Polycarpe v JQ II Assoc., LLC

Annotate this Case

Download PDF

Polycarpe v JQ II Assoc., LLC 2021 NY Slip Op 33383(U) December 15, 2021 Supreme Court, Nassau County Docket Number: Index No. 614911/2018 Judge: Thomas Rademaker 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. INDEX INDEX NO. NO. 614911/2018 614911/2018 FILED: NASSAU COUNTY CLERK 01/07/2022 04:10 PM NYSCEF DOC. DOC. NO. NO. 29 RECEIVED NYSCEF: NYSCEF: 01/04/2022 01/04/2022 SUPREMKCOURT- STATE OF NEW YORK Honorable Thomas Rademaker; Justice _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x Trial IAS Part2l ·Nassau County RAYMONDE POLYCARPE, Index No;: 614911/2018 Plaintiff(s), Motion Seq. No.: 001 Motion Submitted: 10/22/2021 -against- DECISION AND ORDER JQ II ASSOCIATES,LLC aild ACCOLADE BUILDING MAINTENANCE CORP, Defendant(s), The following papers read on this motion: Notice of Motion/Supporting Exhibits ...... ;, .. ,.............................. ;... 1 Affirmations. in Opposition........... ,................. ,............................ ,..... 2 Reply·,..Affirmation, ......... ,.......................... ,............................................ ,.. 3 The Defenciant, JQ II ASSOCIATES, LLC ("'JQ II"), moves pursuant to CPLR §321 i, for· an Order granting su.mrnaty judgmen;t agai.Qst the Plaintiff and disni.issing the plaintiffs complaint. This motion is opppsed by the Plaintiff. The ca:se at bar is a neg:iigence action in which the Plainti ff slipped and fell on July 19, 2017 , . in the basement of a premises located· at 200 JedchoQuadrangle~ Jericho , New [* 1] 1 of 5 INDEX INDEX NO. NO. 614911/2018 614911/2018 FILED: NASSAU COUNTY CLERK 01/07/2022 04:10 PM NYSCEF DOC. DOC. NO. NO. 29 RECEIVED NYSCEF: NYSCEF: 01/04/2022 01/04/2022 York. The Plaintiff contends th athe was caused to slip due to an oily substance on the floor. The Building was -owned by JQII, which leased the premises to a non-party tenant; CSC Holdings LLC. CSS Holdings, LLC, in tum, hired the Defendant Accolade Building Maintenance Corp ("Accolade") to perform services atthe·subject pr:emises. The Plaintiff filed his Summonsand Complaintwiththe Court on November 15, 2018,. and issue was joined when theDefendantJQIIfiled itsAnswer on February 18, 2018.The Court's "Consolidation Dreier" datedJune 7, 2021, added the Defendant Accolade as a party. It is well settled that in a motion for summary judgmentthe moving party bears the burden of making a prima fade showingthathe or she is entitledto summary judgment as a matter oflaw,submitting sufficient evidence to demonstrate the absence ofa material issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]; Friends of Animals, Inc. v. Associates Fur Mfrs., 46 NY2d 1065 [1979]; Zuckerman v. City of New York, 49 NY2d 5557 [1980]; 4-lvarez v. Prospect Hospital, 68 NY2d 320 [1986]}. The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing; papers {see Winegard v. New York University Medical Center, 64 NY2d 851 [1985]). Once this showing has been made, however,the burden shifts to the party opposing themotionfor suminary judgnientto produceevidentiary proof in admissible fonn sufficient to establish the ex:istence of material issues offact which require a trial of the action (see Zuckerman v. City ofNew York, 49 NY2d 5557 [1980]). The primary purpose of a summary judgment motion is issue finding not issue determination( Garcia v. J, C. Duggan,. 2 [* 2] 2 of 5 FILED: NASSAU COUNTY CLERK 01/07/2022 04:10 PM NYSCEF DOC. DOC. NO. NO. 29 INDEX INDEX NO. NO. 614911/2018 614911/2018 RECEIVED NYSCEF: NYSCEF: 01/04/2022 01/04/2022 Inc., J 80 AD2d 570 [1st Dept. 1992]), and it should only be granted when there are no triable iss~es of fact (see also Andre v. Pomeroy; 35 N2d 361 [1974]). A motion forsurnmaryjudgment is prerriatute when the nonmoving party has not been given a reasonable time and opportunity to conduct disclosute relative to pertinent evidence, more speculation will not suffice. (See Bevens v. Tarrant Mfg., Co, Inc. 48AD3d939 [3 rd Dept 2008]) "A party should be afforded a reasonable opportunity to conduct discovery prior to the detennination ofa motion for summary judgment.;, (Elliot v. County ofNassau, 53 AD3d 561, 563 [2 nd Dept 2008] quoting Amico v Melville Volunteer Fire Co~, Inc. 39 AD3 d 784,. 785 [2nd Dept 2007], citing Urcan v. COcarelli, 234 AD2d 537 [2 nd Dept 1996]) The DefendantJ QII contends that itis entitled to summaryjudgmentbecause it was an absent landlord that did not maintain the premises or hire maintenance providers, such as Accolade. A defense deposition ofDefendant JQUhas not been conducted, and in lieu of providingadefendanf s transcript, JQJI submits an affidavit of "an auhorized signatory of Defendant, JQ Ht and said afidavit provides that JQIIhad no obligation pro provide "anyworklabor or services" for the.tenant at the accident site; and the Defendant JQII denies creating the alleged oily substance on the basement floor at the accident site. An out of possession landlord with no direction or control over the layout ofa commercial premises would be entitled to summary dismissal of a complaint. (Wrubel v; Rose Boutique II, Inc. 13 AD3d 264 [1st Dept 2004]). . In contrast, the Plaintiff contends that Sµm111ary Judgment must be denied as prerria~ure since JQ II ai3Sqciates had, under its lease with CSS Holdings, LtC the right to make repairs and replacements.at·the suqject premises, the right to enter and.inspec;t the premises, and the.right to 3 [* 3] 3 of 5 ················································--------------------- INDEX INDEX NO. NO. 614911/2018 614911/2018 FILED: NASSAU COUNTY CLERK 01/07/2022 04:10 PM NYSCEF DOC. DOC. NO. NO. 29 RECEIVED NYSCEF: NYSCEF: 01/04/2022 01/04/2022 make repairs which the tenantneglected ortefused to make. The Plaintiff has not had the opportunity to deposeAccolade regardingthe. presence or creation of the alleged oily substanceon the bas~ment floor which caused the Plaintiff to fall, and that such testimony would be relevantto determine if JQII had anyinvolvementwith the creation ofthe oily condition Oh the basement floor, or if the oil condition arouse out ofa ''structural defect" on the premises for Which the landlord may indeed be responsible for. It is axiomatic that an out-of-possession landlord who has actual or constructive notice ofa hazardous condition. and retains the right to inspect and to make repairsin theJeased premises may be held liable for failure to maintain the property in a: safe condition. {Beach v; C.H. Wing Company, Inc. 2008 NY Misc. Lexis 7812 [Sup. Ct. New York County 2008]) CPLR 3212[FJprovides that ''should itappear from affidavits submitted in opposition to the motion that facts. essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a: continuance to permit affidavits to be obtained or disclosure to be had and. may make such. other order as may be just." Upon review of a careful review of the affidavits in support of the defendants' motion, and the annexed exhibits thereto, and in the exercise of its discretion, the Court finds that granting summary judgment in favor of the Defendant prior to the completion of the dhmovery process, . including but not necessarily limited to depositions, is premature and accordingly it is hereby. . . ORDERED that motion sequences 001 is DENIED in their entirety, but withoutprejudice 4 [* 4] 4 of 5 . INDEX INDEX NO. NO. 614911/2018 614911/2018 FILED: NASSAU COUNTY CLERK 01/07/2022 04:10 PM NYSCEF DOC. DOC. NO. NO. 29 RECEIVED NYSCEF: NYSCEF: 01/04/2022 01/04/2022 to the filing of summary judgment motion by any party at the conclusion of the discovery process and the certification of this matter as readv., for trial. This constitutes the Decision and Order of the Court. Dated: December 15, 2021 Mineola, N. Y. NASSAU COUNTY COUNTY CLERK"S OFFICE 5 [* 5] 5 of 5

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.