Coelho v S & A Neocronon, Inc.

[*1] Coelho v S & A Neocronon, Inc. 2018 NY Slip Op 50804(U) Decided on June 4, 2018 Supreme Court, Suffolk County Berland, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 4, 2018
Supreme Court, Suffolk County

Joel Coelho, Plaintiff,

against

S & A Neocronon, Inc., and ANTHOULA PALOUBIS, Individually d/b/a S & A VILLAGE SQUARE, Defendants.



15-9751



BORDA, KENNEDY, ALSEN & GOLD, LLP

Attorney for Plaintiff

1805 Fifth Avenue

Bay Shore, New York 11706

FRENKEL LAMBERT WEISS

WEISMAN & GORDON LLP Attorney for Defendants

53 Gibson Street

Bay Shore, New York 11706
Sanford N. Berland, J.

Upon the following papers numbered 1 to 21 read on this motion for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers 1-13 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 14-19; Replying Affidavits and supporting papers 20-21; Other; it is,

ORDERED that defendants' motion for summary judgment in their favor is granted.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Joel Coelho on March 6, 2015, at approximately 7:15 p.m., when he slipped and fell on ice on the sidewalk of a strip mall located at 22-44 East Main St., Babylon, New York. The property is owned by defendant S & A Neocronon, Inc.; Anthoula Paloubis is the president and sole shareholder of S & A Neocronon. On the date of the accident, plaintiff was working as a food delivery manager, or expediter, for Mulberry Street, a restaurant operated by ACA Cronos Inc., which leases space at the strip mall. Plaintiff's job duty at the time of the accident was to assemble food orders for delivery by the restaurant's drivers.[FN1] In his verified complaint, plaintiff alleges that defendants were negligent, among other things, in failing to maintain, manage and control the premises in a reasonably safe condition, which caused him to fall.

Defendants now move for summary judgment in their favor, contending that they are an out-of-possession landlord of the premises and that their written lease agreement with ACA Cronos, Inc. required the latter to maintain the sidewalk adjacent to its restaurant and to keep it clear of ice and snow. Defendants also contend that plaintiff cannot identify the precise defect that caused him to slip and that, in any event, he has failed to establish that they created the claimed hazardous condition or had actual or constructive notice of any such condition on the premises.

It is well settled that the proponent of a summary judgment motion bears the initial burden of establishing his or her entitlement to judgment, as a matter of law, in his or her favor by offering admissible evidence sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]; Zuckerman v City of New York,49 NY2d 557, 427 NYS2d 595 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of any opposition thereto (Winegrad v New York Univ. [*2]Med. Ctr., supra). Once the movant has made the requisite showing, the burden then shifts to the opposing party, requiring him or her to present admissible evidence and facts sufficient to require a trial on any issue of fact (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, supra). On such a motion, the Court is charged with determining whether issues of fact exist while viewing any evidence in a light most favorable to the nonmoving party; the Court is not responsible for resolving issues of fact or determining matters of credibility (see Chimbo v Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Pearson v Dix McBride, LLC, 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v Bolivar, supra; Benetatos v Comerford, 78 AD3d 730, 911 NYS2d 155 [2d Dept 2010]).

"Although a jury determines whether and to what extent a particular duty was breached, it is for the court to first determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally" (Cupo v Karfunkel, 1 AD3d 48, 51, 767 NYS2d 40 [2d Dept 2003], quoting Tagle v Jakob, 97 NY2d 165, 168, 737 NYS2d 331 [2001]. Liability for a dangerous condition on real property is generally based on ownership, possession, control or special use of such property (Casson v McConnell, 148 AD3d 863, 49 NYS3d 711 [2d Dept 2017). An owner or possessor of real property has a continuous duty to maintain such property in a reasonably safe condition considering all of the circumstances, such as the likelihood and seriousness of injury to others and the burden of avoiding the risk (Cupo v Karfunkel, supra; see Basso v Miller, 40 NY2d 233, 241, 386 NYS2d 564 [1976]). Generally, whether a dangerous condition exists on real property is an issue to be determined by the jury based on the unique facts of each case (DeLaRosa v City of New York, 61 AD3d 813, 813, 877 NYS2d 439 [2d Dept 2009]; see Trincere v County of Suffolk, 90 NY2d 976, 977, 655 NYS2d 615 [1997]). An owner or possessor's duty of care may also arise under statute or regulation, or it may be assumed by agreement or course of conduct (see Chapman v Silber, 97 NY2d 9, 734 NYS2d 541 [2001]; Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 929 NYS2d 620 [2d Dept 2011]).

"[A]n owner of premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that the owner either created or had actual or constructive notice of the condition" (Bolloli v Waldbaum, Inc., 71 AD3d 618, 619, 896 NYS2d 400 [2d Dept 2010], quoting Curiale v Sharrotts Woods, Inc., 9 AD3d 473, 474-475, 781 NYS2d 47 [2d Dept 2004]; see Crosthwaite v Acadia Realty Trust, 62 AD3d 823, 879 NYS2d 554 [2009]; Voss v D & C Parking, 299 AD2d 346, 749 NYS2d 76 [2002]; Whitt v St. John's Episcopal Hosp., 258 AD2d 648, 685 NYS2d 789 [1999]). Constructive notice requires that "[the] condition must be visible and apparent, and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it" (Bolloli v Waldbaum, Inc., supra, quoting Deveau v CF Galleria at White Plains, LP, 18 AD3d 695, 769 NYS2d 119 [2d Dept 2005]). A defendant seeking summary judgment in a slip-and-fall case bears the burden of establishing, prima facie, that he or she neither created nor had actual or constructive notice of the alleged hazardous or defective condition (see Mandarano v PND, LLC, 157 AD3d 664, 66 NYS3d 631 [2d Dept 2018]; Jackson v Jamaica First Parking, LLC, 91 AD3d 602, 936 NYS2d 278 [2d Dept 2012]).

Generally, an out-of-possession landlord will not be held liable for injuries that occur on leased premises after possession of the property has been transferred to a tenant, unless the [*3]landlord retains control over the premises or is contractually obligated to repair unsafe conditions or itself created them (see Valenti v 400 Carlls Path Realty Corp., 52 AD3d 696, 861 NYS2d 357 [2d Dept 2008]; Yadegar v International Food Mkt., 37 AD3d 595, 830 NYS2d 244 [2d Dept 2007]; Dunitz v J.L.M. Consulting Corp., 22 AD3d 455, 803 NYS2d 653 [2d Dept 2005]). However, reservation of a right to enter the premises for purposes of inspection and repair is insufficient to charge the owner with liability for a subsequently arising dangerous condition unless the defect violates a specific statutory provision and there are significant structural or design defects (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 516 NYS2d 451 [1987]; Couluris v Harbor Boat Realty, Inc., 31 AD3d 686, 820 NYS2d 282 [2d Dept 2006]; Eckers v Suede, 294 AD2d 533, 743 NYS2d 129 [2d Dept 2002]; Stark v Port Auth. of NY & N.J., 224 AD2d 681, 639 NYS2d 57 [2d Dept 1996]). Conversely, when an out-of-possession landlord has retained sufficient control over the leased premises, he or she will be held liable for injuries to another if he or she affirmatively created or has actual or constructive notice of a dangerous condition for such a period of time that, when exercising reasonable care, he or she could have corrected it (see Thompson v Town of Brookhaven, 34 AD3d 448, 825 NYS2d 83 [2d Dept 2006]; Abrams v Berelson, 283 AD2d 597, 725 NYS2d 81 [2d Dept 2001]).

Viewing the record in the light most favorable to plaintiff and according the plaintiff every favorable inference, as the court must (see, e.g., Sampino v. Crescent Assocs., LLC, 34 AD3d 779, 781 [2d Dept 2006]), it is evident that there are issues of fact both with respect to the nature and extent of defendants' residual control over the area where plaintiff's accident occurred and as to their constructive knowledge of the condition that led to it.

Plaintiff testified that when he arrived at work at 4 pm on the day of the accident - March 6, 2015 - it was still light out and, although cold, "a little bit warmer for that time of year." It was not snowing or raining that day, and although he did not observe any snow or ice on the sidewalk outside Mulberry street itself, there were four- to five-foot-tall piles of snow along the edge of the sidewalk, where the "curb and the asphalt" - of the parking lot - "meet." Plaintiff entered the restaurant and went to work behind the counter, assembling boxes for the evening "rush." He did not go outside again until several hours later, between 7 and 8 pm in the evening, when he brought a box of pizza with a bag on top of it out to a delivery driver who had left those items behind. Plaintiff testified that he walked out of the restaurant, across the sidewalk and through a "cutout" in the snow that lay along the edge of the sidewalk and curb and handed the food to the driver, who had stepped out of his vehicle and was standing at its driver's side. He then reversed his course, walking back through the cutout. As he stepped out of the cutout and turned to retrace his steps back to the restaurant, he slipped and fell. Although he had not seen the ice before he fell, he felt it when he was lying on the sidewalk [FN2] . He was taken buy [*4]ambulance to good Samaritan Hospital in West Islip, where, inter alia, he underwent surgery for the reduction and fixation of a bimalleolar fracture of his left ankle. Subsequently, he was treated for, among other things, a pulmonary embolism and deep vein thrombosis, which he also alleges were the result of the accident.

Although defendants contend that they retained neither possession nor control over the premises occupied by Mulberry Street - described in the lease simply as "the store in Peter Square known as 30-32 East Main Street, Babylon, NY" - and, further, that they were absolved of responsibility for keeping the adjoining sidewalk in a safe condition by Paragraph 57 of the rider to the lease agreement between defendant S & A Neocronon and the owner and operator of the restaurant, ACA Cronos, Inc., which recited that "[the] Tenant agrees to keep the sidewalk, curbs, common areas and areas adjacent to the demised Premises neat, clean and presentable at all times and free from snow, ice, debris, garbage and litter" and that "[t]enant agrees only to use Calcium Chloride as a de-icer on the sidewalk," other provisions of the same lease agreement suggest that the defendants did retain possession and control of the sidewalk as well as other common areas. Thus, Paragraph 28 of the lease rider defines the "Landlord's Property" to include not only the numbered store fronts - 22 through 40 East Main Street - and the building in which they are housed - but also "all the adjacent areas, common areas and parkings areas . . . ," while the Tenth Paragraph of the lease recites that "the Tenant shall neither encumber nor obstruct the sidewalk in front . . . of the premises, nor allow same to be obstructed or encumbered in any manner." In Lupo v. Montauk Properties, LLC, 20 AD3d 398 [2d Dept 2005], in which, as here, the plaintiff alleged that she was injured when she slipped and fell on ice on the sidewalk adjacent to the premises leased by her employer within a shopping center owned by the defendant, the Appellate Division held that lease provisions analogous to those here "raised a triable issue of fact as to whether the defendant retained possession and control of the sidewalk and other common areas," requiring denial of the defendant's motion for summary judgment [id., 20 AD3d at 398]. (See generally Sampino v. Crescent Assocs., LLC, supra, 34 AD3d at 782.) Further, there are issues of fact with respect to the defendants' at least constructive knowledge of the allegedly defective condition, specifically, the standing piles of snow, which, plaintiff testified, had been created along the edge of the sidewalk [FN3] , where the curb [*5]met the strip mall's common parking area [FN4] , and at the base of which ice allegedly formed [FN5] level="1"> (see Weisenthal v. Pickman, 153 AD2d 849, 545 N.Y.S.2d 369, 371 [2d Dept 1989]).

Accordingly, defendants' motion for summary judgment in their favor on the issue of negligence is denied.

Dated: June 4, 2018

________________________________

Acting Justice Supreme Court Footnotes

Footnote 1:The overall restaurant manager on the premises at the time of the accident was Anthoulis, or "Andy," Paloubis, one of the principals of ACA Cronos, Inc.

Footnote 2:Although plaintiff's verified bill of particulars stated that the "occurrence took place on the sidewalk in front of Mulberry Street, 30 E. Main Street, Babylon, New York," in his deposition, plaintiff placed the spot where he fell on the sidewalk adjacent not to Mulberry Street but to the storefront just south of the restaurant. In support of their motion for summary judgment, the only lease defendants provided was for the premises occupied by Mulberry Street. They did, however, provide a copy of the full transcript of the deposition of defendant Anthoula Paloubis, the sole shareholder and president of S & A Neocronon, Inc., who testified that that although she was unsure if all of the tenants of the strip mall signed lease agreements "of the same content" of the partly form lease agreement between her company and ACA Chronos, Inc. and that they had different leases "[t]o a point," Mrs. Paloubis testified that the tenants were required to "clean the front of their store and apply sand, or whatever melt if there was any [to] snow or ice," and provided an affidavit in which she made similar averments as well as denying having created or having engaged anyone to create snow piles or cut outs along the curb line of the strip mall at the time in question, as well as denying knowledge or having received complaints of any icy condition on the sidewalk near the curb-line. She also averred "the Town [sic] of Babylon plows the snow in the parking [lot] adjacent to the curb."

Footnote 3:Plaintiff testified that the snow should have been removed rather than piled at the edge of the sidewalk.

Footnote 4:Mrs. Paloubis testified that by arrangement, the local municipality plowed the strip mall's parking area adjoining the sidewalk.

Footnote 5:Defendants dispute the sufficiency of the plaintiff's identification of the condition that allegedly caused him to fall because he testified that he never saw the ice on the ground where he fell but only felt it after he had fallen. As the Second Department has recently noted, however,"'that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury'" (Pajovic v. 94-06 34th Road Realty Co., LLC,152 AD3d 781 [2d Dept 2017], quoting Buglione v. Spagnoletti, 123 AD3d 867, 867, 999 NYS2d 453 [2d Dept 2014], and citing Schneider v. Kings Hwy. Hosp. Ctr., Inc., 67 NY2d 743, 744—745, 500 N.Y.S.2d 95, 490 N.E.2d 1221. See also Dixon v. Superior Discounts & Custom Muffle, 118 AD3d 1487 [4th Dept 2014]).