ADDITIONAL CASES 702 Rockaway Avenue LLC, Third-Party Plaintiff v. Union Beer Distributors LLC, Third-Party Defendant The following papers numbered 1 to read herein Papers Numbered Notice of Motion/Order to Show Cause/and Affidavits (Affirmations) Annexed 120-140; 155-171 Cross Motion and Affidavits (Affirmation) Annexed 188-191; 192 Answers/Opposing Affidavits (Affirmations) 145-146; 172; 173-180; 188-191; 193; 196 Reply Affidavits (Affirmations) 181; 194; 202; 203; 205; 188-191; 192 Affidavit (Affirmation) Other Papers 198; 201; 204 DECISION AND ORDER Upon the foregoing papers, defendant/third-party plaintiff 702 Rockaway Avenue, LLC (Rockaway) moves (Seq. 05) for an order, pursuant to CPLR §3212, granting summary judgment dismissing the complaint and all crossclaims and counterclaims asserted against it, and directing the clerk to enter judgment in its favor severing it from the caption or, if all claims are not dismissed against it, among other things, granting it summary judgment on its breach of contract and contractual indemnification crossclaims asserted against defendant Livonia Deli Corp. (Livonia). Third-party defendant Union Beer Distributors, LLC (Union Beer) moves (Seq. 06) for an order, pursuant to CPLR §3212, granting summary judgment dismissing the third-party complaint brought by Rockaway and all crossclaims arising therefrom. Plaintiff Federico Bonilla, and his wife Elba Bonilla suing derivatively, cross-move (Seq. 07) for an order, pursuant to CPLR §3212, granting summary judgment as to liability. Background This is a personal injury action wherein Federico Bonilla (plaintiff or Bonilla) alleges that on February 5, 2018, he was making a delivery to Livonia, located at 702 Rockaway Avenue, Brooklyn, NY (the “subject premises”). As he was walking up the stairs that lead from the basement to the sidewalk, Bonilla alleges one of the subject cellar doors at the top of the stairs fell, striking him in the head. Erik Balcarcel (Balcarcel), a driver for Bonilla’s employer Union Beer, testified that he witnessed the accident and saw a second Union Beer helper bump the door with a hand truck, which caused the subject cellar door to fall. As a result of the accident, Bonilla alleges he sustained a traumatic brain injury among other injuries to his head, neck and back. Bonilla alleges he has been unemployable since the accident. Rockaway owned the subject premises and Livonia leased a portion thereof. Bonilla commenced this personally injury action against defendants Rockaway and Livonia, among others.1 Livonia and Rockaway have each asserted crossclaims against the other for common law indemnification, contribution, breach of contract and contractual indemnification. Rockaway also initiated a third-party action against Union Beer alleging that any personal injury sustained by Bonilla was caused by the recklessness, carelessness, and negligence of Union Beer through its agents, servants and/or employees. Union Beer answered and asserted counterclaims against Rockaway for contribution and common law indemnification. The Parties’ Contentions Rockaway’s Motion (Seq. 05) Rockaway argues it was an out-of-possession landlord and bears no liability for Bonilla’s accident; as Livonia was responsible for the maintenance and repair of the subject cellar doors pursuant to its lease and therefore, liable for plaintiff’s accident. Rockaway also argues that the subject cellar doors were not accessed or controlled by its employees and that it never controlled or directed any deliveries made to Livonia. Further Rockaway argues, it never received complaints about the operation of the subject cellar doors prior to plaintiff’s accident, and any alleged failure to install a safety bar/device on the subject cellar doors was not a structural defect exposing it to liability. Accordingly, Rockaway seeks dismissal of the complaint. As to the crossclaims and counterclaims asserted by Livonia, Rockaway argues the contractual indemnification and breach of contract crossclaims must be dismissed based on the indemnification and insurance provisions of the lease. Rockaway also seeks dismissal of the common law indemnification and contribution crossclaims and counterclaims arguing it did not cause or contribute to Bonilla’s accident. In opposition, Livonia concedes Rockaway ordinarily would not be liable herein as an out-of-possession landlord, but contends an exception applies where such a landlord invites the public to its premises. In this context, Livonia contends Rockaway is charged with a nondelegable duty to provide such members of the general public with a reasonably safe premises, including a safe means of ingress and egress as it relates specifically to the subject cellar doors. Thus, Livonia asserts, since the subject cellar stairway was “open to members of the public making deliveries to the subject building” and was considered an exterior portion of the building, Rockaway owed a duty to maintain the stairway in a safe condition; and breached that duty by failing to install a safety bar/device that would have prevented the subject cellar doors from falling once opened. Livonia also asserts the indemnity language in the lease doesn’t apply in this case, as indemnity is limited only to damages where Rockaway has not been reimbursed by insurance. Here, Livonia argues, no such reimbursement claim has been asserted by Rockaway. Livonia points to paragraph 4 of the lease, entitled “Repairs”, which it alleges, defines Rockaway’s maintenance obligations in this regard. Livonia also contends it cannot be held liable for failing to engage a “safety mechanism” on the subject cellar doors which did not exist at the time of the accident, and that in any event, Rockaway has failed to demonstrate that a safety bar/device was non-structural and therefore not required. While failing to address Rockaway’s breach of contract claim, Livonia argues Rockaway is not entitled to summary judgment on its indemnity crossclaims. On this point, Livonia contends there is no lease provision which required it to perform safety upgrades or improvements to the subject premises and that paragraph 8 of the lease, relied upon by Rockaway in support of its indemnification claims, is inapplicable since Rockaway, as the owner, has not sought insurance reimbursement for the accident. Plaintiff also opposes Rockaway’s motion, contending Rockaway was not an out-of-possession landlord given the control it maintained over the subject premises, citing to the re-entry provision of the lease at paragraph 13. Contending that the subject cellar doors constituted a dangerous condition which Rockaway failed to remedy, plaintiff relies on the affidavit of architect expert, Bharat Gami, who concluded that the cellar doors, when open, were “very unstable” and could collapse and fall “with the slightest touch or brush” (NYSCEF Doc. No. 190, par. 4). Plaintiff further contends Rockaway failed to prove it did not create the hazardous condition or that it lacked actual or constructive notice of same; thereby establishing Rockaway’s liability. Rockaway replies to Livonia’s opposition arguing it did not have a non-delegable duty to maintain the subject cellar doors, as it did not allow the basement stairway to be open to members of the public via the subject cellar doors. Rockaway notes the cellar doors were locked and only Livonia’s employees could grant access. Rockaway also argues it was not responsible for repairs and improvements to the basement stairway and that Livonia’s contentions to this effect are contrary to paragraph 4 (regarding “Repairs”) of the lease and paragraph 25 of the lease Rider (regarding “Maintenance”), which shifts these obligations to Livonia. Rockaway asserts that since Livonia has failed to prove it was negligent in any way, it is entitled to indemnification. Finally, Rockaway argues that the portion of its motion for breach of contract should be granted since Livonia did not oppose this claim. Union Beer’s Motion (Seq. 06) Union Beer argues Rockaway’s third-party complaint must be dismissed since plaintiff failed to prove he sustained a “grave injury” as defined in New York Workers’ Compensation Law Section 11 (WCL §11). Union Beer cites to plaintiff’s Woodhull Medical and Mental Health Center records and the New York Presbyterian Hospital (Queens) records; plaintiff’s pre-accident treatment records from Dr. Farshad D Hannanian of Doc Care; its expert report from Dr. William B. Head, Jr. who also reviewed and considered the reports of Dr. Eric Fremed, Dr. David Masur and Dr. Craig H. Sherman (from 2021, 2021 and 2023, respectively), three doctors who were retained by defendant Rockaway to examine plaintiff. Union Beer argues the submitted medical documentation all conclude plaintiff suffered from pre-existing dementia and other cognitive issues that were not casually related to the accident. Thus, Union Beer argues Rockaway cannot maintain any third-party claims against it for indemnification, as they are barred by WCL §11. Rockaway opposes and cites to its earlier IME reports (from 2019) of Dr. Daniel Kuhn, Dr. Stephen Roberts, Dr. Mehrdad Golzad and Dr. Emilio Oribe, who all concluded plaintiff suffered a traumatic brain injury as a result of the accident. Livonia opposes and contends there are issues of fact as to whether plaintiff substained a “grave injury”, thereby preventing summary judgment, citing only to plaintiff’s Verified Bill of Particulars as support. Union Beer replies to Rockaway asserting that Rockaway’s own doctors agree with Union Beer that plaintiff did not suffer a “grave injury”, pointing to the more recent reports of Drs. Fremed, Masur and Sherman. Union Beer replies to Livonia asserting that Livonia lacks standing to interpose any opposition since it has not asserted any third-party claims against it. Plaintiffs’ Motion (Seq. 07) Plaintiff argues summary judgment should be granted as to liability and relies essentially on the same arguments asserted in opposition to Rockaway’s summary judgment motion (Seq. 05). Rockaway opposes contending, among other things, that controlling precedent insulates it from liability as it was not contractually obligated to repair the premises and further, that plaintiff failed to prove the accident was caused due to a significant structural or design defect as to the subject cellar doors which violated a specific statutory safety provision. Livonia opposes contending plaintiff fails to submit any proof in admissible form to establish it was negligent. Livonia further contends plaintiff (or his co-workers) was solely responsible for the accident. Plaintiff replies asserting Rockaway’s arguments are flawed because Rockaway cannot prove it was an out-of-possession landlord, given the lease re-entry provision contained in Paragraph 13. Plaintiff further argues that since he submitted evidence the subject cellar doors presented a hazard to those using the steps, which was known to Rockaway and not remedied, he is entitled to summary judgment. Plaintiff is silent as to Livonia’s opposition. Discussion Standard of Review “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Joseph P. Day Realty Corp. v. Aeroxon Prods., 148 AD2d 499, 499 [2d Dept 1989]; Alvarez, 68 NY2d at 324; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (IDI Jewels, Inc. v. Abramov, 193 AD3d 699, 699 [2d Dep't 2021]). The court’s task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Spilman v. Matyas, 212 AD3d 859, 860 [2d Dep't 2023]). It “must clearly appear that no material triable issue of fact is presented” (Rebecchi v. Whitmore, 172 AD2d 600, 600 [2d Dept 1991]). To avoid summary judgment, the non-moving party “must make a showing by producing evidentiary proof in admissible form” (Friends of Animals, Inc. v. Associated Fur Mfrs. Inc., 46 NY2d 1065, 1067-1068 [1979]). Rockaway’s Motion (Seq. 05) Rockaway moves to dismiss plaintiffs’ complaint, and all crossclaims and counterclaims asserted against it, arguing, among other things, it is not liable as an out-of-possession landlord. A property owner has a duty to maintain its premises in a reasonably safe condition and is liable for injuries caused by a breach of this duty (Achee v. Merrick Vil., Inc., 208 AD3d 542, 543 [2d Dep't 2022]). The “duty is premised on the landowner’s exercise of control over the property, [because] ‘the person in possession and control of property is best able to identify and prevent any harm to others’” (Butler v. Rafferty, 100 NY2d 265, 270 [2003]). Indeed, “[i]t has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property” (Ritto v. Goldberg, 27 NY2d 887, 889 [1970]; citations omitted). “However, an out-of-possession landlord is not liable for injuries caused by a dangerous condition on leased premises in the absence of a duty imposed by statute or assumed by contract or a course of conduct” (Sweeney v. Hoey, 211 AD3d 1071, 1072 [2d Dep't 2022]; citations omitted). Moreover, “[a]n out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it” (Cotto v. New York City Hous. Auth., 155 AD3d 937, 938 [2d Dep't 2017]; citations omitted). Here, Rockaway established, prima facie, that it was an out-of-possession landlord and was not bound by statute, contract or course of conduct to repair the alleged dangerous condition created because the subject cellar doors were not equipped with a safety bar/device to hold them open (Matias v. West 16th Realty LLC, 189 AD3d 681, 682 [1st Dep't 2020]; Cuthbert v. Foreign Development Service, Ltd., 161 AD3d 673, 673-674 [1st Dep't 2018]; Lopez v. Mattone Group Raceway, LLC, 203 AD3d 909, 909-910 [2d Dep't 2022]; Achee, 208 AD3d at 543-544; Sweeney, 211 AD3d at 1072). Rockaway’s submissions in support of its motion, including plaintiff’s deposition transcript (and photographic exhibits attached thereto), the deposition transcript of Union Beer’s witness (Balcarcel), the Union Beer accident report, the deposition transcripts of Rockaway’s witnesses (Zev A. Solomon and Andre Smith), the lease agreement between Rockaway and Livonia (dated March 9, 2016), and the various other supporting proof, demonstrated that it did not retain control of the premises or the subject cellar doors. Paragraph 8 of the lease obligated Livonia to maintain all appurtenant exterior areas, including the subject cellar doors. Both plaintiff’s and Livonia’s opposition based on the alleged requirement that Rockaway was charged with responsibility for installing a safety bar/device, are unavailing. Neither could point to a specific statutory safety code or provision which ascribed a structural or design defect to the subject cellar doors as they existed on the date of the accident. Conversely, Rockaway established that it did not create, have actual or constructive notice of and failed to remedy, the alleged dangerous condition created because the subject cellar doors were not equipped with a safety bar/device to hold them open (Matias, 189 AD3d at 683; Young Jae Lee v. International Preschools, 170 AD3d 1091, 1092 [2d Dep't 2019]). Moreover, though Rockaway did not present evidence of the last time it inspected the subject cellar doors; Bonilla’s own testimony establishes lack of constructive notice as a matter of law. He never raised an issue as to the operation of the subject cellar doors during the many years he delivered goods to the premises before the February 5, 2018 accident (Vaughan v. Triumphant Church of Jesus Christ, 193 AD3d 1104, 1106 [2d Dep't 2021]; Escobar v. New York Univ., 172 AD3d 535, 536 [2019]). Bonilla testified that he did not know why the cellar door fell (March 4, 2021 EBT of Bonilla (“Bonilla Tr.”), p. 30, Ins. 22-25 – p.31, Ins. 2-3); that he had visited the premises “once per week” for a “number of years before the accident”, that he always did the same thing (“bring beer and alcohol down into that same basement”) (Bonilla Tr., p. 86, Ins. 13-25 -p. 87, Ins. 2-9; p. 94, Ins. 5-9) and, with respect to the date of the accident, that he did not observe “anything different than [he] had on the other occasions that he made deliveries” (Bonilla Tr., p. 94, Ins.5-9). Both plaintiff and Livonia also failed to raise a triable issue of fact in opposition to Rockaway’s position that it had no duty to install a safety bar/device on the subject cellar doors pursuant to statute or regulation, a provision of the lease or due to a course of conduct. Accordingly, that part of defendant/third-party plaintiff Rockaway’s motion (Seq. 05) seeking dismissal of plaintiff’s complaint, all crossclaims and counterclaims asserted against it, is granted. It is well-settled that where third-party action claims are derivative of the main action, dismissal of the first party action necessarily warrants dismissal of the third-party complaint (Interstate Adjusters, Inc. v. First Fid. Bank, N.A., 251 AD2d 232, 234 [1st Dep't 1998]; Spitzer v. Grasso, 53 AD3d 403, 403 [1st Dep't 2008]). Thus, the third-party action is dismissed and the action is severed and continued as to the remaining defendants. That part of the motion for summary judgment on Rockaway’s breach of contract, contractual indemnification crossclaims and for reimbursement of all attorneys’ fees, costs, and expenses, as asserted against Livonia, is denied as moot. Union Beer’s Motion (Seq. 06) As all claims against Rockaway have been dismissed, Union Beer’s motion seeking to dismiss Rockaway’s third-party complaint is denied as moot. Were the Court to consider Union Beer’s motion, premised on the assertion that plaintiff did not suffer a grave injury; it appears relevant Workers’ records referenced in the supporting medical records were not provided (see, e.g., NYSCEF Doc. No. 149 at pg. 6, 14; NYSCEF Doc. No. 166 at par. 2). In the absence of the Workers’ Compensation records by Union Beer, plaintiff’s employer, and in light of the conflicting IME reports and medical records (NYSCEF Doc. Nos. 163-171 and 176-179), it appears likely there are triable issues as to whether plaintiff suffered a “grave injury”; which would prevent a grant of summary judgment (Alvarez, 68 NY2d at 324; Rebecchi, 172 AD2d at 600). Plaintiff’s Motion (Seq. 07) Plaintiff cross-moves (Seq. 07) for summary judgment, pursuant to CPLR §3212, as to liability. Although relief is sought as to both Rockaway and Livonia, plaintiff’s argument in both the supporting affirmation and Memorandum of Law are directed solely to Rockaway. Livonia nonetheless submitted opposition (NYSCEF Doc. No. 196) to plaintiffs’ motion (Seq. 07), in which it argues plaintiffs’ motion should be denied given the “glaring[]” failure of plaintiff to submit admissible proof establishing Livonia’s negligence (id. at par. 3). As plaintiff does not make a prima facia showing on liability as to Livonia, denial of that part of plaintiff’s motion is warranted, regardless of the sufficiency of Livonia’s opposing papers” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Summary judgment on liability as to Rockaway is also denied, for the reasons stated in the foregoing discussion as to Motion Seq. 05. Conclusion Accordingly, it is hereby ORDERED, that Rockaway’s motion (Seq. 05) seeking dismissal of plaintiffs’ complaint, all crossclaims and counterclaims, is granted, the third-party action is dismissed and the action is severed as to the remaining defendants; and it is further ORDERED, that Union Beer’s motion (Seq. 06) seeking dismissal of Rockaway’s third-party complaint, and all crossclaims arising therefrom, is denied as moot; and it is further ORDERED, that Plaintiff’s cross-motion (Seq. 07) seeking summary judgment on liability is denied. All other arguments have been considered and are denied. This constitutes the decision and order of the Court. Dated: May 16, 2024
