Woolf v Empire State Crossfit LLC

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Woolf v Empire State Crossfit LLC 2019 NY Slip Op 33928(U) February 19, 2019 Supreme Court, Westchester County Docket Number: 54185/2016 Judge: Terry Jane Ruderman 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] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 To commence the statutory time for appeals as of right (CPLR 55 13(a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------~------------------------------------_._---------}( KAREN WOOLF, as Mother and Natural Guardian ofB.W., an Infant, KAREN WOOLF, Individually, and ANDREW WOOLF, Individually, DECISION AND ORDER Inde}(No. 5418512016 Motion Sequence Nos. 3 and 4 Plaintiffs, -against- EMPIRE STATE CROSSFIT LLC, d/b/a EMPIRE STATE CROSSFIT, LUMlRAM DEVELOPMENT CORP. and DANIEL STEARNS, Defendants. -----------------------------------------------------------------------------}( RUDERMAN, J. The following papers were considered in connection with the motion by defendants for an order pursuant to CPLR 3211 and 3212 dismissing all claims against Lumiram Development Corp. ("Lumiram"), and dismissing plaintiffs' res ipsa loquitur claims as against all defendants (sequence 3), and plaintiffs' cross-motion for a missing evidence charge or alternative relief based on Steams' discarding of evidence (sequence 4): Papers Notice of Motion, Affirmation, E}(hibits A - M Notice of Cross-Motion, Affirmation, E}(hibits A - I Reply Affirmation, E}(hibits N - 0, and Affirmation in Opposition to Cross-Motion Numbered 1 -2 3 This personal injury action arises out of an accident that occurred on September 10, 2015 at Empire State Crossfit gym in Larchmont, New York, in which a shelf dislodged and fell on the head of infant plaintiffB.W., allegedly causing traumatic brain injury and necessitating emergency 1 of 9 [*FILED: 2] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 surgery. INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 Plaintiffs initially c<?mmenced the action against Empire State Crossfit LLC, the tenant and occupant of the premises, :and Lumiram, the property owner; Daniel Steams, the sole owner and operator of Empire State Crossfit, was then added as a defendant. Defendant Lumiram moves to, dismiss all claims asserted against it, based on its status as a out-of-possession landlord who neither ca~sednor create the dangerous condition nor had notice of it, since it was located inside the premises leased to Empire State Crossfit, where Lumiram had no contractual duty of maintenance or repair. Defendants also seekthe dismissal of plaintiffs' res ipsa loquitur claim, contending elements necessary for the doctrine's application are lacking. Plaintiffs oppose both forms of relief, and, cross-move for a negative inference charge based on Steams' disposal of the bracket and screws that had been used to install the fallen shelf. Defendants oppose the imposition of spoliation sanctions, on the ground that plaintiffs have not demonstrated that the failure to preserve the brackets and screws was in any way prejudicial to plaintiffs' case, norwas Steams' conduct willful, contumacious or in bad faith. Analysis Lumiram's Liability as Landlord Defendant Lumiram has provided evidence demonstrating that it is an out~of-possession . landlord which is not obligated under the lease to maintain the interior of the premises, and therefore cannot be liable for a defect in the manner in which a shelf was installed by its tenant. It submits a copy of a lease which provides, in paragraph 8, .thattenant Empire State Crossfit is responsible for the interior of the premises, and the landlord is responsible to maintain and repair the exterior of the premises, the common areas and the utilities. The lease also specificall,y provides that the tenant is responsible for the negligent acts; of its agents arising from any work done by the 2 2 of 9 [*FILED: 3] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 J tenant. Additionally, under lease paragraph 14 the landlord had the right to make changes to the j entrances, hallways, passageways or other parts ofthe premises used by the general public, but had no such right withinthe tenant's space .. "Generally, an out-of.:possession landlord is not liable for injuries sustained at the leased premises unless it is contractually obligated to maintain or repair the premises. Furthermore, inthe absence ofa statutory duty, a landlord's mere reservation of a right to enter leased premises to make repairs is insufficient to give rise to liability for a subsequently-arising dangerous condition. Although reservation of a right to enter may constitute sufficient retention of control to permit a finding that the landlord had constructive. notice of a dangerous condition which constitutes a violation of a statutory duty, this exception applies where there is a significant structural or design defect" , Angwin v SRF Partnership, 2~5 AD2d 570, 571 [2d Dept 2001] [internal citations omitted]). . i In Angwin, the condition which allegedly caused the plaintiff s injuries was an improperly secured magnetic lock which had been mounted above a door frame as part of an alarm system, and which fell on her; the Court held that in view of the landlord's limited obligatioq.s under the lease, the claimed dangerous condition was "not a significant structural defect for which an out-of-possession landlord can be held liable" (id.). The shelf at issue here is, similarly, northe type of significant structural defect for which the landlord can be held liable. In opposing this aspect of defendants' motion, plaintiffs argue that'this Court may not properly rely on the lease submitted by defendants to establish the landlord's and tenant's . , respective responsibilities. Th~y observe that the document submitted on defendants' motion was just one of two different lease documents that were produced in.discovery, and, indeed, it appears to be the earlier version of the two: the term ofthe lease relied on in defendants' moving papers r:ms from September I 2012 to August 31, 2017, while the second version or draft that was produced in j discovery runs from October 1, 2012 to September 31, 2017. Plaintiffs also note that defendants' submission was marked up with changes, including handwritten alterations and renumbered '.. l~ 3 3 of 9 [*FILED: 4] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 ; paragraphs and subparagraphs - which proposed changes Lumiram's ower testified that she agreed to - and, that the rider was not signed by the te~ant. They cite Lalicata v 39-15 Skillman Realty Co. (63 AD3d 889,890 [2d Dept 2009]), where the Court denied the landlord's motion for summary judgment because the landlord "failed to provide a complete copy of the lease between the defendants and Brooks Brothers demonstrating their lack of control or contractual obligation to maintain the stairs" on which the plaintiff fell (id.). While the lack of a signature on the lease rider could have legal ramifications, it does not indicate that the main portion of the lease, which is signed by both tenant and landlord, is unenforceable. Both parties to the lease have sworn that they have no other lease documents, and neither is disclaiming or denying that they are bound by the documents, both versions of which contain the same operative provisions. Plaintiff has no evidence tending to establish the existence of a third lease, containing different substantive terms. Therefore, there is no material dispute of fact as to the terms of the lease as they apply to the present situation. Unlike the circumstances in Lalicata, this Court is able to determine thatthe landlord here had no contractual obligations with regard to defective conditions created by the tenant within the interior of the leased premises during the term of the lease. The parties' dispute as to whether Lumiram qualifies as an "out-of-possession landlord," given its office space in the same building, is also immaterial. In cases where"summary judgment I was denied to a landlord with a presence on the property, its use or retention of part of the building / is not enough of a basis for denying summary judgment; the crucial question of fact concerns whether the landlord retained control or responsibility over the area where the accident occurred, and had notice of the dangerous condition. For example, in Massucci v Amoco Oil Co. (292 AD2d 351,352 [2d Dept 2002]), sUl11maryjudgment was denied to the landlord, which used part of the 4 4 of 9 [*FILED: 5] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 / building in which the accident occurred, because it "failed to establish as a matter of law that it did not retain control over the vestibule" wh~re the alleged defective condition ~as located (id.). The Court in Massucci pointed to "evidence th~t [the landlord] retained office space in the building and . that its employees used the vestibule to exit and enter the building" to establish the existence of "an issue of fact as to the joint responsibility of [the landlord] and [the tenant] fo~ the maintenance of the vestibule" (id.). Similarly, ill Kolmel-Hayes v South Shore Cruise Lines, Inc. (23 AD3d 530, . -, 530 [2d Dept 2005]), after the property owner made a prima facie showing that "it had, relinquished control of the subjectprerhises to [its tenant], which agreed by the terms ofits lease to repair and maintain the premises, the owner'ssummaryjudgmellt motion was denied based on evidence submitted in opposition that "it maintained an office on the, premises, retained control over the premises, and had actual notice of the allegedly dangerous condition that caused the injuries" (id.). No such evidence of control of the interior of the leased premises, or notice of a defective condition . - ~ created by the tenant therein, are presented here. There is no showing that Lumiram's office in the building gave it any control over the interior of the leased premises, nor is there any evidence that its presence iil another part of the building gave it notice of the. allegedly dangerous condition entirely within the leased premises that caused the injuries. On the latter issue, plaintiffs contend that evidence that Lumiram had constructive notice of the unsafe shelf at issue here ~sderived from the deposition testimony of Corinne Ram, the sole owner of Lumiram, who acknowledged that she had entered the leased ~ - ' I . premises a few times to request the rent check. From this testimony, plaintiffs reason that she therefore necessarily had notice ,of a different shelf, located in the front office of the leased premises, which shelf Steams conceded at his deposition "look[ ed] to be leaning a little," and from that, plaintiffs proceed to further reason that the Jeaning shelf that Ram would have seen put 5 5 of 9 " [*FILED: 6] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 Lumiram on notice that it should inspect the premises for dangerous shel~ing elsewhere on the premises. This attenuated reasoning fails to justify finding an issue of fact as to whether Lumiram had notice of an unsafelyinstalled shelfin a room within the leased premises. In view of the foregoing, the branch of d~fendants' motion seeking summary judgment dismissing the claim against Lumiram is granted~ Res Ipsa Loquitur Plaintiffs complaint includ~s a claim based on res ipsa loquitur, a doctrine that allows a jury, in certain circumstances, to infer negligence merely from the happening of an event and the defendant's relation to it. To rely on the doctrine, a plaintiff must establish three conditions: the event must be of a kind that ordinarily does not occur in the absence ofsomeone's "First, negligence; , second, it must be caused by an agency or instrumentality within the excl~sive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff' (Kambat v St. Francis Hosp., 89 NY2d 489,494-495 [1997], quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219,226 [1986] [other internal citations omitted]). The first condition is established,. since a shelf does not normally fall in the absence of negligence (see Hutchings v Yuter, 108 AD3d 416,417 [1st Dept 2013]). Defendants contend, however, that plaintiffs cannot establish the second condition, since the shelf cannot be viewed as within defendants' exclusive control, asoit is used by gym members as a place to put their / ' weightlifting shoes and other personal item's. However, "[c]ourtsdo not generally apply this requirement as it is literally stated" (Dermaiossian v New York City Tr.Auth., 67 NY2d 219,227 [1986]). That is, "exclusive control" may be found even when members of the public have contact regular with the allegedly defective item. Fbr instance, in Marinaro v Reynolds (152 AD3d 659 [2d Dept 2017]), where the plaintiff pleaded res ipsa loquitur in her claim against a homeowner based 6 6 of 9 [*FILED: 7] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 on a defective deck stair, the Court concluded that an issue of fact was presented as to as to'whether the homeowner could be said to have exclusive control of the step, de,spite the use of it by guests (id. at 662). The central issue is whether some other person's negligence might have had a part in the accident. Just as in Marinaro, the claimed defect in the deck stair would not likely be attributable to other g~ests' walking qn the step, here, other gym members' placement of items on the shelf would not in itself render them responsible for negligence in how the shelf was secured to the wall. In Dermatossian v New York City Tr. Auth., the Court held that the case ,should not have been submitted to the jury on a res ipsa loquitur theory because the plaintiff's "did notadequately exclude the chance that t~e handle had been damaged by one or more of defendant's passengers" (67 NY2d at 228). Here, in contrast, the context is a summary judgment motion in which it is defendants' burden to establish their right to dismissal of the claim as a matter oflaw. They have not established that as a matter of law they did not maintain exclusive control of the shelf as that term is understood for this purpose; rather, as in_Marinaro, an issue of fact is presented as to as to whether the 'gym owner could be said-to have had exclusive control of the shelf, despite the use of it by members. Finally, on plaintiffs' res ipsa loquitur claim, defendants also contend that as a matter oflaw . ., . the doctrine is inapplicable because the actions of the infant plaintiff contributed to causing the . accident, as did the negligence of the plaintiff mother. They point to the deposition testimony of the infant plaintiff that he touched the shelf with his finger, and to the acknowledgment by the infant plaintiff and his brother-that they were kicking and throwing balls in the room; they add that the plaintiff mother's failure to supervise the children ,in the room also -contributed to the accident. However, none of this evidence establishes that the actions of any plaintiff proximately caused the 7 7 of 9 [*FILED: 8] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 shelf to fall, such as to entitle defendants to dismissal of the doctrine in the summary judgment context. Cross-Motion for a Spoliation Sanction It is undisputed that Stearns discarded the bracket and screws by which the shelf at issue had been attached to the wall, ~lthough the shelf was retained and plaintiffs had the opportunity to inspect the wall to which the shelf had been secured. Plaintiff relies. on a case in which video surveillance footage were not preserved (see SMvPlainedge Union Free Sch. Dist., 162 AD3d 814 [2d Dept 20 18D, and another where fetal heart monitor strips were discarded (see Coleman v Putnam Hosp. Ctr., 74 AD3d 1009', 1009 [2d Dept 201 OD,in both of which negative inference charges were the imposed sanction. "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preser:ve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. A culpable state of mind for purposes of a spoliation sanction includes ordinary . negligence. Where evidence was intentionally or wilfully destroyed, its relevance is presumed. However, where evidence wasnegligently destroyed, the party seeking sanctions must establish that the destroyed evidence was relevant to the party's claim or defense" (SM v Plainedge Union Free Sch. Dist., 162 AD3d at 818). That Steams knew he was throwing out the bracket and screws isdear, ~lthough there is nothing to indicate that he did so in order to somehow interfere with plaintiffs' future lawsuit. Nor do plaintiffs suggest how those items would have contributed to their prosecution of the case. While the import and value of surveillance video.of an accident, or the d'!ita in fetal monitoring strips, is clear, ~he usenil~~ss on!l~15rac~~t_~dsciewsati~stie"h'ere is less app~ent, pariicularly since Steams admitted that he did not screw the shelf onto the bracket and that he. installed the shelf 8 of 9 [*FILED: 9] WESTCHESTER COUNTY CLERK 02/20/2019 11:42 AM NYSCEF DOC. NO. 89 INDEX NO. 54185/2016 RECEIVED NYSCEF: 02/19/2019 - in an unsafe manner. Neverthele'ss, since the evidence was intentionally rather than accidentally . ' _discarded, the use of the negative inference charge, PH 1:77.1, is appropriate here. Notably, it. allows but does not require the jury to draw a negative inference lfthe defendant (1) failed to preserve the~evidence, (2) was on notice of an impending lawsuit at the time, and (3) the unpreserved evidence would have been important to litigated issue(s). There has been no showing that would justify the proposed alternative of striking defendants' answer. In'view of the foregoing, it is hereby ORDERED that defendants' motion is granted to the extent that the complaint is dismissed as against defendant Lumiram, and is otherwise denied; and it is further ORDERED that plaintiffs' cross motion is granted to the extent that the negative inference . \ charge, PH 1:77.1, should be given at the time of trial in connection with the disposal of the bracket and screws; and it is further ORDERED that the remaining parties are to appear on Tuesday, March 26,2019 at 9:15 a.m. in the Settlement Conference Part, Courtroom 1600, Westchester County Supreme. Court, 111 Dr. Martin Luther King Jr. Blvd, White Plains, New York to schedule a trial. This constitutes the Decision' and Order of the Court. Dated: White PlailNew York February I ,2019 ~A~./ HO~ 9 9 of 9 ~- ~ UDERMAN, J.S,C.

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