Anthony v Vrahos LLC.

[*1] Anthony v Vrahos LLC. 2018 NY Slip Op 50910(U) Decided on June 6, 2018 Supreme Court, Bronx County Brigantti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2018
Supreme Court, Bronx County

Yennifer Anthony, Plaintiff,

against

Vrahos LLC. and MICHAEL A. LADISH & CO., Inc., Defendants.



303978/2015



Counsel for Plaintiff: Pena & Kahn, PLLC. (Diane Welch Bando, Esq.)

Counsel for Defendants: Farber Brocks & Zane, L.L.P. (Frank Pintauro, Esq.)
Mary Ann Brigantti, J.

The following papers numbered 1 to 5 read on the below motion noticed on October 23, 2017 and duly submitted on the Part IA15 Motion calendar of January 22, 2018:

Papers Submitted Numbered

Defendants' Notice of Motion, Exhibits 1, 2

Pl.'s Aff. In Opp., Exhibits 3, 4

Defendants' Reply Aff. 5

Upon the foregoing papers, the defendants Vrahos LLC. ("Vrahos") and Michael A. Ladish & Co., Inc.("Ladish") (collectively, "Defendants") move for an order granting Defendants summary judgment, dismissing the complaint of the plaintiff Yennifer Anthony ("Plaintiff"), pursuant to CPLR 3212. Plaintiff opposes the motion.

I.Background

Plaintiff alleges that she fell on an interior staircase located between the first floor and basement of the premises located at 119 East 60th Street in New York, New York (the "Property"). Plaintiff claims that she fell due to a slippery substance on the stairs and due to inadequate clearance between the handrail and the adjoining wall. This lack of clearance was allegedly created by the mounting of storage shelving along the walls of the staircase. At the time of the accident, Vrahos owned the Property. The first floor and basement was leased to Plaintiff's employer, commercial tenant Rize Market LLC ("Rize"). Rize operated a gourmet deli where Plaintiff worked as a cashier at the time of the accident.

Just before the accident, Plaintiff was asked to take inventory of ketchup and mustard packets, which were stored in boxes located on shelving that was near the subject staircase. The staircase had a tubular handrail on the right hand side. Storage shelving was mounted along the walls of the staircase near this handrail. In order to reach the boxes on the shelves, Plaintiff had to walk down to the second or third step from the top of the staircase. She had done this on prior occasions without incident. The accident occurred when Plaintiff put her right foot down on onto a step, at which time she began to slip because of some substance. Plaintiff began to fall to her [*2]left side, at which point she reached out with her right hand to grab onto the handrail. However, when she did so, she was unable to grip the handrail because the outer side of her right hand - where her pinky finger is - struck the wooden shelf that was adjacent to the top of the handrail. As a result, Plaintiff could not support herself with the handrail and she fell down the stairs. Plaintiff noted that she was only able to fit some of her fingers between the wooden shelf and the handrail.

Plaintiff testified that she went up and down the subject staircase and handrail four times per day and never had prior difficulties using them. Vendors would often use these stairs while making deli deliveries using hand trucks or carts. The vendors never complained about the condition of the stairs to anyone in the deli. Plaintiff herself had never complained about the stairs to anyone prior to the accident, including the building's superintendent. She also never complained about the handrail being too close to the shelving located around the staircase.

Building superintendent Inocencio Escobar ("Escobar") testified on behalf of Vrahos. Other than maintaining the building's boiler, Escobar's work related to the residential units of the subject building. He testified that he did not clean, repair, or take out garbage for Rize. On occasion and as favor to Rize's owner, during his time off the clock for Vrahos, Escobar would change a light bulb, fix a leak, or help carry things inside of the deli. He was familiar with the subject staircase because he used it to access a mechanical room for the rest of the building. Escobar testified that the shelving that appears around the staircase was not always there, and he did not know who installed them. However, he confirmed that no one from Vrahos including him was responsible for installing the shelves. Escobar further stated that the handrail going down the staircase had been there during his entire tenure with Vrahos. He did not clean the steps and was unaware if these steps ever had grease on them. He also denied ever receiving complaints about the staircase or performing any repairs, and was unaware of prior incidents. Escobar understood that Vrahos was not responsible for cleaning or maintaining the inside of the deli and he said that it was the deli's responsibility to construct and/or maintain the handrail or stairs.

Michael Ladish appeared for a deposition on behalf of defendant Ladish, property manager for the Property at the time of the accident. Ladish testified that he first began managing the property some time in 1991. He was never an employee of Vrahos, and the building superintendent was not an employee of Ladish. Ladish confirmed that Rize was already a tenant at the Property at the time Vrahos took over the building and assumed the prior lease. Ladish was somewhat familiar with this lease agreement. Ladish testified that the lease made the deli responsible for any repairs to the structure of the steps or handrail. He said that the shelving around the stairs was not in place when the deli first began its operations, and he did not know who installed the shelving. Ladish personally never saw the shelves, and he said that neither himself nor Vrahos made any repairs to the interior of the deli. Ladish testified that he occasionally accessed the basement of the deli, however he did not use the interior staircase, but instead used the vault "trap" doors located on the sidewalk. He understood that the deli/restaurant was responsible for maintaining the subject steps and for making repairs, and for maintaining the entire first floor and basement with the exception of the boiler room. Ladish denied that Ladish or Vrahos had made repairs to the interior of the deli/restaurant before the subject accident.

Defendants now move for summary judgment, dismissing Plaintiff's complaint. Vrahos alleges that it is entitled to summary judgment because it was an out-of-possession landlord with respect to the accident location, thus it can only be held liable if it was contractually obligated to make repairs or maintain the premises, had a contractual right to re-enter, inspect, and make repairs, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision. Vrahos submits the controlling lease agreement (the "Lease") and asserts that the Lease required that the commercial tenant Rize maintain and repair the "demised premises" which included the interior staircase where Plaintiff fell. Vrahos claims that the tenant Rize constructed the staircase and also installed the shelving around the staircase that allegedly caused this accident. The Lease also required that the tenant make all interior and exterior non-structural repairs, and to comply with building codes, and tenant accepted the property "as is." Vrahos thus contends that it did not consent to be responsible for maintenance of the stairs or handrail or shelving. In addition, Vrahos alleges that the allegedly defective condition did not violate the Building Code because the stairs at issue do not constitute "interior stairs" (New York City Administrative Code §27-375), and any allegedly slippery condition on the stairs does not constitute a structural defect, and any defective condition concerning the shelves was not a structural issue with the stairs but a condition created by the tenant when it installed the shelves. Thus, Defendants contend that Vrahos cannot be held liable for this accident, as it was an out-of-possession landowner. Defendants also assert that Ladish is entitled to summary judgment because it was only the property manager for the premises, and thus did not owe Plaintiff a duty of care absent the existence of exceptions that are inapplicable to these facts. Even assuming that Ladish did owe Plaintiff a duty of care, Ladish had no actual or constructive notice of the allegedly defective condition and he did not install and had never seen the shelves that surrounded this staircase.

Plaintiff opposes the motion and contends that Vrahos has not met their burden on the issue of its "out-of-possession" landlord status. Plaintiff thus asserts that Vrahos may be liable under the ordinary principals of negligence, regardless of whether or not the condition of the stairs constituted a breach of Building Code. Plaintiff notes that the Lease at issue only demised an unspecified portion of the basement to Rize. Vrahos's superintendent testified that he used the subject staircase every day in order to access the building's boiler located in the basement. Plaintiff also testified that she observed the building's superintendent apply metal grates to the stairs on three or four occasions after the deli began operations, thus raising an issue of whether Vrahos and Ladish in fact retained at least some possession and control, and raising issues as to whether the accident location constitute a common element of the building. Accordingly, Vrahos may be held liable to Plaintiff upon evidence that the railing or other problems with the stairway constituted a dangerous condition at common law of which it had actual or constructive notice. Defendants contend that Vrahos's notice of the condition is not disputable since Escobar had actual notice of the subject handrail, stairs, and surrounding shelving. Plaintiff further notes that there is no evidence that the commercial tenant Rize installed the shelving, and under the lease, Vrahos had the power to demand that shelving be removed and/or to do it itself.

Assuming that Vrahos was an out-of-possession landowner, Plaintiff contends that it may be held liable for its breach of New York City Administrative Code §27-375. Plaintiff asserts that, contrary to Defendants' contentions, the Code is applicable, since these stairs constitute an [*3]"interior stairway," since they were the only recognized means for exiting the basement to the building's exterior. Plaintiff submits an affidavit from expert engineer Anthony Mellusi, who inspected the stairs and shelving at the accident location. He states, among other things, that the stairs and risers were non-uniform and uneven in violation of Administrative Code §27-375(e). He stated that the stairs were worn, highly polished, and coated with a thin layer of cooking grease, in violation of Administrative Code §27-375(h). Finally, the shelving adjacent to the handrail created a finger clearance of only 0- ½ an inch between the shelving and the handrail, in violation of Administrative Code §27-375(f). He ultimately found that the condition of the stairway and shelving constituted a breach of the Administrative Code and was inherently dangerous. Plaintiff contends that, in light of this affidavit and the remaining evidence, Defendants failed to prove a lack of duty and/or notice of the hazardous condition as a matter of law.

With respect to Ladish, Plaintiff contends that it failed to establish that it either lacked the requisite notice or control to warrant summary judgment in its favor, as it failed to submit a written agreement with Vrahos, or testimony regarding its terms or an affidavit establishing that it lacked control over the premises. Plaintiff also states that there are questions of fact concerning Ladish's control or notice of the allegedly defective stair/shelf condition.

In reply, Defendants contend that, contrary to Plaintiff's contentions, the Building Code does not apply to these stairs, which do not constitute "interior stairs" within the meaning of the Code. Defendants also note that Plaintiff's expert claims regarding the unevenness of the risers is irrelevant because Plaintiff did not claim that such a condition caused her fall. Defendants assert that the expert's opinion regarding the shelving and stairs bears no liability on them because no one from Vrahos installed the shelving or made any repairs to the area. Defendants re-emphasize their contention that the staircase shelving that allegedly caused this accident was non-structural in nature, and under the Lease, the deli was responsible for maintaining and installing them, and the staircase itself was not defective. Defendants also refute Plaintiff's allegation that the staircase constitutes a public or common area, and argue that the Lease at issue did not give Vrahos the power to demand that Rize remove the shelving. Since the hand rail and slippery step were non-structural, under the Lease, Vrahos established their entitlement to summary judgment. Regarding Ladish, Defendants contend that there was no requirement that it submit a written management agreement to establish its entitlement to summary judgment. Defendants contend that Ladish's testimony and the Lease established that it did not have the requisite control over the premises so as to owe Plaintiff a duty of care, and Ladish did not create the allegedly dangerous condition, and he did not have any responsibility with respect to the stairs.

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]). [*4]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 Hospital, 82 NY2d 738 [1993]).

III.Applicable Law and Analysis

Vrahos

Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition (see Peralta v. Henriquez, 100 NY2d 139 [2003]). This duty, however, is premised on the landowner's exercise of control over the property, since the entity in control of the property is in the best position to identify and prevent harm to others (Butler v. Rafferty, 100 NY2d 265 [2003]). Therefore, a landowner who transfers possession and control is generally not liable for injuries caused by dangerous conditions on the property (Chapman v. Silber, 97 NY2d 9 [2001]). Exceptions to this general rule apply when the landlord is either contractually obligated to maintain the premises or has a contractual right to re-enter, inspect, and make 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 (see Johnson v. Urena Service Center, 227 AD2d 325 [1st Dept. 1996]; Heim v. Trustees of Columbia Univ., 81 AD3d 507 [1st Dept. 2011]). When determining out-of-possession status, the court looks not only to the terms of the agreement but to the parties' course of conduct, including, but not limited to, the landowner's ability to access the premises, to determine whether the landowner surrendered control over the property such that the landowner's duty of care is extinguished as a matter of law (Gronski v. County of Monroe, 18 NY3d 374 [2011]).

In this case, Defendants failed to establish that Vrahos relinquished ownership and control over the stairwell at issue, so as to be considered "out of possession" of the accident area. It is not disputed that under the Lease, Vrahos retained control over a portion of the basement area. The Lease states that the owner leased to the commercial tenant the "entire first floor and approximately 1,000 square feet of basement area." The Lease does not illustrate or specify which area of the basement was leased to the tenant and which area remained in the control of the owner. Nevertheless, Vrahos's superintendent testified that he would use this staircase between the first floor and basement regularly to access the building's boiler, and he would access the staircase by walking through the tenant's restaurant (see Escobar EBT at 19-20). Defendants do not point to specific language in the Lease concerning this staircase, but they assert that the commercial tenant was responsible for maintaining "interior" portion of the demised premises. However, it is evident that the staircase at issue led to a basement and that Vrahos retained control over a portion of that basement, and Vrahos had unfettered access to the stairway. While testimony from Escobar and Ladish indicates that the commercial tenant was responsible for maintaining the stairs, Plaintiff testified that while she worked at Rize, she observed the building's superintendent applying metal grips to the stairs before her accident occurred (Pl. EBT at 44-45). This evidence - including the fact that Vrahos and the commercial [*5]tenant apparently shared access to the basement - raises issues of fact as to whether Vrahos actually surrendered possession and control of the accident location to the commercial tenant (see, e.g., Zappel v. Port Authority of New York, 285 AD2d 389 [1st Dept. 2001]).

In addition, contrary to Defendants' contentions, there is no admissible evidence demonstrating that the commercial tenant Rize installed the stairs or the shelving near the subject handrail. Defendants allege in their affirmation of counsel that Rize exclusively determined the layout of the basement including the placement of the handrail and shelving around the perimeter wall (Aff. In Support, Par. 36), yet no evidence supports this claim. Escobar and Ladish testified that they did not know who installed the shelves (Escobar EBT at 24; Ladish EBT at 16-17). According to the Lease, the tenant was not to make any changes to the demised premises of any nature without prior written consent of the owner (Lease at Par. 3). Defendants thus failed to eliminate all triable issues of fact as to whether, according to the Lease provisions, the owner retained control over the basement and/or stairwell to the basement so as to be held responsible for an allegedly dangerous condition that existed on the staircase (see, e.g., Wright v. Olympia & York Companies [U.S.A.], Inc., 273 AD2d 24, 24-25 [1st Dept. 2000]; see also Vazquez v. Diamondrock Hospitality Co., 100 AD3d 502, 502 [1st Dept. 2012][defendant "failed to meet its burden of establishing that it had 'completely parted with possession and control' of the premises"], quoting Worth Distrib. v. Latham, 59 NY2d 231, 238 [1983]; see Rios v. 1146 Ogden LLC., 136 AD3d 606 , 607 [1st Dept. 2016]).

Since Defendant Vrahos failed to demonstrate its out-of-possession landowner status, it may be held liable for a hazardous condition that existed on the Property if it created, or had actual or constructive notice of the condition (see Piacquadio v. Recine Realty Corp., 84 NY2d 967 [1994]), regardless of whether the condition constitutes a significant structural or design defect that violates a specific statutory provision. Importantly, it is not the plaintiff's burden in opposing a motion for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendant's burden to establish lack of notice as a matter of law (see Giuffrida v. Metro N., Commuter R.R. Co., 279 AD2d 403, 404 [1stDept. 2001]). Vrahos failed to carry their burden of proving lack of constructive notice of the condition, as Escobar acknowledged that the stairs and shelving existed for a "long time" (Escobar EBT at 24), and there is no assertion that the defective condition was not visible or apparent. Moreover, Vrahos failed to provide evidence as to when the staircase was last inspected, so as to prove their lack of notice of the alleged slippery condition that caused Plaintiff to fall (see Moore v. 1772 Weeks Ave. Housing Development Fund Corp., 123 AD3d 456 [1st Dept. 2014]).

Because Defendants failed to demonstrate their out-of-possession landowner status, the Court does not reach the issue of whether the stairs at issue constitute "interior stairs" as defined by the Building Code or whether a Building Code violation existed at the time of this accident. This branch of Defendants' motion is therefore denied without considering the adequacy of Plaintiff's opposition papers (see Winegrad v. New York University Medical Center, 64 NY2d 851).

Ladish

It is well-settled that liability for a dangerous condition on real property is predicated upon occupancy, ownership, control, or special use of the premises (see Balsam v. Delma Eng'g [*6]Corp., 139 AD2d 292 [1st Dept. 1988], lv. dism. in part, den. in part, [1988]). "A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). The Court of Appeals has nevertheless recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (id). Under the circumstances at bar involving a property's managing agent, a duty to plaintiff may arise if the agent had a "comprehensive and exclusive management agreement" with the owner that displaced the owner's duty to safely maintain the premises (see Hakim v. 65 Eighth Ave., LLC., 42 AD3d 374, 375 [1st Dept. 2007]).In this case, Ladish demonstrated that it owed no duty to Plaintiff. Ladish did not create the shelving condition, and he testified that he did not use the stairs at issue, and he had never seen the shelves surrounding the staircase (Ladish EBT at 16), thus there is no evidence that he "launched a force or instrument of harm." Furthermore, the evidence demonstrates that Ladish did not entirely displace the tenant or owner's responsibility to maintain the premises in a safe condition (see, e.g., Baulieu v. Ardsley Assoc., L.P., 85 AD3d 554, 555-56 [1st Dept. 2011]). Vrahos employed a superintendent for the building, and Ladish testified that he understood that the restaurant was responsible for maintaining the stairs, and he never inspected the restaurant or stairs (Ladish EBT at 18), thus establishing that his management of the premises was not comprehensive or exclusive (see Espinal v Melville Snow Contrs., 98 NY2d at 138, see also Hakim v. 65 Eighth Ave., LLC., 42 AD3d 374, 375; see also Mangual v. U.S.A. Realty Corp., 63 AD3d 493 [1st Dept. 2009]). Finally, there is no contention that Plaintiff relied on any contractual obligation running from Ladish to the commercial tenant or owner.

In opposition, Plaintiff failed to raise an issue of fact as to whether any of the Espinal exceptions apply to Ladish. Plaintiff does not point to any case law to support her contention that Ladish was required to submit a written agreement in order to establish his lack of complete and exclusive control over the premises. Moreover, Ladish's alleged awareness of the stair/shelving condition does not raise an issue of fact as to whether he owed a duty to Plaintiff under these circumstances.

IV.Conclusion

Accordingly, it is hereby

ORDERED, that Vrahos's motion for summary judgment is denied, and it is further,

ORDERED, that Ladish's motion for summary judgment is granted, and Plaintiff's complaint and any cross-claims asserted against Ladish only are dismissed with prejudice.

This constitutes the Decision and Order of this Court.

Dated: ___June 6,_____, 2018

_________________________________

Hon. Mary Ann Brigantti, J.S.C.