Zuniga v 226 E. 54th St. Rest., Inc.

Annotate this Case

Download PDF

Zuniga v 226 E. 54th St. Rest., Inc. 2018 NY Slip Op 32929(U) November 15, 2018 Supreme Court, New York County Docket Number: 150473/2017 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: 1] NEW YORK COUNTY CLERK 11/26/2018 09:18 AM , NYSCEF DOC. NO. ..50 ··: INDEX NO. 150473/2017 RECEIVED NYSCEF: 11/26/2018 ;. f ~ i ~· l ~ ~ '' t·! suPRri~E COURT OF THE STATE OF NEW YORK COUNTIY OF NEW YORK : i . l Index No.: 150473/2017 onstartce Zuniga, -'". l c_•. I '. ;I Plaintiff, ! ' ; : DECISION/ORDER -against- Motion Sequence 001 226 EaJ~ 54th Street Restaurant, Inc., and Majestic ~-ealty)\ssociates LLC, ! ! I I ; ! Defendants. :! '' l j fAULJ!_; GOETZ, JS.C.: Plaintiff Constance Zuniga commenced this action after she slipped and fell on the stairs at d~fendants' premises located at 226 East 54th Street (the "Premises"). Defendant 226 East 54111 Street .' l' ! ; Restaur4Qt, Inc., the commercial tenant of the Premises, and defendant Majestic Realty Associates LLC, ' . ....I ~, the ownh of the Premises, now ~ove pursuant to CPLR 3212 for summary judgment dismissing the 'i. '' ii complaip~. f; Hi support of their motion, defendants first argue that the complaint should be dismissed because :; plaintifti¢annot identify the cause of her accidcrnt. It is well-established that a "plaintiffs failure to , l I . identify ~he defect that caused her injury and to attribute such a defect to defendants' negligence is fatal to l: her clairyif" (Godfrey v. Mancini Safe Corp., 121 A.D.3d 413, 414 [1st Dep't 2014]). Here, defendants establishJd their primafacie entitlement to summary judgment by demonstrating that the injured plaintiff was una~1e to identify the exact cause of her fall at her deposition. Affirmation of Lori F. Graybow dated ! ' • I May 31,:~018, Exh. I (Zuniga Dep. Tr. 35:2-13, 42:23-43:8, 43:24-44:2, 47:23-48:13). In opposition, .!'! howeveVthe plaintiff raised triable issues of fact by tendering the affidavit of Patricia Jefferson, an eyewitnHs to the accident, who stated that plaintiff fell on a something wet on the stairs and that her pants i -i ' were wclt!after the fall, Affirmation of John G. Papadopoulos dated July 27, 2018, Exh. B. Thus, the ~ i ., 1 complaiH canr10~ be dismisse9 on this basis (See Stanojevic v. Scotto Bros. Rest. Enters., Inc., 16 A.D.3d 575 [2d loep't 2005]). 1 2 of 6 ; i [*FILED: 2] NEW YORK COUNTY CLERK 11/26/2018 09:18 AM '' NYSCEF DOC. NO. ..50 : ' INDEX NO. 150473/2017 RECEIVED NYSCEF: 11/26/2018 : I P,efendants next argue that they are entitled to summary judgment because they did not create the ] I alleged ~azardous condition or have actual or ~onstructive notice thereof. A defendant who moves for i: sµmmatt\judgment in a slip-and-fall case has tpe initial burden of showing that it did not create the : '. . ;t . hazardou~ condition and did not have actual or constructive notice of that condition for a sufficient length . ! ' . i of time id discovery and remedy it (Giantomasp v. T. Weiss Realty Corp., 142 A.D.3d 950 [2d Dep't 1i ro I. 4016]). ·- t' meet their burden on constructive nptice, defendants are required to offer some evidence as to . ': }Vhen th~)accident site was last cleaned or insp~cted prior to the incident (Id). Reference to general { ;i . .· cleaning ~ractices is insufficient to establish a lack of constructive notice (Id). ;l : Here, defendants have failed to meet tl1is initial burden. Although defendants' witness, Humberto ~ampo~rde, the general manager of the resta4rant, testified about the general cleaning practices at the ",. t' I 1· restauraht, he did not state explicitly that these deaning practices were followed on the night of the i. ; ~ i?ciden(~Graybow Aff., Exh. K [Campoverde pep. Tr. 25:21-26: 15]). Nor did Mr. Campoverde know ;' ~hen th~llast time, prior to the accident, the stairs were inspected by one of his employees (Graybow Aff., Exh. K ~Campoverde Dep. Tr. 38:7-18, 44:4-23, 49: 13-21 ]). Defendants argue that the surveillance video '. ; ~ . . '' they su~itted in support of th~ir motion shows one of the busboys inspecting the stairs where plaintiff i ~ . fell app~tjximately 20-30 minutes before the accident (Graybow Aff., Exh. J [defendants state that the ; ; ~ideo s~ws the porter going down the stairs at 9:00 p.m. and back up the stairs at 9:02 p.m.]). Although it appea~~ from the video that this same individual came to mop the stairs after plaintiffs fall, there is i. otherwi~~ nothing which identifies him as an employee of the restaurant and Mr. Campoverde testified that he ~i~ not observe any of his employees go down the stairs during this period (Graybow Aff., Exh. K • i [Campo~brde Dep. Tr. 44: 19-23]). It is also unclear whether this individual actually inspected the stairs or : . merely ~hlkecJ up and down to use the bathroom. Further, unlike the defendant in Fellner v. Aeropastel, .' Inc., 150 ~.D.3d 598, 599 (1st Dep't 2017), the defendants here failed to submit any testimony from an i' : i 'I eyewitnf~s about the condition of the stairs prior to plaintiffs accident. Since defendants have failed to meet th~i~ primafacie burden on the issue of ~onstructive notice, there is no need to reach the sufficiency .' . of plain~i~fs opposition papers (Alvarez v. Prpspect Hosp., 68 N.Y.2d 320, 324 [1986]). ! 2 I I i l ; i ; i 3 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 11/26/2018 09:18 AM NYSCEF DOC. NO. 50 INDEX NO. 150473/2017 RECEIVED NYSCEF: 11/26/2018 ; ; ~efendants n~xt argue that the claims against defendant Majestic Realty Associates LLC, should ': ! • t ~ be dism{~sed because it is an out-of-possessiol) landlord. It is well-established that "[a]n out-of-possession l~ndlor~ Js generally not liable for negligence with respect to the condition of property unless it is either :; 'I contract~lly obligated to make repairs and/or maintain the premises or has a contractual right to reenter, inspect ~?d make needed repairs at the tenant'~ expense and liability is based on a significant structural or j j design ~~feet that is contrary to a specific stat~tory safety provision" (Sapp v. S.J.C. Lenox Ave. Family f.-.P., l5~\A.D.3d 525, 527 [lst Dep't 2017] [i~temal quotations and citations omitted]). Here, defendant ':: rytajestiq has met its initial burden of demonstr~ting that, with respect to the staircase where plaintiff j l slipped, '.t~ere was a "transfer of possession and control" from defendant Majestic, the landlord, to pefendabt 226 East 54th Street, the commercial.tenant as the lease between the defendants provides that . '~ : the tenant shall be responsible for taking care qfthe premises at its sole cost and expense and must make '· ; .~ .' .' ' all non-stf-uctural repairs thereto (Graybow Aff., Exh. M, ~ 4; see also Exh. M, ~~ 42, 43 [renovations and .' !: _' i I repairs ~all be tenant's responsibility], ~ 54 [~uty of tenant to maintain and keep a clean and orderly : - place o~~usiness ]). '. t; ~efendant Majestic also satisfied its primafacie burden of demonstrating that neither of the ': exceptiq~s to the out-of-possession landlord doctrine apply. First, the lease provisions cited by Majestic clearly ~ot d~ablish that it did not have a contract1.1al obligation to maintain the premises. Second, whether or t~ defehpant Majestic had a right to reenter the leased premises, defendant Majestic has demonstrated, . ' through ~he affidavit of its expert witness, that the accident was not caused by a structural or design defect li ' that viol~ed a specific statutory provision (Sapp, 150 A.D.3d at 528). In her bill of particulars, plaintiff . i"! : ~ ! alleges tJiat defendants violated, in pertinent part, the Multiple Dwelling Law and sections 153 and 27:: 3·75 oftb~ Building Code of the City of New York (Graybow Aff., Exh. D, ~~ 31-32). However, these . h: allegatitjqs are rebutted by the affidavit from defendants' engineering expert, Scott E. Derector, P.E . .; '' (Graybo\l, Aff., Exh. L). In his affidavit, Mr. Derector first states that the Multiple Dwelling Law is not :i applicabl~ to thc;i subject premises because it i,s a commercial establishment (Graybow Aff., Exh. L, ~ 26; [I .: ," ~ , ~ see alsofitultiple Dwelling Law,§ 4 [defining "dwelling"]). Mr. Derector also states that there can be no ~ ~ ; l 3 .: ;' ~ ~ :; 4 of 6 ..... ' [*FILED: 4] NEW YORK COUNTY CLERK 11/26/2018 09:18 AM NYSCEF DOC. NO. '50 j INDEX NO. 150473/2017 RECEIVED NYSCEF: 11/26/2018 ;! J f violatio~ bf section 27-3 75 of the New York C,ity Administrative Code, which applies to "Interior Stairs." :i ~ection 27-232 . . ;! of the Code defines an "Interior Stair" as a "stair within a building, that serves as a . require~ bxit." Here, the subject staircase led to the basement for purposes of accessing the bathrooms and . ;! 'r did not ~1rve as a required exit. Section 153 of the Building Code is also inapplicable as this refers to the ...: 1915 buj\ding code, which is not applicable to the subject premises. Finally, Mr. Derector found that the ' !( light test performed at the premises yielded a light level of 3.0 foot-candles, which exceeds the building code'~ Jtguirement. Thus defendant Majestic })as established its prima facie burden of showing that the . }i . ~ccident:Hvas not caused by a violation of a spt':cific statutory provision. In her opposition, plaintiff fails to .. t; s'Ubmit ail affidavit from her own expert or oth~rwise raise an issue of fact and thus defendant Majestic is ' :! . ! ! entitled t6 summary judgment dismissal of the complaint. :l f]inally, defendants ask the court to m~ke numerous factual findings pursuant to CPLR 3212(g), .: : ,· ~hich ttj~y argue are supported by the motion papers and certain admissions in plaintiff's deposition . . ~ '. ~estimori)f. CPLR 3 212(g) permits the court, in jts discretion, to limit issues of fact for trial by specifying fyhich fd4ts are not in dispute (Garcia v. Tri-County Ambulette Service, Inc., 282 A.D.2d 206, 206 [1st ' " : ! Dep't 2001 ]). Although the court declines to sift through the panoply of factual issues which defendants . ..' contendictre incontrovertible, as discussed above, defendants have established in their motion papers that , ~ ! the acci~bnt could not have been caused by a violation of the Multiple Dwelling Law or sections 153 and 27-375 Qfthe New York City Administrative Code. Thus, these factual issues are deemed resolved. l j 4ccordingly, it is bRDERED that defendants' motion for summary judgment is granted only to the extent of Ctismissi~ the complaint as against defendant Majestic Realty Associates LLC and is otherwise denied; ;: ~n4 it is :f:urther .: lJRDERED that the complaint is dismissed in its entirety as against said defendant, with costs and i ! disburs6hents to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgme<l~ accordingly in favor of said defend~nt; and it is further ;: :I 4 ; I 5 of 6 [*FILED: 5] : ' NEW YORK COUNTY CLERK 11/26/2018 09:18 AM : I •I l NYSCEF DOC. NO.. : 50 INDEX NO. 150473/2017 RECEIVED NYSCEF: 11/26/2018 : i pRDERED that the action is severed and continued against the remaining defendant; and it is ~ 1 further .. ~; i: pRDERED that the caption be amended to reflect the dismissal and that all future papers filed with the\{ourt bear the amended caption; and i~ is further \: QRDERED that pursuant to CPLR 3212(g), it is hereby determined that the accident was not 'l ; ~aused ~~a violation of the Multiple Dwelling Law or§§ 153 and 27-375 of the New York City . : Admini~trative Code. . . ~ated: November tJ,2018 ''. HO~ .: ''. ·. ! 5 6 of 6

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.