Kalash v Board of Mgrs. of the India HouseCondominium

2011 NY Slip Op 30071(U)January 10, 2011

Supreme Court, New York CountyDocket Number: 106906/08

Judge: Saliann ScarpullaRepublished from New York State Unified Court

System's E-Courts Service.Search E-Courts (http://www.nycourts.gov/ecourts) for

any additional information on this case.This opinion is uncorrected and not selected for official

publication.

SCANNEDON 111312011

Dated:

SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

b u w ’\ Lbu+o-- J. S. C.

PART 9 Index Number : 106906/2008

KALASH, SHERYL

INDIA HOUSE CONDOMINIUM

SEQUENCE NUMBER : 002

SUMMARY JUDGMENT

vs.

I I1

I

INDEX NO.

MOTION DATE

MOTION SEQ. NO.

MOTION CAL. NO. -

in thls motion to/for

I

I Notlce of Motion/ Order to Show Cause - Affldavlts - Exhibits ... Answsrlng Affidavits - Exhibits

Replying Affidavits

Cross-Motion: Yes No

Upon the foregoing papers, It Is ordered that this motlon

Check if appropriate: fl DO NOT POST REFERENCE

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Plaintiff, -against-

Index No.: 106906/08 Submission Date: 10/06/10

BOARD OF MANAGERS OF THE INDIA HOUSE CONDOMINIUM, INDIA HOUSE, INC., AHEAD REALTY LLC, AND ONE M O V E R , LLC D/B/A HARRY'S CAFB & STEAK,

DECISION AND ORDER Defendants.

X ------------____l__rr_________________l_---------------------"------

BOARD OF MANAGERS OF THE INDIA HOUSE CONDOMINIUM, INDIA HOUSE, INC., AHEAD REALTY LLC,

Third-party Plaintiffs,

-against-

Third-party Index No.: 5 9 1068/0 8

HARRY'S CAF6 & STEAK,

Third-party Defendant.

For Defendants Board of Managers of the India House Condominium, India House, Inc., Ahead Realty LLC: Margaret G. Klein & Associates

For Plaintiff: Edward T. Chase 70 Elmsmere Road Mt. Vernon, NY 10552 200 Madison Avenue, 6' Floor

New York, NY 10016

For Defendant One Hanover, LLC d/b/a Harry's Cafe & Steak: Abrams, Gorelick, Friedman &Jacobson, P.C. One Battery Park Plaza. 4"' Floor

JAN 1 3 2011

NEW YORK New York,-NY 10004 '

Papers considered in review of these motions for summary judgment: COUNTY CLERK'S OF F'CE

Notice of Motion . . . . . . . . . . . . . . . I Notice of Motion . . . . . . . . . . . . . . . 2 Affs in Opp . . . . . . . . . . . . . . . . . .3 ,4

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Replies . . . . . . . . . . . . , . , , , , ,5,6,7

HON. SALIANN SCARPULLA, J.:

In this action to recover damages for personal injuries, (1) defendants Board of

Managers of the India House Condominium (“Condo”) and India House, Inc. (“India”)

move for summary judgment dismissing the complaint and all cross claims asserted

against them and defendant Ahead Realty LLC (“Ahead”) moves for summary judgment

dismissing the complaint and all cross claims insofar as asserted against it, or, in the

alternative, for summary judgment on its claim for contractual indemnification asserted

against defendant One Hanover, LLC d/b/a Harry’s Cafk and Steak (L‘Hanover’’); and (2)

Hanover moves for summary judgment dismissing the complaint, cross claims and third-

party complaint insofar as asserted against it, or, in the alternative, to strike Kalash’s

errata and correction sheet from her deposition.

On December 27, 2007, plaintiff Sheryl Kalash (“Kalash”) fell while walking

down an exterior staircase leading fiom the sidewalk directly to the entrance of Harry’s

Cafd and Steak (“Caft?’). The Cafk operates out of a condominium unit located in the

building at 1 Hanover Square. Condo is the board of managers of the condominium

building, Ahead is the owner of the commercial condominium unit where the accident

took place and Hanover leases the unit from Ahead for its restaurant, the Cafd. India is an

owner of a condominium unit above the Cafd.

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Kalash commenced this action seeking to recover damages for the injuries she

sustained as the result of her fall. In her bill of particulars, Kalash alleges that her

accident was the result of negligent maintenance, installation and/or repair of the

staircase, lighting fixtures and stairway railing.

At an examination before trial, Kala’sh testified that on the day of her accident, she

began to walk down the right side of the staircase leading to the Cafd. She was holding

onto the handrail located on the right side of the staircase. She testified that the railing

was higher than a normal railing height and as such, she had to extend her arm to reach it.

As she was walking down the first step of the staircase, her right foot became stuck.

Because her foot was stuck, she lost her balance and fell.

Kalash has visited the restaurant on prior occasions and used the subject staircase

to enter the restaurant. She had never noticed any problems with the staircase prior to her

accident. When shown photographs of the subject staircase, she first testified that she did

not know where on the step her foot became stuck. She then testified that her foot got

stuck in a crack on the step, and later testified that her foot got stuck in the metal strip

located at the front of the step. She also testified that she did not know where her foot

was on the step when it became stuck, but that it became stuck in the metal strip and she

then fell over. Kalash testified that she could not see the first step because “the lights

were down” and the lantern on the right side of the staircase was “very dim.” She

testified that the first step was not lit well.

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Condo, India and Ahead now move for summary judgment dismissing the

complaint and all cross claims asserted against them. Condo argues that it owed no duty

to maintain the staircase where the accident occurred because that staircase was not a

common element of the condominium. India argues that it owed no duty to Kalash as it

was the Owner of a separate condominium unit which was not involved in the subject

accident. Ahead argues that as an out-of-possession landlord, it owed no responsibility

for a defect that was not structural in nature and that did not violate the Administrative

Code. In the alternative, Ahead moves for summary judgment on its claim for contractual

indemnification asserted against defendant Hanover on the ground that Hanover, the

commercial tenant within the unit where the accident took place, owed a duty to maintain

the subject staircase.

In support of their motion, Condo, India and Ahead submit the affidavit and

examination before trial testimony of Edmund A. Nahas (‘Nahas”), member of the Condo

Board and member of Ahead. Nahas maintained that Ahead was the owner of the subject

condominium unit and the subject staircase, and pursuant to the lease agreement between

Ahead and Hanover, Hanover was responsible for maintaining the staircase. He

explained that the subject staircase was not a common element of the condominium and

therefore, Condo had no responsibility to maintain the staircase pursuant to the

Declaration of the Condominium.’

Section 9 of the Declaration provides “The Board of Managers shall be responsible for ...( c) Maintenance, repair, replacement, management, operation and use of the Common Elements.”

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In further support of their motion, Condo, India and Ahead submit the examination

before trial testimony of Karina Then (“Then”), Cafe’s assistant manager. Then testified

that she was working the night of the accident but did not witness Kalash’s fall. She was

not aware of anyone having been injured on the staircase or of any prior complaints

regarding the staircase. She maintained that it was part of the Cafe’s procedure to have

either its general manager Ivan or a busboy check the staircases daily before the cafk

opened to make sure that they were free of snow or debris. She explained that Cafd

employees were responsible for cleaning the staircase, clearing snow from the staircase,

changing light bulbs on the lights adjacent to the staircase, and polishing the adjacent

banisters. If there was a defect in the staircase, the owners of the restaurant would call

somebody to make repairs.

Hanover opposes the motions, arguing that (1) the staircase was a “common

element” of the condominium, as stated in Section 1 of the Declaration of the

Condominium’ and, in any event, the exterior of the building is not part of the individual

condominium unit; and (2) because issues of fact exist as to who was responsible for the

staircase, Ahead can not be granted summary judgment on its claim for contractual

indemnification at this time,

Hanover also moves for summary judgment dismissing the complaint, cross claims

and third-party complaint insofar as asserted against it, or, in the alternative, to strike .~

Section 1 of the Declaration indicates that common elements include stairs and stairways.

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Ralash’s errata and correction sheet from her deposition. Hanover argues that the

complaint must be dismissed because Kalash can not identify the defect which caused her

fall. At her examination before trial, Kalash could not mark the location of her foot at the

time her foot got stuck on a photograph of the subject staircase. She testified that did not

know if she looked down at the steps either before or after the accident. She first testified

just that her heel got stuck, then that her foot got stuck in a crack on the step, and then

that her toe got stuck in the metal stripe3 Hanover also maintains that, in any event, there

is no evidence that it had any notice of any defective condition on the subject staircase.

Hanover also submits the affidavit of the Cafe’s general manager Ivan Mitankin .

(“Mitankin”), who explained, in detail, that the subject staircase was well lit on the day of

the accident. Mitankin, who was at the premises at the time of the accident, provided that

he was unaware of any defect on the step and had received no prior comp’laints of any

defect on the staircase.

Finally, Hanover maintains that because Kalash did not advance an explanation for

her three page errata sheet in which she made changes to her deposition testimony, the

errata sheet should be stricken.

In opposition, Kalash contends that she clearly identified the location and cause of

her accident. She clearly testified that her toe became stuck in the metal strip at the front

of the first step, thereby causing her to fall. She also submits the affidavit of professional

Hanover also argues that Kalash was improperly coached by her attorney at her examination 3

before trial.

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engineer Stanley H. Fein (“Fein”) who visited the scene of the accident on January 15,

2008, less than three weeks after the accident occurred. He concluded that the right side

of the first step was worn away so that the front steel bullnose protector projected out,

creating a tripping hazard. He also opined that the height of the handrail was 40 inches

above the tread surface, when the height of handrails shall not be more than 34 inches.

He maintained that the cause of Kalash’s fall was the defective condition of the first step,

specifically, the tripping hazard created by the projection outward of the front steel

bullnose protector on the right hand edge of the first step. He concluded that the subject

steps were not maintained in a safe manner and did not have a proper handrail installed.

Biscussioq

A movant seeking summary judgment must make aprima facie showing of

entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any

material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853

(1985). Once a showing has been made, the burden shifts to the opposing party who must

then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68

N.Y.2d 320,324 (1986); Zuckerman v, City ofNew York, 49 N.Y.2d 557 (1980). A

motion for summary judgment must be denied if there is any doubt as to the existence of a

triable issue of fact. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223,23 1 (1978).

Condo, Ahead and India’s motion for summary judgment dismissing the complaint

and all cross claims insofar as asserted against them is granted. First, as no arguments

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have been advanced in opposition to India’s motion, and the Court finds no connection

between the subject accident and India or its commercial unit, the claims asserted against

India are dismissed.

Second, the claims asserted against Condo are dismissed. Any allegation that the

subject staircase is a common element of the condominium is unsubstantiated and without

documentary support. A broad statement in the Declaration that “Common Elements’’

include stairs and stairways is insufficient to raise an issue of fact as to the ownership of

the subject staircase. Ahead admits that it is the owner of the subject staircase, the subject

staircase leads only to the entrance of the Cafe, and no diagrams, schematics, or other

documentary evidence have been submitted to suggest that the subject staircase was a

common element of the condominium.

Third, Ahead bears no responsibility for the maintenance of the subject staircase

and therefore, the claims asserted against Ahead are dismissed as well. Generally, an out

of possession owner is not liable for injuries that occur on its premises after the transfer

of possession and control to a tenant unless the landlord is either contractually obligated

to make repairs and/or maintain the premises or has a contractual right to reenter, 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. See

Thomas v. FairJield Investors, 273 A.D.2d 1 18 (1’‘ Dept. 2000); Johnson v. Urena Serv.

Ctr., 227 A.D.2d 325 ( lSt Dept. 1996).

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Here, the evidence submitted establishes that Ahead is the out of possession owner

of the subject condominium unit. Pursuant to the lease agreement for the unit, Ahead had

no obligation to undertake any repairs to the premises, and no additional evidence has

been submitted that Ahead was contractually obligated to make repairs to or maintain the

premises. In addition, Then clearly testified that Cafe employees were responsible for

cleaning and clearing snow from the subject staircase and maintaining the lights and

banisters adjacent to the subject staircase. Then also maintained that if there was a defect

in the staircase, the Cafk owners would call somebody to make repairs. Finally, no

evidence has been submitted to establish any structural or design defect or specific

statutory safety violation.

However, Hanover’s motion for summary judgment is denied. Hanover argues

that Kalash can not sustain her claim because she can not identify the defect that caused

her fall. Notably, Kalash’s claims that her accident was caused by improper lighting or an

improperly placed handrail are without any evidentiary support. No evidence has been

presented that any improper lighting or improperly placed handrail proximately caused

her accident, Rather, the evidence presented only suggests that her accident was caused

by the defective step. Contrary to Hanover’s contention that Kalash can not identify the

specific defect upon the step that caused her fall, the Court finds that Kalash has provided

evidence sufficient to raise a triable issue of fact as to whether her accident occurred

because her foot became stuck in the metal strip on the first step.

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Finally, Hanover has not met its burden of demonstrating the absence of

constructive notice of the allegedly defective condition upon which Kalash fell. A

commercial proprietor, by his general invitation to all persons to enter its premises,

represents, by implication, that the means of ingress and egress are reasonably safe and

free from risk, and a breach of duty in keeping them so, which is the proximate cause of

an injury renders the proprietor liable in damages. See Shirman v. New York City Transit

Auth., 264 A.D.2d 832 (2nd Dept. 1999). A property owner may be liable for damages

resulting from a slip and fall on a defective condition on its premises if it created the

defective condition, or if it had either actual notice or constructive notice of the condition

in sufficient time to remedy it, See Gordon v. American Museum of Natural History, 67

N.Y.2d 836 (1986). It is the movant's burden, on a motion for summary judgment, to

establish the absence of constructive notice of the defective condition as a matter of law.

See Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598 (2nd Dept. 2008).

Here, Hanover has not submitted any evidence establishing the absence of

constructive notice of the defective condition, such as compliance with inspection

procedures, inspection records, or maintenance records relating to the subject staircase.

While Then testified that a busboy or the general manager would inspect the staircase

daily before the Cafd opened to ensure that the staircase was free of snow or debris, no

evidence or testimony was presented as to whether that procedure was followed on the

day of the accident, or whether there were inspection procedures in place relating to the

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structural safety of the staircase. See generally Birnbaum v. New York Racing Assn., Inc.,

57 A.D.3d 598 (Znd Dept. 2008); Britt0 v. Great Atl. & Pac. Tea Co., Inc., 21 A.D.3d 436

(2nd Dept. 2008); Brunetti-Huneke v Long Is. Univ., 2010 NY Slip Op 31234U (Sup. Ct.

Nassau Co., May 12,2010).

The Court, however, agrees with Hanover’s contention that Ralash’s deposition

errata sheet should be stricken. Pursuant to CPLR 3 1 16(a), a witness may make

substantive changes to his or her deposition testimony provided the changes are

accompanied by a statement of the reasons therefor. See also Cillo v. Resjefal C o p , 295

A.D.2d 257 (1‘ Dept. 2002). Here, no such statement of reasons accompanied the errata

sheet and therefore, it is stricken.

In accordance with the foregoing, it is

ORDERED that defendants Board of Managers of the India House Condominium,

India House, Inc.,.and Ahead Realty LLC’s motion for summary judgment dismissing the

complaint and all cross claims insofar as asserted against them is granted and the claims

asserted against the remaining defendant are severed and shall continue; and it is further

ORDERED that defendant One Hanover, LLC d/b/a Harry’s Cafk and Steak’s

motion for summary judgment dismissing the complaint, cross claims and third-party

complaint insofar as asserted against it or, in the alternative, to strike Sheryl Kalash’s

errata and correction sheet from her deposition is granted only to the extent that Sheryl

Kalash’s errata and correction sheet from her deposition is stricken; and it is further

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ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the decision and order of the Court

Dated: January I 0 ,201 1 New York, New York

JAN 1 3 2011

NEW YORK C O U N n CLERKS OFFICE

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