The following e-filed documents, listed by NYSCEF document number (Motion 001) 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 66, 67, 68, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 98, 100, 101, 102, 103, 104 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents and oral argument heard on 5/29/2024, it is hereby ordered that Defendant, City of New York and Defendant, New York City Housing Preservation and Development’s (collectively hereinafter, “The City”) motion for summary judgment and dismissal of Plaintiff, Thomas Russo’s claims pursuant to CPLR §3212 is denied. It is also ordered that Plaintiff, Thomas Russo’s crossclaim to strike the City’s answer pursuant to CPLR §3216 is denied. Defendant-The City’s Summary Judgment Motion To succeed on a motion for summary judgment, the moving party must make a prima facie showing of entitlement to summary judgment as a matter of law by demonstrating the absence of any material issues of fact. See generally Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039 (2016). Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824 (2014) CPLR §3212(b). “If the moving party makes out a prima facie showing, the burden then shifts to the non-moving party to establish the existence of material issues of fact which preclude judgment as a matter of law.” Jacobsen, 22 N.Y.3d at 833. If there are no material, triable issues of fact, summary judgment must be granted. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). As discussed below, this Court finds that The City failed to meet its prima facie burden and material issues of fact exist. This action arises out of an injury sustained by Plaintiff, a process server, while trying to effect service at the subject location — a residential building. Plaintiff alleges he was physically injured by the superintendent of the residential building. The City argues that it owed no duty of care to Plaintiff because the building wherein the injury occurred was part of the New York City Housing Preservation and Development’s (hereinafter, “HPD”) Tenant Interim Lease (hereinafter, “TIL”) program. The City maintains that the goal of the TIL program is to prepare public buildings to become autonomous co-ops outside of New York City authority — to wit — it provides a model contract for the Tenant Association to use for hiring purposes, but it is not directly involved in the hiring process and has no hiring authority over the Tenant Association’s building staff. The City represented to the Court that, although buildings participating in the TIL program have no ability to negotiate alternate lease terms, the day-to-day management of this building was the responsibility of the 51 East 129th Street Tenant Association (hereinafter, “Tenant Association”). See NYSCEF Doc. No. 41 at 15-17. Plaintiff points to various obligations the Tenant Association had to The City under the lease, and that Ms. Hyacinth Lindo, an HPD building coordinator for the TIL program, made regular visits to the building for inspection and to attend Tenant Association meetings at which she would take field reports. See NYSCEF Doc. No. 72 at 6-7. Plaintiff asserts that The City did maintain some control over the hiring process, as the Tenant Association had to first get approval from The City before making hires and had the authority to reject an applicant for previous criminal history and to demand the Tenant Association fire someone. Id at 16. Plaintiff alleges that The City was made aware of Mr. Taylor’s criminal history as it was a topic within the Tenant Association meeting minutes which The City received monthly. Plaintiff contends that the above is clear evidence of the City’s interdependent relationship with the Tenant Association, and that this raises a question of material fact as to whether The City violated its duty of care. “An owner of property has a nondelegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.” Fuller-Mosley v. Union Theol. Seminary, 10 A.D.3d 529 (1st Dept 2004), citing Basso v. Miller, 40 N.Y.2d 233, 241 [1976]). The First Department determined that The City was not an out-of-possession owner when it leased a building to a tenant association under the TIL program, as The City had maintained a right of entry and inspection in the lease. Daughtery v. City of New York, 137 A.D.2d 441, 445 (1st Dept. 1988). Here, like in Daughtery, The City retained and exercised a right to enter and inspect the building. The Tenant Association had various obligations to The City under the lease which raise material questions of fact as to the interdependence of the two and whether The City owed a duty of care to the Plaintiff as owner of the property. Therefore, this Court finds that The City failed to meet its prima facie burden to show the absence of issues of material fact; thus its motion for summary judgment is denied. Plaintiff’s Cross-Motion to Strike Defendant’s Answer Pursuant to CPLR §3216 (a), “where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms.” However, the Court will not strike a pleading unless the party seeking disclosure conclusively shows “that the failure to disclose was willful, contumacious or due in bad faith.” Hassan v. Manhattan & Bronx Surface Tr. Operating Auth., 286 AD3d 303, 304, 730 N.Y.S.2d 286 (1st Dept 2001). Furthermore, the determination to strike a pleading lies “within the court’s broad discretion.” Banner v. New York City Hous. Auth., 73 AD2d 502, 503, 900 N.Y.S.2d 857 (1st Dept 2010). Plaintiff contends that discovery remains outstanding, and that The City is willfully and contumaciously refusing to comply with his discovery demands for the employment application of Mr. Taylor; the model contract provided to the Tenant Association; the field reports Ms. Lindo took on her visits to the building; and the police reports of previous assaults in the building. Plaintiff asserts that The City’s failure to produce these records stems from a desire to undermine his case and moves the court to strike The City’s answer pursuant to CPLR §3216. The City argues in opposition that there was no willful or contumacious action on its part and that it produced all documents it had on file for the building. The City maintains that the police reports are irrelevant as records of unrelated crimes have no bearing on the outcome of this case. The City further argues that a CPLR §3216 motion is an extreme sanction which should only be granted in extreme circumstances and that Plaintiff has not sought to confer and meet to resolve this matter before seeking court intervention. Plaintiff’s cross-motion to strike Defendant’s answer is also denied. Plaintiff has not shown that The City’s failure to disclose the superintendent’s contract was “willful, contumacious or due in bad faith.” See Hassan at 304. The City maintains that it searched all its building files and did not find the requested contract. This Court sees no reason to doubt this assertion and exercises the “broad discretion” (see Banner at 503) it has in determining whether to strike a pleading to deny Plaintiff’s motion. Pursuant to the rules of Part 52, a CPLR §3216 motion must be made with the permission of the Court, and there is no indication Plaintiff was granted such permission. Plaintiff’s application, made during oral argument, for the disclosure of the model contract and field reports taken by Ms. Lindo is granted. This Court finds that The City has testified to information contained within the model contract and the field reports and Plaintiff is entitled to review the same to prosecute his claim. Accordingly, it is hereby ORDERED that Defendants City of New York and New York Housing Preservation and Development’s motion for Summary Judgment is denied, it is further ORDERED that Plaintiff Thomas Russo’s motion to strike Defendant’s answer is denied, it is further ORDERED that the City will turn over the model contract and field reports, it is further ORDERED that the parties will confer again on August 14th, 2024, at 2 PM in DCM room 103 and return to the court with a scheduling agreement on what items will be turned over and dates for further Examinations Before Trial to be conducted. This constitutes the Decision and Order of the Court. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 22, 2024
