Opinion
Index No. 150918/2021 Motion Seq. Nos. 002 003 004
10-18-2023
HOWARD BERMAN, Plaintiff, v. 160 PARKING CORP, and PHOENIX OWNERS CORP., Defendants.
Unpublished Opinion
MOTION DATE 01/23/2023
PRESENT: HON. ERIC SCHUMACHER, Justice
DECISION + ORDER ON MOTION
Eric Schumacher, Judge
NYSCEF doc nos. 34-59, 64-68,70-71,73,94-100, and 123 were read on seq. 002 for summary judgment.
NYSCEF doc nos. 74-89,93,101-103,119-120,124, and 127 were read on seq. 003 for summary judgment.
NYSCEF doc nos. 90-92,104-118,121-122, and 125-126 were read on seq. 004 for summary judgment.
Motion seq. no 002 by defendant 160 Parking Corp, pursuant to CPLR 3212 for an order granting summary judgment in favor of 160 Parking Corp, dismissing the complaint and all cross claims as against it denied.
Motion seq. no. 003 by defendant Phoenix Owners Corp, pursuant to CPLR 3212 for an order granting summary judgment in favor of Phoenix Owners Corp, dismissing the complaint and all cross claims as against it denied.
Motion seq. no. 004 by plaintiff Howard Berman pursuant to CPLR 3212 for an order granting summary judgment in favor of plaintiff on the issue of liability over defendants or determining that defendants violated the industry standard by failing to install handrails on both sides of the parking garage ramp denied.
BACKGROUND
Procedural History
Plaintiff commenced this action on January'28, 2021, by filing a summons and complaint (NYSCEF doc no. 1 [hereinafter complaint]). The subject premises is a parking garage located at 187 East 64th Street, New York, NY 10065 (hereinafter parking garage), which is part of a large building (complaint ¶ 4). The complaint alleges that defendant Phoenix Owners Corp. (hereinafter Phoenix) owned, operated, maintained, managed, and controlled the parking garage (id. ¶¶ 4-8). The complaint further alleges that Phoenix leased the parking garage to defendant 160 Parking Corp. (hereinafter 160 Parking) (id. ¶ 10). The complaint further alleges that 160 Parking operated, maintained, managed, and controlled the parking garage (id. ¶¶ 11-14).
The complaint alleges that, on December 14, 2020, plaintiff fell on the parking garage's ramp, sustaining severe and permanent injuries due to the negligence of defendants in failing to maintain and keep the parking garage and its ramp in safe and proper condition (id. ¶ 19). The Complaint further alleges that, on the date of the alleged accident, "the only way for persons who did not reside in the building to enter the parking garage was via the ramp" (id. ¶ 17).
Plaintiff and 160 Parking both submitted surveillance video of plaintiffs accident. The court has reviewed and considered the video for the purposes of the motions.
Plaintiff asserts that defendants were negligent in: (1) permitting the ramp to be wet; (2) permitting the ramp's slope to be steep or improper; (3) failing to provide a handrail on the entrance side of the ramp; (4) causing the handrail on the exit side of the ramp to be unusable by blocking it with parked cars; (5) failing to provide adequate signage; and (6) failing to maintain and inspect the ramp (id. ¶ 20).
On March 11,2021,160 Parking filed an answer with cross claims against Phoenix (NYSCEF doc no. 3). On April 7,2021, Phoenix filed an answer with cross claims against 160 Parking (NYSCEF doc no. 5). On September 26,2022, plaintiff filed the note of issue (NYSCEF doc no. 33).
Motion Seq. No. 002
On November 14,2022,160 Parking filed motion seq. no. 002 for an order granting summary judgment in favor of 160 Parking dismissing the complaint and all cross claims (NYSCEF doc no. 34).
160 Parking argues, as is relevant here, that: (1) pursuant to the storm-in-progress rule, 160 Parking did not owe a duty to plaintiff; (2) 160 Parking, as a tenant pursuant to a lease entered into with the owner of the premises, owed no duty to plaintiff; and (3) there is no evidence that the parking garage's ramp was designed or built by 160 Parking (affirmation of Esposito ¶¶ 20,21,23). 160 Parking submits an affidavit by Lerner, the president of 160 Parking and of nonparty IPark, the parent company of 160 Parking (NYSCEF doc no. 48). Lerner annexes a copy of the lease between 160 Parking and Phoenix and accompanying documents.
I. Affidavit of Bernard P. Lorenz
160 Parking submits an affidavit by Bernard P. Lorenz, as retained by 160 Parking as an expert in civil engineering (aff of Lorenz ¶ 1). Lorenz states that, on July 26,2022, he conducted an inspection of the parking garage (id. ¶ 3). During this inspection, Lorenz performed a wet-and-dry slip resistance test in accordance with the most current American National Standards Institute A326.3 standard (hereinafter ANSI A326.3), which addresses whether a floor surface is slip resistant (id. ¶ 7). Lorenz states that the surface at the location of plaintiffs accident was slip-resistant under wet and dry conditions in accordance with ANSI A326.3 (id. ¶ 9). Lorenz opines that, based on the test, the location of plaintiff's accident was properly maintained in conditions that were safe for the intended use (id, ¶¶ 7-8).
Lorenz further states that the 1938 New York City Building Code (hereinafter 1938 Building Code) applies to the parking garage, and that the 1938 Building Code does not provide specific slope parameters for parking garage ramps, only ramps "used in place of stairways" (id. ¶ 10). Lorenz further states that the slope of the parking garage ramp at approximately where plaintiffs accident occurred was 8.5 degrees, which while in excess of the 1938 Building Code requirement as to ramps used in place of stairways, here is not violative of any applicable provision, and that the ramp was coated with a non-slip surface (id. ¶¶ 6, 20).
II. Deposition of Plaintiff
160 Parking submits plaintiffs deposition transcript. Plaintiff testified, as is relevant here, that it was raining when plaintiff: (1) was driving into Manhattan; (2) arrived at the parking garage to drop his car off; and (3) approached the parking garage to pick up his car (plaintiff tr at 51, lines 2-11; at 137, lines 2-6). Plaintiff further stated that cars coming in and out of the parking garage were wet from driving in the rain, he assumed his shoes were wet from the rain, and it was raining "pretty heavy" at the time of the accident (id. at 137, lines 9-15).
III. Deposition of Dionicio Silva
160 Parking submits the deposition transcript of Silva, an employee of IPark who was present during plaintiffs accident. As is relevant here, Silva testified that IPark arranged for a certain 2011 repaving of the subject ramp (Silva tr at 127, line 25; at 128, lines 1-3). Silva further stated that the "whole driveway" was redone and that "[t]hey put this thing called no slip floor" in the driveway and painted it with a special waterproof paint (id. at 113, lines 2-15). Silva further stated that IPark hired and paid the contractor who performed the work, that the . contractor comes by periodically to check on the driveway, and that no work has been done since (id. at 114, lines 15-25; at 115, lines 8-21; at 116, lines 22-25; at 117, lines 1-2).
IV. Affidavit of Scott Silberman
Plaintiff submits an affidavit by Scott Silberman, as retained by plaintiff as an expert in forensic engineering (aff of Silberman ¶ 1). Silberman states that he inspected the premises in question on June 14, 2022, and that the slope of the driveway ramp where plaintiff slipped was 15.9 degrees, exceeding the 1938 Building Code standards (id. ¶ 14). Silberman further states that the slope of the ramp and lack of a second handrail at the parking garage did not conform to good and accepted practice for construction in New York City, and that good and accepted practices are demonstrated in the 1968, 2008, and 2014 New York City Building Codes, as well as in the 1966 National Fire Protection Association standards (id. ¶¶ 31-35). Silberman further states that being that Lorenz conducted slip testing 1.67 years after plaintiffs accident occurred, it cannot be said with any certainty that the condition of the surface at the time of testing matched the condition of the surface on the date of the accident (id. ¶ 37). Silberman further states that the parking garage has a sign mounted to the wall toward the top of the ramp, stating "CAUTION - Please Use Handrail when walking up and down ramp" (id. ¶ 8), and that there is no similar sign nor is there a handrail near where plaintiff fell (id. ¶ 10).
On January 2, 2023, plaintiff filed an affirmation and memorandum of law in opposition to 160 Parking's motion for summary judgment. As is relevant here, plaintiff argues that: (1) 160 Parking violated the 1968 New York City Building Code by voluntarily installing a handrail but blocking it and not installing a handrail on the other side of the ramp; and (2) 160 Parking breached a common-law duty to plaintiff to maintain reasonably safe premises, but even if 160 Parking did not owe plaintiff, as a third-party user of the parking garage, such a duty, two of the exceptions apply as set forth Espinal v Melville Snow Contractors, Inc. (98 N.Y.2d 136,138 [2002]) in that 160 Parking launched a force or instrument of harm and entirely displaced Phoenix's duty (NYSCEF doc nos. 65 ¶¶ 84-86 and 67 at 8).
As the prior motion court made no ruling on plaintiffs failure to include a word count certificate with its memorandum in opposition, this court excuses the minor defect and has considered the document in full.
On January 3,2023, Phoenix filed an affirmation in opposition to 160 Parking's motion for summary judgment (NYSCEF doc no. 70 ¶¶ 4-6).
Arguments raised for the first time in opposition are not being considered by the court as supporting a motion for summary judgment. Arguments made in opposition to one motion that might otherwise support the relief sought by a movant in another motion are not sufficient.
On February 6,2023,160 Parking filed two reply affirmations. As is relevant here, as to plaintiff, 160 Parking argues that: (1) 160 Parking owed no duty to plaintiff, citing Espinal; (2) plaintiff's argument that 160 Parking launched a force of harm because it blocked the handrail with a car is without legal support; (3) it is undisputed that the accident was not the result of a car blocking the handrail; and (4) plaintiff's claim that a second handrail was required fails because it is based on nonmandatory standards and codes not in place when the building was built (NYSCEF doc no. 96 ¶¶ 9,12-13,17).
Motion Seq. No. 003
On January 23,2023, Phoenix filed motion seq. no. 003 for an order granting it summary judgment dismissing the complaint and all cross claims (NYSCEF doc no. 74).
Phoenix argues, as is relevant here, that: (1) the 1938 Building Code does not require handrails on vehicular ramps; (2) the ramp was not defective; (3) the accident resulted from a storm in progress which precludes recovery; and (4) plaintiff's claim that the parking garage lacked appropriate signage warning plaintiff about the structure of the ramp is frivolous because plaintiff had been using the parking garage for approximately eight years, was fully familiar with the structure, and needed no signage to assist him (affirmation of Fouhy ¶¶ 46-51).
I- Affidavit of Yoandi Interian
Phoenix submits an affidavit by Yoandi Interian, as retained by Phoenix as an expert in civil engineering (aff of Interian ¶ 1). Interian states that he inspected the location of plaintiff's accident on July 11,2022 (id. ¶ 7). Interian further states that there were no structural defects or other damage to the vehicular ramp in the approximate area of plaintiff's accident (id. ¶ 8). Interian further states that, after performing a wet-and-dry slip resistance test, the slip resistance of the ramp conformed with standard custom and practice within the industry for safe walking surfaces (id. ¶ 8). Interian further states that the ramp's slope at the approximate location of plaintiff's accident was 13.5 degrees (id. ¶ 12).
On February 27, 2023, 160 Parking filed an affirmation in opposition to Phoenix's motion for summary judgment. As is relevant here, 160 Parking argues that: (1) Phoenix has failed to set forth their prima facie entitlement to dismissal of 160 Parking's cross claims; and (2) Phoenix erroneously claims that it was "out of possession" at the time of plaintiffs accident (NYSCEF doc no. 101 ¶¶ 4-5).
On March 1, 2023, plaintiff filed an affirmation in opposition to Phoenix's motion for summary judgment. As is relevant here, plaintiff argues that its signage claim is not frivolous because cars frequently blocked the sign (NYSCEF doc no. 119 ¶¶ 18-23).
On March 7, 2023, Phoenix filed a reply affirmation. Phoenix argues, as is relevant here, that: (1) the parking garage ramp possessed a slip-resistant surface; and (2) the 1938 Building Code did not have slope requirements for vehicular ramps; and (3) the 1938 Building Code did not require handrails on ramps (NYSCEF doc no. 124 ¶¶ 11, 14, 16).
Motion Seq. No. 004
On January 23, 2023, plaintiff filed motion seq. no. 004 for an order granting summary judgment in favor of plaintiff on the issue of liability over defendants, or, in the alternative, determining that defendants violated the industry standard by failing to install handrails on both sides of the parking garage ramp (NYSCEF doc no. 90).
Plaintiff argues, as is relevant here, that: (1) Phoenix had a nondelegable duty and was actively negligent; and (2) even if the parking garage was not required to provide handrails, it has been the custom and usage in the industry to provide handrails on both sides of ramps since 1966 or 1968 (affirmation of Rothstein ¶¶ 12-13, 15)
On February 27, 2023, 160 Parking filed an affirmation in opposition. 160 Parking argues, as is relevant here, that: (1) the applicable industry standards and good and accepted practices are those that were in effect when the building was built; (2) plaintiffs experts references to the 1968, 2008, and 2014 New York City Building Codes are irrelevant as they were not in effect when the building was built; (3) plaintiffs expert's references to nonmandatory standards are irrelevant; and (4) 160 Parking did not owe a duty to plaintiff under Espinal. (NYSCEF doc no. 104 ¶¶ 6-8, 13).
On March 1, 2023, Phoenix filed an affirmation in opposition. Phoenix argues, as is relevant here, that: (1) the ramp per se did not contribute to plaintiffs accident; and (2) plaintiff has not submitted an affidavit averring that had the ramp been equipped with a second handrail he would have used it (NYSCEF doc no. 121 ¶¶ 11, 16-17).
On March 8, 2023, plaintiff filed a reply affirmation in further support. As is relevant here, plaintiff argues that, in addition to the Espinal exceptions, the liability of 160 Parking arises from its occupancy and control of the parking garage (NYSCEF doc no. 125 ¶ 25).
DISCUSSION
To succeed on a motion for summary judgment, the movant must "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of feet from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,853 [1985], citing Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad at 853).
Once the movant's prima facie showing has been made, the burden shifts to the opposing party to establish the existence of a material issue of fact sufficient to require a trial (see De Lourdes Torres v Jones, 26 N.Y.3d 742, 763 [2016]). An opposing party 's "mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient" to defeat a movant's summary judgment motion (Siegel v City of New York, 86 A.D.3d 452,455 [1st Dept 2011], quoting Zuckerman at 562).
Storm-in-Progress Defense
Liability for a dangerous condition on a premises may only be established upon occupancy, ownership, control, or special use of such premises (see Gibbs v Port Auth, of New York, 17 A.D.3d 252,254 [1st Dept 2005]). To hold a property owner liable for a dangerous condition on its premises, a movant must demonstrate that the owner created or had actual or constructive notice of the dangerous condition that caused the injury (see Kalish v HEI Hosp., LLC, 114 A.D.3d 444,445 [1st Dept 2014]). While a property owner has a duty to maintain its property in a reasonably safe condition, a property owner has no duty to remedy a dangerous condition caused by a storm while that storm is in progress (see Ross v Lewis, 181 A.D.3d 423, 423 [1st Dept 2020]). It is only at a reasonable time after a storm has ended that a property owner has an obligation to take reasonable measures to remedy a dangerous condition (see Clement v New York City Tr. Auth., 122 A.D.3d 448,449 [1st Dept 2014]). There is no obligation for property owners to provide a constant remedy to water being tracked into a building during a storm (see Gibbs at 255).
. It is undisputed that there was a storm in progress at the time of plaintiff's injury. Plaintiff testified that it was raining heavily as he approached the parking garage to pick up his car, (plaintiff tr at 137, lines 2-6), which was immediately prior to plaintiff's accident. Plaintiff further testified that cars coming in and out of the parking garage were wet from driving in the rain (id. at 137, lines 9-15). The experts for 160 Parking and plaintiff both stated that it was raining at the time of plaintiff's accident (aff of Lorenz ¶ 5; aff of Silberman ¶ 3). As such, the record presents no issues of fact as to the applicability of the storm in progress rule.
Yet the storm-in-progress defense is not dispositive. Alleged structural defects can exacerbate dangerous conditions, and, combined with a storm in progress, greatly increase risk and present the "perfect trap" for injury (Vosper v Fives 160th, LLC, 110 A.D.3d 544, 545 [1st Dept 2013]). It is possible for building code violations to cause or contribute to a dangerous condition, thus proximately causing an injury, despite the applicability of the storm-in-progress defense (see id.).
Viewing the evidence in the light most favorable to plaintiff, the court finds that defendants have failed to demonstrate prima facie entitlement to judgment as a matter of law under the storm-in-progress defense by eliminating all issues of fact as to whether the alleged 1938 Building Code violations proximately caused plaintiffs injury.
Alleged Violations of the 1938 Building Code
Plaintiff alleges, as is relevant here, that defendants were negligent in: (1) failing to provide two handrails and blocking the sole handrail and its signage with cars; (2) permitting the ramp's slope to be too steep; and (3) failing to maintain and inspect the parking garage's ramp.
I. Alleged Handrail Violation
The certificate of occupancy for 160 East 65th Street, which expressly references the parking garage, is dated December 19, 1969 (NYSCEF doc no. 52, exhibit P, at 26). It is undisputed that the governing building code at the time of design and permitting of the subject parking garage was the 1938 Building Code. It is further undisputed that the 1938 Building Code does not provide handrail requirements for ramps. Plaintiffs expert argues that, as it has been the custom and usage in the industry to provide handrails on both sides of ramps since the 1968 Building Code was enacted and the National Fire Protection Association published Standard 101 in 1966, defendants breached a common-law duty to plaintiff to maintain the premises in a reasonably safe condition.
As is relevant here, Phoenix argues that the certificate of occupancy establishes prima facie that the subject parking garage complied with all building codes. Yet the issuance of a certificate of occupancy, without more, does not preclude a finding of negligence based on the existence of building code violations (see Hyman v Queens County Bancorp, Inc., 307 A.D.2d 984, 989 [2d Dept 2003], affd 3 N.Y.3d 743 [2004]). Moreover, the certificate of occupancy does not state that the subject ramp's slope and anti-slip surface complied with the 1938 Building Code.
Plaintiffs reliance on nonmandatory standards and subsequent building codes for industry standards is inapposite because the relevant accepted practices and industry standards are those that were in place at the time the building design was put in place (see Hotaling v City of New York, 55 A.D.3d 396, 398 [1st Dept 2008], affd 12 N.Y.3d 862 [2009]). Nonmandatory guidelines and recommendations are insufficient to establish the existence of the standard relied on at the relevant time (see id.). Further there is no argument here that defendants undertook any modification, renovation, or otherwise that would render a subsequent code provision applicable.
Of note, the New York City design and building industry is unique and localized. As such, a national code has no bearing on the industry customs and practice of the building and construction industry in New York City. The A1966 Technical Committee Report to the 1966 Edition of the National Fire Protection Association states that "the [c]ode is used primarily as a supplement to building Codes ... (Report of Committee on Safety to Life at 535, available at https://www.nfpa.org/Assets/files/AboutTheCodes/101/1966 TCR-101 .pdf [last accessed October 18, 2023] [emphasis added]).
Based on the foregoing, the court finds that there is no triable issue of fact as to whether the parking garage was required to have handrails. The applicable code, the 1938 Building Code, did not require any handrails on ramps, and plaintiff has failed to point to any industry standards at the time the parking garage was designed that might be applicable. As such, that the subject handrail and signage regarding handrails may have been blocked is immaterial.
n. Definition of Ramp Under the 1938 Building Code
To determine whether there is an issue of material fact surrounding whether the parking garage's ramp's slope and alleged lack of anti-slip surface violated the 1938 Building Code, the court must first determine whether the 1938 Building Code governs the subject ramp in any way.
Section C26-257.1 of the 1938 Building Code pertains to "open type" parking garage structures; although the subject parking garage is not an open type parking garage, this section states that, "[i]n all other garage structures, the number, location, and enclosure of stairs, ramps, and elevators shall be as required for buildings of that use, height and class of construction." (1938 Bldg Code § C26-257.1[n]). The 1938 Building Code defines a "garage" as a "building, shed or enclosure or any portion thereof in which a motor vehicle, other than one in which the fuel storage tank is empty, is stored, housed, or kept" (id. at § C26-76.0).
Based on the foregoing, the court finds that the subject parking garage comes within the 1938 Building Code's definition of "garage" and, consequently, the subject ramp must comply with the same ramp requirements as any other building of its class. The certificate of occupancy indicates that the Department of Buildings designated the premises and parking garage as a "Class A Multiple Dwelling" and that the parking garage is on the "1st and 2nd Sub-Cellar" stories (NYSCEF doc no. 48, exhibit B, at 57). The 1938 Building Code states that "where the exits serve parts of the building used for other than residence purposes, the provisions of the multiple dwelling law and of this article whichever are most restrictive shall apply. The exits from cellars of multiple dwellings shall comply with this article." (1938 Bldg Code § C26-272.0[1][a]). As such, the parking garage's exits must comply with the article's required exits.
The "Required Exits" section of the 1938 Building Code states that "[e]very floor area above or below the ground floor shall have at least two required means of egress available to all the occupants of such area...." (id. at § C26-273.0[3][a] [emphasis added]).
As the parking garage is on the 1st and 2nd Sub-Cellar stories, which are below the ground, the parking garage is required to have two means of egress available to all the occupants of the parking garage (NYSCEF doc no. 48, exhibit B, at 57). Here, there is no dispute that the only means of egress available to plaintiff was the subject ramp where plaintiff's accident occurred, which is also the parking garage's driveway used by vehicles entering and exiting the parking garage.
The Appellate Division, First and Second Departments have issued holdings consistent with the premise that driveways are considered required exit ramps when they are used as an exit by all occupants. In Patafip v Porta-Clean of Am., Ltd. (48 A.D.2d 858, 859 [2d Dept 1975], revd on other grounds 39 N.Y.2d 813 [1976]), the court found that a driveway was not a ramp within the meaning of the 1949 Building Code of the City of White Plains. In reaching its determination, the court reasoned that the sections of the code dealt with ramps used as exits or instead of exit stairways (id.). The court held that because the ramp in question was not used as an exit, it was not a "ramp" for the purposes of the code (id.).
Similarly, in Etheridge v Marion A, Daniels &Sons, Inc. (96 A.D.3d 436, 437 [1st Dept 2012]), the court held that the defendants established prima facie that a ramp did not violate any applicable building codes or industry standards where the ramp was not an exit from the buildings in question (see also Gross v Chrysler Sales Corp., 265 AD 661, 663-64 [1st Dept 1943]).
Where, as here, a parking garage's driveway was not only being used as a means of egress, but also was the only means of egress for all occupants, the subject driveway is a "ramp" under the 1938 Building Code section governing slope and anti-slip requirements.
III. Alleged Slope and Anti-Slip Violations
The "Required Exits" section of the 1938 Building Code states that "all ramps shall have a maximum pitch of one foot in eight and shall be provided with non-slip surfaces." (Bldg Code § C26-273.0[a][4]). There is no dispute that the parking garage ramp's slope exceeded the "one foot in eight" pitch limit. As such, the court finds that there is no issue of fact that the ramp as constructed violates the "Required Exits" section of the 1938 Building Code.
The experts dispute whether the parking garage's ramp had a non-slip surface at the time of the alleged accident. 160 Parking's expert, Lorenz, stated that the parking garage ramp has excellent slip-resistant qualities under both wet and dry conditions and that the ramp was properly maintained in a good condition (aff of Lorenz ¶ 16). Lorenz reached this conclusion after conducting a wet-and-dry dynamic slip resistance test on the floor surface 1.67 years after plaintiffs accident occurred (id. ¶¶ 3, 7).
Phoenix's expert, Interian, also conducted a wet-and-dry slip resistance test of the floor surface 1.67 years after plaintiffs accident and found the ramp's slip index to conform to the standard custom and practice within the industry for safe walking surfaces (aff of Interian ¶ 19).
As noted by plaintiffs expert, Silberman, given that Lorenz's and Interian's inspections took place 1.67 years after plaintiffs accident occurred, an issue of fact remains as to whether the parking garage's ramp was slip-resistant and safe at the time of plaintiffs accident. As such, whether the ramp's slope and anti-slip coating were out of compliance with the 1938 Building Code at the time of plaintiffs accident remains an issue of fact.
Liability of Defendant Phoenix Corp.
Generally, an out-of-possession landlord may not be held liable for a third-party's injury on their premises unless the landlord had actual or constructive notice of the defect (see Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 A.D.2d 230, 231 [1st Dept 2002]). Constructive notice may be found where a landlord reserves a right under the terms of the lease to enter the premises for the purposes of inspection, maintenance, and repair, and there is a structural or design defect contrary to a specific statutory provision (see Lopez v 1372 Shakespeare Ave. Hous, Dev, Fund Corp., 299 A.D.2d 230,231 [1st Dept 2002]; Davis v HSS Properties Corp., 1 A.D.3d 153,154 [1st Dept 2003]).
Here, the following lease provisions establish that Phoenix retained the right to inspect, maintain, and repair die premises:
1. "Owner is responsible for all structural repairs, unless caused by the Tenant, its employees or agents" (NYSCEF doc no. 48, exhibit L, at 21).
2. "Owner or owner's agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements and improvements as Owner may deem necessary and reasonable desirable" (id. at 4).
3. "At all times during Tenant's Work, Tenant shall permit Owner, its architect and other representatives of Owner access to the Demised Premises for the purpose of inspecting the same, verifying conformance of the Tenant's Work with Tenant's plans and specifications and otherwise viewing the progress of Tenant's Work" (id. at 98).
4. "All the perimeter walls of the Demised Premises, and any space in and/or adjacent to the' Demised Premises used for shafts, stairways, stacks, pipes, vertical conveyors, mail chutes, pneumatic tubes, conduits, ducts, electric or other utilities, rooms containing elevator or columns or structural members or air conditioning machinery and equipment, sinks or other similar or dissimilar building facilities, and the use thereof, as well as reasonable access thereto through the Demised Premises for the purposes of such use and the operation, improvement, replacement, addition, repair, maintenance and/or decoration thereof, are expressly reserved to Owner" (id. at 10).
Based on the foregoing, the court finds that Phoenix reserved the right to inspect, maintain, and repair the premises. As such, Phoenix has failed to show prima facie that it did not have constructive notice of the alleged 1938 Building Code violations.
Liability of Defendant 160 Parking Corp.
A finding of negligence must be based on a breach of duty (see Espinal at 138). A contractual obligation, standing alone, generally does not give rise to tort liability in favor of a third party (see id.). Moreover, the Appellate Division, First Department has found that, under certain circumstances, commercial tenants cannot be held liable for personal injuries to pedestrians caused by violations of city building code provisions, as such provisions are not applicable to tenants (see McLaughlin v Ann-Gur Realty Corp., 107 A.D.3d 469, 469 [1st Dept 2013])., Yet there are three situations where a contracting service provider may have assumed a duty of care to third persons: (1) where the contracting party 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 a safe premises (see id. at 140). A contracting party launches a force or instrument of harm where that party undertakes to provide services and then negligently creates or exacerbates a dangerous condition (see id. at 141-142).
In applying the Espinal test, although 160 Parking repaved the parking garage's ramp, repaving the ramp would not change the original slope of the ramp. Thus, it cannot be said that 160 Parking launched a force or instrument of harm regarding the ramp's slope. Further, plaintiff has proffered no evidence to suggest that plaintiff detrimentally relied on the continued performance of 160 Parking's contractual duties. Lastly, as aforementioned, 160 Parking did not entirely displace Phoenix's duty to maintain safe premises because Phoenix reserved the right to inspect, maintain, and repair the premises pursuant to the lease. As such, 160 Parking cannot be subject to liability for the ramp's slope violation of the 1938 Building Code.
In contrast, 160 Parking can be held liable if the court finds that the ramp was not provided with a non-slip surface, or that 160 Parking failed to maintain the ramp. The testimony of Silva submitted by 160 Parking itself raises an issue of fact as to whether 160 Parking negligently created or exacerbated a dangerous condition by having the ramp repaved and failing to maintain the ramp's anti-slip coating. As such, 160 Parking has failed to show prima facie that it did not launch a force or instrument of harm subjecting it to liability under Espinal.
As neither defendant submitted any evidence or argument in its moving papers establishing prima facie entitlement to dismissal of the cross claims asserted against it, the branches of the motions seeking dismissal of any cross claims are denied in their entirety, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
CONCLUSION
Accordingly, it is
ORDERED that motion seq. nos. 002-004 are denied in their entirety; and it is further
ORDERED that, within five days of entry, each defendant shall serve a copy of this order with notice of entry on all parties, and plaintiff shall serve a copy of this order with notice of entry on defendants.
The foregoing constitutes the decision and order of the court.