The following papers numbered 1 to 29 read on this motion (seq. no. 7) by defendants NORTHERN BLVD. 4818 LLC, FOREST CITY NORTHERN ASSOCIATES II, LLC, and FIRST NEW YORK PARTNERS MANAGEMENT, LLC for an Order pursuant to CPLR 3212, granting summary judgment in favor of said defendants and dismissing all claims and cross-claims against them; on this cross-motion (seq. No. 7) by plaintiff CLEOTILDE JUAREZ RAMIREZ for an Order granting spoliation sanctions against defendants Northern Blvd. 4818 LLC, Forest City Northern Associates II, LLC and First New York Partners Management, LLC for destroying or failing to preserve evidence relevant to this action and costs; and on this motion (seq. no. 8) by defendant OTIS ELEVATOR COMPANY for an order pursuant to CPLR 3212 granting said defendant leave to file its motion for summary judgment late and, upon granting leave, granting summary judgment in favor of said defendant and dismissing all claims and cross-claims against it:Papers NumberedNotice of Motion(seq. no. 7)-Affirmation-Exhibits 1-4Affirmation in Support 5-6Affirmation in Opposition-Exhibits 7-9Reply Affirmation 10-11Notice of Cross-Motion(seq. no. 7)-Affirmations-Exhibits 12-16Affirmation in Opposition to Cross-Motion-Exhibits 17-19Notice of Motion(seq. no. 8)-Affirmation-Exhibits-Memo. of Law 20-24Affirmation in Opposition-Exhibits 25-27Reply Affirmation 28-29
*1 this is an action to recover damages for personal injuries allegedly sustained on May 23, 2013 on the premises known as the Shops on Northern and located at 48-18 Northern Boulevard, Long Island City, New York. Plaintiff alleges that she was caused to fall down an up escalator at the subject premises after she hit a piece of broken metal on the right side of the escalator. First New York Management manages the premises. FC Northern Associates II, LLC was the ground lessee of the subject premises. Northern Blvd. 4818 is an out of possession ground lessor. At the time of the incident, there was a contract between Forest City Enterprises and Otis Elevator Company (Otis) for preventative maintenance, service, and repair of all of the elevators and escalators at the subject premises.Plaintiff commenced this action on June 20, 2014 by filing a summons and complaint. The complaint was amended to add additional defendants. All defendants joined issue by filing answers with cross-claims. On April 13, 2017, the parties stipulated that summary judgment motions shall be made returnable no later than July 25, 2017, and the matter was restored to the Trial Calendar Part’s Calendar for November 14, 2017. All defendants now move for summary judgment on the grounds that the subject escalator was in safe, proper, and working condition on and prior to the date of the incident. Plaintiff cross-moves against Northern Blvd. 4818 LLC, Forest City Northern Associates II., LLC and First New York Partners Management, LLC for spoliation sanctions on the grounds that defendants failed to preserve video tape surveillance footage as well as inspection log books.Initially, Otis acknowledges that its summary judgment motion is late as the motion was not made returnable on or before July 25, 2017. Otis contends that its motion involves identical issues and is supported by the same proof as the timely served and filed motion for summary judgment by co-defendants. In opposition, plaintiff contends that Otis failed to demonstrate good cause for the delay in making the motion.
