Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers NYSCEF Doc. No. Notice of Motion, Affirmation/Affidavit in Support and Exhibits thereto: 1 Opposition/Cross Motion Filings: 2 Reply: 3 Oral Arguments/Other: 4 DECISION AND ORDER Plaxall, Inc., (“Plaxall”) moves for summary judgment pursuant to CPLR §3212 dismissing all of the Plaintiff Eugene Williams’s (“Plaintiff”) claims (the “Motion”). Plaxall Realty Sub, LLC (“Realty Sub”) joins the Motion in part. Plaxall alleges that the Plaintiff’s claims are (i) barred by the statute of limitations, (ii) barred by laches, (iii) inapplicable to Defendants who are out of possession landlords, and (iii) inapplicable to Defendants because the condition alleged is not a structural or design defect that is violative of a specific statutory safety provision. Plaintiff opposes the motion. Plaintiff alleges that in the course of his employment at the premises located at 5-26 45th Avenue, Queens, New York, on September 16, 2011, Plaintiff was sitting inside the back cargo portion of an armored truck. The armored truck was on the trucking floor. The truck was backing up with another employee, who was outside the truck, directing the driver how to back up safely. The truck ultimately collided with a structural support beam in the space. There is no dispute that the support beam predated the incident. It was not a new addition to the space. Plaintiff was not in a car seat and was not buckled in or otherwise affixed to the vehicle at the time of the incident. Summary Judgment Standard It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. Giuffrida v. Citibank Corp., 100 N.Y.2d 72 (2003). The failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law. Winegrad, et al., v. New York University Medical Center, 64 N.Y.2d 851 (1985); Liberty Taxi Mgt., Inc. v. Gincherman, 32 A.D.3d 276 (1st Dept 2006). “In other words, even in the face of a nonmovant’s silence or a poorly drafted response, summary judgment may not be granted unless the movant has met their burden of establishing entitlement to judgment as a matter of law.” Rivera v. State of New York, 34 N.Y.3d 383, 401-402 (2019). The function of the court on a motion for summary judgment is issue finding rather than issue determination, and the court must evaluate whether the alleged factual issues presented are genuine or unsubstantive. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 394 (1957). Statute of Limitations Applicability Plaxall moves for summary judgment on the grounds that Plaintiff’s claims against it are barred by the statute of limitations. Plaxall argues that the underlying event took place on September 16, 2011 and accordingly, that the statute of limitations expired on September 16, 2014. Plaxall was added when Plaintiff’s cross motion to amend the summons and complaint, filed on September 12, 2017, was granted by Judge Ruiz by order dated, May 15, 2019. Plaxall argues that the statute of limitations was not considered in the decision to add them as a defendant because the accepted CPLR §203 relation back doctrine prongs were not met. Plaxall included the motion, cross motion, and the May 15, 2019 decision, as exhibits E-G. Plaintiff’s cross motion explicitly addresses the relation back criteria pursuant to CPLR §203. Plaintiff argues that Plaxall is barred by “the law of the case” or collaterally estopped because Plaxall was added after the statute of limitations expired and therefore the court had to consider it. Plaintiff points to the filings in the case that precipitated the May 15, 2019 decision as proof that the relation back doctrine was argued and decided. Realty Sub moved for summary judgment dismissing the complaint because it was an out of possession landlord and Plaintiff cross moved explicitly to amend its summons and complaint to add Plaxall as a defendant. Realty Sub directly opposed Plaintiff’s motion to amend and add Plaxall. Plaintiff submitted Realty Sub’s opposition as Exhibit R. In Realty Sub’s opposition to Plaintiff’s motion to amend the summons and complaint, Realty Sub argued the elements of the relation back doctrine. The relation back argument was essential to the decision to permit the amendment to the summons and complaint because that was the only relief requested. The amendment and application of the relation back doctrine was argued and therefore considered and decided by the court in its decision to allow the amendment, which required the application of relation back doctrine to Plaxall. Further, there was a motion to reargue filed and denied. This was a decision in the present case squarely addressing issues between these same parties. The issue cannot be relitigated directly or indirectly in the present summary judgment motion. The finality of court decisions at each level is axiomatic to our judicial system. See Paramount Pictures Corp., v. Allianz Risk Transfer AG, 31 N.Y.3d 64, 72 (2018). To allow otherwise in the present case would allow for a type of judge shopping since it asks that this Court reverse a decision issued by another judge in this matter who is no longer on the case and who denied Defendant’s motion to reargue and renew the same decision. See generally In re Hunter, 4 N.Y.3d 260, 269 (2005) (The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again). Accordingly, Plaxall’s argument appears to this Court to be an appeal of the previously issued decision to allow Plaxall to be added as a defendant after the statute of limitations had expired. Plaxall’s motion for summary judgment based on the expiration of the statute of limitations is denied. Laches Plaxall alleges that the complaint should be dismissed based on Plaintiff’s delay in commencing the proceeding against Plaxall. As stated above, Plaxall was added by the court’s May 15, 2019 decision approving the Plaintiff’s amendment to the summons and complaint. Plaxall argues that the eight (8) years between the September 16, 2011incident and the amendment unfairly prejudiced its ability to investigate and therefore defend this matter. Specifically, Plaxall points to its inability to have the location analyzed by an expert as evidence of the prejudice it suffered. Plaxall’s expert inspected the location on September 17, 2020. In Plaintiff’s opposition to the Motion, Plaintiff, in its memorandum of law on page 13, argues that Plaxall’s expert affidavit lacks probative value because it was based on an inspection that took place nine (9) years after the incident and that there was no evidence that the conditions were the same. Plaintiff distinguishes its expert’s review in 2015 by arguing that Plaintiff was in attendance to attest to the unchanged nature of the space. Plaxall argues that Plaintiff’s position is evidence that it has suffered prejudice due to the delay in adding them. Laches is defined as the neglect or omission to assert a right of such length as to cause prejudice to the adverse party such that the right is barred in a court of equity. The essential element of this equitable defense is a delay that is prejudicial to the opposing party. Movant bears the burden of proving laches. Because the effect of delay on the adverse party may be crucial, delays of even under a year have been held sufficient to establish laches. Schulz v. State, 81 N.Y.2d 336, 348 (1993) (internal citations omitted). Prejudice may be demonstrated “by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.” Matter of Linker v. Martin, 23 A.D.3d 186, 189 (1st Dept 2005) citing Skrodelis v. Norbergs, 272 AD2d 316, 317 (2000). The Court does not find the factual circumstances presented in this case rise to the level of prejudice to Plaxall. While Plaintiff argues that the inspection of the premises performed by Plaxall was too late, in fact, the column in question is a structural one that has not been altered in the intervening years. Further, there are no allegations regarding the lights having been changed. The essential elements in this case, are fixtures that are not frequently changed and there are no facts before this Court that suggest they were. Therefore, the Motion for dismissal based on laches is denied. Out of Possession Landlord The owner of real property’s responsibility in any tort action is generally a question of control. Gronski v. County of Monroe, 18 N.Y.3d 374, 379 (2011) (internal citations omitted). Accordingly, landowners that transfer both possession and control are generally not liable for dangerous conditions on the property. Id. Control is both a question of law and of fact. Id. Put another way, a landowner’s duty of care to anyone on the property is a question of whether such duty has been permissibly and effectively delegated to another. Courts have routinely held that an out-of-possession landowner, a landowner who has successfully delegated control over the subject premises, is not liable for injuries that occur on its premises unless the landlord has retained control over the premises, i.e. right of reentry, and has a “duty imposed by statute or assumed by contract or a course of conduct.” Broughal v. Tae Kwon, 181 A.D.3d 641, 641 (2d Dept 2020) quoting Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d 10, 18 (2d Dept 2011). Here, there are no factual allegations of involvement in the ordinary operation by Defendants. Cf Ritto v. Goldberg, 27 N.Y.2d 887, 889 (1970). An out-of-possession landlord with a right of reentry may be liable for injuries if it has constructive notice of a significant structural or design defect in violation of a specific statutory safety provision. Brignoni v. 601 W. 162 Assoc., L.P., 93 A.D.3d 417, 418 (1st Dept 2012) (internal citations omitted). It has been held that for constructive notice to be found there must be a finding of “a significant structural or design defect that is contrary to a specific safety provision.” Torres v. W. St. Realty Co., 21 A.D.3d 718, 721 (1st Dept 2005) (internal citations omitted). Although conflicting expert opinions may raise issues of fact, conclusory, not factually supported, and speculative assertions proffered by the experts are insufficient. Vasquez v. Rector, 40 A.D.3d 265, 266-267 (1st Dept 2007). Here, Plaxall and Plaintiff submit expert affidavits in support of their positions. Plaxall submitted the affidavit of Charles Schaffer, a registered architect (“Schaffer Affidavit”). The Schaffer Affidavit states that the Plaintiff’s bill of particulars alleged violations of the New York City Administrative Code Title 28, Chapter 7, Article 701, Section BC 1003.6, and Section 27-381. Schaffer Affidavit states that Title 28 is not applicable to the subject property. Title 28-101.4.1 states that any permit for work issued prior to July 1, 2008, or if no permit was necessary, or work was commenced prior to July 2008 then Title 27 will apply. NYC Adm.Code 28-101.4.1. It is undisputed that the subject property was built and in operation prior to July 2008. Therefore, the Court agrees that Title 28 is inapplicable. The Schaffer Affidavit does not state what Title of the Building Code is applicable but Plaintiff’s expert, James Pugh, PhD and professional engineer, states in his affidavit (“Pugh Affidavit”) that the 1968 Building Code applies. The 1968 Building Code is contained in Title 27 of the New York City Administrative Code. Plaxall does not refute the applicability of Title 27 but states that it was argued for the first time in Plaintiff’s opposition to the Motion and therefore should not be considered by the Court. The first verified bill of particulars, dated October 9, 2014 does not contain any specific statutory safety violation. The verified bill of particulars, dated April 27, 2020, however, does allege violations of Title 28 as well as Section 27-381. The Pugh Affidavit alleges that Plaxall violated 27-381. Section 27-381 states in relevant part: Corridors and exits shall be provided with artificial lighting facilities, except as otherwise permitted by the provisions of subchapter twelve of this chapter, in accordance with the following: (a) Illumination of at least two foot candles measured at the floor level shall be maintained continuously, during occupancy, in exits and their access facilities for their full length, at changes in direction in and intersections of corridors, balconies, exit passageways, stairs, ramps, escalators, bridges, tunnels, landings, and platforms, and as provided in subchapter eight of this chapter for places of assembly, except that this requirement shall not apply to dwelling units. The Pugh Affidavit follows with “According to Mr. Williams’s testimony, the subject area was dark and not adequately illuminated by existing artificial lighting at the time of the accident. It therefore was not in compliance with 27-381.” The Court finds this to be a conclusory assertion by the Plaintiff. It does not demonstrate any expert verification or authentication. The Schaffer Affidavit states that based on his inspection of the premises the “area in question was lit in a manner that allowed for all columns, walls, and ceilings to be readily visible.” As this assertion was based on Schaffer’s personal knowledge and expertise, it satisfied Plaxall’s burden that the statute in question was not violated. The Pugh Affidavit makes no professional assessment of the lighting, and instead just relies on the Plaintiff’s perception. Accordingly, the Court does not find Plaxall’s expert witness’s testimony to be refuted on this subject and grants Plaxall’s motion for summary judgment on the basis of a violation of 27-381. The Pugh Affidavit also alleges two other statutory safety violations, namely, 27-369 and the Manual on Uniform Traffic Control Devices (“MUTCD”).1 27-369 states in relevant part that “Corridors shall be kept readily accessible and unobstructed at all times. NYC Administrative Code 27-369. The MUTCD mandates uniform signs and symbols to be used to instruct people on the traffic patterns that are to be followed. It was adopted by New York State. The Pugh Affidavit argues that 27-369 proscribes the interruption of the path of egress by structural elements and other elements. The Pugh Affidavit alleges that the structural column in question is violative of this safety provision because the column is directly in line with the path of the garage door opening and that “[d]ue to the fact that trucks are loaded and unleaded in this area and depending on the location of other vehicles, there would be no other way to exit the building than through this garage door”. An additional Schaffer affidavit was submitted with the reply, dated April 6, 2022 (“Schaffer 2″). Schaffer 2 argues that “corridor” is a defined term under Title 27 of the Building Code and that definition makes it inapplicable to the trucking floor in question. NYC Administrative Code 27-232 defines corridor as an enclosed public passage providing a means of access from rooms or spaces to an exit.2 Schaffer 2 states that the minimum width of corridors is between 3 feet and 8 feet depending on the occupancy requirements. The Court agrees that such definition is inapplicable as a matter of law to a space that is approximately 150 feet long and 100 feet wide with space between the columns measuring approximately 35-76 feet apart. The trucking floor does not fall within the definition of a corridor in the Title 27 Building Code and therefore is not regulated by 27-369. Therefore, the Court finds in favor of Plaxall on this alleged violation. The Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) was adopted in New York State. VTL §1680. VTL 1680 states “the department of transportation shall maintain a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this chapter for use upon highways within this state.” VTL §1680. The adopting legislation is clear that these provisions relate to highways in this state used for public travel. The circumscribed application of these statutes to streets and highways is reinforced by the appointment of the department of transportation as the executive agency in charge of implementation. As a matter of law, the interior space in question is not regulated by MUTCD because it is not a highway and it is not open to public travel. The Court finds in favor of Plaxall on the alleged violations of the MUTCD. A defendant moving for summary judgment has the initial burden of showing that it neither created, nor had actual or constructive notice of the dangerous condition that caused plaintiff’s injury. Ross v. Betty G. Revocable Trust, 86 A.D.3d 419, 421 (1st Dept 2011). For constructive notice to be found in connection with an out of possession landowner, there must be a finding of “a significant structural or design defect that is contrary to a specific safety provision.” Torres v. W. St. Realty Co., 21 A.D.3d at 721 (internal citations omitted). Here, Plaxall has satisfied that burden in connection with each safety provision Plaintiff argued. Plaintiff’s rebuttal expert did not contain sufficiently substantive findings to refute Plaxall’s. The Court has considered all the parties various related arguments and finds them unavailing. Accordingly, it is hereby ORDERED AND ADJUDGED that Plaxall’s motion for summary judgment is granted; and it is further ORDERED AND ADJUDGED that the matter is dismissed; and it is further ORDERED AND ADJUDGED that a copy of this Decision and Order with Notice of Entry be served by the prevailing party upon all parties to the present action within thirty (30) days of the date of entry. This constitutes the decision and order of the Court. Dated: June 22, 2022
