Castillo v John & Joe's Rest. Corp.
Annotate this CaseDecided on September 28, 2020
Supreme Court, Bronx County
Joseph Castillo, Plaintiff,
against
John & Joe's Restaurant Corp. et al., Defendants.
31460/2018E
Adrian N. Armstrong, J.
Upon the foregoing papers, the motion of the defendant Washington Heights Parking LLC, (hereinafter, "Washington Heights") for summary judgment pursuant to CPLR 3212 dismissing the complaint and all cross claims against it, is decided as follows:
Plaintiff Joseph Castillo seeks monetary damages as a result of a purported assault which took place on October 13, 2017, at a bar located at 4609 White Plains Road, in Bronx County. On or about September 16, 2019, the plaintiff discontinued without prejudice the action as against Enclave Commercial Capital LLC. The remaining defendants, with the exception of the movant, are in default and the plaintiff was granted a default judgment against them on November 8, 2019.
Defendant Washington Heights and the other named defendants are alleged to have failed, among other allegations, to protect the plaintiff when he was lawfully on the premises and/or bar, and was assaulted by the defendants, their agents, and/or customers. Plaintiff further alleges that the defendants were negligent in failing to protect him, failing to provide security and in violation of Section 65 of the New York State Alcohol and Beverage Control Law/General Obligations Law Section 11-101.
Washington Heights submits an affidavit from Jose Espinal, the sole member of its corporation, wherein he confirms that Washington Heights owned the building located at 4609 White Plains Road. Mr. Espinal indicates that there was a lease agreement dated March 1, 2016, which was in effect for five years and leased the premises in its entirety to co-defendant, John and Joe Restaurant Corp. A copy of that Lease Agreement is included with Mr. Espinal's affidavit. Section 17(B) of that Lease Agreement requires that the tenant be solely responsible for the security of the demised premises. Additionally, the affidavit from Mr. Espinal outlines that Washington Heights was not responsible for security at the premises, which was leased in its entirety. Finally, he contends that Washington Heights was not present at the time of plaintiff's incident and he was not aware of any other prior assaults or incidents at the premises during Washington Heights' time as owner.
Plaintiff opposes the summary judgment motion by proffering an affirmation by its counsel contending that the instant motion is premature, as relevant and material discovery [*2]remains outstanding.
In reply, Washington Heights argues that in opposition to its motion, plaintiff failed to raise any substantive facts to oppose the summary judgment motion, instead merely relying on the argument that discovery is at an early stage. As such, Washington Heights maintains that based on its submission, there will be no discovery that will raise relevant liability factual issues.
A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept. 2013]).
Here, the defendant Washington Heights' affidavit established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to establish that it was an out-of- possession landlord, not liable for providing security at the subject premises at the time of the plaintiff's incident at the subject location (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
An out-of-possession landlord "is generally not liable for negligence with respect to the condition of property . . . unless [it] is either contractually obligated to make repairs and/or maintain the premises or has a contractual right to reenter, inspect and make needed 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" (Johnson v Urena Serv. Ctr., 227 AD2d 325, 326, 642 NYS2d 897 [1st Dept 1996], lv denied 88 NY2d 814, 673 NE2d 1243, 651 NYS2d 16 [1996]).
Defendant Washington Heights has satisfied its prima facie burden of demonstrating that neither of the exceptions to the out-of-possession landlord doctrine apply. First, the lease provisions establish that Washington Heights did not have a contractual obligation to maintain the demised premises. Second, the Court notes that Administrative Code § 28-301.1, which sets forth a general duty of maintenance and repair, is insufficient to impose liability on an out-of-possession landlord (see Sapp v S.J.C. 308 Lenox Ave. Family Ltd. Partnership, 150 AD3d 525, 528, 56 N.Y.S.3d 32, 36, 2017 NY App. Div. LEXIS 3957, *8 [1st Dept. 2017].)
In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of plaintiff's attorney, who has no personal knowledge of facts asserted herein, is insufficient to raise a triable issue of fact with respect to Washington Heights' claimed lack of responsibility of the premises where plaintiff was caused to be harmed (see Hoffman v Eastern Long Is. Transp. Enter., 266 AD2d 509 [1999]).
The plaintiff likewise failed to demonstrate that the motion was premature. Pursuant to CPLR 3212 (f), the court may deny a motion for summary judgment if "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." The contention that further discovery may yield some evidence of fault on the movant's part is speculative and therefore insufficient to rebut the presumption. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment (see Costaneda v DO & CO New York Catering, Inc., 144 AD3d 407 [1st Dept 2016]). A litigant seeking to avoid summary judgment on the ground that discovery has not been conducted must provide an evidentiary basis demonstrating that [*3]discovery may lead to relevant evidence or that the facts essential to opposing the motion are in the movant's exclusive knowledge and control (see CPLR 3212 [f]; Medina v Rodriguez, 92 AD3d 850, 851 [2012]; Hill v Ackall, 71 AD3d 829, 830 [2010]). The plaintiff made no such showing.
Accordingly, it is hereby
ORDERED that defendant Washington Heights' motion for summary judgment is granted. The complaint and all cross claims against them are dismissed.
This is the Decision and Order of the Court.
Dated: September 28, 2020
Adrian Armstrong, A.J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
