MEMORANDUM DECISION AND ORDER The following e-filed documents listed on NYSCEF (Motion No. 001) numbered 50-89 were read on this motion. Oral argument was completed on May 30, 2024. Upon the foregoing documents, Motion Sequence No. 001 is resolved and therefore, it is hereby, ORDERED, that Defendant’s request to dismiss Plaintiff’s Summons, and Verified Complaint pursuant to CPLR §3211 [a] [7] is DENIED; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly. Memorandum Decision I. Procedural History On or about February 21, 2023, Plaintiff commenced this negligence action to recover for personal injuries allegedly sustained by Plaintiff because of a fall that occurred in the parking lot area at the Stop & Shop Supermarket located at 4343 Amboy Road, Staten Island, New York 10312. Defendant filed Motion Sequence #001 by Notice of Motion on July 8, 2024, seeking dismissal of Plaintiff’s Summons, and Verified Complaint pursuant to CPLR §3211 and for such other and further relief as this Court deems just and proper. Plaintiff filed opposition on July 31, 2024. Defendant filed reply on August 16, 2024. Plaintiff filed sur-reply on August 20, 2024. Oral argument was completed on September 5, 2024. II. Facts This action is for personal injuries allegedly sustained by the Plaintiff on April 8, 2021, as the result of a trip and fall accident that took place as the Plaintiff was walking in the parking lot area adjacent to the Defendant’s Stop and Shop Supermarket located at 4343 Amboy Road, Staten Island, New York. Plaintiff alleges she tripped and fell on a pothole/defect in the roadway. The lease between the Defendant and the landlord of the property located at 4343 Amboy Road, Staten Island, New York (hereinafter referred to as the Property) provides in the Memorandum of Lease for Recordation (Notice of Lease) as follow: Any buildings and improvements now or hereafter erected on the Land shall be hereinafter called “Improvements.” The Land and the Improvements shall be hereinafter collectively called the “Shopping Center.” Landlord hereby grants and has, in the Lease, granted to Tenant the right and easement to use, in common with other permitted tenants of the Shopping Center, those portions of the Shopping Center not included within the building sites referred to in Article 9A of the Lease including, but not limited to, parking areas, roads, streets, drives, tunnels, passageways, landscaped areas, open and enclosed malls, exterior ramps, walks and arcades (hereinafter collectively called the “Common Area”) for all customary and proper purposes. (NY St Cts Filing [NYSCEF] Doc No. 29 at page 22). The Memorandum of Lease for Recordation (Notice of Lease) further provides: There shall be no advertisements or signs in the Common Area except the sign pylon or pylons hereinbefore provided for, traffic control signs, directional signs (as set forth below) and except any advertisements or signs that Tenant may, in its sole discretion, place on its cart corrals and/or shopping carts, which Tenant shall maintain at is sole cost and expense. Tenant shall also be permitted, at Tenant’s sole cost and expense, to install directional signs at any or all ingress/egress points in the Shopping Center subject to Landlord’s reasonable approval, provided that Tenant obtains all permits and approvals in connection therewith. Tenant shall maintain all signs that Tenant installs pursuant to this Article 11D. No merchandise shall be sold or displayed in the Common Area. Notwithstanding the foregoing, any occupant of the Demised Premises may use the sidewalk adjacent t[o] the Demised Premises for selling and for the storage of shopping carts, may erect a cart corral or similar device thereon and may use said sidewalk for any other lawful purpose or purposes and shall have the right to place public phones on the exterior of Tenant’s Building. In addition, notwithstanding the foregoing, Tenant may erect cart corals or similar devices in the parking lot in front of the Demised Premises for the storage of shopping carts. (see id at page 24). Section 2 of the Lease between the Defendant and the landlord of the Property provides: Landlord hereby grants to Tenant the right and easement to use, in common with other permitted tenants of the Shopping Center, those portions of the Shopping Center not included within the building sites referred to in Article 9A hereof including, but not limited to, parking areas, roads, streets, drives, tunnels, passageways, landscaped areas, open and enclosed malls, exterior ramps, walks and arcades (hereinafter collectively called the “Common Area”) for all customary and proper purposes. (see id at page 38). Section 11 of the Lease entitled Common Area provides: Landlord shall, at its sole cost and expense, keep and maintain the Common Area in good condition and repair, including, but not limited to, restriping (at least once each Lease Year); repairing and replacing paving and the sub-strata thereof; keeping the Common Area properly policed, drained, free of snow, ice, water, rubbish and obstructions, and in a neat, clean, orderly, and sanitary condition; keeping the Common Area safe and suitably lighted during and for appropriate periods in any event not less than one (1) hour before and after Tenant’s business hours unless Tenant operates its business on a twenty-four (24) hour basis in which event not less than one (1) hour before dusk and one (1) hour after dawn; maintaining signs, markers and other means and methods of pedestrian and vehicular traffic control; and maintaining any plantings and landscaped areas. (see id at page 47). Section 11 further provides: Landlord shall indemnify and hold harmless Tenant [Defendant], its employees and agents from any and all claims, causes of action, damages, expenses and liability, including reasonable attorneys’ fees, sustained or incurred by any persons (other than Tenant, its employees and agents) which are based upon or arise out of illness or injury, including death of any person or property damage to any property and which arise from or in any manner grow out of any negligent or wrongful act of Landlord, its agents, partners or employees in the Common Area. (see id at page 48). Defendant maintains it leased the supermarket only, and not the parking lot from the owner of both, ABR Amboy Road, LLC, the property owner and/or landlord. (NY St Cts Filing [NYSCEF] Doc No. 28). Accordingly, Defendant contends that the Plaintiff’s complaint should be dismissed as the New York City Administrative Code §7-210, which requires that property owners must maintain their property in a reasonably safe condition, is inapplicable to the Defendant as it does not own the Property, including the parking lot where the Plaintiff allegedly fell. Plaintiff’s complaint alleges that the Defendant “maintained a store” at the Property, “owned” the Property, “leased” the Property, the Property was “operated”, “managed”, “controlled”, “maintained”, “repaired” and “inspected” by the Defendant, and Plaintiff was lawfully on the Premises at the time of the accident and that, at the time of the accident. (NY St Cts Filing [NYSCEF] Doc No. 32 at pages 4-5). The complaint further alleges Plaintiff tripped and fell and sustained severe and permanent injuries due to the negligence of the Defendant. (see id). Plaintiff further contends that the only “evidence” annexed to the moving papers was the purported lease for the Premises, which is not authenticated in any manner. (NY St Cts Filing [NYSCEF] Doc No. 31). Plaintiff contends that there is an issue as to whether the Defendant had an implied easement in that the use of the parking lot is necessary for the reasonable enjoyment of the property and that such use was intended by the parties at the time of the conveyance. (see id). III. Discussion “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR §3211 [a] [7], and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (see Old Republic Natl. Title Ins. Co. v. 1152 53 Mgt., LLC, 227 AD3d 824 [2d Dept 2024] quoting Agai v. Liberty Mut. Agency Corp., 118 AD3d 830 [2d Dept 2014] citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268 [1977]). To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR §3211 [a], the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see id quoting Redwood Prop. Holdings, LLC v. Christopher, 211 AD3d 758 [2d Dept 2022], quoting Gould v. Decolator, 121 AD3d 845 [2d Dept 2014]; citing Goshen v. Mut. Life Ins. Co., 98 NY2d 314 [2002]; Leon v. Martinez, 84 N.Y.2d 83 [1994]). “To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” (see id quoting Bath & Twenty, LLC v. Federal Sav. Bank, 198 AD3d 855 [2d Dept 2021]; citing Piccoli v. Cerra, Inc., 174 AD3d 754 [2d Dept 2019]). “A valid lease qualifies as documentary evidence within the intendment of CPLR §3211 [a] [1]” (see Sunset Café, Inc. v. Mett’s Surf & Sports Corp., 103 AD3d 707 [2d Dept 2013] citing Midorimatsu, Inc. v. Hui Fat Co., 99 AD3d 680 [2d Dept 2012]). “Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, qualify as documentary evidence in proper cases; however, affidavits and letters are not considered documentary evidence” (see Olivera-Perez v. B.A.M. Bldrs., Inc., 2024 NYAppDiv LEXIS 3947 [2d Dept 2024] quoting Hartnagel v. FTW Contr., 147 AD3d 819 [2d Dept 2017]; citing MJ Lilly Assoc., LLC v. Ovis Creative, LLC, 221 AD3d 805 [2d Dept 2023]; Anderson v. Armentano, 139 A.D.3d 769 [2d Dept 2016]). It is well settled that “[t]o obtain summary judgment, it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR §3212, subd [b]), and he must do so by the tender of evidentiary proof in admissible form” (see Desola v. Mads, Inc., 213 AD2d 445 [2d Dept 1995] quoting Friends of Animals, Inc. v. Associated Fur Mfrs., 46 NY2d 1065 [1979]; citing Zuckerman v. New York, 49 NY2d 557 [1980]; Olson v. Smithtown Medical Specialists, P. C., 197 AD2d 564 [2d Dept 1993]; Scanlon v. Long Beach Pub. Sch., 197 AD2d 567 [2d Dept 1993]). “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (see Autovest v. Cassamajor, 195 AD3d 672 [2d Dept 2021] quoting Citibank, N.A. v. Cabrera, 130 AD3d 861 [2d Dept 2015]; citing Aurora Loan Servs., LLC v. Mercius, 138 AD3d 650 [2d Dept 2016]). Generally, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (see id quoting Standard Textile Co. v. National Equipment Rental, Ltd., 80 AD2d 911 [2d Dept 1981]; citing Bank of N.Y. Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]). “[S]uch records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business” (see id quoting Bank of N.Y. Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]). In support of their motion, Defendant submitted, Exhibit “A” consisting of various documents including as follows: Purported “Second Amendment to Lease” between ABR Amboy Road, LLC (“Landlord”) and Defendant (“Tenant”) dated January 26, 2012. (NY St Cts Filing [NYSCEF] Doc No. 29 at pages 2-9). Purported “Lease Assignment and Assumption Agreement” between King Kullen Grocery Co., Inc. (“Assignor”) and Defendant (“Assignee”) dated December 29, 2011. (see id at pages 10-17). Purported “Assignment and Assumption of Lease” between APW Supermarkets, Inc. (“Assignor”) and King Kullen Grocery, Co., Inc., (“Assignee”) dated January 10, 2008. (see id at pages 19-21). Purported “Memorandum of Lease for Recordation (Notice of Lease)” between ABR Amboy Road LLC (“Landlord”) and APW Supermarkets, Inc. (“Tenant”) dated July 8, 2005. (see id at pages 22-32). Purported “Lease” ABR Amboy Road LLC (“Landlord”) and APW Supermarkets, Inc. (“Tenant”) dated July 7, 2005. (see id at pages 33-117). Defendant failed to submit any affidavit or affirmation that would provide the requisite foundation to make these lease agreements and related documents admissible under the business records exception to the hearsay rule. “[O]n a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211 [a] [7], ‘the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory’” (see Bricker v. Thorsen, 2024 NYAppDiv LEXIS 4560 [2d Dept 2024] quoting Cantor v. Villucci, 212 AD3d 765 [2d Dept 2023]; citing Leon v. Martinez, 84 NY2d 83 [1994]). “[A] motion to dismiss made pursuant to CPLR §3211 [a] [7] will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law” (see Clarke v. Laidlaw Tr., Inc., 125 AD3d 920 [2d Dept 2015] quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34 [2d Dept 2006]; citing Leon v. Martinez, 84 NY2d 83 [1994]; Fisher v. DiPietro, 54 AD3d 892 [2d Dept 2008]). Plaintiff’s complaint alleges that the Defendant “maintained a store” at the Property, “owned” the Property, “leased” the Property, the Property was “operated”, “managed”, “controlled”, “maintained”, “repaired” and “inspected” by the Defendant, and Plaintiff was lawfully on the Premises at the time of the accident and that, at the time of the accident. (NY St Cts Filing [NYSCEF] Doc No. 32 at pages 4-5). The complaint further alleges Plaintiff tripped and fell and sustained severe and permanent injuries due to the negligence of the Defendant. (see id). Accordingly, the Court recognizing the Defendant’s failure to provide the purported lease agreements and related documents in admissible form and accepting all the Plaintiff’s alleged facts in the complaint as true, the Defendant’s request to dismiss Plaintiff’s Summons, and Verified Complaint pursuant to CPLR §3211 [a] [7] is DENIED. Decretal Paragraphs ORDERED, that Defendant’s request to dismiss Plaintiff’s Summons, and Verified Complaint pursuant to CPLR §3211 [a] [7] is DENIED; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly. The foregoing shall constitute the Decision and Order of this Court. Dated: September 23, 2024
