ADDITIONAL CASES Steinway Terminal, Limited Liability Corporation, Third-Party Plaintiff v. HAS Realty Corp. and Tasos Yerolemou, Third-Party Defendant The following papers were read on the motion by defendant/third-party defendant HAS Realty Corp. and third-party defendant Tasos Yerolemou for summary judgment dismissing the complaint and third-party complaint as alleged against them; and the separate motion by defendant Steinway Terminal, Limited Liability Corporation for summary judgment dismissing the complaint as alleged against it and granting its third-party claim for contractual indemnification against defendant/third-party defendant HAS Realty Corp. and third-party defendant Tasos Yerolemou. Papers Numbered Notice of Motion (Seq. No. 3) — Affirmations — Exhibits EF 61-83 Notice of Motion (Seq. No. 4) — Affirmations — Exhibits EF 84-104 Answering Affidavits EF 107-109, 112-113 Reply Affirmations — Exhibit EF 114- 119 Upon the foregoing papers, it is ordered that the motions are consolidated for disposition and are determined as follows: Plaintiff alleges that he was injured on December 4, 2017 while moving materials on a dolly in the course of his employment with non-party AXOS Designs. At the time of the accident, plaintiff was working at AXOS Designs’ office, located at 26-31 1st Street in Long Island City, New York (hereinafter the premises). Defendant Steinway Terminal, Limited Liability Corporation (hereinafter Steinway) owned the premises and leased the premises to defendant/third-party defendant HAS Realty Corp. (hereinafter HAS Realty) and third-party defendant Tasos Yerolemou (hereinafter together the HAS defendants). The court will first address the motion by the HAS defendants. Liability for a dangerous condition on real property is generally predicated upon ownership, occupancy, control or special use of the premises. (Casson v. McConnell, 148 AD3d 863, 864 [2d Dept 2017].) “A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition.” (Bishop v. Pennsylvania Ave. Mgt., LLC, 183 AD3d 685 [2d Dept 2020], quoting Chang v. Marmon Enters., Inc., 172 AD3d 678, 678 [2d Dept 2019].) A defendant in possession or control of real property, who moves for summary judgment in a premise liability case, can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence. (Chang v. Marmon Enterprises, Inc., 172 AD3d at 679; see generally Gani v. Ave. R Sephardic Congregation, 159 AD3d 873, 873 [2d Dept 2018].) In support of their motion, the HAS defendants submitted, inter alia, a copy of the pleadings, the parties’ deposition transcripts, photographs and video footage of the accident. They also submitted affidavits from Tasos Terolemou and George H. Pfreundschuh, P.E. to support their contention that the accident occurred not because of a defective condition but as a result of plaintiff’s own actions. Tasos Terolemou stated that he is the owner of HAS Realty and AXOS Designs, and plaintiff was an employer of AXOS Designs with no connection to HAS Realty. He averred that no changes were made to the permanent fixed structures in and around the site of plaintiff’s accident. He also affirmed that the photographs appended to the moving papers accurately reflect the manner in which permanent structures were configured on the day of plaintiff’s accident. George H. Pfreundschuh, a professional engineer, stated that in the course of his evaluation, he reviewed the pleadings, plaintiff’s deposition testimony, various photographs and videos. He also conducted a site inspection two years after the accident. He opined, to a reasonable degree of engineering certainty, that the cause of the accident was “a combination of cart overloading, the low stability afforded by the design of this cart, the manner in which Plaintiff accelerated and then decelerated the motion of the cart, and the lack of assistance from another worker to help maintain cart stability, and not as a result of any hole or depression in the concrete floor.” Plaintiff testified that he had been working for AXOS Designs since 2016. At the time of the accident, he was unloading a delivery of wood from the delivery truck and moving it to the back of the building. Plaintiff recalled placing approximately 18 pieces of wood on a dolly. Plaintiff alleged that when the dolly was almost full, he bent down and pulled the dolly a few inches towards himself. Plaintiff further stated that the dolly tipped over, causing the dolly and the pieces of wood to fall on him. As plaintiff fell to the ground, he saw that one of the wheels had fallen into the hole in the ground. Plaintiff claimed that the size of the hole was about the size of his hand and was about one to two inches deep. On this record, the HAS defendants failed to affirmatively demonstrate the merits of its defense. “There may be more than one proximate cause of an accident” and “[t]he question of proximate cause may be determined by the court as a matter of law only when there is but one conclusion that may be drawn from the facts.” (Saporito-Elliott v. United Skates of Am., Inc., 180 AD3d 830, 831 [2d Dept 2020]; see Davidoff v. First Dev. Corp., 148 AD3d 773, 775 [2d Dept 2017].) The court’s function is not to resolve issues of fact or to determine matters of credibility, but rather to determine whether issues of fact exist precluding summary judgment. (See Chimbo v. Bolivar, 142 AD3d 944 [2d Dept 2016]; see also Derise v. Jaak 773, Inc., 127 AD3d 1011 [2d Dept 2015]; see also Collado v. Jiacono, 126 AD3d 927 [2d Dept 2015].) Here, plaintiff’s deposition testimony demonstrated the existence of a triable issue of fact as to whether the dolly tipped as a result of the alleged hole in the floor. (See Bishop v. Pennsylvania Ave. Mgt., LLC, 183 AD3d at 685.) It is well established that summary judgment may be granted only when it is clear that no triable issue of facts exist. (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986].) Since the HAS defendants failed to establish their entitlement to judgment as a matter of law, summary judgment is not warranted, and it is not necessary to determine the sufficiency of the opposition papers. (See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Rogers v. Bloomingdale’s, Inc., 117 AD3d 933 [2d Dept 2014]; Conneally v. Diocese of Rockville Ctr., 116 AD3d 905, 907 [2d Dept 2014].) However, Steinway met its initial burden of establishing that it owed no duty to plaintiff. (See Mendoza v. Manila Bar & Rest. Corp., 140 AD3d 934, 935 [2d Dept 2016].) “An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a ‘duty imposed by statute or assumed by contract or a course of conduct.’” (Fox v. Patriot Saloon, 166 AD3d 950, 951 [2d Dept 2018]; see Villarreal v. CJAM Assocs., LLC, 125 AD3d 644 [2d Dept 2015]; Garcia v. Town of Babylon Indus. Dev. Agency, 120 AD3d 546, 547 [2d Dept 2014].) On January 4, 2011, Steinway and the HAS defendants (hereinafter together the defendants) entered into a lease agreement for the premises. The lease, which permitted the HAS defendants to occupy the space for “office and warehouse and wood working shop,” commenced on January 1, 2011 and ended on August 31, 2014. On February 25, 2016, the defendants entered into a “Lease Extension/Modification Agreement,” extending the lease for an additional term of eight years, commencing on September 1, 2016 and ending on August 31, 2024. According to sections 10 (a) and (b) of the lease agreement, the HAS defendants were responsible for maintaining the floors of the subject premises. The lease also stated, in section 20, that Steinway had a right to enter the premises to inspect and make repairs. In addition to the lease, Steinway also appended the deposition transcript of Eric Kalison, an employee of non-party Brent Associates and JM.DK Properties who managed the premises on behalf of Steinway. Kalison stated that other than cosmetic reconstruction in the offices and repairs for damage caused by hurricane sandy, no other major improvements or renovations took place. Kalison further stated that the flooding from hurricane sandy caused minor cosmetic damage to the concrete floor in question, but he was not aware of any repairs made to the floor. He testified that it was the HAS defendants’ responsibility to repair and maintain the concrete floor and he did not notice any divots or holes in the floor caused by the flooding from hurricane Sandy. Since Steinway demonstrated that it was not contractually and statutorily obligated to repair or maintain the concrete floor, and it had not otherwise assumed such duty, it established its prima facie entitlement to judgment as a matter of law. (See Landy v. 6902 13th Ave. Realty Corp., 70 AD3d 649, 650 [2d Dept 2010].) In opposition to Steinway’s showing, plaintiff failed to raise a triable issue of fact as to whether Steinway retained control over the premises or had a contractual duty to maintain and repair the premises. (See Chalouh v. Lati, LLC, 144 AD3d 621, 622 [2d Dept 2016]; Villarreal v. CJAM Assoc., LLC, 125 AD3d at 645; Garcia v. Town of Babylon Indus. Dev. Agency, 120 AD3d at 547.) Plaintiff’s contention, that Steinway is liable because it retained the right to enter the premises to inspect and make repairs, is without merit. “A landlord’s reservation of the right to enter property to inspect and make repairs does not in itself give rise to a duty to make repairs.” (Keum Ok Han v. Kemp, Pin & Ski, LLC, 142 AD3d 688, 689 [2d Dept 2016]; see Richer v. JQ II Assoc., LLC, 166 AD3d 692, 693 [2d Dept 2018].) Since Steinway did not owe a duty to plaintiff, the court need not address whether it had notice of the alleged dangerous condition. (See Ferraro v. 270 Skip Lane, LLC, 177 AD3d 651, 653 [2d Dept 2019]; Villarreal v. CJAM Assoc., LLC, 125 AD3d at 645; Alnashmi v. Certified Analytical Group, Inc., 89 AD3d 10, 18 [2d Dept 2011].) With respect to Steinway’s claim for contractual indemnification, a party’s “right to contractual indemnification depends on the specific language of the contract.” (O’Donnell v. A.R. Fuels, Inc., 155 AD3d 644, 645 [2d Dept 2017]; citing George v. Marshalls of MA, Inc., 61 AD3d 925 [2d Dept 2009] [internal quotation marks omitted].) “The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.” (Maltese v. Metro. Transportation Auth., 179 AD3d 780, 784 [2d Dept 2020], quoting Hooper Assoc., Ltd. v. AGS Computers, Inc., 74 NY2d 487, 491-92 [1989]; see O’Donnell v. A.R. Fuels, Inc., 155 AD3d at 645.) The indemnification provision, found in section 17 of the lease agreement, requires the HAS defendants to indemnify Steinway for “all claims…arising from the conduct or management of or from any work or other thing whatsoever done (other than by [Steinway] or its contractors or the agents or employees of either) in and on the Premises during any period of occupancy by [the HAS defendants].” Since Steinway demonstrated that it was free from negligence, it is entitled to indemnification as provided under the lease agreement. (See Great N. Ins. Co. v. Interior Const. Corp., 7 NY3d 412 [2006]; Campisi v. Gambar Food Corp., 130 AD3d 854, 855 [2d Dept 2015]; Goodlow v. 724 Fifth Ave. Realty, LLC, 127 AD3d 1138, 1140 [2d Dept 2015].) Accordingly, the HAS defendants’ motion is denied in its entirety. The branch of Steinway’s motion for summary judgment dismissing the complaint as alleged against it is granted. The branch of Steinway’s motion seeking contractual indemnification from the HAS defendants is granted conditionally in the event of the entry of a judgment awarding damages against Steinway in plaintiff’s favor. Dated: August 27, 2020
