L.D. v Brooklyn Kings Plaza LLC

[*1] L.D. v Brooklyn Kings Plaza LLC 2020 NY Slip Op 50759(U) Decided on June 26, 2020 Supreme Court, Kings County Kurtz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2020
Supreme Court, Kings County

L.D., an Infant by his Father and Natural Guardian Jonathan Domatov, and Jonathan Domatov, individually, Plaintiffs,

against

Brooklyn Kings Plaza LLC and ID Brooklyn Inc. d/b/a Vape On and The Macerich Company, Defendants.



Brooklyn Kings Plaza LLC and The Macerich Company, Third-Party Plaintiffs,

against

Igor Kanchik and Esther Kanchik, Third-Party Defendants.



508367/16



Attorney for Plaintiff

Lipsig, Shapey, Manus & Moverman

40 Fulton Street, 25 Floor

New York, NY 10038

(212) 285-3300

Attorney for Defendant/3rd Pty Plaintiffs

Cozen O'Connor

45 Broadway, 16th Fl New York, New York 10006

(212) 908-1227

Attorney for 3rd Pty Defendant

Schiller Law Group

675 Third Avenue, 24th Fl

New York, New York 10017

(212) 768-8700
Donald Scott Kurtz, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to Show Cause/Notice of Motion and Affidavits/Affirmations Annexed 80-81, 83-92, 93-103

Answering Affidavits/Affirmations 112-129, 105-106

Reply Affidavits/Affirmations 130-131, 107-111

Memoranda of Law 82, 104

Other

Upon the foregoing papers, in this action by plaintiffs L.D., an infant, by his father and natural guardian, Jonathan Domatov, and Jonathan Domatov, individually (collectively, "plaintiffs"), against defendants Brooklyn Kings Plaza LLC, ID Brooklyn LLC d/b/a Vape On ("Vape On"), and the Macerich Company ("Macerich"), seeking to recover damages for personal injuries sustained by L.D., defendants/third-party plaintiffs Brooklyn Kings Plaza LLC and Macerich (collectively, "the Kings Plaza defendants") move, under motion sequence number five, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' complaint as against them. Third-party defendants Igor Kanchik ("Igor") and Esther Kanchik ("Esther"), who is Igor's wife, move, under motion sequence number six, pursuant to CPLR 3212, for summary judgment dismissing the Kings Plaza defendants' third-party complaint as against them with prejudice and on the merits.

Facts and Procedural Background

Brooklyn Kings Plaza LLC is the owner of the Kings Plaza shopping mall in Brooklyn, New York. Macerich is the parent company of Brooklyn Kings Plaza LLC and is also alleged to be the owner of the Kings Plaza shopping mall. By a Specialty Lease dated December 15, 2015 ("the lease"), Brooklyn Kings Plaza LLC, as the landlord, agreed to lease a kiosk on the first floor of the Kings Plaza shopping mall to Vape On, a New York corporation, commencing on February 1, 2016 and expiring on October 31, 2016, unless sooner terminated as provided therein. The lease provided that Vape On would use the kiosk for the sole purpose of displaying and selling to the public, at retail, electronic cigarettes ("e-cigarettes"), e-hookahs, hookahs e-juices for refills, related holding cases, and portable electronic vaporizers. The lease was signed on behalf of Vape On by Igor, as its owner/president, and on behalf of Brooklyn Kings Plaza LLC by Steven DeClara ("Mr. DeClara"), as the senior manager/property management.

The lease required Vape On to maintain the premises and all equipment in good order and repair, and also required Vape On to comply with all laws. The lease further required Vape On to indemnify Brooklyn Kings Plaza LLC from any claims of injury resulting from Vape On's use of the kiosk. The lease provided that Vape On's rights under the lease could be terminated [*2]on three days written notice from Brooklyn Kings Plaza LLC, in Brooklyn Kings Plaza LLC's sole and absolute discretion and without cause. The lease further provided that all sales required a valid ID, and that no live demonstrations which emoted vapors could be done at the unit or in the mall. The lease set forth that Vape On was required to comply with the Operating Rules annexed to the lease, which stated, among other things, that Vape On and its employees could not distribute any handbills or advertising materials in the Kings Plaza shopping center, and that they could not eat, drink, or smoke at the kiosk.

Paragraph 24 of the lease provided as follows:

"Landlord's Access to Premises. Tenant agrees that Landlord, its agents, employees or any person authorized by Landlord may enter the Premises at reasonable times for the purpose of inspecting its condition, making repairs or improvements to the Premises or [Kings Plaza Shopping] Center as Landlord may elect (or be required) to make or exhibiting the Premises to prospective lessees. Landlord agrees not to disturb Tenant's conduct of business during such access except in the case of emergency."

In 2016, L.D., who was then 14 years old and a student at a Yeshiva in Brooklyn, would occasionally leave school to take the bus and hang out at Kings Plaza. According to L.D., he befriended Igor, who was operating the Vape On kiosk. L.D. claims that Igor told him that if he would help him close up the kiosk for a couple of days, he would give him an e-cigarette, which he could vape there. L.D. further claims that Igor gave him his own mouthpiece, which he could attach to the other parts of the e-cigarette available at the kiosk.

The parts of an e-cigarette generally consist of a tank that contains a volatile liquid, an atomizer that sprays the liquid over a heated coil that vaporizes it, a rechargeable battery that causes the coil to heat, and a mouthpiece through which the vapor can be inhaled. The mouthpiece is often permanently affixed to the tank which can be attached to or detached from the battery. The battery is charged using a plug-in charger.

L.D. claims that he would visit the Vape On kiosk about two times per week, and Igor would allow him to use one of Igor's two personal e-cigarettes whenever he asked. L.D. further claims that he would hand out flyers for Igor that advertised the Vape On kiosk and would help Igor close the kiosk. According to L.D., Igor would leave the e-cigarette for him at the Vape On kiosk so that he could use it when he visited the kiosk.

On April 5, 2016, L.D. left school early and went to the Vape On kiosk, but a different person was working there who told him that he was working for Igor. According to L.D., he decided to try the worker's e-cigarette, which was different from the one he had been using and which the worker had purchased from another vape shop and not from Vape On's kiosk. L.D. claims that when the worker lent him his personal e-cigarette to use, the worker told him to switch to another tank/mouthpiece because he was sick, and the worker took L.D.'s tank and attached it onto the worker's lithium-ion powered battery. L.D. further claims that he then pressed a button on the e-cigarette, which was supposed to activate it, but nothing happened. L.D. states that when he pressed the button for the third time, the e-cigarette exploded in his hands and burst into flames. L.D. sustained burns to his face and hands, and blindness to his left eye from the explosion.

Consequently, on May 19, 2016, plaintiffs filed the instant action against the Kings Plaza defendants and Vape On. Plaintiffs' complaint sets forth five causes of action against Vape On and the Kings Plaza defendants, alleging claims for negligence, strict products liability, breach of implied warranties, breach of express warranties, and a derivative claim by L.D.'s father, [*3]Jonathan Domotov, for the loss of L.D.'s services, society, and companionship. Vape On, which was dissolved as a corporation on September 20, 2016, has not interposed an answer and is in default.

On October 26, 2016, the Kings Plaza defendants commenced a third-party action against Igor and Esther. The Kings Plaza defendants' third-party complaint seeks common-law and/or contractual indemnification and/or contribution. It also sets forth a cause of action seeking to pierce the corporate veil of Vape On so as to impose personal liability upon Igor and Esther. On December 28, 2016, Igor and Esther answered the third-party complaint and asserted a counterclaim, alleging that the third-party complaint is frivolous. On January 6, 2017, the Kings Plaza defendants replied to the counterclaim.

Discovery has been completed, and plaintiffs filed their note of issue and certificate of readiness dated August 13, 2018. By a court order dated October 4, 2018, the time to move for summary judgment was extended to January 4, 2019. On December 12, 2018, the Kings Plaza defendants filed their instant motion for summary judgment. On January 3, 2019, Igor and Esther filed their instant motion for summary judgment.

Discussion

Initially, it is noted that plaintiffs' complaint, insofar as its fourth cause of action purports to assert a claim against the Kings Plaza defendants for strict products liability, must be dismissed since the Kings Plaza defendants are not manufacturers, retailers, or distributors of e-cigarettes (see generally Bielicki v T.J. Bentey, Inc., 248 AD2d 657, 659 [2d Dept 1998]). Similarly, plaintiffs' complaint, insofar as its second and third causes of action purport to assert a claim against the Kings Plaza defendants for breaches of express and implied warranties, respectively, must be dismissed as no express or implied warranties were made by them with respect to e-cigarettes.

The Kings Plaza defendants argue that plaintiffs' first cause of action for negligence also fails to assert a viable claim against them on the basis that they did not owe any duty of care to L.D. "It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff" (Pulka v Edelman, 40 NY2d 781, 782 [1976], rearg denied 41 NY2d 901 [1977]). "In the absence of duty, there is no breach and without a breach there is no liability" (id.).

The Kings Plaza defendants point to plaintiffs' assertions that since Brooklyn Kings Plaza LLC was Vape On's landlord and Macerich was the owner of the Kings Plaza shopping mall, they had the duty to ensure that the products that were sold by Vape On were safe, the duty to ensure that Vape On's customers were old enough to purchase such products, the duty to warn Vape On's customers of the alleged dangers inherent in the use of vaping equipment, and the duty to monitor, supervise, and control the business activities of Vape On, as the tenant of the kiosk. The Kings Plaza defendants contend that no such duties are owed by them since a landlord owes no duty to a party injured by its tenant's use of an instrumentality unless the landlord reserved control over the use of that instrumentality. They assert that they did not reserve any such control over Vape On's use of e-cigarettes in its business, that they had nothing to do with the e-cigarette that injured L.D., and that they did not supervise the Vape On employee which allowed L.D. to use the e-cigarette.

It is well established that "'[a]n out-of-possession landlord is not liable for injuries that occur on its premises unless it retains control over the premises or is contractually bound to repair unsafe conditions'" (Fernandez v Town of Babylon, 72 AD3d 636, 638 [2d Dept 2010], [*4]quoting Lalicata v 39-15 Skillman Realty Co., LLC, 63 AD3d 889, 890 [2d Dept 2009]; see also Phillips v Sinba Assoc., 296 AD2d 389, 389 [2d Dept 2002], lv denied 99 NY2d 503 [2002]; Gilbert v 4905 Ave. D Realty, Inc., 224 AD2d 659, 659 [2d Dept 1996], lv denied 88 NY2d 813 [1996]; Dalzell v McDonald's Corp., 220 AD2d 638, 639 [2d Dept 1995], lv denied 88 NY2d 815 [1996]). "'Control may be evidenced by lease provisions making the landlord responsible for repairs or by a course of conduct demonstrating that the landlord has assumed responsibility to maintain a particular portion of the premises'" (Fernandez, 72 AD3d at 638, quoting Taylor v Lastres, 45 AD3d 835, 835 [2d Dept 2007]).

Plaintiffs argue that because the leased kiosk was an open kiosk, the Kings Plaza defendants were not out-of-possession landlords and that they also retained dominion and control over the kiosk. This argument is rejected. The lease gave Vape On possession of the kiosk and did not reserve to the Kings Plaza defendants any right to use it or otherwise control the kiosk or the business performed by Vape On at the kiosk. The mere fact that the kiosk was not a closed store does not alter the Kings Plaza defendants' responsibilities or obligations in this regard or indicate that they retained dominion or control over the kiosk.

Plaintiffs argue that the right of reentry provided by the lease also demonstrates that the Kings Plaza defendants retained dominion and control over the leased kiosk. However, "[t]he mere reservation of a right to reenter the premises to make repairs does not impose an obligation on the landlord to maintain the premises" or control the tenant's conduct with respect to the items sold at the premises (Richer v JQ II Assoc., LLC, 166 AD3d 692, 693 [2d Dept 2018]). "The reservation of the right to enter the premises for inspection and repair may constitute sufficient control to permit a finding that the owner or lessor had constructive notice of a defective condition" only where "a specific statutory violation exists and there is a significant structural or design defect" (Lindquist v C & C Landscape Contrs., Inc., 38 AD3d 616, 617 [2d Dept 2007]). Here, there was no statutory violation with respect to the condition of the kiosk leased by Vape On and the kiosk had no structural or design defect.

There is no provision in the lease indicating that Brooklyn Kings Plaza LLC undertook any duty to control or supervise Vape On's operations. While plaintiffs assert that the lease provided that the Kings Plaza defendants could reenter the kiosk to inspect its "operations," the lease did not contain any language concerning "operations." Rather, as set forth above, the lease merely provided that Brooklyn Kings Plaza LLC could reenter the kiosk at reasonable times for "the purpose of inspecting its condition, [and] making repairs and improvements to the Premises." "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Pentacon, LLC v 422 Knickerbocker, LLC, 165 AD3d 829, 831 [2d Dept 2018]). The plain meaning and intent of this language, in this context, indicates that such an inspection was for the purpose of assessing the need for repairs to the kiosk and to determine if the tenant caused any damages to the kiosk. Indeed, the next sentence of this provision expressly provided that the landlord agreed "not to disturb Tenant's conduct of business during such access except in case of an emergency."

Plaintiffs argue that the lease contained provisions for the supervision by Brooklyn Kings Plaza LLC of the Vape On kiosk, namely, that no smoking was allowed, that all sales required ID, that there could be no live demonstration of vapes, that Vape On had a duty to comply with all health and police regulations, that Vape On was required to have a $1 million insurance policy, and that there could be no distribution of handbills/advertisements in the mall or parking lot. However, these provisions merely set forth Vape On's obligations under the lease and did [*5]not provide that Brooklyn Kings Plaza LLC had the right to supervise the safety of the e-cigarettes sold or used at the Vape On kiosk.

Plaintiffs have also submitted the affidavit, dated June 20, 2019, of Mark Slade ("Mr. Slade"), who states that he is the manager of Specialty Leasing Development for Macerich Kings Plaza Mall. Mr. Slade attests, in this affidavit, that "[i]t was not [his] role to supervise the kiosk's operations day to day to ensure it was operating safely and complying with the lease agreement."

Plaintiffs, in arguing that the Kings Plaza defendants had supervisory control over the kiosk, point to Mr. Slade's statement, in his affidavit, that "[c]orporate had a mall security team and management staff whose duty it was to supervise the safety of the kiosk." However, Mr. Slade's affidavit does not state how he had personal knowledge of Kings Plaza mall's security functions and protocols, and is conclusory in nature. "'[A]verments merely stating conclusions, of fact or of law, are insufficient'" to "'defeat summary judgment'" (Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 383 [2004], quoting Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 [1973]).

There is no evidence that the security officers had any supervisory authority or any right or ability to control any activities regarding the safety of Vape On's products. Mr. DeClara, who, as noted above, was the senior property manager of the Kings Plaza shopping mall, testified, at his deposition, that the mall operator did not have the responsibility to supervise tenants to make sure that they were operating safely, and that the mall, through its security, did not supervise the various tenants (Mr. DeClara's deposition tr at 8, 10). He further testified that it was the tenant's responsibility to operate safely and that the tenants were responsible for their own premises that they leased (id. at 8-9). He also testified that the security staff could not actually stop a dangerous activity by a tenant that it observed, but could only talk to the tenant or call the police (id. at 40). There is no showing that the function of security personnel at the Kings Plaza shopping mall was to monitor the safety of the products sold by lessees of kiosks. There is also no showing that the security staff at the Kings Plaza shopping mall was involved in the products sold at a kiosk or the business operation of a kiosk. Thus, plaintiffs have not raised any triable issue as to any course of conduct by the Kings Plaza defendants demonstrating that they assumed responsibility to monitor the safety of e-cigarettes at the Vape On kiosk.

Plaintiffs assert that Vape On violated Public Health Law § 1399-c, which prohibits a person operating a business where e-cigarettes are sold from selling them to a person under 18 years of age, and requires the posting of a sign, in a conspicuous place, stating that the sale of e-cigarettes to persons under 18 years of age is prohibited by law.[FN1] They contend that this was negligence per se. It is undisputed that Vape On violated this provision. There was no violation of this provision by the Kings Plaza defendants since they were not operators of Vape On.

While plaintiffs contend that the violation of Public Health Law § 1399-c constituted negligence per se, the intent of this statute, as set forth by its legislative history (NYCEF Doc No.92), was to prevent the sale of addictive nicotine products to children. It was not to prevent the sale of e-cigarettes to children because they could potentially explode. Furthermore, while [*6]Vape On may have failed to post this sign, this did not result in L.D.'s injury. L.D. testified, at his deposition, that the e-cigarette at issue was not sold to him, but was a personal e-cigarette not bought at Vape On, which was given to him by a worker at Vape On (L.D.'s deposition tr at 121, 123-124, 193). Thus, the violation by Vape On of Public Health Law § 1399-c does not support plaintiffs' claim that the Kings Plaza defendants' failure to observe that this sign was absent from Vape On's kiosk and to require Vape On to comply with this section caused L.D.'s injuries.

Plaintiffs contend that the Kings Plaza defendants breached their duty to L.D. by failing to immediately terminate Vape On's lease. They point to Mr. Slade's affidavit, in which he stated that per the lease, Brooklyn Kings Plaza LLC could have terminated the lease for violations or noncompliance with its terms. Furthermore, as set forth above, the lease permitted its termination by Brooklyn Kings Plaza LLC in its discretion. Plaintiffs assert that Vape On breached the lease by, among other things, selling e-cigarettes to minors, not posting a sign that the sale to minors was prohibited in violation of the law, providing a fraudulent insurance certificate, and recruiting L.D. to hand out fliers advertising its products.

The Court rejects as untenable plaintiffs' claim that it was incumbent upon the Kings Plaza defendants to evict Vape On and that the failure to fulfill such a duty results in liability to plaintiffs. "A reasonable opportunity or effective means to control [its tenant] does not arise from the mere power to evict" (Siino v Reices, 216 AD2d 552, 553 [2d Dept 1995]; see also Blatt v New York City Hous. Auth., 123 AD2d 591, 593 [2d Dept 1986], appeal denied 69 NY2d 603 [1987]). Moreover, the alleged breaches of the lease were not the proximate cause of L.D.'s accident. L.D.'s injuries arose from an unforeseeable explosion of the e-cigarette, not from any breach of the lease by Vape On. Mr. DeClara testified that he was unaware of any incident involving an explosion of an e-cigarette prior to L.D.'s accident (Mr. DeClara's deposition tr at 28), and there was no evidence of any prior explosions of e-cigarettes at Vape On's kiosk. Thus, there is no basis for the creation of any duty to L.D. on the part of the Kings Plaza defendants to evict Vape On (see Henry v Storage Post, 181 AD3d 543, 544 [1st Dept 2020]).

Plaintiffs have submitted the affidavit of Kenneth Leonard ("Mr. Leonard"), who purports to be an expert in mall operations. Mr. Leonard opines, in his affidavit, that Macerich violated the minimum standards in the shopping mall industry by not supervising Vape On's compliance with the lease. Mr. Leonard claims that an open kiosk must be strictly controlled and supervised by the landlord. Mr. Leonard does not cite to any established standards that a landlord's duty with respect to an open kiosk has any different requirements than an ordinary store. Mr. Leonard's opinion merely consists of his own legal conclusion, and is without any factual foundation, and thus lacks any probative value (see generally Daconta v Otis El. Co., 165 AD3d 753, 754 [2d Dept 2018]; Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 637 [2d Dept 2005]; Paladino v Time Warner Cable of NY City, 16 AD3d 646, 648 [2d Dept 2005]). There is no lease provision giving Brooklyn Kings Plaza LLC any such right of control or supervision over Vape On's products and business operations.

The Kings Plaza defendants further argue that L.D.'s accident was unforeseeable. It is well settled that an owner of real property "is not an insurer" of the safety of a visitor to such property (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]; see also Maheshwari v City of New York, 2 NY3d 288, 294 [2004]). Therefore, even when there has been "an extensive history of criminal conduct on the premises," the owner has no "duty to take protective measures unless it is shown that he [or she] either knows or has reason to know from past experience 'that [*7]there is a likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor'" (Nallan, 50 NY2d at 519 [internal quotation marks omitted]).

Plaintiffs argue that there was evidence that e-cigarettes could explode and that the Kings Plaza defendants should have known this. In support of this argument, Mr. Leonard, in his expert affidavit, states that it is standard and accepted practice for all shopping center operators to be familiar with U.S. Fire Administration ("USFA") fire safety warnings and recommendations. He opines that Macerich's failed to abide by warnings associated with e-cigarettes, set forth in a report entitled "Electronic Cigarettes Fires and Explosions," which was published by the USFA in October 2014, and that this failure subjected all persons at the Kings Plaza shopping mall to a grave risk of serious injury.

Mr. Leonard, however, actually cites to statements from a 2016 update by the USFA to its October 2014 report "Electronic Cigarettes Fires and Explosions," as opposed to the October 2014 report. It is this 2016 update, rather than the October 2014 report, which is annexed by plaintiffs (NYCEF Doc #114). Plaintiffs inaccurately state that this 2016 update was the October 2014 report. Mr. Leonard also bases his opinions on statements made in the 2016 update, and not the October 2014 report.

This 2016 update stated that there had been reports of 195 separate e-cigarette explosion and fire incidents in the United States from January 2009 to December 31, 2016, and 60 incidents occurred while the device was being used. It advised that a user should always use the charging appliance that comes with the unit and follow the manufacturer's instructions. It stated that the e-cigarette/lithium-ion battery combination posed "a new and unique hazard to consumers" because it placed the battery "with a known explosion hazard" into "close proximity to the human body," and that there is "no analogy among consumer products to a risk of a severe, acute injury presented by an e-cigarette." It further stated that "[f]ire and explosions caused by the batteries used in electronic cigarettes are uncommon," but "the consequences can be devastating and life-altering for the victims." As in the prior October 2014 report, it stated that "[t]he shape and construction of electronic cigarettes can make them (more likely than other products with lithium-ion batteries) behave like 'flaming rockets' when a battery fails."The 2016 update further stated, however, that "the failure rate of the lithium-ion batteries is very small." It recommended that "suppliers, industry associations, user groups, and fire prevention educators should all stress the importance of using UL-listed devices and proper charging practices to reduce the number of incidents."

This 2016 update to the October 2014 report was subsequent to L.D.'s accident, and thus, the updated information does not bear upon the knowledge about explosions caused by the batteries of e-cigarettes at the time of L.D.'s accident. The earlier October 2014 publication by the USFA, which is annexed by the Kings Plaza defendants (NYCEF Doc #131), had reported that there had, at that time, been only 25 incidents of explosion and fire involving an e-cigarette in the United States between 2009 and August 2014, and that "most of these incidents occurred while the battery was charging." It warned that "lithium-ion batteries must be charged in accordance with the manufacturer's instructions." It further stated that "fires or explosions caused by e-cigarettes are rare." It recommended "continuing improvements in battery safety designs by the industry."

This USFA publication does not show that there was a dangerous activity conducted by Vape On at its kiosk. The sale and use of e-cigarettes was not illegal or considered ultrahazardous. There was no prohibition against having a kiosk selling e-cigarettes present in a [*8]shopping mall. Rather, this USFA publication merely warned that lithium-ion batteries used to power e-cigarettes could fail. This did not impose any duty upon the Kings Plaza defendants, as landlords, to monitor or control Vape On's products at its kiosk. Furthermore, there is no showing that the Kings Plaza defendants were aware of this USFA publication which pertained specifically to e-cigarettes and not to shopping malls, or that they knew of any risk of fire or explosion from e-cigarettes. Thus, the existence of this USFA publication does not constitute evidence that L.D.'s injuries were foreseeable by the Kings Plaza defendants.

Therefore, Mr. Leonard's opinion, within a reasonable degree of mall operations safety, merchandising, and security expertise, that Macerich did not abide by the fire and explosion warnings set forth in the USFA publication, thereby subjecting all persons shopping in the mall to a grave risk of serious injury, must be rejected. Macerich had no duty regarding following manufacturer's instructions with respect to the batteries of e-cigarettes. Furthermore, it was legal to operate a kiosk selling e-cigarettes and to rent a kiosk to an operator selling e-cigarettes.

Plaintiffs assert that there were prior incidents at Vape On's kiosk of e-cigarette malfunctions causing fuses to blow, e-cigarette batteries popping, live demonstrations of e-cigarette products, and minors operating Vape On's kiosk. This assertion is solely based upon the affidavit, dated July 2, 2019, of David Nahon ("Mr. Nahon"), a friend of L.D. Mr. Nahon, in his affidavit, states that Vape On let him and other teenage boys sample its products, that Vape On did live demonstrations of its products, and that Igor let him and other teenagers operate the booth and close up at the end of the day. Mr. Nahon further states that he observed on at least two occasions prior to L.D.'s injuries that when e-cigarettes were plugged into and charging at the kiosk, the power short-circuited and went "pop," causing a fuse outage. He asserts that Kings Plaza maintenance workers came over during these instances and simply helped turn the power back on. He also asserts that there were "numerous other instances of battery malfunctions at the kiosk," stating that this was because Vape On often sold used batteries. He further states that he was at the Kings Plaza shopping mall when a "sample battery owned" by Vape On exploded in L.D.'s face while L.D. was sampling it at the kiosk.

Significantly, on February 6, 2017, the Court had issued a preliminary conference order requiring the parties to exchange the names and addresses of all witnesses within 45 days of that order. Plaintiffs did not identify Mr. Nahon as a witness. In fact, plaintiffs did not identify Mr. Nahon as a witness to L.D.'s accident until February 8, 2019, six months after plaintiffs filed their note of issue and certificate of readiness on August 13, 2018 and only after the Kings Plaza defendants filed their instant motion. The Kings Plaza defendants assert that by failing to identify Mr. Nahon as a witness, they were deprived of the opportunity to depose him. Thus, the Court finds that plaintiffs must be precluded from offering Mr. Nahon's affidavit and it cannot be used as a basis to defeat summary judgment (see Henry v Higgins, 117 AD3d 796, 797 [2d Dept 2014]; Dunson v Riverbay Corp., 103 AD3d 578, 579 [1st Dept 2013]; Ravagnan v One Ninety Realty Co., 64 AD3d 481, 482 [1st Dept 2009]).

Moreover, Mr. Nahon's recent affidavit is contradicted by L.D.'s own deposition testimony. As noted above, L.D. testified that the battery at issue was the worker's personal property and not from Vape On (L.D.'s deposition tr at 121, 123-124, 193). Mr. Nahon does not state how he could have had personal knowledge that the battery was a "sample battery" owned by Vape On. Moreover, while L.D. testified that at one time, a fuse at the kiosk was not working so security guards came over, he did not state that a battery had been plugged into and being charged at the kiosk when there was this fuse outage or that it had anything to do with an e-[*9]cigarette (id. at 97). Rather, L.D. testified that the fuse had "just stopped working," and that he was sitting there smoking his e-cigarette at the time of this incident (id.). There is also no showing that the Kings Plaza defendants were aware of what had caused the fuse outage. L.D. also testified that the e-cigarette was not plugged in to the kiosk's charger at the time of his accident (id. at 176). Thus, plaintiffs' argument that the security staff at Kings Plaza was aware that there were multiple prior e-cigarette malfunctions causing electrical fuse outages and e-cigarette batteries loudly popping is unsupported by any evidence.

There is also no evidence that the Kings Plaza defendants knew or had reason to know from past experience that there was a likelihood of conduct by an employee of Vape On which was likely to endanger the safety of L.D. by giving him an e-cigarette which had the potential to explode (see Nallan, 50 NY2d at 519). As previously noted, there were no similar prior explosion incidents at the kiosk.

Plaintiffs also state that Vape On improperly failed to register with the Health Department. Plaintiffs, however, do not explain how the Kings Plaza defendants would or should have known of this, what bearing this has on what duty they owed to L.D., or how this rendered an explosion of an e-cigarette foreseeable.

Plaintiffs contend that the Kings Plaza defendants had a common-law duty to take reasonable precautionary measures to protect members of the public from known dangerous activities and unlawful activities by Vape On. While it is undisputed that the business of selling e-cigarettes was a legal business, plaintiffs argue that the Kings Plaza defendants had a common-law duty to protect L.D. from Vape On's dangerous and unlawful activity of selling malfunctioning e-cigarettes to minors. This argument is rejected. There was no relationship between the Kings Plaza defendants and L.D. requiring them to afford protection from potential dangers springing from any such sales (see Muniz v Flohern, Inc., 77 NY2d 869, 870 [1991]). Moreover, as discussed above, there is no evidence that the Kings Plaza defendants knew of any possible potential of explosion of the e-cigarette. As previously set forth, the reason for the illegality of the sale of e-cigarettes to minors was based upon preventing the sale of addictive nicotine products to children, and was unrelated to any potential for explosion. There was no notice of the particular dangerous condition that caused L.D.'s injury (see Dunson v Riverbay Corp., 103 AD3d 578, 579 [1st Dept 2013]).

Plaintiffs argue that the Kings Plaza defendants had a duty to investigate Igor's character and history before renting space to his corporation, Vape On, and that they should not have leased the kiosk to Vape On. Plaintiffs' expert, Mr. Leonard, opines that Macerich failed to properly screen Igor, and that Igor was unfit to run an e-cigarette business. Mr. Leonard's opinion and plaintiffs' argument is based upon their contention that the Kings Plaza defendants could, with due diligence, have discovered that Igor, in the past, had been charged with the receipt and delivery of misbranded drugs after an investigation by the Drug Enforcement Authority on June 28, 2011 concerning a drug ring that sold millions of dollars in recreational designer drugs, known as bath salts, to minors in retail shops in Manhattan and Brooklyn. Plaintiffs do not show that Igor was convicted of these charges. In addition, these charges took place more than four years prior to the subject December 15, 2015 lease, and the lease was to the corporation, Vape On, which was legally formed. Moreover, the sale of e-cigarettes was not an illegal business and no illegal substances have been alleged to have been sold at the Vape On kiosk.

Plaintiffs further assert that the lease application did not show that Igor had any prior [*10]experience in the retail industry and reflected that he was a "first time retailer." There is no legal requirement that a retailer of e-cigarettes must have had prior experience as a retailer. Thus, such a lack of prior experience did not mandate that the Kings Plaza defendants deny Vape On's lease application or risk the imposition of liability on them.

Plaintiffs argue that the Kings Plaza defendants were negligent in allowing Vape On to lease the kiosk in the most heavily trafficked area of the mall entrance. However, the only testimony concerning the location of the Vape On kiosk was given by Mr. DeClara, who testified, at his deposition, that the mall had seven entrances, and that the Vape On kiosk was located several hundred feet from the closest entrance (Mr. DeClara's deposition tr at 98-99). Plaintiffs do not cite to any testimony or evidence as to how heavily trafficked the Vape On kiosk was.

Plaintiffs also claim that the Kings Plaza defendants strategically placed the Vape On kiosk near a toy store. Mr. Leonard opines that the e-cigarette kiosk should not have been placed near the entrance to the Kings Plaza shopping mall next door to Toy World because this caused minors to frequent it. However, the only evidence as to the placement of the Vape On kiosk was that this space was the one available for rent (Mr. DeClara's deposition tr at 29). Moreover, L.D. did not testify that he was drawn to the Vape On kiosk because it was near a toy store, and, in any event, the placement of the Vape On kiosk was not the reason for the explosion or L.D.'s resulting injuries.

Plaintiffs cite to various cases regarding the liability of landlords for defective conditions on their property which are inapplicable to this case. They fail to cite to any precedent, nor is there any, for extending a retailer's duty regarding the safety of its products to the operator of a shopping mall, which was not involved with the retailer's products. Thus, summary judgment dismissing plaintiffs' complaint as against the Kings Plaza defendants must be granted (see CPLR 3212 [b]).

With respect to Igor and Esther's motion, the Kings Plaza defendants have consented to the dismissal of their third-party complaint as against Esther. While the Kings Plaza defendants opposed the cross motion with respect to Igor, in view of the Court's determination that summary judgment dismissing plaintiffs' complaint as against the Kings Plaza defendants is warranted, the Kings Plaza defendants' cross claims are rendered moot and must be dismissed (see CPLR 3212 [b]).

Conclusion

Accordingly, the Kings Plaza defendants' motion for summary judgment dismissing plaintiffs' complaint as against them is granted. In view of this determination, Igor and Esther's motion for summary judgment dismissing the Kings Plaza defendants' third-party complaint as against them has been rendered moot and is, therefore, granted.

This constitutes the decision, order, and judgment of the Court.

Dated: June 26, 2020

DONALD SCOTT KURTZ

Justice, Supreme Court Footnotes

Footnote 1:As a result of an inspection of the kiosk on April 26, 2016, a notice of violation with respect to the absence of the age restriction sign was issued (NYCEF Doc #122). This was subsequent to L.D.'s accident.