Opinion
7985/02.
Decided August 5, 2008.
Defendants MODELL'S NY, INC. and MODELL'S NY II, INC., (hereinafter collectively referred to as "Modell") move seeking an Order granting them summary judgment over plaintiff and all other defendants. Modell avers that summary judgement is warranted insofar as the accident herein was proximately caused by plaintiff's own actions. Additionally, Modell avers that summary judgment is also warranted insofar as plaintiff, in climbing upon a window sill, assumed an unnecessary risk and said risk caused his injuries. Plaintiff opposes Modell's motion averring that insofar as the dangerous condition herein was neither open nor obvious, questions of fact with regard to proximate causation and assumption of risk preclude summary judgment.
The sill herein is referred to by many names, some defendants call it a ledge, and plaintiff calls it a floor. The Court shall refer to the same as a sill.
Defendants NICHOLAS PARA, INC. (Para) and NICHOLAS PARASCONDOLA (Parascondola), move seeking an Order granting them summary judgment over plaintiff and all defendants. Para and Parascondola aver that insofar as Parascondola acted in no other capacity than his official capacity as president of Para, he cannot be liable for the acts of Para, a corporate defendant. Para and Parascondola contend that Para is entitled to summary judgment insofar as the same was a contractor who followed plans and said plans did not evince that a dangerous condition would result from following the same. Plaintiff opposes Para and Parascondola's motion averring that insofar as Parascondola actually performed the work herein, namely the building of the window sill in question, he acted in more than just his capacity as president of Para and thus questions of fact preclude summary judgment in his favor. Plaintiff avers that insofar as Para and Parascondola created the window sill herein in the absence of any plans mandating the same, Parasocondola and Para created the condition herein and are thus liable for the same.
Defendants LEONARD COLCHAMIRO, P.C. and LEONARD COLCHAMIRO (hereinafter collectively referred to as "Colchamiro") move seeking an Order granting them summary judgment over plaintiff and all defendants. Colchamiro avers that summary judgment is warranted insofar as Colchamiro never designed nor was he contracted to design the window sill at issue. Thus, he did not create the dangerous condition at issue. Colchamiro further avers that he owed no duty to the plaintiff. Colchamiro also seeks summary judgment over the cross claims asserted against him averring that in the absence of negligence he can not be liable for contribution and insofar as all defendants are sued for their own individual negligence, no claim for indemnification can be maintained against him. Plaintiff opposes Colchamiro's motion averring that insofar as Colchamiro failed to design the window sill herein and was negligent in the supervision of the construction of the same, Colchamiro created the condition herein and thus questions of fact preclude summary judgment. Modell, Para, and Parascondola oppose Colchomiro's motion for the same reasons articulated by the plaintiff.
Defendants E P ASSOCIATES, WAYNE EISENBAUM, PHYLLIS COHEN D/B/A E P ASSOCIATES (hereinafter collectively referred to as "E P"), DYKER ASSOCIATES, DYKER ASSOCIATES, INC. (hereinafter collectively referred to as "Dyker"), AMPM ENTERPRISES, LLC., AMPM ENTERPRISES (hereinafter collectively referred to as "AMPM" and ALAN J. HELENE (Helene) move seeking an Order granting them summary judgment over plaintiff and all other defendants. E P, Dyker, AMPM and Helene aver that insofar as they had no role in the design and maintenance of the window sill herein they bear no liability. E P, Dyker, AMPM and Helene also aver that as out of possession landlords they bear no liability for any condition existing within the instant premises. Alternatively, E P, Dyker, AMPM and Helene seek summary judgment over their cross-claim for contractual indemnification against Modell. Plaintiff opposes E P, Dyker, AMPM and Helene's motion averring that insofar as E P, Dyker, AMPM and Helene leased the premises herein knowing that the same was dangerous, questions of fact preclude summary judgment. Moreover, plaintiff avers that to the extent that the construction of the premises herein involved special dangers, E P, Dyker, AMPM and Helene are vicariously liable for the acts of its contractors, namely the acts of the other defendants herein. Modell opposes E P, Dyker, AMPM and Helene's motion averring that insofar as E P, Dyker, AMPM and Helene retained the right to reenter the premises herein for purposes of making repairs and inspections, they are liable for any defective condition within the premises herein. Additionally, Modell argues that E P, Dyker, AMPM and Helene, by virtue of their involvement in the design of the premises herein were on notice that the window sill herein would have to be weight bearing.
MAYER EQUITY INC. and EMIL MAYER (hereinafter collectively referred to as "Mayer") moves seeking an Order granting him summary judgment over plaintiff and all defendants. Mayer avers that insofar as he followed plans that did not evince that a dangerous condition would result from following the same, he is entitled to summary judgment. Additionally, Mayer avers that he is not liable to plaintiff a non-contracting third-party. Plaintiff opposes Mayer's motion averring that insofar as the plans Mayer followed were bereft of any specifications for the window sill herein, the same put Mayer on notice that said plans were defective and should not have been followed. Modell opposes Mayer's motion averring that Mayer is liable insofar as it failed to supervise Para and Parascondola to ensure that they followed the construction plans herein, thereby creating a dangerous condition.
Plaintiff cross-moves seeking leave to make a belated motion for summary judgment on grounds that the relief sought by him is identical to the relief sought by Modell and other defendants. Substantively, plaintiff, in his cross-motion, seeks partial summary judgment over all defendants on grounds that to the extent that defendants, in constructing the window sill herein violated the Building Code. Thus, plaintiff argues that defendants are negligent per se. Modell opposes plaintiff's motion for summary judgment averring that the same is untimely, no good cause for the same's belated submission is shown, and plaintiff's motion seeks relief on different grounds than the relief sought by the other defendants. Substantively, Modell opposes plaintiff's cross-motion on grounds that the window sill involved in the within accident is not a floor as argued by plaintiff in support of his cross-motion. Para, Parascondola, Colchamiro, Mayer, E P, Dyker, AMPM and Helene oppose plaintiff's motion for the very reasons asserted by Modell.
For the reasons that follow hereinafter, Modell's motion is hereby denied, Para and Parascondola's motion is granted in part, Colchamiro's motion is granted, E P, Dyker, AMPM, and Helene's motion is granted in part, and Mayer's motion is granted.
The instant action is for alleged personal injuries stemming from the purported negligent design of a premises. The two summonses and supplemental summons allege the following. On November 20, 2000, plaintiff fell within premises located at 531 86th Street, Brooklyn, NY. New York (531). 531 was owned maintained and operated by E P, Dyker, AMPM and Helene. Prior to plaintiff's accident, the premises herein had undergone construction. E P, Dyker, AMPM, Helene, Para, Parascondola, Mayer, and Colchamiro managed and supervised the construction project within 531, designed the plans for the construction within 531, and performed the construction within 531. E P, Dyker, AMPM Helene and Modell were negligent in the ownership maintenance of 531. Said negligence caused plaintiff's accident and caused him to sustain injury. E P, Dyker, AMPM, Helene, Para, Parascondola, Mayer, and Colchamiro were negligent in the management, supervision, and design of the construction herein and said negligence caused plaintiff's accident and caused him to sustain injury.
Insofar as the instant motions and cross-motion only concern the first-party action, the Court shall not endeavor to discuss the third-party action, except to state that the same seeks contribution, indemnification and asserts a cause of action for breach of contract.
This action is a consolidated action consisting of two previously commenced actions.
In support of the instant motion, in opposition to plaintiff's cross-motion, in opposition to Colchamiro's motion, in opposition to Para and Parascondola's motion, and in opposition to E P, Dyker, AMPM, and Helene's motion, Modell submits a copy of this Court's so-ordered stipulation wherein the time to make dispositive motions was extended through January 29, 2007.
Modell's also submits some of the pleadings in the instant first-party action. However, hereinafter, the Court shall not indicate that a party submitted pleadings in support of it's respective motion.
Modell submits Helene's deposition transcripts, wherein Helene testified, in pertinent part, as follows. On November 20, 2000, 531 was owned by E P a general partnership whose general partners were Marla Eisenbaum Halene (Marla) and defendant WAYNE EISENBAUM (Eisenbaum). Pursuant to a written lease, 531 was master leased to Dyker a general partnership, whose general partners were AMPM and Eisenbaum. AMPM was a general partnership whose general partners were Helene and Marla. Pursuant to the written lease, the second floor of 531, was leased by Dyker to Modell. Helene was involved in the negotiation of the aforementioned lease. Initially 531 was a building which housed a movie theater. Thereafter, the first and second floors were converted into retail space. After conversion, 531 was approximately 30,000 square feet and the same had two floors, each floor approximately 15,000 square feet in size. With regard to the second floor, sometime in 1996 construction was undertaken to convert what had been the mezzanine area of the building into a second floor in order to house Modell. At the time this construction occurred, the first floor of the building already housed retail businesses.
With regard to the construction herein, the same entailed the creation of a second floor so as to allow Modell to occupy the same. With regard to said project, Helene, in his capacity as a general partner with AMPM, who was one of Dyker's general partners, was involved as a liaison on behalf of Dyker to supervise the development of the construction project and review and plan the Modell store. Dyker hired Colchamiro, an architect, who along with Modell, developed and designed the plans for what would be built in the space herein. Modell submitted plans, entailing the basic design and layout of the space herein. Said plans were incorporated into the plans already developed by Colchamiro. Said plans were necessary to commence the construction. Ultimately, the completed space and resulting store was the result of a combination of the aforementioned plans, Colchamiro's and Modell's. With regard to the plan and design of the space herein, Colchamiro worked with Carey DiLeo (DiLeo) and Mel Wilder (Wilder), both of whom were employed by Modell. Colchamiro, in addition to being involved in the design process, was also hired as construction manager and it was his job to coordinate all trades related to the construction, solicit bids, and ensure that the work performed by said trades was in accordance with the design plans. Colchamiro hired all the contractors, subject to Helene's approval. Para was one such contractor, who performed concrete work and the interior fit-up of the store herein. Mayer was another contractor, who was hired as a site superintendent and also performed light carpentry work and framing. Mayer reported to Colchamiro. Modell also had employees on site during the construction. Said employees were involved in the installation of fixtures, such as racks.
The space herein had two large windows facing 86th street. The windows were added as part of the construction. The windows were created to allow light into the space and to enable pedestrians on the street to see the inside of the store. Helene didn't believe that said windows would be used as display windows given the width of the sill abutting the same and the height of the windows. The area abutting the windows was constructed as part of the interior fit up, meaning the construction the landlord was obligated to perform pursuant to the lease. The sill abutting the windows was also created as part of the construction herein. Said area was referenced in the plans submitted by Modell as an area that had to be furred out so as to be flush with en existing column. This meant that the area had to be framed out so as to be even with either side of the wall. Since Modell's plans required that the window area be furred out, it was Helene's responsibility to comply with said plans and see that the area was furred out. As to how said fur out was accomplished, that was between Colchamiro, Modell and Para. Helene had no discussions with anyone regarding how the walls around the windows would be constructed. The lease herein had provisions governing the use of signs and displays. Pursuant to the lease, Modell needed Dyker's approval with regard to the use of signs. Helene is not aware of any discussions regarding the use or prohibition of signs. Helene had no discussions concerning the windows herein being used as display windows and learned that the same was being used for said purpose when it got notice of the instant law suit. With regard to the window sills underneath the windows herein, Helene was unaware of who built or designed the same.
Modell submits a copy of the lease between itself and Dyker for the premises located at 531. The lease, dated July 29, 1996, and governs the rental of real property located at 531. With regards to Dyker, section 8.3 of the lease, referencing Exhibit D of the same, mandates that Dyker build the space where Modell would ultimately operate its store. Dyker was responsible upon receipt of plans from Modell to create the plans used to build the space and thereafter construct the space, including all walls and floors. With regard to maintenance of the property leased to Modell section 10.1 of the lease mandates that Dyker make all structural repairs. Modell, under that same section, is responsible for all other repairs of a non-structural nature. In the event Modell failed to make necessary repairs, Dyker retained the right to make any repairs Modell was required to undertake. Section 13.1 and 13.2 of the lease grants Dyker the right to enter the premises leased to Modell for purposes of inspection, to post signs, and to exhibit the premises to prospective purchasers and tenants. Section 10.3 and exhibit C of the lease mandated that prior to placing any signs within the premises herein, including signs on any of the windows therein, Modell needed prior approval from Dyker. Section 11.1 of the lease provides for reciprocal indemnification in the event that the Dyker or Modell is held liable for the other's negligence.
To the extent that said lease is submitted in the absence of any evidence laying a foundation for the same's admissibility, the same would ordinarily be inadmissible. However, insofar as no one opposes the same's admissibility and in some opponents in fact rely upon the same, the same as well as other documents submitted by other parties shall be admitted and considered by the Court. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).
Modell submits plaintiff's deposition transcripts, wherein he testified, in pertinent part as follows. On November 20, 2000, while employed as receiving manager at the Modell's store located within 531, he was involved in an accident. Modell's occupied the second floor of the premises herein. There were two windows therein and they faced the front of the store overlooking 86th Street. The windows had four panes of glass and crossbars. Said windows displayed mannequins therein. Plaintiff was asked by Jennifer the store manager to affix a sign to one of the windows. In particular he was asked to affix the sign to the lower left hand pane of glass. Plaintiff was six feet tall. The window he was to affix the sign to was behind a sneaker display. Said display was about waist high as plaintiff stood in front of it. In terms of length, said windows were longer than plaintiff was tall. The bottom of said window was about chest high as plaintiff stood in front of it. Plaintiff was told to affix a self adhering sign to one of the window panes. Plaintiff procured a step stool and put the same in front of the sneaker display. He climb on to the stool, the sneaker display, and thereafter the window sill. Plaintiff climbed down on to the sill one foot at a time, feeling that the same was secure. Said sill was white with a section of brown metal abutting the same. Plaintiff stood and ten seconds later the sill collapsed. Plaintiff fell into the sill and into the wall. Plaintiff had been employed at Modell's since September 1996. Prior to the accident herein, plaintiff had never stood on the sill herein nor had he affixed signs to the windows. Plaintiff had never seen anybody on the window sill herein and had never seen anyone change the clothes on the mannequins therein. Plaintiff had previously seen signs like the one he was asked to affix, affixed to the he windows. Plaintiff was given no instructions with regard to affixing the sign to the window. Plaintiff was aware that there were ladders in the store but didn't know the location of the same. Plaintiff stated that given the location of the sneaker display using a ladder would have caused him to fall out of the window. As he stood on the floor in front of the display, the window was five feet in front of him.
Modell submits two photographs depicting the window and display herein.Modell submits two affidavits from William J. Gerety (Gerety), who states, in pertinent part, as follows. Gerety is a civil engineer. He is currently employed by the town of Harrison, NY as deputy Building Inspector. Gerety is also Code Enforcement Officer with the State of New York. Gerety inspected the window herein noting that the height of the sill was 39.5 inches from the floor. The window was 137 inches high and 111 inches wide. The sill was 24 inches deep from the face of the wall to the glass in the window. The base of the window or the sill was constructed of 5/8 inch sheetrock and 2-5/8 inch metal studs. The spacing of the framing members was 16 inches on center. With regard to the window sill herein Building Code § 27-557 does not apply to the same. This section of the Building Code applies to floors and platforms and not window sills. The sill herein is an architectural feature and not a floor or a platform. A review of the drawings in the instant action evince that there are no Building Code violations regarding the same. Evidence that there were no Building Code violations, is that the premises herein was inspected by the New York City Building Department, and approved by the same.
No evidence for said photographs' admission is provided and as such, said photographs would normally be inadmissible. However, insofar as no one objects to the use of said photographs and in fact other parties rely on said photographs and others, said pictures and all others submitted by other parties will be considered by the court. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).
Modell submits a copy of the agreement between Dyker and Colchamiro governing the construction services to be provided by Colchamiro. The amendment is dated June 27, 1995 and amends an agreement dated April 14, 1994. Section 2 of said agreement mandates that Colchamiro determine the feasibility of Dyker's program, schedule and constructions budget and requirements. Colchamiro was responsible for preparing a construction schedule and for collecting bids. Section 3 mandated that Colchamiro schedule construction and progress meetings. Colchamiro was responsible for the coordination of the superintendent of construction and all subcontractors. The superintendent was to be provided by Dyker. Colchamiro was to visit the site two times per week during the construction period.
Modell submits a portion of Wilder's deposition transcript, wherein he testified, in pertinent part, that Colchamiro designed the actual building plan for the project herein.
In support of their motion, in opposition to plaintiff's cross-motion, and in opposition to Colchamiro's motion, Para and Parascondola submit a copy of this Court's Order extending the time within which to make dispositive motions.
Para and Paracondola submit Parascondola's deposition transcript, wherein he testified, in pertinent part as follows. Parascondola was the president of Para, a sheetrocking and framing business. In November 2000, Para had four employees. With regard to 531, Para was recommended by Colchamiro to perform work therein. Parascondola received blueprints from Colchamiro and Para performed all the sheetrocking and framing in the building pursuant thereto. The construction involved the construction of a Modell's store and the same occupied the second floor of 531. There were two windows on the second floor. Para employees framed and installed sheetrock around said windows. Sheetrocking on the walls and window sills was performed in accordance to the plans given to Parascondola which called for drywall furring, 5/8 inch gypsum board on 3-5/8 inch metal studs. This meant that the studs were installed and placed 16 on center and the sheetrock was put over the studs. Parascondola was given no instruction regarding the construction of the window sill, but the same was constructed in the same manner as the walls and thus not constructed to allow anyone to walk or stand on the same. Parascondola had no role in the construction beyond being a president of Para. Parascondola did not perform any of the labor on the project herein and merely supervised the work performed by Para employees. Parascondola was supervised by Mayer, the superintendent on the site, whose job it was to supervise the construction site. Mayer made decisions regarding Para's work. No one from Modell, Dyker, Halene nor Colchamiro ever directed or supervised Para's work. When Para had completed its work, the store herein was about fifty percent complete.
Para and Parascondola submit an affidavit from Parascondola wherein he reiterates what he testified to at his deposition. Para and Parascondola submit Helene's deposition transcripts, already submitted by Modell and discussed above.
Para and Parascondola submit Colchamiro's deposition transcripts, wherein he testified, in pertinent part, as follows. Colchamiro was sole shareholder and director of his firm. In 1992, after being hired by Helene on behalf of Dyker, he became involved with a construction project at 531. Pursuant to a contract, Colchamiro was hired to design a second floor within 531, which had been a movie theater and already had first floor retail space. Colchamiro was also hired as construction manager. As construction manager Colchamiro was required to visit the site twice weekly and was not required to supervise the work. Mayer was hired as superintendent and as such had supervisory responsibility over all the subcontractors. Mayer was responsible for the means and methods of construction. In 1996 Modell became the tenant for the second floor retail space designed by Colchamiro. Construction had already begun for a previous tenant. Colchamiro communicated and met with Wilder, Modell's head of construction and his subordinate, Cary Deleo (Deleo). Colchamiro also communicated with Felix Tambasco (Tambasco), an architect for Modell. On July 16, 1996, Modell provided plans to Colchamiro indicating what they wanted built and Colchamiro modified existing plans to reflect the changes in Modell's plans. Colchamiro makes a distinction between the wall abutting the window on the date subsequent to the accident and the wall as constructed during the construction as per the plans. With regard to the wall post accident, he calls the same a display area abutting the window located on the second floor of 531, Colchamiro is unaware of who built the same. With regard to the wall abutting the window, as it existed on the date of the accident, the same was built by Para. Colchamiro had no involvement with the methods and means used to construct the wall as the same would be decided by the contractor doing the actual work. His firm's plans and those submitted by Modell called for the walls abutting the window to be furred out, meaning that sheetrock be put over all existing walls. In particular, they called for 5/8 inch sheetrock on 3-5/8 inch metal studs. Said plans did not indicate how the furring out should be accomplished. The post accident display area abutting the window was not reflected in the plans as it was not part of the building's structure. The plans reflect nothing more than the construction of a stud wall. Colchamiro never had any conversations with anyone from Modell regarding the use of the second floor windows.
Para and Parascondola submit Mayer's deposition transcript, wherein he testified, in pertinent part as follows. In 1995 Mayer was hired by Helene, the owner of 531, to act as superintendent of construction in relation to the construction project at 531. The construction project entailed the construction of a second floor in a building, which was previously a theater and already had retail space within the existing first floor. Mayer was also hired by Modell to install a slat wall at the end of the project. Colchamiro, the architect and construction manager, recommended Mayer to Helene and he was hired by Helene. Mayer's duties were to supervise all subcontractors hired by Helene. It was Mayer's job to ensure that the plans were being followed and that the contractors were employing proper means and methods. Mayer was on site daily and Colchamiro was on site a few times a month. With regard to the window within the premises herein, the sheet rock and sills were installed by Para. The windows sills were about 42 inches off the ground, were six feet wide and 18 inches deep. No track lighting was installed around the windows by anyone during the construction herein. The plans or blueprints provided by Colchamiro called for the framing of the windows and for the installation of sheetrock on the same. In particular the plans for the construction called for the furring out of all interior walls and as such the windows herein had to be framed and a sill was created as a result. The plans do not indicate the manner in which the furring out was to be accomplished nor the way in which the window sill was to be built. Said decision was left up to Para, who was obligated to build it in a workman's-like manner. The window sill was not designed to be weight bearing insofar as none of the interior walls were designated on the plan as weight bearing. Weight bearing means that a beam is laid across the sill to distribute the weight. Since the sill was not weight bearing, it was not made to walk on. Mayer never asked nor was told that the window sill would be used for standing. Para's work was approved by Colchamiro. Modell did not supervise of the work at the site herein.
Para and Parascondola submit Wilder's deposition transcripts, wherein he testified, in pertinent part, as follows. Wilder is employed by Modell as vice president of construction. Wilder manages all construction for Modell. He is also a shareholder and director with Modell. Modell is the tenant on the second floor of 531. Early in 1996 Wilder became involved in the build-out of the space within 531 which ultimately became the Modell's store. Wilder was asked to survey the space at 531 and ascertain whether it fit Modell's purposes. The landlord was to build out the space and Modell was to finish the store thereafter. Wilder surveyed the space and prepared preliminary drawings. Said drawings were then forwarded to Colchamiro, the architect hired by the owner. Modell also hired an architect to prepare plans for stockroom. Colchamiro prepared a base plan and construction ensured. 531 has two windows on the second floor. Said windows were not display windows and were instead see-through windows. The plan drafted by Colchamiro called for the furring out of all walls to make the same flush with an existing architectural column. The windows herein would be incorporated within the wall. Furring out meant the enclosing of rough construction with sheetrock. Thus, the wall abutting the windows herein was furred out as per the plan with 5/8 gypsum board, sheetrock. The plans did not specify how the furring out of the walls would be accomplished. Wilder was unaware who furred out the walls herein. Wilder did not know that any Modell employees would be standing on the window sill or furred out section of the windows herein. Modells employed both Para and Mayer toward the end of the construction to perform finishing work at the premises herein. Mayer was the construction superintendent.
Para and Parascondola submit a document on Para letterhead, evincing the contract price for the work performed by Para on Dyker's behalf. The same includes metal framing and drywall. Para and Parascondola submit an accident report evincing the accident herein. Para and Parascondola submit one of plaintiff's deposition transcripts, already submitted by Modell and discussed above.
In support of the his motion, in opposition to plaintiff's cross-motion, and in partial opposition to Para and Parascondola's motion, Colchamiro submits a copy of this Court's prior Order wherein this Court allowed Modell to amend its answer to include certain cross-claims, namely cross-claims for contribution and indemnification against all defendants except Colchamiro. As to Colcahmiro the only cross-claim Modell was allow to assert was one for contribution.
Colchamiro submits plaintiff's deposition transcript, Colchamiro's deposition transcripts, Mayer's deposition transcript, Helene's deposition transcripts, and Parascondola's deposition transcript, all of which were submitted by either Modell and/or Para and Parascondola, and which have been discussed above.
Colchamiro submits a copy of a document titled Standard Form of agreement Between Owner and Architect as well as the attachments thereto. The agreement evinces that Colchamiro was retained by Diker to perform a host of services in relation to the construction at 531. As per said agreement Colchamiro did not have the authority to control the means and methods of any of the contractors. Colchamiro was responsible for drafting plans for the construction project.
Colchomiro submits a copy of schematic, titled BD5, about which, Colchamiro testified about. Said plans evince the windows on the second floor of 531 and the surrounding walls are, as per the schematic to be sheetrocked with 5/8 gypsum board on 3-5/8 metal studs.
In support of their motion and in opposition to plaintiff's cross-motion, E P, Dyker, AMPM, and Helene submit Helene's deposition transcripts, Colchamiro's deposition transcripts, Wylder's deposition transcript, plaintiff's deposition transcript, Parascondola's deposition transcript, and Mayer's deposition transcript, all of which were submitted by either Modell and/or Para and Parascondola, and which were discussed above.
E P, Dyker, AMPM, and Helene submit a copy of an Order consolidating two previous actions into the instant action. They also submit a copy of a their response to the preliminary conference order. Annexed to said response is a copy of the lease between Modell and Dyker. The same was submitted by Modell and already discussed. Annexed to said response is a copy of the lease between E P and Dyker. Said lease is for the premises located at 527-533 86th Street Brooklyn, NY and is for the term beginning on August 15, 1994 and ending on August 31, 2019. Section 11 of said lease mandates that Dyker keep the premises herein in good repair and that Dyker make any and all structural repairs. The lease contains no right of reentry.
E P, Dyker, AMPM, and Helene submit a copy of plaintiff's Note of Issue, evincing that the same was filed on August 25, 2006 and a copy of the Order extending the time within which to make dispositive motions already discussed above. E P, Dyker, AMPM, and Helene submit copies of the plans prepared by Modell with regard to the space herein. With regard to the windows herein, the plans called for the furring out of the walls around the same so as to make them flush with an architectural column.
In support of his cross-motion and in opposition to all of the motions made by defendants, plaintiff submits an affidavit wherein he reiterates much of his deposition testimony. Plaintiff further states that the windows herein were used to display merchandise, signs and mannequins. The same could be viewed from the street below. Plaintiff states that the windows herein were three feet above the floor and that the area were he stepped on was 24 inches deep. The windows were surrounded by lights and the mannequins and signs were changed frequently. When plaintiff stepped on to the window sill prior to his accident he did so one foot at a time so as to test that the same could support him. Plaintiff had no idea what the sill was made off. Prior to the sill giving way, plaintiff felt nothing and heard nothing. Plaintiff refers to several photographs attached to his affidavit. Plaintiff states that said photographs are accurate representations of the area where his accident occurred immediately after his accident. He states the same regarding photographs of the outside of the Modell's store.
Plaintiff submits 21 photographs, which he referenced within his affidavit. The photographs depict the area were he had his accident. The area is approximately 24 inches deep abutting a window. Said area sits about three feet off the floor and is behind a sneaker display. The photographs also depict the exterior of the store and the windows herein are visible from the street below.
Plaintiff submits an affidavit from Peter Pomeranz (Pomeranz), who states, in pertinent part, the following. Pomeranz is a professional engineer. In connection with the instant action, he reviewed a host of documents and photographs and personally inspected the accident location on March 26, 2004. During his inspection of the accident location, namely the window within 531, he measured and photographed the same. According to his measurements, the window sill herein was 3 feet 5 inches above the floor. The window sill was 11 feet wide and 2.5 inches deep from the glass to the wall. A review of the evidence evinces that the sill herein was constructed of 5/8 inch gypsum board also known as sheetrock and the same was affixed 2-5/8 inch studs spaced 16 inches on center.
Pomeranz opines that materials used, namely the sheetrock, resulted in the sill herein not being load bearing. The same, according to Pomeranz was incapable of supporting a person such as the plaintiff. The construction, according to Pomeranz was the proximate cause of the sheetrock collapse which caused plaintiff's accident. Pomeranz concludes that the sill was improperly designed, planned, executed, constructed, inspected, and supervised. Pomeranz bases his opinion, that the sill herein should have been weight bearing on two grounds. First, Pomeranz opines that the sill herein should have been weight bearing insofar as the same is floor. As such, Pomeranz opines that the sill should have been weight bearing pursuant to Building Code § 27-557(d). Building Code § 27-557, titled "Floor live loads" reads, in its entirety, as follows:
(a) Uniformly distributed live loads. The minimum design values established in reference standard RS 9-2 for various occupancies or uses shall be used subject to the provisions of subdivision (d) of this section. Where the occupancy or use of a space does not conform to any of those listed, the design load shall be determined by the architect or engineer subject to approval by the commissioner.
(b) Concentrated live loads. (1) The building framing shall be capable of supporting the concentrated live loads established in reference standard RS 92, placed so as to produce maximum stress. (2) Floors that support any items of machinery, electrical or mechanical equipment, or other concentrated live load in excess of one thousand pounds (including the weights of pads or bases) shall be designed to support such weight as a concentrated load or group of concentrated loads.
(c) Nonconcurrence. (1) When a concentrated live load is present, the uniformly distributed load may be considered to be omitted in the area occupied by the concentrated load. (2) Where reference standard RS 92 indicates that the concentrated live load is nonconcurrent with the uniform live load, it may be assumed that the total concentrated load is to be omitted when the uniform load is present and that the total uniform load is to be omitted when the concentrated load is present.
(d) Conformance. For purposes of determining that the magnitude of the actual live load conforms to or is less than the minimum design live load established in this section, the actual uniform live load shall be approximated by averaging the total load actually applied over a rectangular area of one hundred fifty square feet having no side less than eight feet.
Pomeranz opines that the sill herein should have bee built to bear 90 pounds per linear foot. The 5/8 inch gypsum board used herein could not support such a load and thus the use of said material violated Building code § 27-557. Pomeranz also opines that the evidence, which he doesn't disclose, made it reasonably likely that people would walk or stand on said sill and as such, the same should have been built to support and bear weight. Proper procedure, according to Pomeranz, would have been to build the sill using plywood sub-floor supported by wood joists and a tile or wood plank finish.
With regard to plans created by Modell and furnished to Colchamiro, the same, according to Pomeranz, are unclear regarding what was to be done regarding the windows herein. While said plans call for the furring out of the existing walls, the same are ambiguous, insofar as the markings are subject to two interpretations. One interpretation would have led to the furring out of the entire wall around the window, while the other would have led to the furring out of the area under the window. Nonetheless, Pomeranz opines that either interpretation would have led to the area underneath the windows being furred out. The plans created by Colchamiro evince that Modell's plans were incorporated to the extent that the walls surrounding the window were to be furred out, however, said plans are silent with regard to whether the space under the windows were to be furred out. Thus, like Modell's plans, those submitted by Colchamiro were also unclear regarding what was to be done with the area under the windows herein. This left the decision as to what would be done with regard to said area to someone in the field. Pomeranz opines that Mayer and Parascondola failed to ascertain what and how the area underneath the windows would be built and Parascondola took it upon himself to build the same as an area incapable of bearing loads. Pomeranz avers that Wilder, on behalf of Modell, failed to ensure that the area under the window herein was being properly built as did Colchamiro in his capacity as construction manner. Pomeranz opines that the combination of unclear plans, the decision made by Para in building the sill herein as non-weight-bearing, Mayer's failure to seek guidance from Colchamiro, Colchamiro's failure to properly supervise the construction, and Modell's failure to monitor the progress of the work led to the improper construction of the sill herein, which to the extent it was not weight bearing, violated the Building Code. Pomeranz also opines, that the defendants violated Building Code §§ 26-228, 27-127, and 27-128. Building Code § 26-228 is titled "General safety requirements" and provides that "[p]ersons engaged in building operations shall provide reasonable and adequate protection for the safety of all persons and property affected thereby . . ." Building Code § 27-127 is titled "Maintenance requirements" and mandates that "[a]ll buildings and all parts thereof shall be maintained in a safe condition . . ." Building Code § 27-128 is titled "owner responsibility"and mandates that "[t]he owner shall be responsible at all times for the safe maintenance of the building and its facilities." Annexed to Pomeranz affidavit are numerous photographs, and documents. The photograph depict the window area herein and the documents are copies of the plans and schematics, Modell's and Colchamiro's, already discussed above.
Plaintiff submits Wilder's deposition transcripts, already submitted by other parties and discussed above. Plaintiff submits a copy of a letter sent Colchamiro's counsel wherein he rejected Colchamiro's deposition errata sheet. Said errata sheet corrects portions of Colchamiro's deposition testimony wherein he referred to the windows herein as a display window. Plaintiff submits an affidavit from Wilder in an unrelated action, wherein Wilder reiterates that he is responsible for the supervision and planning of all construction on behalf of Modell. Plaintiff submits the lease between Dyker and E P, as well as portions of the lease between Modell and Dyker. Said leases have been discussed above. Plaintiff submits the agreement between Colchamiro and Dyker. Said agreement has been discussed above. Plaintiff provides copies of the plans and schematics provided by other defendants and already discussed above. Plaintiff provides a copy of the document evincing the contract price for the work performed by Para, already discussed above. Plaintiff provides a copy of handwritten document from Colchamiro to Helene. The same is dated July 3, 1996 and evinces that after a meeting with Colchamiro, Wilder agreed to forward design drawings in relation to the project herein. Plaintiff provides a copy of this Court's Order dated July 22, 2005, wherein this Court partially granted Modell's motion to amend its answer. Said Order was discussed above. Plaintiff submits a copy of a notice to admit served by him upon all defendants wherein he sought admission that defendants installed light fixtures around the window herein. Plaintiff submits an answer to said notice wherein Modell admits that said light fixtures were installed during the construction of the store herein.
Plaintiff submits a copy of several letters. The first letter is dated March 2, 1992 and the same is from Helene to Colchamiro. Said letter evinces that Colchamiro was being retained by Halene for purposes of designing a schematic and floor plans relative to 531. The second letter is dated April 2, 2002, and is from Kevin Dowd, Helene's attorney, and evinces that Colchamiro was provided with drawings prepared by Modell with regard to the interior work being performed within 531. The third letter is dated December 30, 1996 and is from Colchamiro to Deleo, assistant director of construction with Modell. Said letter describes the scope of the work Colchamiro was hired to perform. The fourth letter is dated February 26, 1992 and is from Colchamiro to Helene. Said letter memorializes the services Colchamiro will be providing with regard to the construction herein. According to said letter Colchamiro's services are primarily that of providing the building plan. Therein, Colchamiro agreed to visit the construction site once per week. The fifth letter, dated April 14, 1994, is from Colchamiro to Helene wherein he memorializes amendments to the scope of his services. Therein, Colchamiro agrees to visit the site herein twice per week.
Plaintiff submits an affidavit from Charles Cutugno, who states in pertinent part, as follows. On August 8, 2005, he took a statement from Jennifer Trotta (Trotta). Annexed to said affidavit is a handwritten statement and a typed statement from Trotta. Plaintiff also submits an affidavit from Trotta, wherein she states that she managed the Modell's store herein from 19965 through 2001. The store herein had a display window and said windows had displays that would be changed periodically. In relation to changing the signs in the display window, it was not unusual to see people standing in the display window herein particularly the sill area.
Plaintiff submits a copy of Building Code § 27-232, titled "Definitions." This section defines a "Floor Area" as "[t]he projected horizontal area inside of walls, partitions, or other enclosing construction." The same further states that "Floor Area (Net)" means "the horizontal occupiable area within the space, excluding the thickness of walls, and partitions, columns, furred-in spaces, fixed cabinets, equipment, and accessory spaces, such as closets, machine and equipment rooms, toilets, stairs, halls, corridors, elevators and similar unoccupied spaces."
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999). With regards leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent's file. DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept. 2003). An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact. . Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Phllips, for example, found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO , 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR § 4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition for summary judgment be submitted in admissible form of that evidence's inadmissibility be excused.
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted).
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Assumption of Risk
The assumption of risk doctrine serves to bar recovery for injuries sustained in the course of voluntary participation in sports and recreational activities. Morgan v. State, 90 NY2d 471 (1997); Turcotte v. Fell, 68 NY2d 432 (1986); Maddox v. City of New York, 66 NY2d 270 (1985); Connor v. Tee Bar Corp., 302 AD2d 729 (3rd Dept. 2003). The doctrine applies when injury occurs from risks inherent in a sport or activity in which plaintiff voluntarily participates, while aware and with an appreciation of the risks involved in the same. Id. The doctrine does not absolve a defendant from his reckless or intentional behavior or from his negligence if the same results in a unique and dangerous condition not inherent in the sport or activity. Morgan v. State, 90 NY2d 471 (1997); Turcotte v. Fell, 68 NY2d 432 (1986). It logically follows that the doctrine does not apply absent knowledge of the risk and as such the risk must be obvious or awareness of the same must be established, taking into account the background, skill and experience of the plaintiff. Id.
The doctrine has been held to be applicable to cases not involving sports or recreational activities. Pelzer v. Transel Elevator Electric, Inc. , 41 AD3d 379 (ast Dept. 2007) (Court found that defendant was not entitled to summary judgment on grounds that plaintiff assumed risk of injury by climbing out of stalled elevator. Court held that questions of fact precluded such relief). Clark v. Interlaken Owners, Inc. , 2 AD3d 338 (1st Dept. 2003) (Court found that plaintiff did not assume the risk of his injury as he was unable to appreciate the risk.); Roberts v. New York City Housing Authority, 257 AD2d 550 (1st Dept. 1999) (Court found that plaintiff did not assume the risk of his injury as he was unable to appreciate the risk).; Shaw v. Lieb, 40 AD2d (2nd Dept. 2007) (Court granted judgment in defendants favor concluding that plaintiff assumed risk of falling off car when he voluntarily chose to ride on the bumper of a moving vehicle.); Dooley v. Degnon-McLean Contracting Co., 45 Misc. 593 (Appellate Term 1904) (Court dismissed plaintiff's cause of action finding that he assumed risk by traversing a beam and thus he was barred from recovery.). However, it has been held that primary assumption of risk, which as discussed above is complete bar to recovery, only applies to situations where there is an elevated risk of danger and when the accident involves a sports or recreational activity. Rodriguez v. New York City Housing Authority, 211 AD2d 328 (1st Dept. 1995), rev'd on other grounds, 87 NY2d 887 (1995); Cohen v. Heritage Motor Tours, Inc., 205 AD2d 105 (2nd Dept. 1994). Non primary assumption of risk, involving all other kinds of cases, does not bar recovery an is instead comparative negligence, which if proven diminishes plaintiff's recovery. Id.
Proximate Cause
Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury.
Ingersoll v. Liberty Bank of Buffalo, 278 NY 1, 7 (1938). Put another way, a plaintiff is required to demonstrate that the defendant's negligence was the proximate cause of the accident and injuries claimed. At the very least, a plaintiff is required to establish facts and conditions from which defendant's negligence and an accident's causation may be reasonably inferred. Id. The proximate cause of an injury producing event means the substantial cause of the event. Lynn v. Lynn, 216 AD2d 194 (1st Dept. 1995).
When a plaintiff fails to establish the cause of an accident and multiple causes can be attributed to the accident claimed, any determination as to said accident's cause would be nothing less than speculation. Teplitskaya v. 3096 Owners Corp., 289 AD2d 477 (2nd Dept. 2001). When the evidence as to an accident's causation is undisputed, the question of whether a defendant proximately caused an injury or event is for the court rather than the jury. Lee v. New York City Housing Authority, 803 NYS2d 538 {25 AD3d 214} (1st Dept. 2005). To that end, while negligence and proximate causation frequently overlap, there is a discernable difference between the two concepts; liability only attaching when there is evidence of both. Id. Evidence of negligence by itself is insufficient to impute liability. Id. It must also be demonstrated that the negligence proximately caused the harm alleged. Id. Hence, there is a distinction between a condition which, while evidence of negligence, merely sets the occasion for or facilities an injury and an act which proximately causes an accident. Id. The former not constituting liability, the latter constituting liability, and when clear cut, for the court to decide. Id. In Lee, the court held that while defendant was negligent, the negligence was not the proximate cause of the accident therein. Id. In that case, plaintiff was injured when, while playing ball, the ball went through a hole in a negligently maintained fence. Id. Plaintiff went to fetch the ball, not through the hole but after walking around the fence. Id. As he retrieved the ball, plaintiff was hit by a car. Id. In that case, the court concluded that even though defendant was negligent in maintaining the fence therein, said negligence was not the proximate cause of the accident. Id. The court found that the proximate cause was the intervening acts of the driver of the vehicle which struck plaintiff. Id. Since independent intervening acts break the causal connection between a defendant's negligence and an accident, the court found that defendant had not caused the accident. Id. The court, in Sheehan v. City of New York, 40 NY2d 496 (1976), came to a similar conclusion. In that case, plaintiff's sued after being injured while on defendant's bus. Id. The bus was parked and impacted in the rear by another vehicle. The court concluded that the bus' location, even though not at a bus stop, was not the proximate cause of the accident. Id. Instead, the court concluded that it was the negligence of the other vehicle which caused the accident. Id.
In Teplitskaya, the court granted summary judgment in defendant's favor when the evidence as to what caused plaintiff's fall was nothing short of speculation. Id. In that case, plaintiff died and could not state what caused his fall. Id. The only evidence as to causation came from another person who found plaintiff surrounded by paint chips after his fall. Id. The court ruled that any attempt to attribute the fall to the paint chips was speculative since it was just as likely that plaintiff could have fallen for a host of other reasons totally unrelated to the paint chips. Id. Similarly, in Smith v. Wisch, 77 AD2d 619 (2nd Dept. 1980), the Court granted summary judgment in defendant's favor, where the evidence failed to demonstrate what actually caused plaintiff's fall. In that case, deceased plaintiff was injured in an unwitnessed accident. Id. While it was alleged that defendant's negligence in failing to maintain a safe place to work, in particular a sun deck, there was no evidence that any defect in the sun deck or railing annexed thereto caused decedent's fall. Id. The Court concluded that "[t]he circumstances of the deceased's fall imply the absence of causative defect as clearly as they imply its presence and therefore would subject a jury to speculative evaluation of the merits of the action. Id. at 620. The Court then went on to hold that "[w]here a jury would be compelled to speculate upon various possible causes of an accident which may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover, and the evidence should not be submitted to the jury'" Id., quoting, White v Leigh Val. R. R. Co., 220 NY 131, 135-136 (1917). The Court came to the same conclusion in Lynn v. Lynn, 216 AD2d 194 (1st Dept. 1995), where it held that plaintiff's amnesia preventing her from recalling the cause of the accident, resulted in her failure to establish that defendant's negligence was the proximate cause of her accident. In that case, plaintiff's only evidence as to how the accident occurred, and what caused it was that she was walking down some steps and fell. Id.
In Dapp v. Larson, 240 AD2d 918 (3rd Dept. 1997), the Court granted defendant's motion for summary judgment, after determining that plaintiff had failed to raise an issue of fact with regard to the proximate cause of her accident. Plaintiff claimed that her slip and fall was caused by a plastic doormat upon defendant's property, said doormat allegedly constituting a dangerous condition. Id. Plaintiff however, was unable to ascertain the location of the mat prior to her fall and as such, the court Concluded that she had failed to establish that the map proximately caused her accident. Id. In Russac v. Crest Hollow Country Club of Woodbury, 252 AD2d 548 (2nd Dept. 1998), the court granted defendant summary judgment after plaintiff failed to establish that defendant's alleged negligence was the proximate cause of his injury. In that case, plaintiff alleged that defendants negligence in leaving a toothpick within a shrimp ingested by the plaintiff was the proximate cause of his injury, namely a perforated intestine. Id. The Court ruled that since plaintiff could not establish that he actually ingested said toothpick while at defendant's establishment, he had not rendered other causes of his accident sufficiently remote so as to establish that he had ingested the toothpick while dining at defendant's restaurant. Id.
In Derdiarian v. Felix Contracting Corp., 51 NY2d 308, (1980), the court while stating that the issue if proximate causation is ordinarily decided by the trier of fact, nevertheless stated that when only one conclusion can be drawn from the established facts, legal cause or proximate cause can be decided by the court as a matter of law. In Derdiarian, the court denied defendant's post trial motion to set aside the verdict when defendant argued that its negligence was not the proximate cause of the accident. Id. Derdiarian involved an accident wherein plaintiff was injured after defendant driver's vehicle entered a construction site spilling hot oil on the plaintiff. Id. The evidence demonstrated that the accident occurred because defendant driver had an epileptic seizure causing the same to loose control of the car. Id. The evidence also demonstrated that defendant construction site, did not secure the site in a manner sufficient to avoid the accident. Id. The Court held that while ordinarily independent intervening acts, which break the chain of causation, are sufficient to preclude liability
[w]here the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence.
Id. at 315. In that case, a car coming on to the construction site, while an intervening act, was nonetheless a foreseeable and normal consequence of defendant construction site's failure to properly secure the same. Id. Thus, Derdiarian, simply reiterates the rule discussed in Lee, independent intervening acts, which break the chain of causation, are sufficient to preclude liability. The court in Derdiarian, goes on to add however, that an exception to the rule applies if the intervening act is a normal and foreseeable consequence created by defendant's negligence.
A defendant establishes entitlement to summary judgment premised upon an absence of proximate causation when he establishes that plaintiff cannot establish the cause of his accident or when he establishes that his conduct, even if negligent did not cause plaintiff's accident. Cangro v. Noah Builders, Inc., 2008 NY Slip Op. 05870 (2nd Dept. 2008); Pluhar v. Town of Southampton , 29 AD3d 975 (2nd Dept. 2006); Oettinger v. Amerada Hess corp., 15 AD3d (2nd Dept. 2005); Torres v. Hallen Construction Corp., 226 AD2d 364 (2nd Dept. 1996); Ortiz v. Jimtion Food Corp., 274 AD2d 364 (2nd Dept. 2000).
Premises Liability and Common Law Negligence
Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).
The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Basso v. Miller, 40 NY2d 253 (1976). Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. This duty also obligates a landowner to warn against dangerous conditions, existing on his land, known or reasonably ascertainable by him through the use of reasonable and ordinary care. Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). No duty to warn exists, however, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one's own senses. Id.; Orlando v. Audax Construction Corp. , 14 AD3d 500 (2nd Dept. 2005); Reuscher v. Pergament Home Centers, Inc., 247 AD2d 603 (2nd Dept. 1998); Jackson v. Supermarkets General Corporation, 214 AD2d 650 (2nd Dept. 1995). While the existence of an open and obvious condition negates a defendant's duty to warn of the same's existence, it does not negate a defendant's duty to abate said condition if the same is dangerous. Westbrook v. WR Activities-Cabrera Markewts , 5 AD3d 69 (1st Dept. 2004); Orellana v. Merola Associates, Inc., 287 AD2d 412 (1st Dept. 2001); Tuttle v. Anne LeConey, Inc. 258 AD2d 334 (1st Dept. 1999); Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). Stated differently, an open and obvious condition does not negate a defendant's duty to maintain his premises in a reasonably safe condition and instead bears on whether the plaintiff, in failing to see what was readily observable through the use of his or her senses, is comparatively negligent. Id Additionally, Multiple Dwelling Law § 78 imposes a duty upon the owner of multiple dwelling to keep the same in a reasonably safe condition. Mas v. Two Bridges Associates, 75 NY2d 680 (1990); Altz v. Leiberson, 233 NY 16 (1921); Bonifacio v. 910-930 Southern Boulevard, LLC, 295 AD2d 86 (1st Dept. 2002).
Premises liability is by no means predicated solely on ownership. Liability for a dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Balsam v. Delma Engineering Corporation, 139 AD2d 292 (1st Dept. 1998); Valmon v. 4M M Corporation, 291 AD2d 343 (1st Dept. 2002); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Millman v. CitiBank, N.A., 216 A.D.D2d (2nd Dept. 1995); Bruhns v. Antonelli, 255 AD2d 478 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996). Additionally, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or alternatively, had actual or constructive notice of the same. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994); Bogart v. F.W. Woolworth Compnay, 24 NY2d 936 (1969); Armstrong v. Ogden Allied Facility Management Corporation, 281 AD2d 317 (1st Dept. 2001); Wasserstrom v. New York City Transit Authority, 267 AD2d 36 (1st Dept. 1999); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996).
A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The notice required must be more than general notice of any defective condition. Id.; Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist, is insufficient to constitute notice of a particular condition alleged to have caused an accident. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). Instead, liability can only be predicated on defendant's failure to remedy a dangerous condition after actual or constructive notice of the condition. Id. The absence of evidence demonstrating how long a condition existed prior to plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law. Anderson v. Central Valley Realty Company, 300 AD2d 422 (2nd Dept. 2002) (Plaintiff's inability to state how long the puddle which allegedly caused her fall existed prior to her fall was insufficient to establish that defendants had constructive notice of the same.); McDuffie v. Fleet Financial Group, Inc., 269 AD2d 575 (2nd Dept. 2000); Scirca v. Ariola Pastry Shop, 171 AD2d 859 (2nd Dept. 1991). It has been held that as a matter of law a condition which existed for 8 to 10 minutes is an insufficient period of time to constitute constructive notice. Branham v. Loews Orpheum Cinemas, Inc. , 31 AD3d 319 (1st Dept. 2006); Edwards v. Terryville Meat Co., 178 AD2d 580 (2nd Dept. 1991).
It is axiomatic that before negligence can be found it must be established that the accident causing instrumentality constitutes a dangerous condition, defect, or trap. Crawford v. Pick Quick Foods, Inc., 300 AD2d 431 (2nd Dept. 2002); Garry v. Rockville Centre Union Free School District, 272 AD2d 437 (2nd Dept. 2000); Reynolds v. Reynolds, 245 AD2d 498 (2nd Dept. 1997).
On a motion for summary judgment a defendant establishes prima facie entitlement to summary judgment when he or she establishes a lack of notice, actual or constructive. Hughes v. Carrols Corporation, 248 AD2d 923 (3rd Dept. 1998); Edwards v. Wal-Mart Stores, Inc., 243 AD2d 803 (3rd Dept. 1997); Richardson-Dorn v. Golub Corporation, 252 AD2d 790 (3rd Dept. 1998). If defendant meets his burden it is then incumbent on plaintiff to tender evidence indicating that defendant had actual or constructive notice. Strowman v. Great Atlantic and Pacific Tea Company, Inc., 252 AD2d 384 (1st Dept. 1998).
Contractor Liability
It is well settled, that a contractor hired to perform work is generally not liable in tort to a non-contracting third-party when he/she/it breaches a contract and said breach causes injury to a third-party. Stiver v. Good fair Carting Moving, Inc. , 9 NY3d 253 (2007); Church v. Callanan Industries, Inc., 99 NY2d 104 (2002); Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Moch v. Rensselaer Water Co., 247 NY 160 (1928); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). This is because, contractors are generally hired to perform work pursuant to contract and "[u]nder our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 139 (2002). When there is a breach, such contractors are generally only liable to the person who hired them, the promisee, and are not liable to third parties for any injuries resulting from a breach of their contractual obligation. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002). Consequently, if a contractor is to be held liable for injury to a third-party, occasioned by their work, one of three scenarios must exist. First, a contractor is liable for injury to a third-party if the putative [contractor] has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good.
Id. at 139, quoting, Moch v. Rensselaer Water Co., 247 NY 160, 168 (1928). Stated differently, a contractor is liable to an injured third-party when said contractor causes or creates the condition alleged to have caused injury. Id; Church v. Callanan Industries, Inc., 99 NY2d 104 (2002). Second, a contractor is responsible for a non contracting third-party's injury when the third-party detrimentally relies on the contractor's continued performance and the contractor's failure to perform, positively and actively, causes injury. Church v. Callanan Industries, Inc., 99 NY2d 104 (2002); Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Eaves Brooks Costume Compnay, Inc. v. Y.B.H. Realty Corp., 76 NY2d 220 (1990); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). Lastly, when the contract is comprehensive and exclusive as to maintenance, so that due to its broadness the contractor displaces and in fact assumes the owner or possessors duty to safely maintain the premises, said contractor is liable to an injured third-party resulting from a breach of the services undertaken, i.e., failure to maintain the premises in a safe condition. Church v. Callanan Industries, Inc., 99 NY2d 104 (2002); Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Palka v. Servicemaster Management Services Corporation, 83 NY2d 579 (1994); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000).
In Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002), the Court concluded that a contractor was not liable to a third-party in a case involving a slip and fall on ice. In that case, plaintiff slipped and fell on an icy condition. Id. the owner of the premises therein had contracted with a contractor for the removal of ice and snow from its premises. Id. Plaintiff alleged that the snow had not been properly removed and that the contractor created the condition which caused her fall. Id. the Court granted the contractor summary judgment, finding, that by clearing snow as the contract required, the contractor had not created a dangerous condition, and as such was not liable under that exception to the general rule. Id. Further, the contractor was not liable under the exclusive control exception to the general rule, since under the contract between the contractor and the owner, the owner retained it's duty to maintain and inspect the premises. Id.
In Church v. Callanan Industries, Inc., 99 NY2d 104 (2002), the court granted a subcontractor's motion for summary judgment, after concluding that it was not liable to the plaintiff for any breaches of it's contract with the State, the entity who hire the contractor. In that action, the subcontractor was hired to install guide rails along a portion of the state thruway by a contractor who was initially hired by the state to install said guide rails. Id. Plaintiff was an occupant of a vehicle, whose driver fell asleep at the wheel, causing said vehicle to careen down an embankment accessible through an area which was slotted for guide rail installation, but which the subcontractor had yet to begin work upon. Id. The court held that the subcontractor was not liable to the plaintiff under any of the exceptions cited above. Id. First, the Court held that the subcontractor's failure to install guide rails at the location of the accident therein, did not cause or create a dangerous condition, since the subcontractor's failure to install guide rails thereat did not make the are therein any more dangerous than it was without the guide rails. Id. At best, the omission failed to make the highway less safe. Id. Second, the Court found that there was no detrimental reliance by plaintiff upon the subcontractor's continued performance of its duties. Id. Lastly, the court concluded that the contract between the subcontractor and the State was not one whereby the contractor assumed all safety related obligations with regard to the installation of guide rails. Id. As such, the contract was not comprehensive and exclusive as to inspection and supervision and as such, the contractor did not displace or assume the owner or possessors duty to safely maintain the guide rails. Id.
It has also been held that a contractor may be liable to a third party when in performing the work he was hired to perform, said contractor follows plans which are "so apparently defective, that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury." Ryan v. the Feeney and Sheehan Building Company, 239 NY 43, 46 (1929); Diaz v. Vasques , 17 AD3d 134 (1st Dept. 2005); Gee v. City of New York, 304 AD2d 615 (2nd Dept. 2003); Pioli v. Town of Kirkwood, 117 AD2d 954 (3rd Dept. 1986). Such exception imposes liability only if the defects were so glaring and out of the ordinary that they put the contractor on notice that the work he was performing by following the plans would cause injury. Id. The inquiry is one which focuses upon notice at the time the work was done and as such, that an expert examined the plans post construction and concluded that the plans were faulty is insufficient to impose liability upon the contractor. Id. Further evidence that the person who hired the contractor, accepted the work, and performed inspections in connection therewith, precludes any third-party liability upon the contractor. Id. In this Court's view this last exception is actually an extension of the first exception described above, i.e., that a contractor is liable to a third party for conditions he causes and creates. This is because following blatantly defective plans where resultant injury is foreseeable is akin to causing and creating a dangerous condition.
Out of Possession Landlords
It is well settled that generally an owner who leases property is not liable for injuries sustained upon his land absent an agreement or covenant to keep demised premises in good repair, Putnam v. Stout, 38 NY2d 607 (1976); Manning v. New York Telephone Company, 157 AD2d 264 (1st Dept. 1990), and absent actual control, or a course of conduct demonstrating assumed responsibility to maintain, Cherubini v. Testa, 130 AD2d 380 (1st Dept. 1987); Reidy v. Burger King Corporation, 250 AD2d 747 (2nd Dept. 1998); Davidson v. Wiggand, 259 AD2d 799 (3rd Dept. 1999).
Accordingly, an out of possession landlord cannot generally be liable for the condition of his property unless he maintains a contractual obligation to keep the premises in repair, Putnam v. Stout, 38 NY2d 607 (1976); Negron v. Helmsley Spear, Inc., 280 AD2d 305 (1st Dept. 2001); DeLeon v. The Rajon Company, 243 AD2d 366 (1st Dept. 1997); Canela v. Foodway Supermarket, 188 AD2d 416 (1st Dept. 1992); Russo v. 491 West Street Corp., 176 AD2d 672 (1st Dept. 1991) (Landlord who retained right to re-enter property and make repairs at tenants expense, was obligated to make repairs.), and he has notice, constructive or actual, of said defect. Davis v. HSS Properties Corporation, 257 AD2d (1st Dept. 1999); Velasquez v. Tyler Graphics, LTD., 214 AD2d 489 (1st Dept. 1995).
There are however, three exceptions to the general rule. First, an out of possession landlord may held liable if he has a general right to reenter the premises, reserving the right to make repairs, and the condition alleged involves a significant structural or design defect, which is contrary to statutory safety provisions. Hausmann v. UMK, Inc., 296 AD2d 336 (1st Dept. 2002); Nameny v. East New York Savings Bank, 267 AD2d 108 (1st Dept. 1999) (Court held that provision in lease granting the landlord right to reenter inspect and repair at tenant's expense coupled with statutory obligation requiring that owner maintain building, was sufficient to confer liability on out of possession landlord.); Raynor v. 666 Fifth Avenue Limited Partnership, 232 AD2d 226 (1st Dept. 1996). Thus, while a wobbling stair has been deemed to be a structural defect, Nameny v. East New York Savings Bank, 267 AD2d 108 (1st Dept. 1999), snow and ice removal, Cepeda v. 3604-3610 Realty Corp., 298 AD2d 175 (1st Dept. 2002), debris removal, Uhlich v. Canada Dry Bottling Company of New York, 305 AD2d 107 (1st Dept. 2003), security and crowd control, DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept. 2003), ran water in a lobby, Brooks v. Dupont Associates, Inc., 164 AD2d 847 (1st Dept. 1990), an overly waxed floor, Manning v. New York Teplephone Company, 157 AD2d 264 (1st Dept. 1990), have not. A structural defect is one where the defect violates a statute rather than a regulation. Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69 NY2d 559 (1987); Velasquez v. Tyler Graphics, LTD., 214 AD2d 489 (1st Dept. 1995). General maintenance of a premises, and a failure stemming therefrom, is not akin to a structural defect. Manning v. New York Teplephone Company, 157 AD2d 264 (1st Dept. 1990).
When an owner of demised property, pursuant to the lease, retains a right to reenter the premises to inspect and make necessary repairs, he shall be liable, even if he is out of possession, for any structural defects, design defects, violations of the Multiple Dwelling Law, and violations of the Administrative Code, absent the assumption to make repairs. Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69 NY2d 559 (1987); Worth Distributors, Inc. v. Latham, 59 NY2d 231 (1983). The defect must violate a specific statute, and the violation itself constitutes constructive notice upon the landlord. Id. The court in Guzman, relying on Worth, and Tkach v. Montefiore Hospital for Chronic Diseases, 289 NY 387 (1943), stated that despite being out possession, the owner was nevertheless liable inasmuch as defendant owner [l]ike the owners of the buildings in Tkach and Worth Distribs. which were specifically bound by statute to keep the premises "in good repair" (Multiple Dwelling Law § 78), Village East, as owner, had obligations under the Administrative Code which, it has been held, has the force and effect of statute ( see, n 3 , supra). Village East had both a general responsibility for safe maintenance of the building and its facilities (Administrative Code §§ C26-105.1, C26-105.2 [now §§ 27-127, 27-128]) and specific obligations pertaining to minimum handrail clearance (Administrative Code § C26-604.8 [now § 27-375]) and minimum illumination (Administrative Code § C26-605.1 [a] [now § 27-281 (a)]). Also, as in Tkach and Worth Distribs., Village East, as owner-lessor, could enter the premises "at all times" to inspect. In addition, it had the right to make repairs "if the tenant fail[ed] to make" them and to change the "arrangement and/or location" of the stairs.
Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69 NY2d 559, 453-454. The Court further held, again relying on Tkach, that under these circumstances, meaning a right of reentry and a structural Administrative Code violation, there was a basis for liability against the owner even absent actual knowledge. Id. The court held that the right to reenter the premises constituted actual notice to the owner of the structural violation alleged. Id. In particular, the court stated Although there is no evidence that Village East had actual notice of the claimed dangerous condition, its right to reenter the premises is sufficient to charge it with constructive notice ( Tkach v Montefiore Hosp., supra, at 390). Its failure to act to remedy the defect as it could have done under the lease is the basis for its liability under the various provisions of the New York City Administrative Code Id. at 454. To the extent that Guzman, relies upon Tkach, an owner can only be charged with constructive notice of defects within parts of the building upon which he, as defined by the lease, may enter. Tkach v. Montefiore Hospital for Chronic Diseases, 289 NY 387; Manning v. New York Telephone Company, 157 AD2d 264 (1st Dept. 1990).
In Guzman, plaintiff was injured within leased premises on an allegedly defective handrail, erected by lessee and due to inadequate lighting. Id. it was undisputed that the owner leased the property in question and that the same had never inspected the premises and had no actual knowledge of the defect alleged. Id. Pursuant to the lease, the owner retained a right of re-entry for purposes of inspection and to make repairs at tenant's expense. Id. The court in affirming the lower court's decision concluded that to the extent that the defects alleged were violations of the Administrative Code and the owner had a right of reentry, the owner was liable and was charged with constructive notice of the defect alleged. Id.
In order to confer constructive notice the defect alleged must violate a statute rather than a regulation and the statute must be applicable to the defect alleged. Velasquez v. Tyler Graphics, LTD., 214 AD2d 489. (Court dismissed complaint against landlord/owner finding lack of notice. Court concluded that Administrative Code violation alleged was not applicable to the defect alleged.).
Right of reentry to make repairs is not akin to affirmative obligation to make repairs and thus, does not obligate or confer liability on out of possession landlord for a subsequent arising dangerous condition. Plung v. Cohen, 250 AD2d 430 (1st Dept. 1998); Canela v. Foodway Supermarket, 188 AD2d 416 (1st Dept. 1992). This is particularly true where the dangerous condition alleged is not structural in nature and is instead in the nature of general maintenance. Henderson v. Hickory Pit Restaurant, 221 AD2d 161 (1st Dept. 1995) (Summary judgement granted to out of possession landlord, where plaintiff alleged to have slipped on rotten vegetables. Court concluded that while owner had right or reentry, the defect alleged was not structural, did not involve design and did not violate specific Administrative Code provisions.); Manning v. New York Telephone Company, 157 AD2d 264 (1st Dept. 1990) (Summary judgement granted to out of possession landlord, where plaintiff alleged to have slipped on overly waxed floor. Court concluded that while owner had right or reentry, the defect alleged was not structural, did not involve design and did not violate specific Administrative Code provisions.); Brooks v. Dupont Associates, Inc., 164 AD2d 847 (1st Dept 1990). Accordingly, a right of reentry does not confer liability when the defective condition does not violate the Administrative Code or some other statute imposing an obligation to maintain.
The second exception to the general rule is where the owner retains control of the demised premises and there is a violation of a particular statute. Even if there is no right to reenter the demised property, as in the case of a net lease, an owner will be liable for violations of the multiple dwelling law, and charged with constructive notice of the same if it retained control of the demised premises. Bonifacio v. 910-930 Southern Boulevard, 295 AD2d 86 (1st Dept. 2002) (Court denied summary judgment to defendant owner who claimed he was out of possession landlord when the defect in question violated the Multiple Dwelling law and it was unclear whether defendant, absent right of reentry, nevertheless retained control over the demised premises).
The third exception renders an out-of-possession landlord liable for injuries arising from the use of the demised premises when the landlord rents a premises for public use with knowledge that the same is unfit for such purpose or when he/she is aware that the premises has a defect or a dangerous condition at the time the premises is leased to another. Campbell v. Elsie S. Holding Co., Inc., 251 NY 446 (1929); Fuller v. Marcello , 38 AD3d 1162 (4th Dept. 2007); June v. Bill Zikakis Chevrolet, Inc., 199 AD2d 907 (3rd Dept. 1993); Brady v. Cocozzo, 174 AD2d 814 (3rd Dept. 1991); Strade v. Ryan, 97 AD2d 880 (3rd Dept. 1983); Williams v. Saratoga County Agricultural Society, 277 A.D. 742 (3rd Dept. 1951). This exception only applies if the injury or accident occurs in an area of the demised premises open to the general public and not just the employees of the lessee. Brady v. Cocozzo, 174 AD2d 814 (3rd Dept. 1991); Strade v. Ryan, 97 AD2d 880 (3rd Dept. 1983).
Timeliness of Summary Judgement Motions
CPLR § 3212(a) prescribes the time within which summary judgement motions may be made. It states that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown (emphasis added).
Absent a showing of "good cause" for the delay in timely filing a motion for summary judgment, the Court will not consider such a motion on the merits and will instead decline to hear the motion outright. Brill v. City of New York , 2 NY3d 648 (2004); Glasser v. Ibramovitz, 37 AD3d 194 (1st Dept. 2007); Rocky Point Drive-In, L.P. v. Town of Brookhaven , 37 AD3d 805 (2nd Dept. 2007). The fact that the motion has merit, that the cause of action is meritless, that summary judgment is in the interest of judicial economy, or that the opponent will not be prejudiced by the Court's consideration of the motion, shall not, absent a showing of "good cause," be sufficient grounds for the Court to hear such a motion. Id. This is because "statutory time frames like court-ordered time frames are not options, they are requirements, to be taken seriously. Miceli v. State Farm Mutual Automobile Insurance Company, 3 NY3d 725 (2004).
The Court of Appeals has defined "good cause" to mean a good excuse for the delay in filing the motion, a satisfactory explanation for the delay. Brill v. City of New York , 2 NY3d 648 (2004). Further, it has been held that [g]ood cause is written expression or explanation by the party or his legal representative evincing a viable, credible reason for the delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement.
Bruno Suace v. Diane Lostrappo, 176 Misc 2d 498 (Supreme Court Nassau County 1998). Ultimately, what constitutes "good cause" has less to do with the merits of the actual motion and more to do with reason for the untimeliness. Luciano v. Apple Maintenance Services, Inc., 289 AD2d 90 (1st Dept. 2001). The Court is always within its discretion to hear a summary judgment motion regardless of the time delay in filing the same. Id. The salient issue is always the nature of the excuse proffered for the delay. Id.
The "good cause" requirement not only applies to any motions made beyond the 120 days prescribed by the CPLR, but also applies to any court-ordered time frames which are set by the court, even if they are shorter. Cabibel v. XYZ Associates, L.P. , 36 AD3d 498 (1st Dept. 2007); Eastman Bixby Redevelopment Co., LLC., 34 AD3d 770 (2nd Dept. 2006).
An exception to the "good cause" requirement authorizes the court to consider a belated application for summary judgment when the same is made in response to still pending motions for summary judgment ans when the belated cross-motion seeks relief on the very issues raised by the timely motions. Filannino v. Triborough Bridge and Tunnel Authority , 34 AD3d 280 (1st Dept. 2006); Altshuler v. Gramatan Management, Inc., 27 AD3d 304 (1st Dept. 2006); Bressingham v. Jamaica Hospital Medical Center, 17 AD3d 496 (2nd Dept. 2005). The threshold issue is not whether the same relief is sought, but whether the same arguments are made and more importantly whether the same issues are addressed. Filannino v. Triborough Bridge and Tunnel Authority , 34 AD3d 280 (1st Dept. 2006); Altshuler v. Gramatan Management, Inc., 27 AD3d 304 (1st Dept. 2006).
Negligence Per Se
It is well settled that a violation of a statute imposing a specific duty, may constitute Negligence Per Se and under circumstances, impose absolute liability. Elliot v. City of New York, 95 NY2d 730 (2001); Van Gaasbeck v. Ebatuck Central School District, 21 NY2d 239 (1967). A defendant found to be negligent per se or absolutely liable is liable by virtue of proof that a particular statute has been violated. Id; Gonzalez v. Medina, 69 AD2d 14 (1st Dept. 1979). The difference between Negligence Per Se and absolute liability is that upon charge of the former the defense of contributory negligence, now comparative negligence, is available to diminish liability, while upon charge of the latter no such defense is available. Van Gaasbeck v. Ebatuck Central School District, 21 NY2d 239 (1967). A violation of a municipal ordinance is neither Negligence Per Se nor does it warrant the imposition of absolute liability. Elliot v. City of New York, 95 NY2d 730 (2001). Instead, a violation of the same is merely evidence of negligence. Id. The Court of Appeals in Major v. Waverly Ogden, Inc., 7 NY2d 332 (1960), discussing Schumer v. Caplin, 214 NY 346 (1925), with regard to whether a regulation adopted by a municipality is akin to a statute, stated
[t]he Schumer case declares that a liability without regard to negligence can derive only from a statute duly enacted by the State Legislature. The rules of an administrative body or even the ordinances of a municipality lack the force and effect of a substantive legislative enactment. This principle is a salutary one. If the Legislature desires to change the prevailing rules of the common law, it must do so itself and not by virtue of authority delegated to a subordinate rule-making body. The State Commission, under section 377 of the Executive Law, is empowered to modify, amend or repeal its rules and regulations. As we noted in the Schumer case, "This cannot be done with a statute. A constitutional statute, once passed, cannot be changed or varied according to the whim or caprice of any officer, board or individual. It remains fixed until repealed or amended by the Legislature" ( 241 NY, p. 351). The fact that the Legislature in the Executive Law has delegated the rule-making power to the State Commission only because of practical necessity (see § 370, last par.) does not help plaintiff. "A legislative declaration that a rule has the force and effect of law does not make it so, if by that is meant that it is the equivalent of or equal to a legislative enactment. The Constitution of the State commits to the Legislature alone the power to enact a statute" (Schumer v. Caplin, supra, p. 351). It is only to such an enactment that liability without regard to negligence may attach.
Major v. Waverly Ogden, Inc., 7 NY2d 332, 336 (1960). Thus, based on the foregoing, it is well settled that a violation of the Administrative Code or the Building Code does not warrant a finding that a defendant has acted negligently per se, instead, such a violation is merely some evidence of defendant's negligence. Elliot v. City of New York, 95 NY2d 730 (2001); Major v. Waverly Ogden, Inc., 7 NY2d 332 (1960); Huerta v. New York City Transit Authority, 290 AD2d 33 (1st dept. 2001). To the extent that cases like Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69 NY2d 559 (1987) hold that the administrative code has the same force and effect as a statute, said holding is not to be construed as one providing the basis for the conclusion that a violation of the Administrative Code or Building Code is tantamount to Negligence Per Se. Elliot v. City of New York, 95 NY2d 730 (2001). This is because a municipal ordinance while controlling authority in its sphere of operation, has the force of statute with respect to application but not for purposes of tort consequences. Id.
With regard to whether a particular statute, Building Code, or Administrative Code provision applies, the same is always a question of law for the court to resolve. Buchholz v. Trump 767 Fifth Avenue, LLC 4 AD3d 178 (1st Dept. 2004), aff'd, 5 NY3d 1 (2004); Reyes v. Morton Williams Associated Supermarkets, Inc. , 50 AD3d 496 (1st Dept. 2008); Rodriguez v. New York City Housing Authority, 209 AD2d 260 (1st Dept. 1994); Petru v. Hertz Corp., 33 AD2d 755 (1st Dept. 1969). In Buccholz, the Court found that contrary to plaintiff's contention, which was supported by expert evidence, defendant did not violate section 27-651 of the Building Code. Buchholz v. Trump 767 Fifth Avenue, LLC 4 AD3d 178 (1st Dept. 2004), aff'd, 5 NY3d 1 (2004). The court found that the very language of the statute made it clear that the same was not applicable to the window at issue in that action. Id. In Reyes, the appellate court, in reversing the lower court's decision, reiterated that whether the Building Code applies to a particular set of events and facts is "a purely legal question for the court to determine. Reyes v. Morton Williams Associated Supermarkets, Inc. , 50 AD3d 496 (1st Dept. 2008). The court held that despite plaintiff's expert's contention to the contrary the section of the Building Code asserted by plaintiff did not apply to the ramp in question therein. Id.
Discussion
Modell's motion seeking summary judgment over plaintiff and all defendants is hereby denied. Rather than seeking summary judgment on traditional grounds applicable to premises liability actions, those dealing with notice of a defect, cause and creation of the same, Modell seeks summary judgment on grounds that it bears no liability insofar as plaintiff assumed the risk of injury when he stepped upon the window sill herein. Modell also argues that it was plaintiff's own conduct, rather than any defect in the window sill herein, which proximately caused his accident. With the evidence presented, Modell fails to establish prima facie entitlement summary judgment on the grounds argued, namely assumption of risk and proximate causation. Although not argued by Modell, with the evidence it presents, Modell also fails to establish prima facie entitlement to summary on traditional grounds applicable to cases involving premises liability.
The Court notes that even though Modell tendered no evidence negating that it created the condition alleged or had prior notice of the same, if it had, summary judgment would have been denied nonetheless on grounds that plaintiff's submission creates an issue of fact as to notice of a dangerous condition. As will be discussed in detail below, the sill herein was not dangerous when constructed insofar as there was no notice prior or during construction that the same would have to be weight-bearing or any statutory obligation to make the same weight-bearing. However, as evinced by Trotta's affidavit, submitted by plaintiff in opposition to the instant motions, after construction and once the store herein opened, people would routinely stand and walk on the sill herein in order to access the displays therein. Thus, to the extent that the sill herein was not weight bearing when built or thereafter, an undisputed fact, and one about which Modell knew or should have known, the fact that people were using said sill to walk and stand upon could constitute a dangerous condition and if Trotta's testimony is credited charges Modell with actual and constructive notice of the same.
With regard to assumption of risk, it is well settled that the primary assumption of risk doctrine serves to bar recovery for injuries sustained in the course of voluntary participation in sports, recreational activities, and in those activities which pose an elevated risk of danger. The doctrine applies when injury occurs from risks inherent in an activity in which plaintiff voluntarily participates, while aware and with an appreciation of the risks involved in the same. The doctrine does not apply absent knowledge of the risk and as such, the risk must be obvious or awareness of the same must be established, taking into account the background, skill and experience of the plaintiff.
In support of the instant motion, and insofar as relevant to the assumption of risk ground argued, Modell submits plaintiff's deposition transcripts, wherein plaintiff testified that on November 20, 2000, he was involved in an accident while in the employ of Modell. Modell's occupied the second floor of the premises herein. Plaintiff was the receiving manager at the store herein and was asked by his manager, Jennifer, to affix a sign to one of the two windows within the store, both of which faced 86th Street. The windows had four panes of glass and crossbars. The window he was to affix the sign to was behind a sneaker display. Said display was about waist high as plaintiff, who was six feet tall, stood in front of it. Plaintiff procured a step stool and put the same in front of the sneaker display. Using the stool, plaintiff climbed on to the sneaker display and thereafter climbed on to the window sill of the window upon which he was asked to affix the sign. Plaintiff stepped on to the sill one foot at a time, so as to ensure that the same was secure. Said sill was white with a section of brown metal abutting the same. As he stood there for at least 10 seconds, the sill collapsed under him. Plaintiff fell through the sill and into the wall.
Modell fails to establish prima facie entitlement to summary judgment on grounds of primary assumption of risk insofar as the activity herein can not be said to have involved an elevated risk of danger. Moreover, the activity is clearly unrelated to any sports or recreational activity. Climbing on to a window sill, while inside a premises cannot be said to involve an elevated risk of danger of the kind required to invoke the primary assumption of risk doctrine. Assuming arguendo, that the primary assumption of risk doctrine does apply to the activity herein, Modell has failed to establish that the plaintiff was aware that falling through the window sill as opposed to merely falling of the same, to the floor or through the window and out on to the street, was an inherent risk in the activity he voluntarily undertook to perform. The evidence submitted by Modell is silent on what the plaintiff knew and about that which he was aware. More over, to the extent that plaintiff testified that the sill herein was a white surface with brown metal abutting the same. It cannot be said that the sill's inability to support plaintiff's weight, its structural integrity or lack thereof, was patently obvious. That plaintiff did not know that the sill herein could not support him is further buttressed by his testimony that he tested the integrity of the sill by slowly stepping on to the same and felt that the same was safe. Accordingly, having failed to establish that plaintiff was aware that there was a risk that the sill herein would collapse under him, Modell further fails to establish the applicability of the primary assumption of risk doctrine. Contrary to Modell's argument, that plaintiff had other alternatives available to him, none of which involved climbing on to the window sill, is of no consequence in a primary assumption analysis.
With regard to proximate causation, it is well settled that the proximate cause of an injury producing event means the substantial cause of the event. When a plaintiff fails to establish the cause of an accident and multiple causes can be attributed to the accident claimed, any determination as to said accident's cause would be nothing less than speculation. When the evidence as to an accident's causation is undisputed, the question of whether a defendant proximately caused an injury or event is for the court rather than the jury. Dismissal on proximate cause grounds is warranted when it is established that there an injury is caused by multiple events, one or more for which defendant bears no responsibility. Additionally, a defendant establishes entitlement to summary judgment premised upon an absence of proximate causation when he establishes that plaintiff cannot establish the cause of his accident or when he establishes that his conduct, even if negligent did not cause plaintiff's accident.
Insofar as relevant to the instant ground, namely proximate causation, Modell submits plaintiff's testimony wherein plaintiff testified that he was aware that there were ladders in the store but didn't know the location of the same. Plaintiff stated that given the location of the sneaker display, using a ladder would have caused him to fall out of the window. Plaintiff's testimony thus establishes that stepping on to the sill herein was the only way he could accomplish his task. The evidence tendered by Modell fails to establish prima facie entitlement to summary judgment on proximate causation grounds as it fails to establish beyond a factual dispute that Modell's negligence was not the proximate cause of the accident or that some other acts or events, for which Modell bore no responsibility, such as plainitff's own negligence, caused plaintiff's accident. Rather than negating issues of fact, the very evidence presented by Modell creates them. Modell argues that plaintiff's conduct, namely his failure to use ladders available to him at the store or use alternative means to accomplish his assigned task, was the proximate cause of his injury. In essence, Modell argues that plaintiff was negligent and that his negligence proximately caused the accident herein. However the very evidence tendered by Modell, namely plaintiff's testimony, creates an issue of fact as to proximate causation. On one hand, the evidence establishes that the accident herein was due to the collapse of the window sill herein thereby establishing that the accident was the result of a dangerous condition existing upon premises managed and leased by Modell. On the other hand the evidence establishes that the accident herein was the result of plaintiff's own actions, namely his course of action in performing the assigned task, thereby establishing that the accident was the result of plaintiff's negligence. Thus, the evidence as to the cause of the accident is disputed and thus there exists a question of fact as to what caused plaintiff's accident, plaintiff's negligence or Modell's. Questions of fact are further raised on the issue of plaintiff's negligence insofar as plaintiff states that under the circumstances his conduct and course of action was not only warranted, but unavoidable and necessary. Thus, Modell fails to establish, beyond a factual dispute, that the accident herein was caused by plaintiff's actions or that the same was not caused by Modell's negligence.
Based on the foregoing Modell fails to establish to establish prima facie entitlement to summary judgment on the grounds argued. To the extent that nothing submitted by Modell establishes that it did not create the condition herein or that it had no prior notice, actual or constructive, of the defective condition alleged, Modell fails to establish prima facie entitlement to summary judgment on traditional premises liability grounds. As such Modell's motion is denied and the Court need not discuss the sufficiency of the any papers submitted in opposition to Modell's motion.
Para and Parascondola's motion seeking summary judgment is hereby granted. Para and Parascondola seek summary judgment on two grounds. First, Para and Parascondola seek summary judgment in Para's favor on grounds that as a contractor it followed plans which were not defective and as such it cannot be cast in liability for following them. Para and Parascondola seek summary judgment in Parascondola's favor on grounds that since in connection with the construction project herein, Parascondola acted solely in hi capacity as employee and officer of Para, a corporate defendant, Parascondola bears no individual liability. With the evidence presented, Para and Parascondola establish prima facie entitlement to summary judgment in Para's favor insofar as they establishe that Para did not create a dangerous condition when it built the sill herein incapable of bearing weight. For the very same reason Para and Parascondola establish prima facie entitlement to summary judgment in Parascondola's favor.
Para and Parascondola's liability, as contractors, is governed by one legal principle, which in actuality encompasses the very ground upon which Para and Parascondola seek summary judgment in Para and Parascondola's favor. It is well settled, that a contractor hired to perform work is generally not liable in tort to a non-contracting third-party when said contractor breaches a contract and said breach causes injury to a third-party. When there is such a breach, such contractors are generally only liable to the person who hired them, the promisee, and are not liable to third parties for any injuries resulting from a breach of their contractual obligation. Consequently, if a contractor is to be held liable for injury to a third-party, occasioned by their work, one of four scenarios must exist. First, a contractor is liable to an injured third-party when said contractor causes or creates the dangerous condition alleged to have caused injury. Second, a contractor is responsible for a non contracting third-party's injury when the third-party detrimentally relies on the contractor's continued performance and the contractor's failure to perform, positively and actively, causes injury. Third, when the contract is comprehensive and exclusive as to maintenance, so that due to its broadness the contractor displaces and in fact assumes the owner or possessor's duty to safely maintain the premises, said contractor is liable to an injured third-party resulting from a breach of the services undertaken, i.e., failure to maintain the premises in a safe condition. Fourth, a contractor may be liable to a third party when in performing the work he was hired to perform, said contractor follows plans which are "so apparently defective, that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury." Such exception imposes liability only if the defects were so glaring and out of the ordinary that they put the contractor on notice that the work he was performing by following the plans would cause injury. In this Court's view this last exception is actually an extension of the first, i.e., that a contractor is liable to a third party for conditions he causes and creates. This is because following blatantly defective plans where resultant injury is foreseeable is akin to causing and creating a dangerous condition.
Insofar as relevant to the grounds upon which Para and Parascondola's liability turns, Para and Parascondola submit Parascondola's deposition testimony wherein he testified that Para was hired to perform work within 531. Para received blueprints from Colchamiro and performed sheetrocking and framing pursuant thereto. Para employees framed and installed sheetrock around windows located within the premises herein. Sheetrocking on the walls and window sills was performed in accordance to the plans given to Para by Colchamiro, which called for drywall furring using 5/8 inch gypsum board on 3-5/8 inch metal studs. This meant that the studs were installed and spaced 16 on center and the sheetrock was put over the studs. Parascondola was given no instruction regarding the construction of the window sill, but the same was constructed in the same manner as the walls and not constructed to allow anyone to walk or stand on the same.
Para and Parascondola submit Colchamiro's deposition transcripts, wherein he testified that after being hired by Helene on behalf of Dyker, he became involved with a construction project at 531. Colchamiro was hired to design a second floor within 531, which had been a movie theater and already had first floor retail space. Colchamiro was also hired as construction manager. Modell provided plans to Colchamiro indicating what they wanted built and Colchamiro modified existing plans to reflect the changes in Modell's plans. With regard to the wall abutting the window, the same was built by Para, a contractor. Colchamiro's plans and those submitted by Modell called for the walls abutting the window to be furred out, meaning that sheetrock be put over all existing walls. In particular, they called for 5/8 inch sheetrock on 3-5/8 inch metal studs. Said plans did not indicate how the fur-out should be accomplished. Colchamiro never had any conversations with anyone from Modell regarding the use of the second floor windows.
Para and Parascondola submit Mayer's deposition transcript, wherein he testified that was hired by Helene, the owner of 531, to act as superintendent of construction in relation to the construction project at 531. With regard to the window within the premises herein, the sheet rock and sills were installed by Para, a contractor. The windows sills were about 42 inches off the ground, were six feet wide and 18 inches deep. The plans provided by Colchamiro called for the framing of the windows and for the installation of sheetrock on the same. In particular the plans for the construction called for the furring out of all interior walls and as such the windows herein had to be framed and a sill was created as a result. The plans do not indicate the manner in which the furring out was to be accomplished nor the way in which the window sill was to be built. Said decision was left up to Para, who was obligated to build it in a workman's-like manner. The window sill was not designed to be weight bearing insofar as none of the interior wells were designated on the plan as weight bearing. Weight bearing means that a beam is laid across the sill to distribute the weight. Since the sill was not weight bearing, it was not made to walk on. Mayer never asked nor was told that the window sill would be used for standing. Para's work was approved by Colchamiro. Modell did not supervise of the work at the site herein.
Para and Parascondola submit Wilder's deposition transcripts, wherein he testified, that he was employed by Modell as vice president of construction. Early in 1996 Wilder became involved in the build-out of the space within 531 which ultimately became the Modell's store. Colchamiro prepared a base plan and construction ensured. 531 has two windows on the second floor. Said windows were not display windows and were instead see-through windows. The plan drafted by Colchamiro called for the furring out of all walls to make the same flush with an existing architectural column. The windows herein would be incorporated within the wall. Furring out meant the enclosing of rough construction with sheetrock. Thus, the wall abutting the windows herein was furred out as per the plan with 5/8 gypsum board, sheetrock. The plans did not specify how the furring out of the walls would be accomplished. Wilder did not know that any Modell employees would be standing on the window sill/furred out section of the windows herein.
Para and Parascondola submit Helene's deposition transcripts wherein Helene testified, he was an officer with AMPM one of the principles of Dyker, the master lessee of 531. With regard to the second floor within 531, sometime in 1996 construction was undertaken to convert what was the mezzanine area of the building into a second floor in order to house Modell. Dyker hired Colchamiro, an architect. Colchamiro along with Modell developed and designed the plans for what would be built in the space herein. Modells conveyed its needs to Colchamiro who drew the plans necessary to commence the construction. Modell also submitted plans, entailing the basic design and layout of the space herein. Said plans were incorporated into the plans already developed by Colchamiro. Colchamiro hired contractors on Dyker's behlaf with approval from Helene. Para performed concrete work and the interior fit up of the store herein as per the lease. With regard to th windows herein, the same were added as part of the construction. The windows were created to allow light into the space and to enable to pedestrians to see the inside of the store. Helene didn't believe that said windows would be used as display windows given the width of the ledge and the height of the same. The area abutting the windows was constructed as part of the interior fit up, meaning the construction the landlord was obligated to perform pursuant to the lease. The sill abutting the windows was also created as part of the construction herein. Said area was referenced in the plans submitted by Modell as an area that had to be furred out so as to be flush with an existing column. This meant that the area had to be framed out so as to be even with either side of the wall. Helene had no discussions with anyone regarding how the walls around the windows would be constructed. The lease herein had provisions governing the use of signs and displays. Pursuant to the lease, Modell needed Dyker's approval with regard to the use of signs. Helene had no discussions concerning the windows herein being used as display windows and learned that the same was being used for said purpose when it got notice of the instant law suit.
Based on the foregoing, Para and Parascondola's liability to the plaintiff, as contractors hired by Dyker, the lessee of the premises herein, hinges on whether any of the exceptions cited are applicable. As the evidence bears out and as it is patently conceded, Para and Parascondola's liability, as is the liability of all other contractors hired by Dyker, turns on whether Para and Parascondola created the dangerous condition alleged, namely the construction of the sill herein without the ability of said sill to bear weight. This Court finds that as a matter of law, the construction of the sill herein constitutes a dangerous condition only if at the time it was built and designed the defendants herein were on notice or had an awareness that the same would have to bear weigh. Alternatively the creation of the sill with the inability to bear weight constitutes a dangerous condition if the defendants were under some statutory obligation to build said sill to bear weight, so as to charge them with notice that the sill had to be built in accordance with any such statute. This is because, notwithstanding plaintiff's arguments to the contrary, window sills are ordinarily not used as floors and people do not normally stand or walk on the same. As such a sill which can't bear weight, is by itself, not a dangerous condition.
The evidence submitted by Para and Parascondola evinces that the sill herein was created by Para in accordance with the plans drafted by Colchamiro with input from Modell. Said plans did not call for the sill to be weigh bearing and there was no indication during the construction that said sill would be used as a walking or standing platform. As such, insofar as there is no evidence that the sill herein would be used to support people, building the same with the inability to bear weight does not constitute a dangerous condition. As such, Para and Parascondola establish that they did not create a dangerous condition and have thus established prima facie entitlement to summary judgment.
Plaintiff's opposition fails to raise any material issues of fact sufficient to preclude summary judgment in Para and Parascondola's favor. Insofar as relevant to Para and Parascondola's motion, plaintiff's opposition refers to the very depositions submitted by Para and Parascondola. Additionally, plaintiff submits the lease between Dyker and Modell. Section 10.3 and exhibit C of the lease mandated that prior to placing any signs within the premises herein, including signs on any of the windows therein, Modell needed prior approval from Dyker. Plaintiff submits an affidavit wherein he asserts that the windows herein were used to display merchandise, signs and mannequins. The same could be viewed from the street below. Plaintiff states that the windows herein were three feet above the floor and that the area were he stepped on was 24 inches deep. The windows were surrounded by lights and the mannequins' clothing and signs were changed frequently.
Plaintiff submits an affidavit from Pomeranz, a professional engineer, who states that according to his measurements, the window sill herein was 3 feet 5 inches above the floor. The window sill was 11 feet wide and 2.5 inches deep from the glass to the wall. A review of the evidence evinces that the sill herein was constructed of 5/8 inch gypsum board also known as sheetrock and the same was affixed 2-5/8 inch studs spaced 16 inches on center. Pomeranz opines that materials used, namely the sheetrock, resulted in the floor herein not being load bearing. The same, according to Pomeranz was incapable of supporting a person such as the plaintiff. The construction, according to Pomeranz was the proximate cause of the sheetrock collapse which caused plaintiff's accident. Pomeranz concludes that the sill was improperly designed, planned, executed, constructed, inspected, and supervised. Pomeranz bases his opinion, that the sill herein should have been weight bearing on two grounds. First, Pomeranz opines that the sill should have been weight bearing insofar as the same is floor. As such, Pomeranz opines that the sill should have been weight bearing pursuant to Building Code § 27-557(d). Pomeranz opines that the sill herein should have been built to bear 90 pounds per linear foot. The 5/8 inch gypsum board used herein could not support such a load and thus the use of said material violated Building code § 27-557. Pomeranz also opines that the evidence, which he doesn't disclose, made it reasonably likely that people would walk or stand on said sill and as such, that the same should have been built to support and bear weight. Pomeranz also opines, that the defendants violated Building Code §§ 26-228, 27-127, and 27-128.
Plaintiff submits a copy of a notice to admit served by him upon all defendants wherein he sought admission that defendants installed light fixtures around the window herein. Plaintiff submits an answer to said notice wherein Modell admits that said light fixtures were installed during the construction of the store herein. Plaintiff also submits an affidavit from Trotta, wherein she states that she managed the store herein from 19965 through 2001. The store herein had a display window and the same had displays that would be changed periodically. In relation to changing the signs in the display window, it was not unusual to see people standing in the display window herein particularly the sill area. Plaintiff submits a copy of Building Code § 27-232, titled "Definitions." This section defines a "Floor Area" as "[t]he projected horizontal area inside of walls, partitions, or other enclosing construction." The same further states that "Floor Area (Net)" means "the horizontal occupiable area within the space, excluding the thickness of walls, and partitions, columns, furred-in spaces, fixed cabinets, equipment, and accessory spaces, such as closets, machine and equipment rooms, toilets, stairs, halls, corridors, elevators and similar unoccupied spaces."
Plaintiff's opposition fails to raise an issue of fact sufficient to preclude summary judgment in Para Parascondola's favor. Plaintiff's salient argument is that Para, Parascondola, and indeed all defendants are liable for his injuries, insofar as the sill herein should have been weight bearing, as the same is, is used for and was designed to be a display window. Such facts, plaintiff argues, by itself sufficient to put all defendants on notice that the same would have to bear the weight of those who would access the same to change and alter the display. Plaintiff also argues that said window should have been weight bearing insofar as said sill is in reality a floor, which according to Building Code § 27-557 should have been able to bear a load of ninety pounds per linear foot. Plainitff's arguments are unavailing.
As discussed above, the lynchpin of Para and Parascondola's liability to the plaintiff is the creation of the dangerous condition which purportedly caused him injury, namely a sill that could not bear weight. Again, as built the window sill would only constitute a dangerous condition in the presence of knowledge that the same would be used by people to walk and stand upon or if there was some statutory obligation to build the same to bear weight. The uncontroverted evidence evinces, that during the construction phase, no one, let alone Para or Parascondola knew that the window sill herein would be used as a weight bearing platform. All the testimony submitted evinces that no one was aware that the window herein would be used for purposes of displaying anything. More importantly and critical, said testimony evinces that during the construction phase herein no one knew that anyone would stand or walk upon the sill herein. Plaintiff almost concedes this point and thus argues that the location of the windows, facing the street, coupled with the lights around the window, installed during the build-out, the lease provisions, which evince that signs would be placed on said windows' glass, plaintiff's testimony and Trotta's affidavit regarding the windows being used as display windows and people standing on the sill to access the same, taken as a whole is tantamount to notice that the window herein would be used as a display window. To that extent plaintiff argues that defendants were on notice that said window would have to be accessed by standing on the sill and thus defendants were on notice that the sill would have to bear weight Plaintiff's argument is without merit and is nothing short of speculation.
Preliminarily, with respect to all defendants except Modell, plaintiff's testimony regarding how said windows were used post construction as well as Trotta's contention that post construction, said sill would be routinely stood and walked upon, are irrelevant since as to said defendants the issue is what they knew regarding the window and sill prior to the store's opening. As to said defendants, none of the other facts referred to by plaintiff constitutes notice that the window sill herein would be stood or walked upon so as to warrant the same to built to bear weight. Even if, as argued by plaintiff, the lights, the window's location, the size of the windows, and the lease provisions evince that said windows would be used to display signs, merchandise, and mannequins, the window's height off the floor, 3 feet, 5 inches, and the de minimis depth of the sill, 24 inches, made standing or walking on the sill an unforeseeable event. It was more foreseeable that the window and the sill would be accessed by merely standing on the floor in front of the same. Accordingly plaintiff's evidence fails to raise an issue of fact with regard to whether Para and Parascondola created a dangerous condition for the reasons just discussed.
To the extent that plaintiff argues that Para and Parascondola's liability, and indeed the liability of all defendants, is premised upon violations of the Building Code, plaintiff fails to raise an issue of fact insofar as Para, Parascondola, nor any of the other defendants violated the same. Plaintiff contends that Building Code § 27-557 was violated insofar as the sill herein is a floor. Plaintiff contends that the aforementioned section mandates that all floors be load bearing,. Thus, plaintiff contends that this section of the Building Code put defendants on notice that the sill herein had to be weight bearing and to the extent that the sill herein was not weight bearing, defendants failed to comply with this section and in so doing, violated the same. Plaintiff's contention is without merit insofar as, as a matter of law, Building Code § 27-557 does not apply to the sill herein. It is well settled that whether a particular statute, Building Code, or Administrative Code provision applies, is always a question of law for the court to resolve. In this case, notwithstanding Pomeranz contention to the contrary, the sill herein is not a floor and as such Building code § 27-557 requiring floors to be load bearing does not apply and was not violated. First, Building Code § 27-557 only applies to load bearing floors and does not apply when the accident causing instrumentality was never intended to be used as a floor. Wright v. Olympia York companies (U.S.A.) Inc., 273 AD2d 24 (1st Dept. 2000) (Court found Building Code § 27-557 inapplicable to drop ceiling through which plaintiff fell.). In this case, all the evidence demonstrates that the sill herein was never intended to bear weight and as such § 27-557 does not apply for that reason alone. Second, as a matter of common sense, the sil herein is not a floor. It is clear that the sill herein, abutted a window and was 3 feet, 5 inches above the actual floor. As such, said sill was not a floor since the floor was below it. Lastly, the sill herein is not a floor as defined by the Building Code. Contrary to plaintiff's assertion, the sill herein cannot be considered a floor under Building Code § 27-232, which defines a "Floor Area" as "[t]he projected horizontal area inside of walls, partitions, or other enclosing construction," and defines a "Floor Area (Net)" as "the horizontal occupiable area within the space, excluding the thickness of walls, and partitions, columns, furred-in spaces, fixed cabinets, equipment, and accessory spaces, such as closets, machine and equipment rooms, toilets, stairs, halls, corridors, elevators and similar unoccupied spaces." The sill herein, abutting a window, cannot be said to constitute a floor area insofar as the same lies within a window space, not within walls, is not within enclosing construction such as walls, is not a partition, is not a furred-in space, is not occupiable, nor was it ever intended to be occupiable when built. Accordingly, given the inapplicability of the Building Code § 27-557, Para nor Parascondola were under any obligation to make the sill herein weight bearing as the same was not a floor.
Based on the forgoing, in the absence of notice that the sill herein would be used to stand or walk upon and in the absence of any statutory obligation to build said sill to bear weight, the building of said sill incapable of bearing weight did not constitute a dangerous condition. As such, Para nor Parascondola are not liable to the plaintiff. Insofar as no dangerous condition was created by them, they also did not violate Building Code §§ 26-228, 27-127, and 27-128. Inasmuch as plaintiff has failed to raise any triable issues of fact with regard to Para and Parascondola's liability, their motion for summary judgment is granted.
Colchamiro's motion seeking summary judgment over plaintiff and all defendants is hereby granted. Colchamiro seeks summary judgment on grounds that insofar as he never designed nor was he contracted to design the window sill at issue, he did not create the condition at issue and thus bears no liability. Colchamiro also seeks summary judgment on the cross claims asserted against him on grounds that in the absence of negligence it can not be liable for contribution and insofar as all defendants are sued for their own individual negligence, no claim for indemnification can be maintained. With the evidence submitted by Colchamiro he establishes prima facie entitlement to summary judgment insofar as he establishes that his failure to design the window sill herein did not result in a dangerous condition.
As discussed above, despite the many arguments made, Colchamiro's liability to the plaintiff is solely premised upon the well established principle that a contractor hired by the owner or lessee of a premises is not liable to a third-party unless certain conditions exist thereby invoking certain exceptions to well established rule that one who is contracted to perform work only owes a duty of care to he who hires him.
In support of his motion and insofar as relevant to the same, Colchamiro submits much of the very same evidence submitted by Para and Parascondola and discussed above. In addition, Colchamiro submits the agreement between him and Dyker which evinces that Colchamiro was hired as architect to draft plans in relation to the construction at 531. Colchamiro also submits the plans it created with regard to the construction and said plans evince the windows on the second floor of 531 and the surrounding walls are, as per the schematic, to be sheetrocked with 5/8 gypsum board on 3-5/8 metal studs. No particular design for the sill herein is evinced therein.
The evidence submitted by Colchamiro establishes prima facie entitlement to summary judgment insofar as it evinces that while Colchamiro did not provide, either through his plans or through his direction or supervision, any particulars regarding the sill, such an omission, given the facts herein, did not result in the creation of a dangerous condition. As discussed above, a sill constructed as incapable of bearing weight is not, by itself, a dangerous condition. Such a condition only constitutes a dangerous condition if there was notice that the same had to be weight bearing or some other obligation to design the same to bear weight such as some mandate imposed by statute. As already discussed there was neither any notice that the sill herein would be walked or stood upon nor was there any statutory obligation to build said sill as a weight bearing surface. Accordingly, any omission by Colchamiro, namely the failure to design the sill or instruct as to its construction, which resulted in the construction of the sill in the manner in which it was constructed, namely as incapable of bearing weight, did not, under the facts herein, result in the creation of dangerous condition. As such, Colchamiro, a contractor, bears no liability to the plaintiff, a third-party. For this very same reason, that the failure to design the sill herein does not, under the circumstances, constitute the creation of a dangerous condition, the cross-claims asserted against Colchamiro, for common law indemnification and contribution, all of which turn on Colchamiro being negligent, cannot stand. Thus, with the evidence presented, Colchamiro establishes prima facie entitlement to summary judgment.
The evidence submitted by plaintiff, Modell, Para, and Parascondola, fails to raise any issues of fact, sufficient to preclude summary judgment. The opposition to Colchamiro's motion is that Colchamiro in failing to particularize how the sill herein was to be built, caused such a decision to be made by others, that such a decision was in contravention of the duties Colchamiro was obligated to perform and that it was this omission which resulted in the sill herein being created as non-weight bearing.
Insofar as pertinent to opposing Colchamiro's motion, besides submitting much of what was already discussed above, Modell, plaintiff, Para and Parascondola point to agreements between Dyker and Colchamiro obligating Colchamiro to draft plans to be used for the construction project herein. Said agreements further evince that Colchamiro was responsible for the coordination of the superintendent of construction and all subcontractors and that Colchamiro was to visit the site two times per week during the construction period. It is further argued that Colchamiro testified that his firm's plans and those submitted by Modell called for the walls abutting the window to be furred out, meaning that sheetrock be put over all existing walls. In particular, they called for 5/8 inch sheetrock on 3-5/8 inch metal studs. Said plans however, did not indicate how the fur out should be accomplished. Plaintiff further submits Pomeranz affidavit which with regard to Colchamiro states that the plans created by Colchamiro evince that Modell's plans were incorporated to the extent that the walls surrounding the window were to be furred out, however, said plans are silent with regard to whether the space under the windows were to be furred out. Thus, the plans submitted by Colchamiro were also unclear regarding what was to be done with the area under the windows herein. This left the decision as to what would be done with regard to said area to someone in the field.
None of the evidence submitted in opposition to Colchamiro's motion is sufficient to raise material issues of fact thereby precluding summary judgment. Irrespective of any omission on Colchamiro's part, as it relates to the design of the sill herein and the failure to instruct as to how the same should be built, the sill as constructed, meaning non-weight bearing, did not constitute a dangerous condition, given that, as discussed above, there was no notice that the same would have to bear weight nor any statutory obligation to make the same weight bearing. Accordingly, the failure to specify how the window sill herein was to be built did not result in a dangerous condition and thus Colchamiro cannot be said, by his failure to specify within his plans, to have created a dangerous condition. Based on the foregoing, no questions of fact preclude summary judgment in Colchamiro's favor and his motion is hereby granted.
E P, Dyker, AMPM, and Helene's motion seeking summary judgement over plaintiff and all defendants is hereby granted in part. E P, Dyker, AMPM and Helene seek summary judgment over plaintiff and all defendants on grounds that they had no role in the design and maintenance of the window ledge herein and thus they bear no liability. E P, Dyker, AMPM and Helene also seek summary judgment on grounds that as out of possession landlords they bear no liability for any condition existing within the instant premises. With the evidence submitted by E P, Dyker, AMPM and Helene they establish prima facie entitlement to summary judgment insofar as they establish that they neither created a dangerous condition within the premises herein not had notice of the same. Furthermore, E P, Dyker, AMPM and Helene also establish that they were out of possession landlords and as such bear no liability for any non-structural conditions existing therein.
It is well settled that absent evidence that an owner or possessor of a premises created dangerous condition or that said owner had prior notice of a defective condition, actual or constructive, said owner cannot be liable for an accident resulting from said dangerous condition. It is equally well settled that absent a covenant to keep demised premises in good repair, the absentee owner of real property cannot be liable for dangerous conditions existing therein. Accordingly, he who leases property to another cannot be held liable for dangerous conditions existing on said property unless certain conditions exist. First, an out of possession landlord may held liable if he has a general right to reenter the premises, reserving the right to make repairs, and the condition alleged involves a significant structural or design defect, which is contrary to statutory safety provisions. A structural defect is one where the defect violates a statute rather than a regulation. The defect must violate a specific statute, and the violation itself constitutes constructive notice upon the landlord. Second, an out of possession landlord may be held liable where he retains control of the demised premises and there is a violation of a particular statute. The third exception renders an out-of-possession landlord liable for injuries arising from the use of the demised premises when the landlord rents a premises for public use with knowledge that the same is unfit for such purpose or when he/she is aware that the premises has a defect or a dangerous condition at the time the premises is leased to another.
Insofar as relevant to the grounds upon which E P, Dyker, AMPM, and Helene seek summary judgment, they submit copies of all deposition transcripts submitted by the other parties herein. Relevant to the instant motion is the role of E P, Dyker, AMPM, and Helene. Helene testified that on November 20, 2000, 531 was owned by E P, a general partnership, whose general partners were Marla and Eisenbaum. 531 was master leased, pursuant to a written lease, to Dyker a general partnership, whose general partners were AMPM and Eisenbaum. AMPM was a general partnership whose general partners were Helene and Marla. The second floor of 531 was leased by Dyker, pursuant to written lease, to Modell. With regard to the construction herein, Helene on behalf of Dyker was the liaison who oversaw and supervised the construction. E P, Dyker, AMPM, and Helene submit copies of the lease between E P and Dyker and between Dyker and E P. With regard to the lease between E P and Dyker for the premises located at 531, Section 11 of said lease mandates that Dyker keep the premises herein in good repairs and the same mandates that Dyker, make any and all structural repairs. The lease contains no right of reentry. With regard to the lease between Dyker and E P section 8.3 of the lease, referencing Exhibit D of the same, mandates that Dyker build the space where Modell would ultimately operate its store. Dyker was responsible upon receipt of plans from Modell to draw up plans and construct the space, including all walls and floors. With regard to maintenance of the property leased to Modell section 10.1 of the lease mandates that Dyker make all structural repairs and that Modell is responsible for all other repairs of a non-structural nature. In the event Modell failed to make necessary repairs, Dyker maintained the right to make any repairs Modell was required to undertake. Section 13.1 and 13.2 of the lease grants Dyker the right to enter the premises leased to Modell for purposes of inspection, to post signs, and to exhibit the premises to prospective purchasers and tenants.
Based on the foregoing, E P, Dyker, AMPM, and Helene establish prima facie entitlement to summary judgment. Notwithstanding their absolute defense as absentee landlords, the evidence submitted establishes that they did not create a dangerous condition within the premises herein nor did they have notice of the same prior to plaintiff's accident. As previously noted, the condition alleged herein, a non-weight bearing window sill is not a dangerous condition absent notice that the same would be used to bear weight or absent a statute mandating that the same be built to bear weight. By all accounts, there was no such obligation or notice prior to the opening of the store herein when E P, Dyker, AMPM, and Helene had possession of the same, and more specifically during the construction of the same. As such, insofar as no dangerous condition existed within the premises herein E P, Dyker, AMPM, and Helene can not be charged with creating any such condition or with prior notice of the same. Accordingly, E P, Dyker, AMPM, and Helene are entitled to summary judgment on that basis. Additionally, the leases herein evince that E P, Dyker, AMPM, and Helene were all out of possession landlords subject to no exception giving rise to liability. The lease between E P and Dyker obligates Dyker to undertake all repairs and E P retains no right of reentry. As such, E P establish es prima facie entitlement as an out of possession landlord. The lease between Dyker and Modell evinces that Modell was obligated to make all repairs and that Dyker would only undertake to make repairs if Modell failed to undertake the same. While the lease did grant Dyker a right of reentry, under the law, Dyker would only be liable for structural defects. As discussed above, the failure to make the sill herein capable of bearing weight does not violate the Building Code and as such, no structural defect exists. The other sections of the building code alleged by plaintiff were not violated inasmuch as the Court finds that a dangerous condition is a prerequisite to the same's violation. Thus, E P, Dyker, AMPM, and Helene establish prima facie entitlement to summary judgment.
Plaintiff and Modell's opposition fails to raise any issues of fact with regard to E P, Dyker, AMPM, and Helene's liability so as to preclude summary judgment. In opposition to the instant motion, plaintiff and Modell submit much of what has previously been discussed. Plaintiff's salient argument in opposition to the instant motion is that E P, Dyker, AMPM, and Helene rented a premises they knew to be dangerous and that they are vicariously liable for the acts of the contractors hired by them insofar as the work herein was inherently dangerous. These arguments are unavailing because it presupposes that the premises when leased housed a dangerous condition and that the contractors herein created the same. As already discussed, the window sill herein was not a dangerous condition during the construction of the premises herein and as such the arguments failed. Modell's arguments are virtually identical to those asserted by plaintiff and it adds that Dyker's right to reenter the premises herein and make repairs makes them liable for the defective window sill herein. Modell's argument is meritless since the lease makes it clear that Modell is obligated to make repairs and not Dyker. Moreover, the right of reentry makes Dyker liable for structural defect, which as already discussed, is not the case herein. Accordingly, E P, Dyker, AMPM, and Helene's motion seeking summary judgment over plaintiff and all defendants is granted. E P, Dyker, AMPM, and Helene seeking summary judgment over it's contractual indemnification claim is denied as moot.
Mayer's motion seeking summary judgment over plaintiff and all defendants is hereby granted. Mayer seeks summary judgement on grounds that insofar as it followed plans that did not evince that a dangerous condition would result from following the same, it is entitled to summary judgment. With the evidence submitted, Mayer establishes prima facie entitlement to summary judgment insofar as it establishes that it did not create a dangerous condition.
Mayer's liability is governed by the same principle governing the liability of all other contracting defendants, namely that a contractor hired by the owner or lessee of a premises is not liable to a third-party unless certain conditions exist thereby invoking certain exceptions to well established rule that one who is contracted to perform work only owes a duty of care to he who hires him.
In support of the instant motion and insofar as relevant to the same, Mayer submits a portion of his deposition transcript, wherein he testified that he was hired by Helene, the owner of 531, to act as superintendent of construction in relation to the construction project at 531. The construction project entailed the construction of a second floor in a building, which was previously a theater and already had retail space within the existing first floor. It was Mayer's job to ensure that the plans were being followed and that the contractors were employing proper means and methods. The plans or blueprints provided by Colchamiro called for the framing of the windows and for the installation of sheetrock on the same. In particular the plans for the construction called for the furring out of all interior walls and as such the windows herein had to be framed and a sill was created as a result. The plans do not indicate the manner in which the furring out was to be accomplished nor the way in which the window sill was to be built. Said decision was left up to Para, who was obligated to build it in a workman's-like manner. The window sill was not designed to be weight bearing insofar as none of the interior walls were designated on the plan as weight bearing. Weight bearing means that a beam is laid across the sill to distribute the weight. Since the sill was not weight bearing, it was not made to walk on. Mayer never asked nor was told that the window sill would be used for standing.
Mayer establishes prima facie entitlement to summary judgment, for the very reasons discussed ad nauseam above. His testimony simply reinforces the fact that the sill herein was not designed to bear weight as he was never told that the same would be used to stand or walk upon. Thus, as previously discussed, in the absence of such notice, building the sill herein as non-weight bearing does not constitute a defective condition ans as such, to the extent that Mayer's supervision did not result in a dangerous condition, he bears no liability. Mayer thus establishes prima facie entitlement to summary judgment.
Plaintiff and Modell's opposition fails to raise an issue of fact for the reasons discussed above in reference to Para, Parascondola, and Colchamiro. Accordingly, Mayer's motion is hereby granted.
Plaintiff's cross-motion seeking summary judgment over all defendants is hereby denied. Preliminarily, plaintiff seeks leave to make a belated motion for summary judgment on grounds that said motion relates to relief identical to the relief sought by the defendants. Substantively, plaintiff seeks summary judgment over the defendants averring that insofar as defendants violated the Building Code they are negligent per se. Plaintiff's cross-motion is denied insofar as the instant motion is made past the time designated by the Court, no good cause is shown, and the instant motion seeks relief on grounds not identical to those raised by defendants. Plaintiff's cross-motion is also denied insofar as it is well settled that a violation of the Building Code is not tantamount to negligence per se. Plaintiff's cross-motion is also denied insofar as the defendants herein did not violate the Building Code.
With regard to plaintiff's application seeking to make the instant and belated cross-motion, it well settled that a motion for summary judgment must be made within 120 days after the filing of plaintiff's Note of Issue or within the time period prescribed by the court. Any motion made thereafter, irrespective of its merit, shall be denied, absent good cause shown. Absent a showing of good cause for the delay in timely filing a motion for summary judgment, the Court will not consider such a motion on the merits and will instead decline to hear the motion outright. An exception to the good cause requirement authorizes the court to consider a belated application for summary judgment when the same is made in response to still pending timely motions for summary judgment and when the belated cross-motion seeks relief on the very issues raised by the timely motions. The threshold issue is not whether the same relief is sought, but whether the same arguments are made and more importantly whether the same issues are addressed.
In this case, plaintiff filed his Note of Issue on August 25, 2006. Accordingly, absent any extensions, motions for summary judgment should have been made no later than December 23, 2006. However, this Court, by its Order dated October 5, 2006 extended the time within which to make motions for summary judgment until January 29, 2007. Defendants all made their motions prior to that date and plaintiff did not make it's cross-motion until March 24, 2007, almost two months after the deadline set by the Court. Plaintiff does not proffer any good cause for the delay in making the instant motion, instead averring that the same warrants consideration insofar as it seeks relief on issues identical to those upon which defendants' premise their respective motions. Plaintiff's argument is meritless. While defendant's seek summary judgment on a host of different grounds, none of them seek dismissal based the Building Code. In fact, none of the motions submitted by the defendants raise or even mention the Building Code. Conversely, plaintiff's cross-motion is premised on the applicability of the Building Code and as such raises an issue which is far from identical to the issues raised by the defendants. Thus, the only commonality between defendants' motions and plaintiff's cross-motion is that they seek summary judgment. Clearly, this does not warrant granting plaintiff leave to make the instant and belated cross-motion. Plaintiff's motion is denied for this ground alone.
Notwithstanding the foregoing, plaintiff's cross-motion is denied in that it lacks substantive merit. Plaintiff avers that insofar as defendant's violated the Building code, they are negligent per se. it is well settled that a violation of the Administrative Code or the Building Code does not warrant a finding that a defendant has acted negligently per se, instead, such a violation is merely some evidence of defendant's negligence. This is because a municipal ordinance while controlling authority in its sphere of operation, has the force of statute with respect to application but not for purposes of tort consequences. Accordingly, insofar as plaintiff's application seeks to find defendants' negligent per se insofar as they violated the Building Code, his cross-motion lacks merit and is thus denied for this additional reason. Insofar as this Court has found that Building Code § 27-557 does not apply to the sill herein and to the extent that with the exception of Modell, defendants' did not violate the remaining sections of the Building Code alleged, plaintiff's motion is also denied for this last stated reason.
With regard to Modell summary judgment was denied for other reasons and as such, the Court did not decide whether the same had violated Building Code §§ 26-228, 27-127, 27-1228.
To the extent that the instant action has been dismissed as against E P and Dyker, third-party plaintiffs in the third-party action, the third-party action is hereby dismissed. The third-party action is one for contribution and indemnity and is thus premised upon a finding that E P and Dyker are liable to the plaintiff. There no longer being any first-party claims against E P and Dyker, the third-party action must fail. It is hereby
ORDERED that the complaint and all cross-claims be hereby dismissed with prejudice as against all defendant's with the exception of Modell. It is further
ORDERED that the third-party complaint be hereby dismissed. It is further
ORDERED that Colchamiro serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.
This constitutes this Court's decision and Order.