Abutbul v 130 FG, LLC
Annotate this CaseDecided on June 5, 2018
Supreme Court, Bronx County
Orly Abutbul, Plaintiff,
against
130 FG, LLC, 44 and 45 Manager Corp., and 130 Manager, LLC, Defendants.
130 FG, LLC, and 130 Manager, LLC, Third Party Plaintiff,
against
Classic New York Realty 2009, LLC, Third Party Defendant.
22973/2013E
Counsel for plaintiff:
Ogen & Sedaghati, P.C. (Eitan Alexander Ogen, Esq.)
Counsel for defendants/third party plaintiffs 130 FG, LLC. and 130 Manager:
Gialleonardo & Rayhill (Jonathan R. Walsh, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 6 read on the below motions noticed on March 31, 2017 and duly submitted on the Part IA15 Motion calendar of January 26, 2018:
Papers Submitted Numbered
Landlord's Notice of Motion, Aff. In Support, Exhibits 1,2,3
Pl.'s Aff. In Opp., Exhibits 4,5
Landlord's Reply Aff./Aff. In Opp. 6
Upon the foregoing papers, the defendants/third party plaintiffs 130 FG, LLC. and 130 Manager (collectively, the "Landlord") moves for summary judgment, dismissing the complaint and all cross-claims or counter-claims. Plaintiff opposes the motion.
I. Background
Plaintiff alleges that on December 28, 2010, she slipped and fell on snow and ice on the steps in front of Landlord's premises located at 302 E. 45th Street in New York, New York (hereinafter "302"). At the time of the accident, Plaintiff was working as a cashier at the Green Olive restaurant located at 300 East 45th Street - next door to 302. Plaintiff testified that while [*2]she was working, she would regularly use the bathroom located in the basement of 302. To access this bathroom, Plaintiff had to exit her restaurant, walk a few steps on the sidewalk, and then enter 302 through its front door. Plaintiff was given a key to 302 for access. She testified that at approximately 9:00AM she left the restaurant to go to the bathroom. As she entered 302 she saw two individuals shoveling snow in front of the entrance. She entered 302 without incident. However, as she was leaving 302, and while still observing the individuals shoveling snow, and after letting two people enter 302 first, Plaintiff slipped on the second step near the entrance and fell.
Landlord alleges that Plaintiff's accident was caught on video tape and asserts that "a copy of the disc containing the video tape can be made available for the court's inspection should it become necessary." Landlord claims that a still frame from that tape indicates that Plaintiff was exiting the premises while an individual to her left was holding a shovel. Plaintiff testified that after she fell, the two men shoveling came to her aid and brought her to the restaurant. She further testified that there had been a heavy snowfall the day before and she had missed work because of it. At her further deposition, Plaintiff testified that the two men shoveling snow were "always there" but she did not know who they worked for. She said that the " boss" of her restaurant Raziel Offer said that employees of the restaurant could use the bathroom in 302.
Landlord first argues that it is entitled to summary judgment because snow shoveling was taking place at the time of Plaintiff's alleged accident. Thus, it is clear that the dangerous condition was being attended to at the time of her accident. Since the front entrance was being cleared of snow, Landlord cannot be held responsible for this accident. Landlord contends that Plaintiff's own culpable conduct caused this accident.
Landlord next asserts that if any party is to be found liable, it should be third-party defendant Classic, based upon the testimony of its principal. Eli Yitzhari, managing agent for Landlord, testified that Classic—through its principal Raziel Offer—leased the premises located at 302. The Green Olive restaurant was located next door. The two owners of the restaurant were Raziel Offer and Offer Hoffman. Yitzhari states that Landlord never hired any snow removal contractors or individuals, and that it was understood that tenant (Classic) would be responsible for snow shoveling, however this is not reflected in the language of the lease. Yitzhari stated that Landlord had no employees who were responsible for maintaining 302. He also pointed out that Classic used the basement of 302 for storage and access to the bathroom. The subject lease between Landlord and Classic describes the "Premises" as "(i) the land and building located at 302 East 45th St., New York, NY provided, however, that the ground floor and basement of the commercial portion of the Premises are not deemed hereunder and do not constitute a portion of the Premises, and (ii) the Leasehold improvements. Any provisions of this instrument with respect to the Premises shall apply to any part of the Premises as well as all of the Premises."
Raziel Offer, Classic's president, testified that he formed Classic as a short-term apartment-rental-type business some time in 2007, or possibly a year or two later. He testified pertinently that the lease provision referring to the "Premises" referred only to the apartments on floor 2 and above, that he was renting on a short-term basis, and he did not rent the ground floor or basement of 302. However, he also testified that he had a financial interest in the next-door Green Olive restaurant which may have involved a written or verbal lease. When questioned, he [*3]stated Classic was overlooking the restaurant, he invested $150,000 in the restaurant and stated that "[a]nd I operated it. I brought people to operate. It was a shawarma place." He also said that restaurant employees would clean the snow. Mr. Offer further conceded that there was an understanding between Classic and Landlord that restaurant employees as well as Classic's cleaning crew could use the basement bathroom and thus have ingress and egress to the basement through the first floor of 302.
Landlord argues that, notwithstanding the lease provisions, it is clear that the relationship between Classic's leased apartments in 302 and Mr. Offer's interest in the Green Olive restaurant created a "virtual easement" between the restaurant and 302 whereby employees of the restaurant (who may have been de facto employees of Classic), as well as Classic's own cleaning staff, had use of the basement as storage and bathroom access. As such, the evidence and the testimony taken as a whole point to the logical conclusion that Classic had ownership and control of short-term rental apartments in a building where its overlapping interest in the restaurant created an easement through the front entrance first floor of 302. Given that Landlord is essentially "out-of-possession," based on a fair reading of the testimony, while not conceding negligence, if any party employed workers to undertake snow removal at the time of Plaintiff's accident it would have been Classic.
Plaintiff opposes the motion, asserting that Landlord failed to carry their initial summary judgment burden. Specifically, Plaintiff asserts that Landlord failed to establish when the accident site was last cleaned or inspected. Furthermore, Classic's president has stated in an affidavit that Classic did not hire anyone to shovel snow at the premises and that it was Landlord's responsibility to do so. Moreover, the lease defines the demised premises as not including the ground floor or basement, meaning that the leased premises were only from the second floor up. Accordingly, Landlord cannot prove that they were not shoveling or exacerbating a hazardous condition. Plaintiff further asserts that it had snowed at the premises two days earlier, and there were issues of fact as to whether the condition was exacerbated by Landlord's employees or agents, as the stairs were slushy with ice underneath.
II. Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's [*4]Hospital, 82 NY2d 738 [1993]).
III. Applicable Law and Analysis
Landlord failed to establish prima facie that Plaintiff's conduct in traversing the steps while individuals were clearing snow from the steps was the sole proximate cause of her accident (see, e.g., Denardo v. Ziatyk, 95 AD3d 929, 930 [2nd Dept. 2012]; Derdiarian v. Felix Constr. Corp., 51 NY2d 308 [1980]). Plaintiff testified that it had snowed two days prior to her accident and "the snow was sitting there for a while" (Pl. EBT at 21:11-20). The step where she slipped "looked like slush but I didn't notice that it had an icy patch under it. It looked like slush" (id. at 23). No videotape has been supplied with the moving papers, and if Landlord felt that the tape would support its claims, it was Landlord/movant's responsibility to submit such evidence in admissible form. On this record, there is insufficient evidence to find, as urged by Defendant, that plaintiff's actions alone caused her injuries (see generally Williams v. Elsor Realty Co., 117 AD3d 480 [1st Dept. 2014]; Thomas v. City of New York, 16 AD3d 203 [1st Dept. 2005]).
Landlord also failed to establish that it had no duty to clean ice and snow, that it complied with its duty to maintain its premises in a reasonably safe condition, or that it transferred possession or control of the premises so as to be considered an "out-of-possession landowner" (see generally Chapman v. Silber, 97 NY2d 9 [2001]). The lease at issue specifically excludes the loss location from the definition of "Premises." The fact that Landlord did not have any employees performing snow removal, and that nonparty Green Olive restaurant employees may have been the ones shoveling the premises, does not absolve the Landlord from liability or otherwise establish that Landlord satisfied its duty to maintain the premises in a safe condition at the time of this accident. Furthermore, the fact that Classic's president had some monetary interest in the Green Olive restaurant, and that there was allegedly an informal agreement between the restaurant and 302 concerning use of 302's front entrance and bathroom, does not lead to the conclusion that Classic had ownership or control over the loss location to the exclusion of Landlord.
Accordingly, Landlord failed to satisfy its initial summary judgment burden, and therefore the motion is denied without consideration of Plaintiff's opposition papers (see Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]).
IV. Conclusion
Accordingly, it is hereby
ORDERED, that Landlord's motion for summary judgment is denied.
This constitutes the Decision and Order of this Court.
Dated: June 5, 2018
Hon. Mary Ann Brigantti, J.S.C.
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