Center, defendant argues that the Lincoln Center cannot be held liable for plaintiffs injuries because it is an out-of-possession landlord with no duty to plaintiff. "It is well settled that a landlord is not generally liable for negligence with respect to the condition of property after its transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs or maintain the premises, or has a contractual right to reenter, inspect and make needed repairs at the tenant's expense, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision" (Malloy v. Friedland, 77 A.D.3d 583, 583 [1st Dep't 201 O] [internal citations and quotations omitted]). Here, the Lincoln Center was not contractually obligated to make repairs to the premises. Pursuant to Article 8 of the lease between the Lincoln Center and the Met, the Met is obligated "to take good care of the Opera House and to keep the same in good order and condition, and to promptly make all necessary repairs thereto" (Beyrer Aff'm, Ex. L., p. 32). Although the NYC Building Code requires the &isles td be kept clear, the presence of a patron in the aisle is not a significant structural or design defect and thus cannot impose liability on an out-of-possession landlord such as the Lincoln Center (See Varga v. NorthRealty Co., 123 A.D.3d 639, 640 [1st Dep't 2014]). Therefore, the Lincoln Center cannot be held liable for plaintiff's injuries. ------~~Tr>---'' J.S.C. Dated:--·-~_....____ 2. CHECK AS APPROP~IATE: ...........................MOTION IS: 0 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 1. CHECK ONE: ..................................................................... CASE DISPOSED 0 5 of 6 0 0 ODO NOT POST . 5' o<f- DENIED (o )2'.:; NON-FINAL DISPOSITION JGRANTED IN PART 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT .0 REFERENCE [*FILED: NEW YORK COUNTY CLERK 08/01/2018 04:18 PM 6] INDEX NO. 150603/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/01/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART Hon. Pai 1J A Goetz, JSC Justice it INDEX NO. j )U (Q 03/ /,6 MOTION DATE _ _ _ __ •V• MOTION SEQ. NO. c)Q 2 The following papers, numbered 1 t o _ , were read on this motion t o / f o r - - - - - - - - - - - . . . . . - - - - I No(s),__l_ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Exhibits__________________ I No(s). __·7-~--- Replying Affidavits______________________ I No(s). _ _.:;;;::3:_____ Answering Affidavits - Upon the foregoing papers, it is ordered that this motion is . ~ \""-•' s Accordingly, it is Cente~~otion U.i ~ <O D .., g 0 8~ a:: UJ tfj x .. §f ~ ORDERED that the Lincoln for summary judgment is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further ORDERED, that the action is severed and continued against the remaining defendant the Met; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving party shall e-file a "Notice to County Clerk" form (form EF-22, available on NYSCEF) along with a copy of this order with notice of entry and upon such service, the Clerk is directed to mark the court's records to reflect the change in the caption. co UJ 25 * a. <O 0 UJ Z ~~ U) .J (Q 0 < u. ~ UJ Qf a2 ~,JS~. H:PQ;;G0e~ Dated: 1. CHECK ONE: ........... ~......................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 rtSl)NON-FINAL DISPOSITION CASE DISPOSED GRANTED 0 DENIED 0 SETTLE ORDER ODO NOT POST 6 of 6 0 0 /OORANTED IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE

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