The following e-filed documents, listed by NYSCEF document number (Motion 002) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION In the underlying action, plaintiff alleges that on October 19, 2018 at approximately 7:30 PM, he tripped and fell in the area between the cafe and the American Wing inside the defendant Metropolitan Museum of Art (the “Met Museum”). Now pending before the court is Motion Sequence #002, in which defendant the City of New York (the “City”) seeks an order dismissing the Complaint against the City, pursuant to Civil Practice Law and Rules (“CPLR”) 3211(a)(7), on the grounds that the City is not responsible for the maintenance, operation or control of the premises of the Met Museum, located at 1000 5th Avenue, New York, New York. Arguments Made by the Parties In a Decision and Order on Motion #001, dated June 28, 2021, this court denied the City’s motion for an order dismissing the complaint, with leave to re-file. Here, now, in the instant motion, the City again argues that it is not responsible for the maintenance, operation or control of the Met Museum, which is where plaintiff alleges to have sustained his injury. Specifically, the City argues that on December 24, 1878, the City and the Met Museum entered into a lease agreement in which full responsibility for the maintenance, upkeep, and repair of the Met Museum became the sole responsibility of the Met Museum. Hence, the City argues, plaintiff’s Complaint should be dismissed as against the City. In support of its argument, the City again submits the Lease Agreement (NYSCEF Document #61) (the “lease”), and also submits the sworn Affidavit of Terri Richardson (NYSCEF Document #62). The Affidavit states, in substantive part: 1. I am currently employed by the City of New York, Department of Cultural Affairs as Assistant Commissioner of Cultural Affairs, Cultural Institutions Unit. I have been employed in this position since 2019 […] 2. At the request of the Corporation Counsel, I was asked to search for and provide a copy of the Agreement of Lease and Amendments (hereinafter the “Master Lease”) pertaining to real property owned by the City of New York and leased to the Metropolitan Museum of Art (“MET”) located at 100 502 Avenue, New York, New York 10028. 3. A copy of the most current Master Lease between the City of New York and the MET dated December 24, 1878, Amended October 21, 2013, is annexed hereto as Exhibit A (hereinafter the “Agreement”). The Master Lease is the full, complete, and accurate copy of the lease agreement with the City of New York and the of Museum of Art. 4. The Master Lease was in effect on October 19, 2018, the date of the incident underlying this action and continues in force and effect as of the present date. 5. Pursuant to the Agreement, the sole responsibility of maintenance is assigned to the MET, and per Clause 3 of the Agreement, the MET shall have and enjoy the exclusive use of the whole building. Clause 7 also provides the MET with exclusive use of the whole building and specifically provides the MET with the duty to “appoint, direct, control, and remove all persons employed within said building, and in about the care of said building, and the Museum, library, and collections therein contained.” The Master Lease does not obligate the City to maintain the MET and does not provide the City with a right of re-entry, other than for the purpose of performing the City’s police powers. 6. At the request of the Corporation counsel, I was also asked to search for and provide a copy of the Procedures Manual pertaining to the property leased to the Metropolitan Museum of Art. A copy of the Procedures Manual is annexed hereto as Exhibit B. The Procedures Manual is a full, complete, and accurate copy of the Procedure Manual in effect on October 19, 2018 and continues in force and effect as of the present date. 7. The Procedures Manual is a list of procedures the Department of Cultural Affairs requires of the 34 members of the Cultural Institutions Group. The Metropolitan Museum of Art is a member of the Cultural Institutions Group. Pursuant to section III, provision E of the Procedures Manual, the MET is responsible for the maintenance of the building. The City also submitted the Procedures Manual (the “Manual”) for Members of New York City’s Cultural Institutions Group (NYSCEF Document #63), and a copy of the transcript of plaintiff’s 50-h hearing (NYSCEF Document #60). The transcript was signed by the court reporter, but not by plaintiff himself. Further, the City submitted a copy of the City’s Answer (NYSCEF Document #57). Attached to the Answer is a Verification statement that was signed before a Notary Public by a representative of the City. Finally, the City submitted a copy of the Decision and Order in the Hudon case, (NYSEF Document #65), in which the Court (Hon. Verna L. Saunders) found, in part: That the City has shown entitlement to the relief sought. Specifically, plaintiff’s affidavit containing the alleged statements of an engineer, without an affidavit, sworn statement or testimony from the engineer, is insufficient to defeat the City’s motion to dismiss on the basis of its status as an out-of-possession landlord. Plaintiff’s statements are speculative and self-serving where no expert affidavit was proffered and where plaintiff alleges that an engineer opines that the formation of ice causing the incident was due to a structural defect. Further, the plaintiff’s affidavit is contradictory as to prior complaints and/or notice of the condition as in his prior testimony he states that he did not know whether the condition was reported to anyone prior to his accident. In contrast, the Lease Agreement and Procedures Manual and the testimony of Assistant Commissioner Thayer clearly assert that the Met has exclusive control over the premises and was solely responsible for its maintenance and repair. Here, plaintiffs bald, conclusory, and conflicting assertions are insufficient to rebut movant’s showing. [citations omitted] The Met Museum did not file any opposition papers, and the only opposition was filed by plaintiff. Plaintiff argues, first, that the City moved only under CPLR 3211 (a)(7) (failure to state a cause of action), and not under CPLR 3211 (a)(l) (based on documentary evidence). Accordingly, plaintiff argues, the court should consider only the four corners of plaintiff’s Complaint and not consider any other evidence. Plaintiff argues, second, that even if the court were to consider documentary evidence, the court cannot grant dismissal based on documents that are not in admissible form. Most importantly, plaintiff argues, the affiant Ms. Richardson has no personal knowledge with respect to the lease and the Manual, and hence no proper foundation for those documents was laid. Plaintiff also argues that the transcript of plaintiff’s 50-h hearing was not accompanied by a CPLR 3116(a) certification or any other proof that the papers were ever submitted to the plaintiff for review or was signed or corrected by the plaintiff. Finally, plaintiff argues that this motion is premature, as no witness from the City has been deposed. Plaintiff argues that he had sought substantial discovery from the City that is unavailable to plaintiff and plaintiff lists this discovery in detail in his opposition papers. The list includes, but is not limited to, discovery concerning floor plans of the American Wing; information concerning design and construction of the portion of the building where the plaintiff was injured; discovery concerning prior injuries, incidents and prior notice given to the defendants; all contracting, security, maintenance and cleaning contracts and discovery concerning who cleaned, maintained and repaired the location thereat. Analysis and Conclusions of Law “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction […] We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83 [NY Ct. of Appeals 1994]). However, with respect to plaintiff’s argument that this court should not consider any documentary evidence, the Court of Appeals has made clear that “on a motion to dismiss under CPLR 3211, […] allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Simkin v. Blank, 19 NY3d 46 [2012]“). See also Marinelli v. New York Methodist Hosp., 205 AD3d 710 (2d Dept 2022) Here, as in Hudon, the City submitted a copy of the lease agreement between the City and the Met Museum, and a copy of the Procedures Manual. In Hudon, the court found that an Assistant Commissioner from the Department of Cultural Affairs (Tim Thayer) was able to lay the foundation for both documents. Here, the City also presents an Assistant Commissioner from the Department of Cultural Affairs (Terri Richardson) to lay the foundation for these documents. Similarly here, this court finds that the lease and Manual are both properly authenticated and are, therefore, considered by the court. With respect to the lease, it is undisputed that the lease was in effect on October 19, 2018, the date of the underlying incident in this action, and that pursuant to the terms of the lease, the City “granted and demised and let…said building and the appurtenances thereunto” to the Met Museum. The lease further states that the Met Museum “may appoint, direct, control and remove all persons employed within said building in and about the care of said building, the Museum, library, and collections therein contained.” The lease also assigns the sole responsibility of maintenance to the Met Museum by stating that the Met Museum “shall have and enjoy the exclusive use of the whole of said building…during the continuance of the term hereby granted, or until a surrender thereof….” It is also undisputed that the lease does not obligate the City to maintain the Met Museum; does not bestow upon the City a right of re-entry other than for the purpose of performing the duties pursuant to the City’s police powers. Further, the lease does not impose on the City any responsibility for the maintenance, upkeep, or repair of the subject property. With respect to the Procedures Manual, it is undisputed that the Met Museum is a member of the Cultural Institutions Group; that the Manual is distributed to all members of the group; and that the Manual provides that each institution “must perform all tasks necessary to keep its premises safe and in good condition,” and must also keep a “formal maintenance plan.” Even according plaintiff the benefit of every possible favorable inference, this court finds that the City has shown that it is an out-of-possession landlord that cannot be held liable for any alleged defect at the Met Museum (see Velazquez v. Tyler Graphics, Ltd., 214 AD2d 489 [1st Dept 1995]. Importantly, this court notes that the Met Museum did not file responsive papers in opposition to the City’s prior motion or to the arguments and assertions made by the City in the instant motion, namely, that under the terms of the lease, the City is not responsible for the conditions inside the Met Museum. The court also notes that although plaintiff is correct that the transcript of plaintiff’s 50-h hearing was not accompanied by a CPLR 3116(a) certification, it is undisputed that the accident occurred inside the Met Museum. Thus, the transcript is not needed to establish this point. Finally, with respect to plaintiff’s argument that this motion is premature, the court notes that “[a] landlord is not generally liable for negligence with respect to the condition of property after its transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs or maintain the premises, or has a contractual right to re-enter, 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” (Malloy v. Friedland, 77 AD3d 583 [1st Dept 2010]). Here, the record shows that the City is not contractually obligated to make repairs or maintain the Met Museum, and that the City does not have a contractual right to re-enter, inspect or make repairs at the Met Museum. Plaintiff does not argue that the City is in exclusive possession of any discovery that would show otherwise. Conclusion Given the above, it is hereby: ORDERED that the defendant City of New York’s motion is GRANTED; and it is further ORDERED that the Complaint and any cross-claims against defendant City of New York are dismissed with prejudice; and it is further ORDERED that the caption is amended to remove the City of New York as a defendant in this action; and it is further ORDERED that this action is randomly reassigned to a General IAS part; and it is further ORDERED that counsel for the City of New York shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre Street, Room 119), who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “EFiling” page on the court’s website at the address www.nycourts.gov/supctmanh). CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: X INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 22, 2023
