ADDITIONAL CASES Plaza Queens Associates L.P., Lois Kirsch, Gloria Fried, Urban Company, Gerald Kirsch, and Maamin Properties LLC, Third-Party Plaintiffs v. Mount Sinai School of Medicine of New York University, Third-Party Defendant DECISION AND ORDER Motion sequences 001, 002 and 003 are consolidated for disposition. In Motion Sequence 001, Defendants Columbia University College of Physicians and Surgeons, Columbia University Mailman School of Public Health, and the Trustees of Columbia University in the City of New York (collectively, “the Columbia Defendants”) move pursuant to CPLR §3212 for summary judgment dismissing the complaint and all cross-claims against them. In Motion Sequence 002, Third-Party Defendant Mount Sinai School of Medicine of New York University (“Mt. Sinai”) moves pursuant to CPLR §3212 for summary judgment dismissing the third-party complaint and all cross-claims against them. In Motion Sequence 003, defendants/third party plaintiffs, Plaza Queens Associates, L.P. (“Plaza”), Urban Company, Maamin Properties, L.L.C., Lois Kirsh, Gerald Kirsh, and Gloria Fried (collectively, “Landlord Defendants”) move for summary judgment pursuant to CPLR §3212 dismissing the Complaint and all cross-claims against them.1 Alternatively, the Landlord Defendants move for summary judgment pursuant to CPLR §3212 to indemnify Mt. Sinai. This action stems from an alleged incident on June 7, 2010 at 24-16 Queens Plaza South, Long Island City, New York (the “Building”). Plaintiff alleges that she was injured when a file cabinet tipped over while on a wheeled dolly. Plaintiff filed a claim against her employer at the time, Mt. Sinai, for Worker’s Compensation on June 30, 2010.2 Plaintiff commenced this action by service of a Summons and Complaint dated June 6, 2013 alleging negligence on the part of the Building owner at the time of Plaintiff’s injury (Plaza), Plaza’s partners, the Building manager (Urban), the current owner of the Building as of September 1, 2011 (Maamin), and the employer of Plaintiff’s supervisor at the time of the injury, the Columbia Defendants.3 The Landlord Defendants commenced the third-party action against Mt. Sinai on November 7, 2013 seeking indemnification. Note of Issue was filed October 24, 2019. “The drastic remedy of summary judgment may only be granted where, viewing the facts in the light most favorable to the non-movant, ‘the moving party has ‘tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact,” and the non-moving party has subsequently ‘fail[ed] ‘to establish the existence of material issues of fact which require a trial of the action”…Summary judgment disposition is inappropriate where varying inferences may be drawn, because in those cases it is for the factfinder to weigh the evidence and resolve any issues necessary to a final conclusion.” Dormitory Authority v. Samson Constr. Co., 30 N.Y.3d 704, 717 (2018) (citing Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012)). In order to establish negligence, Plaintiff must demonstrate “(1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.” Rodriguez v. Budget Rent-A-Car Systems, Inc., 44 A.D. 3d 216, 221 (1st Dept. 2007) (citing Akins v. Glen Fall City School Dist., 53 N.Y.2d 325 (1981)); see also Merino v. New York City Transit Authority, 218 A.D.2d 451 (1st Dept. 1996). Plaintiff has not met this burden for the Landlord Defendants. It is uncontested that Motion Sequence 002 is moot if Motion Sequence 003 is granted.4 Accordingly, the Court first considers the relief sought in Motion Sequence 003, which is unopposed. “An out-of-possession landlord ‘is generally not liable for negligence with respect to the condition of property…unless [it] is either contractually obligated to make repairs and/or maintain the premises or has a contractual right to reenter, inspect and make needed repairs at the tenant’s expense and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision.’” Sapp v. S.J.C. 308 Lenox Ave. Family Ltd. Partnership, 150 A.D.3d 525, 527 (1st Dep’t 2017) (quoting Johnson v. Urena Serv. Ctr., 227 A.D.2d 325, 326 (1st Dep’t 1996)) (alterations original). The Landlord Defendants were not contractually obligated to make repairs or maintain the premises per the terms of the Lease Agreement. Nor is liability for the Plaintiff’s injury “based on a significant structural or design defect that is contrary to a specific statutory safety provision.” See Johnson, 277 A.D.3d at 326. The First Department has repeatedly held that out-of-possession landlords are not liable for injuries caused by furniture and non-structural fixtures, such as file cabinets, when the tenant is responsible for the condition of the premises. See, e.g. Ram v. 64th St.-Third Ave. Assocs., LLC, 61 A.D.3d 596, 597 (1st Dep’t 2009) (“The motion court correctly granted defendant’s motion for summary judgment on the ground that defendant was an out-of-possession landlord that could not be held liable for any dangers posed by the fan where its lease with plaintiff’s employer required the latter to keep all fixtures in good working order and to make any nonstructural repairs at its own expense”); Pledger v. City of New York, 175 A.D.2d 689, 689 (1st Dep’t 1991) (“[T]here is no liability of [the landlord] defendant to a third party allegedly injured by a defective bench, a moveable piece of furniture and not a fixture”). Consequently, the Landlord Defendants did not owe the Plaintiff a duty of care with respect to the file cabinet and the Landlord Defendants’ unopposed motion for summary judgment (Motion Sequence 003) dismissing the complaint and all cross-claims against them is granted. Because the Plaintiff cannot sustain her negligence claim against the Landlord Defendants, the Landlord Defendants’ indemnity claim against Mr. Sinai is moot and Motion Sequence 002 is deemed resolved. See Broyhill Furniture, Inc. v. Hudson Furniture Galleries, Inc., 61 A.D.3d 554, 556 (1st Dep’t 2009). The Columbia Defendants’ motion for summary judgment (Motion Sequence 001) is opposed by Plaintiff. The Columbia Defendants argue that they, like the Landlord Defendants, did not have a duty to plaintiff and so cannot be held liable. However, Plaintiff argues that the Columbia Defendants had a duty because they “occupied” the premises. “Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises.” Gibbs v. Port Auth. Of N.Y., et al., 17 A.D.3d 252 (1st Dep’t 2005). Plaintiff only argues that occupancy — and not ownership, control, or special use — can form the basis of the Columbia Defendants’ duty but it is only necessary to demonstrate one of these elements to give rise to a duty of care. See Balsam v. Delma Engineering Co., 139 A.D.2d 292 (1st Dep’t 1988) (“The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property.”). The Columbia Defendants employed Plaintiff’s supervisor, a clinical research coordinator named Caroline Torres, as part of a study collaboration with Mr. Sinai and the University of Medicine and Dentistry of New Jersey. It is uncontested that Ms. Torres went to the Building once or twice per week and served as Plaintiff’s supervisor. Plaintiff does not refer the court to any case where such a limited connection to a property qualified as “occupancy”. Plaintiff primarily relies on Gibbs v. Port Authority of New York, where the court held that the company filming a television commercial did not occupy the property on which it was filming. See 17 A.D.3d at 254 (“Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises, and none of these bases support liability under the facts of this case.”). Nor is the court aware of any case that supports the conclusion that Ms. Torres visiting the Building once or twice per week should qualify as occupancy. See generally, e.g., Schwalb v. Kulaski, 29 A.D.3d 563 (2d Dep’t 2006) (real estate agents hosting open house events did not occupy property); Maraia v. Church of Our Lady of Mount Carmel, 36 A.D.3d 766 (2d Dep’t 2007) (tour guides did not occupy property that they provided tours of); Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102 (4th Dep’t 2006) (caterers did not occupy premises of wedding they were catering). Accordingly, the Columbia Defendants did not occupy the Building and therefore had no duty to Plaintiff. As Plaintiff has failed to establish a duty, Motion Sequence 001 is granted. This constitutes the decision and order of this Court. Date: February 8, 2021
