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PUBLIC 1, UCS 1 NYS UNIFIED COURT SYSTEM-PUBLIC ACCESS EMPIRE STATE PLAZA STE 2001 ALBANY, NY 12223-1450

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Caution As of: Sep 10, 2008 Ram Krishna Maheshwari et al., Appellants, v. City of New York et al., Respondents, et al., Defendants. No. 54 COURT OF APPEALS OF NEW YORK 2 N.Y.3d 288; 810 N.E.2d 894; 778 N.Y.S.2d 442; 2004 N.Y. LEXIS 978 March 25, 2004, Argued May 6, 2004, Decided PRIOR HISTORY: Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered August 7, 2003. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, New York County (Marcy S. Friedman, J.), which had denied a motion by defendant Delsener/Slater Enterprises, Ltd. for summary judgment, (2) granted the motion, and (3) directed entry of a judgment in favor of defendants Delsener/Slater Enterprises, Ltd. and City of New York dismissing the complaint as against them. Maheshwari v. City of New York, 307 A.D.2d 797, 763 N.Y.S.2d 287, 2003 N.Y. App. Div. LEXIS 8650 (N.Y. App. Div. 1st Dep't, 2003), affirmed. DISPOSITION: firmed.

Order of the appellate division af-

CASE SUMMARY: PROCEDURAL POSTURE: Plaintiffs, an injured party and his wife, sued defendants, the City of New York and a company that produced a concert, alleging negligence. The trial court denied the company's motion for summary judgment, but the Supreme Court of New York, Appellate Division, First Department, reversed the trial court's judgment and granted summary judgment for the company and the City. The court of appeals granted leave to appeal.

OVERVIEW: An injured party was hurt when he was attacked by four men while he was distributing pamphlets to concertgoers in a parking lot near a stadium, and he sued New York City and a company that produced the concert, alleging that they did not provide adequate security for the concert. The trial court denied the company's motion for summary judgment, but the intermediate appellate court reversed that judgment and granted summary judgment for the company and the City. The state's highest court held that (1) the evidence showed that the company and the City took reasonable measures to deal with issues of crowd control and other forms of disorderliness, short of unprovoked criminal acts; (2) random attacks such as that perpetrated on the injured party were not a predictable result of gatherings by large groups of people; and (3) even assuming that the company and the City were responsible for a lapse in security in the parking lot where the attack occurred, the injured party was not entitled to recover damages from the City or the company because that lapse was not the proximate cause of the injuries he sustained. OUTCOME: The court of appeals affirmed the intermediate appellate court's judgment. CORE TERMS: concert, parking areas, foreseeable, stadium, parking, crowd, criminal acts, parking lot, foreseeability, proximate cause, police officers, summary judgment, traffic, random, island, criminal assaults, unidentified, assigned, causal, unprovoked, festival, intervening act, provide adequate, adequate security, nor-

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mal course, far removed, provocation, pedestrian, attended, assault LexisNexis(R) Headnotes

the situation created by the defendant's negligence. An intervening act may break the causal nexus when it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct. HEADNOTES

Real Property Law > Landlord & Tenant > Duty to Repair Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Criminal Acts Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Duty to Repair > Common Law Requirements [HN1] New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition. Although landlords and permittees have a common law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor's safety. Torts > Negligence > Duty > General Overview [HN2] Foreseeability and duty are not identical concepts. Foreseeability merely determines the scope of the duty once the duty is determined to exist. Torts > Premises Liability & Property > General Premises Liability > General Overview [HN3] In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the likelihood of conduct on the part of third persons which is likely to endanger the safety of a visitor. Torts > Negligence > Causation > Proximate Cause > General Overview [HN4] A random criminal attack is not a predictable result of the gathering of a large group of people. Torts > Negligence > Causation > Proximate Cause > Foreseeability [HN5] To establish a prima facie case of proximate cause, a plaintiff must show that the defendant's negligence was a substantial cause of the events which produced the injury. Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns on whether the intervening act is a normal or foreseeable consequence of

Negligence -- Foreseeability -- Proximate Cause -Failure to Provide Adequate Security in Concert Parking Lot Plaintiff, having sustained injuries as the result of a random and unprovoked attack by four unidentified men in the parking lot of a public park during a rock concert, could not hold the municipal owner of the park and the concert producer liable. Defendants took reasonable measures to deal with the issues of crowd control and other forms of disorderliness short of unprovoked criminal acts. The brutal attack on plaintiff was not a foreseeable result of any security breach. COUNSEL: Nitkewicz & McMahon, LLP, Commack (Edward J. Nitkewicz and Jinan M. Arafat of counsel), for appellants. I. Defendants-respondents had notice of criminal activity in connection with their rock concerts and therefore had a duty to provide minimal security measures which they failed to meet. (Provenzano v Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 593 N.Y.S.2d 80; Iannelli v Powers, 114 A.D.2d 157, 498 N.Y.S.2d 377; Balsam v Delma Eng'g Corp., 139 A.D.2d 292, 532 N.Y.S.2d 105; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Basso v Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564; Miller v State of New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829; Jacqueline S. v City of New York, 81 NY2d 288, 614 N.E.2d 723, 598 N.Y.S.2d 160; Riss v City of New York, 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897; Palsgraf v Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99; Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245.) II. Common contemporary experience gives rise to a duty of care to protect users of the permitted premises from disorder, unruliness, a melee or a riot erupting from a cause ignited by the vagaries of individuals brought together in a heightened atmosphere such as an all-day rock concert with drinking, marijuana smoking and "tailgating." (Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245; Pulka v Edelman, 40 N.Y.2d 781, 358 N.E.2d 1019, 390 N.Y.S.2d 393; Palsgraf v Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99.) III. Defendants-respondents failed to provide any security to the sunken meadow parking field and thus failed to meet their duty of care. (Curry v Baisley Park Assoc., 162 Misc. 2d 436, 617 N.Y.S.2d 420.) IV. Whether defendants-respondents' failure to provide any security to the parking field known as "Sunken Meadow" was a proxim-

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ate cause of the assault upon plaintiff-appellant is a question of fact for jury determination. (Garrett v Twin Parks Northeast Site 2 Houses, 256 A.D.2d 224, 682 N.Y.S.2d 349; Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163, 684 N.Y.S.2d 139; Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245; Burgundy Basin Inn v Watkins Glen Grand Prix Corp., 51 A.D.2d 140, 379 N.Y.S.2d 873; Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 414 N.E.2d 666, 434 N.Y.S.2d 166.) V. The criminal assault upon plaintiff-appellant at a rock concert was foreseeable and therefore not an intervening act which severs the liability of defendants-respondents for negligent security. (Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 414 N.E.2d 666, 434 N.Y.S.2d 166; Kush v City of Buffalo, 59 N.Y.2d 26, 449 N.E.2d 725, 462 N.Y.S.2d 831; Parvi v City of Kingston, 41 N.Y.2d 553, 362 N.E.2d 960, 394 N.Y.S.2d 161; Stephenson v Johnson & Son, 168 Misc. 2d 528, 638 N.Y.S.2d 889; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606.) VI. Defendant-respondent City of New York is not entitled to an order of summary judgment based upon issues not presented in the motion papers to the trial court below. (Dunham v Hilco Constr. Co., 89 N.Y.2d 425, 676 N.E.2d 1178, 654 N.Y.S.2d 335; Frank v City of New York, 211 A.D.2d 478, 621 N.Y.S.2d 546; Marshall v New York City Health & Hosps. Corp., 186 A.D.2d 542, 588 N.Y.S.2d 364; Conroy v Swartout, 135 A.D.2d 945, 522 N.Y.S.2d 354; Mercedes-Benz Credit Corp. v Dintino, 198 A.D.2d 901, 604 N.Y.S.2d 451; Sebastian v State of New York, 93 N.Y.2d 790, 720 N.E.2d 878, 698 N.Y.S.2d 601; Matter of Richardson v Fiedler Roofing, 67 N.Y.2d 246, 493 N.E.2d 228, 502 N.Y.S.2d 125; People v Rodriguez y Paz, 58 N.Y.2d 327, 448 N.E.2d 102, 461 N.Y.S.2d 248; Sega v State of New York, 60 N.Y.2d 183, 456 N.E.2d 1174, 469 N.Y.S.2d 51; Carnegie Hall Corp. v City Univ. of N.Y., 286 A.D.2d 214, 729 N.Y.S.2d 93.) VII. The duty originally assigned to Delsener/Slater Enterprises, Ltd. under the stadium use agreement was not governmental but proprietary, and when the City of New York later reassumed the duty it remained proprietary. VIII. The City of New York's failure to provide security to the crime-infested parking fields of its stadium where a rock concert was being held for profit was an omission which fell within its proprietary function. (Weiner v Metropolitan Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124, 448 N.Y.S.2d 141; Miller v State of New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829; Preston v State of New York, 59 N.Y.2d 997, 453 N.E.2d 1241, 466 N.Y.S.2d 952; Bass v City of New York, 38 A.D.2d 407, 330 N.Y.S.2d 569, 32 N.Y.2d 894, 300 N.E.2d 154, 346 N.Y.S.2d 814; Basso v Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Levy v State of New York, 262 A.D.2d 230, 692 N.Y.S.2d 354; Rashed v State of New

York, 232 A.D.2d 394, 648 N.Y.S.2d 131; Ruchalski v Schenectady County Community Coll., 239 A.D.2d 687, 656 N.Y.S.2d 784.) Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for City of New York, respondent. I. The duty owed to plaintiff at a concert attended by 25,000 people did not include a guarantee of protection from a random act of violence. Failure to provide security from such an indiscriminate, stealthy assault was not the proximate cause of plaintiff's injury. (Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 750 N.E.2d 1055, 727 N.Y.S.2d 7; Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 634 N.E.2d 189, 611 N.Y.S.2d 817; Lauer v City of New York, 95 N.Y.2d 95, 733 N.E.2d 184, 711 N.Y.S.2d 112; Tobin v Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554; Mason v U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 756 N.E.2d 58, 730 N.Y.S.2d 770; Di Ponzio v Riordan, 89 N.Y.2d 578, 679 N.E.2d 616, 657 N.Y.S.2d 377; Greene v Sibley, Lindsay & Curr Co., 257 N.Y. 190, 177 N.E. 416; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606; Leyva v Riverbay Corp., 206 A.D.2d 150, 620 N.Y.S.2d 333; Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233.) II. Delsener/Slater Enterprises, Ltd. had a contractual duty with the City of New York to provide security in the parking areas. Delsener was not absolved of any of that duty by any security the City agreed to undertake. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; W.W.W. Assoc. v Giancontieri, 77 N.Y.2d 157, 566 N.E.2d 639, 565 N.Y.S.2d 440; Readco, Inc. v Marine Midland Bank, 81 F.3d 295; A.H.A. Gen. Constr. v New York City Hous. Auth., 92 N.Y.2d 20, 699 N.E.2d 368, 677 N.Y.S.2d 9; Modell & Co. v City of New York, 159 A.D.2d 354, 552 N.Y.S.2d 632, 76 N.Y.2d 845, 559 N.E.2d 1288, 560 N.Y.S.2d 129; Granada Bldgs. v City of Kingston, 58 N.Y.2d 705, 444 N.E.2d 1325, 458 N.Y.S.2d 906; Public Improvements v Board of Educ., 56 N.Y.2d 850, 438 N.E.2d 876, 453 N.Y.S.2d 170; Matter of Parkview v City of New York, 71 N.Y.2d 274, 519 N.E.2d 1372, 525 N.Y.S.2d 176, 71 N.Y.2d 995, 524 N.E.2d 879, 529 N.Y.S.2d 278, 488 U.S. 801, 109 S. Ct. 30, 102 L. Ed. 2d 9.) III. The municipal defendants cannot be held liable for the failure to adequately perform a governmental function. (Balsam v Delma Eng'g Corp., 90 N.Y.2d 966, 688 N.E.2d 487, 665 N.Y.S.2d 613; Kircher v City of Jamestown, 74 N.Y.2d 251, 543 N.E.2d 443, 544 N.Y.S.2d 995; Cuffy v City of New York, 69 N.Y.2d 255, 505 N.E.2d 937, 513 N.Y.S.2d 372; Weiner v Metropolitan Transp. Auth., 55 N.Y.2d 175, 433 N.E.2d 124, 448 N.Y.S.2d 141; Riss v City of New York, 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897; Price v New York City Hous. Auth., 92 N.Y.2d 553, 706 N.E.2d 1167, 684 N.Y.S.2d 143; Bonner v City of New York, 73 N.Y.2d 930,

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536 N.E.2d 1147, 539 N.Y.S.2d 728; Vitale v City of New York, 60 N.Y.2d 861, 458 N.E.2d 817, 470 N.Y.S.2d 358; Krakower v City of New York, 217 A.D.2d 441, 629 N.Y.S.2d 435; Akinwande v City of New York, 260 A.D.2d 586, 688 N.Y.S.2d 651.) Law Office of Ted M. Tobias, New York City (Milagros A. Matos of counsel), for Delsener/Slater Enterprises, Ltd., respondent. I. Delsener/Slater Enterprises, Ltd. had no duty to provide security because it had no notice of criminal activity in the area. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; Karp v Saks Fifth Ave., 225 A.D.2d 1014, 639 N.Y.S.2d 575.) II. Defendant met its obligation to provide minimal security and therefore plaintiff failed to establish that inadequate security was the proximate cause of his injuries. (Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163, 684 N.Y.S.2d 139; Brewster v Prince Apts., 264 A.D.2d 611, 695 N.Y.S.2d 315, 94 N.Y.2d 875, 726 N.E.2d 483, 705 N.Y.S.2d 6; Karp v Saks Fifth Ave., 225 A.D.2d 1014, 639 N.Y.S.2d 575; Leyva v Riverbay Corp., 206 A.D.2d 150, 620 N.Y.S.2d 333.) III. Delsener/Slater Enterprises, Ltd. had no duty to provide greater security because there was no indication that plaintiff's assailants were dangerous. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; Rotz v City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245.) IV. If there was inadequate security in the ballfield, liability rests with the City of New York and not with Delsener/Slater Enterprises, Ltd. (Florman v City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233; Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163, 684 N.Y.S.2d 139.) JUDGES: Opinion by Judge Rosenblatt. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur. OPINION BY: ROSENBLATT OPINION [***443] [**895] [*291] Rosenblatt, J. Randomly and without provocation, four unidentified hoodlums attacked plaintiff in the parking lot at a music festival in a New York City park. We must decide whether plaintiff may hold the City and the concert producer liable. On July 10 and 11, 1996, defendant Delsener/Slater produced a Lollapalooza concert at Downing Stadium, a facility owned by defendant City of New York, on Randall's Island. The festival included heavy metal and rap acts such as Metallica, Soundgarden, Wu Tang Clan and the Ramones. Delsener entered into a [*292] stadium use agreement with the City, by which Delsener was to

provide "supervision of the parking areas for the Event," including "sufficient trained security personnel as may be necessary" to police the stadium and additional facilities, ensure the orderly entrance and exit of patrons, manage the parking and traffic flow, and safeguard the property. In addition, the contract called on Delsener to "prepare and submit a site and operations plan" detailing "public vehicular and pedestrian traffic circulation, parking control, and security from the Triborough Bridge ramps and the access roads to the designated ballfields to be used for parking and access to the stadium area." The agreement also obligated Delsener to furnish a plan for the "number, location and [**896] [***444] hours of deployment of licensed security personnel assigned to the . . . parking fields." Several weeks before the event, representatives of those involved in the planning (including Delsener, the Police Department, the Parks Department and other private security companies) attended an "all-agency meeting" to discuss logistics. The participants agreed that the City, through the Police Department and the Parks Department Parks Enforcement Police (PEP), would provide security in the parking areas. On the days of the concert, the security plan was in place: 24 police officers, three sergeants and approximately two dozen PEP officers patrolled the parking areas. Police were assigned to maintain the island during the concert and to move the crowd of 25,000 people safely in and out of the stadium. PEP's role was to patrol the parking areas in search of illegal vendors, alcohol, open fires and littering. Delsener also contracted with another firm to maintain the traffic flow and direct parking in the parking areas. On July 10, 1996, plaintiff went to the concert to distribute pamphlets on behalf of the International Society for Krishna Consciousness. While in the Sunken Meadow parking area, four unidentified young men assaulted him without provocation. When the attack occurred, officers were stationed at certain parts of the parking fields, but apparently none were in the Sunken Meadow parking area. Plaintiff suffered serious personal injury at the hands of his attackers, whom he described as "heavily drunk, red eyes, bottles in their hand, smelling." As the Appellate Division noted, "[a]lthough plaintiff did not see any police officers or anybody on horseback in the parking lot, he saw people in uniform directing traffic" (307 A.D.2d 797, 798-799, [*293] 763 N.Y.S.2d 287 [1st Dept 2003]). At a deposition, a police officer testified that, according to his "post list," no police officer had been assigned to the Sunken Meadow parking area. In his complaint, plaintiff (and his wife derivatively) sued Delsener and the City for not providing adequate security. 1 Delsener moved for summary judgment,

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claiming in essence that it owed plaintiff no duty to prevent a random criminal act of this kind. Supreme Court denied the motion and Delsener appealed. By a divided court, the Appellate Division reversed and granted summary judgment not only to Delsener but to the City as well. 2 The Court based its decision on Florman v City of New York (293 A.D.2d 120, 741 N.Y.S.2d 233 [1st Dept 2002]), in which another plaintiff was injured in the parking area at the same Lollapalooza concert. In assuming that the injury in Florman was the result of a willful attack, the Court concluded that plaintiff had failed to raise a triable issue of fact as to foreseeability and proximate cause. 1 The remaining defendants--Randall's Island Sports Foundation, Inc., Keith Kevan Organization, Inc. and Keith Kevan--are not parties to this appeal. Supreme Court dismissed all claims against the Kevan defendants. 2 Although the City did not appeal from Supreme Court's order, the Appellate Division had the authority to search the record and grant summary judgment to the City under CPLR 3212 (b) (see Merritt Hill Vineyards Inc. v Windy Hgts. Vineyard, 61 N.Y.2d 106, 460 N.E.2d 1077, 472 N.Y.S.2d 592 [1984]). Two Justices dissented, believing there to be questions of fact as to the predictability of criminal assaults at a Lollapalooza concert. They referred to a journalist's description of the event as attended by "a moshing crowd of bare-chested, sweating, staggeringly drunk and stoned 'Beavis and Butt-Head' types." (307 A.D.2d at 801, [**897] [***445] 763 N.Y.S.2d 287.) We now affirm the order of the Appellate Division. In arguing that the City and Delsener breached their duty to provide adequate security in the parking area, plaintiff seeks to hold Delsener liable under the stadium use agreement and the City in its proprietary capacity as the owner of Downing Stadium and Randall's Island. Plaintiff maintains that the crime was foreseeable because defendants had notice of criminal activity at previous Lollapalooza festivals, and that defendants' negligence in providing security was a proximate cause of his injury. Plaintiff essentially argues that Lollapalooza attracts concertgoers who are predictably prone to criminal behavior. In support, he presented statistics from previous Lollapalooza concerts [*294] in which arrests were made for disorderly conduct, misdemeanor assault, criminal mischief, resisting arrest and possession of stolen property. He also claims that defendant knew that one of the musical acts, Wu Tang Clan, had violent incidents at previous concerts. Further, plaintiff argues that defend-

ants knew that tailgating occurred in the parking areas before and during the concert. Tailgating, he contends, increases the chances that criminal activity will occur, presumably because tailgaters may drink alcoholic beverages. Defendants argue that any duty they owed to plaintiff did not include a guarantee of protection from a random act of violence. They assert that the indiscriminate, spontaneous assault upon plaintiff was not proximately caused by any deficiency in security. We conclude that the Appellate Division was correct in accepting defendants' arguments. We have long held that [HN1] "New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition" (Tagle v Jakob, 97 N.Y.2d 165, 168, 763 N.E.2d 107, 737 N.Y.S.2d 331 [2001]; see Basso v Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 386 N.Y.S.2d 564 [1976]). Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor's safety (see Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 548, 706 N.E.2d 1163, 684 N.Y.S.2d 139 [1998]; Jacqueline S. v City of New York, 81 N.Y.2d 288, 292-293, 614 N.E.2d 723, 598 N.Y.S.2d 160 [1993], rearg denied 82 N.Y.2d 749, 622 N.E.2d 308, 602 N.Y.S.2d 807 [1993]; Nallan v Helmsley-Spear Inc., 50 N.Y.2d 507, 519, 407 N.E.2d 451, 429 N.Y.S.2d 606 [1980]). As we have noted, however, [HN2] foreseeability and duty are not identical concepts. Foreseeability merely determines the scope of the duty once the duty is determined to exist (see Pulka v Edelman, 40 N.Y.2d 781, 785, 358 N.E.2d 1019, 390 N.Y.S.2d 393 [1976]). [HN3] In cases arising out of injuries sustained on another's property, the scope of the possessor's duty is defined by past experience and the "likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor" (Nallan, 50 N.Y.2d at 519, quoting Restatement [Second] of Torts § 344, Comment f). Here, the brutal attack was not a foreseeable result of any security breach. The types of crimes committed at past Lollapalooza concerts are of a lesser degree than a criminal assault, and would not lead defendants to predict that such an attack would occur or could be prevented. By all accounts, defendants took reasonable measures to deal with issues of crowd control and other forms of disorderliness short of unprovoked criminal acts. [HN4] A random criminal attack of this nature is not a [**898] [***446] predictable result of the gathering of a large group of people. [*295] The Appellate Division concluded, as do we, that the record reveals no failure by the organizers of

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the event to provide adequate control or security. The concert was host to thousands of people over a large area. Security officers cannot be everywhere at once. As the Appellate Division stated in Florman, "[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff's injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever pedestrians were gathered, surely an unreasonable burden" (293 A.D.2d at 127). Plaintiff and the Appellate Division dissenters rely heavily on Rotz v City of New York (143 A.D.2d 301, 532 N.Y.S.2d 245 [1st Dept 1988]). There, the Appellate Division denied summary judgment to defendants after the plaintiff sustained injury at a concert in Central Park when a stampeding crowd trampled over him. While we do not express an opinion on the merits of that case, it is enough to say that it is, in any event, distinguishable from the one before us. The Appellate Division correctly recognized that Rotz involved crowd control, which is not the issue here. We also agree with the Appellate Division's conclusions that even assuming a lapse in the security in the parking lot, plaintiff's injuries were not the result of any such lapse, but were caused by an independent, intervening criminal act. [HN5] To establish a prima facie case of proximate cause, a plaintiff must show "that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr.

Corp., 51 N.Y.2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 [1980] ). "Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (id.). An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct" (id.). Here, as an independent act far removed from defendants' conduct, the criminal assault broke the causal nexus. The attack was extraordinary and not foreseeable or preventable in the normal course of events. Inasmuch as we agree with the Appellate Division's dismissal of the action against the City on the lack of foreseeability and on the absence of causation, we need not address the City's argument that it is immune from liability based on its claim [*296] that it acted in a governmental, and not proprietary, capacity. In addition, plaintiff's remaining arguments are without merit. Accordingly, the Appellate Division order should be affirmed, with costs. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur. Order affirmed, with costs.

2 of 55 DOCUMENTS

Caution As of: Sep 10, 2008 Keith Bauer, Appellant, v. Female Academy of the Sacred Heart, Defendant and Third-Party Plaintiff-Respondent. Environmental Service Systems, Third-Party Defendant-Respondent. No. 21 COURT OF APPEALS OF NEW YORK 97 N.Y.2d 445; 767 N.E.2d 1136; 741 N.Y.S.2d 491; 2002 N.Y. LEXIS 548 February 6, 2002, Argued March 26, 2002, Decided PRIOR HISTORY:

Appeal from a judgment of the

Supreme Court (Bernard J. Malone, Jr., J.), entered May

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24, 2001 in Albany County, upon a verdict in favor of defendant, dismissing the complaint and bringing up for review (1) a prior nonfinal order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered September 8, 2000, as amended by an unpublished order entered January 25, 2001, which, with two Justices dissenting, modified, on the law, and, as modified, affirmed a judgment and an amended judgment of the Supreme Court (Bernard J. Malone, Jr., J.), entered upon a verdict in favor of plaintiff, awarding plaintiff damages in the principal sum of $ 3,408,323.28 and apportioning damages between defendant and the thirdparty defendant; the modification consisted of remitting the matter to Supreme Court for a new trial on the issue of liability; and (2) a prior nonfinal order of the Appellate Division, entered December 30, 1998, which, with two Justices dissenting, modified, on the law, and, as modified, affirmed an order of the Supreme Court (Victoria A. Graffeo, J.), entered in Albany County, denying a motion by defendant and the third-party defendant to dismiss all of plaintiff's causes of action except for one predicated on Labor Law § 202, and denying a cross motion by plaintiff for summary judgment; the modification consisted of reversing so much of the order as denied the motions of defendant and the third-party defendant to dismiss plaintiff's Labor Law § 240 cause of action, and denied the motion by the third-party defendant for summary judgment dismissing defendant's claim for contractual indemnification, granting those motions, and dismissing those claims. Bauer v Female Academy of Sacred Heart, 250 AD2d 298, modified. Bauer v Female Academy of Sacred Heart, 275 AD2d 809, modified. DISPOSITION: Judgment appealed from and orders of the Appellate Division brought up for review modified in part, affirmed in part and remitted in part for new trial. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff injured window cleaner appealed from a judgment and orders of the Appellate Division (New York) summarily dismissing his claim against defendant premises owner predicated on N.Y. Lab. Law § 240(1) and directing trial of his unsuccessful N.Y. Lab. Law § 202 claim subject to comparative negligence principles. OVERVIEW: A window cleaner was injured in a fall, and sued the landowner pursuant to N.Y. Lab. Law § 202, which dealt especially with window cleaners, and N.Y. Lab. Law § 240(1), which imposed strict liability on

landowners in certain situations. The landowner brought a third-party action against the cleaner's employer, alleging it failed to provide proper safety equipment. The high court held that the existence of an action peculiar to window cleaners did not preclude the cleaner from seeking relief under the strict liability statute, since they both dealt with cleaning and covered varying situations. The strict liability claim should have been allowed to proceed to trial. The intermediate court had properly, however, determined that liability under the window cleaning statute was subject to comparative negligence principles, since the statute no longer mandated particular safety equipment or precautions. OUTCOME: The court modified the judgment and orders to the extent of reinstating the cleaner's strict liability claim and remitted the matter to the trial court for trial of that claim only. CORE TERMS: window, anchor, cause of action, strict liability, cleaning, window cleaner's, industrial, hook, safety devices, exterior, washer, comparative negligence, safe, summary judgment, ordinance, modified, industrial board, comparative, inadequacy, common-law, lessee, lanyard, Labor Law, negligence principles, board of standards, evidence of negligence, public buildings, exclusivity, coverage, cleaner LexisNexis(R) Headnotes

Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN1] According to N.Y. Comp. Codes R. & Regs. tit. 12, § 21.13, window cleaning anchors must be round, like the openings on the hooks that clip onto them. Governments > Legislation > Interpretation Labor & Employment Law > Occupational Safety & Health > Civil Liability [HN2] New York case law does not prohibit assertion of alternative claims under the New York Labor Law. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN3] N.Y. Lab. Law § 202 protects people who clean windows and exterior surfaces of buildings. The requirements of N.Y. Lab. Law § 202 apply to owners, lessees, agents, and managers. N.Y. Lab. Law § 202 is inapplicable to multiple dwellings of six stories or less and to non-public buildings. N.Y. Lab. Law § 202 necessarily involves the periodic cleaning of windows at residences,

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albeit not at multiple residences less than six stories in height. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN4] N.Y. Lab. Law § 240(1) applies to workers engaged in the cleaning of a building. Strict liability under N.Y. Lab. Law § 240(1) flows to owners and contractors only. N.Y. Lab. Law § 240(1) is inapplicable to one- and two-family homes. Moreover, although N.Y. Lab. Law § 240(1) covers cleaning, it does not apply to routine household cleaning. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN5] While N.Y. Lab. Law §§ 202, 240, sometimes apply to the same fact patterns, they do not in every case. The sections serve different goals, apply to different defendants, and are interpreted differently. Torts > Negligence > Defenses > Comparative Negligence > General Overview Torts > Negligence > Proof > Violations of Law > General Overview Torts > Strict Liability > General Overview [HN6] In New York State, statutory causes of action predicated upon violations of administrative regulations do not give rise to strict liability. Labor & Employment Law > Occupational Safety & Health > Duties & Rights [HN7] See N.Y. Lab. Law § 202. Governments > Local Governments > Claims By & Against Torts > Negligence > Defenses > Comparative Negligence > Intentional & Reckless Conduct Torts > Negligence > Proof > Violations of Law > General Overview [HN8] In New York, the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is merely some evidence which the jury may consider on the question of a defendant's negligence. Thus, case law determining whether a particular rule violation results in a finding of negligence per se or is merely some evidence of negligence is relevant to determining when such violations result in strict liability versus comparative negligence.

Governments > Legislation > Enactment Governments > Local Governments > Administrative Boards Governments > Local Governments > Duties & Powers [HN9] The constitution of New York State commits to the legislature alone the power to enact a statute. A constitutional statute, once passed, cannot be changed or varied according to the whim or caprice of any officer, board, or individual. It remains fixed until repealed or amended by the legislature. Administrative Law > Separation of Powers > Legislative Controls > General Overview Governments > Local Governments > Administrative Boards Governments > Local Governments > Duties & Powers [HN10] New York's legislature can give to or confer upon a commission, officer, board, or municipality the power to make rules and ordinances governing the administration of their respective affairs. HEADNOTES Labor - Safe Place to Work - Window Washer - Multiple Statutory Causes of Action Permitted 1. A window washer, who was injured when he fell from the third story of a building, may assert claims under both Labor Law §§ 202 and 240 (1). Allowing a claim under section 240 (1) would not render section 202 "virtually useless." While the statutes will sometimes apply to the same fact patterns, they do not in every case. They serve different goals, apply to different defendants, and have been interpreted differently. The fact that coverage under the two sections may overlap is no reason to imply exclusivity. The Legislature has not expressed an intention that the statutes be mutually exclusive, and inclusion of the term "cleaning" in section 240 (1) negates any inference of exclusivity. The assertion of alternative Labor Law claims has never been prohibited, and merely because an injured window cleaner's claim appears cognizable under both statutes does not mean that one cause of action must be chosen to the exclusion of the other. Negligence - Comparative Negligence - Window Washer's Claim under Labor Law § 202 2. A violation of Labor Law § 202, which provides a cause of action to persons injured while cleaning windows and building exteriors, requires application of comparative negligence principles. Section 202 mandates that safety devices be in place "as may be required and approved by the board of standards and appeals." Although the anchors on defendant's building to which an exterior window washer may attach a safety belt did not

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meet Industrial Code requirements, a violation of a regulation or ordinance is only some evidence of negligence. Statutory causes of action predicated upon violations of administrative regulations do not give rise to strict liability. Strict liability could result from the absence or inadequacy of anchors under prior versions of section 202, because there was an explicit reference to safety anchors in the language of the statute, and the absence of any safety devices was a violation of the statute itself. Labor - Safe Place to Work - Window Washer - Statutory Liability - Retrial 3. Plaintiff, an injured window washer whose first trial resulted in a verdict in his favor and whose second trial resulted in a verdict in defendant's favor, may assert a cause of action pursuant to Labor Law § 240 (1) in a third trial. Whether plaintiff can make a successful case for a violation of section 240 (1) has yet to be demonstrated since plaintiff's motion for summary judgment was initially denied. Because plaintiff's strict liability verdict at the first trial was based upon a finding of a violation of the requirements of Labor Law § 202, that verdict may not stand as a substitute for a finding of strict liability under section 240 (1). Moreover, the jury finding at the second trial, that defendant's negligence was not a proximate cause of plaintiff's injuries, has no estoppel effect upon remittal since the theory of liability under section 240 (1) involves different statutory duties and possibilities of causation that the previous juries did not consider. COUNSEL: O'Connell and Aronowitz, Albany (Cornelius D. Murray and James A. Shannon of counsel), for appellant. I. A window washer injured after falling from the third floor window of a school as a result of the defendant's failure to provide safe anchors has a cause of action under Labor Law § 240 , independent of any cause of action under Labor Law § 202. (Cruz v Bridge Harbor Hgts. Assoc., 249 AD2d 44, 96 NY2d 705; Williamson v 16 W. 57th St. Co., 256 AD2d 507; Retamal v Osborne Mem. Home Assn., 256 AD2d 506; Ojeda v Peak Janitorial Servs., 270 AD2d 322, 95 NY2d 755; Ferrari v Niasher Realty, 175 AD2d 591; Brown v Christopher St. Owners Corp., 87 NY2d 938; Rivers v Sauter, 26 NY2d 260; Koenig v Patrick Constr. Corp., 298 NY 313; Ball v State of New York, 41 NY2d 617; Cimo v State of New York, 306 NY 143.) II. The relevant legislative history clearly establishes that the Legislature had absolutely no intention of transforming Labor Law § 202 from a strict liability statute into a comparative negligence statute when it amended section 202 in 1970. (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Amo v Little Rapids Corp., 268 AD2d 712; Craft v Clark Trading Corp., 257 AD2d 886; Tomlins v Siltone Bldg. Co., 267 AD2d 947; Koenig v

Patrick Constr. Corp., 298 NY 313; Fumarelli v Marsam Dev., 92 NY2d 298; Pollard v Trivia Bldg. Corp., 291 NY 19.) III. The original jury verdict should be reinstated. Friedman, Hirschen, Miller & Campito, P.C., Schenectady (Lynn M. Blake of counsel), for defendant and third-party plaintiff-respondent. I. Regardless of how this Court construes Labor Law § 202, the judgment dismissing plaintiff's complaint should be affirmed. The jury found that plaintiff's own negligence was the sole proximate cause of his injuries, and that finding was reasonable given the evidence presented at trial. (Duda v Rouse Constr. Corp., 32 NY2d 405; Mendes v Caristo Constr. Corp., 5 AD2d 268, 6 NY2d 729; Nohejl v 40 W. 53rd Partnership, 205 AD2d 462; Weininger v Hagedorn & Co., 91 NY2d 958; Gootkin v Uniform Print. & Supply Co., 24 AD2d 448; Aviles v Crystal Mgt., 253 AD2d 607, 93 NY2d 804; Mack v Altmans Stage Light. Co., 98 AD2d 468.) II. Labor Law § 202 is a comparative negligence statute. (Long v Forest-Fehlhaber, 55 NY2d 154; Teller v Prospect Hgts. Hosp., 280 NY 456; Rocovich v Consolidated Edison Co., 78 NY2d 509.) III. Labor Law § 202 is plaintiff's exclusive remedy. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Staples v Town of Amherst, 146 AD2d 292; Board of Coop. Educ. Servs. v Goldin, 38 AD2d 267, 30 NY2d 486; Williamson v 16 W. 57th St. Co., 256 AD2d 507.) Thuillez, Ford, Gold & Johnson, LLP, Albany (Michael J. Hutter of counsel), and James P. O'Connor, New York City, for third-party defendant-respondent. I. Labor Law § 202 provides the exclusive Labor Law cause of action for plaintiff as he was injured in the course of commercial window cleaning activities involving a multistory nonresidential building subject to the section, which activities were not incident to construction, thereby precluding a cause of action under Labor Law § 240 (1). (Narducci v Manhasset Bay Assoc., 96 NY2d 259; Koenig v Patrick Constr. Corp., 298 NY 313; Connors v Boorstein, 4 NY2d 172; Brown v Christopher St. Owners Corp., 87 NY2d 938; Terry v Young Men's Hebrew Assn., 78 NY2d 978; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Wingert v Krakauer, 76 App Div 34; Butler v Townsend, 126 NY 105; Kimmer v Weber, 151 NY 417; Stewart v Ferguson, 164 NY 553.) II. Labor Law § 202 is a negligence-based statute and not an absolute liability statute, requiring proof of a violation of a regulation promulgated pursuant to its rule-making delegation, which violation constitutes some proof of negligence, and under which plaintiff's comparative negligence is to be considered. (Schumer v Caplin, 241 NY 346; Pollard v Trivia Bldg. Corp., 291 NY 19; Kindga v Noyes Co., 260 NY 521; Teller v Prospect Hgts. Hosp., 280 NY 456; Gonzalez v Concourse Plaza Syndicates, 31 AD2d 401; Durham v Metropolitan Elec. Protective Assn., 27 AD2d

Page 12

818, 18 NY2d 433; Hunter v 1001 Tenants Corp., 16 Misc 2d 582; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Schmidt v Merchants Despatch Transp. Co., 270 NY 287.) III. Plaintiff has not established defendant's liability as a matter of law under his alleged Labor Law § 240 (1) and Labor Law § 202 causes of action as pleaded. (Aviles v Crystal Mgt., 253 AD2d 607; Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630; Anderson v Schul/Mar Constr. Corp., 212 AD2d 493; J.R. Loftus, Inc. v White, 85 NY2d 874; Biener v City of New York, 47 AD2d 520; Bacon v Celeste, 30 AD2d 324; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Weininger v Hagedorn & Co., 91 NY2d 958.) IV. The judgment dismissing the complaint should be affirmed, based upon the verdict in the second trial which found that plaintiff's own negligence was the proximate cause of his injuries. JUDGES: Opinion by Judge Ciparick. Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur. Judge Graffeo took no part. OPINION BY: CIPARICK OPINION [*449] [***492] [**1137] Ciparick, J. The two issues to be resolved on this appeal are first, whether an injured window cleaner's claims under Labor Law § 202 and Labor Law § 240 (1) can coexist, and second, whether a violation of Labor Law § 202, which gives a cause of action to persons injured while cleaning windows and building exteriors, results in strict liability or comparative negligence. We conclude that plaintiff can assert claims under both Labor Law § 202 and Labor Law § 240 (1), and that Labor Law § 202 requires application of comparative negligence principles. Keith Bauer was a window washer employed by third-party defendant Environmental Service Systems (ESS). In October 1992, defendant Female Academy of the Sacred Heart hired ESS to clean windows, including the third floor exterior windows, of a building located on its campus in Albany. As is sometimes the case with older buildings, the exterior portions of the windows were to be cleaned using the belt-and-anchor method, meaning that a window cleaner wears a safety belt through which an adjustable wire (or lanyard) runs, with hooks on each end. The cleaner typically hooks one end of the lanyard to one of two anchors on each side of a window while standing inside and then steps onto the window ledge, hooking the other end to the second anchor. The cleaner keeps both ends of the lanyard hooked to the anchors while washing the window. When finished, the cleaner normally detaches one hook, steps in-

side the building and then detaches the second hook. [HN1] According to current Industrial Code requirements, anchors must be round, like the openings on the hooks that clip onto them (see, 12 NYCRR 21.13). The parties do not dispute that the anchors outside the third floor of defendant's building were square. The openings on the hooks used by ESS were round (see, 12 NYCRR 21.11). On the day of the accident, the ESS foreman assigned plaintiff the job of cleaning the third floor exterior windows. [*450] Plaintiff was not experienced with the belt-and-anchor method. After cleaning his first window that day, plaintiff detached the left hook of his lanyard from its anchor. Then, while still standing on the window ledge, plaintiff attempted to detach the right hook, which became stuck on the square anchor. Still standing on the ledge, plaintiff jiggled the hook with the safety clip open and finally pried it free, but lost his balance and fell to the ground three stories below and was severely injured. Plaintiff commenced this action against defendant and others, alleging violations of Labor Law §§ 200, 202 and 240 (1), and common-law negligence. Defendant then commenced a third-party action against ESS seeking both contractual and common-law contribution and indemnification. After discovery, both defendant and ESS moved to dismiss all of plaintiff's causes of action except for the Labor Law § 202 claim, arguing that that section was the exclusive statutory remedy available to an injured window cleaner. Plaintiff cross-moved for summary judgment on his Labor Law § 240 (1) claim. Supreme Court denied the motions and the cross motion, [***493] [**1138] holding that plaintiff could allege alternative Labor Law causes of action, along with common-law negligence, but finding questions of fact precluding summary judgment. The Appellate Division modified by granting defendants' motions for summary judgment dismissing the Labor Law § 240 (1) claim. The court held that the Legislature did not intend actions under section 240 (1) and section 202 to be maintained simultaneously (250 AD2d 298, 301 [1998]). After plaintiff withdrew his Labor Law § 200 and common-law negligence causes of action, the case proceeded to trial on the Labor Law § 202 claim. At trial, Supreme Court granted plaintiff's motion for a directed verdict finding that the use of square anchors at defendant's building constituted a violation of Labor Law § 202 and that, because a violation of Labor Law § 202 resulted in strict liability, the only question left for the jury--other than damages--was whether defendants' negligence proximately caused plaintiff's injuries. The jury returned a verdict in plaintiff's favor and awarded damages, apportioning 80% of the fault to ESS and 20% to defendant.

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On defendants' appeal, the Appellate Division held that, although Labor Law § 202 was originally enacted as a strict liability statute, a 1970 amendment made it a comparative negligence statute by deferring to the safety standards for window cleaners set forth in regulations of the Industrial Board (275 AD2d 809, 811 [2000]). The court sent the case back for [*451] another trial on plaintiff's Labor Law § 202 claim, this time with application of comparative negligence principles. At the second trial, the jury found that, although defendant was negligent, its negligence was not a substantial factor in causing plaintiff's injuries. Plaintiff appealed, bringing up for review the two prior orders of the Appellate Division. We now modify by reinstating plaintiff's Labor Law § 240 (1) claim and remit to Supreme Court on that cause of action only. I Addressing plaintiff's Labor Law § 240 (1) cause of action, the Appellate Division held that when section 202 was enacted it offered window cleaners the "precise protection afforded other enumerated workers" under section 240 (1); that allowing claims under both sections would render section 202 "virtually useless"; and hence that the Labor Law § 240 (1) claim required dismissal (250 AD2d at 301). We disagree. The Legislature has not expressed an intention that these statutes be mutually exclusive and we see no need to imply such an intention. Indeed, inclusion of the term "cleaning" in Labor Law § 240 (1) makes that position untenable. [HN2] This Court has never prohibited assertion of alternative Labor Law claims. More importantly, the spheres of activity to which Labor Law § 202 and Labor Law § 240 (1) apply reflect their separate histories. We would be ill-advised to hold that--simply because an injured window cleaner's claim appears cognizable under both Labor Law § 202 and Labor Law § 240 (1)--one cause of action must be chosen to the exclusion of the other. [HN3] Labor Law § 202 protects people who clean windows and exterior surfaces of buildings. Among other activities, [HN4] Labor Law § 240 (1) applies to workers engaged in the "cleaning" of a building. The requirements of Labor Law § 202 apply to owners, lessees, agents and managers while strict liability under Labor Law § 240 (1) flows to owners and contractors only. Labor Law § 202 is inapplicable to multiple dwellings of six stories or less and [***494] [**1139] to nonpublic buildings, while Labor Law § 240 (1) is inapplicable to one- and two-family homes. Moreover, although Labor Law § 240 (1) covers "cleaning," it does not apply to routine household cleaning (Brown v Christopher St. Owners Corp., 87 NY2d 938 [1996]). Conversely, Labor

Law § 202 necessarily involves the periodic cleaning of windows at residences, albeit not at multiple residences less than six stories in height. Labor Law § 240 (1) has no similar requirement. The inescapable conclusion is that [HN5] while the statutes will sometimes apply to the same fact patterns, they do not in every [*452] case. The sections serve different goals, apply to different defendants and have been interpreted differently. The fact that Labor Law § 202 coverage may often overlap with Labor Law § 240 (1) coverage is not a sound reason to imply exclusivity. We find unpersuasive defendants' contention that this cause of action is unavailable since Labor Law § 240 (1) imposes obligations on defendants incompatible with those imposed by Labor Law § 202. To the extent Labor Law § 240 (1) may impose liability upon parties who, under the requirements of the Industrial Code, bear no responsibility for the provision of certain safety devices, that problem can be addressed, in appropriate circumstances, by a third-party action. Here, plaintiff may pursue his Labor Law § 240 (1) cause of action. Whether he can make a successful case for a violation of Labor Law § 240 (1) has yet to be demonstrated since Supreme Court denied plaintiff's motion for summary judgment. Because plaintiff's strict liability verdict at the first trial was based upon a finding of a violation of the requirements of a different statute-Labor Law § 202--we cannot let that verdict stand as a substitute for a finding of strict liability under Labor Law § 240 (1). Moreover, the jury finding at the second trial that defendant's negligence was not a proximate cause of plaintiff's injuries has no estoppel effect upon remittal since the Labor Law § 240 (1) theory of liability involves different statutory duties and possibilities of causation that the previous juries did not consider. Thus the case must be remitted for further proceedings. II As to the Labor Law § 202 claim, the Appellate Division was correct in holding that comparative negligence principles must be applied to plaintiff's culpable conduct. As with Labor Law § 241 (6), [HN6] statutory causes of action predicated upon violations of administrative regulations do not give rise to strict liability (see, Long v Forest-Fehlhaber, 55 NY2d 154 [1982]). For some time before it was amended in 1970, Labor Law § 202 required that owners, lessees and others responsible for public buildings install and maintain anchors on all windows. 1 This mandate was removed in 1970 and replaced by language [*453] that referred exclusively to the requirements of the Board of Standards and Appeals (L 1970, ch 822). 2 Thus, whereas [***495] [**1140] the absence or inadequacy of anchors may in

Page 14

the past have constituted a direct violation of a specific requirement contained in the statute, after 1970 any particular safety standard required reference to the Industrial Code. 1 Labor Law § 202 formerly stated that the "owner, lessee, agent and manager of every public building where the windows are cleaned from the outside shall install and maintain anchors on all windows of such building or provide other safe means for the cleaning of the windows of such building as may be required and approved by the board of standards and appeals" (L 1955, ch 379). 2 Labor Law § 202 [HN7] currently states that the "owner, lessee, agent and manager of every public building and every contractor involved shall provide such safe means for the cleaning of the windows and of exterior surfaces of such building as may be required and approved by the board of standards and appeals" (L 1970, ch 822). We have held that a violation of a regulation or ordinance is only some evidence of negligence (see, Schumer v Caplin, 241 NY 346, 351 [1925]; Teller v Prospect Hgts. Hosp., 280 NY 456, 460 [1939]; see also, Elliott v City of New York, 95 NY2d 730 [2001]). As we noted in Long, the rule imposing strict liability only when there has been a violation of a statute is "reinforced by the principle, long and firmly established in New York, that [HN8] the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is merely some evidence which the jury may consider on the question of defendant's negligence" (55 NY2d at 160 [citations and internal quotations omitted]). Thus our cases determining whether a particular rule violation results in a finding of negligence per se or is merely some evidence of negligence are also relevant to determining when such violations result in strict liability versus comparative negligence. In Schumer v Caplin (241 NY 346 [1925]), a case that predated Labor Law § 202, plaintiff window cleaner sought to hold defendant property owner liable for the absence of anchors as required by the Industrial Code. We observed that the "violation of a statute under certain circumstances may of itself establish negligence. Not so, however, with a rule or ordinance." (241 NY at 351.) Likewise, in Teller v Prospect Hgts. Hosp. (280 NY 456 [1939]), a case involving a version of Labor Law § 202 quite similar to the current statute, 3 plaintiff window cleaner sought to establish defendant's negligence through an alleged violation of the statute. We rejected the argument, [*454] holding that the absence of anchors violated the requirements of the Industrial Code, to

which the statute referred, not the statute itself which contained no mention of anchors. "The statute does not in terms provide that anchors shall be attached to the windows of the building nor does it provide any particular device or contrivance that shall be provided to make it safe for the window washer to clean the window from the outside. We are required to look to the Industrial Code * * * to learn what rules of the Industrial Board are applicable, what means have been required by the rules of the Industrial Board to be furnished and what devices have been or may be approved for the safety of the person cleaning windows. * * * "Violation of a rule of the Industrial Board, however, constitutes merely some evidence which the jury may consider on the question of defendant's negligence, along with other evidence in the case which bears on that subject" (Teller, [***496] [**1141] 280 NY at 459-461 [citations omitted]). That distinction is material. As we explained in Schumer: "[HN9] The Constitution of the State commits to the Legislature alone the power to enact a statute. [HN10] It can give to or confer upon a commission, officer, board or municipality the power to make rules and ordinances governing the administration of their respective affairs. * * * Under [Labor Law] sections 52-a and 52-b, any rule adopted by the Commission may be suspended, modified or varied, depending upon conditions. This cannot be done with a statute. A constitutional statute, once passed, cannot be changed or varied according to the whim or caprice of any officer, board or individual. It remains fixed until repealed or amended by the Legislature" (Schumer, 241 NY at 351). 3 That version of Labor Law § 202 required owners and others to "provide, equip and maintain approved safety devices on all windows [and] * * * shall not require, permit, suffer or allow any window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the industrial board" (L 1937, ch 84, § 2). Thus, under the prior, 1942, version of Labor Law § 202, strict liability could result from the absence or inadequacy of anchors because that was an explicit requirement of the [*455] statute. In addition, to the extent that the 1937 version of section 202 required that approved safety devices be supplied and maintained, and that no window cleaning be done unless means were

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provided to do such work safely, proof that no safety devices at all were provided could form the basis for strict liability (as well as a finding of negligence per se). That is so because--unlike the current version of the statute--the absence of any safety devices was a violation of the statute itself (see, Teller, 280 NY at 460; Pollard v Trivia Bldg. Corp., 291 NY 19 [1943]). Contrary to plaintiff's assertion, Koenig v Patrick Constr. Corp. (298 NY 313, 318 [1948]) did not hold that Labor Law § 202 was a strict liability statute. 4 There, a violation of the statute was established by the total absence of devices, not the absence or inadequacy of a device described only in the Industrial Code. 4 In making the observation that contributory negligence would not be a defense to a Labor Law § 202 cause of action, Koenig cited to Pollard v Trivia Bldg. Corp. (291 NY 19 [1943]). In Pollard, however, all parties "stipulated that no safety devices of any kind, whether or not spe-

cified in the statute or in the Industrial Code, were provided by the owner or by anyone else" (291 NY at 23 [emphasis added]). Thus, we agree with the Appellate Division that Labor Law § 202 is a comparative negligence, not a strict liability, statute. This cause of action having been properly tried to conclusion under principles of comparative negligence at the second trial need not be tried again. Accordingly, the judgment appealed from and orders of the Appellate Division brought up for review should be modified, without costs, by reinstating the Labor Law § 240 (1) cause of action only and remitting to Supreme Court for further proceedings as to that cause of action and, as so modified, affirmed. Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur; Judge Graffeo taking no part. Judgment appealed from and orders of the Appellate Division brought up for review modified, etc.

3 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 Mark G. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. Martin A. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. Dakinya B. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. Frances F. et al., Appellants-Respondents, v. Barbara J. Sabol, Individually and as Administrator of the New York City Human Resources Administration and as Commissioner of the New York City Department of Social Services, et al., Respondents-Appellants. No. 96 COURT OF APPEALS OF NEW YORK 93 N.Y.2d 710; 717 N.E.2d 1067; 695 N.Y.S.2d 730; 1999 N.Y. LEXIS 2106 April 28, 1999, Argued August 31, 1999, Decided PRIOR HISTORY:

Cross appeals, by permission of

the Appellate Division of the Supreme Court in the First

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Judicial Department, from an order of that Court, entered June 23, 1998, which (1) affirmed an order of the Supreme Court (Walter B. Tolub, J.; opn 169 Misc 2d 242), entered June 3, 1996 in New York County, granting a motion by defendants for leave to amend their answer to the intervening complaint of the Bronx Public Administrator to assert the affirmative defense of the Statute of Limitations and for summary judgment thereon dismissing all causes of action of the Public Administrator on behalf of the estate of Alan G., to the extent of dismissing, with prejudice, the first, third, fifth and seventh causes of action sounding in wrongful death, (2) affirmed an order of said Supreme Court, entered June 28, 1996 in New York County, granting a motion by defendants to reargue the court's decision, dated May 17, 1996, which had held that the personal injury claims asserted by the estate of Alan G. related back to the commencement of the action by his siblings and were timely interposed and, upon reargument, modified its decision to reflect that the estate's personal injury claims relate back to April 1991 when the G. children moved to intervene in the pending actions and were timely interposed, (3) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 3, 1996, in the G. family action, granting a motion by defendants for partial summary judgment and dismissing, with prejudice, the claims in the second amended complaint, the intervening complaint of Mark, Kevin, Steven and Susan G., and the intervening complaint of the Bronx Public Administrator on behalf of the estate of Alan G., except the eighteenth cause of action in which Mark, Kevin, Steven and Susan G. allege violations of Social Services Law § 409 and § 411 owing to defendants' alleged failure to promulgate a plan as mandated by the Social Services Law, the twentieth and twenty-first causes of action in which plaintiffs Mark, Kevin, Steven and Susan G. allege violations of article XVII of the State Constitution based on defendants' alleged failure to promulgate a plan mandated by the Social Services Law, and the first, second, third and fourth causes of action in the intervening complaint of the Bronx Public Administrator in which he alleges violations of Social Services Law § 409 and § 411 et seq., and article XVII of the State Constitution based solely on defendants' alleged failure to promulgate a plan, conduct investigations, and provide services in the time and manner mandated by the Social Services Law; the modification consisted of further granting defendants' motion and dismissing plaintiffs' claims insofar as they allege violations of Social Services Law § 409 and article XVII of the State Constitution, (4) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 11, 1996 in New York County, granting a motion by defendants for partial summary judgment and dismissing, with prejudice, the claims in the second amended complaint, except the claim in the tenth cause

of action in which plaintiffs Martin, Bill, Laura and Vincent A. allege violations of Social Services Law § 409 and article XVII of the State Constitution based upon defendants' alleged failure to promulgate a plan mandated by the Social Services Law; the modification consisted of further granting defendants' motion and dismissing plaintiffs' claims under the tenth cause of action, insofar as they allege violations of Social Services Law § 409 and article XVII of the State Constitution, (5) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 9, 1996 in New York County, granting a motion by defendants for partial summary judgment and dismissing, with prejudice, the B. family's claims in the second amended complaint, except the claims alleging violations of Social Services Law § 409 and article XVII of the State Constitution based on defendants' alleged failure to promulgate a plan mandated by the Social Services Law; the modification consisted of further granting defendant's motion and dismissing plaintiffs' claims under the tenth and fourteenth causes of action, insofar as they allege violations of Social Services Law § 409 and article XVII of the State Constitution, and (6) modified, on the law, and, as modified, affirmed an order of said Supreme Court, entered July 9, 1996 in New York County, granting defendants' motion for partial summary judgment and dismissing, with prejudice, the claims in the second amended complaint, except the seventeenth cause of action in which Frances and John F. allege violations of Social Services Law § 409 based upon defendants' alleged failure to promulgate a plan mandated by the Social Services Law; the modification consisted of further granting defendants' motion and dismissing plaintiffs' claims insofar as they allege violations of Social Services Law § 409 et seq. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the orders of the Supreme Court, entered on June 3 and June 28, 1996 and which modified the orders of said court entered on July 3, July 9, and July 11, 1996, properly made?" Mark G. v Sabol, 247 AD2d 15, modified. s. Corp., 250 AD2d 797, modified. affirmed. Martin A. v Sabol, 247 AD2d 15, modified. Dakinya B. v Sabol, 247 AD2d 15, modified. Frances F. v Sabol, 247 AD2d 15, modified. DISPOSITION: Order modified, without costs, by dismissing the remaining causes of action and, as so modified, affirmed. Certified question answered in the negative. CASE SUMMARY:

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scheme. PROCEDURAL POSTURE: Appeal from the order of the Appellate Division (New York), which on defendants' motion for summary judgment, dismissed some of plaintiffs' causes of action for money damages as a result of abuse or neglect that plaintiffs suffered in their homes or foster homes. OVERVIEW: Plaintiffs are children who asserted that they were dependent upon the child welfare system and that they suffered abuse or neglect in their homes or foster homes. Plaintiffs sought money damages from defendants in multiple causes of action under a variety of theories. Plaintiffs withdrew their claims against the State, along with the class certification and injunctive relief. Defendants filed a motion for summary judgment which was treated by the trial court as a motion to dismiss which was partially granted. On appeal the court modified the order by dismissing the remaining causes of action for substantive due process and common law torts with leave to amend, and as modified, affirmed, because plaintiffs failed to sufficiently plead a cause of action. OUTCOME: Order modified by dismissing plaintiffs remaining causes of action for substantive due process and common law torts with leave to amend, and as modified, affirmed, because plaintiffs failed to sufficiently plead a cause of action. CORE TERMS: money damages, foster care, social services, common-law, right of action, preventive, child welfare, causes of action, entitlement, child abuse, pleaded, placement, failures to provide, funding, foster, child welfare, foster homes, foster care, provide services, enforcement mechanisms, protective services, deliberate indifference, maltreatment, monitoring, prisoner, replead, child protective service, provides immunity, process right, professional judgment LexisNexis(R) Headnotes

Civil Procedure > Remedies > Damages > Monetary Damages Governments > Legislation > Statutory Remedies & Rights [HN1] In determining whether a private right of action for money damages exists for violation of a New York State statute, the courts have established the following three-part test: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative

Governments > Legislation > Statutory Remedies & Rights [HN2] Any person, official, or institution participating in good faith in the providing of a service pursuant to N.Y. Soc. Serv. Law § 424, the making of a report, the taking of photographs, or the removal or keeping of a child pursuant to this title shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. N.Y. Soc. Serv. Law § 419. Constitutional Law > Substantive Due Process > General Overview [HN3] Substantive due process implicates the essence of state action rather than its modalities. Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > General Overview Constitutional Law > Substantive Due Process > General Overview [HN4] Procedural due process differs from substantive due process by focusing not on what a person has been deprived of, but rather on how the deprivation was accomplished. Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > General Overview [HN5] No amount of procedure can justify the wrongful denial of an entitlement. Moreover, merely asserting a denial of a statutory entitlement does not make out a claim of procedural due process. Civil Rights Law > Prisoner Rights > Medical Treatment Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment [HN6] The State owes a duty to those whom it has placed in its custody, so that when a prisoner demonstrates that the State exhibited deliberate indifference to the prisoner's medical needs, the Constitution's guarantees against cruel and unusual punishment are violated. Constitutional Law > Substantive Due Process > General Overview Criminal Law & Procedure > Postconviction Proceed-

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ings > Imprisonment [HN7] People who are in the State's custody are dependent on the government for their basic needs.

ute gives no hint of any private enforcement remedy for money damages, one should not be imputed.

Constitutional Law > Substantive Due Process > General Overview Public Health & Welfare Law > Social Services > Institutionalized Individuals > Confinement Conditions [HN8] A person involuntarily committed and thereby dependent on the government for basic needs was entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. As to persons so confined the State owes a duty to accord such services as are necessary to insure their reasonable safety. In such a setting an actionable claim is made out if and when a decision by the State through its professional administrators with respect to such services is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

2. In four similar actions against New York City child welfare officials in which plaintiffs assert that they were dependent on defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes, plaintiffs have no claims for money damages under title 6 of article 6 of the Social Services Law ("Child Protective Services"). Although plaintiffs assert an implied private right of action for money damages for defendant's alleged violations of Social Services Law § 424, which deals with the reporting of child abuse, the legislative history of Social Services Law § 419, which provides immunity from liability for those making reports of child abuse, reveals that it was intended to provide immunity only with respect to civil or criminal liability that would otherwise result from acts taken by persons, officials or institutions in a good faith effort to comply with specific provisions of the Social Services Law. There is no indication that section 419 was intended to apply to failures to provide the services required by the Social Services Law. Indeed, the Legislature specifically created a private right of action in the very next section for the willful failure of persons, officials or institutions required by title 6 to report cases of "suspected child abuse or maltreatment," and if the Legislature had intended for liability to attach for failures to comply with other provisions of title 6, it would likely have arranged for it as well. The Legislature's subsequent amendments to the enforcement scheme of title 6 specifically concentrated on the statutory scheme's enforcement provisions, which, except for the unique motivations that underlie Social Services Law § 420, have never included private rights of action for money damages.

HEADNOTES Social Services - Preventive Services - Private Right of Action for Money Damages 1. In four similar actions against New York City child welfare officials in which plaintiffs assert that they were dependent on defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes, plaintiffs have no claims for money damages under title 4 of article 6 of the Social Services Law ("Preventive Services for Children and Their Families"). While plaintiffs are members of the class for whom title 4 was enacted, and a private right of action for money damages could arguably promote the title's goals, recognition of such a private right of action would not be consistent with the legislative scheme, since the legislative approach centers on improved monitoring and on penalizing local social services districts with a loss of State reimbursement of funds for their failure to provide services or meet the standards mandated by the statute. The Legislature specifically considered and expressly provided for enforcement mechanisms, and the provisions of title 4 were enacted as the "comprehensive" means by which the statute accomplishes its objectives. Accordingly, it would be inappropriate to find another enforcement mechanism beyond the statute's already "comprehensive" scheme. If the statute were opened to private causes of action for money damages, the legislative funding scheme would be affected, and allocations of money and government resources would be rechanneled, no longer to be based on administrative judgments, but driven, at least in part, by tort law principles. Inasmuch as the stat-

Social Services - Child Protective Services - Private Right of Action for Money Damages

Social Services - Foster Care - Procedural Due Process - Failure to Provide Services 3. In four similar actions against New York City child welfare officials in which plaintiffs assert that when they were placed in foster care they remained within the ambit of defendants' custodial responsibility, that defendants were obligated to take supervisory and interventive steps to keep them free from harm, and that while they were in foster care defendants failed to accord them the protective services to which they were entitled under titles 4 and 6 of the Social Services Law, plaintiffs have not adequately pleaded a violation of procedural due process. The classic procedural due process case arises when the government acts to deny or curtail someone's life, liberty or property interest and defends its action by asserting that it employed fair procedures in furtherance of a legitimate governmental objective; however, that is

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not the case at bar. Deprivation or denial is not the governmental goal: there has been no attempt by the government to deprive the plaintiffs of a right that carries with it a predeprivation procedure. The government may not decide to deny a foster child's safety or entitlements and seek to justify the denial by showing that its processes or procedures were fair. No amount of procedure can justify the wrongful denial of an entitlement. Moreover, merely asserting a denial of a statutory entitlement does not make out a claim of procedural due process, since process is not an end in itself. Social Services - Foster Care - Substantive Due Process - Failure to Provide Services 4. In four actions against child welfare officials in which plaintiffs assert that when they were placed in foster care they remained within defendants' custodial responsibility, that defendants were obligated to take steps to keep them free from harm, and that while they were in foster care defendants failed to accord them the protective services to which they were entitled under the Social Services Law, plaintiffs have not adequately pleaded a violation of substantive due process. Although the complaints are abundant with allegations relating to defendants' failure to provide plaintiffs with family social services, the complaints did not meet either the "deliberate indifference" standard or the "professional judgment" standard, applicable to a narrow set of constitutional entitlements to basic necessities, which arose in recognition of the total dependence in which the State itself had placed certain institutionalized persons (prisoners or the mentally handicapped). There is no support for any substantive due process right to monetary redress for defendants' alleged failure to provide the array of social services claimed by plaintiffs. The crux of the complaints is defendants' alleged failure to provide services to plaintiffs' families in order to avoid foster care placement and keep them at home in a safe environment, or to minimize their stay in foster care through family rehabilitation services, thereby expediting their return to a safe home environment. However, any substantive due process rights of foster children cannot be extended to entitlement to preventive and protective services before placement in care, or to family social services during placement. The allegations of harm or denial of needed medical or other services to children while in foster care are very much incidental to the primary complaints and since plaintiffs never articulated a violation of the "professional judgment" standard of care, an independent claim for money damages for injuries in foster care based on such omissions cannot be implied. Social Services - Preventive Services - Private Right of Action for Money Damages - Common-Law Tort Claims

5. In four similar actions against New York City child welfare officials in which plaintiffs assert that they were dependent on defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes, no viable common-law claim has been pleaded. Although the parties have addressed the viability of so-called common-law tort causes of action, those causes of action were not pleaded separately, but were intertwined with a plethora of other causes of action and theories. Indeed, the complaints do not identify any common-law duties claimed to be owed plaintiffs--as distinguished from the alleged breach of other governmental responsibilities to furnish protective and preventive services, which forms the primary bases for these actions. While pleadings should be construed liberally, it would be improvident to attempt to isolate and identify any common-law claims and theories asserted on plaintiffs' behalf, and while the possibility of any such common-law claims should not be ruled out as a matter of law, it is noted that no viable common-law claim has been pleaded. Accordingly, plaintiffs are granted leave to replead. Moreover, considering that there has never been occasion to deal with the contours of a substantive component of the Due Process Clause in the context of a child welfare case, leave to replead such claims is granted. COUNSEL: Debevoise & Plimpton, New York City (Robert Goodman, David W. Rivkin, Leigh R. Schachter and Christopher G. Karagheuzoff of counsel), Mark G. Peters, Rachel H. Park, Shirim Nothenberg and Marcia Robinson Lowry for appellants-respondents. I. Plaintiffs may sue to recover damages caused by defendants' violations of the State's Social Services Law. ( Martin A. v Gross, 153 AD2d 812; Grant v Cuomo, 130 AD2d 154, 73 NY2d 820; Franklin v Gwinnett County Pub. Schools, 503 US 60; Brown v State of New York, 89 NY2d 172; County of Broome v State of New York, 129 Misc 2d 914; Sheehy v Big Flats Community Day, 73 NY2d 629; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Izzo v Manhattan Med. Group, 164 AD2d 13; Hoxie's Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207; Henry v Isaac, 214 AD2d 188.) II. Plaintiffs, while in defendants' custody, have a substantive due process right to be free from harm. Based upon the facts presented to the Court below, a jury could easily determine that defendants violated this due process right. ( Umlauf v County of Chautauqua, 132 AD2d 958, 70 NY2d 1002; Figueroa v Orange County, 158 Misc 2d 452; Doe v New York City Dept. of Social Servs., 709 F2d 782; Marisol A. v Giuliani, 929 F Supp 662; Matter of H.--M. Children, 154 Misc 2d 438, revd on other grounds sub nom. Matter of Shinice H., 194 AD2d 444; Yvonne L. v New Mexico Dept. of Human Servs., 959 F2d 883; Norfleet v Arkansas Dept. of Human Servs.,

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989 F2d 289; Camp v Gregory, 67 F3d 1286, 517 US 1244; K.H. v Morgan, 914 F2d 846; Estelle v Gamble, 429 US 97.) III. State law mandates the provision of certain services upon a finding that children are at risk of abuse or at risk of entering foster care. Since defendants made such findings, they violated plaintiffs' procedural due process rights by failing to then provide the mandated services. ( Board of Regents v Roth, 408 US 564; Town of Orangetown v Magee, 88 NY2d 41; Matter of Daxor Corp. v State of New York Dept. of Health, 90 NY2d 89; Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; Allerton Coops Tenants Assn. v Biderman, 189 AD2d 249; Marisol A. v Giuliani, 929 F Supp 662; Taylor v Ledbetter, 818 F2d 791; Kraemer v Heckler, 737 F2d 214; Mayer v Wing, 922 F Supp 902; Grant v Cuomo, 73 NY2d 820.) IV. Plaintiffs have a private right of action for defendants' admitted violations of the Federal child welfare laws. ( Suter v Artist M., 503 US 347; Wilder v Virginia Hosp. Assn., 496 US 498; Wright v Roanoke Redevelopment & Hous. Auth., 479 US 418; Winston v Children & Youth Servs., 948 F2d 1380, 504 US 956; Timmy S. v Stumbo, 916 F2d 312; L. J. v Massinga, 838 F2d 118, 488 US 1018; Lynch v Dukakis, 719 F2d 504; Marisol A. v Giuliani, 929 F Supp 662; Doe v Chiles, 136 F3d 709; Laird v Ramirez, 884 F Supp 1265.) V. Plaintiffs had a "special relationship" with defendants and may recover for defendants' negligent failure to provide for their safety. ( Sorichetti v City of New York, 65 NY2d 461; Florence v Goldberg, 44 NY2d 189; Boland v State of New York, 218 AD2d 235; Raucci v Town of Rotterdam, 902 F2d 1050; Cuffy v City of New York, 69 NY2d 255; De Long v County of Erie, 60 NY2d 296; Martin A. v Gross, 153 AD2d 812.) Michael D. Hess, Corporation Counsel of New York City (Fay Ng and Pamela Seider Dolgow of counsel), for respondents-appellants. I. The Court below properly held that plaintiffs do not have a private right of action to seek damages for the City's alleged failure to provide preventive and protective services under title 4 and title 6 of article 6 of the New York Social Services Law. ( Sheehy v Big Flats Community Day, 73 NY2d 629; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Carrier v Salvation Army, 88 NY2d 298; Henry v Isaac, 214 AD2d 188; Doe v Roe, 190 AD2d 463; Izzo v Manhattan Med. Group, 164 AD2d 13; Grant v Cuomo, 73 NY2d 820; Klostermann v Cuomo, 61 NY2d 525; Varela v Investors Ins. Holding Corp., 81 NY2d 958; Van Emrick v Chemung County Dept. of Social Servs., 220 AD2d 952.) II. The Court below properly found that the City defendants did not have a special duty to protect plaintiffs from abuse by their parents or other third parties while they were not in foster care. ( Cuffy v City of New York, 69 NY2d 255; Mastroianni v County of Suffolk, 91 NY2d 198; Boland v State of New York, 218

AD2d 235.) III. The Court below properly dismissed plaintiffs' claims under the New York Social Services Law. Further, plaintiffs' claims alleging that defendants failed to protect them from parental abuse must fail because plaintiffs have not established the existence of a special relationship. Assuming, arguendo, that plaintiffs could pursue their claims under the Social Services Law or under common-law tort principles, defendants are immune from liability for any injuries resulting from actions taken in the exercise of their discretion. ( Tango v Tulevech, 61 NY2d 34; Mon v City of New York, 78 NY2d 309, 1124; Grant v Cuomo, 130 AD2d 154.) IV. Plaintiffs' 42 USC § 1983 claims alleging violations of their substantive and procedural due process rights were properly dismissed. ( Lowrance v Achtyl, 20 F3d 529; DeShaney v Winnebago County Dept. of Social Servs., 489 US 189; Baby Neal v Casey, 821 F Supp 320; K.H. v Morgan, 914 F2d 846; Del A. v Roemer, 777 F Supp 1297; B.H. v Johnson, 715 F Supp 1387; Eric L. v Bird, 848 F Supp 303; Youngberg v Romeo, 457 US 307; Child v Beame, 412 F Supp 593; Black v Beame, 419 F Supp 599, 550 F2d 815.) V. The Court below properly dismissed plaintiffs' claims brought pursuant to 42 USC § 1983 alleging violations of section 5106 of the Child Abuse Prevention and Treatment Act (42 USC § 5101 et seq.) and section 671 (a) (16), and section 675 (5) of the Adoption Assistance Act (42 USC § 671 et seq.). ( Vermont Dept. of Social & Rehabilitation Servs. v Bowen, 798 F2d 57, 479 US 1064; Wilder v Virginia Hosp. Assn., 496 US 498; Golden State Tr. Corp. v City of Los Angeles, 493 US 103; Wright v City of Roanoke Redevelopment & Hous. Auth., 479 US 418; Suter v Artist M., 503 US 347; Eric L. v Bird, 848 F Supp 303; LaShawn A. v Barry, 69 F3d 556, 74 F3d 303, 87 F3d 1389; Harris v James, 127 F3d 993; Doe v District of Columbia, 93 F3d 861.) VI. Applying the foregoing legal principles to the pleadings and the undisputed facts in this case, this Court should affirm so much of the Appellate Division order as dismissed plaintiffs' claims. On the City's cross appeal, this Court should dismiss all remaining claims and dismiss the complaints in their entirety. ( Hambsch v New York City Tr. Auth., 63 NY2d 723; Mon v City of New York, 78 NY2d 309; Boland v State of New York, 176 Misc 2d 625; Suter v Artist M., 503 US 347.) VII. Any claims of the Bronx Public Administrator, asserted on behalf of the estate of Alan G., which are not dismissed for the reasons stated in points I through VI should be dismissed on the City defendants' cross appeal as timebarred. ( Owens v Okure, 488 US 235; Odell v Dalrymple, 156 AD2d 967; Clausell v Ullman, 141 AD2d 690; Laudico v Sears, Roebuck & Co., 125 AD2d 960; Insurance Co. v Hellmer, 212 AD2d 665; Matter of Greater N. Y. Health Care Facilities Assn. v DeBuono, 91 NY2d 716; Key Intl. Mfg. v Morse/Diesel, Inc., 142 AD2d 448; MTB Banking Corp. v Consolidated Edison

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Co., 197 AD2d 479; State of New York v General Elec. Co., 199 AD2d 595; Fineshewitz v East Riv. Sav. Bank, 187 Misc 874.) JUDGES: Chief Judge Kaye and Judges Bellacosa, Levine, Ciparick and Wesley concur with Judge Rosenblatt; Judge Smith concurs in result in a separate opinion. OPINION BY: Rosenblatt OPINION [*718] [**1069] [***732] Rosenblatt, J. This appeal involves actions against New York City child welfare officials. Plaintiffs are 11 children (and the estate of a twelfth) from four families. They assert that they were dependent upon defendants' child welfare system and that they suffered abuse or neglect in their homes or foster homes. These actions were originally part of a proposed class action suit seeking injunctive relief and damages. Plaintiffs, however, withdrew their claims against the State, along with their request for class certification and injunctive relief. In seeking to hold defendants liable under the remaining claims, plaintiffs in a series of complaints have asserted multiple causes of action under a variety of theories. [**1070] [***733] At issue before us is the resolution of defendants' motions, denominated as motions for summary judgment. They are more appropriately characterized as motions to dismiss the pleadings for failure to state a cause of action. Despite contrary nomenclature, the courts below in actuality addressed plaintiffs' allegations in that context, as do we (see, Guggenheimer v Ginzburg, 43 NY2d 268, 274-275). New York State Social Services Law Plaintiffs make claims for money damages under two distinct titles of this law: title 4 of article 6 ("Preventive Services for Children and Their Families") and title 6 of article 6 ("Child Protective Services"). [*719] [HN1] In determining whether a private right of action for money damages exists for violation of a New York State statute, this Court has established the following three-part test: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; "(2) whether recognition of a private right of action would promote the legislative purpose; and "(3) whether creation of such a right would be consistent with the legislative scheme" ( Sheehy v Big Flats Community Day, 73 NY2d 629, 633). Title 4 of Article 6 of the Social Services Law

As a part of the Child Welfare Reform Act of 1979 (L 1979, chs 610, 611), the Legislature enacted this provision. Its purpose is to: "delineate and implement a State policy of permanent homes for children who are currently in foster care or at risk of entering foster care by --placing increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family; --providing for increased monitoring of the foster care system with safeguards against abuse and for penalties where violations are found to ensure that the needs of children in foster care are appropriately met; and, --making necessary changes in adoptive services to provide appropriate homes when adoption is needed" (Governor's Mem, 1979 McKinney's Session Laws of NY, at 1814 [emphasis added]). The Legislature declared its intention to implement title 4 by providing added funding for preventive services (see, L 1979, ch 610, § 1). It also amended related titles to establish utilization review standards for increased monitoring of children to assure that title 4's preventive services are carried out (see, L 1979, ch 611, § 7). Furthermore, it imposed fiscal penalties on noncompliant agencies (see, L 1979, ch 610, §§ 7, 9). The history of title 4 establishes that the Legislature intended to create financial incentives for local social services districts to provide preventive services. As Senator Joseph [*720] Pisani stated in his sponsoring memorandum: "This bill addresses these problems in a comprehensive manner. ... Furthermore, the bill holds districts accountable for meeting these standards or suffer loss of reimbursement" (1979 NY Legis Ann, at 353). Similarly, Assemblyman Howard Lasher in his memorandum in support of the bill stated: "The purpose of this bill is to restructure the financing and management of child welfare services in New York State by establishing a new funding mechanism for services which are alternatives to foster care, strengthening accountability mechanisms for foster care, development and use of standardized assessment and placement tools, increased State monitoring of the necessity and appropriateness of foster placement and limits on the availability of foster care [**1071] [***734] reimbursement" (1979 NY Legis Ann, at 355). We agree with plaintiffs that they are members of the class for whom title 4 was enacted, and that a private right of action for money damages could arguably promote the title's goals. However, the third factor--the one this Court has deemed the most critical (see, Carrier v

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Salvation Army, 88 NY2d 298)--is not satisfied. Recognition of such a private right of action under title 4 would not be consistent with the legislative scheme. The legislative approach centered on improved monitoring and on penalizing local social services districts with a loss of State reimbursement of funds for their failure to provide services or meet the standards mandated by the statute. The Legislature specifically considered and expressly provided for enforcement mechanisms. As Senator Pisani's sponsoring memorandum makes clear, the provisions of title 4 were enacted as the "comprehensive" means by which the statute accomplishes its objectives. Given this background, it would be inappropriate for us to find another enforcement mechanism beyond the statute's already "comprehensive" scheme. The statute's goals are advanced by legislative action in providing and allocating appropriate funding. If the statute were opened to private causes of action for money damages the funding scheme would be affected, perhaps significantly. Allocations of money and government resources would be rechanneled, no longer to be based on administrative judgments, but driven, at least in part, by tort law principles. The Legislature has the authority to determine whether opening the statute to [*721] private tort law enforcement would advance the objectives of child and family welfare or skew the distribution of resources. Considering that the statute gives no hint of any private enforcement remedy for money damages, we will not impute one to the lawmakers. Title 6 of Article 6 of the Social Services Law This enactment was one of several legislative initiatives to counter the breakdown in the child protective system that was brought to the Legislature's attention in the late 1960s (Report of Assembly Select Comm on Child Abuse, at ii [1972]). The purpose of title 6, as stated in its preamble, is: "to encourage more complete reporting of suspected child abuse and maltreatment and to establish in each county of the state a child protective service capable of investigating such reports swiftly and competently and capable of providing protection for the child or children from further abuse or maltreatment and rehabilitative services for the child or children and parents involved" (Social Services Law § 411). In seeking to encourage early reporting of child abuse, the Legislature determined that immunity from civil and criminal liability was indispensable. Protection from liability would remove "the fear of an unjust lawsuit for attempting to help protect a child" (Report of Assembly Select Comm on Child Abuse, at 33 [1972]; see also, Budget Report on Bills, Bill Jacket, L 1973, ch 1039 ["Requires designated persons to report suspected cases

of child abuse or maltreatment immediately ... (and) permits any person to make such a report and provides immunity for all acting in good faith."]). Section 419, as it existed at the relevant time, contained the following immunity provision:[HN2] "Any person, official, or institution participating in good faith in the providing of a service pursuant to section [424 of the Social Services Law], the making of a report, the taking of photographs, or the removal or keeping of a child pursuant to this title shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions" (emphasis added). [**1072] [***735] Plaintiffs assert an implied private right of action for money damages for defendants' alleged violations of Social Services Law § 424. They rely on the above-quoted immunity provision [*722] of Social Services Law § 419 to support their contention that such an action exists for a failure to comply with the provisions of title 6, including Social Services Law § 424. Section 419's legislative history, however, reveals that it was intended to provide immunity only with respect to civil or criminal liability that would otherwise result from acts taken by persons, officials or institutions in a good faith effort to comply with specific provisions of the Social Services Law (see, Straton v Orange County Dept. of Social Servs., 217 AD2d 576, 577; Dagan v Brookdale Hosp. Med. Ctr., 202 AD2d 385). There is no indication that section 419 was intended to apply to failures to provide the services required by the Social Services Law. Indeed, the Legislature specifically created a private right of action in the very next section. Social Services Law § 420 provides for criminal and civil liability for the willful failure of persons, officials or institutions required by title 6 to report cases of "suspected child abuse or maltreatment." If the Legislature had intended for liability to attach for failures to comply with other provisions of title 6, it would likely have arranged for it as well. The enforcement mechanisms of title 6 have not escaped legislative review. In fact, the Legislature's subsequent amendments to the enforcement scheme of title 6 evinced an emphasis on funding mechanisms and the development of performance standards by the State Department of Social Services (see, L 1988, ch 707; L 1995, ch 83, §§ 229, 231; L 1998, ch 58, pt C, § 87; see also, Mem of State Executive Dept, 1988 McKinney's Session Laws of NY, at 2138-2140). The Legislature specifically concentrated on the statutory scheme's enforcement provisions, which, except for the unique motivations that underlie Social Services Law § 420, have never included private rights of action for money damages. In sum, we

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conclude that a private right of action for money damages cannot be fairly implied from title 6 of the Social Services Law (see, Sheehy v Big Flats Community Day, 73 NY2d, at 633, supra). Plaintiffs' Due Process Claims Plaintiffs assert that when they were placed in foster care they remained within the ambit of the defendants' custodial responsibility, where defendants were obligated to take supervisory and interventive steps to keep them free from harm. They further allege that while they were in foster care defendants failed to accord them the protective services to [*723] which they were entitled under titles 4 and 6 of article 6 of the Social Services Law. Based on these claims, plaintiffs contend that they have been denied due process of law. Plaintiffs apparently do not include non-foster care children within this claim. 1 1 See, DeShaney v Winnebago County Dept. of Social Servs., 489 US 189, 201. Plaintiffs have asserted violations of the substantive component of the Due Process Clause of the Fourteenth Amendment of the United States Constitution--sometimes called substantive due process--as well as violations of the procedural component of the Due Process Clause. In general, procedural due process claims challenge the procedures used by the government in effecting a deprivation of a right, whereas substantive due process claims challenge the action itself. 2 Thus, [HN3] [**1073] [***736] substantive due process implicates "the essence of state action rather than its modalities." 3 In one commentator's formulation, "[p]rocedural [HN4] due process differs from substantive due process by focusing not on what a person has been deprived of, but rather on how the deprivation was accomplished." 4 2 See, Griffin v Strong, 983 F2d 1544, 1547 (10th Cir); Sierra Lake Reserve v City of Rocklin, 938 F2d 951, 956-957 (9th Cir), cert granted, judgment vacated and case remanded 506 US 802, opn vacated in part 987 F2d 662. 3 See, Amsden v Moran, 904 F2d 748, 753 (1st Cir), cert denied 498 US 1041. 4 Note, Forum Non Conveniens in the Absence of an Alternative Forum, 86 Colum L Rev 1000, 1015 (1986). The classic procedural due process case arises when the government acts to deny or curtail someone's life, liberty or property interest and defends its action by asserting that it employed fair procedures in furtherance of a legitimate governmental objective (see, e.g., Schall v Martin, 467 US 253 [pretrial juvenile detention]; Vitek v Jones, 445 US 480 [prison to mental hospital transfer]; Addington v Texas, 441 US 418 [civil commitment]).

That is not the case before us. Here, deprivation or denial is not the governmental goal. This case does not involve an attempt by the government to deprive the plaintiffs of a right that carries with it a predeprivation procedure. The government may not decide to deny a foster child's safety or entitlements and seek to justify the denial by showing that its processes or procedures were fair. [HN5] No amount of procedure can justify the wrongful denial of an entitlement. Moreover, merely asserting a denial of a statutory [*724] entitlement does not make out a claim of procedural due process. As the United States Supreme Court held in Olim v Wakinekona, "[p]rocess is not an end in itself" (461 US 238, 250; see also, Hewitt v Helms, 459 US 460, 469). We conclude that plaintiffs have not adequately pleaded a violation of procedural due process, and that those causes of action should be dismissed. Plaintiffs also assert violations of the substantive component of the Due Process Clause of the United States Constitution. Three United States Supreme Court cases are critical to our treatment of this issue. In Estelle v Gamble (429 US 97, 104) the Court held that [HN6] the State owes a duty to those whom it has placed in its custody, so that when a prisoner demonstrates that the State exhibited "deliberate indifference" to the prisoner's medical needs, the Constitution's guarantees against cruel and unusual punishment are violated. Although Estelle was an Eighth Amendment case, the Supreme Court has characterized the government's deliberate indifference toward the prisoner in Estelle as a violation of substantive due process (see, DeShaney v Winnebago County Dept. of Social Servs., 489 US 189, 198, n 5, supra; Whitley v Albers, 475 US 312, 326-327). Six years later, the Supreme Court in Youngberg v Romeo (457 US 307, 315) addressed the government's obligations to a person whom it committed to a facility for the mentally retarded. The Court stressed that [HN7] people who are in the State's custody are dependent on the government for their basic needs (457 US, at 324). The Supreme Court held that inasmuch as Romeo was not a prisoner, the Estelle "deliberate indifference" standard was inappropriate. The Court ruled that [HN8] Romeo--a person involuntarily committed and thereby dependent on the government for basic needs--was "entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish" (457 US, at 322). The Court stated that as to persons so confined the State owes a duty to accord [**1074] [***737] such services as are necessary to insure their reasonable safety. The litigants in Romeo also agreed that the State owed a duty to provide such persons "adequate food, shelter, clothing, and medical care" ( Youngberg v Romeo, 457 US, at

Page 24

324). In such a setting an actionable claim is made out if and when a decision by the State through its professional administrators with respect to such services "is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person [*725] responsible actually did not base the decision on such a judgment" (supra, 457 US, at 323). Estelle and Romeo are the two primary cases in which the Supreme Court recognized monetary damage claims based on the substantive component of the Due Process Clause. Neither involved children in foster care. Thereafter, in 1989, the United States Supreme Court decided DeShaney v Winnebago County Dept. of Social Servs. (489 US 189), the only case in which it touched upon the issue of substantive due process in the context of children in foster care. The Court held that a child who suffered harm while in the custody of his father has no claim based on the substantive component of the Due Process Clause. The Court, however, in a footnote, stated: "Had the State by the affirmative exercise of its power removed [the child] from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect" (489 US, at 201, n 9). The Court then cited several cases by way of illustration, but expressly disclaimed any view on the validity of that analogy. In the case before us, the original complaint was drafted before the Supreme Court decided DeShaney. It was drawn as a putative class action that included various plaintiffs, some of whom were allegedly harmed while in foster care, others while living with their parents. Plaintiffs commenced this litigation employing an array of claims designed to address numerous facets of the child welfare system and to test the availability of a host of remedies, including various forms of injunctive relief and putative class certification. The complaints had been conceived and drawn with a broad thrust that did not contemplate or take aim at the more specific and essential elements that would enable them to withstand a motion to dismiss for failure to articulate a substantive due process violation. Although the complaints are abundant with allegations relating to defendants' failure to provide plaintiffs with family social services, we are left on this appeal only with the sufficiency of the complaints insofar as they seek monetary damages. In addressing plaintiffs' claims for money damages pursuant to the substantive component of the Due Process Clause, the Appellate Division determined, and we agree, that the complaints did not meet the Estelle "deliberate indifference" standard. The Appellate Division, however, did not address the Romeo "professional judgment" standard. [*726] Even though in our view the Romeo stand-

ard is a better fit, 5 we conclude that plaintiffs have not articulated a cause of action under Romeo. In Romeo and Estelle the United States Supreme Court identified a narrow set of constitutional entitlements to basic necessities, arising out of conditions of total dependence in which the State itself had placed those institutionalized plaintiffs. Romeo and Estelle, however, do not support any substantive due process right to monetary redress for the defendants' alleged failure to provide the array of social services claimed by plaintiffs here. Moreover, the crux of the plaintiffs' complaints here is the defendants' alleged failure to provide protective and preventive services to the [**1075] [***738] plaintiffs' families in order to avoid foster care placement and keep them at home in a safe environment, or to minimize their stay in foster care through family rehabilitation services, thereby expediting their return to a safe home environment. Under DeShaney, however, any substantive due process rights of foster children cannot be extended to entitlement to preventive and protective services before placement in care, or to family social services during placement. The allegations of harm or denial of needed medical or other services to the children while in foster care are very much incidental to the foregoing primary complaints that are pleaded, and since plaintiffs never articulated a violation of the Romeo standard of care, an independent claim for money damages for injuries in foster care based on such omissions cannot be implied. Considering that this Court has never had occasion to deal with the contours of the substantive component of the Due Process Clause in the context of a child welfare case, neither the parties nor the courts below had a precedential basis on which to proceed. We therefore affirm the dismissal of those claims with leave to replead. 5 See, e.g., Kearse, Abused Again: Competing Constitutional Standards for the State's Duty to Protect Foster Children, 29 Colum J L & Soc Probs 385 (1996). Common-Law Negligence In their briefs, the parties have addressed the viability of the so-called common-law tort causes of action. These causes of action are not pleaded separately, but are intertwined with a plethora of other causes of action and theories. Indeed, the complaints do not identify any common-law duties claimed to be owed plaintiffs--as distinguished from the alleged breach of other governmental responsibility to furnish protective and [*727] preventive services, which form the primary bases for these actions. We recognize, of course, that pleadings should be construed liberally, but it would be improvident for us to attempt to isolate and identify any common-law claims

Page 25

and theories asserted on plaintiffs' behalf. Although we do not as a matter of law rule out the possibility of any such common-law claims, we conclude that no viable common-law claim has been pleaded and we therefore grant plaintiffs leave to replead. The parties' remaining contentions are without merit. Accordingly, the order of the Appellate Division should be modified, without costs, by dismissing the remaining causes of action, and, as so modified, affirmed. The certified question should be answered in the negative. CONCUR BY: Smith CONCUR Smith, J. (Concurring). I concur generally with the decision of the majority which gives the plaintiffs an opportunity to replead the substantive due process and common-law causes of action. Because of the myriad allegations in the complaints, however, I would not foreclose an opportunity for the plaintiffs to plead a new cause of action, alleging violations of specific provisions of the Adoption Assistance and Child Welfare Act of 1980 (42 USC §§ 620-628, 670-679a) and of the Federal Child Abuse Prevention and Treatment Act (CAPTA; 42 USC §§ 5101-5106). Permitting the repleading of a violation of specific statutory provisions is consistent with the statements of the Supreme Court of the United States

in Blessing v Freestone (520 US 329, 345, 346) that "[w]e do not foreclose the possibility that some provisions of Title IV-D [provisions of the Social Security Act which generally deal with cooperative State and Federal child welfare programs] give rise to individual rights" and "we leave open the possibility that Title IV-D may give rise to some individually enforceable rights" (see, Marisol A. v Giuliani, 929 F Supp 660, affd [appeal of class certification only] 126 F3d 372). While I agree that the common-law claims must be repleaded, particularly to clarify plaintiffs' contentions, I do not agree that no viable common-law claims have been stated (see, Bartels v Westchester County, 76 AD2d 517; see also, e.g., Mammo v State, 138 Ariz 528, [***739] [**1076] 675 P2d 1347; Department of Health & Rehabilitative Servs. v Yamuni, 529 So 2d 258 [Fla]; Brodie v Summit County Children Servs. Bd., 51 Ohio St 3d 112, 554 NE2d 1301; Jensen v Anderson County Dept. of Social Servs., 304 SC 195, 403 SE2d 615; Gonzalez v Avalos, 866 SW2d 346 [*728] [Tex]; Sabia v State, 164 Vt 293, 669 A2d 1187; Turner v District of Columbia, 532 A2d 662 [DC App]). While this litigation is old, it is important that the claims of the plaintiffs against the municipality be clearly focused. Chief Judge Kaye and Judges Bellacosa, Levine, Ciparick and Wesley concur with Judge Rosenblatt; Judge Smith concurs in result in a separate opinion. Order modified, etc.

4 of 55 DOCUMENTS

Analysis As of: Sep 10, 2008 [*1] John Uribe, et al., Plaintiffs-Respondents, v Fairfax, L.L.C., etc., et al., Defendants/Third-Party Plaintiffs-Appellants, Michael Garstin, Third-Party Defendant-Respondent. [And a Second Third-Party Action] 2885, 104397/04, 590627/05, 591111/05 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2008 NY Slip Op 1623; 48 A.D.3d 336; 851 N.Y.S.2d 545; 2008 N.Y. App. Div. LEXIS 1603 February 26, 2008, Decided February 26, 2008, Entered

Page 26

NOTICE: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS. PRIOR HISTORY: Uribe v. Fairfax, 2007 N.Y. App. Div. LEXIS 8940 (N.Y. App. Div. 1st Dep't, Aug. 9, 2007) CASE SUMMARY: PROCEDURAL POSTURE: Defendant owners appealed an order by the New York County Supreme Court (New York) that granted defendant tenant's motion for summary judgment and denied the owners' cross-motion for summary judgment on the issue of their entitlement to common-law indemnification. OVERVIEW: Plaintiff worker was injured when he fell from a ladder while in the employ of a contractor hired by the tenant to perform alteration work to the tenant's apartment in the owners' building. When the worker was granted partial summary judgment on his Labor Law § 240(1) claim against the owners, the owners sought to hold the tenant liable based on the tenant's breach of a lease provision requiring the owners' prior written consent to the work, and discussions between the tenant and the contractor regarding which phase of the job to start first. The appellate court found that dismissal of the third-party complaint was proper since the tenant was not in the apartment when the work was performed, gave the contractor no instructions regarding how to do the work, and did not supply any equipment or tools. The tenant exercised no supervisory authority or control over the job, and his alleged violation of the lease was not relevant to the issue of common-law indemnification since the accident was not attributable to negligence by the tenant. The tenant's alleged conversations with the contractor regarding which tasks to perform first were insufficient to establish control over the work. OUTCOME: The order was unanimously affirmed. CORE TERMS: contractor, summary judgment, indemnification, common-law, apartment, lease COUNSEL: Thomas D. Hughes, New York (David D. Hess of counsel), for appellants.

Hoey, King, Toker & Epstein, New York (Robert O. Pritchard, Jr., of counsel), for Michael Garstin, respondent. JUDGES: Lippman, P.J., Tom, Nardelli, Catterson, Moskowitz, JJ. OPINION [**336] [***546] Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 1, 2006, which, insofar as appealed from, granted the motion of third-party defendant Garstin (Tenant) for summary judgment dismissing the third-party complaint, and denied the cross motion of Fairfax L.L.C., Rockrose Development Corp. and Rockrose Corp. (Owners) for summary judgment against Tenant on the issue of their entitlement to common-law indemnification, unanimously affirmed, without costs. Plaintiff John Uribe was injured when he fell from a ladder while in the employ of a contractor hired by Tenant to perform alteration work to Tenant's apartment in Owners' building. Uribe was granted partial summary judgment on his Labor Law § 240(1) claim against Owners, and Owners seek to hold Tenant liable based on Tenant's breach of a lease provision requiring Owners' prior written consent to the work, and discussions between Tenant and the contractor regarding which phase of the job to start first. Dismissal of the third-party complaint was proper where the [**337] record evidence establishes that Tenant was not in the apartment when the subject work was [***547] performed, gave the contractor no instructions regarding how to do the work, and did not supply any equipment or tools. Tenant also exercised no supervisory authority or control over the job, and Tenant's alleged violation of the lease is not relevant to the issue of common-law indemnification in light of the lack of evidence that the accident was attributable to negligence on Tenant's part (see Correia v Professional Data Mgt., 259 AD2d 60, 65, 693 N.Y.S.2d 596 [1999]). Similarly, Tenant's alleged conversations with the contractor regarding which tasks to perform first are insufficient to [*2] establish control over the work (see Garcia v Petrakis, 306 AD2d 315, 760 N.Y.S.2d 551 [2003]; Richichi v Construction Mgt. Tech., 244 AD2d 540, 664 N.Y.S.2d 615 [1997]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 26, 2008

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5 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 [*1] Jose Castillo, appellant, v 62-25 30th Avenue Realty, LLC, et al., respondents. (Index No. 27819/02) 2006-10252 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 641; 47 A.D.3d 865; 850 N.Y.S.2d 616; 2008 N.Y. App. Div. LEXIS 670 January 29, 2008, Decided NOTICE: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff worker sued defendants owner of a building and tenant, seeking damages for personal injuries suffered while working on the building. A jury in the Supreme Court, Queens County (New York), returned a defense verdict. The trial court then denied the worker's motion to set aside the jury verdict and for judgment as a matter of law on the issue of liability on his Labor Law § 240(1) cause of action. The worker appealed. OVERVIEW: The worker was injured while removing metal racks from a wall. Two versions of the accident were presented to the jury. Two witnesses testified that the worker fell from the elevated worksite when a metal rack came loose and, after he hit the floor, the metal piece fell and hit him across the leg. The worker testified that he was standing under the scaffold when a piece of the scaffold fell and hit him in the head. The jury found a violation of Labor Law § 240(1), but found that the viol-

ation was not a proximate cause of the injuries. The appellate court found, however, that under either scenario, there was no rational basis to find that a violation of Labor Law § 240(1) was not the proximate cause of the injuries. There was no merit to the suggestion that the jury could have found that the worker's handling of a metal rack caused him to fall, because contributory negligence was not a defense to a Labor Law § 240 violation. Since the owner and the tenant, failed, under either scenario, to present evidence that their Labor Law § 240(1) violation was not a proximate cause of the injuries, the trial court should have set aside the verdict and entered judgment as to liability. OUTCOME: The judgment was reversed, the Labor Law § 240(1) cause of action was reinstated, the worker's motion to set aside the jury verdict and for judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action was granted, and the matter was remitted to the trial court for a trial on the issue of damages. CORE TERMS: scaffold, falling, cause of action, scenario, metal, matter of law, jury verdict, issue of liability, proximate cause, rack, hit, safety devices, elevated, handling, hazards, deposition testimony, deposition LexisNexis(R) Headnotes

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Labor & Employment Law > Occupational Safety & Health > Civil Liability Torts > Negligence > Defenses > Contributory Negligence > Limits on Application > General Overview Workers' Compensation & SSDI > Remedies Under Other Laws > Americans With Disabilities Act [HN1] Contributory negligence is not a defense to a violation of Labor Law § 240. Labor & Employment Law > Occupational Safety & Health > Civil Liability Workers' Compensation & SSDI > Remedies Under Other Laws > General Overview [HN2] Labor Law § 240(1) applies to both falling worker and falling object cases. The statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling, but to the hazards of defective parts of safety devices falling from an elevated level to the ground. COUNSEL: Friedman, Friedman, Chiaravalloti & Giannini (Alan M. Friedman of counsel), for appellant. Baxter, Smith, Tassan & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), for respondents. JUDGES: WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, JOSEPH COVELLO, DANIEL D. ANGIOLILLO, JJ. MASTRO, J.P., SANTUCCI, COVELLO and ANGIOLILLO, JJ., concur. OPINION [***616] [**865] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Flug, J.), entered October 12, 2006, which, upon a jury verdict in favor of the defendants and against him, and upon [***617] an order of the same court dated May 19, 2006, denying his motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action, is in favor of the defendants and against him, in effect, dismissing the Labor Law § 240(1) cause of action. ORDERED that the judgment is reversed, on the law, with costs, the Labor Law § 240(1) cause of action is reinstated, the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law on the issue of liability on the Labor Law § 240(1) cause of action is granted, and the matter is remitted to the Supreme Court, Queens County, for a trial

on the issue of damages, and the order dated May 19, 2006, is modified accordingly. The plaintiff, who was performing construction work in a building that was owned by the defendant 6225 30th Avenue Realty, LLC, and leased by the defendant Zahmel Restaurant Supply Corp., d/b/a Zahner's Cash & Carry, was injured while removing large, heavy metal racks from a wall. The jury was presented with two versions of how the accident [**866] occurred. According to the deposition testimony of a coworker and eyewitness, which was read into evidence at trial, the plaintiff fell from the elevated worksite when the metal rack he was working on suddenly came loose and, after he hit the floor, the metal piece he had been handling fell and hit him across the leg. In contrast, after initially stating at his deposition that he had no recollection of how he got hurt, the plaintiff testified at his deposition that he was standing under the scaffold when a piece of the [*2] scaffold fell and hit him in the head. The plaintiff's deposition testimony was also read into evidence at trial. The jury found that there was a violation of Labor Law § 240(1), but that the violation was not a proximate cause of the plaintiff's injuries. However, when viewing the evidence in the light most favorable to the defendants (see Szczerbiak v Pilat, 90 NY2d 553, 686 N.E.2d 1346, 664 N.Y.S.2d 252), under either scenario presented to the jury, there was no rational basis for the jury to conclude that a violation of Labor Law § 240(1) was not the proximate cause of the plaintiff's injuries (see Felker v Corning Inc., 90 NY2d 219, 224, 682 N.E.2d 950, 660 N.Y.S.2d 349; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 518, 482 N.E.2d 898, 493 N.Y.S.2d 102). The defendants concede that a fall from a scaffold would be covered by Labor Law § 240(1). There is no merit to their suggestion that the jury could have concluded that the plaintiff's handling of the metal rack caused him to fall, because [HN1] "contributory negligence is not a defense to a violation of section 240" (La Lima v Epstein, 143 AD2d 886, 888, 533 N.Y.S.2d 399 [internal quotation marks and citations omitted]). The second scenario before the jury would also be covered by [HN2] Labor Law § 240(1), which "applies to both falling worker' and falling object' cases" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268, 750 N.E.2d 1085, 727 N.Y.S.2d 37). This Court has held that "the statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling," but to the hazards of defective parts of safety devices "falling from an elevated level to the ground" (Jiron v China Buddhist Assn., 266 AD2d 347, 349, 698 N.Y.S.2d 315 [injury caused by a falling piece of a hoist would be covered by the statute]; see

Page 29

Smith v Jesus People, 113 AD2d 980, 983, 493 N.Y.S.2d 658 [injury [***618] caused by a plank falling from a scaffold was covered by the statute]). Moreover, if the accident was caused by a piece of the scaffold falling from a height of 10 or 12 feet, "proper construction . . . of the [scaffold], which is one of the safety devices enumerated in the statute, could have prevented it" (Jiron v China Buddhist Assn., 266 AD2d at 349). Other than the above two scenarios, and the plaintiff's trial [**867] testimony that he did not remember whether he was on top of or underneath the scaffold at the time of the accident, no other evidence

was before the jury. Since the defendants failed, under either scenario, to present evidence that their violation of Labor Law § 240(1) was not a proximate cause of the plaintiff's injuries, the Supreme Court should have granted the plaintiff's motion to set aside the verdict and for judgment as a matter of law on the issue of liability pursuant to Labor Law § 240(1). The plaintiff's remaining contentions need not be reached in light of our determination. MASTRO, J.P., SANTUCCI, COVELLO and ANGIOLILLO, JJ., concur.

6 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 [*1] 905 5th Associates, Inc., et al., Plaintiffs-Appellants-Respondents, v 907 Corporation, et al., Defendants-Respondents, My Home Remodeling, Inc., DefendantRespondent-Appellant. 1720, 100662/06 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2008 NY Slip Op 32; 47 A.D.3d 401; 851 N.Y.S.2d 393; 2008 N.Y. App. Div. LEXIS 5 January 3, 2008, Decided January 3, 2008, Entered NOTICE: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff doctor sued defendants neighbors, contractor, cooperative, and managing agent, seeking damages resulting from renovation work being performed for the neighbors. The Supreme Court, New York County (New York), granted a sum-

mary judgment motion of the cooperative and the managing agent and partially denied a cross motion of the contractor and the neighbors for summary judgment. The doctor, the contractor, and the neighbors appealed. OVERVIEW: The doctor claimed that she was constructively evicted from her medical offices. The appellate court found that the case against the cooperative and the managing agent was properly dismissed for lack of evidence that the cooperative committed any wrongful act leading to the constructive eviction. It was arguably the cooperative's duty, pursuant to the proprietary lease, to keep the concrete slab between the doctor's offices and her upstairs neighbors in good repair unless the damage was caused by a tenant. The doctor failed to present any evidence that the damage was in any way caused by the cooperative rather than by the neighbors and their con-

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tractor or by the doctor herself, whose previous renovations included work on the same slab. The contractor's cross motion for summary judgment was properly denied; the doctor's expert affidavits raised fact issues as to whether the work the contractor performed proximately caused debris and dust to infiltrate the doctor's office, and whether the protective measures it recommended but the doctor allegedly rejected would have been effective. Further, a wrongful eviction claim could have only been brought against a landlord. OUTCOME: The judgment was modified, and the causes of action for constructive eviction and for tortious interference with the doctor's leasehold rights were dismissed as against the contractor and the neighbors. The judgment was otherwise affirmed. CORE TERMS: cooperative, cause of action, renovation, contractor, punitive damages, managing agent, properly denied, properly dismissed, constructive eviction, proprietary lease, issues of fact, residential, neighbors, upstairs, tenant, notice, slab, summary judgment LexisNexis(R) Headnotes

Real Property Law > Landlord & Tenant > Tenant's Remedies & Rights > General Overview Real Property Law > Landlord & Tenant > Tenant's Remedies & Rights > Remedies > General Overview Torts > Intentional Torts > General Overview [HN1] A claim of wrongful eviction can only be brought against a landlord. COUNSEL: Kopff, Nardelli & Dopf, LLP, New York (Martin B. Adams of counsel), for appellants-respondents. Faust Goetz Schenker & Blee LLP, New York (Lisa L. Gokhulsingh of counsel), for respondent-appellant. Pillinger Miller Tarallo, LLP, Elmsford (C. William Yanuck of counsel), for 907 Corporation and Brown Harris Stevens Residential Management, LLC, respondents. Gallet Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz of counsel), for Richard & Liane Weintraub, respondents. JUDGES: Lippman, P.J., Andrias, Marlow, Buckley, Catterson, JJ. OPINION

[**401] [***395] Order, Supreme Court, New York County (Faviola Soto, J.), entered July 13, 2006, which, to the extent appealed from, granted the cross motion of defendants 907 Corporation and Brown Harris Stevens Residential Management, LLC for summary judgment dismissing the complaint as against them, and granted the motion by the Weintraub defendants and the cross motion by defendant My Home Remodeling, Inc. (My Home) for summary judgment only to the extent of dismissing the seventh cause of action for punitive damages as against them, unanimously modified, on the law, the third and sixth causes of action dismissed as against My Home and, upon a search of the record, as against the Weintraub defendants, and otherwise affirmed, without costs. In this action to recover alleged damages resulting from renovation work being performed, with the cooperative's approval, [**402] by defendant contractor My Home for plaintiff Pamela Lipkin's upstairs neighbors, the Weintraub defendants, the case against the cooperative corporation and its residential managing agent was properly dismissed for lack of evidence that the cooperative committed any wrongful act leading to Dr. Lipkin's constructive eviction from her medical offices (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82, 256 N.E.2d 707, 308 N.Y.S.2d 649 [1970]). It is arguably the cooperative's duty, pursuant to the proprietary lease, to keep the concrete slab between Dr. Lipkin's offices and her upstairs neighbors in good repair unless the damage has been caused by a tenant (cf. Hauptman v 222 E. 80th St. Corp., 100 Misc 2d 153, [*2] 154-155, 418 N.Y.S.2d 728 [1979]). However, plaintiffs failed to present any evidence that the [***396] damage was in any way caused by the cooperative rather than by the Weintraubs and their contractor or by Dr. Lipkin herself, who had previously made renovations to her offices, including work on the same slab. Other than by speculation, plaintiffs failed to demonstrate that the cooperative controlled the means and methods of the work or that it was negligent in its approval of the renovation plan in the first place. Plaintiffs' reliance on a notice of violation issued against the cooperative as evidence of its negligence is unavailing, as the notice does not allege any affirmative acts of negligence by the cooperative. Moreover, without any evidence of negligence on its part, the cooperative is shielded from liability pursuant to language in the parties' proprietary lease specifically providing that the cooperative "shall not be liable for . . . injury or damage to person or property caused by . . . another tenant . . . unless caused by the negligence of the [cooperative]." Furthermore, to the extent that plaintiffs claim the cooperative acted unreasonably in addressing Dr. Lipkin's complaints and determining that there was nothing more it was required to do with respect to those

Page 31

complaints, they present no evidence in support of such contention. Thus, any decision made by the cooperative and its managing agent with regard to such complaints, which the record reflects were primarily handled by plaintiffs' attorney and representatives of the Weintraubs and My Home, would be insulated from further judicial review (see generally Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 553 N.E.2d 1317, 554 N.Y.S.2d 807 [1990]). My Home's cross motion for summary judgment was properly denied; plaintiffs' expert affidavits raised issues of fact as to whether the work the contractor performed proximately caused debris and dust to infiltrate Dr. Lipkin's office, and whether the protective measures it recommended but Dr. Lipkin allegedly rejected would have been effective. Furthermore, an issue of fact exists as to whether My Home agreed to indemnify the [**403] Weintraub defendants for claims such as plaintiffs'; accordingly, that part of its cross motion seeking dismissal of the Weintraub defendants' cross claims

was also properly denied. However, the court should have dismissed the third cause of action against the Weintraub defendants and My Home for constructive eviction, as that [HN1] claim can only be brought against a landlord (see Barash, 26 NY2d at 82). Similarly, the sixth cause of action for tortious interference with Dr. Lipkin's leasehold rights should have been dismissed as against the Weintraub defendants and My Home, as that claim necessarily assumes liability on the part of the cooperative. Finally, plaintiffs' claim for punitive damages was properly dismissed since the complaint does not allege egregious culpable conduct or wrongdoing aimed at the general public (Silverman v 145 Tenants Corp., 248 AD2d 261, 262, 670 N.Y.S.2d 434 [1998]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 3, 2008

7 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 [*1] Joanne M. Browning, Individually and as Personal Representative of the Estate of Jill Lyn Euto, Deceased, et al., Respondents, v James Properties, Inc., et al., Appellants. 968 CA 06-00569 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 2006 NY Slip Op 6639; 32 A.D.3d 1160; 821 N.Y.S.2d 696; 2006 N.Y. App. Div. LEXIS 11236 September 22, 2006, Decided September 22, 2006, Entered CASE SUMMARY:

fendants' motion seeking summary judgment dismissing the complaint. Defendants appealed the judgment.

PROCEDURAL POSTURE: Plaintiffs filed an action against defendants, the owner and manager of a building, seeking damages for the wrongful death and the conscious pain and suffering of a decedent. The Supreme Court, Onondaga County (New York), denied in part de-

OVERVIEW: The decedent leased an apartment in a building owned and managed by defendants, and she was murdered in the apartment. The appellate court held that the trial court erred in determining plaintiffs raised an issue of fact as to whether defendants breached their duty

Page 32

to take minimal precautions to protect decedent from foreseeable harm from the criminal conduct of a third party. Landlords had a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct. The necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in a building could be established only if the assailant gained access to the premises through a negligently maintained entrance. Defendants established that there was no history of violent crime by third parties in the building. Furthermore, defendants established that the doors into the building were secured by automatic locks accessible by a computerized key fob issued only to tenants and that the apartment doors were secured with automatic dead bolt locks.

building, and plaintiffs failed to raise issue of fact whether defendants knew or had reason to know that there was likelihood of violent conduct on part of third persons in building--doors into building were secured by automatic locks accessible by computerized key fob issued only to tenants, there was intercom system by which tenants admitted visitors, apartment doors were secured by lock with dead bolt that locked automatically unless left unlocked by tenant, and each apartment door contained peep hole; plaintiffs failed to raise issue of fact whether assailant gained access to premises through negligently maintained entrance.

OUTCOME: The order was reversed on the law, without costs, the motion for summary judgment was granted in its entirety, and the complaint was dismissed.

CHERUNDOLO, BOTTAR & LEONE, P.C., SYRACUSE (TIMOTHY J. DE MORE OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

CORE TERMS: tenant, issue of fact, apartment, failed to raise, decedent, door, foreseeable, lock, negligently, precautions, assailant, breached, entrance, gained, violent crime, violent conduct, reason to know, security measures, automatically, computerized, accessible, automatic, intercom, unlocked, landlord's, visitors, locked, dead, bolt, peep

JUDGES: PRESENT: PIGOTT, JR., P.J., SCUDDER, KEHOE, SMITH, AND GREEN, JJ.

LexisNexis(R) Headnotes

Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Criminal Acts [HN1] Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct. However, the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in a building could be established only if the assailant gained access to the premises through a negligently maintained entrance. HEADNOTES Negligence--Foreseeability.--Complaint was dismissed in action based upon murder of decedent in apartment she leased from defendants--plaintiffs failed to raise issue of fact whether defendants breached their duty to take minimal precautions to protect decedent from foreseeable harm from criminal conduct of third party-there was no history of violent crime by third parties in

COUNSEL: COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (LOUIS J. VIVIANI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

OPINION [**1160] [***697] Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered July 22, 2005. The order, [**1161] insofar as appealed from, denied in part defendants' motion seeking summary judgment dismissing the complaint. It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint is dismissed. Memorandum: Plaintiffs commenced this action seeking damages for the wrongful death and the conscious pain and suffering of decedent, the daughter of plaintiff Joanne M. Browning and the sister of plaintiff Jenna Euto. Decedent leased an apartment in a building owned by defendant HKS Realty Associates, Inc. and managed by defendant James Properties, Inc., and she was murdered in the apartment. The murder investigation remains open and unsolved. We agree with defendants that Supreme Court erred in failing to grant in its entirety their motion seeking summary judgment dismissing the complaint. Although the court properly determined that defendants met their initial burden of establishing their entitlement to judgment, it erred in determining that plaintiffs raised an issue of fact whether defendants breached their duty to take minimal precautions to protect decedent from foreseeable harm from the criminal conduct of a third party. [HN1] "Landlords have a common-law duty to take

Page 33

minimal precautions to protect tenants from foreseeable harm,' including a third party's foreseeable criminal conduct" (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548, 706 NE2d 1163, 684 NYS2d 139 [1998]). However, "the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in [a] building can be established only if the assailant gained access to the premises through a negligently maintained entrance" (id. at 550). Defendants established that there was no history of violent crime by third parties in the building, and plaintiffs failed to raise an issue of fact whether defendants knew or had reason to know "from past experience 'that there [was] a [*2] likelihood of [violent] conduct on the part of third persons' " in the building (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519, 407 NE2d 451, 429 NYS2d 606 [1980]; see Todorovich v Columbia Univ., 245 AD2d 45, 45-46, 665 NYS2d 77 [1997], lv denied 92 NY2d 805, 700 NE2d 320, 677 [***698] NYS2d 781 [1998]; cf. Jacqueline S. v City of New York, 81 NY2d 288, 291, 614 NE2d 723, 598 NYS2d 160 [1993], rearg denied 82 NY2d 749, 622 NE2d 308, 602 NYS2d 807 [1993]; Venetal v City of New York, 21 AD3d 1087, 1089, 803 NYS2d 609 [2005]). Although plaintiffs provided evidence of one violent crime in proximity to the building in which decedent lived, they failed to raise an issue of fact whether "ambient crime ha[d] demon-

strably infiltrated [the] premises or [that defendants were] otherwise on notice of a serious risk [**1162] of such infiltration that [their] duty to provide protection against the acts of criminal intruders may be said to [have] arise[n]" (Todorovich, 245 AD2d at 46). We further conclude that the affidavit of an expert on security measures submitted by plaintiffs is insufficient to raise an issue of fact whether defendants breached their duty to "maintain minimal security measures, related to [the] specific building itself, in the face of foreseeable criminal intrusion upon tenants" (Miller v State of New York, 62 NY2d 506, 513, 467 NE2d 493, 478 NYS2d 829 [1984]). Furthermore, defendants established that the doors into the building were secured by automatic locks accessible by a computerized key fob issued only to tenants, that there was an intercom system by which tenants admitted visitors, that the apartment doors were secured by a lock with a dead bolt that locked automatically unless left unlocked by the tenant, and that each apartment door contained a peep hole, and we conclude that plaintiffs failed to raise an issue of fact whether the "assailant gained access to the premises through a negligently maintained entrance" (Burgos, 92 NY2d at 550; cf. Jacqueline S., 81 NY2d at 292; Venetal, 21 AD3d at 1090-1091). Present--Pigott, Jr., P.J., Scudder, Kehoe, Smith, and Green, JJ.

8 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 [*1] Thomas F. McNally, as Guardian Ad Litem for Thomas J. McNally, Respondent, v Yitzchak Sabban et al., Appellants. 8678, Index 13799/03 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2006 NY Slip Op 6309; 32 A.D.3d 340; 820 N.Y.S.2d 260; 2006 N.Y. App. Div. LEXIS 10361 August 24, 2006, Decided August 24, 2006, Entered CASE SUMMARY: PROCEDURAL POSTURE: Defendant property own-

Page 34

ers sought review of an order of the Supreme Court, Bronx County (New York), which denied defendants' motion for summary judgment. Plaintiff tenant filed an action against the owners alleging that he was injured when he slipped and fell on a common stairway in the owner's multi-family residential building. OVERVIEW: The tenant alleged that there were numerous statutory or code violations in the stairway of the building, including defects in the door openings, headroom, lack of hand rail, risers, treads, stair geometry, possible roof leak and an improper location of a light switch. The defects in the building were confirmed by the tenant's expert, who asserted that the owners' failure to provide handrails in the staircase caused the accident. The tenant submitted testimony from other occupants of the building that indicated that the tenant had a drinking problem and submitted hospital records that showed that the tenant was extremely intoxicated at the time of the accident. The lower court denied the owners' motion for summary judgment finding that the tenant had raised factual issues concerning causation. The court held that the tenant did not sustain his ultimate burden of proving that the owners' negligence caused the tenant's injuries. The tenant could not recall how the accident happened and the tenant could only resort to sheer speculation in attributing the owners' negligence as the proximate cause of the tenant's injuries. OUTCOME: The court reversed the decision of the lower court. CORE TERMS: stairway, code violations, summary judgment, proximate cause, possible causes, speculation, drinking, intoxicated, triable issue, causation, replete, remote, intoxication, uncontested, tenant, stair LexisNexis(R) Headnotes

Torts > Negligence > Proof > Burdens of Proof [HN1] The Supreme Court of New York, Appellate Division, has consistently held that where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury. Even when there is no requirement for the plaintiff to exclude every other possible cause other than a defendant's breach of duty, the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be

drawn from the evidence, not upon speculation. HEADNOTES Negligence--Proximate Cause.--Complaint was dismissed because there was no triable issue as to cause of plaintiff's fall on stairway in defendant's building; it was uncontested that plaintiff was highly intoxicated when he fell; record was replete with evidence of plaintiff's drinking history and there was no evidence that any of alleged code violations caused fall. COUNSEL: Thomas M. Bona, P.C., White Plains (James C. Miller of counsel), for appellants. Rubin & Licatesi, P.C., Garden City (Jason S. Firestein of counsel), for respondent. JUDGES: Concur--Tom, Sweeny, Catterson, JJ.

J.P.,

Marlow,

Gonzalez,

OPINION [**340] [***261] Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 15, 2005, denying defendants' motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly. In this slip-and-fall action, plaintiff Thomas J. McNally was injured when he apparently fell down the common stairway of a multifamily residential building owned by defendants. Plaintiff [**341] is a tenant in the building. On the morning of June 14, 2002, he was found lying unconscious at the foot of the stairs. It is uncontested that plaintiff was highly intoxicated when he fell. Plaintiff commenced the suit against defendants, alleging that there were numerous statutory or code violations in the stairway of the building. Plaintiff's expert affirmed that the code violations included defects in door openings, headroom, lack of a hand rail, risers, treads, stair geometry, possible roof leak and an improper location of a light switch. In particular, the expert asserted that defendants' failure to provide handrails in the staircase caused the accident. Defendants submitted testimony of other tenants in the building demonstrating that plaintiff had a drinking problem. Furthermore, the hospital records showed that he was probably extremely intoxicated at the time of the accident. [***262] Subsequently, defendants moved for summary judgment arguing that there was no admissible evidence to prove that the statutory or code violations in the stairway were the proximate cause of plaintiff's injuries.

Page 35

Supreme Court denied the motion, holding that plaintiff had raised questions of fact relating to the issue of causation. We reverse, and, for the reasons set forth below, grant summary judgment to defendants dismissing the complaint against them.

ence, not upon speculation" (Lynn v Lynn, 216 AD2d at 195-196 [citation omitted]). [**342] In Kane v Estia Greek Rest., (4 AD3d 189, 190, 772 NYS2d 59 [2004]), a similar case to the one at bar, we granted summary judgment to the defendant on the basis that "[a]bsent an explication of facts explaining the accident, the verdict would rest on only speculation." Further, we determined that even if an expert alludes to potential defects on a stairway, the plaintiff still must establish that the slip and fall was connected to the supposed defect (id.).

On appeal, defendants assert correctly that it is plaintiff's ultimate burden to prove that defendants' negligence caused plaintiff's injuries. Moreover, defendants properly assert that because plaintiff cannot recall how the accident happened, plaintiff can only resort to sheer speculation in asserting that defendants' negligence was the proximate cause of his injuries.

In this case, no one witnessed plaintiff's fall, but the record is replete with evidence of plaintiff's drinking history and recurring falls. Further, there simply is no evidence of record that any of the alleged code violations caused plaintiff's fall. Consequently, there is no triable issue as to causation. Indeed, plaintiff's testimony that he had no recollection of how the accident occurred is, under the circumstances of this case, sufficient to find for defendants as a matter of law (Birman v Birman, 8 AD3d 219, 777 NYS2d 310 [2004]).

[HN1] We have consistently held that " '[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is [*2] just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury' " (Lynn v Lynn, 216 AD2d 194, 195, 628 NYS2d 667 [1995]), quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7, 14 NE2d 828 [1938]; see also Bernstein v City of New York, 69 NY2d 1020, 1021-1022, 511 NE2d 52, 517 NYS2d 908 [1987]). Even when there is no requirement for the plaintiff to exclude every other possible cause other than a defendant's breach of duty, "the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evid-

Plaintiff's argument that his intoxication is pertinent only on the issue of comparative negligence is without merit because plaintiff's intoxication may well be the principal cause of his harm and renders the alleged defects of the stairway too remote to constitute a proximate cause of his injuries. Concur--Tom, J.P., Marlow, Gonzalez, Sweeny and Catterson, JJ.

9 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 [*1] Duane Reade, Appellant, v SL Green Operating Partnership, LP, Respondent. 113478/03 7687 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2006 NY Slip Op 4512; 30 A.D.3d 189; 817 N.Y.S.2d 230; 2006 N.Y. App. Div. LEXIS 7514 June 8, 2006, Decided June 8, 2006, Entered

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PRIOR HISTORY: Reade v. SL Green Operating P'ship, 2005 NY App Div LEXIS 2531 (1st Dept, Mar. 10, 2005) CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff commercial tenant filed a complaint alleging that defendant building owner reduced the heat in the building which caused a sprinkler pipe to burst, resulting in $ 500,000 in damages to his property. Concluding that the owner's duty to the tenant arose solely under the lease, the Supreme Court, New York County (New York), dismissed the negligence cause of action as duplicative of the contract cause of action. The tenant appealed. OVERVIEW: The tenant argued that the duties implicated by its negligence cause of action arose not from the owner's violation of obligations imposed by the lease but from those imposed by statute, specifically, the duty to maintain the premises in reasonably safe condition and to protect the components of the sprinkler system from freezing temperatures. The tenant claimed that the duty upon which its negligence claim rested was imposed by a statute designed for the protection of the general public and, thus, may be asserted in addition to its contract claim. The appellate court agreed and held that the tenant had stated a viable tort claim. The abrupt nature of the injury and the resulting damages were both typical of tort claims and followed from the owner's breach of its statutory duty to maintain the premises "in good repair," pursuant to N.Y. Mult. Dwell. Law § 78(1). Further, the requirements to protect water supply pipes from freezing temperatures and to install a flow alarm were part of a comprehensive scheme of regulations designed to promote fire safety and to ensure the integrity of building sprinkler systems for the protection of the general public. OUTCOME: The order of the trial court which dismissed the sixth cause of action sounding in negligence as being duplicative of the fifth cause of action for breach of contract was reversed and the sixth cause of action was reinstated. CORE TERMS: cause of action, temperatures, freezing, alarm, tort claims, sprinkler system, breach of contract, contractual, abrupt, heat, pipe, statutory duty, duty to maintain, resulting damages, good repair, contract claim, general public, central station, duplicative, sprinkler, landlord's, install, tenant, viable, burst, lease LexisNexis(R) Headnotes

Real Property Law > Landlord & Tenant > Lease Agreements > Commercial Leases > General Overview Real Property Law > Landlord & Tenant > Tenant's Remedies & Rights > General Overview [HN1] Generally, a tort cause of action that is based upon the same facts underlying a contract claim will be dismissed as a mere duplication of the contract cause of action particularly where both seek identical damages. However, "borderland situations" have been identified where a legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship. HEADNOTES Negligence--Violation of Statutory Duty.--Plaintiff, commercial tenant in building owned and operated by defendant, asserted viable tort cause of action in addition to contractual cause of action based on allegation that defendant reduced heat in building allowing freezing temperatures to cause sprinkler pipe to burst and resulting in plaintiff's damages; abrupt nature of injury and resulting damages were "both typical of tort claims" and followed from landlord's breach of its statutory duty under Multiple Dwelling Law § 78 (1) to maintain premises "in good repair." COUNSEL: Pryor Cashman Sherman & Flynn LLP, New York (Joseph Z. Epstein and James S. O'Brien, Jr. of counsel), for appellant. Hoey, King, Toker & Epstein, New York (Jeffrey D. Greenberg of counsel), for respondent. JUDGES: Concur--Tom, J.P., Friedman, Sullivan, Catterson and Malone, JJ. OPINION [**189] [***231] Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered on or about February 23, 2004, which, to the extent appealed from as limited by the briefs, granted defendant's pre-answer motion to dismiss the sixth cause of action sounding in negligence as being duplicative of the fifth cause of action for breach of contract, unanimously reversed, on the law, without costs, the motion denied, and the sixth cause of action reinstated. Plaintiff is a commercial tenant in a building owned and operated by defendant. The complaint alleges that defendant [**190] reduced the heat in the building and that freezing temperatures caused a sprinkler pipe to

Page 37

burst, resulting in $ 500,000 in damages to plaintiff's property on the ninth and tenth floors. The fifth cause of action seeks damages for breach of contract and the sixth cause of action seeks damages for negligence. Both allege that defendant failed "to maintain in good working order and repair . . . plumbing . . . and ventilating systems" on the premises, to maintain adequate heat, and to install and maintain a flow alarm on the sprinkler system. Damages in the amount of $ 500,000 are sought in each instance. Concluding that defendant's duty to plaintiff arose solely under the lease, Supreme Court dismissed the negligence cause of action as duplicative of the contract cause of action (CPLR 3211). Plaintiff contends that the duties implicated by its negligence cause of action arise not from defendant's violation of obligations imposed by the lease but from those imposed by statute, specifically, the duty to maintain the premises in reasonably safe condition and to protect the components of the sprinkler system from freezing temperatures (Multiple Dwelling Law § 78; Building Code [Administrative Code of City of NY] §§ 27-966, 27-949). Plaintiff argues that the duty upon which its negligence claim rests is imposed by a statute designed for the protection of the general public and, thus, may be asserted in addition to its contract claim. We agree. [HN1] Generally, a tort cause of action that is based upon the same facts underlying a contract claim will be dismissed as a mere duplication of the contract cause of action (see Richbell Info. Servs. v Jupiter Partners, L.P., 309 AD2d 288, 305, 765 NYS2d 575 [2003]), particularly where, as here, both seek identical damages (see McMahan & Co. v Bass, 250 AD2d 460, 462, 673 NYS2d 19 [1998], lv denied and dismissed 92 NY2d 1013 [*2] , 684 NYS2d 484, 707 NE2d 439 [1998]). However, the Court of Appeals has identified "borderland situations" where "[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship" (Sommer v Federal Signal Corp.,

79 NY2d 540, 551, 593 NE2d 1365, 583 NYS2d 957 [1992]; see also New York Univ. v Continental Ins. Co., 87 NY2d 308, 316-317, 639 NYS2d 283, 662 N.E.2d 763 [1995]). In Sommer, a building owned by 810 Associates sustained damages when a fire went undetected because the company that monitored the building's alarms had negligently taken them out of service (79 NY2d at 548549). 810 [***232] Associates had contracted with Holmes Protection, Inc. to provide central station monitoring services. The Court held that "810's claims against Holmes are not limited to breach of contract but may also sound in tort" (id. at 552). The Court reasoned that the nature of the injury removes the claim from the underlying contract. The Court noted that New York [**191] City fire regulations provide penalties for failure to transmit alarms and to provide qualified central station operators; that the service provided is a significant public benefit; and that catastrophic consequences may result from the failure to perform the service with care (id. at 552-553). Moreover, the injury is typical of a tort claim both in respect to the manner in which it occurred and in the harm that resulted. Finally, the owner sought to recover not the benefit of its contractual bargain but damages resulting from an " 'abrupt, cataclysmic occurrence' " (id. at 553, quoting Bellevue S. Assoc. v HRH Constr. Corp., 78 NY2d 282, 294, 579 NE2d 195, 574 NYS2d 165 [1991]). Plaintiff has stated a viable tort claim pursuant to Sommer. The abrupt nature of the injury and the resulting damages are "both typical of tort claims" (id.) and follow from landlord's breach of its statutory duty to maintain the premises "in good repair" (Multiple Dwelling Law § 78 [1]). Further, the requirements to protect water supply pipes from freezing temperatures and to install a flow alarm are part of a comprehensive scheme of regulations designed to promote fire safety and to ensure the integrity of building sprinkler systems for the protection of the general public. Concur--Tom, J.P., Friedman, Sullivan, Catterson and Malone, JJ.

10 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 [*1] Edwin Flores et al., Respondents, v John Baroudos et al., Appellants, et al., Defendant. (And a Third-Party Action.) 2005-03577, (Index No. 35724/00)

Page 38

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2006 NY Slip Op 1762; 27 A.D.3d 517; 811 N.Y.S.2d 757; 2006 N.Y. App. Div. LEXIS 2819 March 14, 2006, Decided CASE SUMMARY: PROCEDURAL POSTURE: Defendant owners appealed an order by the Kings County Supreme Court (New York) that denied their motion for summary judgment in plaintiff injured minor's action to recover damages for personal injuries. OVERVIEW: The owners leased their premises a tenant to operate a record shop. A video game machine was placed on a wheeled cart on the public sidewalk abutting the premises. The minor was injured while playing the video game when another boy banged into the machine, causing it to fall on the minor. The appellate court found that the minor presented no evidence that the owners received a benefit from the tenant's use of the sidewalk. Also, the lease placed responsibility on the tenant to maintain the sidewalk, and the minor did not allege a violation of the Administrative Code of the City of New York. Consequently, the trial court erred in denying the owners' motion for summary judgment. OUTCOME: The order was reversed, the motion was granted, the complaint was dismissed, and the action against the remaining defendant was severed. CORE TERMS: public sidewalk, abutting, infant, video game, sidewalk, landlord, machine, repair, shop's, landowner, wheeled, playing, banged, cart, action to recover, tenant, lease LexisNexis(R) Headnotes

Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty off Premises > Sidewalks & Streets [HN1] An owner of land does not, solely by reason of being an abutting owner, owe a duty to keep a public sidewalk in a safe condition. Rather, liability may only be imposed on the abutting landowner where the landowner either (a) created the defective condition, (b) voluntarily but negligently made repairs, (c) created the defect through special use, or (d) violated a statute or or-

dinance which expressly imposes liability on the abutting landowner for failure to repair. Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty off Premises > Sidewalks & Streets [HN2] An out-of-possession landlord cannot be held liable unless it exercises some control over a sidewalk or is contractually obligated to repair unsafe conditions. Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Duty to Inspect Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Duty to Repair > General Overview [HN3] In a general premises liability context, a landlord's reservation of the right to re-enter, inspect, and make repairs, may subject the landlord to liability, provided an injured plaintiff shows that the landlord breached specific provisions of the Administrative Code of the City of New York. HEADNOTES Negligence--Sidewalks.--Complaint was dismissed against owners in action to recover for injuries sustained by infant plaintiff--lessee operated record shop at premises and placed video game machine on wheeled cart on public sidewalk abutting premises; infant plaintiff was injured while playing video game when another boy banged into machine, causing it to fall on infant plaintiff--plaintiffs presented no evidence that owners received benefit from record shop's use of public sidewalk, lease placed responsibility on tenant to maintain sidewalk and plaintiff did not allege violation of Administrative Code of City of New York. COUNSEL: Laykind & Summers, Franklin Square, N.Y. (Allan D. Summers of counsel), for appellants. Mirman, Markovits & Landau, P.C., New York, N.Y. (Scott Wunderlich of counsel), for respondents.

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JUDGES: THOMAS A. ADAMS, J.P., DAVID S. RITTER, FRED T. SANTUCCI, ROBERT J. LUNN, JJ. ADAMS, J.P., RITTER, SANTUCCI and LUNN, JJ., concur. OPINION [***758] [**517] In an action to recover damages for personal injuries, etc., the defendants John Baroudos and Anna Baroudos appeal from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated March 11, 2005, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed. John Baroudos and Anna Baroudos (hereinafter the appellants) owned premises located at 5814 Fifth Avenue in Brooklyn, which they leased to Angelo Chino. Chino operated the Ricky Record Shop at the premises. A video game machine was placed on a wheeled cart on the public sidewalk abutting the premises. The infant plaintiff was injured while playing the video game when another boy banged into the machine, causing it to fall on the infant plaintiff. [HN1] An owner of land does not, solely by reason of being an abutting owner, owe a duty

to keep the public sidewalk in a safe condition. Rather, "[l]iability may only be imposed on the abutting landowner where the landowner either (a) created the defective condition, (b) voluntarily [*2] but negligently made repairs, (c) created the defect through special use, or (d) violated a statute or ordinance which expressly imposes liability on the abutting landowner for failure to repair" (Loforese v Cadillac [**518] Fairview Shopping Ctrs., U.S., 235 AD2d 399, 399-400, 652 NYS2d 84 [1997]; see Cahill v Foodland Deli of L.I., 270 AD2d 445, 705 NYS2d 299 [2000]). Additionally, as [HN2] an out-of-possession landlord, the appellants cannot be held liable unless they exercised some control over the sidewalk or were contractually obligated to repair unsafe conditions (see Dufficy v Wharf Bar & Grill, 217 AD2d 646, 629 NYS2d 808 [1995]). [HN3] A landlord's reservation of the right to re-enter, inspect, and make repairs, may subject a landlord to liability, provided the plaintiff shows that the landlord breached specific provisions of the Administrative Code of the City of New York (id.). The appellants established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to present evidence sufficient to raise a triable issue of fact as to the appellants' liability. The plaintiffs presented no evidence that the owners received a benefit from the record shop's use of the public sidewalk. Also, the lease placed responsibility on the tenant to maintain the sidewalk and the plaintiff did not allege a violation of the Administrative Code of the City of New York. Adams, J.P., Ritter, Santucci and Lunn, JJ., concur.

11 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 [*1] Francine Cannizzaro et al., Appellants, v Simco Management Co. et al., Respondents, et al., Defendant. 2004-07662 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2006 NY Slip Op 1271; 26 A.D.3d 401; 809 N.Y.S.2d 196; 2006 N.Y. App. Div. LEXIS 2158 February 21, 2006, Decided

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CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff pedestrian appealed an order by the Nassau County Supreme Court (New York) that granted a summary judgment motion by defendant owner/occupiers in the pedestrian's action to recover damages for personal injuries. OVERVIEW: The pedestrian allegedly sustained personal injuries when she tripped and fell on a "cracked" public sidewalk that abutted the owner/occupiers' commercial premises. The appellate court found no evidence that the owner/occupiers either created the alleged defect, negligently repaired the sidewalk prior to the accident, caused the defect through some special use of the sidewalk, or violated a statute or ordinance that imposed liability on the abutting entity for failure to repair the alleged defective condition. Consequently, they demonstrated their entitlement to judgment as a matter of law. The conclusion by the pedestrians' expert that the alleged defect was caused by vehicular traffic using the sidewalk as a driveway was entirely speculative and insufficient to raise a factual issue precluding summary relief. OUTCOME: The order was affirmed. CORE TERMS: abutting, sidewalk, landowner, tenant, public sidewalk, special use, ordinance, elements necessary, impose liability, defective condition, negligently, repaired, entity, repair, commercial premises, personal injuries, subleased, tripped, cracked LexisNexis(R) Headnotes

Torts > Premises Liability & Property > General Premises Liability > General Overview [HN1] As a general rule, a landowner or tenant will not be liable to a pedestrian injured by a defect in a public sidewalk abutting its premises. However, an abutting landowner or tenant will be liable if it either created the defect, caused it to occur by a special use, or breached a specific ordinance or statute that obligates the owner to maintain the sidewalk. HEADNOTES Negligence--Sidewalks.--In action by plaintiff, who was injured when she tripped and fell on "cracked" public sidewalk abutting commercial premises subleased to one defendant by second defendant and owned by third defendant, complaint was dismissed against defendants since none of elements necessary to impose liability

upon abutting landowner or tenant were present; there was no evidence that they either created alleged defect, negligently repaired sidewalk prior to accident, caused defect through some special use of sidewalk, or violated statute or ordinance that imposed liability on abutting entity for failure to repair alleged defective condition. COUNSEL: Crafa & Scofield, P.C., Rockville Centre, N.Y. (Joseph R. Crafa of counsel), for appellants. Curtis, Vasile, Devine & McElhenny, Merrick, N.Y. (Patricia M. D'Antone of counsel), for respondents Simco Management Co. and Avis Service, Inc. Epstein, Grammatico, Frankini & Marotta, Woodbury, N.Y. (Michael Callari III of counsel), for respondent Westbury Garden Center. JUDGES: STEPHEN G. CRANE, J.P., REINALDO E. RIVERA, STEVEN W. FISHER, MARK C. DILLON, JJ. CRANE, J.P., RIVERA, FISHER and DILLON, JJ., concur. OPINION [**401] [***197] In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Joseph, J.), entered August 2, 2004, which granted the motion of the defendants Simco Management Co. and Avis Service, Inc., and the separate motion of the defendant Westbury Garden Center, for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs. The plaintiff Francine Cannizzaro allegedly sustained personal injuries when she tripped and fell on a "cracked" public sidewalk. The incident occurred in Hempstead, abutting commercial premises subleased to the defendant Westbury Garden Center (hereinafter Westbury) by the defendant Avis Service, Inc. (hereinafter Avis), and owned by the defendant Simco Management Co. (hereinafter Simco). [*2] [HN1] As a general rule, a landowner or tenant will not be liable to a pedestrian injured by a defect in a public sidewalk abutting its premises (see Hausser v Giunta, 88 NY2d 449, 452-453, 669 NE2d 470, 646 NYS2d 490 [1996]; [**402] Sammarco v City of New York, 16 AD3d 657, 658, 794 NYS2d 54 [2005]). However, an abutting landowner or tenant will be liable if it either "created the defect, caused it to occur by a special use, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk" (Jeanty v Benin, 1

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AD3d 566, 567, 767 NYS2d 447 [2003]; see Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d 725, 726, 759 NYS2d 497 [2003]). The defendants Simco, Avis, and Westbury demonstrated their entitlement to judgment as a matter of law by presenting evidence that none of the elements necessary to impose liability upon an abutting landowner or tenant are present. There was no evidence that they either created the alleged defect, negligently repaired the sidewalk prior to the accident, caused the defect through some special use of the sidewalk, or violated a statute or ordinance that imposed liability on the abutting entity for failure to repair the alleged defective condition (see Lowenthal v Theodore H. Heidrich Realty Corp., supra). In opposition, the plaintiffs failed to raise a triable issue

of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572, 508 NYS2d 923 [1986]; Sammarco v City of New York, supra). Neither the plaintiffs nor the plaintiffs' expert ever observed vehicles entering or leaving the abutting property. The conclusion by the plaintiffs' expert that the alleged defect was caused by vehicular traffic using the sidewalk as a driveway, now or in the past, was entirely speculative and insufficient to raise a factual issue precluding summary relief. (see Patti v Town of N. Hempstead, 23 AD3d 362, 806 NYS2d 93 [2005]; Banks v Freeport Union Free School Dist., 302 AD2d 341, 342, 753 NYS2d 890 [2003]; cf. Tate v Freeport Union School Dist., 7 AD3d 695, 696, 777 NYS2d 188 [2004]). The plaintiffs' remaining contentions are without merit. Crane, J.P., Rivera, Fisher and Dillon, JJ., concur.

12 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 [*1] Fred Zvinys et al., Appellants, v Richfield Investment Company et al., Respondents. (And a Third-Party Action.) Index 105925/02, 591456/03 7503-, 7504 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2006 NY Slip Op 98; 25 A.D.3d 358; 808 N.Y.S.2d 640; 2006 N.Y. App. Div. LEXIS 98 January 5, 2006, Decided January 5, 2006, Entered SUBSEQUENT HISTORY: Appeal denied by Zvinys v. Richfield Inv. Co., 2006 N.Y. App. Div. LEXIS 4430 (N.Y. App. Div. 1st Dep't, Apr. 11, 2006) Appeal denied by Zvinys v. Richfield Inv. Co., 7 NY3d 706, 853 NE2d 244, 2006 N.Y. LEXIS 1881, 819 NYS2d 873 (N.Y., July 5, 2006) PRIOR HISTORY: Zvinys v. Richfield Inv. Co., 2005 N.Y. App. Div. LEXIS 7696 (N.Y. App. Div. 1st Dep't, July 7, 2005) CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff, an injured firefighter and others, appealed orders of the Supreme Court, New York County (New York), that granted summary judgment dismissing the firefighter's N.Y. Gen. Mun. Law § 205-a action against defendant property owners and that granted defendant lessee's motion to set aside a jury verdict in favor of the firefighter and dismissed the complaint. OVERVIEW: The evidence indicated that the fire in which the firefighter had been injured had been caused by a poorly maintained power strip that could easily have been replaced. There was evidence of a violation of New York City, N.Y., Admin. Code § 27-127, but it had not caused the fire. The court held, first, that the firefighter

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had made no showing whatsoever that the owners, the lessors of the property where the fire occurred, had violated any statutes or ordinances, so they could not be liable. The lessee, a travel agency, appeared to have negligently caused the fire, but not by violating any code provisions that applied to it. Without a violation, there could be no liability under N.Y. Gen. Mun. Law § 205-a. OUTCOME: The court affirmed the orders and judgment. CORE TERMS: strip, alarm, indirectly, breaker's, code violations, negligent conduct, summary judgment, issue of fact, deposition testimony, overloading, firefighter, overloaded, removable, manager, tenant, notice, lessees, wiring, ambit, smoke LexisNexis(R) Headnotes

Civil Procedure > Pleading & Practice > Pleadings > Heightened Pleading Requirements Governments > Local Governments > Employees & Officials Torts > Negligence > Proof > Violations of Law > General Overview [HN1] To make out a valid claim under N.Y. Gen. Mun. Law § 205-a, a plaintiff must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter. Civil Procedure > Summary Judgment > Burdens of Production & Proof > General Overview Governments > Local Governments > Employees & Officials Torts > Negligence > Causation > Proximate Cause > General Overview Torts > Negligence > Proof > Violations of Law > General Overview [HN2] On a motion for summary judgment to dismiss a N.Y. Gen. Mun. Law § 205-a claim, the defendant bears the initial burden of showing either that it did not negligently violate any relevant government provision, or, if it did, that the violation did not directly or indirectly cause the plaintiff's injuries. Only if the defendant sustains this burden must the plaintiff raise a triable issue of fact as to whether the alleged code violations directly or indirectly caused his injuries.

Civil Procedure > Summary Judgment > Supporting Materials > General Overview [HN3] On motion for summary judgment, an affidavit that is speculative and conclusory is insufficient to raise an issue of fact. Real Property Law > Landlord & Tenant > Lease Agreements > Commercial Leases > General Overview Torts > Negligence > Proof > Violations of Law > Safety Codes [HN4] New York City, N.Y., Admin. Code § 27-127 is not applicable to lessees. HEADNOTES Negligence--Violation of Statutory Duty.--Complaint was dismissed in action alleging claim under General Municipal Law § 205-a--defendants, owners and manager of premises, established that fire arose out of activities of tenant in overloading single power strip in equipment room, over which defendants exercised no control and had no notice, and that plaintiff's injuries were not caused by any Building Code violations or negligent conduct attributable to defendants--Building Code provision on which plaintiff predicated claim (Administrative Code of City of NY § 27-127) was not applicable to lessees, and evidence demonstrated that fire was caused by lack of proper maintenance of overloaded power strip, which was easily removable and not part of building's wiring system, and did not fall within ambit of section 27-127. COUNSEL: Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for appellants. Callan, Koster, Brady & Brennan, New York (Michael P. Kandler of counsel), for Richfield Investment Company, Shipcentral Realty, Inc., and Williamson, Pickett, Gross, Inc., respondents. Law Office of John P. Humphreys, Melville (Scott W. Driver of counsel), for DMS Travel, Inc., respondent. JUDGES: Concur--Andrias, J.P., Saxe, Nardelli and Catterson, JJ. OPINION [**359] [***642] Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 26, 2004, insofar as it granted summary judgment dismissing the complaint against defendants Richfield Investment, Shipcentral Realty, and Williamson, Picket, Gross (collectively, the Richfield defendants), and order, same

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court and Justice, entered February 6, 2005, which granted defendant DMS Travel's motion to set aside the jury verdict in plaintiff's favor and dismissed the complaint, unanimously affirmed, without costs. [HN1] To make out a valid claim under General Municipal Law § 205-a, a plaintiff must "identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter" (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441, 649 NE2d 1167, 626 NYS2d 23 [1995]). [HN2] On a motion for summary judgment to dismiss a § 205-a claim, the defendant bears the initial burden of showing either that it did not negligently violate any relevant government provision, or, if it did, that the violation did not directly or indirectly cause the plaintiff's injuries. Only if the defendant sustains this burden must the plaintiff raise a triable issue of fact as to whether the alleged code violations directly or indirectly caused his injuries (see Giuffrida v Citibank Corp., 100 NY2d 72, 82, 790 NE2d 772, 760 NYS2d 397 [2003]). The Richfield defendants, who were the owners and manager of the premises, sustained their burden of proof by submitting deposition testimony and other admissible evidence establishing that the fire arose out of the activities of the tenant, defendant DMS, in overloading a single power strip in the equipment room, over which the Richfield defendants exercised no [*2] control and had no notice; and that plaintiff's injuries were not caused by any building code violations or negligent conduct attributable to the Richfield defendants (see Lustenring v 98100 Realty, 1 AD3d 574, 768 NYS2d 20 [2003], lv dismissed and denied 2 NY3d 791, 814 NE2d 448, 781

NYS2d 277 [2004]). Plaintiff failed to rebut this showing. [HN3] The affidavit of plaintiff's expert was speculative and conclusory, and thus insufficient to raise an issue of fact (see Bucholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 831 NE2d 960, 798 NYS2d 715 [2005]; Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 800 NYS2d 676 [2005]; Bean v Ruppert Towers Hous. Co., 274 AD2d 305, 710 NYS2d 575 [2000]). The expert never visited the premises or [**360] inspected the circuit breakers that he alleged were deficient or defective. There was no deposition testimony or Fire Department report addressing the circuit breaker's condition or suitability, and the expert did not cite any statutes, codes or industry standards [***643] allegedly violated with respect to the circuit breakers. Nor did the expert inspect the smoke alarm system or cite any specific code sections regarding smoke alarms that were violated. The fact that a person noticed the fire before it was detected by the alarms in the central hallway is insufficient, in and of itself, to create an inference that the fire alarms were not operating. Nor is there anything that indicates a delay in that person discovering or reporting the fire, so as to exacerbate the conditions plaintiff faced at the scene. The Building Code provision on which plaintiff predicates his § 205-a claim ([HN4] Administrative Code of City of NY § 27-127) is not applicable to lessees (Beck v Woodward Affiliates, 226 AD2d 328, 330, 640 NYS2d 205 [1996]). Moreover, the evidence at trial demonstrates that the fire was caused by a lack of proper maintenance of the overloaded power strip, which was easily removable and not part of the building's wiring system, and does not fall within the ambit of section 27-127. Concur--Andrias, J.P., Saxe, Nardelli and Catterson, JJ.

13 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 [*1] Samuel Boateng, Respondent, v Four Plus Corporation et al., Appellants. Index 16796/02 6757 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

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2005 NY Slip Op 7601; 22 A.D.3d 322; 802 N.Y.S.2d 418; 2005 N.Y. App. Div. LEXIS 10910 October 13, 2005, Decided October 13, 2005, Entered CASE SUMMARY: PROCEDURAL POSTURE: Appellant landlords appealed the order of the Supreme Court, Bronx County (New York), denying their motion for summary judgment in plaintiff tenant's action seeking to recover for personal injuries. OVERVIEW: The landlords were out-of-possession landlords who retained no more than a right of reentry to inspect and make repairs. Full responsibility for maintenance and repair of the lease premises was placed with the tenant under the governing lease. As a result, the tenant, in order to raise an issue of fact as to whether the landlords had constructive knowledge of and were responsible for remediating the allegedly hazard, had to show that the purported hazard constituted a structural design defect that violated a specific statutory provision. The record evidence established that the crumbling cement on the garage ceiling, alleged to have caused the tenant's harm, had no structural or design function. It was merely coating for steel beams. The tenant's assertion that an engineer was to testify that the crumbling cement violated general safety provisions of the New York City, New York, Building Code was insufficient to forestall summary judgment because no specific statutory violation was identified. OUTCOME: The order was modified insofar as the motion seeking summary judgment dismissing the complaint against the corporation and bank was granted. The order was otherwise affirmed. CORE TERMS: summary judgment, landlords, repair, crumbling, hazard, cement, leased premises, statutory violation, out-of-possession, constructive, reentry, inspect, ceiling, tenant, notice, garage, Compensation Law LexisNexis(R) Headnotes

Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Power to Reenter & Terminate Torts > Premises Liability & Property > Lessees & Lessors > General Overview [HN1] Where a landlord has out-of possession status, a

plaintiff, to raise an issue of fact as to whether the landlord had constructive notice of and was responsible for remediating an alleged hazard, is required to show that the purported hazard constituted a structural or design defect that violated a specific statutory provision. HEADNOTES Negligence--Maintenance of Premises.--Defendants, out-of-possession landlords who retained right of reentry to inspect and make repairs, were entitled to summary judgment dismissing complaint since tenant was responsible for maintenance and repair of leased premises where plaintiff was injured, and defendants did not have constructive notice of alleged hazard--crumbling cement on garage ceiling, alleged to have caused plaintiff's harm, had no structural or design function, and plaintiff failed to identify specific statutory violation. COUNSEL: Law Office of Steven G. Fauth, New York (Jason B. Rosenfarb of counsel), for appellants. Brecher Fishman Pasternack Popish Heller Reiff & Walsh, P.C., New York (Frank Gulino of counsel), for respondent. JUDGES: Concur--Andrias, J.P., Friedman, Sullivan and Gonzalez, JJ. OPINION [**323] [***419] Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered April 12, 2005, which denied defendants' motion for summary judgment, unanimously modified, on the law, to the extent of granting so much of the motion as seeks summary judgment dismissing the complaint as against defendants Four Plus Corporation and Chase Manhattan Bank, N.A., and otherwise affirmed, without costs. The uncontradicted facts in the record show that the defendants Four Plus Corporation and Chase Manhattan Bank, N.A., were out-of-possession landlords who retained no more than a right of reentry to inspect and make repairs. Full responsibility for maintenance and repair of the leased premises had, under the governing lease, been placed with the tenant. [HN1] In light of the landlords' out-of possession status, plaintiff, to raise an issue of fact as to whether the landlords had constructive

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notice of and were responsible for remediating the alleged hazard, [**324] was required to show that the purported hazard constituted a structural or design defect that violated a specific statutory provision (see Pavon v Rudin, 254 AD2d 143, 146-147, 679 NYS2d 27 [1998]). The record evidence, including photographs and deposition testimony, established that the crumbling cement on the garage ceiling, alleged to have caused plaintiff's harm, had no structural or design function, but was merely coating for steel beams. Plaintiff's assertion that a potential engineer witness would testify that the crumbling cement violated general safety provisions of the

New York City Building Code (i.e., Administrative Code of the City of NY §§ 27-127, 27-128) was insufficient to forestall summary judgment since, inter alia, no specific statutory violation was identified (see Dixon v Nur-Hom Realty Corp., 254 AD2d 66, 67, 678 NYS2d 613 [1998]). Defendant 5711 Parking Corporation's (5711) claim of entitlement to summary judgment based on its Workers' Compensation Law defense was properly rejected. Based on the record as it now stands, we cannot determine as a matter of law [*2] that 5711 is free of liability based on the Workers' Compensation Law. Concur--Andrias, J.P., Friedman, Sullivan and Gonzalez, JJ.

14 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 Ricardo Torres et al., Respondents-Appellants, v West Street Realty Company et al., Appellants-Respondents. West Street Realty Company et al., Third-Party Plaintiffs, v Tobin Home Fashions, Inc., Third-Party Defendant, and Apartment Furniture Rentals Associates, Third-Party Defendant-Appellant-Respondent. 5569 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 21 A.D.3d 718; 800 N.Y.S.2d 683; 2005 N.Y. App. Div. LEXIS 8864 September 1, 2005, Decided September 1, 2005, Entered SUBSEQUENT HISTORY: [***1] Reargument denied by Torres v W. St. Realty Co., 2006 NY App Div LEXIS 2012 (1st Dept, Feb. 14, 2006) Appeal denied by Torres v W. St. Realty Co., 7 NY3d 703, 853 NE2d 241, 819 NYS2d 870, 2006 NY LEXIS 1492 (2006) PRIOR HISTORY: Torres v W. St. Realty Co., 2004 NY App Div LEXIS 12420 (1st Dept, Oct. 19, 2004) CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff, a worker, sued defendants, building owners and operators, seeking to recover for personal injuries. The Supreme Court, Bronx

County (New York), denied the landlord's motions for summary judgment as to negligence claims. The landlord appealed the judgment. OVERVIEW: The worker claimed that he fell on ice in the warehouse in question, causing multiple fractures. The trial court denied the landlord's summary judgment motions as to negligence claims after finding that the landlord had created the hazardous condition that led to the accident by reason of faulty design and construction of the loading dock. The appellate court held that there could be no valid argument that the out-of-possession landlord had actual notice of the allegedly slippery condition. As to constructive notice, an out-of-possession owner who retained the right to reenter the premises for repairs and inspections could not be held liable under a

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theory of constructive notice in the absence of a significant structural or design defect that was contrary to a specific safety provision. The worker's expert did not state that it was improper to design a ramp on a downward slope, that the angle of the slope was excessive, or that the construction of the ramp on a downward slope violated any statute or constituted a significant structural defect. Thus, constructive notice was not shown, and the trial court should have granted the landlord's motions for summary judgment. OUTCOME: The order was reversed, on the law, without costs or disbursements, the motions for summary judgment were granted, and the complaint was dismissed. CORE TERMS: loading docks, truck, snow, dock, platform, warehouse, repair, loading, tenant, out-of-possession, top, constructive notice, landlord, slope, structural defect, summary judgment, driveway, downward, nonslip, drainage, removal, sloped, angle, flaps, ice, snow ice, lighting, surface, lease, dangerous condition LexisNexis(R) Headnotes

Torts > Premises Liability & Property > General Premises Liability > General Overview Torts > Products Liability > Design Defects [HN1] As to constructive notice, it is well settled that an out-of-possession owner who retained the right to reenter the premises for repairs and inspections cannot be held liable under a theory of constructive notice in the absence of a significant structural or design defect that is contrary to a specific safety provision. HEADNOTES Negligence--Maintenance of Premises Defendant, out-of-possession landlord who had hired contractor to design and build warehouse loading docks in accordance with general requirements of defendant tenant, had no actual or constructive notice of allegedly slippery condition on warehouse loading platform where plaintiff, employee of tenant, was injured; tenant occupied warehouse and was responsible for removal of water, snow and ice from loading dock; landlord never inspected or entered premises to perform maintenance or repairs, and never received any complaints with respect to snow, ice or water on dock or inadequate lighting; plaintiffs' expert's testimony, asserting that loading docks were defectively designed and dangerous due to slope of driveway, absence of safety surface along edge of dock platform, and lack of rubberized flaps above entrance to warehouse

to brush snow off tops of truck entering dock, did not show statutory violation or significant structural defect. Concur--Buckley, P.J., Mazzarelli, Friedman, Marlow and Sullivan, JJ. COUNSEL: Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (David A. Glazer of counsel), for West Street Realty Company appellants-respondents. Savona & Scully, New York (Raymond M. D'Erasmo of counsel), for Apartment Furniture Rentals Associates, appellant-respondent. The Pagan Law Firm, P.C., New York (Beth N. Jablon of counsel), for respondents-appellants. JUDGES: Buckley, P.J., Mazzarelli, Friedman, Marlow, Sullivan, JJ. OPINION [*719] [**684] Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about February 4, 2004, which, insofar as it denied the motions of defendant West Street Realty Company and its partners, Frank Carrano, Blanche Goldberg and Jeanette Sherkin (West Street) and third-party defendant Apartment Furniture Rentals (Rentals) for summary judgment dismissing plaintiffs' negligence claims, unanimously reversed, on the law, without costs or disbursements, the motions for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly. West Street leased a warehouse to Rentals pursuant to a lease requiring [***2] the lessor to build four interior loading docks and modify another in accordance with the general requirements of Rentals. West Street hired and paid a contractor to do the work. Under the lease, other than specified repairs to the electric, plumbing, sprinkler, heating systems and roof, as well as structural repairs to the exterior walls, foundation and steel framing, Rentals was responsible for the repair and maintenance of the premises. West Street also had the right of entry for the purpose of inspection, repairs, compliance with governmental orders and showing the premises to prospective buyers or tenants. Article 48 of the lease ("Owner's Liability") provided, in part: "Except by reason of their willful misfeasance or gross negligence, Owner . . . shall not be liable to Tenant, Tenant's agent and employees . . . for any injury to person . . . because of failure to repair, defect in, or failure of, equipment, . . . or by . . . water, snow, ice . . . leaking, escaping or flowing into the Demised Premises." Plaintiff Ricardo Torres, employed by Rentals as a

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truck driver, alleges that on the snowy morning of February 4, 1995, after retrieving his 24-foot truck from an outdoor parking [***3] lot and clearing snow from its windshield and mirrors, he drove to Rentals' warehouse and backed the truck, the top of which was still covered with snow, into indoor loading bay # 2. The loading dock was recessed and completely within the premises. The docking bay sloped downward so that when a truck is fully backed in, its rear would be at the same level as the platform [*720] and its front higher. As a result of this configuration, once the snow on top of the truck began to melt in the heated warehouse, it slid off the back of the truck and onto the platform. When the injured plaintiff returned to the loading platform, after loading his truck and getting the necessary paperwork, he slipped on the slush and water that had accumulated on the dock, causing him to fall to the concrete floor and to sustain multiple fractures. Although a wet condition existed on the dock every time it snowed, he never complained to anyone on the day of the accident or at any time before. Nor did he clean the loading dock on the day of the accident. He had no trouble with the lighting conditions in the loading dock area. West Street did not have offices in the warehouse, and once Rentals took possession, West [***4] Street never inspected or entered the premises to perform maintenance or repairs; on occasion, a representative went there to collect [**685] rent. Rentals was responsible for the removal of water, snow and ice from the loading dock. West Street never received any complaints with respect to snow, ice or water on the dock or inadequate lighting. In this personal injury action, plaintiffs asserted causes of action based on negligence and Labor Law violations. West Street answered and impleaded Rentals, seeking common-law/contractual indemnification or contribution. In opposition to West Street's and Rentals' motions for summary judgment, plaintiffs submitted an affidavit from an expert who asserted that the loading docks were defectively designed and dangerous due to the absence of a textured, non-slip, safety surface running along the edge of the dock platform. The expert further cited the absence of a floor surface drainage system/runoff on the dock, and of rubberized flaps above the entrance to the warehouse that would have brushed snow off the tops of the trucks entering the dock before the snow could melt and fall off the truck onto the dock platform. Supreme Court dismissed plaintiffs' [***5] Labor Law § 240 (1) and § 241 (6) claims on the ground that the driver was not engaged in a protected activity. Although finding that West Street was an out-of-possession landlord, that Rentals had assumed responsibility for maintenance of the loading dock, including the removal of snow and ice, and that West Street had no notice of the

wet condition complained of, the court denied summary dismissal of the negligence claims because plaintiffs' expert witness demonstrated that West Street had created the hazardous snow/water condition that led to the accident by reason of faulty design and construction of the loading dock. It further found that West Street's challenge to the sufficiency and validity of [*721] the expert's report merely created an issue of fact. The motions for summary judgment dismissing the complaint should have been granted. On this record, there can be no valid argument that West Street, an out-of-possession landlord, had actual notice of the allegedly slippery condition of the loading platform. [HN1] As to constructive notice, "It is well settled that an out-of-possession owner who retained the right to reenter the premises for repairs [***6] and inspections cannot be held liable under a theory of constructive notice in the absence of 'a significant structural or design defect that is contrary to a specific safety provision'" (McDonald v Riverbay Corp., 308 AD2d 345, 346, 764 NYS2d 185 [2003]; see Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d 230, 750 NYS2d 44 [2002]). While plaintiffs' expert claims that "due to the angle of the sloped driveway, snow slid from the top of [plaintiff's] truck to the loading dock, melted and became a mixture of water and snow," and that flaps could have wiped snow off the trucks before the truck entered the dock, he does not state that it was improper to design a ramp on a downward slope, that the angle of the slope was excessive, or that the construction of the ramp on a downward slope violated any statute or constituted a significant structural defect. Nor does he state that the absence of a non-slip border and drainage system violated any statute or significantly affected the structural integrity of the loading docks. Thus, constructive notice of a defective condition has not been shown (see Nunez v Alfred Bleyer & Co., 304 AD2d 734, 757 NYS2d 798 [2003]). [***7] While liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect (see Stickles v Fuller, 9 AD3d 599, 780 NYS2d 649 [2004]), the claims of plaintiffs' expert do not create an issue of fact in that respect. As noted, his assertions [**686] as to the angle of the sloped driveway notwithstanding, no statutory violation or significant structural defect is stated. While the expert contends that the platform should have been designed to include a nonslip border and drainage, he fails to indicate what engineering protocols and methods he used to arrive at the normative conclusions reached. Not a single Building Code violation is cited. In failing to state these standards and methods, the expert appears to rely solely on his status as a civil engineer. This is insufficient to show negligence in the design or construction (see Bullock v

Page 48

Anthony Equities, Ltd., 12 AD3d 326, 786 NYS2d 144 [2004]). Thus, there has been no showing that West Street created a dangerous condition on the loading dock.

Concur--Buckley, P.J., Mazzarelli, Friedman, Marlow and Sullivan, JJ.

15 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 William Nelson, Respondent, v Chelsea GCA Realty, Inc., et al., Respondents, and Guess?, Inc., Appellant. (And a Third-Party Action.) (Index No. 7111/00) 2003-08871 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 18 A.D.3d 838; 796 N.Y.S.2d 646; 2005 N.Y. App. Div. LEXIS 5812 February 18, 2005, Argued May 31, 2005, Decided CASE SUMMARY: PROCEDURAL POSTURE: Defendant tenant appealed an order from the Supreme Court in Rockland County (New York), which denied its cross-motion for summary judgment dismissal of cross claims by defendants, a shopping center owner and a general contractor, for contribution and common-law indemnification from an action by plaintiff worker for personal injuries based on alleged violations of N.Y. Lab Law §§ 240(1), 241(6). OVERVIEW: The worker claimed personal injuries from a fall when a ladder slipped while he was painting a building that was under construction at the owner's shopping center and was to be leased to the tenant. In response to his action under N.Y. Lab. Law §§ 240(1), 241(6), the owner and the contractor asserted contribution and indemnification cross claims against the tenant. The worker dropped the statutory claims against the tenant and received partial summary judgment on § 240(1) strict liability against the owner and the contractor. The supreme court denied the tenant summary judgment dismissal of the cross claims, finding that a question remained on the role a tenant employee's negligence had in the accident. The tenant appealed. The court found that dismissal of the direct action against the tenant did not prevent indemnification and contribution claims under a

theory other than § 240(1) liability in a third-party action. Since the supreme court properly concluded that a question existed on whether the tenant employee's negligence caused or contributed to the accident, dismissal of the cross claims was not warranted on the ground that the tenant was not subject to § 240(1) liability. OUTCOME: The court modified the order by converting the owner's and the contractor's cross claims into third-party claims against the tenant, and, as modified, the court affirmed the order. CORE TERMS: indemnification, summary judgment, common-law, prospective tenant, cross claims, claims asserted, general contractor, ladder, issue of fact, contractor, painting, withdrew, slipped, leased, different theory, subject to liability, negligence theory, action to recover, contributed, predicated, converted, pursuing, shopping, partial, modified LexisNexis(R) Headnotes

Torts > Procedure > Multiple Defendants > Contribution > General Overview [HN1] The critical requirement of a valid third-party claim for contribution is that the breach of duty by the

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contributing party must have had a part in causing or augmenting the injury for which contribution is sought. Thus, contribution is available whether or not the culpable parties are allegedly liable for the injury under the same or different theories.

JUDGES: ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, STEVEN W. FISHER, JJ. SCHMIDT, J.P., KRAUSMAN, RIVERA and FISHER, JJ., concur. OPINION [*839] [**647]

Torts > Procedure > Multiple Defendants > Contribution > General Overview Torts > Procedure > Multiple Defendants > Indemnity > Noncontractual Indemnity [HN2] The key element of a common-law cause of action for indemnification is a duty owed from the indemitnor to the indemenitee arising from the principle that every one is responsible for the consequences of his own negligence, and if another person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him. HEADNOTES [***1] Actions--Third-Party Action.--In action to recover for injuries sustained by plaintiff when ladder slipped while he was painting building which was to be leased to prospective tenant, cross claims asserted by defendants owner and general contractor for indemnification and contribution were deemed converted to third-party claims after plaintiff withdrew his complaint against prospective tenant. Indemnity--When Claim for Indemnification Available.--In action to recover for injuries sustained by plaintiff when ladder slipped while he was painting building which was to be leased to prospective tenant, fact that defendants owner and general contractor were determined to be liable to plaintiff upon theory that they violated Labor Law § 240 (1) did not necessarily preclude them from pursuing their claims for contribution and common-law indemnification against prospective tenant on different theory; since subject claims were predicated upon negligence theory rather than violation of Labor Law, dismissal was not warranted upon ground that prospective tenant was not statutory agent subject to liability under Labor Law § 240 (1); furthermore, there was issue of fact as to whether alleged negligence of prospective tenant's employee caused or contributed to accident. COUNSEL: Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for appellant. Maloof, Lebowitz, Connahan & Oleske, New York, N.Y. (Jerald F. Oleske of counsel), for defendants-respondents and for third-party plaintiff and third-party defendant (one brief filed).

In an action to recover damages for personal injuries, the defendant Guess?, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Nelson, J.), dated September 7, 2003, as denied those branches of its cross motion which were for summary judgment dismissing the cross claims of the defendants Chelsea GCA Realty, Inc., and Holt Construction Corp. for contribution and common-law indemnification insofar as asserted against it. Ordered that the order is modified, on the law, by adding a provision thereto converting the cross claims asserted against the appellant by the defendants Chelsea [***2] GCA Realty, Inc., and Holt Construction Corp., into third-party claims against the appellant; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants-respondents. On December 8, 1997, the plaintiff allegedly was injured when the ladder he was working on slipped, causing him to fall about 12 feet to the ground. At the time of the accident, the plaintiff was painting the exterior of a building under construction [**648] at an outlet shopping center, which was to be leased to Guess?, Inc. (hereinafter Guess). The plaintiff subsequently commenced this action against the shopping center's owner, Chelsea GCA Realty, Inc. (hereinafter Chelsea), the construction project's general contractor, Holt Construction Corp. (hereinafter Holt), and the prospective tenant, Guess, alleging violations of Labor Law §§ 240 (1) and 241 (6). Both Chelsea and Holt asserted cross claims against Guess, inter alia, for contribution and common-law indemnification. After discovery was conducted, the plaintiff moved for partial summary judgment against Chelsea and Holt on his Labor Law § 240 (1) claim, alleging that they [***3] violated this statute by failing to provide him with an adequately-secured and properly-placed ladder. Guess cross-moved for summary judgment dismissing the complaint and cross claims insofar as asserted against it, contending that it could not be held liable for the plaintiff's injuries under Labor Law §§ 240 (1) and 241(6) because these provisions impose liability only upon owners, contractors, and their statutory agents. In response to the cross motion, the plaintiff withdrew his complaint insofar as asserted against Guess, conceding that Guess could not be held liable under Labor Law §§ 240 (1) and 241 (6) because there was no evidence that it

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was a statutory agent of the owner or contractor. The Supreme Court granted the plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, finding that Chelsea and Holt were strictly liable for his injuries in their capacity as owner and general contractor, respectively. [*840] With respect to the cross motion, the court noted that since the plaintiff withdrew his claims against Guess, that branch of Guess's cross motion [***4] which was for summary judgment dismissing the complaint insofar as asserted against it was academic. However, the court denied those branches of Guess's cross motion which were for summary judgment dismissing the cross claims asserted against it by Chelsea and Holt, concluding, in essence, that the plaintiff's deposition testimony raised an issue of fact as to what role the negligence of a Guess employee may have played in the accident. Guess appeals from so much of the order as denied those branches of its cross motion which were for summary judgment dismissing the contribution and common-law indemnification cross claims insofar as asserted against it by Chelsea and Holt. Although there is no longer a direct action pending against Guess, claims for indemnification and contribution may be maintained in a third-party action (see Arcuri v Ramos, 7 AD3d 741, 776 NYS2d 895 [2004]; Jones v New York City Hous. Auth., 293 AD2d 371, 742 NYS2d 5 [2002]; Wayburn v Madison Land Ltd. Partnership, 282 AD2d 301, 724 NYS2d 34 [2001]). Accordingly, the cross claims asserted by Chelsea and Holt are deemed converted to third-party claims. Guess contends that it cannot be held liable for the plaintiff's injuries [***5] under Labor Law § 240 (1) because it was not a statutory agent of an owner or contractor, and that Chelsea and Holt therefore do not have valid claims for contribution and common-law indemnification against it. We disagree. [HN1] The "critical requirement" of a valid third-party claim for contribution is that "the breach of duty by the contributing party must

have had a part in causing or augmenting the injury for which contribution is sought" (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603, 523 NE2d 803, 528 NYS2d 516 [1988]; see Raquet v Braun, 90 NY2d 177, 681 NE2d 404, 659 NYS2d 237 [1997]; Rosner v Paley, 65 NY2d 736, 481 NE2d 553, 492 NYS2d 13 [1985]). Thus, "contribution is available `whether or not the [**649] culpable parties are allegedly liable for the injury under the same or different theories' " (Raquet v Braun, supra at 183, quoting Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., supra at 603). "Similarly, [HN2] the key element of a common-law cause of action for indemnification" is a duty owed from the indemnitor to the indemnitee arising from "the principle that `every one is responsible for the consequences of his own negligence, and if another person [***6] has been compelled . . .to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him' " (Raquet v Braun, supra at 183, quoting Oceanic Steam Nav. Co. [Ltd.] v Compania Transatlantica Espanola, 134 NY 461, 468, 31 NE 987, 29 Abb N Cas 238 [1892]). Accordingly, the fact that [*841] Chelsea and Holt have been determined to be liable to the plaintiff upon the theory that they violated Labor Law § 240 (1) does not necessarily preclude them from pursuing their claims for contribution and commonlaw indemnification on a different theory (see Raquet v Braun, supra). Since the subject claims are predicated upon a negligence theory rather than a violation of the Labor Law, dismissal was not warranted upon the ground that Guess was not a statutory agent subject to liability under Labor Law § 240 (1). Furthermore, the Supreme Court properly concluded that an issue of fact exists as to whether the alleged negligence of a Guess employee caused or contributed to the accident (see Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 730 NYS2d 535 [2001]; Reilly v DiGiacomo & Son, 261 AD2d 318, 690 NYS2d 424 [1999]). [***7] Schmidt, J.P., Krausman, Rivera and Fisher, JJ., concur.

16 of 55 DOCUMENTS

Analysis As of: Sep 10, 2008 John Driscoll, Appellant, v. Tower Associates et al., Respondents. 5437 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

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MENT 16 A.D.3d 311; 793 N.Y.S.2d 11; 2005 N.Y. App. Div. LEXIS 3234 March 29, 2005, Decided March 29, 2005, Entered PRIOR HISTORY: [***1] Driscoll v. Tower Assocs., 2004 N.Y. App. Div. LEXIS 13385 (N.Y. App. Div. 1st Dep't, Nov. 9, 2004) CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff fireman appealed the order of the Supreme Court, New York County (New York), granting summary judgment in favor of defendants, tenant and others, in the fireman's cause of action pursuant to N.Y. Gen. Mun. Law § 205-a and his cause of action alleging common law personal injury claims. OVERVIEW: Based on a fire department report stating that the fire originated in a closet in the tenant's apartment where oily rags were being stored, the fireman asserted a N.Y. Gen. Mun. Law § 205-a claim alleging violation of former N.Y. Comp. Codes R. & Regs. tit. 9, §§ 1191.1a, 1191.1e. The trial court erred when it held that because these sections were a general codification of common law negligence, they could not serve as a predicate for a N.Y. Gen. Mun. Law § 205-a claim. It was not necessary for the fireman to show that the violation that allegedly caused the fire exposed him to additional hazards immediately causing his injury or that there was some formal notice of hazard. The tenant's statements that he did not know about the oily rags were insufficient to warrant summary judgment in his favor. As to the common law claims, in response to the prima facie showing by the tenant and others that the code violations alleged by the fireman, even if proven, were neither a direct nor indirect cause of the accident, the fireman failed to raise a triable issue of fact that there was a practical or reasonable connection between the alleged code violations and the claimed injuries. OUTCOME: The order was modified insofar as the statutory claim was reinstated. The order was otherwise affirmed. CORE TERMS: common-law, hazard, firefighter, tenant, oily, rags, code violations, summary judgment, apartment, smoke, hose, violation of former, formal notice, initial burden, smoke alarm, demonstrating, investigated, proximately, predicated, precautions, notifying, operable, indirect, exposed, storage, closet

HEADNOTES Negligence--Injuries to Firefighters.--Plaintiff firefighter stated valid claim under General Municipal Law § 205-a against tenant predicated on storing oily rags in closet in violation of former Fire Prevention and Building Code (9 NYCRR) §1191.1 (a) (general precautions), and it was not necessary for plaintiff to show that violation exposed him to additional hazards immediately causing his injury, or that there was some formal notice of hazard--tenant's statements that he did not know about storage of oily rags were insufficient to warrant summary judgment in his favor. Negligence--Injuries to Firefighters.--Defendants sustained their initial burden of proof for dismissal of common-law claims by demonstrating that code violations alleged by plaintiff firefighter, relating to absence of operable smoke alarm in defendant tenants apartment, and 15-minute delay in notifying Fire Department while it investigated source of smoke, were neither direct nor indirect cause of plaintiff's accident--plaintiff's failure to demonstrate that alleged violations proximately caused accident meant that defendants could not be liable for common-law negligence (see General Obligations Law § 11-106). COUNSEL: Barasch McGarry Salzman Penson & Lim, New York (Dominique Penson of counsel), for appellant. Greater New York Mutual Insurance Company, New York (Richard C. Rubinstein of counsel), for Tower Associates, Regency Affiliates, Carlyle Construction Corporation and Regency Joint Venture, respondents. Marshall, Conway & Wright, P.C., New York (Steven L. Sonkin of counsel), for Thomas DeMaio, respondent. JUDGES: Concur--Tom, J.P., Mazzarelli, Andrias, Friedman, Gonzalez, JJ. OPINION [*312] [**12] Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered October 7, 2002, which granted defendants' motions for summary

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judgment dismissing the complaint, unanimously modified, on the law, the claim under General Municipal Law § 205-a reinstated against defendant DeMaio, and otherwise affirmed, without costs. Based on a Fire Department report stating that the fire originated near the stove in DeMaio's apartment, in a closet where oily rags were being stored, plaintiff fireman asserted a section 205-a claim against DeMaio predicated, inter alia, on practices in [***2] violation of former Fire Prevention and Building Code (9 NYCRR) § 1191.1 (a) (general precautions) and (e) (maintaining a hazard). The court erred when it held that because these sections are a general codification of common-law negligence, they may not serve as a predicate for a section 205-a claim (see Giuffrida v Citibank Corp., 100 NY2d 72, 790 NE2d 772, 760 NYS2d 397 [2003]). It is not necessary for plaintiff to show that the violation allegedly causing the fire exposed him to additional hazards immediately causing his injury (see Clow v Fisher, 228 AD2d 11, 652 NYS2d 870 [1997]), or that there was some formal notice of a hazard (see Lusenskas v Axelrod, 183 AD2d 244, 248, 592 NYS2d 685 [1992], appeal dismissed 81 NY2d 300, 614 NE2d 729, 598 NYS2d 166 [1993]). DeMaio's statements that he did not know about the storage of oily rags are insufficient to warrant summary judgment in his favor. As to the common-law claims, however, defendants

did sustain their initial burden of proof by demonstrating that the code violations alleged by plaintiff--relating to the absence of an operable smoke alarm in DeMaio's apartment, and the 15-minute delay by the building staff in notifying the [***3] Fire Department while it investigated the source of the smoke reported by an unidentified tenant--even if proven, were neither a direct nor indirect cause of plaintiff's accident. Plaintiff testified at deposition [*313] that he had been "whacked" by the fire hose he had connected to the standpipe as a result of somebody turning on the water or pulling the hose line. Alternatively, he was not sure what had caused the hose to hit him, but at no point did he link the cause of this accident to the smoke condition he allegedly encountered in the stairwell. In opposition to defendants' prima facie demonstration of entitlement to judgment as a matter of law, plaintiff failed to raise a triable issue of fact that there was a practical or reasonable connection between these alleged code violations and the claimed injuries (cf. Giuffrida v Citibank Corp., supra). Furthermore, plaintiff's failure to demonstrate that the alleged violations proximately caused the accident meant that defendants could not be liable for common-law negligence (see General Obligations Law § 11-106; [***4] Signorile v Roy, 308 AD2d 573, 764 NYS2d 870 [2003], lv denied 1 NY3d 504, 807 NE2d 894, 775 NYS2d 781 [2003]). Concur--Tom, J.P., Mazzarelli, Andrias, Friedman and Gonzalez, JJ.

17 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Christopher Hosler, Appellant, v Northern Eagle Beverages, Inc., Defendant, and Barbara L. Albert, Respondent. CA 04-02161 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 15 A.D.3d 925; 790 N.Y.S.2d 341; 2005 N.Y. App. Div. LEXIS 1085 February 4, 2005, Decided February 4, 2005, Entered DISPOSITION:

[***1] Affirmed.

CASE SUMMARY:

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PROCEDURAL POSTURE: Plaintiff sought review of an order of the Supreme Court, Onondaga County (New York), which granted defendant's motion for summary judgment in an action asserting causes of action for common-law negligence and the violation of N.Y. Lab. Law §§ 200, 240(1), and 241(6). OVERVIEW: Plaintiff filed an action against defendant after he fell while installing a satellite television dish on the garage roof at defendant's residence. Defendant and her brother resided in the house. The satellite dish was for the use of defendant's tenant, who resided in an apartment over the garage. The trial court granted defendant's motion for summary judgment. On appeal, the court found that defendant's house constituted a single-family dwelling, and the apartment over the garage rendered the house a two-family dwelling. At the time of the accident, plaintiff was engaged in an activity that directly related to the residential use of the home. Even if the work also served a commercial purpose, defendant nevertheless was shielded by the homeowner exemption from the absolute liability of N.Y. Lab. Law §§ 240 and 241. The trial court properly granted that part of defendant's motion with respect to the common-law negligence cause of action and the N.Y. Lab. Law § 200 claim. It was undisputed that defendant neither supervised nor controlled plaintiff's work, and defendant established as a matter of law that plaintiff's injuries were not caused by a dangerous condition on her premises. OUTCOME: The court affirmed the order of the trial court. CORE TERMS: garage, television, causes of action, satellite, apartment, dwelling, roof, dish, single-family, common-law, matter of law, commercial purpose, absolute liability, dangerous condition, summary judgment, properly granted, residential, installing, supervised, homeowner, exemption, stepping, shielded, ladder, snow, ice HEADNOTES Labor--Safe Place to Work.--Labor Law § 240 (1) and § 241 (6) causes of action were dismissed in action to recover for injuries sustained by plaintiff when he fell to ground while stepping from ladder onto roof of defendant's garage while installing satellite television dish on roof of garage of defendant's residence--defendant's house constituted single-family dwelling, and apartment over attached garage rendered house two-family dwelling--plaintiff was engaged in activity that directly related to residential use of home; even if work also served com-

mercial purpose, defendant was shielded by homeowner exemption from absolute liability of Labor Law §§ 240 and 241--common-law negligence cause of action and Labor Law § 200 claim were also dismissed; defendant neither supervised nor controlled plaintiff's work, and defendant established as matter of law that plaintiff's injuries were not caused by dangerous condition on her premises, i.e., snow and ice. COUNSEL: STANLEY LAW OFFICES, SYRACUSE, (ROBERT QUATTROCCI OF COUNSEL), FOR PLAINTIFF-APPELLANT. MITCHELL GORIS STOKES & KNYCH, LLC, CAZENOVIA, (MARK D. GORIS OF COUNSEL), FOR DEFENDANT-RESPONDENT. JUDGES: Present--Green, J.P., Scudder, Martoche, Smith and Lawton, JJ. OPINION [*926] [**342] Appeal from an order of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered December 2, 2003. The order granted the motion of defendant Barbara L. Albert for summary judgment dismissing the complaint against her. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of Barbara L. Albert (defendant) seeking summary judgment dismissing the complaint against her. Plaintiff commenced this action asserting causes of action for common-law negligence and the violation of Labor Law §§ 200, 240 (1) and § 241 (6) arising from injuries he sustained when he fell to the ground while stepping from a ladder onto the roof of defendant's garage. Plaintiff fell while installing [***2] a satellite television dish on the roof of the garage of defendant's residence. Defendant and her brother resided in the house, and the satellite television dish was for the use of defendant's tenant, who resided in an apartment over the attached garage. Although defendant's brother paid rent to defendant, the house was "structurally a single-family residence," and defendant's brother did not have "separate living quarters" (Rivera v Revzin, 163 AD2d 896, 897, 559 NYS2d 74 [1990], lv denied 79 NY2d 760, 594 NE2d 942, 584 NYS2d 448 [1992]). Thus, contrary to plaintiff's contention, defendant's house constitutes a single-family dwelling, and the apartment over the attached garage renders the house a two-family dwelling (see generally Sheehan v Gong, 2 AD3d 166, 168-169, 769 NYS2d 507 [2003]). The televisions in both the house and the apart-

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ment utilized one satellite television dish prior to the installation of the second one, and we therefore further conclude that plaintiff was engaged in an activity that "directly relates to the residential use of the home" (Bartoo v Buell, 87 NY2d 362, 368, 662 NE2d 1068, 639 NYS2d 778 [1996]). Thus, "even if the work also serves a commercial purpose, [defendant nevertheless] is shielded [***3] by the homeowner exemption from the absolute liability of Labor Law §§ 240 and 241" (id.). Furthermore, the court properly granted that part of

defendant's motion with respect to the common-law negligence cause [*927] of action and the Labor Law § 200 [**343] claim. It is undisputed that defendant neither supervised nor controlled plaintiff's work, and defendant established as a matter of law that plaintiff's injuries were not caused by a dangerous condition on her premises, i.e., snow and ice (see Sheehan, 2 AD3d at 170; Millson v Arnot Realty Corp., 266 AD2d 918, 919, 697 NYS2d 435 [1999]; see also Bilinski v Bank of Richmondville, 12 AD3d 911, 784 NYS2d 708 [2004]). Present--Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.

18 of 55 DOCUMENTS

Analysis As of: Sep 10, 2008 Ernest B. Turner, Appellant, v. Richard Canale et al., Respondents. CA 04-01326 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 15 A.D.3d 960; 790 N.Y.S.2d 347; 2005 N.Y. App. Div. LEXIS 1097 February 4, 2005, Decided February 4, 2005, Entered SUBSEQUENT HISTORY: [***1] Appeal denied by Turner v. Canale, 5 NY3d 702, 832 NE2d 1189, 2005 N.Y. LEXIS 1220, 799 NYS2d 773 (N.Y., June 9, 2005) CASE SUMMARY: PROCEDURAL POSTURE: Appellant injured tenant sought review of the judgment of the Supreme Court, Oswego County (New York), which denied the tenant's motion for partial summary judgment on the issue of liability under N.Y. Lab. Law § 240(1) and granted appellee premises owners' cross motion for summary judgment in regard to a personal injury action. OVERVIEW: The parties executed a lease for the rental of premises owned by the premises owners to be used by the tenant as a retail bicycle shop. According to the terms of the lease, rent in the amount of $ 800 was

waived for the first month of the lease as the premises owners' contribution to renovations required for the tenant's use. The tenant expended over $ 20,000 in renovation work in order to transform the building into a retail bicycle shop and was injured during those renovations when a stepladder fell out from under him. He commenced the action asserting causes of action for common-law negligence and violations of N.Y. Lab. Law §§ 240(1), 241(6), and 200. The appellate court concluded that the trial court properly granted that part of the cross motion seeking summary judgment dismissing the section 240(1) cause of action. Contrary to the contention of the tenant, the terms of the lease did not establish that he was "hired" by the premises owners to renovate the property and thus the terms of the lease did not establish that the tenant was employed by the premises owners within the meaning of the Labor Law. OUTCOME: The judgment of the trial court was affirmed.

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CORE TERMS: cause of action, lease, summary judgment, renovation, partial, terms of lease, stepladder, renovate, bicycle, waived, retail, hired, rent, shop HEADNOTES Labor--Safe Place to Work.--Labor Law § 240 (1) cause of action was dismissed in action by plaintiff tenant, who was injured during renovations of leased premises when stepladder fell out from under him--lease provided that rent was waived for first month of lease as defendant's "contribution to renovations required for [plaintiff's] use"--terms of lease did not establish that plaintiff was "hired" by defendants to renovate property and thus terms of lease did not establish that plaintiff was employed by defendants within meaning of Labor Law. COUNSEL: SUGARMAN LAW FIRM, LLP, SYRACUSE (SANDRA L. HOLIHAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. COHEN & LOMBARDO, P.C., BUFFALO (CHRISTOPHER M. DUGGAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. JUDGES: PRESENT--PIGOTT, JR., P.J., PINE, KEHOE, GORSKI, AND MARTOCHE, JJ. OPINION [*960] [**348] Appeal from an order of the Supreme Court, Oswego County (Robert J. Nicholson, J.), entered December 5, 2003. The order denied plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) and granted defendants' cross motion for summary judgment dismissing the amended complaint in a personal injury action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff and Richard Canale (defendant) executed a lease for the rental of premises owned by

defendants to be used by plaintiff as a retail bicycle shop. According to the terms of the lease, rent in the amount of $ 800 was waived for the first month of the lease as defendant's "contribution to renovations required [***2] for [plaintiff's] use." Plaintiff expended over $ 20,000 in renovation work in order to transform the building into a retail bicycle shop and was injured during those renovations when a stepladder fell out from under him. He commenced this action asserting causes of action for common-law negligence and violations of Labor Law § 240 (1), § 241 (6) and § 200. Plaintiff moved for partial summary judgment on liability on the section 240 (1) cause of action, and defendants cross-moved for summary judgment dismissing the amended complaint. Supreme Court denied plaintiff's motion and granted defendants' cross motion. In his brief on appeal, plaintiff contends only that the court erred in dismissing the section 240 (1) cause of action and in denying his motion for partial summary judgment on that cause of action and thus has abandoned his appeal with respect to the court's dismissal of the other causes of action (see Russo v Clinton Disposal Serv., 295 AD2d 1006, 1007, [*961] 743 NYS2d 369 [2002]; Ciesinski v Town of Aurora, 202 AD2d 984, 609 NYS2d 745 [1994]). We note in addition that the contentions raised for the first time in plaintiff's reply brief are not properly before this Court (see Greene v Xerox Corp., 244 AD2d 877, 878, 665 NYS2d 137 [1997], [***3] lv denied 91 NY2d 809, 693 NE2d 750, 670 NYS2d 403 [1998]; O'Sullivan v O'Sullivan, 206 AD2d 960, 960-961, 614 NYS2d 828 [1994]). With respect to the merits, we conclude that the court properly granted that part of defendants' cross motion seeking summary judgment dismissing the Labor Law § 240 (1) cause of action. Contrary to the contention of plaintiff, the terms of the lease do not establish that he was "hired" by defendants to renovate the property and thus the terms of the lease do not establish that plaintiff was employed by defendants within the meaning of the Labor Law (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971, 393 NE2d 1032, 419 [**349] NYS2d 959 [1979]; see Labor Law § 2 [5]; Schiavone v Halicki, 221 AD2d 950, 951, 634 NYS2d 312 [1995]). Present-Pigott, Jr., P.J., Pine, Kehoe, Gorski and Martoche, JJ.

19 of 55 DOCUMENTS

Cited As of: Sep 10, 2008

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Linda Knipfing et al., Appellants, v. V&J, Inc., et al., Respondents. Index No. 23440/00 2003-09500 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 8 A.D.3d 628; 779 N.Y.S.2d 244; 2004 N.Y. App. Div. LEXIS 9133 June 10, 2004, Submitted June 28, 2004, Decided CASE SUMMARY: PROCEDURAL POSTURE: In an action to recover damages for personal injuries, plaintiffs, a wife and her husband, challenged an order from the Supreme Court in Suffolk County (New York), which granted defendant landowners' motion for summary judgment dismissing the complaint and denied, as academic, their cross motion to direct the landowners to implead a third party. OVERVIEW: The wife allegedly sustained injuries when she fell while dancing at premises owned by the landowner and leased to a restaurant company, which operated it as a night club. She and her husband commenced a personal injury action, alleging the fall was caused by a sticky substance on the dance floor. The landowner was dismissed from the action on summary judgment, prompting the wife and the husband to appeal. The court found the landowner could only be liable if it retained controlled over the premises, which it did not have. The restaurant company was responsible for maintenance and repairs. While the owner had the right to enter for purposes of inspection and repair, the husband and the wife submitted no evidence of any statutory violation or structural or design defect. The husband and the wife failed to raise a triable issue of fact in opposition to the landowner's prima facie showing of its entitlement to summary judgment. Dismissal of the landowners from the suit was proper. OUTCOME: The court affirmed the order granting the landowners' motion for summary judgment. CORE TERMS: repair, design defect, summary judgment, inspection, right to enter, statutory violation, implead, lease, action to recover, dance floor, dancing, sticky LexisNexis(R) Headnotes

Torts > Premises Liability & Property > Lessees & Lessors > General Overview Torts > Products Liability > Design Defects [HN1] An out-of-possession landlord is not liable for injuries occurring on the premises unless it has retained control of the premises or is contractually obligated to perform maintenance and repairs. Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition, but only where the condition violates a specific statutory provision and there is a significant structural or design defect. HEADNOTES [***1] Negligence--Maintenance of Premises.-Complaint dismissed in action to recover for injuries sustained by plaintiff when she fell while dancing on sticky substance on dance floor at premises owned by defendant--defendant did not retain control over premises; under terms of lease, tenant was responsible for maintenance and repairs; while defendant had right to enter for purposes of inspection and repair, plaintiffs submitted no evidence of any statutory violation or structural or design defect. COUNSEL: Zimmer, Mazzei and Blair, Hauppauge, N.Y. (Patricia Byrne Blair of counsel), for appellants. Clausen Miller, P.C., New York, N.Y. (Kimberly A. Kearney, Steven J. Fried, and Melissa A. Murphy-Petros of counsel), for respondents. JUDGES: MYRIAM J. ALTMAN, J.P., HOWARD MILLER, SANDRA L. TOWNES, STEVEN W. FISHER, JJ. ALTMAN, J.P., H. MILLER, TOWNES and FISHER, JJ., concur. OPINION [*628] [**245] In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an

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order of the Supreme Court, Suffolk County (Werner, J.), dated September 4, 2003, which granted the defendants' motion for summary judgment dismissing the complaint and denied as academic their cross motion to direct the defendants to implead a third party. Ordered that the order is affirmed, with costs. The plaintiff Linda Knipfing allegedly sustained injuries when she fell while dancing at premises owned by V&J, Inc., and leased to M.J.M. Restaurant Corp. (hereinafter M.J.M.). She and her husband subsequently commenced this action against V&J, Inc., and V&J, Inc., doing business as Landmark II Cafe (hereinafter [***2] collectively V&J), alleging that her fall was caused by a sticky substance on the dance floor. [HN1] An out-of-possession landlord is not liable for injuries occurring [*629] on the premises unless it has retained control of the premises or is contractually obligated to perform maintenance and repairs (see Ingargiola v Waheguru Mgt., 5 A.D.3d 732, 774 N.Y.S.2d 557 [2004]; Thompson v Port Auth. of N.Y. & N.J., 305 A.D.2d 581, 761 N.Y.S.2d 75 [2003]; Eckers v Suede, 294 A.D.2d 533, 743 N.Y.S.2d 129 [2002]). Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition, but only where

the condition violates a specific statutory provision and there is a significant structural or design defect (see Ingargiola v Waheguru Mgt., supra; Nunez v Alfred Bleyer & Co., 304 A.D.2d 734, 757 N.Y.S.2d 798 [2003]; Eckers v Suede, supra). [**246] Here, V&J did not retain control over the premises. Under the terms of the lease, M.J.M. was responsible for maintenance and repairs. While V&J had the right to enter for purposes of inspection and repair, the plaintiffs submitted no evidence of any statutory violation or [***3] structural or design defect. The plaintiffs failed to raise a triable issue of fact in opposition to V&J's prima facie showing of its entitlement to summary judgment. Consequently, the Supreme Court properly granted V&J's motion for summary judgment dismissing the complaint and denied as academic the plaintiffs' cross motion to direct V&J to implead M.J.M. (see Ingargiola v Waheguru Mgt., supra; Thompson v Port Auth. of N.Y. & N.J., supra; Nunez v Alfred Bleyer & Co., supra). The plaintiffs' contention that V&J should be estopped from denying liability is without merit. In light of the foregoing, it is unnecessary to address the parties' remaining contentions. Altman, J.P., H. Miller, Townes and Fisher, JJ., concur.

20 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Edward Murphy et al., Respondents, v. WFP 245 Park Co., L.P., Respondent, and The Bear Stearns Companies, Inc., Appellant, et al., Defendant. Bear Stearns & Co., Inc., Third-Party Plaintiff-Appellant, v Fraser Gold Carpet Corp., Third-Party Defendant-Respondent. (And Another Action.) 3960 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 8 A.D.3d 161; 779 N.Y.S.2d 69; 2004 N.Y. App. Div. LEXIS 8664 June 22, 2004, Decided June 22, 2004, Entered CASE SUMMARY:

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PROCEDURAL POSTURE: The Supreme Court, Bronx County (New York), granted respondent landlord's summary judgment motion against appellant tenant for contribution and indemnification, denied the tenant's motion for summary judgment dismissing the complaint, denied the tenant's summary judgment motion against respondent carpeting subcontractor, and granted the carpeting subcontractor's summary judgment motion dismissing the third-party complaint. The tenant appealed. OVERVIEW: On appeal, the court found that the carpeting subcontractor had no authority to supervise or control the demolition work that actually gave rise to the claimant's injuries, and thus any claims against it were properly dismissed. A factual issue remained, however, as to the tenant's authority to supervise and control the ongoing demolition and renovation work. An issue also existed with regard to the claimant's N.Y. Lab. Law § 241(6) claim of a violation of the New York Industrial Code (N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7(e)) -- specifically, whether the studding over which the claimant tripped was part of new drywall construction or whether they were studs that had yet to be demolished. The landlord was entitled to summary judgment on its motion for contractual indemnification because there was no issue of negligence on the part of the landlord. However, in light of factual issues concerning the extent to which the tenant was liable, the issue of common-law indemnification was not yet ripe for adjudication. OUTCOME: The order was modified to deny the landlord's motion with respect to common-law indemnification, and, as modified, the order was otherwise affirmed, without costs. CORE TERMS: summary judgment, indemnification, demolition, supervise, factual issue, gave rise, properly dismissed, subcontractor, renovation, demolished, common-law, carpeting, studding, landlord, ongoing, tripped, drywall, tenant, studs HEADNOTES [***1] Labor--Safe Place to Work.--Since defendant carpeting subcontractor had no authority to supervise or control demolition work that gave rise to plaintiff's injuries, any claims against it were properly dismissed-factual issue remained, however, as to defendant tenant's authority to supervise and control ongoing demolition and renovation work, precluding summary judgment in its favor; issue also existed with regard to plaintiff's Labor Law § 241 (6) claim of violation of Industrial Code (12 NYCRR 23-1.7 [e]), specifically, whether stud-

ding over which plaintiff tripped was part of new drywall construction or whether they were studs that had yet to be demolished. COUNSEL: Eustace & Marquez, White Plains (Heath A. Bender of counsel), for appellant. Alexander J. Wulwick, New York, for Murphy respondents. Cerussi & Spring, White Plains (Jennifer R. Freedman of counsel), for WFP 245 Park Co., L.P., respondent. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for Fraser Gold Carpet Corp., respondent. JUDGES: Concur--Nardelli, J.P., Mazzarelli, Andrias, Gonzalez and Sweeny, JJ. OPINION [*161] [**70] Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 1, 2003, which granted defendant WFP 245 Park's motion for summary judgment on its cross claim against defendant Bear Stearns for contribution and indemnification, denied Bear Stearns's cross motion for summary judgment dismissing the complaint and all claims against it, denied Bear Stearns's motion for summary judgment against third-party defendant [*162] Fraser Gold Carpet, and granted Fraser Gold's motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, WFP Park's motion with respect to common-law indemnification denied, and [***2] otherwise affirmed, without costs. Fraser Gold, the carpeting subcontractor, had no authority to supervise or control the demolition work that actually gave rise to plaintiff's injuries, and thus any claims against it were properly dismissed (see Walsh v Sweet Assoc., 172 A.D.2d 111, 577 N.Y.S.2d 324 [1991], lv denied 79 N.Y.2d 755, 590 N.E.2d 251, 581 N.Y.S.2d 666 [1992]). A factual issue remains, however, as to the tenant Bear Stearns's authority to supervise and control the ongoing demolition and renovation work. An issue also [**71] exists with regard to plaintiff's Labor Law § 241 (6) claim of a violation of the Industrial Code (12 NYCRR 23-1.7 [e])--specifically, whether the studding over which plaintiff tripped was part of new drywall construction or whether they were studs that had yet to be demolished (see Vieira v Tishman Constr. Corp., 255 A.D.2d 235, 679 N.Y.S.2d 618 [1998]). The landlord was entitled to summary judgment on its motion for contractual indemnification since there is

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no issue of negligence on the part of the landlord. However, in light of factual issues concerning the extent to which Bear Stearns was liable, the issue of commonlaw indemnification [***3] is not yet ripe for adjudica-

tion (Correia v Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1999]). Concur--Nardelli, J.P., Mazzarelli, Andrias, Gonzalez and Sweeny, JJ.

21 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 James Ingargiola, Respondent, v. Waheguru Management, Inc., et al., Respondent, and E. Anthony Mazzella, Jr., Appellant. (Index No. 18090/01) 2003-03343 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 5 A.D.3d 732; 774 N.Y.S.2d 557; 2004 N.Y. App. Div. LEXIS 3617 February 23, 2004, Argued March 29, 2004, Decided SUBSEQUENT HISTORY: [***1] Appeal dismissed by Ingargiola v. Waheguru Mgmt., Inc., 3 N.Y.3d 656, 816 N.E.2d 568, 2004 N.Y. LEXIS 1704, 782 N.Y.S.2d 695 (N.Y., June 29, 2004) CASE SUMMARY: PROCEDURAL POSTURE: In an action to recover damages for personal injuries, defendant property owner appealed from an order of the Supreme Court, Suffolk County (New York), that denied his motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against him and for summary judgment on his cross claim for contractual indemnification against defendant lessee. OVERVIEW: The lessee was responsible for the maintenance and repair of the premises under the terms of the lease and had agreed to indemnify and hold the owner harmless against personal injury claims arising out of its negligence. In a rider to the lease, the lessee also agreed to include the owner as an additional insured on its general liability coverage policy. The owner relinquished control over the property, and was not obligated under the terms of the lease to maintain and repair the premises. Moreover, the owner was free to contract with

the lessee to maintain and repair the premises and to allocate the risk of liability to third parties. Accordingly, the owner was entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against him as he demonstrated his prima facie entitlement to such relief, and the opposition was insufficient to establish a triable issue of fact warranting a denial of the motion. Finally, the owner was entitled to summary judgment on his cross claim against the assignee, the lessee, for contractual indemnification, which included attorney's fees, expenses, costs, and disbursements. OUTCOME: The order was reversed, the owner's motions were granted, and the matter dismissed as to the property owner. It was remitted to the trial court for a determination of costs. CORE TERMS: cross claims, summary judgment, repair, lease, car wash, indemnification, contractual, personal injury, assignee, design defect, attorney's fees, disbursements, obligated, landlord, individually, right of entry, impose liability, liability insurance, expressly assumed, out-of-possession, relinquished, reservation, procurement, retention, allocate, tenant, mutual, action to recover, claims arising, terms of lease LexisNexis(R) Headnotes

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Kaufman Borgeest & Ryan, LLP, New York, N.Y. (Michael R. Janes of counsel), for defendants-respondents. Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Duty to Repair > General Overview [HN1] An out-of-possession landlord is not liable for personal injuries sustained on the premises unless the landlord retains control of the property or is contractually obligated to perform maintenance and repairs. Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Power to Reenter & Terminate Torts > Premises Liability & Property > Lessees & Lessors > General Overview Torts > Products Liability > Design Defects [HN2] Although reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession landlord for injuries caused by a dangerous condition which constitutes a violation of a duty imposed by statute, this exception applies only where a specific statutory violation exists and there is a significant structural or design defect. HEADNOTES Negligence--Maintenance of Premises.--In action to recover for injuries sustained by plaintiff allegedly due to defendants' negligence while at premises owned by defendant owner and leased by nonparty, which assigned lease to defendant assignee, owner was entitled to summary judgment dismissing complaint and cross claims against him--assignee was responsible for maintenance and repair of premises under terms of lease and had agreed to indemnify and hold owner harmless against personal injury claims arising out of its negligence; owner relinquished control over property, and was not obligated under terms of lease to maintain and repair premises--owner's reservation of right of entry did not constitute sufficient retention of control to impose liability since plaintiff did not allege violation of specific statutory safety provision or existence of significant structural or design defect--owner was free to contract with his tenant to maintain and repair premises and to allocate risk of liability to third parties by procurement of liability insurance for their mutual benefit; assignee expressly assumed those obligations upon execution of assignment. COUNSEL: Thomas M. Bona, P.C., White Plains, N.Y. (Robert M. Lefland of counsel), for appellant. Cruser & Mitchell, LLP, Melville, N.Y. (Justin L. Lowenberger of counsel), for plaintiff-respondent.

JUDGES: SONDRA MILLER, J.P., DANIEL F. LUCIANO, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ. S. MILLER, J.P., LUCIANO, ADAMS and TOWNES, JJ., concur. OPINION [*732] [**558] In an action to recover damages for personal injuries, the defendant E. Anthony Mazzella, Jr., appeals from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated March 12, 2003, as, in effect, denied those branches of his motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against him and for summary judgment on his cross claim for contractual indemnification against the defendant Waheguru Management, Inc., individually and doing business as Mike's Full Service Car Wash and Detail Center. Ordered that the order is reversed insofar as appealed from, with [***2] one bill of costs payable by the respondents appearing separately and filing separate briefs, those branches of the motion which were for summary judgment dismissing the [**559] complaint and all cross claims insofar as asserted against the appellant and for summary judgment on the appellant's cross claim for contractual indemnification against the defendant Waheguru Management, Inc., individually and doing business as Mike's Full Service Car Wash and Detail Center are granted, the [*733] complaint and all cross claims are dismissed insofar as asserted against the appellant, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the amount of attorney's fees, expenses, costs, and disbursements to be awarded on the cross claim for contractual indemnification against the defendant Waheguru Management, Inc., individually and doing business as Mike's Full Service Car Wash and Detail Center. On March 19, 2000, the plaintiff was injured, allegedly due to the defendants' negligence, while at a car wash located at premises owned by the defendant E. Anthony Mazzella, Jr. The premises were leased to a nonparty, M & G Car Wash, Inc., which subsequently assigned the lease to the defendant Waheguru [***3] Management, Inc. (hereinafter Waheguru). Waheguru was responsible for the maintenance and repair of the premises under the terms of the lease and had agreed to indemnify and hold Mazzella harmless against personal injury claims arising out of its negligence. In a rider to the lease, Waheguru also agreed to include Mazzella as an additional insured on its general liability coverage policy. The lease further provided, inter alia, that Mazzella re-

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tained the right to enter the premises during normal business hours. Mazzella moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against him and for summary judgment on his cross claim against Waheguru for contractual indemnification. The Supreme Court denied the motion. [HN1] "An out-of-possession landlord is not liable for personal injuries sustained on the premises unless the landlord retains control of the property or is contractually obligated to perform maintenance and repairs" (Dominguez v Food City Mkts., 303 A.D.2d 618, 619, 756 N.Y.S.2d 637 [2003]; Reidy v Burger King Corp., 250 A.D.2d 747, 748, 673 N.Y.S.2d 441 [1998]). On the present set of facts, Mazzella relinquished control over the property, and [***4] was not obligated under the terms of the lease to maintain and repair the premises (see Stark v Port Auth. of N.Y. & N.J., 224 A.D.2d 681, 639 N.Y.S.2d 57 [1996]; Reidy v BurgerKing, Corp., supra at 748). [HN2] "Although reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession landlord for injuries caused by a dangerous condition which constitutes a violation of a duty imposed by statute, this exception applies only where 'a specific statutory violation exists and there is a significant structural or design defect'" (Nunez v Bleyer & Co., 304 A.D.2d 734, 757 N.Y.S.2d 798 [2003], quoting Fucile v Grand Union Co., 270 A.D.2d 227, 705 N.Y.S.2d 377 [2000]). However, the plaintiff did not allege either a violation of a specific statutory safety provision or the existence of a significant structural or design [*734] defect (see Thompson v Port Auth. of N.Y. &

N.J., 305 A.D.2d 581, 582, 761 N.Y.S.2d 75 [2003]; Nunez v Bleyer & Co., supra at 734; Stark v Port Auth. of N.Y. & N.J., supra at 682). Moreover, Mazzella was free to contract with his tenant, M & G Car Wash, Inc., to maintain and repair the [***5] premises and to allocate the risk of liability to third parties by the procurement of liability insurance for their mutual benefit (see Morel v City of New York, 192 A.D.2d 428, 429, 597 N.Y.S.2d 8 [1993]; Schumacher v Lutheran [**560] Community Servs., 177 A.D.2d 568, 576 N.Y.S.2d 162 [1991]). Waheguru expressly assumed those obligations upon execution of the assignment. Accordingly, Mazzella was entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against him as he demonstrated his prima facie entitlement to such relief, and the opposition was insufficient to establish a triable issue of fact warranting a denial of the motion (see generally Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). In addition, pursuant to the indemnification clause in the lease, Mazzella was entitled to summary judgment on his cross claim against the assignee, Waheguru, for contractual indemnification, which includes attorney's fees, expenses, costs, and disbursements. Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a determination of the amount of attorney's fees, expenses, costs and disbursements to be awarded (see Dominguez v Food City Mkts., supra at 620). [***6] S. Miller, J.P., Luciano, Adams and Townes, JJ., concur.

22 of 55 DOCUMENTS

Analysis As of: Sep 10, 2008 Ronald Ernish et al., Respondents, v City of New York et al., Appellants. 2288 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 2 A.D.3d 256; 768 N.Y.S.2d 325; 2003 N.Y. App. Div. LEXIS 13298 December 16, 2003, Decided

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December 16, 2003, Entered SUBSEQUENT HISTORY: Related proceeding at Nat'l Union Fire Ins. Co. v. Universal Fabricators, Inc., 2007 U.S. Dist. LEXIS 49284 (S.D.N.Y., July 6, 2007)

LexisNexis(R) Headnotes

CASE SUMMARY: PROCEDURAL POSTURE: The Supreme Court, New York County (New York), directed a jury verdict at the close of trial evidence in favor of plaintiffs, an injured worker and others, on the issue of the liability of defendants, a city and others, pursuant to N.Y. Lab. Law § 240(1), and entered judgment in favor of plaintiffs in the total sum of $ 3 million. Defendants appealed the judgment. OVERVIEW: The injured worker was injured when a ladder and/or makeshift scaffold on which he was standing collapsed. The appellate court held that in order to prevail on an N.Y. Lab. Law § 240(1) claim, the injured worker had to show that the violation of the statute was a proximate cause of his injuries. Notwithstanding defendants' assertion to the contrary, there were no material inconsistencies between the injured worker's deposition and his trial testimony. Plaintiffs demonstrated that the makeshift scaffold and/or the ladder collapsed, and that the injured worker had no safety equipment, all of which contributed to his fall. This constituted a prima facie showing of a statutory violation, proximately causing his injuries. Defendants failed to controvert this showing or to establish that either the scaffold or the ladder was so constructed, placed, and operated as to give proper protection to the worker in accordance with N.Y. Lab. Law § 240(1). However, the appellate court held that the injured worker's present abilities and activities warranted the conclusion that the damages for future loss deviated materially from what was reasonable compensation under the circumstances. OUTCOME: The judgment was modified, on the facts, to vacate the awards for future pain and suffering and future loss of services, and to direct a new trial on the issues of such damages only, and otherwise was affirmed, without costs, unless plaintiffs stipulated to a reduction of the awards, and to the entry of an amended judgment in accordance therewith. CORE TERMS: scaffold, ladder, makeshift, collapsed, future pain, loss of services, suffering, issue of liability, contributory negligence, ironworker, pier, trial evidence, safety equipment, new trial, stipulate, reduction, misuse, boom, future damages, head injuries, right arm, shoulders, concrete, partner, wrench, floor

Labor & Employment Law > Occupational Safety & Health > Civil Liability [HN1] In order to prevail on a N.Y. Lab. Law § 240(1) claim, the injured worker must show that the violation of the statute was a proximate cause of his injuries. HEADNOTES [***1] Labor--Safe Place to Work.--Plaintiffs were entitled to directed jury verdict at close of trial evidence on issue of liability pursuant to Labor Law § 240 (1) since plaintiffs demonstrated that makeshift scaffold and/or ladder collapsed, and that worker had no safety equipment--defendants' attempt to argue plaintiff's misuse of devices raised, at best, issue of contributory negligence, which is not defense to section 240 (1) claim. Damages--Future Damages.--Although 63-year-old ironworker sustained serious head injuries, as well as injuries to both shoulders and his right arm, when he fell to concrete floor of pier, damages awarded were excessive; new trial on future damages directed unless plaintiffs stipulate to reduction of $ 1.4 million award for future pain and suffering to $ 700,000 and $ 250,000 award for loss of services to $ 125,000. COUNSEL: Scott N. Singer, for Plaintiffs-Respondents David H. Fromm, for Defendants-Appellants. JUDGES: Concur--Nardelli, J.P., Andrias, Rosenberger, Friedman, JJ. OPINION [*256] [**325] Judgment, Supreme Court, New York County (Emily Goodman, J.), entered February 28, 2003, which, to the extent appealed from as limited by defendants' briefs, directed a jury verdict at the close of trial evidence in plaintiffs' favor on the issue of liability pursuant to Labor Law § 240 (1), and entered judgment in favor of plaintiffs in the total sum of $ 3 million, apportioning liability as $ 1.1 million and $ 1.4 million, respectively, for past and 10 years of future pain and suffering, and on the derivative cause of action, $ 250,000 for past and $ 250,000 for 10 years of future loss of services, and denied defendants' motion to set aside the verdict, unanimously modified, on the facts, to vacate the awards for future pain and suffering and future loss of

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services, and to direct a new trial on the issues of such damages only, and otherwise affirmed, without costs, unless plaintiffs, within [***2] 20 days of service of a copy of this order with [*257] notice of entry, stipulate to a reduction of the awards for future pain and suffering to $ 700,000 and for future loss of services to $ 125,000, and to the entry of an amended judgment in accordance therewith. The injured plaintiff was an ironworker who, at the time of his accident, was tightening bolts with a hydraulic wrench on a reconstructed gangway at Pier 88, on Manhattan's West Side. Working with a partner at about 12 feet above ground level, plaintiff fell when the ladder and/or makeshift scaffold he was standing on collapsed. At the time, plaintiff was attempting to pass the head of the wrench to his partner. He placed his right foot on the ladder, while balancing the rest of his weight on the makeshift scaffold he had erected and secured to the boom of a stationary crane and the ladder and/or scaffold collapsed under his weight. At the close of the evidence at trial, the court directed a verdict in plaintiffs' favor on the issue of liability pursuant to Labor Law § 240 (1). After the jury itemized damages, the court denied defendants' motion to set aside the verdict. [HN1] In order to prevail on a section 240 (1) [***3] claim, the injured worker must show that the violation of the statute was a proximate cause of his injuries (Bland v Manocherian, 66 N.Y.2d 452, 488 N.E.2d 810, 497 N.Y.S.2d 880 [1985]). Notwithstanding defendants' assertion to the contrary, there were no material inconsistencies between the injured plaintiff's deposition and his trial [**326] testimony so as to raise a question of fact for the jury's consideration. Plaintiffs demonstrated, under either "version" of the accident, that the makeshift scaffold and/or the ladder collapsed, and that he had no

safety equipment, all of which contributed to his fall and resulting injuries (see John v Baharestani, 281 A.D.2d 114, 721 N.Y.S.2d 625 [2001]). This constituted a prima facie showing of a statutory violation, proximately causing his injuries (see Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 482 N.E.2d 898, 493 N.Y.S.2d 102 [1985]). Defendants, who presented no liability witnesses, failed to controvert this showing or to establish that either the scaffold or the ladder was "so constructed, placed and operated as to give proper protection" to this worker in accordance with section 240 (1). Moreover, defendants' attempt to argue plaintiff's misuse of the devices raises, at best, an issue of [***4] contributory negligence, which is not a defense to a section 240 (1) claim (see Zimmer, 65 N.Y.2d at 521; Hernandez v 151 Sullivan Tenant Corp., 307 A.D.2d 207, 208, 762 N.Y.S.2d 60 [2003]). Even if the makeshift device collapsed because of plaintiff's faulty rigging of the scaffold to the boom of the crane, such contributory negligence would not preclude summary disposition in plaintiffs' favor on liability (see Hauff v CLXXXII Via Magna Corp., 118 A.D.2d 485, 499 N.Y.S.2d 958 [1986]). [*258] On the issue of damages, the evidence at trial established that the 63-year-old ironworker sustained serious head injuries, as well as injuries to both shoulders and his right arm, when he fell to the concrete floor of the pier. Nevertheless, his present abilities and activities warrant the conclusion that the damages for future loss deviate materially from what is reasonable compensation under the circumstances to the extent indicated. We have considered defendants' remaining arguments and find them unavailing. Concur--Nardelli, J.P., Andrias, Rosenberger and Friedman, JJ.

23 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 Julia Davis, Appellant, v. HSS Properties Corporation et al., Respondents, et al., Defendants. 2173 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

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1 A.D.3d 153; 767 N.Y.S.2d 72; 2003 N.Y. App. Div. LEXIS 11855 November 13, 2003, Decided November 13, 2003, Entered SUBSEQUENT HISTORY: [***1] Appeal denied by Davis v. HSS Props. Corp., 1 N.Y.3d 509, 808 N.E.2d 1277, 2004 N.Y. LEXIS 199, 777 N.Y.S.2d 18 (N.Y., Feb. 19, 2004) PRIOR HISTORY: Davis v. HSS Props. Corp., 257 A.D.2d 500, 685 N.Y.S.2d 16, 1999 N.Y. App. Div. LEXIS 649 (N.Y. App. Div. 1st Dep't, 1999) CASE SUMMARY: PROCEDURAL POSTURE: Appellant injured person sued respondent property owner and others, seeking damages for injuries allegedly sustained by a dangerous condition in a building owned by the property owner. Upon a jury verdict, the Supreme Court, Bronx County (New York), dismissed the complaint as against the property owner. The injured person appealed. OVERVIEW: The injured person stepped into a depression created by removal of a tile in the floor of a room occupied by the nonparty tenant of the property owner. Under the lease, the tenant was responsible for the maintenance of the premises. The appellate court ruled that, absent a statute imposing liability per se or a contractual obligation to repair and maintain the premises, the property owner, as an out-of-possession owner could be held liable for dangerous condition under a theory of constructive notice only if it reserved the right to enter the premises to perform inspection, maintenance, and repairs at the tenant's expense, and injury was caused by a significant structural or design defect contrary to a specific statutory safety provision. The jury could reasonably have found that there was no defect in the floor when the tenant took possession and that no agent of the property owner was aware of the removal of the tiles. Thus, the evidence did not mandate the conclusion that the property owner had actual knowledge of the hazardous condition. The trial court properly declined to instruct the jury that the alleged violation constituted negligence per se. OUTCOME: The judgment was affirmed. CORE TERMS: tenant's, repair, demised premises, removal, floor, record contains, jury verdict, reasonably find, floor tiles, actual knowledge, hazardous condition, right to enter, constructive notice, landlord

LexisNexis(R) Headnotes

Torts > Premises Liability & Property > General Premises Liability > Dangerous Conditions > General Overview Torts > Products Liability > Design Defects [HN1] In the absence of a statute imposing liability per se or a contractual obligation to repair and maintain the premises, an out-of-possession owner can be held liable for a subsequent injury resulting from a dangerous condition in the building under a theory of constructive notice only where it has reserved the right to enter the premises to perform inspection, maintenance, and repairs at the tenant's expense and injury was caused by a significant structural or design defect that is contrary to a specific statutory safety provision. HEADNOTES Negligence--Maintenance of Premises.--Since record contains testimony from which jury could reasonably find that there was no defect in floor at time tenant took possession of demised premises and that no agent of defendant landlord was aware of subsequent removal of floor tiles, evidence does not mandate conclusion that defendant landlord had actual knowledge of hazardous condition. COUNSEL: For Plaintiff-Appellant: Herbert Monte Levy. For Defendants-Respondents: Herbert Rubin. JUDGES: Concur--Buckley, P.J., Mazzarelli, Andrias, Sullivan and Marlow, JJ. OPINION [*154] [**73] Judgment, Supreme Court, Bronx County (Anne Targum, J.), entered on or about October 16, 2001, which, upon a jury verdict, dismissed the complaint as against defendant HSS Properties Corporation (HSS), unanimously affirmed, without costs. Plaintiff sustained injury when she stepped into a 10-inch depression created by the removal of a tile in a

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suspended floor installed by defendant HSS in the computer room of its tenant, nonparty Hospital for Special Surgery, at the tenant's request. Under the lease, the hospital is responsible for the maintenance of the demised premises, including structural and nonstructural repairs caused by the "carelessness, omission, neglect or improper conduct of Tenant ... or which arise out of any work ... done for or supplied to the tenant." The owner remains responsible for maintaining the exterior and public areas of the building and reserves the right to make certain repairs [***2] for which the tenant is responsible at the tenant's expense. [HN1] In the absence of a statute imposing liability per se (see Elliott v City of New York, 95 N.Y.2d 730, 734, 724 N.Y.S.2d 397, 747 N.E.2d 760 [2001]; Juarez v Wavecrest Mgt. Team Ltd., 88 N.Y.2d 628, 638, 649 N.Y.S.2d 115, 672 N.E.2d 135 [1996]) or a contractual obligation to repair and maintain the premises (Putnam v Stout, 38 NY2d 607, 345 N.E.2d 319, 381 N.Y.S.2d 848 [1976]; Manning v New York Tel. Co., 157 A.D.2d 264, 266, 555 N.Y.S.2d 720 [1990]), an out-of-possession owner can be held liable for a subsequent injury resulting from a dangerous condition in the building under a theory of constructive notice only where it has reserved the right to enter the premises to perform inspection, maintenance and repairs at the tenant's expense and injury was caused by "a significant structural or design defect that is contrary to a specific statutory safety provision" ( McDonald v Riverbay Corp., 308 A.D.2d 345, 346, 764 N.Y.S.2d 185, 186 [2003], quoting Johnson v Urena Serv. Ctr., 227 A.D.2d 325, 326, 642 N.Y.S.2d 897 [1996], lv denied 88 NY2d 814, 673 N.E.2d 1243, 651 N.Y.S.2d 16 [1996]; [***3] see Guzman v Haven Plaza

Hous. Dev. Fund Co., 69 N.Y.2d 559, 566, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987]). The record contains testimony from which the jury could reasonably find that there was no defect in the floor at the time the Hospital for Special Surgery took possession of the demised premises and that no agent of defendant HSS was aware of the subsequent removal of the floor tiles. Thus, the evidence does not mandate the conclusion that HSS had actual knowledge of the hazardous condition. Furthermore, the trial court properly declined to instruct the jury, over plaintiff's objection, that the alleged violation constitutes negligence per se. While the owner did not completely divest itself of the right to enter and make repairs to the demised premises, the asserted violation of provisions of the Administrative Code of the City of New York does [*155] not make the owner negligent as a matter of law; rather, proof of the violation is merely some evidence [**74] of negligence ( Elliott at 734-735). This Court's observation, on a summary record, that defendant HSS is deemed to have constructive notice of a violation of the Administrative Code ( 257 A.D.2d 500, 501-502, 685 N.Y.S.2d 16 [1999]) [***4] is not tantamount to a finding of liability and, in any event, does not preclude our unfettered review of the legal sufficiency of the evidence supporting the jury verdict ( Metropolitan Life Ins. Co. v Noble Lowndes Intl., 192 A.D.2d 83, 87-88, 600 N.Y.S.2d 212 [1993], affd 84 NY2d 430, 643 N.E.2d 504, 618 N.Y.S.2d 882 [1994]). We have considered plaintiff's remaining contentions and find them unavailing. Concur--Buckley, P.J., Mazzarelli, Andrias, Sullivan and Marlow, JJ.

24 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Lydia Jimenez, Plaintiff, v. LMA International Ltd. et al., Appellants, et al., Defendants. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith, Third-Party Plaintiff-Appellant, v. City of New York et al., ThirdParty Defendants, and Farrell Construction Services, Inc., Third-Party DefendantAppellant. (And Other Actions.) Patrick Glynn et al., Respondents, v. United House of Prayer for All People of the Church on the Rock of the Apostolic Faith et al., Appellants, et al., Defendants. (And Other Actions.) 1425 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

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MENT 306 A.D.2d 136; 762 N.Y.S.2d 354; 2003 N.Y. App. Div. LEXIS 6982 June 17, 2003, Decided June 17, 2003, Entered CASE SUMMARY:

imal precautions to protect tenants from a third party's foreseeable criminal conduct.

PROCEDURAL POSTURE: Plaintiff, an injured party, sued defendants, a landlord and contractors, to recover for personal injuries. The Supreme Court, Bronx County (New York), denied the motion of the landlord for summary judgment and denied, in part, the motion of the contractors for summary judgment dismissing all claims, cross claims, and third-party claims against them. Defendants appealed the order.

COUNSEL: [***1] For Defendants-Appellants: James C. Miller, William D. Blakely,

OVERVIEW: The landlord had a common-law duty to take minimal precautions to protect tenants, such as the non-settling plaintiffs, from a third party's foreseeable criminal conduct. It was not absolved of that duty by its relocation of church activities pending renovation of its church house, responsibility for the church house not having been fully assumed by another party during the period of relocation. Therefore, the appellate court held that the trial court properly denied the landlord's summary judgment motion. The appellate court further held that the contractors had not demonstrated as a matter of law that they owed no duty to strangers to the contract with the church. As for the contractors' contention that the horrific assault giving rise to this cause of action was a superseding cause breaking the causal chain, while the gunman's violent behavior was not a foreseeable consequence of a contractor's alleged negligence, a seriously injurious fire clearly was, and the contractors failed to show that any of the injuries suffered by plaintiffs resulted purely from the gunman's rage and not from the fire.

For Defendants-Appellants: William D. Blakely, James C. Miller.

OUTCOME: The order was affirmed, without costs. CORE TERMS: general contractors, church house, foreseeable, relocation, church, gunman's, summary judgment LexisNexis(R) Headnotes

Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Criminal Acts [HN1] A landlord, has a common-law duty to take min-

For Third-Party Plaintiff-Appellant: William D. Blakely. For Third-Party Defendant-Appellant: James C. Miller. For Plaintiffs-Respondents: David Schultz.

JUDGES: Concur--Ellerin, J.P., Williams, Lerner and Gonzalez, JJ. OPINION [*136] [**355] Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about October 25, 2002, which, to the extent appealed from as limited by the briefs, denied the motion of defendant United House of Prayer (UHOP) for summary judgment dismissing claims against it for negligent provision of security and denied, in part, the motion of defendants LMA International and Farrell Construction for summary judgment dismissing all claims, cross claims and third-party claims against them, unanimously affirmed, without costs. As [HN1] a landlord, UHOP had a common-law duty to take minimal precautions to protect tenants, such as the nonsettling plaintiffs, from a third party's foreseeable criminal conduct (see Burgos v Aqueduct Realty, 92 N.Y.2d 544, 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163 [1998]). [***2] It was not absolved of that duty by its relocation of church activities pending renovation of its church house, responsibility for the church house not having been fully assumed by another party during the period of relocation (cf. Bennett v Twin Parks Northeast Houses, 261 A.D.2d 200, 201, 689 N.Y.S.2d 507 [1997]; Lewis v McDonald's Corp., 245 A.D.2d 270, 272, 664 N.Y.S.2d 477 [1997]). Defendant general contractors have not demonstrated as a matter of law that they owed no duty to

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strangers to the contract with defendant church. The evidence of record permits the inference that the general contractors undertook a duty to plaintiffs under one or more of the three circumstances set forth in Church v Callanan Indus. (99 N.Y.2d 104, 111-113, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002]). Whether plaintiffs' harm was proximately caused by a breach of any such duty is, on this record, a question of fact (see e.g. Equitable Life Assur. Socy. v Nico Constr. Co., 245 A.D.2d 194, 666 N.Y.S.2d 602 [1997]). As for the contention that the horrific assault giving rise to this cause of action was a superseding cause [*137] breaking the causal chain, while the gunman's [***3] violent behavior was not a foresee-

able consequence of the general contractors' alleged negligence, a seriously injurious fire clearly was, and defendants failed to show that any of the injuries suffered by the current plaintiffs resulted purely from the gunman's rage and not from the fire (see Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 314-316, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980]). We have considered appellants' remaining arguments and find them unavailing. Concur--Ellerin, J.P., Williams, Lerner and Gonzalez, JJ.

25 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 Beverly Lowenthal et al., Appellants, v. Theodore H. Heidrich Realty Corp. et al., Respondents. (Index No. 13396/00) 2002-04838, 2002-07864 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 304 A.D.2d 725; 759 N.Y.S.2d 497; 2003 N.Y. App. Div. LEXIS 4352 March 18, 2003, Argued April 21, 2003, Decided CASE SUMMARY: PROCEDURAL POSTURE: Appellant injured party sued respondents, a village, a building owner, and building tenants, in the Supreme Court, Nassau County (New York), for personal injuries arising from tripping on a sidewalk raised by expanding tree roots. The trial court granted the summary judgment motions of all respondents, dismissing the complaint, and the injured party appealed. OVERVIEW: The appellate court held the village had no prior notice of the alleged defect in the sidewalk, as required by N.Y. Village Law § 6-628 and N.Y. C.P.L.R. 9804. There was no evidence the village planted the tree, and, if it did, in addition to its failure to control the tree's roots, this was at most was nonfeasance, rather than af-

firmative negligence. The tenants' alleged constructive notice of the alleged defect was immaterial to the village's liability. Neither the owner nor lessees of the adjoining building could be held liable unless they created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing an obligation on them to maintain the sidewalk which imposed liability for resulting injury. The tenants made a prima facie showing of entitlement to judgment as a matter of law, as did the owner. Photographs by the injured party's expert raised no triable issue. OUTCOME: The trial court's judgment was affirmed. CORE TERMS: summary judgment, sidewalk, issue of fact, tenants', matter of law, entitlement, abutting, triable, lessee, repair, prima facie, failed to raise, affirmative

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negligence, properly granted, special use, negligently, ordinance, notice, roots, personal injuries LexisNexis(R) Headnotes

from an order of the same court, dated July 15, 2002, which granted the motion of the defendant Theodore H. Heidrich Realty Corp. for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order dated April 10, 2002, is affirmed insofar as appealed from; and it is further,

Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty off Premises > Sidewalks & Streets Torts > Premises Liability & Property > Lessees & Lessors > General Overview [HN1] The owner or the lessee of land abutting a public sidewalk owes no duty to keep the sidewalk in a safe condition. Liability may only be imposed on the abutting owner or lessee where it either creates the condition, voluntarily but negligently makes repairs, causes the condition to occur because of some special use, or violates a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty. COUNSEL: [***1] Zisholtz & Zisholtz, LLP, Mineola, N.Y., (Gerald Zisholtz and Edward S. Satran of counsel), for appellants. Baxter & Smith, P.C., Jericho, New York, N.Y., (Anne V. Malone of counsel), for respondent Theodore H. Heidrich Realty Corp. Ted M. Tobias, Melville, N.Y., (Leslie McHugh of counsel), for respondents Arthur Copeland, Inc., and Eleanor Heidrich, Inc. Greenfield & Reilly, Jericho, N.Y., (Paul McBride of counsel), for respondent Incorporated Village of Cedarhurst. JUDGES: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, HOWARD MILLER, SANDRA L. TOWNES, JJ. Feuerstein, J.P., Smith, H. Miller and Townes, JJ., concur. OPINION [*725] [**498] In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated April 10, 2002, as granted the respective motions of the defendants Eleanor Heidrich, Inc., and Arthur Copeland Cleaners, and the defendant Incorporated Village of Cedarhurst, for summary judgment dismissing the complaint insofar as [***2] asserted against them, and (2)

Ordered that the order dated July 15, 2002, is affirmed; and it is further, Ordered that one bill of costs is awarded to the respondents appearing separately and filing separate briefs. The plaintiff Beverly Lowenthal allegedly sustained personal injuries when she tripped and fell on a sidewalk slab raised by expanding tree roots. The incident occurred within the jurisdiction of the defendant Incorporated Village of Cedarhurst outside of commercial premises leased to the defendant Eleanor Heidrich, Inc., and the defendant Arthur Copeland Cleaners (hereinafter the tenants) by the owner, the defendant Theodore Heidrich Realty Corp. (hereinafter the owner). The Village made a prima facie showing of entitlement to [*726] judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact. In particular, the plaintiffs [***3] concede that the Village did not receive prior notice of the alleged defect in the sidewalk, as required by Village Law § 6-628 and CPLR 9804. Nonetheless, they claim that summary judgment should not have been granted to the Village, as there is an issue of fact with respect to whether it created the condition through its affirmative negligence (see Morrison v Incorporated Vil. of Freeport, 283 A.D.2d 621, 725 N.Y.S.2d 866 [2001]; Pamas v Dickson, 267 A.D.2d 219, 699 N.Y.S.2d 311 [1999]). We disagree. Although there is no evidence that the Village planted the tree [**499] in question, even assuming that it had, such an act, in addition to the Village's failure to control the roots of the tree, would at most constitute nonfeasance, not affirmative negligence (see Monteleone v Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459 [1989]; Zizzo v City of New York, 176 A.D.2d 722, 574 N.Y.S.2d 966 [1991]; Michela v County of Nassau, 176 A.D.2d 707, 574 N.Y.S.2d 965 [1991]). Accordingly, the Supreme Court properly granted the Village's motion for summary judgment. Further, the Supreme Court properly granted [***4] the tenants' motion for summary judgment. [HN1] "The owner or the lessee of land abutting a public sidewalk owes no duty to keep the sidewalk in a safe condition" (Lattanzi v Richmond Bagels, 291 A.D.2d 434, 737 N.Y.S.2d 391 [2002]). Liability may only be imposed on the abutting owner or lessee where it either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special

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use, or violated a statute or ordinance placing upon the owner or lessee the obligation to maintain the sidewalk which imposes liability upon that party for injuries caused by a violation of that duty (see McGee v City of New York, 252 A.D.2d 483, 675 N.Y.S.2d 130 [1998]; Bloch v Potter, 204 A.D.2d 672, 612 N.Y.S.2d 236 [1994]). The tenants made a prima facie showing of entitlement to judgment as a matter of law. The affidavits of the plaintiffs' experts were insufficient to raise a triable issue of fact, as their opinions were based solely on reviews of unauthenticated photographs of the accident scene (see Banks v Freeport Union Free School Dist., 302 A.D.2d 341, 753 N.Y.S.2d 890 [2003]; Gutierrez v Cohen, 227 A.D.2d 447, 643 N.Y.S.2d 121 [1996]), [***5] and, in any event, were submitted on the issue of the tenants' alleged constructive notice of the alleged defect, which is immaterial, as the authorities cited above make clear.

Finally, the owner made a prima facie showing of entitlement to judgment as a matter of law. There was no evidence that it created the alleged defect, voluntarily but negligently made repairs to the sidewalk before the accident, caused the condition to occur because of some special use, or violated a [*727] statute or ordinance which imposes liability on the abutting entity for failure to repair (see Loforese v Cadillac Fairview Shopping Ctrs., U.S., 235 A.D.2d 399, 652 N.Y.S.2d 84 [1997]). As the plaintiffs failed to raise a triable issue of fact regarding the owner's alleged negligence, the Supreme Court properly granted the owner's motion for summary judgment. The plaintiffs' remaining contentions are without merit. Feuerstein, J.P., Smith, H. Miller and Townes, JJ., concur.

26 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 Joseph Brennan, Respondent, v. New York City Housing Authority, Appellant. (And a Third-Party Action.) (Index No. 26155/96) 2002-01123 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 302 A.D.2d 483; 756 N.Y.S.2d 73; 2003 N.Y. App. Div. LEXIS 1644 January 21, 2003, Argued February 18, 2003, Decided PRIOR HISTORY: [***1] In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 6, 2001, which denied its motion for summary judgment dismissing the complaint. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff fireman brought a negligence action against defendant housing authority to recover damages for injuries sustained while respond-

ing to a natural gas explosion and fire at an apartment in a housing project owned and operated by the housing authority. The Supreme Court, Kings County (New York), denied the housing authority's motion for summary judgment. The housing authority appealed. OVERVIEW: The fireman alleged that the housing authority was negligent in failing to promptly respond to tenant complaints of a gas odor. The fireman predicated liability under N.Y. Gen. Mun. Law § 205-a on the alleged violations by the housing authority of N.Y. Comp. Codes R. & Regs. tit. 9, § 1196.1(b) and New York City, N.Y., Admin. Code §§ 27-127, 27-128, which provided

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generally that the owner of a building was required to maintain it in a safe condition. The appellate court ruled that under N.Y. Gen. Mun. Law § 205-a(3), injured firefighters had a right of recovery regardless of whether the injury was caused by the violation of a provision which codified a common-law duty and regardless of whether the injury was caused by the violation of a provision prohibiting activities or conditions which increased the dangers already inherent in the work of a firefighter. Since the enactment of N.Y. Gen. Oblig. Law § 11-106, a common-law negligence action was no longer barred by the firefighters' rule. The affidavit submitted by the fireman's expert raised a triable issue of fact as to whether there was a connection between the alleged predicate violations and the fireman's injuries. OUTCOME: The order was affirmed. CORE TERMS: housing, fire department, cause of action, common-law, explosion, firefighter, apartment, predicate, summary judgment, triable issue of fact, responding, promptly, notified, tenant, leak, odor LexisNexis(R) Headnotes

Governments > Local Governments > Claims By & Against Governments > Local Governments > Fire Departments Torts > Premises Liability & Property > General Premises Liability > General Overview [HN1] The 1996 amendments to N.Y. Gen. Mun. Law § 205-a added a new subdivision (3) which provides injured firefighters with a right of recovery regardless of whether the injury is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury is caused by the violation of a provision prohibiting activities or conditions which increase the dangers already inherent in the work of any officer, member, agent, or employee of any fire department. N.Y. Gen. Mun. Law § 205-a(3). Accordingly, both N.Y. Comp. Codes R. & Regs. tit. 9, § 1196.1(b) and New York City, N.Y., Admin. Code §§ 27-127, 27-128 are sufficient predicates for a N.Y. Gen. Mun. Law § 205-a cause of action. Torts > Premises Liability & Property > General Premises Liability > Defenses > Firefighter's Rule [HN2] Since the enactment of N.Y. Gen. Oblig. Law § 11-106, a common-law negligence cause of action is no longer barred by the so-called "firefighters' rule." 1996 N.Y. Laws ch. 703. The new legislation provides for a

common-law cause of action against negligent landowners in certain situations. COUNSEL: Herzfeld & Rubin, P.C., New York, N.Y. (Herbert Rubin, David B. Hamm, and Jeannine LaPlace of counsel), for appellant. Barasch McGarry Salzman Penson & Lim, New York, N.Y. (James P. McGarry of counsel), for respondent. JUDGES: Ritter, J.P., Altman, S. Miller and Townes, JJ., concur. OPINION [*483] [**74] Ordered that the order is affirmed, with costs. The plaintiff, a firefighter, alleged that he was injured on October 20, 1995, while responding to a natural gas explosion and fire. The explosion and fire occurred in an apartment in the Marlborough Houses in Brooklyn, a housing project owned and operated by the defendant New York City Housing Authority (hereinafter the Housing Authority). The plaintiff allegedly was injured when part of a collapsed interior [***2] wall gave way from underneath him, causing him to fall. The third-party defendant, Candido Rivera, admitted that on October 19, 1995, he stole a stove from the subject apartment and removed the hose from the gas line, which allowed gas to leak into the apartment. The plaintiff commenced this action to recover damages under General Municipal Law § 205-a and for common-law negligence alleging, inter alia, that had the Housing Authority promptly responded to tenant complaints of an odor of gas and notified the fire department, the explosion would not have occurred. The plaintiff predicates liability under General Municipal Law § 205-a on the alleged violations by the Housing Authority of a provision of the New York State Uniform Fire Prevention and Building Code which mandates that "the [*484] fire department shall be promptly notified ... upon discovery or being apprised of an uncontrolled hazardous gas leak" (9 NYCRR 1196.1 [b]) and New York City Administrative Code §§ 27-127 and 27-128, which provide generally that the owner of a building must maintain [***3] it in a safe condition. The Supreme Court denied the Housing Authority's motion for summary judgment dismissing the complaint. We affirm. After the Housing Authority made out a prima facie case for summary judgment dismissing the General Municipal Law § 205-a cause of action, the affidavit submitted by the plaintiff's expert raised a triable issue of fact as to whether there is any practical or reasonable connection between the alleged predicate violations and the plaintiff's injuries (see Mullen v Zoebe, Inc., 86 N.Y.2d

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135, 630 N.Y.S.2d 269, 654 N.E.2d 90; Zanghi v Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 626 N.Y.S.2d 23, 649 N.E.2d 1167). The Housing Authority contends that liability may not be imposed under General Municipal Law § 205-a for the alleged violations that caused the explosion in the first instance. We disagree. [HN1] The 1996 amendments to General Municipal Law § 205a added a new subdivision (3) which provides injured firefighters with a right of recovery "regardless of whether the injury ... is caused by the violation of a provision which codifies [***4] a common-law duty and regardless of whether the injury ... is caused by the violation of a provision prohibiting activities or conditions which increase the dangers already inherent in the work of any officer, member, agent or employee of any fire department" (General Municipal Law § 205-a [3], L 1996, ch 703, § 3). Accordingly, contrary to the contentions of the Housing Authority, both 9 NYCRR 1196.1 (b) and New York City Administrative Code §§ 27-127 and 27-128 are sufficient predicates for a General Municipal Law § 205-a cause of action (see Hart v DiPiazza, 262 A.D.2d 283, 691 N.Y.S.2d 109; Capuano v Platzner Intl. Group, 260 A.D.2d 527, 688 N.Y.S.2d 236; Clow v Fisher, 228 A.D.2d 11, 652 N.Y.S.2d 870).

As the Housing Authority correctly concedes in its reply brief, [HN2] since the enactment of General Obligations Law § 11-106, the plaintiff's common-law negligence [**75] cause of action is no longer barred by the so-called "firefighters' rule" (see L 1996, ch 703; Galapo v City of New York, 95 N.Y.2d 568, 573, 721 N.Y.S.2d 857, 744 N.E.2d 685; [***5] Cammilleri v S & W Realty Assocs., 243 A.D.2d 530, 663 N.Y.S.2d 222). Contrary to its contention, however, the new legislation provides for a common-law cause of action against negligent landowners in situations such as that presented here (see Johnson v Fuller Co., 266 A.D.2d 158, 699 N.Y.S.2d 348). As with the plaintiff's General Municipal Law § 205-a claim, the expert affidavit submitted by the plaintiff raised triable issues of fact as to whether the Housing [*485] Authority's alleged negligence in responding to or investigating tenant complaints of an odor of gas and in failing to notify the fire department was a substantial factor in causing the plaintiff's injuries (see Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666). Ritter, J.P., Altman, S. Miller and Townes, JJ., concur.

27 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 GLADYS M. HAND, PLAINTIFF-RESPONDENT, v MICHAEL GILBANK, DEFENDANT-APPELLANT. CA 02-01477 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 300 A.D.2d 1067; 752 N.Y.S.2d 501; 2002 N.Y. App. Div. LEXIS 12923 December 30, 2002, Entered CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff tenant commenced an action to recover damages for injuries she sustained as she attempted to walk up the driveway. Defendant landlord moved for summary judgment. The Su-

preme Court, Onondaga County, New York, granted the landlord's motion in part, dismissing the claim that the tenant's injuries resulted from the landlord's alleged negligence in failing to remove an accumulation of snow and ice on the driveway. The landlord appealed. OVERVIEW: On appeal, the landlord contended that

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the trial court improperly denied his motion on the claim that the tenant's injuries resulted from his negligent failure to maintain or repair the driveway surface or to provide a safe means of ingress and egress. The instant court found that the landlord failed to sustain his burden of demonstrating his entitlement to judgment as a matter of law on the issues of whether the premises were negligently maintained, whether he had actual or constructive notice of that alleged defect or hazard, and whether the alleged defect or hazard caused or contributed to the tenant's injuries. The landlord's alleged violation of the State Uniform Fire Prevention and Building Code, N.Y. Comp. Codes R. & Regs. tit. 9, pt. 600 et seq., could have been considered as some evidence of negligence. However, the trial court erred in failing to grant the landlord's motion on the claim of negligence premised upon his alleged discrimination against the tenant, a handicapped person, in violation of the Fair Housing Act, 42 U.S.C.S. § 3601 et seq., because the Act was not intended to create a standard of care in negligence litigation. OUTCOME: The order was modified on the law by granting the landlord's motion to the extent that it sought summary judgment dismissing the claim of negligence premised upon his alleged discrimination against the tenant in violation of the Fair Housing Act. The order was affirmed as modified.

RESPONDENT. JUDGES: PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ. OPINION [*1067]

[**502] MEMORANDUM AND OR-

DER Appeal from an order of Supreme Court, Onondaga County (Carni, J.), entered April 9, 2002, which denied in part defendant's motion for summary judgment dismissing the complaint. It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendant to the extent that it sought summary judgment dismissing the claim of negligence premised upon his alleged discrimination against plaintiff, a handicapped person, in violation of the Fair Housing Act (42 USC § 3601 et seq.) and as modified the order is affirmed without costs.

COUNSEL: [***1] LAW OFFICES OF MICHAEL G. DONNELLY, NORTH SYRACUSE (MICHAEL G. DONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.

Memorandum: Plaintiff, a tenant in a two-family dwelling owned by defendant, commenced this action to recover damages for injuries she sustained as she attempted [***2] to walk up the driveway leading to the rear entrance of the dwelling. Defendant moved for summary judgment dismissing the complaint. Supreme Court granted defendant's motion in part, dismissing the claim that plaintiff's injuries resulted from defendant's alleged negligence in failing to remove an accumulation of snow and ice on the driveway. Contrary to the contention of defendant, [*1068] the court properly denied his motion to the extent that it sought summary judgment dismissing the claim that plaintiff's injuries resulted from his negligent failure to maintain or repair the driveway surface or to provide a safe means of ingress and egress. "Defendant failed to sustain [his] burden of demonstrating [his] entitlement to judgment as a matter of law on the issues whether the premises were negligently maintained in a defective or hazardous condition, whether [he] had [actual or] constructive notice of that alleged defect or hazard, and whether the alleged defect or hazard caused or contributed to plaintiff's injuries" (Gonzalez v Padin, ___ A.D.2d ___, ___, 749 N.Y.S.2d 765 [Nov. 15, 2002]). Contrary to the further contention of defendant, his alleged violation of the State Uniform Fire [***3] Prevention and Building Code ( 9 NYCRR part 600 et seq.) may be considered as some evidence of negligence (see Hill v Cartier, 258 A.D.2d 699, 701, 685 N.Y.S.2d 336; see generally Elliott v City of New York, 95 N.Y.2d 730, 734, 724 N.Y.S.2d 397, 747 N.E.2d 760).

PRIMO, PRIMO & KIRWAN, LLP, LIVERPOOL (DAVID M. PRIMO OF COUNSEL), FOR PLAINTIFF-

We agree with defendant, however, that the court erred in failing to grant his motion to the extent that it

CORE TERMS: summary judgment, Fair Housing Act, driveway, claim of negligence, handicapped, modified, premised, dwelling, hazard LexisNexis(R) Headnotes

Civil Rights Law > Contractual Relations & Housing > Fair Housing Rights > Fair Housing Act Civil Rights Law > Contractual Relations & Housing > Fair Housing Rights > Fair Housing Amendments Act & Housing for Retirees Public Health & Welfare Law > Housing & Public Buildings > Fair Housing [HN1] The Fair Housing Act, 42 U.S.C.S. § 3601 et seq., is not intended to create a standard of care in negligence litigation. Thus, an alleged violation of the Fair Housing Act, even if proved, would not constitute negligence.

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sought summary judgment dismissing the claim of negligence premised upon his alleged discrimination against plaintiff, a handicapped person, in violation of the Fair Housing Act (42 USC § 3601 et seq.). Even assuming, arguendo, that defendant violated the Fair Housing Act by refusing to permit the installation of a ramp, railings or other devices on the property (see § 3604 [f] [3] [A]), we conclude that [HN1] the Act was not intended to cre-

ate "a standard of care in negligence litigation" ( Dance v Town of Southampton, 95 A.D.2d 442, 446, 467 N.Y.S.2d 203). Thus, the alleged violation of the Fair Housing Act, even if proved, would not constitute negligence (see id. at 445-446). [***4] We therefore modify the order accordingly. Entered: December 30, 2002

28 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Bernadine Putter, Plaintiff, v. Isaac Sued, Appellant, and London Boy Sportswear Ltd. et al., Respondents. 456 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 292 A.D.2d 222; 739 N.Y.S.2d 56; 2002 N.Y. App. Div. LEXIS 2426 March 12, 2002, Decided March 12, 2002, Entered CASE SUMMARY: PROCEDURAL POSTURE: The Supreme Court, Bronx County (New York), in an action for personal injuries sustained when plaintiff injured party fell on a stairway in defendant tenants' store, denied defendant landlord's motion for summary judgment on its cross claim against the tenants for contractual indemnification. The landlord appealed the order. OVERVIEW: The appellate court held that even assuming that the subject indemnification clause did not violate N.Y. Gen. Oblig. Law § 5-321, the landlord's motion was properly denied on the ground that the indemnification clause, viewed in the context of the entire lease, did not evince an unmistakable intent to obligate the tenants to indemnify the landlord for injuries to third persons caused by the landlord's own negligence with respect to its non-delegable duty under New York City, N.Y., Admin. Code §§ 27-128, -375 to provide a handrail for the stairway on which the injured party fell. An ambiguity

in this regard was raised by lease provisions which, although obligating the tenant to make both structural and non-structural repairs, gave the landlord a right of reentry to perform repairs, and which required the landlord's consent before any structural alterations were done. The appellate court was not persuaded otherwise by the fact that the indemnity clause, insofar as it applied to any and all liabilities by reason of any injury to any person arising from or in connection with the occupancy or use of the demised premises, did not expressly refer to either party's negligence. OUTCOME: The order was affirmed, with costs. CORE TERMS: landlord's, tenant, indemnification, stairway, repairs, lease COUNSEL: [**1] Max W. Gershweir, for DefendantAppellant. Marie R. Hodukavich, for Defendants-Respondents.

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JUDGES: Concur--Saxe, J.P., Rosenberger, Ellerin, Wallach, Marlow, JJ. OPINION [*56] Order, Supreme Court, Bronx County (George Friedman, J.), entered August 1, [*57] 2001, which, in an action for personal injuries sustained when plaintiff fell on a stairway in defendant-respondents tenants' store, denied defendant-appellant landlord's motion for summary judgment on its cross claim against the tenants for contractual indemnification, unanimously affirmed, with costs. Even assuming that the subject indemnification clause does not violate General Obligations Law § 5321, its motion was properly denied on the ground that the subject indemnification clause, viewed in the context of the entire lease, does not evince an "unmistakable intent" to obligate tenants to indemnify the landlord for injuries to third persons caused by the landlord's own

negligence with respect to its nondelegable duty under Building Code (Administrative Code of City of NY) §§ 27-128 and 27-375 to provide a handrail for the stairway on which plaintiff fell (see, Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 158; [**2] Ruhland v Cowper Co., 72 AD2d 907, affd 52 NY2d 756). An ambiguity in this regard is raised by lease provisions which, although obligating the tenant to make both structural and nonstructural repairs, give the landlord a right of reentry to perform repairs required by the Building Code, and which require the landlord's consent before any structural alterations are done. We are not persuaded otherwise by the fact that the indemnity clause, insofar as it applies to any and all liabilities by reason of any injury to any person "arising from or in connection with the occupancy or use of the demised premises," does not expressly refer to either party's negligence. We have considered the landlord's other arguments and find them unavailing. Concur--Saxe, J.P., Rosenberger, Ellerin, Wallach and Marlow, JJ.

29 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Anthony Scotti et al., Appellants, v. Federation Development Corporation et al., Respondents. 2000-06271, 2001-01252 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 289 A.D.2d 322; 734 N.Y.S.2d 573; 2001 N.Y. App. Div. LEXIS 11936 October 30, 2001, Argued December 10, 2001, Decided PRIOR HISTORY: [***1] In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated June 12, 2000, as granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against them and denied their cross motion for summary judgment on the issue of liability pursuant to Labor Law § 240 (1), and (2) an order of the same court, dated Janu-

ary 5, 2001, as, upon reargument, adhered to so much of the original determination as denied that branch of their cross motion which was for summary judgment on the issue of liability pursuant to Labor Law § 240 (1) against the defendant Narkis Funding, L. L. P. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff injured worker

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and his wife appealed a Supreme Court, Richmond County (New York) order granting summary judgment dismissing their claims against defendants general contractor and landowner based on N.Y. Lab. Law §§ 200, 240(1), 241(6) and common law negligence. The landowner appealed a summary judgment dismissing its indemnification cross-claim. OVERVIEW: A worker was injured in a fall from a ladder while working for a tenant of the landowner. The general contractor had been engaged by the landowner to coordinate the overall project. The reviewing court held that the worker was entitled by the very nature of his accident to recover from the contractor, and possibly the landowner, under the strict liability provisions of N.Y. Lab. Law § 240(1), and that the worker also showed sufficient violations of safety regulations for these same parties to face possible liability under N.Y. Lab. Law § 241(6). Since the contractor actually controlled the work site, the worker could sue it for negligence, and the landowner, which had no control over the work activity, was entitled to indemnification by the contractor. OUTCOME: The court reversed the summary judgments for the contractor and the landowner as against the worker, and reinstated the causes of action, but granted summary judgment on the worker's strict liability claim. It also reversed the order denying the landowner's indemnification cross-claim and entered summary judgment for the landowner. CORE TERMS: summary judgment, causes of action, common-law, substituting, deleting, issue of liability, modified, ladder, installation, recover damages, indemnification, contractual, reinstated, performing, hired LexisNexis(R) Headnotes

Torts > Premises Liability & Property > General Premises Liability > Defenses > Independent Contractors Torts > Strict Liability > Abnormally Dangerous Activities > General Overview Torts > Vicarious Liability > Independent Contractors [HN1] An injured construction worker is entitled to summary judgment against a landowner and general contractor under N.Y. Lab. Law § 240(1) where he sustains injuries when the ladder upon which he is working falls to the side. Torts > Procedure > Multiple Defendants > Indemnity > Contractual Indemnity

Torts > Procedure > Multiple Defendants > Indemnity > Noncontractual Indemnity Torts > Vicarious Liability > Independent Contractors [HN2] An action by an injured worker against a general contractor based on N.Y. Lab. Law § 200 and common law negligence should not be summarily dismissed where issues of fact exist as to whether the contractor exercised supervision and control over the work activity that caused the worker's injury or had notice of he hazardous condition that caused the accident. COUNSEL: Brecher, Fishman, Pasternack, Popish, Heller, Rubin & Reiff, P.C., New York, N.Y. (Jessica J. Hanlon, Robert F. Garnsey, and Frank Gulino of counsel), for appellants. Caulfield Law Office (Carol R. Finocchio and Marie R. Hodukavich, New York, N.Y., of counsel), for respondent Narkis Funding, LLP. JUDGES: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, SANDRA [***2] L. TOWNES, A. GAIL PRUDENTI, JJ. RITTER, J.P., FEUERSTEIN, TOWNES and PRUDENTI, JJ., concur. OPINION [*322] [**574] Ordered that the appeal from so much of the order dated June 12, 2000, as denied that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability pursuant to Labor Law § 240 (1) against the defendant Narkis Funding, L. L. P., is dismissed, as that part of the order was superseded by the order dated January 5, 2001, made upon reargument; and it is further, Ordered that the order dated June 12, 2000, is modified, on the law, by (1) deleting the provision thereof granting those branches of the motion of the defendant Narkis Funding, L. L. P., which were for summary judgment dismissing the causes of action pursuant to Labor Law § 240 (1) and § 241 (6) insofar as asserted against it, and substituting therefor a provision denying those branches of that motion, (2) deleting the provision thereof granting those branches of the motion of the defendant Federation Development Corporation which were for summary judgment dismissing the causes of action pursuant to Labor Law §§ 200 [***3] , 240 (1), and § 241 (6), and to recover damages for common-law negligence insofar as asserted against it, and substituting therefor a provision denying those branches of that motion, (3) deleting the provision thereof denying that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability pursuant to Labor Law § 240 (1) against the defendant Federation Development Corporation and substituting therefor a provision grant-

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ing that branch of the cross motion, and (4) deleting the provision thereof denying that branch of the motion of the defendant Narkis Funding, L. L. P., which was for summary judgment on its cross claim for common-law and contractual indemnification against the defendant Federation Development Corporation [*323] and, upon searching the record, substituting therefor a provision granting that branch of the motion; as so modified, the order dated June 12, 2000, is affirmed insofar as reviewed, the causes of action pursuant to Labor Law § 240 (1) and § 241 (6) are reinstated, and the causes of action pursuant to Labor Law § 200 and to recover damages for common-law [***4] negligence, are reinstated insofar as asserted against the defendant Federation Development Corporation; and it is further,

the accident resulted either from uneven flooring due to the removal and installation of carpeting and tiling, or debris and materials left by electricians at the base of the ladder. [HN1] The plaintiffs are entitled to summary judgment against the defendants under Labor Law § 240 (1) because the injured plaintiff, while performing an alteration, sustained injuries when the ladder upon which he was working fell to the side (see, Joblon v Solow, 91 NY2d 457, 465; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). Additionally, those branches of the defendants' motions which were for summary judgment dismissing the plaintiffs' cause of action pursuant to Labor Law § 241 (6) should not have been granted because the Industrial Code supports this cause of action (see, 12 NYCRR 23-1.7 [e] [2]; Rizzuto v Wenger Contr. Co., 91 NY2d 343, 350-351; [***6] Rosemin v Oved, 254 AD2d 343, 344). Those branches of Federation's motion which were for summary judgment dismissing the plaintiffs' causes of action pursuant to Labor Law § 200 [*324] and to recover damages for common-law negligence insofar as asserted against it should not have been granted. Issues of fact remain regarding [HN2] whether Federation exercised supervision and control over the work activity which caused the injured plaintiff's fall, or had notice of the hazardous condition which caused the accident (see, Rizzuto v Wenger Contr. Co., supra, at 353; Sprague v Peckham Materials Corp., 240 AD2d 392, 394).

Ordered that the order dated January 5, 2001, is reversed insofar as appealed from, that branch of the plaintiffs' cross [**575] motion which was for summary judgment on the issue of liability pursuant to Labor Law § 240 (1) against Narkis Funding, L. L. P., is granted, and the order dated June 12, 2000, is modified accordingly; and it is further, Ordered that the plaintiffs are awarded one bill of costs. The defendant Narkis Funding, L. L. P. (hereinafter Narkis) hired the defendant Federation Development Corporation (hereinafter Federation) as the general contractor to renovate premises owned by Narkis in preparation for the tenancy of the New York City Department of Consumer Affairs (hereinafter DCA). The injured plaintiff was hired by the DCA to install a telecommunications system. The contract between Narkis and Federation acknowledged that DCA would hire workers to perform this installation and required Federation to coordinate and cooperate with those workers. While the injured plaintiff was performing the installation, [***5] the ladder upon which he was working "kicked out" and fell to the side, causing him to fall. According to the plaintiffs,

Narkis is entitled to summary judgment regarding its cross claim against Federation for common-law and contractual indemnification. Narkis made out a prima facie case for summary judgment. In opposition, Federation did not raise a triable issue of fact (see, Pope v SupremeK.R.W. Constr. Corp., 261 AD2d 523, 524-525). Ritter, J. P., Feuerstein, Townes and Prudenti, JJ., concur.

30 of 55 DOCUMENTS

Caution As of: Sep 10, 2008 Kesha Lane, Respondent, v. Fisher Park Lane Co. et al., Appellants. 2208 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPART-

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MENT 276 A.D.2d 136; 718 N.Y.S.2d 276; 2000 N.Y. App. Div. LEXIS 12462 November 30, 2000, Decided November 30, 2000, Entered PRIOR HISTORY: [***1] Appeal from an order of the Supreme Court (Emily Goodman, J.), entered May 16, 2000 in New York County which, inter alia, denied defendants' motions for summary judgment dismissing the complaint and all cross claims against them.

ative defense, entitlement, reenter, employment status, bosses, special employee, contractual, spoliation, assigned, destroyed, broken, personal injury action, building owners, cross claims, Compensation Law, threshold question, design defect, assigned tasks, sole remedy

CASE SUMMARY:

LexisNexis(R) Headnotes

PROCEDURAL POSTURE: Defendants bank and landowner challenged the judgment of the New York County Supreme Court denying their motions for summary judgment and granting plaintiff temporary employee's cross-motion to strike defendants' affirmative defenses as a sanction for spoliation of evidence in plaintiff's personal injury action. OVERVIEW: Plaintiff sued defendants seeking damages for injury she sustained while working as a temporary employee of defendant bank in a building managed by defendant landowner. The trial court denied defendants' motions for summary judgment and granted plaintiff's motion to strike defendants' affirmative defenses as a remedy for spoliation of the cabinet that injured plaintiff. On appeal, the court reversed, holding that the trial court erred by addressing the spoliation issue, rather than defendants' entitlement to dismissal of the complaint on a point of law, as the threshold question. The trial court's remedy for spoliation bore no relationship to the loss of the evidence. The court held that defendant bank was entitled to summary judgment based upon its affirmative defense of workers' compensation because plaintiff's special employment status was established as a matter of law. Defendant landowner was also entitled to summary judgment because it was not responsible for the condition of the cabinet. OUTCOME: Judgment reversed because the trial court erred by treating plaintiff's spoliation claim as the threshold issue before determining whether defendants were entitled to judgment as a matter of law, and because defendants were entitled to summary judgment based upon their affirmative defenses. CORE TERMS: repair, cabinet, summary judgment, landlord, lease, door, matter of law, spoliation of evidence, workers' compensation, tenant, temporary, affirm-

Civil Procedure > Discovery > Misconduct Civil Procedure > Trials > Judgment as Matter of Law > General Overview [HN1] While severe sanctions may be imposed upon a party who destroys key evidence before an opposing party has an opportunity to examine that evidence, the entitlement to judgment as a matter of law, for a reason completely unrelated to the evidence destroyed, cannot be impaired. In deciding whether to impose sanctions, courts will look to the extent that the spoliation of evidence may prejudice a party and whether a particular sanction will be necessary as a matter of elementary fairness. Civil Procedure > Discovery > Misconduct Civil Procedure > Trials > Judgment as Matter of Law > General Overview Evidence > Relevance > Spoliation [HN2] It can scarcely be disputed that where a defendant is entitled to dismissal as a matter of law on the basis of a defense having nothing to do with the evidence allegedly destroyed, that evidence cannot be considered critical to the plaintiff's case. Nor, under such circumstances, is the destruction of that evidence prejudicial to plaintiff. Accordingly, it is the question of defendants' entitlement to dismissal of the action, rather than plaintiff's entitlement to sanctions for the spoliation of evidence, which is the threshold issue. Workers' Compensation & SSDI > Compensability > Course of Employment > General Overview Workers' Compensation & SSDI > Coverage > Employment Relationships > General Overview [HN3] The sole remedy of an employee against his employer for injuries in the course of employment is bene-

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fits under the Workers' Compensation Law. N.Y. Workers' Comp. Law §§11, 29[6]. Workers' Compensation & SSDI > Coverage > Employment Relationships > Borrowed Employees Workers' Compensation & SSDI > Coverage > Employment Relationships > Employers [HN4] A general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits. A special employee is described as one who is transferred for a limited time of whatever duration to the service of another. General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer. While whether a person is considered a special employee is generally a question of fact, a determination of special employment status may, where the undisputed facts compel such a conclusion, be made as a matter of law. Workers' Compensation & SSDI > Coverage > Employment Relationships > General Overview [HN5] In determining special employment status, a significant and weighty factor focuses on who controls and directs the manner, details and ultimate result of the employee's work. Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Power to Reenter & Terminate Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > General Overview Torts > Products Liability > Design Defects [HN6] A landlord is generally not liable for negligence with respect to the condition of property 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. HEADNOTES Disclosure - Penalty for Failure to Disclose - Spoliation of Evidence - Summary Judgment 1. In a personal injury action based upon the injuries sustained by plaintiff when the door of a supply cab-

inet fell on her while she was working as a temporary employee in the offices of defendant bank, the trial court erred in imposing sanctions against all defendants for spoliation of evidence for having destroyed the cabinet one year after the commencement of the action without first considering whether, apart from the disposed-of evidence, defendants were entitled to summary judgment and a dismissal of the complaint as a matter of law. It is the question of defendants' entitlement to dismissal of the action, rather than plaintiff's entitlement to sanctions for the spoliation of evidence, which is the threshold issue. The undisputed facts herein demonstrate that summary judgment should have been granted to defendant bank on its affirmative defense of workers' compensation since plaintiff's special employment status has been established as a matter of law. Similarly, the building owners are also entitled to summary judgment dismissing the complaint, regardless of the spoliation issue, since the lease with defendant bank imposed no obligation on these defendants to repair the cabinet in question. Furthermore, while the landlord retained the right to reenter the premises to make certain repairs, there is no claim that the defect, a broken cabinet door, involved building structure or design or that any statutory safety provision was violated. Workers' Compensation - Existence of EmployerEmployee Relationship - Special Employment Status of Temporary Employee 2. In a personal injury action based upon the injuries sustained by plaintiff when the door of a supply cabinet fell on her while she was working as a temporary employee in the offices of defendant bank, defendant is entitled to summary judgment dismissing the complaint on its affirmative defense of workers' compensation, since plaintiff's special employment status has been established as a matter of law. Although the employment agency which assigned plaintiff to work at defendant's offices issued plaintiff's paychecks, the agency played no role in supervising or directing plaintiff as she carried out her work assignments. In the absence of a showing of direction or control, the mere fact that plaintiff regularly reported to the agency regarding the scope of her assigned tasks does not alter her status as a special employee whose sole remedy against her employer for injuries in the course of employment is benefits under the Workers' Compensation Law. Negligence - Maintenance of Premises - Liability of Owner with No Contractual Obligation to Make Repairs to Leased Premises 3. In a personal injury action based upon the injuries sustained by plaintiff when the door of a supply cabinet fell on her while she was working as a temporary employee in the offices of defendant bank, the building

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owners are entitled to summary judgment dismissing the complaint. A landlord is generally not liable for negligence with respect to the condition of property 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. Here, the lease with defendant bank imposed no obligation on the building owners to repair the cabinet in question. Furthermore, while the landlord retained the right to reenter the premises to make certain repairs, there is no claim that the defect, a broken cabinet door, involved building structure or design or that any statutory safety provision was violated.

Carol R. Finocchio and Lawrence B. Goodman of counsel, New York City (Caulfield Law Office, attorneys), for Fisher Park Lane Co. and another, appellants.

employee" and that workers' compensation is therefore her exclusive remedy, * and the [**278] Fisher defendants contending that, as the out-of-possession landlord, Fisher did not have an obligation to repair or maintain the cabinet. In addition, all the defendants asserted lack of notice. Plaintiff cross-moved for sanctions against defendants based on their spoliation of evidence, i.e., the cabinet in question, including, inter alia, striking their answers and, more specifically, UBS's workers' compensation defense and the Fisher defendants' comparative negligence defense. Viewing the spoliation of evidence issue as the threshold question, [***3] the court granted the cross motion and struck defendants' affirmative defenses, concluding that plaintiff's ability to establish a prima facie case of negligence had been impaired by the destruction, at the behest of UBS with the acquiescence of the Fisher defendants, of the cabinet one year after the litigation was commenced. Since, in our view, the complaint and cross claims should have been dismissed as against all defendants, we reverse. In any event, the remedy for the spoliation, i.e., the striking of the affirmative defenses noted, bore no relationship to the loss of the evidence.

Michelle S. Russo of counsel, Baldwin (Gregory E. Brower on the brief; Chesney & Murphy, L. L. P., attorneys), for Union Bank of Switzerland, appellant.

* After the accident, plaintiff received workers' compensation benefits through Madamoiselle's workers' compensation carrier.

COUNSEL: Evan David Lieberman of counsel, Garden City (Brand & Brand, attorneys), for respondent.

JUDGES: Rosenberger, Williams, Ellerin and Buckley, JJ., concur. OPINION BY: SULLIVAN OPINION [*137] [**277] Sullivan, P. J. At issue on this appeal is whether the trial court erred in [*138] imposing sanctions against defendants for spoliation of evidence before considering whether, quite apart from the disposed-of evidence, defendants were entitled to summary judgment and a dismissal of the complaint as a matter of law. Plaintiff was employed as a secretary/word processor by Madamoiselle [sic] [***2] Off-Fifth Temporaries, Inc., a temporary employment agency. While working as a temporary employee in the offices of defendant Union Bank of Switzerland (UBS), in premises at 299 Park Avenue in Manhattan, owned and managed, respectively, by defendants Fisher Park Lane Co. and Fisher Brothers Management Co., plaintiff was allegedly injured when the door of a supply cabinet fell on her. UBS and the Fisher defendants separately moved for summary judgment dismissing the complaint and cross claims, UBS on the ground that plaintiff was its "special

The trial court's fatal error was to address the spoliation issue, rather than defendants' entitlement to dismissal of the complaint on a point of law, as the threshold question. [HN1] While severe sanctions [***4] may be imposed upon a party who destroys key evidence before an opposing party has an opportunity to examine that evidence (see, Squitieri v City of New York, 248 AD2d 201; Kirkland v New York City Hous. Auth., 236 AD2d 170, 173), [*139] the entitlement to judgment as a matter of law, for a reason completely unrelated to the evidence destroyed, cannot be impaired. "In deciding whether to impose sanctions ... 'courts will look to the extent that the spoliation of evidence may prejudice a party and whether a [particular sanction] will be necessary as " 'a matter of elementary fairness.' " ' " (Hartford Fire Ins. Co. v Regenerative Bldg. Constr., 271 AD2d 862, 863, quoting Puccia v Farley, 261 AD2d 83, 85, quoting Kirkland v New York City Hous. Auth, supra, at 175.) [HN2] It can scarcely be disputed that where a defendant is entitled to dismissal as a matter of law on the basis of a defense having nothing to do with the evidence allegedly destroyed, that evidence cannot be considered critical to the plaintiff's [***5] case. Nor, under such circumstances, is the destruction of that evidence prejudicial to plaintiff. Accordingly, it is the question of defendants' entitlement to dismissal of the action, rather than plaintiff's entitlement to sanctions for the spoliation

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of evidence, which is the threshold issue. [HN3] The sole remedy of an employee against his employer for injuries in the course of employment is benefits under the Workers' Compensation Law. (See, Gonzales v Armac Indus., 81 NY2d 1, 8; Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 156; see also, Workers' Compensation Law §§ 11, 29 [6].) [HN4] "[A] general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits .... A special employee is described as one who is transferred for a limited time of whatever duration to the service [***6] of another .... General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer [citations omitted]." (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557.) While whether a person is considered a special employee is generally a question of fact, a determination of special employment status [**279] may, where the undisputed facts compel such a conclusion, be made as a matter of law. (Id., at 557-558.) Plaintiff began her employment with Madamoiselle in March 1996 and was assigned to work at UBS's offices in approximately April 1996. For about one month before the accident, she was assigned, on a daily, fulltime basis, to the same department, where she worked exclusively for two individuals, [*140] whom she considered her "bosses." Her desk was situated outside her bosses' offices. Plaintiff testified that her UBS supervisor signed her time sheet, but that she was paid by Madamoiselle. On the day of the accident, after "checking with [her] bosses" to see whether there was anything that required [***7] her immediate attention, plaintiff went to the copy room--where the accident occurred--to obtain certain materials she needed to finish a proposal she was working on for one of her bosses. According to plaintiff, when she opened an overhead cabinet to get paper, the upper hinge detached and the door swung down and struck her. She continued working on the day of the accident, but advised her UBS bosses that she would not be in for the next two days, a Thursday and Friday. The following week, plaintiff returned to work and worked for the full week, at the end of which she was advised, by both Madamoiselle and UBS, not to return to the bank. [HN5] In determining special employment status, a "significant and weighty" (id., at 558) factor "focuses on who controls and directs the manner, details and ultimate result of the employee's work". (Id.) Here, plaintiff's work was controlled and directed by UBS. (See, Zylinski v Garito Contr., 268 AD2d 427.) While Madamoiselle is-

sued plaintiff's paychecks, there is no showing that it played any role in supervising or [***8] directing plaintiff as she carried out her assignments for the bank. (See, Hanchett v Graphic Techniques, 243 AD2d 942, 944.) In the absence of a showing of direction or control, the mere fact that plaintiff "regularly reported to [Madamoiselle] regarding the scope of [her] assigned tasks" is of no moment--especially since the tasks were "assigned" by UBS. In addition, contrary to plaintiff's claim that Madamoiselle rather than UBS ultimately ended plaintiff's assignment at the latter, her deposition testimony establishes that both companies informed her that the UBS assignment had ended. To demonstrate Madamoiselle's control over her work, plaintiff relies on the statement in her affidavit that "certain tasks that [she] was requested by [UBS] to perform were not included in the arrangement between Madamoiselle and [UBS and that her supervisor at Madamoiselle] had to extend advance approval for these additional tasks, and account for price increases accordingly." This conclusory affidavit, however, fails to state that plaintiff has personal knowledge of these facts, i.e., the contractual relationship between Madamoiselle and UBS. Accordingly, it is of [***9] no probative value in opposing the motion for summary judgment. (See, Marinelli v Shifrin, [*141] 260 AD2d 227; see also, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 342.) The claim finds no other support in the record. Moreover, and in any event, there is no showing that plaintiff or anyone else ever requested advance approval from Madamoiselle for the tasks she was asked to perform while working on this particular assignment for UBS. Accordingly, since we are persuaded that plaintiff's special employment status has been established as a matter of law, summary judgment to UBS should have been granted on its affirmative defense of workers' compensation. The Fisher defendants are also entitled to summary judgment dismissing the complaint. "[HN6] A landlord is generally not liable for negligence with respect to [**280] the condition of property 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 [***10] 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." (Johnson v Urena Serv. Ctr., 227 AD2d 325, 326, lv denied 88 NY2d 814; see also, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559.) The lease between Fisher and UBS imposes no obligation on the former to repair the cabinet in question.

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Pursuant to article 45 of the lease, the tenant accepted the part of the premises where the accident occurred in the condition and state of repair existing as of the date on which the tenant took occupancy. Article 9 of the lease requires UBS to make "such repairs to the demised premises and the fixtures and appurtenances therein as are necessitated by the act, omission, occupancy or negligence of Tenant." (§ 9.01.) While article 9 also permits Fisher to make such repairs, at UBS's expense, if UBS fails to make the repairs, the lease does not require Fisher to do so. In addition, under article 16 of the lease, Fisher reserved the right to reenter the premises "for the making of such repairs or alterations as Landlord [***11] may deem necessary for the Building or which Landlord shall be required to or shall have the right to make by the provisions of this Lease or any other lease in the Building." (§ 16.01.) While Fisher retained the right to reenter to make certain repairs, there is no claim here that the defect--a broken cabinet door--involved building structure or design or that any statutory safety provision was violated. Accordingly, plaintiff's reliance on Administrative Code of the City of New York §§ 27-127 and 27-128, which impose a duty [*142] on the owner of a building to safely maintain the building and its facilities (see, Guzman v Haven Plaza Hous. Dev. Fund Co., supra, 69

NY2d, at 566; see also, Beck v Woodward Affiliates, 226 AD2d 328, 330), is misplaced, since the cabinet door which allegedly injured plaintiff is not structural in nature so as to impose liability under the Administrative Code. (See, Quinones v 27 Third City King Rest., 198 AD2d 23.) Accordingly, the order of Supreme Court, New York County (Emily Goodman, J.), entered May 16, 2000, which denied defendants' motions for summary judgment dismissing the complaint [***12] and all cross claims against them and granted plaintiff's cross motion for sanctions based on spoliation of evidence to the extent of dismissing defendants' affirmative defenses, should be reversed, on the law, without costs or disbursements, the motions granted, the complaint dismissed and the cross motion denied. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint. Rosenberger, Williams, Ellerin and Buckley, JJ., concur. Order, Supreme Court, New York County, entered May 16, 2000, reversed, on the law, without costs or disbursements, defendants' motions for summary judgment dismissing the complaint and all cross claims against them granted, the complaint dismissed and plaintiff's cross motion for sanctions denied.

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Cited As of: Sep 10, 2008 Enrichment Enterprises, Inc., Appellant, v. Jempris Realty Corp., Respondent. 1999-07246 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 272 A.D.2d 432; 707 N.Y.S.2d 504; 2000 N.Y. App. Div. LEXIS 5586 April 6, 2000, Submitted May 15, 2000, Decided PRIOR HISTORY: [***1] In an action, inter alia, to recover damages for loss of business property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 15, 1999, which granted the defendant's motion for summary judgment dismissing the complaint.

CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff appealed an order of the Supreme Court, Suffolk County (New York)

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granting defendant's motion for summary judgment dismissing plaintiff's complaint to recover damages for loss of business property. OVERVIEW: Plaintiff leased space in a building owned by defendant wherein plaintiff operated a light manufacturing business. The building was destroyed by a fire ignited by lightning strikes during an electrical storm. Plaintiff filed a lawsuit to recover damages for loss of business property and lost profits contending defendant's violation of certain provisions of the New York State Uniform Fire Prevention and Building Code, N.Y. Comp. Codes R. & Regs. tit. 9, §§ 1173.1(g), 1163.6(c)(2), accelerated the spread of the fire and caused the loss of plaintiff's business. The court affirmed, holding although a violation of N.Y. Comp. Codes R. & Regs. tit. 9, §§ 1173.1(g), 1163.6(c)(2), if proven, would have constituted some evidence of negligence, defendant met its burden of establishing the alleged negligence was not a substantial cause of the events which produced the injury. OUTCOME: Order affirmed, because defendant established that while its alleged violations of a uniform fire prevention and building code might have constituted some evidence of negligence, the violations were not a substantial cause of the events which produced the damages plaintiff sought to recover. LexisNexis(R) Headnotes

Real Property Law > Landlord & Tenant > General Overview Torts > Negligence > Defenses > General Overview [HN1] Although the violation of N.Y. Comp. Codes R. & Regs. tit. 9, §§ 1173.1(g), 1163.6(c)(2), if proven, would constitute some evidence of negligence, a defendant may meet its burden of establishing as a matter of law that the alleged negligence was not a substantial cause of the events which produced the injury. COUNSEL: Ciotti & Damm, LLP, Mineola, N.Y. (Harold F. Damm of counsel), for appellant. Kramer Martynetz & Verbesey, New York, N.Y. (Paul

Verbesey of counsel), for respondent. JUDGES: Joy, J. P., Florio, H. Miller and Smith, JJ., concur. OPINION [*432] [**504] Ordered that the order is affirmed, with costs. A building owned by the defendant, in which the plaintiff leased space for its light manufacturing business, was destroyed by a fire. The unrebutted evidence in the record attributed the cause of the fire to one or two lightning strikes during an electrical storm. The plaintiff commenced this action to recover damages for loss of business property and lost profits [*433] contending that the defendant's violation of certain provisions of the State Uniform Fire Prevention and Building Code (9 NYCRR 1173.1 [g]; 1163.6 [c] [2]), accelerated the spread of the fire and caused the loss of its entire business. [***2] [HN1] Although the violation of those provisions, if proven, would constitute some evidence of negligence (see, Hill v Cartier, 258 AD2d 699; McCullough v Gardner, 187 AD2d 937), the defendant met its burden of establishing as a matter of law that the alleged negligence was not "a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). The defendant's expert, who had 20 years experience in investigating fires, concluded that the fire rapidly accelerated due to the wind, the tar roof, and the flammable materials stored by the tenants, and that the violations cited by the plaintiff were "innocuous factors" in contributing to the rapid spread of the fire. [**505] The expert's affidavit submitted by the plaintiff was without probative force and was insufficient to defeat the motion for summary judgment. The professional background of the plaintiff's expert, which did not include experience in investigating fires, was insufficient to lend credence to his opinions, and he failed to provide [***3] a scientific basis for his conclusions (see, Romano v Stanley, 90 NY2d 444). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint. Joy, J. P., Florio, H. Miller and Smith, JJ., concur.

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Caution As of: Sep 10, 2008 Karyn Keeley, Respondent, v. Berley Realty Corp. et al., Respondents, and Abco Maintenance, Inc., et al., Appellants. (And a Third-Party Action.) 2348 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 271 A.D.2d 299; 707 N.Y.S.2d 68; 2000 N.Y. App. Div. LEXIS 4404 April 18, 2000, Decided April 18, 2000, Entered CASE SUMMARY:

pellant, post-note-of-issue, landlord LexisNexis(R) Headnotes

PROCEDURAL POSTURE: Appellants, construction company and maintenance contractor, challenged order of Supreme Court, New York County (New York), which denied cross motions for dismissal of appellee parking lot owner's claims arising from an underlying action for personal injuries sustained in a trip and fall caused by pothole in parking lot. OVERVIEW: Appellee parking lot owner's motion for summary judgment against appellant maintenance contractor was properly granted based on a provision in the parties' contract requiring appellant maintenance contractor to procure liability insurance naming appellee as an additional insurer. Appellant maintenance contractor's failure to show that it purchased such insurance rendered it responsible for appellee's damages resulting from the underlying personal injury action. Appellant construction company's cross motion for summary judgment should have been entertained and granted because it was submitted only one day after the 120-day deadline for making a postnote-of-issue motion. Absent evidence of contractual duty to identify or repair potholes without a request from appellee, appellant construction company could not be held responsible for a pothole it had never been asked to repair. OUTCOME: Order was modified to enter judgment in favor of appellant construction company, dismissing complaint and cross claims against it, because appellant construction company could not be held responsible for pothole it was never asked to repair; order otherwise affirmed. CORE TERMS: summary judgment, pothole, parking lot, procure, cross claim, contractor, repair, defendant-ap-

Civil Procedure > Summary Judgment > Time Limitations Contracts Law > Types of Contracts > Lease Agreements > General Overview Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > General Overview [HN1] Where the landlord is aware that the tenant has failed to procure insurance, in violation of the lease, and the landlord procures its own insurance, damages in a subsequent negligence case are limited to the cost of such insurance. COUNSEL: [***1] For Plaintiff-Respondent: Maria D. Spero. For Defendants-Respondents: Max W. Gershweir. For Defendants-Appellants: Carol R. Finocchio, Doreen J. Correia. JUDGES: Concur--Williams, J. P., Mazzarelli, Rubin, Saxe and Buckley, JJ. OPINION [*299] [**69] Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about April 28, 1999, which, in an action for [*300] personal injuries sustained in a trip and fall caused by a pothole in a parking lot owned and managed by nonappealing defendants, insofar as appealed from, granted defendant owner's

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motion for summary judgment on its cross claim against defendant-appellant maintenance contractor Abco Maintenance for breach of contract to procure insurance, and denied defendant-appellant maintenance contractors Abco Maintenance and Virga Construction's cross motions for summary judgment dismissing the complaint and any cross claims as against them, unanimously modified, on the law, to grant Virga's cross motion for summary judgment dismissing the complaint and any cross claims as against it, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant-appellant Virga Construction [***2] Corp. dismissing the complaint and any cross claims as against it.

was made four days before the return date of the owner's main motion [***3] and only one day after the 120-day deadline for making a post-note-of-issue motion for summary judgment, should have been entertained (see, Miranda v Devlin, 260 AD2d 451) and granted. Virga's submissions established that defendant management company contracted with Abco to provide maintenance; that Abco submitted weekly reports on the condition of the premises including any potholes that had been found; that Virga was an independent contractor who paved potholes in the parking lot from time to time, when requested by the management company, and would invoice the management company for any work it did; that Virga filled potholes and repaved another section of the parking lot some six months before plaintiff's accident, which work was the last it [**70] did in the [*301] parking lot before the accident; and that the management company, which denies knowledge of the pothole in question, never asked Virga to repair it. Absent evidence of a contractual duty to identify or repair potholes without a request from the management company, Virga cannot be held responsible for a pothole it had never been asked to repair.

Defendant owner's motion for summary judgment as against Abco was properly granted based on the provision in their contract requiring Abco to procure liability insurance naming the owner as an additional insured. Abco's failure to show that it purchased such insurance renders it responsible for all of the owner's resulting damages, including liability to plaintiff, and such a determination need not await a factual determination as to whose negligence, if anyone's, caused plaintiff's injuries (see, McGill v Polytechnic Univ., 235 AD2d 400, 401402; Encarnacion v Manhattan Powell, 258 AD2d 339, 340; compare, Wallen v Polo Grounds Bar & Grill, 198 AD2d 19, 20 [HN1] ["where the landlord is aware that the tenant has failed to procure insurance, in violation of the lease, and the landlord procures its own insurance, damages are limited to the cost of such insurance"]).

Abco's cross motion for summary judgment, [***4] made well after the 120-day period for making a postnote-of-issue motion for summary judgment under CPLR 3212 (a), as well as the time for making a cross motion under CPLR 2215, was properly denied absent any showing of good cause for the lateness. Concur--Williams, J. P., Mazzarelli, Rubin, Saxe and Buckley, JJ.

Virga's cross motion for summary judgment, which

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Cited As of: Sep 10, 2008 Ronald D. Betterly et al., Appellants, v. Estate of Seymour Silver, Deceased, et al., Respondents. 2239 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 266 A.D.2d 30; 698 N.Y.S.2d 17; 1999 N.Y. App. Div. LEXIS 11373 November 9, 1999, Decided

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November 9, 1999, Entered CASE SUMMARY: OPINION PROCEDURAL POSTURE: Plaintiff police officer appealed from a judgment of the Supreme Court, Bronx County (New York) which granted defendants property owners' motion for summary judgment dismissing the complaint to recover for injuries sustained on defendants' property. OVERVIEW: Plaintiff, a police officer, brought an action pursuant to N.Y. Gen. Mun. Law § 205-e and common law negligence to recover for injuries sustained on premises owned by defendants. Trial court granted defendants' motion for summary judgment dismissing the complaint. The alleged violations of the city and administrative health code were insufficient predicates for imposition of liability. Plaintiff did not fall from an unguarded window and was not assaulted by an assailant who may have unlawfully gained access to the building due to the failure to secure its doors. Plaintiff's injuries were sustained while attempting to prevent a suspect from fleeing. The causal connections between the absence of window guards and locked doors and plaintiff's injuries were too remote for the imposition of liability. Judgment was affirmed. OUTCOME: Affirmed. The causal connections between the absence of window guards and locked doors, and plaintiff's injuries, were too remote for the imposition of liability. The alleged violations of the city and administrative health code were insufficient predicates for imposition of liability. CORE TERMS: window, doors, window guards, imposition of liability, unguarded, intruder, fleeing COUNSEL: [***1] For Plaintiffs-Appellants: Christopher L. Salley. For Defendants-Respondents: William P. DeVito. JUDGES: Concur--Sullivan, J. P., Rosenberger, Lerner, Rubin and Andrias, JJ.

[*30] [**17] Order, Supreme Court, Bronx County (Lottie Wilkins, J.), entered July 9, 1998, which granted defendants' motion for summary [*31] judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff, a New York City police officer, brought this action to recover pursuant to [**18] General Municipal Law § 205-e and on a common law negligence theory for injuries he sustained in premises owned by defendants when, in the course of his official duties, he fell within an apartment located on defendants' premises while attempting to apprehend a criminal suspect who was fleeing the premises through a window without bars. Under the circumstances at bar, however, neither the alleged violations of the New York City Health Code and Administrative Code of the City of New York concerning the obligation to advise tenants of the option to have the owner install window guards (24 RCNY 12-02, 12-03, 131.15; Administrative Code § 17-123), nor the owner's [***2] obligation to secure its premises from intruders (Administrative Code §§ 27-127, 27-128) are sufficient predicates for imposition of section 205-e liability. Plaintiff did not fall from an unguarded window and was not assaulted by an assailant who may have unlawfully gained access to the building due to the failure to secure its doors. Plaintiff's injuries were sustained while attempting to prevent the suspect from fleeing. Even under the liberal causation standards applicable under section 205-e (see, O'Connell v Kavanagh, 231 AD2d 29, 30), the causal connections between the absence of window guards and locked doors, on the one hand, and plaintiff's injuries, on the other, are too remote for the imposition of liability. Although a question of fact exists as to whether the suspect was an intruder or was lawfully on the premises (see, Carmen P. v PS&S Realty Corp., 259 AD2d 386, 388), the negligence cause of action, also predicated upon unlocked doors and an unguarded window, like the section 205-e claim, was properly dismissed on proximate cause grounds. Concur--Sullivan, J. P., Rosenberger, [***3] Lerner, Rubin and Andrias, JJ.

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Cited As of: Sep 10, 2008 Carmine Guadagno, Appellant, v. Terrace Tenants Corp. et al., Respondents. 98-06516, 99-03716 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 262 A.D.2d 355; 691 N.Y.S.2d 146; 1999 N.Y. App. Div. LEXIS 6348 April 21, 1999, Submitted June 7, 1999, Decided PRIOR HISTORY: [***1] In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Arniotes, J.), dated May 13, 1998, which granted the defendants' motion pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law on the ground that the plaintiff failed to prove a prima facie case, and (2) a judgment of the same court, dated June 23, 1998, in favor of the defendants and against her dismissing the complaint. CASE SUMMARY:

determined that the burglary was foreseeable, and there was sufficient evidence to allow the jury to determine if the absence of the lights contributed to the assault. OUTCOME: The court reversed the judgment granting defendant landlords' motion for summary judgment, reinstated the complaint, and granted a new trial because defendants owed a duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct, and defendants' failure to light the courtyard outside of plaintiff's apartment was prima facie evidence of defendants' negligence.

PROCEDURAL POSTURE: Plaintiff tenant appealed an order from the Supreme Court, Kings County (New York) that granted defendant landlords' motion pursuant to N.Y. C.P.L.R. 4401 for judgment as a matter of law on the ground that plaintiff failed to prove a prima facie case of negligence and thereby dismissed plaintiff's complaint.

CORE TERMS: courtyard, apartment, foreseeable, prima facie case, criminal conduct, proximate cause, assault

OVERVIEW: Plaintiff tenant sued defendant landlords for personal injuries incurred when plaintiff's apartment was burglarized and he was beaten, alleging that defendants were negligent in failing to equip the courtyard with artificial light. The lower court granted defendants' motion pursuant to N.Y. C.P.L.R. 4401 and entered judgment for defendants because plaintiff failed to prove a prima facie case, dismissing the complaint. Plaintiff appealed and the court reversed and reinstated the complaint because defendants owed a duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct. Defendants' failure to light the courtyard outside of plaintiff's apartment, in violation of N.Y. Mult. Dwell. Law § 26(7-a) and N.Y.C. Admin. Code § 27-739, was prima facie evidence of defendants' negligence. The court also ruled that plaintiff submitted sufficient evidence of prior criminal conduct at the building from which the jury could have

Torts > Negligence > Duty > Foreseeability of Injury Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Criminal Acts [HN1] Landlords owe a duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct.

LexisNexis(R) Headnotes

COUNSEL: Ziegler & Robinson (Seligson, Rothman & Rothman, New York, N.Y. [Martin S. Rothman, Benjamin Robinson, and Alyne I. Diamond] of counsel), for appellant. Anne D. Pope, New York, N.Y. (Robert R. Groezinger of counsel), for respondents. JUDGES: S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.

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OPINION [*356] [**147] Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is reversed, on the law, the defendants' motion to dismiss the complaint is denied, the complaint is reinstated, the order is vacated, and a new trial is granted, with costs to abide the event. The appeal from the intermediate [***2] order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]). The plaintiff brought the instant action to recover damages for injuries he allegedly sustained when he was assaulted by unknown persons who burglarized his firstfloor apartment. At trial, he presented evidence that the assailants entered his apartment at about 5:00 A.M., through a living room window which leads to an elevated courtyard, and that the courtyard outside of his apartment was not lit at all. He alleged that the defendants were negligent, inter alia, in failing to equip the courtyard with a means of artificial light. The court granted the defendants' motion pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law on the ground that the plaintiff failed to prove a prima facie case. [**148] Viewing the evidence in the light most favorable to the [***3] plaintiff, the Supreme Court improperly concluded that "there [was] no rational process" by which the jury could have based a finding in favor of the plaintiff in the instant case (Szczerbiak v Pilat, 90 NY2d 553, 556). [HN1] The defendants owed a duty " 'to take minimal precautions to protect tenants from foreseeable harm', including a third party's foreseeable criminal conduct" (Burgos v Aqueduct Realty Corp., 92 NY2d

544, 548, quoting Jacqueline S. v City of New York, 81 NY2d 288, 293-294; see, Miller v State of New York, 62 NY2d 506, 513). The defendants' failure to light the courtyard outside of the plaintiff's apartment, in violation of Multiple Dwelling Law § 26 (7-a) and Administrative Code of City of New York § 27-739, was prima facie evidence of their negligence (see, Tepoz v Sosa, 241 AD2d 449; Barnes v Stone-Quinn, 195 AD2d 12, 14). In addition, the plaintiff submitted sufficient evidence of prior criminal conduct at the building from which the jury could [***4] have determined that the subject incident was foreseeable (see, Jacqueline S. v City of New York, supra, at 294-295; Loeser v Nathan Hale Gardens, 73 AD2d 187, 190). [*357] Moreover, in establishing a prima facie case that the lack of lighting in the courtyard outside his apartment was a proximate cause of the subject incident, the "plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred ... [The] plaintiff's burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical 'to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence' " (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550, quoting Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744-745). In the instant case, the plaintiff's evidence was sufficient. "Although it is of course impossible to state with certainty that the assault would not have occurred if [the courtyard] had been properly illuminated, it was [***5] properly a jury question under all the circumstances to determine whether the absence of the lights in fact contributed substantially to the criminal assault and subsequent injuries" (Loeser v Nathan Hale Gardens, supra, at 191; see, Gibbs v Diamond, 256 AD2d 266; cf., Rodriguez v New York City Hous. Auth., 87 NY2d 887). S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.

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Analysis As of: Sep 10, 2008 Jerrold O'Grady et al., Appellants, v. New York City Housing Authority, Respondent.

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406 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 259 A.D.2d 442; 687 N.Y.S.2d 352; 1999 N.Y. App. Div. LEXIS 3236 March 30, 1999, Decided March 30, 1999, Entered CASE SUMMARY: PROCEDURAL POSTURE: Plaintiffs sought review of the decision of the trial court (New York), which granted defendant's motion to dismiss plaintiffs' action for negligence. OVERVIEW: Plaintiff firefighter was injured when, while ascending stairs in response to an alarm at defendant's residential premises, he slipped on liquid leaking from an open bag of garbage. He sued for damages under both statutory and common-law theories of negligence. The trial court granted defendant's motion to dismiss. On appeal, the court reversed. N.Y. Gen. Mun. Law § 205-a created a cause of action for firefighters where injury resulted from the negligent failure to comply with local ordinances. Defendant was required under the law to maintain its premises in a clean, safe condition. Notice of the condition of the premises could be inferred from evidence in the record of defendant's continuing battle with tenants who left garbage in the building's common areas. While a common law claim required a greater threshold of notice of the hazardous condition, there was ample evidence in the record that tenants left garbage in bags in the common areas, and that vagrants broke open the bags in search of usable items. The ongoing pattern of such activity, along with the established routine of cleaning up and warning tenants, constituted constructive notice to defendant of the condition. OUTCOME: Grant of defendant's motion to dismiss plaintiffs' action for negligence reversed and complaint reinstated. Municipal law created a cause of action for firefighters where injury resulted from negligent failure to comply with local ordinances. CORE TERMS: common-law, garbage, notice, tenants, bag, common areas, firefighter, safe LexisNexis(R) Headnotes

Governments > Local Governments > Claims By & Against Torts > Negligence > Proof > Violations of Law > General Overview Torts > Premises Liability & Property > General Premises Liability > Dangerous Conditions > Duty to Maintain [HN1] N.Y. Gen. Mun. Law § 205-a creates a cause of action for firefighters where injury results from the negligent failure to comply with local ordinances. COUNSEL: [***1] For Plaintiffs-Appellants: Barry R. Strutt. For Defendant-Respondent: Jeannine LaPlace. JUDGES: Concur--Nardelli, J. P., Wallach, Lerner and Rubin, JJ. OPINION [*442] [**353] Order, Supreme Court, New York County (Richard Lowe, III, J.), entered March 5, 1998, which granted defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated. Plaintiff firefighter was injured when, while ascending stairs in response to an alarm at defendant's Bronx residential premises, he slipped on liquid leaking from an open bag of garbage. He sued for damages under both statutory and common-law theories of negligence. [HN1] General Municipal Law § 205-a creates a cause of action for firefighters where injury results from the negligent failure to comply with local ordinances, inter alia. Alleged here are violations of various provisions of title 27 of the Administrative Code of the City of New York, to wit: section 27-127 (general requirement to maintain buildings and their parts in a safe condition), section 27-128 (owner responsibility for safe maintenance of a building and its facilities), and section 27-2011 (requirement [***2] of an owner to maintain the public parts of a building in a clean and sanitary condition). Notice of the condition ( Lusenskas v Axelrod, 183 AD2d

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244, appeal dismissed 81 NY2d 300) can be inferred from evidence in the record of defendant's continuing battle with tenants who leave garbage in the common areas of the building (see, O'Connell v Kavanagh, 231 AD2d 29).

items. The ongoing pattern of such activity, along with the established routine of cleaning up and warning tenants, constituted constructive notice to defendant of this recurrent condition ( Megally v 440 W. 34th St. Co., 246 AD2d 346; O'Connor-Miele v Barhite & Holzinger, 234 AD2d 106; Alvarez v Mendik Realty Plaza, 176 AD2d 557, lv denied 79 NY2d 756).

While a common-law claim requires a greater threshold of [*443] notice of the hazardous condition, there was ample evidence in the record that tenants would leave garbage in bags in the common areas, and that vagrants who slept in those hallways and stairwells at night would break open the bags in search of usable

Plaintiffs have established viable [***3] claims under both statutory and common-law theories of recovery. Concur--Nardelli, J. P., Wallach, Lerner and Rubin, JJ.

36 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Luisa R., Appellant, v. City of New York et al., Respondents. 2776 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 253 A.D.2d 196; 686 N.Y.S.2d 49; 1999 N.Y. App. Div. LEXIS 2280 March 4, 1999, Decided March 4, 1999, Entered PRIOR HISTORY: [***1] Appeal from an order of the Supreme Court (Douglas McKeon, J.), entered February 7, 1997 in Bronx County, which, to the extent appealed from, granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion to amend her complaint. DISPOSITION: Defendants' motion for summary judgment denied, and plaintiff's cross motion to amend her complaint grantes. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff appealed the decision of the Supreme Court, Bronx County (New York), which granted defendants' motion for summary judgment in plaintiff's suit for personal injuries based upon defendants' negligence.

OVERVIEW: Plaintiff was assaulted and raped in her apartment which was located in a building that was owned and operated by defendant city and defendant Department of Housing Preservation and Development (HPD). Before the assault plaintiff had notified defendants about the presence of drug dealers and other nontenants. Plaintiff's negligence suit against defendants' city, HPD, and police department alleged three separate theories of liability. She alleged that defendant city and HPD were negligent in allowing a dangerous and hazardous condition to exist and in failing to take precautionary measures to secure the premises against intruders. Plaintiff also alleged that defendant police department had negligently failed to fulfill its special duty to protect her. The court reversed the grant of summary judgment as to defendant city and HPD where triable issues of fact had been raised as to whether plaintiff's injuries were a foreseeable result of defendants' inaction in removing the

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drug dealers and whether her injuries were proximately caused by defendants' negligence. The court upheld the grant of summary judgment because no special relationship existed between plaintiff and the police. OUTCOME: The judgment granting defendants' motion for summary judgment was reversed in part because issues of triable fact were raised regarding defendants' negligence in allowing a dangerous condition to exist and in failing to take precautionary measures because plaintiff had informed defendants' of such conditions, but affirmed as to allegation that defendant police had breached its duty to protect plaintiff because no special relationship existed. CORE TERMS: drug dealers, landlord, tenant, criminal activity, assailant's, cause of action, intruder, summary judgment, proximate cause, inferred, criminal assault, police protection, arrests, rape, police department, municipality's, common-law, entrance, evict, locks, negligence action, apartment building, apartment, attacker, reasonably foreseeable, issue of fact, ample evidence, unlawful use, vacant apartments, nontenant LexisNexis(R) Headnotes

Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Criminal Acts [HN1] A landlord has a common-law duty to take reasonable precautionary measures to protect members of the public from the reasonably foreseeable criminal acts of third persons on the premises. Torts > Negligence > Causation > Proximate Cause > General Overview Torts > Negligence > Proof > Evidence > Province of Court & Jury [HN2] While a plaintiff in a negligence case must establish that the defendant's negligence was the proximate cause of his or her injuries, a plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. Torts > Premises Liability & Property > Lessees & Lessors > General Overview [HN3] In a case alleging that the assailant gained access to the premises through a negligently maintained entrance, plaintiff can recover only if the assailant was an intruder.

Governments > Local Governments > Claims By & Against Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > Criminal Acts [HN4] A cause of action is stated if plaintiff alleges that the landlord was given notice of persistent criminal activity on the premises creating the likelihood of injury to others, and further demonstrates a causal relationship between the complained-of activities and plaintiff's injuries. Business & Corporate Law > Agency Relationships > Duties & Liabilities > Knowledge & Notice > General Overview Governments > Local Governments > Police Power Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > Government Officials [HN5] A municipality may not be held liable for injuries resulting from the failure to provide police protection to an individual absent a "special relationship" between the municipality and the individual. The elements of this "special relationship" are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking. HEADNOTES Landlord and Tenant - Landlord's Duty to Provide Adequate Security - Failure to Remove Criminals 1. In a negligence action arising out of the criminal assault and rape of plaintiff in her apartment building, the IAS Court erred in granting summary judgment dismissing plaintiff's common-law negligence claim based on inadequate security, where the court improperly read plaintiff's complaint as alleging only a failure by defendants to secure the outer doors and locks to the premises, since the complaint clearly includes the independent allegation that, apart from any security failures at the building's entrances, defendant landlords were independently negligent for failing to remove the drug dealers engaging in criminal activity on the premises. Moreover, in light of a landlord's common-law duty to take reasonable precautionary measures to protect members of the public from the reasonably foreseeable criminal acts of third persons on the premises, plaintiff's additional theory of negligence based on such duty is also viable.

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Negligence - Foreseeability - Landlord's Failure to Remove Criminals - Criminal Assault on Tenant 2. In a negligence action arising out of the criminal assault and rape of plaintiff in her apartment building, plaintiff has raised a triable issue of fact as to whether her injuries were a foreseeable result of defendant's inaction in failing to remove drug dealers from the building where plaintiff testified that drug dealing was rampant in the building, that the drug dealers had threatened her and had committed burglaries, and that she communicated these illicit activities to defendants. Since the landlord was repeatedly informed of ongoing criminal activity in the building and took minimal efforts to stop it, it was for the jury to determine whether the landlord's failure to evict the alleged drug dealers could serve as a predicate for liability for the plaintiff's injuries. Although there were no reported sexual assaults on the premises, there is no requirement that the prior criminal activity relied on to establish foreseeability be of the same type of criminal conduct to which plaintiff was subjected. This is not a case where the plaintiff's assertions of prior criminal activity on the premises were conclusory, or that the type of prior criminal activity was so dissimilar to that which caused plaintiff's injuries that the latter was not reasonably foreseeable. Negligence - Proximate Cause - Landlord's Failure to Remove Criminals - Criminal Assault on Tenant Landlord's Failure to Provide Adequate Security 3. In a negligence action arising out of the criminal assault and rape of plaintiff in her apartment building, a triable issue of fact has been raised on the issue of proximate cause. While a plaintiff in a negligence case must establish that the defendant's negligence was the proximate cause of his or her injuries, a plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. With respect to plaintiff's theory that defendants allowed a dangerous condition to exist on the premises, she has provided ample evidence from which it may be inferred that the failure to evict the drug dealers was a substantial factor in causing her injuries. To the extent that plaintiff alleged that the assailant gained access to the premises through a negligently maintained entrance, plaintiff can recover only if the assailant was an intruder and must offer some evidence from which the assailant's intruder status may be inferred. Plaintiff submitted evidence that the building had very few tenants, all of whom she knew, rendering it less likely that the attacker was a tenant or an invitee; that for the entire time she lived there, the locks to the front entrance and intercom were broken; and that she observed a man dressed exactly like her attacker in the lobby, in the presence of several nontenant drug dealers, prior to the attack. Thus, even apart

from a police report that included an informant's statement that the assailant was a drug purchaser who followed plaintiff to her apartment with the intent to rape her, which was rejected as inadmissible hearsay, ample evidence existed from which the assailant's intruder status may be inferred. Landlord and Tenant - Landlord's Duty to Provide Adequate Security - Failure to Remove Criminals - Statutory Cause ofAction - Amendment to Pleading 4. In a negligence action arising out of the criminal assault and rape of plaintiff in her apartment building, the IAS Court erred in concluding that Real Property Law § 231 (2), which provides that property owners who "knowingly leas[e] or giv[e] possession" of all or part of their property for unlawful use, or who "knowingly permit[] the same to be so used", shall be liable for any damage resulting from such unlawful use, was inapplicable on the ground that there was no landlord and tenant or other relationship which would empower the municipal defendants to evict those engaging in unlawful conduct, since there is no such requirement in the statute. Rather, a cause of action is stated if plaintiff alleges that the landlord was given notice of persistent criminal activity on the premises creating the likelihood of injury to others, and further demonstrates a causal relationship between the complained of activities and plaintiff's injuries. Moreover, since the cause of action alleging a violation of section 231 (2) is based on allegations already pleaded in plaintiff's common-law negligence claim, and defendants have failed to demonstrate any prejudice by the amendment, or that the claim is barred by the Statute of Limitations, amendment to include this cause of action should have been permitted. Municipal Corporations - Tort Liability - Special Relationship - Failure to Provide Police Protection 5. In a negligence action arising out of the criminal assault and rape of plaintiff in her apartment building, the IAS Court correctly concluded that no special relationship existed between the plaintiff and the police department so as to impose liability on the latter for failing to provide police protection. While it is arguable that the police assumed a duty to act on plaintiff's behalf by virtue of making arrests of drug dealers at the building, the evidence establishes that plaintiff could not have justifiably relied on the police department's asserted promise to protect her, where a police officer testified that plaintiff essentially told him that she did not want the police to make arrests in the building, and plaintiff herself conceded that the officer told her that "he couldn't do anything about it." Under these circumstances, plaintiff could not have reasonably relied on any purported assumption by the police of a duty to protect her, and the vague assurances by municipal employees that they

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would "fix the building" cannot reasonably be construed as a promise of police protection. COUNSEL: John E. Fitzgerald of counsel (Deborah P. Henkin, Michael D. Neuman and John M. Daly on the brief; Fitzgerald & Fitzgerald, P. C., attorneys), for appellant. Ronald E. Sternberg of counsel (Leonard Koerner on the brief; Michael D. Hess, Corporation Counsel of New York City, attorney), for respondents. JUDGES: Sullivan, J. P., Nardelli and Williams, JJ., concur. OPINION BY: Angela M. Mazzarelli OPINION [*198] [**51] Mazzarelli, J. On April 3, 1990, plaintiff was returning to her fourth-floor apartment located at 450 East 136th Street, Bronx, New York (building), when a Hispanic man wearing blue jeans and a stocking on his head pushed her into the apartment from behind, and then assaulted and raped her. Plaintiff's assailant was never apprehended [***2] nor identified. However, plaintiff remembers seeing a man dressed like the attacker in the lobby of her building a few hours before the attack, loitering in the presence of drug dealers. The building was owned and managed by the City and its Department of Housing Preservation and Development (HPD). [*199] Plaintiff moved into the building in May 1989, and during the time she lived there, only 3 of the 8 apartments were occupied. From the beginning, plaintiff noticed that the common areas of the building were dirty and in a state of disrepair. The locks to the front door of the building and the vacant apartments were consistently broken, as was the intercom system. Further, nontenant drug dealers continually congregated in the lobby of the building and performed drug transactions there. During the winter months, several of the drug dealers lived in the vacant apartments. During September and October of 1989, plaintiff became so fearful of the constant presence of the intruders in the building that she called defendant's building manager nearly every day to request that they be removed. The building manager visited the building four times in late 1989 and reported the [***3] drug activity to HPD's Narcotic Group, which investigated the matter and confirmed that drug dealers were living and selling drugs in the building. Plaintiff also complained to the police. She had sev-

eral phone conversations with a [**52] Police Officer Garcia, who told her to "try to stay calm and don't mess with these people because [she] could get harmed." Although plaintiff expressed her desire to have the drug dealers removed from the building, according to Garcia she also said that she was hesitant to have the police make arrests because, with the small number of tenants in the building, she feared that the dealers would "narrow it down to her" and retaliate against her. Indeed, Garcia testified at his deposition that "[plaintiff] practically told me that she really didn't want anything being done at the location." Around January 1990, after Garcia encouraged plaintiff to go in person to the precinct, the police made several arrests in plaintiff's building for narcotics offenses. Additionally, City employees came to the building and sealed up the vacant apartments, and, according to plaintiff, told her that "they were going to fix the building, that all that was [***4] going to end." However, after the drug activity resumed almost immediately, Garcia told plaintiff "that he couldn't do anything else because those people who were arrested were free one day after, so he couldn't do anything about it." In June 1990, plaintiff commenced the instant action for personal injuries against the City, HPD and the Police Department. In a single cause of action for negligence, plaintiff asserts at least three separate theories of liability. Plaintiff first alleges that the City and HPD were negligent in their capacity [*200] as landowners in allowing "a dangerous and hazardous condition to exist" on the premises. She further claims they were negligent in failing to take reasonable precautionary measures to secure the premises against intruders (e.g., functioning locks, an intercom system or otherwise) despite notice of prior criminal activity on the premises by nontenants. Lastly, plaintiff complains that the Police Department assumed a special duty to protect her, and negligently failed to fulfill such duty. Defendants moved for summary judgment, arguing that no special duty existed to provide police protection to plaintiff, and that plaintiff's [***5] inadequate security claim should be dismissed because the element of proximate cause could not be established since there was no evidence that the assailant was an intruder, rather than a tenant or an invitee. Accepting both of these arguments, the IAS Court granted defendants' motion for summary judgment. The court also denied plaintiff's cross motion to amend her complaint to allege a violation of Real Property Law § 231 (2), finding that section inapplicable. The IAS Court erred in granting summary judgment dismissing plaintiff's common-law negligence claim based on inadequate security. Preliminarily, the court

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improperly read plaintiff's complaint as alleging only a failure by defendants to secure the outer doors and locks to the premises. The complaint clearly includes the independent allegation that, apart from any security failures at the building's entrances, defendants were independently negligent for failing to remove the drug dealers engaging in criminal activity on the premises. As case law has consistently recognized [HN1] a landlord's commonlaw duty to take reasonable precautionary measures to protect members of the public from the reasonably [***6] foreseeable criminal acts of third persons on the premises (see, Jacqueline S. v City of New York, 81 NY2d 288, 293-294; Garrett v Twin Parks Northeast Site 2 Houses, 256 AD2d 224; Beatty v National Assn. for Advancement of Colored People, 194 AD2d 361, 364, lv denied 82 NY2d 662), plaintiff's additional theory of negligence, not ruled on by the IAS Court, is also viable. Plaintiff has raised a triable issue of fact as to whether her injuries were a foreseeable result of defendants' inaction in failing to remove the drug dealers from the building (see, Jacqueline S. v City of New York, supra, at 294; Rivera v Sebastian Enters., 243 AD2d 291). Here, plaintiff testified that the drug dealing was rampant in the building, that the drug dealers [*201] had threatened her and had committed burglaries and that she communicated these illicit activities to defendants (see, Bonano v S.Z. Realty Corp., 256 AD2d 268). Indeed, defendants do not dispute that they received numerous complaints of drug dealing [**53] in the building, and that arrests were made and vacant apartments [***7] were sealed in response thereto. Since the landlord was repeatedly informed of ongoing criminal activity in the building and took minimal efforts to stop it, "it was for the jury to determine whether the landlord's failure to evict the alleged drug dealers could serve as a predicate for liability for the plaintiff's injuries ( Simmons v City of New York, 168 AD2d 230)." ( Beatty v National Assn. for Advancement of Colored People, supra, at 364.) Although there were no reported sexual assaults on the premises, there is no requirement that the prior criminal activity relied on to establish foreseeability "be of the same type of criminal conduct to which plaintiff was subjected" ( Jacqueline S. v City of New York, supra, at 294). This is not a case where the plaintiff's assertions of prior criminal activity on the premises were conclusory (cf., Ragona v Hamilton Hall Realty, 251 AD2d 391), or that the type of prior criminal activity was so dissimilar to that which caused plaintiff's injuries that the latter was not reasonably foreseeable (cf., Jarosz v 3135 Johnson Tenant Owners Corp., 246 AD2d 488). [***8] We also find that a triable issue of fact has been raised on the issue of proximate cause. [HN2] While a

plaintiff in a negligence case must establish that the defendant's negligence was the proximate cause of his or her injuries, "[a] plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred [citations omitted]" ( Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550). With respect to plaintiff's theory that defendants allowed a dangerous condition to exist on the premises, she has provided ample evidence from which it may be inferred that the failure to evict the drug dealers was a substantial factor in causing her injuries (see, Beatty v National Assn. for Advancement of Colored People, supra). However, [HN3] in a case alleging that the assailant gained access to the premises through a negligently maintained entrance, "plaintiff can recover only if the assailant was an intruder" ( Burgos v Aqueduct Realty Corp., supra, at 551). Thus, to survive a defendant's motion for summary judgment a plaintiff must offer some evidence from which the assailant's [***9] intruder [*202] status may be inferred (supra, at 551). Plaintiff has done so here. She submitted evidence that the building had very few tenants, all of whom she knew, rendering it less likely that the attacker was a tenant or an invitee. She further stated that for the entire time she lived there, the locks to the front entrance and intercom were broken. Additionally, she stated in an affidavit that she observed a man dressed exactly like her attacker in the lobby, in the presence of several nontenant drug dealers, prior to the attack. Thus, even apart from the police report that included a police informant's statement that the assailant was a drug purchaser who followed her to her apartment with the intent to rape her, which was rejected by the IAS Court as inadmissible hearsay, ample evidence existed from which the assailant's intruder status may be inferred (supra; see also, Bonano v S.Z. Realty Corp., supra; Cisse v S.F.J. Realty Corp., 256 AD2d 257). We further disagree with the IAS Court's determination that Real Property Law § 231 (2) is inapplicable to the case at bar. That section provides that [***10] property owners who "knowingly leas[e] or giv[e] possession" of all or part of their property for unlawful use, or who "knowingly permit[] the same to be so used", shall be liable for any damage resulting from such unlawful use. The IAS Court found this section inapplicable because "there was no landlord and tenant or other relationship which would empower the municipal defendants to evict those engaging in unlawful conduct." We observe no such requirement in the statute. [HN4] A cause of action is stated if plaintiff alleges that the landlord was given notice of persistent criminal activity on the premises creating the likelihood of injury to others, and further demonstrates a causal relationship between the com-

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plained-of activities and plaintiff's injuries ( Maria S. v Willow Enters., 234 AD2d 177, 178-179). We find no authority to limit the scope [**54] of this statute to mandating the removal only of tenants or other identified occupants. As the cause of action alleging a violation of Real Property Law § 231 (2) is based on allegations already pleaded in plaintiff's common-law negligence claim (see, Bamira v Greenberg, 256 AD2d 237), [***11] and defendants have failed to demonstrate any prejudice by the amendment (supra; see also, Napolitano v DGM-I Corp., 255 AD2d 567), or that the claim is barred by the Statute of Limitations (see, Weitzenberg v Nassau County Dept. of Recreation & Parks, 249 AD2d 538), amendment to include this cause of action should have been permitted. [*203] However, we uphold the IAS Court's finding that no special relationship existed between the plaintiff and the Police Department so as to impose liability on the latter for failing to provide police protection. "[HN5] A municipality may not be held liable for injuries resulting from the failure to provide police protection to an individual absent a 'special relationship' between the municipality and the individual ( Kircher v City of Jamestown, 74 NY2d 251, 255; Cuffy v City of New York, 69 NY2d 255, 260)." ( Merced v City of New York, 75 NY2d 798, 799-800.) "The elements of this 'special relationship' are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge [***12] on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking [citations omitted]." (

Cuffy v City of New York, supra, at 260.) While it is arguable that the police assumed a duty to act on plaintiff's behalf by virtue of making arrests at the building, the evidence establishes that plaintiff could not have justifiably relied on the Police Department's asserted promise to protect her. Police Officer Garcia testified at his deposition that plaintiff essentially told him that she did not want the police to make arrests in the building, and plaintiff herself conceded that Garcia told her that "he couldn't do anything about it." Under these circumstances, plaintiff could not have reasonably relied on any purported assumption by the police of a duty to protect her ( Riss v City of New York, 22 NY2d 579). The vague assurances by City employees that they would "fix the building" cannot reasonably be construed as a promise of police protection. Accordingly, the order [***13] of the Supreme Court, Bronx County (Douglas McKeon, J.), entered February 7, 1997, which, to the extent appealed from, granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to amend her complaint to include a cause of action alleging a violation of Real Property Law § 231 (2), should be reversed, on the law, without costs, defendants' motion for summary judgment denied, and plaintiff's cross motion to amend her complaint granted. Sullivan, J. P., Nardelli and Williams, JJ., concur. [*204] Order, Supreme Court, Bronx County, entered February 7, 1997, reversed, on the law, without costs, defendants' motion for summary judgment dismissing the complaint denied, and plaintiff's cross motion to amend her complaint to include a cause of action alleging a violation of Real Property Law § 231 (2) granted.

37 of 55 DOCUMENTS

Caution As of: Sep 10, 2008 Paul Hill, Respondent, v. Stella L. Cartier, Also Known as Stella L. Ditoro, Appellant. 82614 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

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258 A.D.2d 699; 685 N.Y.S.2d 336; 1999 N.Y. App. Div. LEXIS 939 February 4, 1999, Decided February 4, 1999, Entered PRIOR HISTORY: [***1] Appeal from a judgment of the Supreme Court (Lomanto, J.), entered February 11, 1998 in Schenectady County, upon a verdict rendered in favor of plaintiff.

unprotected, unguarded, defective condition, evidence of negligence, stairway, opening, evidence presented, jury's verdict, contractor, undisputed, ignorance, adjacent, repair, twice, hired, arm

DISPOSITION: The judgment is affirmed, with costs.

LexisNexis(R) Headnotes

CASE SUMMARY: PROCEDURAL POSTURE: Defendant appealed from a judgment of the Supreme Court in Schenectady County (New York) in favor of plaintiff in plaintiff's action asserting that defendant was negligent and that plaintiff's injuries from falling into an unguarded window in defendant's building were caused by a dangerous and defective condition about which defendant knew or should have known. OVERVIEW: Defendant maintained a house as rental property. Defendant observed that an exterior stairway was in need of repair and hired a contractor to replace the stairs. There had been a window, unguarded and unprotected, located adjacent to the stairway prior to and throughout the time defendant had owned the property. Defendant rented the property to plaintiff's girlfriend. During a rainstorm, plaintiff slipped on a step and fell into the unguarded window, breaking the window and injuring plaintiff's arm. The court found that the existence of a state building code mandate under New York City, N.Y., Rules of the City of New York, tit. 9, § 713.1(f)(2) together with notice to defendant of the existence of the proximity of the window to the stairs was all the proof needed for plaintiff to establish a prima facie case showing that defendant had notice of the dangerous condition. Therefore, under the facts in the case, defendant could properly be held liable for injuries resulting from the unprotected window. The court rejected defendant's contention that the jury was improperly instructed and found that there was sufficient evidence presented at the trial to support the verdict. OUTCOME: The court affirmed and held that a state building code mandate and notice to defendant of the existence of the proximity of the window to the stairs gave defendant notice of the allegedly dangerous and defective condition. CORE TERMS: window, stairs, building code, notice,

Torts > Negligence > Standards of Care > Reasonable Care > General Overview Torts > Premises Liability & Property > General Premises Liability > Dangerous Conditions > General Overview [HN1] A building owner cannot be liable for injuries caused to a person as a result of a defective condition on the premises unless it can be shown that the owner created the condition or that the owner had actual or constructive notice of the condition for such a reasonable period of time that in the exercise of reasonable care, the owner should have corrected it. Real Property Law > Zoning & Land Use > Building & Housing Codes Torts > Negligence > Defenses > General Overview [HN2] Ignorance of the law does not excuse persons so as to exempt them from the consequences of their acts. Civil Procedure > Appeals > Standards of Review [HN3] A jury verdict in favor of the plaintiff will not be set aside unless the evidence so preponderated in favor of the defendant that the verdict could not have been reached on any fair interpretation of the evidence. COUNSEL: Edward Flink & Associates (Edward B. Flink of counsel), Latham, for appellant. De Lorenzo, Gordon, Pasquariello, Weiskopf & Gorman P.C. (Thomas E. De Lorenzo of counsel), Schenectady, for respondent. JUDGES: Mikoll, J. P., Crew III, Peters and Graffeo, JJ., concur. OPINION BY: Spain OPINION

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[*699] [**337] Spain, J. In 1974, defendant purchased a one-family house in the Town of Glenville, Schenectady County, where she resided until 1985, when she moved to Arizona. Instead of selling the house, she decided to maintain it as rental [**338] property. Thereafter, she made regular visits to this area at least twice a year during which she went to the house to visit her tenants. In 1992, during one of her visits, she observed that the exterior stairway in the rear of the house was in need of repair and hired a contractor to replace the stairs. Notably, there has been a window, unguarded and unprotected, located adjacent to the lower portion of the stairway on the left side prior [***2] to and throughout the time defendant has owned the property. In 1994, defendant rented the property to plaintiff's girlfriend. In [*700] August of that same year, during a rainstorm and while attempting to ascend the stairway in question to enter the house, plaintiff slipped on the second step and fell to the left into the unguarded window, causing the window to break and resulting in severe injuries to his arm. Plaintiff commenced this action alleging negligence, asserting that his injuries were caused by the dangerous and defective condition about which defendant knew or should have known. During the course of the trial, plaintiff offered evidence that the unprotected window was in violation of the State Uniform Fire Prevention and Building Code (hereinafter State building code) which states, in pertinent part, that "[w]indow openings on stairs or landings, and well openings, shall be guarded by railings or other equivalent protection" (9 NYCRR 713.1 [f] [2]). The jury returned a verdict in favor of plaintiff and a judgment was entered from which defendant now appeals. We affirm. " '[[HN1] A] building owner cannot be liable for injuries caused to a person as a result [***3] of a defective condition on the premises unless it can be shown that the owner created the condition or that [the owner] had actual or constructive notice of the condition for such a reasonable period of time that in the exercise of reasonable care, the owner should have corrected it' " ( Parsons v City of New York, 195 AD2d 282, 284, quoting Trujillo v Riverbay Corp., 153 AD2d 793, 794; see, Polipo v Sanders, 227 AD2d 256, 257, lv denied 88 NY2d 812). Here, the key question when determining whether defendant could have been held liable for the condition of the stairs was whether defendant had notice of the allegedly dangerous and defective condition. The issue of whether or not defendant had notice that this condition, namely the absence of some form of protection for the window, was a violation of the State building code is irrelevant because " [HN2] '[i]gnorance of the law does not excuse persons so as to exempt them from the consequences of their acts' " ( National Conversion Corp. v Cedar Bldg. Corp., 23 NY2d 621, 628, quoting Municip-

al Metallic Bed Mfg. Corp. v Dobbs, 253 NY 313, 317). [***4] Defendant was well aware that the window which was located directly to the left of the back stairs was unguarded; she had lived in the house for over 10 years and, after moving out, had returned to visit at least twice a year. The existence of the State building code mandate together with notice to defendant of the existence of the proximity of the window to the stairs was all the proof needed for plaintiff to establish a prima facie case. Therefore, under the facts in this case, defendant could properly be held liable for injuries resulting from the unprotected window (see, Polipo v Sanders, supra, at 257; Parsons v City of New York, supra, at 284). [*701] Next, we reject defendant's contention that Supreme Court improperly instructed the jury with regard to the State building code. During defense counsel's opening statement, the court, in response to an objection raised by plaintiff's counsel, stated: "Ignorance of the law is no excuse. ... We are all aware of the statute in the state. That is the law." During its jury charge, the court instructed: "If you find that the defendant violated the code by not protecting the window, you [***5] may consider the violation as some evidence of negligence, along with the other evidence in the case provided that such violation was a substantial factor in bringing about the occurrence." Because ignorance of the law does not excuse one from liability (see, National Conversion Corp. v Cedar Bldg. Corp., supra, at 628) and a violation of the building code can be considered as [**339] some evidence of negligence (see, Clo v McDermott, 239 AD2d 4, 6), the court's instructions to the jury were proper. We also conclude that there was sufficient evidence presented at the trial to support the jury's verdict. [HN3] A jury verdict in favor of the plaintiff will not be set aside unless " 'the evidence so preponderated in favor of the [defendant] that the verdict could not have been reached on any fair interpretation of the evidence' " ( Moxley v Givens, 255 AD2d 632, 633 quoting Petrivelli v Walz, 227 AD2d 735). Here, it is undisputed that defendant owned the house and, thus, exercised the mandated control over the premises (see, Warren v Wilmorite, Inc., 211 AD2d 904, 905). It is also undisputed that [***6] defendant hired a contractor to repair the stairs and, after the stairs were repaired, the adjacent window continued to be unprotected. Plaintiff's expert testified that the unguarded window was in violation of the building code and that, although not a violation of any building code, the handrail on the stairs, which was located on the opposite side of the window, did not meet recognized national standards. The evidence of the building code violation, alone, served as some evidence of negligence on the part of defendant (see, Clo v McDermott, supra, at 6). Also, the jury could fairly conclude that the absence of any such protection or guard was a proximate cause of

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plaintiff's injuries in that such injuries were sustained as a result of plaintiff's arm going through the window and that defendant had notice of the conditions of the stairs and the area surrounding the stairs. In our view, there was ample credible evidence presented at trial to support a determination that a dangerous condition existed and defendant had the required notice of that condition (see, Pulley v McNeal, 240 AD2d 913; Walsh v City School

Dist., 237 AD2d 811; [***7] Warren v Wilmorite, Inc., supra). We have considered defendant's remaining contentions and find them to be without merit. [*702] Mikoll, J. P., Crew III, Peters and Graffeo, JJ., concur. Ordered that the judgment is affirmed, with costs.

38 of 55 DOCUMENTS Divito v. Goodfellas Brick Oven Pizza 102674/2006 SUPREME COURT OF NEW YORK, RICHMOND COUNTY 2008 N.Y. Misc. LEXIS 279; 239 N.Y.L.J. 12 January 7, 2008, Decided CASE SUMMARY:

tenant.

PROCEDURAL POSTURE: Defendants, an owner and a tenant, separately moved for summary judgment dismissing plaintiff police officer's personal injury complaint and all cross-claims.

OUTCOME: The owner's and the tenant's motions for summary judgment were denied insofar as they failed to keep the basement lit and clean; their motions were otherwise granted. The owner's motion for attorney's fees was granted to the extent of his defense of the main action against the officer.

OVERVIEW: While responding to an activated burglar alarm at the owner's and the tenant's premises, the police officer slipped on an "oily or greasy" substance in the basement that caused him to sustain injuries. The appellate court found, inter alia, that the police officer failed to establish that the owner and the tenant caused or created the alleged condition or had notice of the condition for a sufficient period of time to remedy it. However, the officer successfully raised a triable issue of fact regarding, inter alia, whether the owner and the tenant failed to adequately light the basement and keep corridors free from debris, as required by Administrative Code of the City of NY §§ 27-381, 27-369, and that such violation had a reasonable causal connection to his injuries. Therefore, the owner and the tenant were not entitled to summary judgment on those aspects of the officer's General Municipal Law § 205-e claim. The owner was entitled to summary judgment on the issue of indemnification pursuant to the lease agreement insofar as incurred in the defense of the action against the officer, but not those incurred in pursuing the cross-claim for indemnification against the

CORE TERMS: attorneys fees, summary judgment, indemnification, notice, negligence claims, cause of action, basement, attorneys fees, common law, cross claims, prima facie, causal connection, main action, entitlement, police officers, issue of fact, safe condition, private right of action, statutory violations, aforementioned, undisputed, common-law, curbstone, indemnify, sidewalk, flagging, slipped, orridors, triable, pursuit LexisNexis(R) Headnotes

Torts > Premises Liability & Property > General Premises Liability > General Overview [HN1] See Administrative Code of the City of NY § 27127. Torts > Premises Liability & Property > General

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Premises Liability > General Overview [HN2] See Administrative Code of the City of NY § 27128. Torts > Premises Liability & Property > General Premises Liability > General Overview [HN3] See Administrative Code of the City of NY § 27369. Torts > Premises Liability & Property > General Premises Liability > General Overview [HN4] See Administrative Code of the City of NY § 27381. Torts > Premises Liability & Property > General Premises Liability > General Overview [HN5] New York City Health Code § 153.19(a) provides, in part, that an owner, agent, lessee, tenant, occupant or other person who manages or controls a building or lot shall be jointly and severally responsible for keeping the sidewalk, flagging, and curbstone abutting the premises free from obstructions and nuisances and for keeping such sidewalk, flagging, and curbstone, the air shafts, areaways, backyards, courts, and alleys, or lot clean and free from garbage, refuse, rubbish, litter, or other offensive matter or accumulation of water. Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > General Overview [HN6] An owner of real property has a duty to maintain the property in a reasonably safe condition. Torts > Negligence > Proof > Burdens of Proof Torts > Premises Liability & Property > General Premises Liability > Dangerous Conditions > General Overview [HN7] In order to establish a prima facie case of negligence, a plaintiff must prove that the defendant either created a dangerous condition, or had notice of the condition, and had a reasonable time to remedy the situation. Torts > Negligence > Actions > General Overview [HN8] General Municipal Law § 205-e provides a private right of action for police officers injured in the line of duty by the negligence of other parties. This private right of action requires the plaintiff to demonstrate the violation of a relevant statute, ordinance, or regulation, and to establish a practical or reasonable con-

nection between the violation and the injury of the police officer. Torts > Negligence > Actions > General Overview Torts > Negligence > Proof > Burdens of Proof [HN9] A police officer, in proving negligence in accordance with General Municipal Law § 205-e, is not required to display proof of such notice as would be required under a common-law theory of negligence; however, the notion that notice of a violation is not a requisite element of a cause of action under the statute is an overstatement. Notice is clearly material to recovery under the statute. Therefore, the officer still needs to submit proof of a causal connection, direct or indirect, between the defendant's alleged statutory violations and the officer's injury. Torts > Damages > Costs & Attorney Fees > General Overview Torts > Procedure > Multiple Defendants > Indemnity > Contractual Indemnity [HN10] Parties are generally responsible for their own attorneys fees, to the extent not provided elsewhere, and the pursuit of indemnification is no exception. However, where indemnification for attorney's fees is provided for, the potential indemnitee is entitled only to recover attorneys fees incurred in the defense of the main action and shall not recover any fees that were incurred in the pursuit of indemnification. COUNSEL: [*1] Plaintiff's attorneys are Decolator, Cohen & Diprisco, Garden City, NY. Defense attorneys are Faust, Goetz, Schenker &. Blee, NY, NY and Gannon, Rosenfarb & Moskowitz, NY, NY. JUDGES: Justice McMahon OPINION BY: McMahon OPINION On June 12, 2006, the plaintiff allegedly sustained injuries when, acting in his capacity as a New York City Police Officer, he slipped and fell in the basement of defendant Goodfellas Brick Oven Pizza (hereinafter Goodfellas), located at 1718 Hylan Boulevard, Staten Island, New York. It is undisputed that at the time of the accident the plaintiff was responding to an activated burglar alarm at the defendant's premises. Upon arrival, the plaintiff began to inspect the premises and while in the basement he slipped on an "oily or greasy" substance causing him to sustain injuries. At the time of the acci-

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dent, defendant Hsiung Ye Realty Corporation (hereinafter Hsiung Ye) was the owner of the premises and defendants Goodfellas was the tenant and operated an Italian restaurant at the site. Plaintiff commenced this action on or about September 1, 2006, pursuant to General Municipal Law § 205-e alleging violations of New York City Administrative Code §§ 27-127,1 27-128,2 27-369,3 27-3814 and Section 153.195 [*2] of the New York City Health Code and common law negligence. Issue was joined in or around September 22, 2006. At present, defendants Hsiung Ye and Goodfellas are separately moving for summary judgment dismissing the complaint and all cross claims. 1 New York City Administrative Code § 27-127 provides that [HN1] "[a]ll buildings and all parts thereof shall maintained in the safe condition. All service equipment, means of egress, devices, and safeguards that are required in a building by the provisions of this code or other applicable laws or regulations, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working order". 2 New York City Administrative Code § 27-128 provides that [HN2] "[t]he owner shall be responsible at all times for the safe maintenance of the building and its facilities". 3 New York City Administrative Code § 27-369 provides, in relevant part, that [HN3] "[c]orridors shall be kept readily accessible and unobstructed at all times" 4 New York City Administrative Code § 27-381 provides, in relevant part, that [HN4] "[c]orridors and exits shall be provided with artificial lighting facilities". 5 [HN5] New York City Health Code § 153.19(a) provides, in [*3] relevant part, [t]he owner, agent, lessee, tenant, occupant or other person who manages or controls a building or lot shall be jointly and severally responsible for keeping the sidewalk, flagging and curbstone abutting the premises free from obstructions and nuisances and for keeping such sidewalk, flagging and curbstone, the air shafts, areaways, backyards, courts and alleys, or lot clean and free from garbage, refuse, rubbish, litter, or other offensive matter or accumulation of water". I. Summary Judgment a. Common Law Negligence Claims It is well settled that [HN6] "an owner of real property has a duty to maintain the property in a reasonably safe condition" (see Basso v. Miller, 40 NY2d 233, 241, 352 N.E.2d 868, 386 N.Y.S.2d 564 [1976]). [HN7] In or-

der to establish a prima facie case of negligence the plaintiff must prove that the defendant either created the condition, or had notice of the condition and had a reasonable time to remedy the situation (Gonzalez v. Jenel Management Corp., 11 AD3d 656, 656, 784 N.Y.S.2d 135 [2d Dept. 2004]; see Finocchiaro v. AVR Realty Corp., 32 AD3d 819, 819, 820 N.Y.S.2d 520 [2d Dept 2006]). In opposition to the defendant's prima facie showing of entitlement to summary judgment on plaintiff's common law negligence claims, the plaintiff [*4] has failed to present a triable issue of fact. The plaintiff has failed to establish that defendant caused or created the alleged condition or had notice of the condition for a sufficient period of time to remedy it (see Brown v. Outback Steakhouse, 39 AD3d 450, 833 N.Y.S.2d 222 [2d Dept. 2007]). b. General Municipal Law § 205-e Claims [HN8] General Municipal Law § 205-e provides a private right of action for police officers injured in the line of duty by the negligence of other parties (see Rabinowitz v. City of New York, 286 AD2d 724, 724-25, 730 N.Y.S.2d 454 [2d Dept., 2001]). This private right of action requires the plaintiff to demonstrate the violation of a relevant statute, ordinance, or regulation, and to "establish a practical or reasonable connection between the violation and the injury of the police officer" (Campbell v. City of New York, 31 AD3d 594, 595, 819 N.Y.S.2d 294 [2d Dept., 2006][emphasis added]; Fahey v. Serota, 23 AD3d 335, 806 N.Y.S.2d 70 [2d Dept., 2005]; Sconzo v. EMO Trans, Inc., 295 AD2d 493, 494, 744 N.Y.S.2d 471 [2d Dept., 2002]). [HN9] The plaintiff, in proving negligence in accordance with General Municipal Law § 205-e, is not required to display "proof of such notice as would be required under a commonlaw theory of negligence" (Anthony v. New York City Transit Auth., 38 AD3d 484, 486, 832 N.Y.S.2d 63 [2d Dept. 2007]), [*5] however, the notion "that notice of a violation is not a requisite element of a cause of action under [the statute] is...an overstatement. Notice is clearly material to recovery under the statute" (Lusenskas v. Axelrod, 183 AD2d 244, 248, 592 N.Y.S.2d 685 [1st Dept., 1992]). Therefore, the plaintiff still needs to submit proof of a "causal connection, direct or indirect, between the defendant's alleged statutory violations and the plaintiff's injury" (Fahey v. Serota, 23 AD3d at 336; Rabinowitz v. City of New York, 286 AD2d at 724). Initially, the Court notes that New York City Health Code § 153.19 regulates outdoor areas and is inapplicable in the instant matter (see D'Arpa v. New York City Transit Auth., 239 AD2d 126, 656 N.Y.S.2d 638 [1st Dept., 1997]). Further, the alleged violations of New York City Administrative Code § 27-127 and 27-128 are inapplicable as well, as such code provisions deal with

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structural/design defects, which are not part of the instant allegations (see Marsillo v. City of New York, 17 Misc.3d 612, 844 N.Y.S.2d 673 [Sup. Ct., 2007] [Aliotta, J.]). Therefore, summary judgment is appropriate on the causes of action alleged referencing the aforementioned violations. Further, the defendants have established a prima facie [*6] entitlement to summary judgment by demonstrating that there was no reasonable causal connection between the alleged statutory violations of §§ 27-369 and 27-381 of the NYC Administrative Code and plaintiff's injuries (see Fahey v. Serota, 23 AD3d at 336). In opposition, the plaintiff has successfully raised a triable issue of fact regarding, inter alia, whether the defendants failure to adequately light the basement (NYC Admin. Code § 27-381) and keep corridors free from debris (NYC Admin. Code § 27-369) had a reasonable causal connection to plaintiff's injuries (Campbell v. City of New York, 31 AD3d 594, 595, 819 N.Y.S.2d 294 [2d Dept. 2006]). Therefore, considering "the plaintiff is entitled, at this stage of the proceedings, to every reasonable inference that can be drawn from the testimony" summary judgment is inappropriate (Brown v. Outback Steakhouse, 39 AD3d 450, 451, 833 N.Y.S.2d 222 [2d Dept. 2007]). II. Attorneys' Fees It is undisputed that defendant Hsiung Ye, as owner of the aforementioned premises was named as an additional insured on codefendant Goodfellas insurance policy with limits of $ 1,000,000 per person; $ 2,000,000 per accident. Upon receipt of correspondence from counsel for defendant Hsiung Ye, [*7] Goodfellas insurance company Utica First Insurance Company (hereinafter "Utica First") acknowledged indemnification was appropriate and attempted to take over the defense. Utica First thereafter sent a confirmatory letter, dated June 18, 2007, which Hsiung Ye's attorneys rejected on the grounds that Utica First did not "state that the acceptance of our tender and defense of our client is without reservation [and] [f]urther, your correspondence is silent as to acceptance of our tender of all costs incurred by my client". Goodfellas/ Utica First again contacted Hsiung Ye, by letter dated August 21, 2007, to reiterate it's willingness to indemnify but noted its objection to payment of any attorneys fees. In response, Hsiung Ye acknowledged the indemnification however, instructed co-defendant that it moved for summary judgment regarding payment of its attorney's fees. To date, Goodfellas/Utica First has not taken over defense of Hsiung Ye and objects to payment of the attorneys fees incurred in its defense of the action. At present, Goodfellas and Hsiung Ye each move for summary judgment on the issue of attorney's fees. Defendant Hsiung Ye has established his prima facie

entitlement to [*8] summary judgment on the issue of indemnification (Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). The lease between the parties provides that the "[t]enant shall indemnify and hold Landlord harmless from and against any and all liability, claim, loss, damage or expense, including reasonable attorney's fees, by reason of any injury to or death of any person or persons, or injury to damage to property, or otherwise, arising from or in connection with the occupancy or use of the demised premises (or basement space)". Further, the parties do not contest, and Goodfellas has repeatedly expressed, the fact that Hsiung Ye was entitled to be indemnified pursuant to the lease agreement. With respect to the attorneys fees, courts have long held that [HN10] parties are generally responsible for their own attorneys fees, to the extent not provided elsewhere, and the pursuit of indemnification is no exception (Chapel v. Mitchell, 84 NY2d at 349, 642 N.E.2d 1082, 618 N.Y.S.2d 626; Perez v. Spring Creek Assoc., 283 AD 2d at 627, 725 N.Y.S.2d 875]. However, where indemnification for attorney's fees is provided for, the potential indemnitee is entitled only to recover attorneys fees incurred in the defense of the main action and shall not recover any [*9] fees that were incurred in the pursuit of indemnification (Chapel v. Mitchell, 84 NY2d 345, 349, 642 N.E.2d 1082, 618 N.Y.S.2d 626 [1994]; Roddy v. Nederlander Producing Company of Am., Inc., 44 AD3d 556, 557, 844 N.Y.S.2d 231 [1st Dept., 2007]; Springstead v. Ciba-Geigy Corp., 27 AD3d 720, 722, 815 N.Y.S.2d 624 [2d Dept. 2006]; Yacovacci v. Shoprite Supermarket Inc., 24 AD3d 539, 540, 808 N.Y.S.2d 284 [2d Dept., 2005]; Perez v. Spring Creek Assoc., 283 AD2d 626, 627, 725 N.Y.S.2d 875 [2d Dept., 2001]; Ehrlich, Julian D., Outside Counsel, Recovering Attorney's Fees in Construction-Site Cases, NYLJ, May 25, 2007, at 4, col. 4). As a result, Hsiung Ye's attorneys are awarded attorneys fees incurred in their defense of the action against the plaintiff. No attorney fees incurred in pursuing the cross claim for indemnification against defendant Goodfellas will be recovered. For determination of the amount and reasonableness of attorneys fees incurred by Hsiung Ye's attorneys in the defense of the main action, the Court will refer this issue alone to JHO Ajello to hear and determine. Accordingly, it is

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ORDERED that the defendant Hsiung Ye's motion for summary judgment is hereby granted to the extent that the plaintiff's causes of action for common-law negligence, General Municipal Law § 205-e claims [*10] that allege violations of NYC Administrative Code §§ 27127, 27-128 and Section 153.19 of NYC Health Code, are hereby dismissed, and it is further, ORDERED that defendant Hsiung Ye's motion for summary judgment on attorneys fees is hereby granted to the extent that the defendant is entitled to be awarded attorneys fees that were incurred in his defense of the main action against plaintiff and no attorneys fees are to be awarded on the cross claim of indemnification, and it is further ORDERED that the defendant Hsiung Ye's motion for summary judgment on all remaining claims is hereby denied, and it is further ORDERED that the defendant Goodfellas' motion for summary judgment is granted to the extent that the plaintiff's causes of action for common-law negligence,

General Municipal Law §205-e claims that allege violations of NYC Administrative Code §§ 27-127, 27-128 and Section 153.19 of NYC Health Code are hereby dismissed, and it is further ORDERED that the defendant Goodfellas' motion for summary judgment on all remaining claims is hereby denied, and it is further ORDERED that the defendants report to JHO Ajello to determine the amount and reasonableness of attorneys fees that are appropriate [*11] in accordance with this decision, and it is further ORDERED that defendant Goodfellas take over the defense of Hsiung Ye Realty Corporation for the remainder of this action, and it is further ORDERED that all parties are to appear before this Court on January 16, 2008 for pre-trial conference. THIS IS THE DECISION AND ORDER OF THE COURT.

39 of 55 DOCUMENTS [*1] Ellie Grace O'Neill, Don O'Neill and Sandra O'Neill, Plaintiffs, against Ithaca College, Defendant. Ithaca College, Third-Party Plaintiff, Dustin Adams, Ethan Capone, Simon Fokard, Michael Gordon, Michael Connell, Tallman & Demarest Architects, LLP, Robert B. Tallman, Tetra Tech Engineers, Architects & Landscape Architects, P.C., Third-Party Defendants. 2006-0791 SUPREME COURT OF NEW YORK, TOMPKINS COUNTY 2007 NY Slip Op 52506U; 18 Misc. 3d 1113A; 856 N.Y.S.2d 500; 2007 N.Y. Misc. LEXIS 8633 December 19, 2007, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS CORE TERMS: alcohol, roommate, intoxication, apartment, summary judgment, intoxicated, guests, beer, drinking, Dram Shop Act, comparative negligence, fraternity's, unlawfully, procuring, landlord, balcony, underage drinking, duty of care, incurring liability, indispensable, tortfeasor, common-law, beverage, furnish, injured person, questions of fact, consumption, foreseeable, fur-

nishing, under-aged HEADNOTES [**1113A] [***500] Intoxicating Liquors--Dram Shop Act. General Obligations Law--§ 11-100 (Compensation for injury or damage caused by intoxication of person under age 21 years). COUNSEL: Ciano J. Lama, Esq., THE LAMA LAW FIRM, LLP, Attorneys for Third Party Defendant, Tallman and Demarest, Utica, New York.

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Edward S. Leone, Esq., CHERUNDOLO, BOTTAR & LEONE, PC, Attorneys for Plaintiffs O'Neil, Syracuse, New York. James G. Stevens, Jr., Esq., SUGARMAN LAW FIRM, LLP, Attorneys for Third-Party Defendants, Tetra Tech Engineers and Architects & Landscape Architects, P.C., Syracuse, New York. Thomas R. Smith, Esq., BOND, SCHOENECK & KING, PLLC, Attorneys for Defendant/Third-Party, Plaintiff Ithaca College, Syracuse, New York. Frank Bersani, Jr., Esq., Attorney for Third-Party, Defendant Dustin Adams, Syracuse, New York. Adam C. Ferrandino, Esq., FELDMAN, KIEFFER & HERMAN, LLP, Attorneys for Third-Party, Defendant Simon Folkard, Buffalo, New York. Donald J. Lambiase, Esq., MURPHY & LAMBIASE, Attorneys for Third-Party, Defendant Michael O'Connell, Goshen, New York. Edward M. Eustace, Esq., EUSTACE & MARQUEZ, Attorneys for Third-Party, Defendant Michael Gordon, White Plains, New York. Patricia Cummings, Esq., Leonard & Cummings, LLP, Attorney for Third Party, Defendant Ethan C. Capone, Binghamton, New York. WILLIAMSON, CLUNE & STEVENS, Robert J. Clune, Esq., Attorney for Estate of Tallman, Ithaca, NY. JUDGES: Hon. Elizabeth A. Garry. OPINION BY: Elizabeth A. Garry OPINION Elizabeth A Garry, J. In this premises liability action, Plaintiffs seek damages from Defendant Ithaca College for personal injuries sustained by Plaintiff Ellie Grace O'Neill (hereinafter referred to as Plaintiff) in a fall on Defendant's campus. Defendant's Answer raises affirmative defenses of comparative negligence on the part of Plaintiff and unnamed others. (O'Connell Motion Exh. B). Its Third-Party Complaint seeks contribution under CPLR Article 14 from, among others, Third-Party Defendants Michael O'Connell and Dustin Adams on theories of liability under General Obligations Law § 11-100 and common law negligence. O'Connell and Adams now move separately

for summary judgment dismissing the Third-Party Complaint as against them. Defendant opposes the motion. Plaintiffs, Defendant, Third Party Defendant O'Connell, and Third Party Defendant Adams appeared by Counsel for oral argument on September 14, 2007. Factual and Procedural History Plaintiff was a 19-year-old sophomore at Ithaca College on October 22, 2004, when she [*2] was severely injured in a fall from a third-floor fire escape or balcony (hereinafter balcony). The balcony was located outside a student apartment in a residential building on Defendant's campus. In the primary action, Plaintiff and her parents allege that the balcony's inadequate railings constituted a dangerous condition that caused her fall. (O'Connell Motion Exh. A.) At the time of her accident, Plaintiff was visiting the apartment to attend a surprise twenty-first birthday party for Third-Party Defendant Simon Folkard, one of five student roommates who shared the apartment. The other roommates, all of whom are Third-Party Defendants, were Adams, O'Connell, Ethan Capone, and Michael Gordon. Defendant's Third-Party Complaint seeks contribution from the roommates on the theory that Plaintiff's accident was caused, in whole or in part, by intoxication resulting from her alleged consumption of alcoholic beverages during the party. (O'Connell Motion Exh. C.) In an affidavit supporting his summary judgment motion, Third Party Defendant O'Connell alleges that he did not have anything to do with planning the party, that he first learned about the party approximately a week before it was held, and that his only involvement in preparing or hosting the party was to go out with Folkard and other roommates in an attempt to keep Folkard away from the apartment while others made preparations for the party. O'Connell alleges that he did not purchase any alcohol for consumption at the party, contribute any funds for its purchase, or serve alcohol to anyone who attended, and that none of the alcohol that was allegedly served at the party belonged to him. He asserts that he did not invite any guests to the party or know who was being invited, that he was not aware that anyone under 21 had been invited or was present, and that he was not aware that anyone at the party was intoxicated or that any minors were drinking alcohol. He allegedly did not know Plaintiff before the accident, did not know she was at the party, did not know her age, did not witness her accident, and first learned that it had happened when one of the other roommates came back into the apartment from the balcony and told him that someone had fallen. (O'Connell Affidavit sworn to on August 23, 2007.) Defendant alleges that O'Connell's deposition testimony shows that he helped plan the party by assisting in keeping

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Folkard out of the apartment, that he knew there would be alcohol at the party and that it would be attended by people under the age of 21, including some of his roommates, and that during the party he did not attempt to ascertain the ages of the guests or to prevent people under the age of 21 from drinking. (O'Connell Motion Exh. K, pp. 24-25, 34-36.) Third Party Defendant Adams was deposed on June 15, 2006 (Defendant's Exh. C) and again on February 8, 2007 (Adams Motion Exh. C.) He alleges that the party was planned by Folkard's sister Christina and possibly by some of Christina's roommates. He testified that before the party, he had discussions with Christina regarding her plans to decorate the apartment and provide food, but that he did not remember any discussions regarding alcohol. (Adams Motion Exh. C, p. 23-24.) A day or two before the party, Adams drove his roommate Michael Gordon to a liquor store where Gordon, who was over 21, purchased about a case of beer, a bottle of Jagermeister, and unspecified amounts of wine and rum. (Adams Motion Exh. C., pp. 27-30.) Adams did not enter the store and did not contribute any of his own funds to the purchase. (Defendant's Exh. C, p. 39.) When Adams was asked whether Gordon purchased the alcohol for the party, he responded, "Yes," (Defendant's Exh. C, p. 3839), but he also testified that it was his understanding that Gordon purchased the alcohol for the general use of the five roommates and that the alcohol was not intended to be freely available at the party. (Adams Motion Exh. C., [*3] p. 33; Defendant's Exh. C, p. 48-49.) Before the party, the alcohol that Gordon purchased was stored in the apartment refrigerator, where Folkard and the other roommates had access to it. (Adams Motion Exh. C., pp. 29-30.) Adams testified that the alcohol Gordon purchased was not the only alcohol at the party, that some attendees brought their own alcohol, and that guests got their own drinks. (Defendant's Exh. C. p. 49-50.) Adams had known Plaintiff for a month and a half or two months before the accident happened. He was two years ahead of her in school and had helped her with some of her course work. (Adams Motion Exh. C., pp. 23, 31.) During the party, Adams saw Plaintiff for about ten minutes and had a conversation with her that lasted a minute or two. (Defendant's Exh. C., p. 28). Adams saw Plaintiff drink a shot of the Jagermeister that Gordon had purchased, and at another time he saw her holding a cup, although he did not know what was in it. (Defendant's Exh. C, p. 50-51.) Adams testified that he was also drinking Jagermeister but that he did not pour Plaintiff's Jagermeister or serve alcohol to anyone at the party at any time. (Defendant's Exh. C. p. 49). Adams described Plaintiff as "perhaps a little tipsy" and somewhat more "outgoing and direct" than she normally was during the party, but he stated that she was normally an energetic

and outgoing person and that she did not appear to him to be intoxicated. (Defendant's Exh. C, pp. 29-30; Adams Motion Exh. C., pp. 11-13). He did not witness Plaintiff's accident. Legal Analysis New York General Obligations Law § 11-100 provides as follows: Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.

Defendant contends that material questions of fact exist as to whether the Third Party Defendants unlawfully furnished or assisted in procuring the alcoholic beverages that Plaintiff allegedly consumed at the party, thereby causing her to become intoxicated. 1 Therefore, Defendant contends, if it is held liable to Plaintiff in the primary action, it will be "injured" within the meaning of § 11-100 and may seek contribution from them in proportion to their relative culpability. 1 Whether Plaintiff was intoxicated when she fell and, if so, the degree of her intoxication are unresolved questions of fact. This court's examination of the potential legal implications of her alleged intoxication in resolving these motions does not imply in any way that these questions have been or could be resolved at this stage of the litigation. Initially, the two Movants contend that contribution is not available to Defendant under § 11-100. They point out that the statute does not permit Plaintiff to maintain a cause of action in her own favor by reason of her own intoxication (Searley v. Wegman's Food Markets, 24 AD3d [*4] 1202, 807 N.Y.S.2d 768 [4th Dep't 2005]; Sheehy v. Big Flats Community Day, 73 NY2d 629, 541 N.E.2d 18, 543 N.Y.S.2d 18 [1989]) and that her infancy does not provide her with an exception. (Searley, supra; Livelli v. Teakettle Steak House, 212 AD2d 513, 622 N.Y.S.2d 109

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[2d Dep't 1995]). Movants contend that principles of comparative negligence will adequately protect Defendant from being cast in liability for their conduct because, if a jury eventually determines that Plaintiff's accident was caused in part by her alleged intoxication and in part by a defective condition on Defendant's campus, the operation of comparative negligence should ensure that Defendant will be held liable only to the extent that the defective condition on its property, and not the intoxication, caused the injury. Thus, Movants contend that permitting Defendant to raise this claim for contribution along with its affirmative defense of comparative negligence constitutes a form of "double-dipping" in which Defendant is attempting to reduce its liability twice based on the single factor of Plaintiff's alleged intoxication. The court in Woodbeck v. Caputo, et al, 131 Misc 2d 321, 326, 500 N.Y.S.2d 481 [Supreme Court, Saratoga County 1986], followed a similar line of reasoning when it refused to "extend the law of contribution" to include a third-party claim filed under the Dram Shop Act, General Obligations Law § 11-101, by the owner and operator of a truck that collided with a bicyclist against a restaurant that had allegedly served alcohol to the bicyclist. The Woodbeck court noted that "it is conceivable (though never recently so held) that being cast in damages is indeed an injury' within the meaning of the Dram Shop Act upon which defendants, third-party plaintiffs may sue." (Woodbeck at 323.) Without so holding, however, the court dismissed the third-party claim, finding that principles of comparative negligence adequately protected the interests of the truck's owner and operator in the bicyclist's negligence action against them. In the 21 years since Woodbeck was decided, however, no other court appears to have reached a similar conclusion. Generally, tortfeasors who are subject to liability for the same injury may seek contribution among themselves even though the theory on which contribution is sought differs from the theory asserted by the plaintiff. (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1401:2.) The same principle holds true for a negligent tortfeasor who seeks contribution from another tortfeasor for an alleged violation of the Dram Shop Act. (Johnson v. Plotkin, 172 AD2d 88, 577 N.Y.S.2d 329 [3d Dep't 1991]). In Strassner v. Saleem, 156 Misc 2d 768, 594 N.Y.S.2d 559 (Monroe County Supreme Court 1993), an intoxicated minor left a party where he had been drinking, crossed a street, and was struck by the defendant's vehicle. The court permitted the defendant's third-party claim under General Obligations Law § 11-100 against the homeowner who hosted the party, saying: While General Obligations Law § 11-

100 did not create a cause of action in favor of the intoxicated recipient of the beverage, regardless, the statute does allow for finding an independent obligation owed by the third-party defendant, to prevent foreseeable harm to the defendants, including their potential liability to the plaintiff. (Id. at 771.)

More recently, a defendant's ability to seek contribution under the Dram Shop Act was upheld on facts similar to those presented in the current action. In Tratt v Washington Building Mgt. Co., 15 Misc 3d 1136A, 841 N.Y.S.2d 824 (Sup Ct Broome County 2007), an allegedly intoxicated 20-year-old student fell from a stair landing in a rented fraternity house. His premises liability action against the landlord asserted that inadequate railings caused the fall. The landlord filed a [*5] third-party action for contribution under Gen. Obs. Law §§ 11-100, -101 against two taverns. The court did not directly address the interaction between contribution and comparative negligence. Instead, citing Johnson, supra, it rejected the taverns' claim that the Dram Shop Act was meant to protect the traveling public rather than to provide an offset for money damages. It held that even though the allegedly intoxicated student was not an "innocent party" like the passenger plaintiffs in Johnson, supra, "to prohibit [the landlord] from pursuing the taverns would deny [it] the right of contribution against potential tortfeasors under the Dram Shop Act." (Id. at 1136[A].) Thus, while Defendant plainly may not "double-dip" by reducing its liability twice as discussed above, it has the right to show, if it can, that some or all of any liability it may ultimately incur towards Plaintiff results from violations of § 11-100. To survive the current summary judgment motion as to O'Connell and Adams, it must show that questions of fact exist as to whether their conduct constituted "furnishing" or "procuring" alcohol to the Plaintiff within the meaning of that provision. Defendant does not suggest that either O'Connell or Adams actually purchased the alcohol allegedly consumed by Plaintiff or poured it for her. However, the Court of Appeals has held that to limit the meaning of the term "furnishing" "to those who hand the alcohol to the minor--gives the term an overly narrow reach that undermines the clear legislative goal" of deterring underage drinking. (Rust v. Reyer, 91 NY2d 355, 360, 693 N.E.2d 1074, 670 N.Y.S.2d 822 [1998]). In that case, Reyer, a 17-year-old minor, planned a party at her home in her parents' absence and agreed to permit a high school fraternity to sell beer at the party in exchange for payment of a share of the proceeds. Reyer provided storage for the

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fraternity's beer kegs before the party, attempted to arrange free beer for her friends, and saw many of her under-aged guests consuming the fraternity's beer. An estimated 150 minors attended the party, and one of them became inebriated and struck the plaintiff. Although Reyer neither drank nor dispensed the beer herself, the Court of Appeals reversed the dismissal of a claim against her under 11-100, noting that the beer could not have been served without her advance permission and that her plan to share in the fraternity's profits "underscore[d] her complete complicity in the fraternity's plans to furnish beer." (Id. at 359). In the Court's words, Reyer was not an "unknowing bystander . . . an innocent dupe . . . or a passive participant who merely knew of the underage drinking and did nothing to discourage it . . . [She] played an indispensable role in the scheme to make the alcohol available to the underage party guests." (Id. at 361). The allegations against O'Connell do not approach this standard. O'Connell's active role in preparing for the party did not involve alcohol in any way, but was instead limited to helping to protect the surprise by keeping Folkard away. Even in that limited role, he was not "indispensable," since several of the roommates shared the job. At the most, he permitted the party to take place in the shared apartment, knew that alcohol that belonged, in part, to him as a roommate would be served at the party, knew that some guests would be under-aged, and did not attempt to determine which guests were under-aged or to prevent them from drinking. These are not the actions of one who is actively complicit in a scheme to furnish alcohol to minors, but instead those of a "passive participant who merely [knows] of underage drinking and [does] nothing to discourage it" as in Rust. Unlike Reyer, who entered into a plan to profit financially from a scheme to sell alcohol to underaged guests, there is no evidence suggesting that O'Connell [*6] played an indispensable role or was "completely complicit" in any plan to furnish alcohol to minors. O'Connell is therefore entitled to summary judgment in his favor on Defendant's contribution claim under § 11-100. (See Lane v. Barker, 241 AD2d 739, 660 N.Y.S.2d 194 [3d Dep't 1997]). The facts regarding Adams' participation are less clear. Unlike O'Connell, Adams knew Plaintiff, knew her age, saw her at the party drinking alcohol that Gordon had purchased, spoke with her, and believed her to be, at least, "tipsy." By driving Gordon to the liquor store, he provided at least some assistance in purchasing alcohol that was, in fact, consumed by Plaintiff. There are material issues of fact as to whether the alcohol was intended for the party or for the roommates' personal use; whether in providing transportation, Adams intended to participate in a plan to make alcohol available to minors at the party; whether Adams' personal familiarity with

Plaintiff's age and her consumption of alcohol that he assisted in purchasing made him more than a "passive participant" in the availability of alcohol to minors in the apartment; and thus, whether he furnished or unlawfully assisted in procuring alcohol within the meaning of § 11100. His summary judgment motion is therefore denied. 2. Common-law Contribution In addition to its claim under General Obligations Law § 11-100, Defendant also seeks contribution from Movants under a common-law negligence theory, contending that they breached a duty to Defendant to prevent it from incurring liability as a result of Plaintiff's injuries. As previously discussed, Plaintiff may not maintain an action directly against the Movants for injuries she sustained as the result of her own alleged voluntary intoxication. However, Defendant cites Raquet v. Braun, 90 NY2d 177, 182, 681 N.E.2d 404, 659 N.Y.S.2d 237 [1997], for the proposition that even in such situations, "a claim of contribution may be asserted where there has been a breach of a duty running from the contributor to the defendant who has been held liable." The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff? . . . The injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her, for without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm. (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 232, 750 N.E.2d 1055, 727 N.Y.S.2d 7 [2001]). To support Defendant's common-law contribution claim, it must show that a duty runs directly from Movants to it as the injured person. Defendant alleges that the Movants had the opportunity to prevent underage drinking in their apartment and knew or should have known that under-age drinking was taking place there, citing Demarest v. Bailey, 246 AD2d 772, 668 N.Y.S.2d 722 [3d Dep't 1998], Lane v. Barker, 241 AD2d 739, 660 N.Y.S.2d 194 [3d Dep't 1997], and Fantuzzo v. Attridge, 291 AD2d 871, 737 N.Y.S.2d 192 [4th Dep't 2002]. These cases, however, address the well-established duty of landowners and their agents to act reasonably to prevent harm to persons on their property a duty that, in each of the cited cases, runs directly between the landowners and an injured plaintiff. The cases cited do not involve thirdparty contribution claims and do not address the question whether a duty exists on the part of a third party to protect a landowner from incurring liability to a person harmed on its property. Similarly, Raquet does not establish the existence of such a duty; it merely holds that a claim of contribution may be asserted when a duty running from the contributor to the defendant who has been held liable exists.

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"If an independent obligation can be found on the part of a concurrent wrongdoer to [*7] prevent foreseeable harm, he should be held responsible for the portion of the damage attributable to his negligence, despite the fact that the duty violated was not one owing directly to the injured person." (Sommer v. Federal Signal Corp., 79 NY2d 540, 559, 593 N.E.2d 1365, 583 N.Y.S.2d 957 [1992]). In this case, no such independent obligation has been shown to exist. No case law to date has established a duty of care between college students and their colleges or between tenants and their landlords under circumstances such as these. The existence of a duty of care is a question of law to be determined by the court (Donahue v. Copaigue Union Free School District, 64 AD2d 29, 407 N.Y.S.2d 874 [2d Dep't 1978]), and courts are cautious about extending liability to defendants for failure to control the conduct of others. (Hamilton, supra at 233.) In the absence of case-law precedent or a compelling rationale for the establishment of the new duty that Defendant claims to exist, this court declines to find that college students living as temporary tenants in on-campus residential housing owe a duty to the landlord college to protect it from incurring liability as the result of the alleged voluntary intoxication of another student. The Third Party Defendants are therefore entitled to summary judgment on Defendant's contribution claim in common law negligence.

The factual evidence is insufficient to support the claim that Third Party Defendant O'Connell played an indispensable role or was complicit in a scheme to furnish alcohol to minors. His motion for summary judgment dismissing Defendant's contribution claim against him under General Obligations Law § 11-101 is therefore granted. Issues of fact exist as to whether Third Party Defendant Adams furnished or unlawfully assisted in procuring alcohol for minors within the meaning of § 11100. His motion for summary judgment on Defendant's contribution claim under that provision is therefore denied. As a matter of law, neither Third Party Defendant Adams nor O'Connell owed Defendant a duty of care to prevent it from incurring liability to Plaintiff. Their motions for summary judgment dismissing Defendant's common-law negligence contribution claims against them are therefore granted. This constitutes the Decision and Order of the Court. Dated: December 19, 2007 Norwich, New York ENTER Hon. Elizabeth A. Garry

Conclusion

40 of 55 DOCUMENTS [*1] Thomas D. Pakenham, Jr., Plaintiff, against Westmere Realty, LLC, and Michael Lepkowski, LCB Tax Associates, Inc., d/b/a Jackson Hewitt, Defendants. 21-496 SUPREME COURT OF NEW YORK, RENSSELAER COUNTY 2007 NY Slip Op 51722U; 16 Misc. 3d 1137A; 851 N.Y.S.2d 59; 2007 N.Y. Misc. LEXIS 6246 September 6, 2007, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

ing, probe, top, cross claim, repair work, issues of fact, bright line, replacement, inoperable, separating, repairing, cleaning, notice, space

CORE TERMS: flame, work performed, repair, roof, invoice, sensor, ladder, routine, spark, sparker, enumerated, snow, wear and tear, heat, ice, control board, heat-

HEADNOTES

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[**1137A] [***59] Labor--Safe Place to Work-Maintenance Work. COUNSEL: Goldberg Segalla LLP, Jonathan M. Bernstein, Esq., (Attorneys for Defendant Westmere Realty), Albany, New York. Law Office of Kris T. Jackstadt, Mark P. Donohue, Esq., (Attorneys for Defendant Michael Lepkowski, LCB Tax Associates, Inc. D/b/a Jackson Hewitt), Albany, New York. DeGraff, Foy, Kunz, & Devine, LLP, Attorneys for Plaintiff, Albany, New York. JUDGES: Lynch OPINION BY: Lynch OPINION Michael C. Lynch, J. Plaintiff, who was employed as an HVAC service technician, was injured when he fell from a ladder leaning against the roof of a building owned by defendant Westmere Realty, LLC (hereinafter, Westmere). He was on the roof to perform work on a heating unit that serviced [*2] space rented by defendant Michael Lepkowski, LCB Tax Associates, Inc. d/b/a Jackson-Hewitt (hereinafter, Jackson-Hewitt). At his examination before trial, plaintiff described his accident as occurring as he was descending the ladder to retrieve his tools from his truck. He testified that the flat roof of the premises was covered with ice and an inch or two of snow (Westmere Motion Exhibit D page 57-58). While standing on the top rung with both feet on the ladder, it slid "sideways and backwards" (Id., page 68). Though he was not clear as to how the accident occurred (see, Id. pages 73-78), he testified that the rails of the ladder were leaning against the icy surface on the edge of the roof (Id. page 73) and that "best understanding" of how the accident occured was that "It was a slippery surface leaning onto the building. And when there is that much wieght on top of it, the ladder must have been top heavy. And it was just enough, my momentum getting on the ladder was enough to push it to the side (Id. page 72) Plaintiff commenced this action against the building owner and tenant alleging violations of Labor Law § 240(1), § 241(6), and common law and statutory negligence. Westmere asserted a cross claim against the tenant for indemnification. Defendants now each seek summary judgment dismissing plaintiff's claims and Jackson Hewitt seeks summary judgment dismissing Westmere's cross claim. The scope of Labor Law § 240(1) is not necessarily

limited to providing coverage for workers on a construction site, rather, it is necessary to consider whether the worker was injured while engaged in a specified task, including the "repairing . . . of a building or structure" (Labor Law § 240(1); Martinez v. City of New York, 93 N.Y.2d 322, 326, 712 N.E.2d 689, 690 N.Y.S.2d 524). Repair work must be distinguished from "routine maintenance", however, because the former is a covered activity but the latter is not (Esposito v. New York City Industrial Development Agency, 1 N.Y.3d 526, 528, 802 N.E.2d 1080, 770 N.Y.S.2d 682). Here, the parties do not dispute what work was performed on the roof the day of plaintiff's accident, rather, the essential dispute is whether the work performed was repair work or "routine maintenance" as the terms are defined by Labor Law § 240(1). Whether a worker was engaged in "routine maintenance" or repair work requires an assessment of the nature of the work performed, not the characterization of the work. For example, if the work involved replacement of parts that would ordinarily require replacement over time due to wear and tear, it is "routine maintenance", even if it was deemed a "repair" job (see, e.g Esposito v. New York City Industrial Development Agency, 305 A.D.2d 108, 760 N.Y.S.2d 18. affd., 1 N.Y.3d 526, 802 N.E.2d 1080, 770 N.Y.S.2d 682 (Supra)). If there is some evidence that the "machine or object being worked upon was inoperable or not working properly" the work may be repair work (Kirk v. Outokumpu American Brass, Inc., 33 A.D.3d 1136, 1138, 823 N.Y.S.2d 556). But, "[e]ven if the item to be repaired is malfunctioning or inoperable, when the work involves only component replacement or adjustment necessitated by normal wear and tear, it constitutes routine maintenance rather than "repairing " or any other enumerated activity". (Barbarito v. County of Tompkins, 22 A.D.3d 937, 803 N.Y.S.2d 208, app. den. 7 N.Y.3d 701, 850 N.E.2d 1166, 818 N.Y.S.2d 191). Thus, if the object is inoperable or not working properly due to a failure to perform regular and necessary maintenance, the work performed to restore the object to operating condition may be still be considered "routine maintenance" (Robertson v. Little Rapids Corporation, 277 A.D.2d 560, 715 N.Y.S.2d 482, abrogated on other grounds, Goad v. S. Elec. Int'l., 304 A.D.2d 887, 758 N.Y.S.2d 184). ). Summary judgment is a drastic remedy which should only be granted when there clearly are no triable issues of fact (see Andre v Pomeroy, 35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131 [1974]). Accordingly, [*3] defendants, as proponents of summary judgment, must present sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923). Only if a right to judgment as a matter of law is es-

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tablished will the burden shift to the plaintiff to establish, by admissible proof, the existence of genuine issues of material fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595). In support of their motion and cross motion, defendants submit an invoice prepared on the day of the accident by Thomas French, the employee dispatched to the Jackson-Hewitt space after plaintiff's accident, Mr. French's affidavit, and a transcript of deposition testimony provided by Donald Abbruzzese, the president of Northeast Refrigeration (hereinafter, Northeast), plaintiff's former employer. The invoice dated January 21, 2005, reads: "SANDED FLAME SENSOR. UNIT WOULD NOT LIGHT EACH TIME. ADJUST SPARKER AND CLEANED. UNIT FINE NOW" (Jackson Hewitt Exhibit J). Describing the work performed, Mr. French avers that the roof top unit has a flame sensor. This is a safety switch that cuts off the flow of gas to the heating unit in the absence of a flame. Under normal operation, the flame burns over the sensor. Due to the presence of the flame, over time, the sensor can become dirty. When this happens, the sensor cuts off the gas supply to the heating unit. I sanded the flame sensor to remove the build up of debris and rust caused by the flame. . . The flame is ignited by a sparker similar to a spark plug. Over time, due to wear and tear, the "spark gap" of the sparker can come out of adjustment. This is a normal item of wear and tear. I adjusted the spark gap and cleaned the sparker. (Westmere Exhibit G, PP 3,4). Similarly, when asked to explain the January 21, 2005 invoice, Mr. Abbruzzese testified that the "sparker" that lights the burner has a "working life" and will wear out within "two years to fifteen years, there's no rhyme or reason" (Westmere Exhibit E Abburzzese Transcript, p. 11). Specifically, he explained that the sparker A. . . gets out of adjustment because as it is in the flame, possibly at the end of it, it actually starts to burn away -Q. Okay. A. So it had to be readjusted sometimes, or sanded. (Id. at pages 61-62).

With respect to the flame sensor, Mr. Abbruzzesse explained that "sanding" is the same as cleaning, and is necessary because a glaze builds up, "acts like an insulator, and the flame doesn't make a get a good connection" (Id., p 60). The build up, he explained, "happens by the nature of operation". When asked whether sanding/cleaning the flame sensor is a maintenance item, he testified: A. ". . . yes it is if you look at a manufacturer's book, not all of them say it, but part of the maintenance is to sand that flame sensor. But I'm not sure on this roof top if it is or not. Q. Okay. Whether it's in the book, you mean? [*4] A. Yes. Q. But regardless of whether it's in the book, the phenomenon occurs A. Correct. Q. by the nature of flame and this sensor? A. If they go on a maintenance procedure, they are supposed to sand the flame sensor. (Id., pp. 60-61) Both Mr. Abbruzzesse and Mr. French confirmed that after the work was performed on January 21, 2005, the heat was on and both the flame sensor and sparker were working properly (Id., page 62; Westmere Exhibit G P 5). The Court is satisfied, based on these submissions, that the activities performed on the rooftop unit on January 21, 2005 were maintenance, not repair (see, Abatiello v. Lancaster Studio Associates, 3 N.Y.3d 46, 814 N.E.2d 784, 781 N.Y.S.2d 477 [where remedy for malfunction would be loosening a few screws and replacing tap on malfunctioning cable junction box, the work is routine maintenance]; compare, Holka v Mt. Mercy Academy, 221 A.D.2d 949, 634 N.Y.S.2d 310 lv. dismissed, 87 N.Y.2d 1055, 666 N.E.2d 1061, 644 N.Y.S.2d 147 [removal of broken motor on air conditioning unit for the purpose of repairing it is repair work covered by § 240(1); Kerr v. Louisville Housing, Inc., 2 A.D.3d 924, 769 N.Y.S.2d 616 [removal of screws from inoperable, improperly installed rooftop ventilator is repair, not maintenance]). In response to defendant's motion, plaintiff argues that the work performed on January 21, 2005 was a tem-

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porary repair, incidental to the permanent repair of the unit, which was not completed until on or about February 4, 2005. To proceed on this premise, plaintiff must demonstrate that there is at least a factual question with regard to whether the work performed on January 21, 2005 "fell into a separate phase easily distinguishable from other parts of [a] larger construction project" (Prats v. Port Authority of New York and New Jersey, 100 N.Y.2d 878, 881, 800 N.E.2d 351, 768 N.Y.S.2d 178; Jones v. Village of Dannemora, 27 A.D.3d 844, 811 N.Y.S.2d 186). In this regard, the Court of Appeals instructs that

simple maintenance, or necessitated by normal wear and tear . . ." (Id., P9).

"it is neither pragmatic nor consistent with the spirit of the stature to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts

A: . . . The spark probe is basically the sensor sparker that he cleaned on 1/21/2005, which goes back to the control board, which is basically the brains of the furnace that, you know, is the safety device that it got a flame signal to turn on the main burner.

Prats, Supra at 882). If there is a "bright line separating the enumerated and non enumerated work" (Beehner v Eckerd Corporation, 3 N.Y.3d 751, 821 N.E.2d 941, 788 N.Y.S.2d 637), the non-enumerated work performed falls into a separate phase and plaintiff was "not a person employed' to carry out repairs as that term is used in § 240(1)" (Martinez, Supra at 326). Accordingly, not only must there be no separating, "bright line", but it must also be clear that the work, as a whole, was enumerated work. In support of his argument that the "general context" of the work was repair, plaintiff includes a handwritten invoice, dated February 4, 2005 that reads: "Found Control Board Faulty - Control would not sense flame" and indicates that two parts, a Control Module and Spark Probe, were installed. Plaintiff also submits copies of handwritten invoices by Northeast refrigeration evincing that (1) a control board and "Electrode Assy Universal" were ordered on February 3, 2005 and delivered on February 4, 2005 (Pakenham Affidavit, Exhibit B, C, D, E). In further support, plaintiff submits his own affidavit and an affidavit by an expert, Michael O'Brien. Neither affidavit provides a comprehensive explanation of the activities performed on February 4, 2005. Pakenham avers that it was a "permanent repair of the condition, [*5] which required the temporary repair on January 21, 2005" (Pakenham Affidavit, P13). O'Brien avers that, "the problem with this heating unit evidenced in the invoices . . . is a significant one. The problem is not one would expect to see routinely, nor was the work done as part of what would be expected in routine maintenance of such a unit which would include filter changes, inspection of belts and electrical components or coil cleaning" (O'Brien Affidavit, P8). O'Brien adds that it is "simply inaccurate to characterize the work done . . . on January 21, 2005 as evidenced by the . . . invoices as

At his deposition, Mr. Abbruzzese's characterization of the work performed on February 4, 2005 appears to be consistent with both plaintiff's and his expert's characterization, however, for when questioned about the invoice 1 (Jackson Exhibit K), he explained that the work performed on February 4 by Northeast Refrigeration would have been the "permanent fix" of the "problem" (Westmere Exhibit E, Abbruzzese Transcript, page 37) explaining:

Q: So if I understand it, the part that's referenced that Mr. French sanded in [the January 21, 2005 invoice] . . . A: Correct. Q. . . . does the February 8, 2005 invoice reflect that that part was replaced? A. Yes. Q. And in addition to that, you said something about a control board. A. The control board is a part where that probe goes to prove that there is a flame and it's safe to turn the main gas burner on. Z. And that's in the unit that's up on the roof? A. Yes. Q. And that had to be replaced as well? A. Yes. Q. Is replacing the control board something that would be done during the annual maintenance that you talked about earlier? A. No. Q. Would replacing the spark probe, I think that's what it is, the part that was replaced, would that be something that would be part of the annual service that we talked about?

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A. No. (Id., pages 37-38). 1 It appears, based on the invoice numbers, that the February 8, 2005 invoice is the same as the February 5, 2005 invoice cited by plaintiff in opposition to defendants' motions. Even assuming, as plaintiff contends, that the work performed on January 21, 2005 failed to properly fix the heating unit, and that the work performed on February 4, 2005 was something more than "component replacement or adjustment necessitated by normal wear and tear", this Court finds that plaintiff has failed to raise a triable issue of fact with regard to the existence of a [*6] "bright line separating" the work performed on January 21 from the work performed on February 4, 2005. As noted above, neither affidavit submitted by plaintiff specifically explains the nature of "the problem". Additionally, simply describing the work as "significant" and "not maintenance" does not create a triable issue of fact with regard to whether the work is "repair" in the legal sense (see, Esposito, Supra; Kirk, Supra at 1138). The evidence in the record demonstrates that on January 21, 2005, "the problem" was resolved by cleaning one part and sanding another, and, at the completion of that activity, the heat was on and the unit was "fine". Mr. Abruzzese explained that it appeared that the heat worked for a period following the first visit, and . . . he got it to work, it lasted for two weeks, . . . and he went back, there was another no heat call, and that's when he decided that he was going to change the module and the spark box -- and the spark probe.

These facts distinguish this case from Prats, (Supra), where the worker was performing inspections that were "ongoing and contemporaneous with the other work that formed part of a single contract" the other contract work being "level[ing] floors, lay[ing] concrete and rebuild[ing] walls to replace large air filtering systems" (Id., page 880). Here, even assuming that the work performed on February 4, 2005 was "repair" for purposes of § 240(1), the enumerated work could not have begun until after the second no heat call and after the parts were ordered. Plaintiff's reliance on deposition testimony by Mr. Casler, an employee at Jackson Hewitt who was working

at the location in January and February 2005 does not alter this result. Mr. Casler testified that "the second Northeast guy" "got his heat on", adding that he was told that the "thermocouple was bad" and he needed a part (Jackson Hewitt Exhibit H, pages 47-48). Though Mr. Casler does not testify with specificity when this conversation occurred, plaintiffs contend it occurred on January 21, 2005. Defendants argue that this conversation could not have occurred on January 21, 2005, because Mr. French did not order any parts until nearly two weeks later. Even assuming, however, that the conversation occurred on January 21, 2005, the "bright line" separating non-enumerated work from enumerated work does not shift, where, as here, there is no dispute that the parts were not ordered until February 3, 2005. Based on the foregoing determination that the work performed was maintenance, not repair, and because, the protection of Labor Law § 241(6) does not extend to claims arising out of maintenance performed outside of the construction context (Nagel v. D& R Realty Corporation, 99 N.Y.2d 98, 782 N.E.2d 558, 752 N.Y.S.2d 581), defendants motions to dismiss plaintiff's Labor Law § 240(1) and § 241(6) claim is granted. Defendants also seek summary judgment dismissing plaintiff's Labor Law § 200 cause of action. Labor Law § 200 is a codification of the owner and/or general contractor's common law duty to provide workers with a safe place to work (Comes v. New York State Electric and Gas Corporation, 82 N.Y.2d 876, 631 N.E.2d 110, 609 N.Y.S.2d 168). If the hazardous condition is caused by the method or means of work, an owner will not be liable unless it is demonstrated that the owner had supervisory control over the work (Lombardi v. Stout, 80 N.Y.2d 290, 295, 604 N.E.2d 117, 590 N.Y.S.2d 55). Where, as here, it is alleged that the injuries resulted from a dangerous condition at the work site, a plaintiff must demonstrate that the [*7] defendants had actual or constructive notice of the unsafe condition that caused the accident (Jurgens v. Whiteface Resort on Lake Placid, 293 A.D.2d 924, 926, 742 N.Y.S.2d 142) and control of the place where the injury occurred (Wolfe v. KLR Mechanical, 35 A.D.3d 916, 826 N.Y.S.2d 458). Here, defendant Jackson Hewitt argues that because it had no obligation under the lease with regard to the roof, it can not be liable under Labor Law § 200. This Court agrees that as a matter of law, defendant Jackson Hewitt has demonstrated that it did not have control of the place where the injury occurred. The Court notes that Westmere's owner and property manager, Michael Caruso, testified that after the accident, he noticed a "small little patch" (Westmere Exhibit C, Caruso Transcript, page 108) of snow on the ground in the area "underneath his ladder" after the ladder had fallen to the

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ground (Id. p. 97; p. 106). As noted above, though the plaintiff did not have an exact recollection of the fall, he testified, first, that he placed the ladder on a "clear space" (Id. p 42 ), and later, confirmed that the ladder was placed where the pavement was dry (Id. p. 50). Though the lease requires Jackson Hewitt to remove snow and ice from both the front and rear entrance ways (Exhibit I, para 31), there is no record support for any claim that the base of the ladder slipped on snow or ice on the ground in the vicinity of Jackson-Hewitt's rear entryway and Caruso testified that Jackson Hewitt had no obligation under the lease with regard to the roof (Caruso Transcript at page 113). Constructive notice of a dangerous condition may exist where a defect is visible and apparent and has existed for a "sufficient length of time prior to the accident to permit [defendants] to discover and remedy it" (Morrow v. Ashley, 3 A.D.3d 619, 620, 770 N.Y.S.2d 760, citing Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646). Though he testified that he did not "examine" the roof for ice or snow (Caruso Transcript, page 34), he recalled that it had snowed the night before the accident (Id., page 106), and confirmed that he did not engage in a regular practice of removing snow and ice from the roof (Id., page 41). Accordingly, this Court finds that defendant Westmere has not established as a matter of law that it did not have constructive notice of the allegedly dangerous conditions and the burden has not shifted to plaintiff on this claim (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).

Jackson Hewitt also seeks summary dismissal of Westmere's cross claim for indemnification. Westmere asserts that under the lease agreement, Jackson Hewitt is responsible for maintaining and repairing the HVAC unit and for snow and ice removal along the storefront, including the front and rear entryways to the leased space. In light of the foregoing determinations (1) that there was no violation of Labor Law § 240(1) and § 241(6) and that Jackson Hewitt did not have control of the place where the injury occurred (i.e. the roof), Jackson Hewitt's motion is granted. Accordingly, Defendants motions to dismiss plaintiff's Labor Law § 240(1) and 241(6) claims are GRANTED; defendant Jackson Hewitt's motion to dismiss plaintiff's Labor Law § 200 and Westmere's cross claim is granted; defendant Westmere's motion to dismiss plaintiff's Labor Law § 200 claim is denied, all without costs. The foregoing Memorandum constitutes the Decision and Order of the Court. All papers, including this Decision and Order, are returned to the attorneys for defendant Jackson Hewitt. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry. [*8] SO ORDERED ENTER Dated: Albany, New York Michael C. Lynch Justice of the Supreme Court

41 of 55 DOCUMENTS Leopold v. Eckles L&T063332/06 CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY 2007 N.Y. Misc. LEXIS 6818; 238 N.Y.L.J. 56 August 21, 2007, Decided CASE SUMMARY: PROCEDURAL POSTURE: Petitioner landlord filed a

petition for summary holdover proceeding against respondent tenant; the parties sought to determine if the landlord's notice to cure could require the tenant to repair structural damages not within the apartment, allegedly

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caused by the tenant, as a condition to avoid eviction. OVERVIEW: The landlord's notice to cure indicated that a cast iron aluminum tub, an old oak China cabinet, large urns, and several bookcases in the tenant's apartment exceeded the 60 pounds per square foot authorized by the certificate of occupancy and caused the floor to buckle and sink into the ceiling of the space below. The landlord sought an order requiring the tenant to repair the structural damage to the floor and outside of the confines of his apartment into the "space" below. The court found that the lease was never intended to allow, let alone impose a duty upon, the tenant to access the structural areas of the building outside the apartment in order to make repairs. While the tenant was not necessarily free from financial liability for the damage to the structure of the building, the notice to cure could not go beyond requiring the tenant to cease the lease violation by also requiring, as a condition to avoid eviction, that the tenant repair the structural damage outside the apartment regardless of the cost. Consequently, the notice to cure was fatally defective. OUTCOME: The petition was dismissed. CORE TERMS: tenant, lease, cure, repair, apartment, eviction, floor, space, notice, landlord, contracted, holdover, tenancy, effectuate, beams, certificate of occupancy, square foot, removing, pounds, single incident, live load, alteration, repairing, nuisance, default, duty to repair, objectionable conduct, personal injury, electrical, incidental LexisNexis(R) Headnotes

Constitutional Law > Bill of Rights > Fundamental Freedoms > General Overview Contracts Law > Types of Contracts > Lease Agreements > General Overview [HN1] The freedom to contract, as a controversial mainstay of constitutional jurisprudence, is often rightly curbed to reduce the effect that unequal bargaining power has on the contracting parties. Leases are naturally no exception. What each party can be expected to do in order to satisfy lease provisions is relative to their respective positions as representing owner, with complete dominion over the physical structure and edifice, and the tenant, who pays for the privilege of a temporary occupancy of a defined space within the owned entity. Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Eviction Actions > General Over-

view Real Property Law > Landlord & Tenant > Lease Agreements > Lease Provisions [HN2] A notice to cure a lease violation may not require, as a condition to avoid eviction, the repairing of structural damages not within the subject apartment. COUNSEL: [*1] The petitioner was represented by Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., by David R. Brody, Esq. The respondent was represented by John D. Gorman, Esq. JUDGES: Judge Finkelstein OPINION BY: Finkelstein OPINION This summary holdover proceeding is predicated upon petitioners' claim that respondent is violating a substantial obligation of his tenancy. The tenancy is subject to the Emergency Tenant Protection Act of 1974. Both sides are represented by counsel. Respondent was served with a notice to cure dated January 5, 2006, followed by a notice terminating the tenancy due to respondent's alleged failure to comply with the notice to cure. Given petitioners' position as to what would constitute a cure of the lease violation, close scrutiny of the notice to cure is warranted. The notice quotes from two paragraphs of a lease between the parties which commenced September 1, 1988, upon which this proceeding is based (although respondent claims his original lease is dated January 30, 1973). Paragraph 8 of the 1988 lease (annexed as Exhibit A to respondent's memorandum of law) states, in full: Tenant must take good care of the Apartment and all equipment and fixtures in it. Landlord will repair the plumbing, heating [*2] and electrical systems. Tenant must, at Tenant's cost, make all repairs and replacements whenever the need results from Tenant's act or neglect. If Tenant fails to make a needed repair or replacement, Landlord may do it. Landlord's reasonable expense will be added rent. (emphasis added). Paragraph 15 of the lease states, in pertinent part: Tenant must, at Tenant's expense, promptly comply with all laws, orders, rules, requests, and directions, of all gov-

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ernmental authorities, Landlord's insurers Board of Fire Underwriters, or similar groups.

The notice then indicates that the certificate of occupancy provides that the live load of the floor is 60 pounds per square foot. It then specifies that respondent is violating the lease and certificate of occupancy because: The tenant has placed numerous items on the floor of the Subject Premises, including, but not limited to, a cast iron aluminum tub, an old oak China cabinet, large urns and several bookcases that have caused said floor to buckle and sink into the ceiling of the space below. Tenant's placement of these items on the floor of the Subject Premises has structurally damaged the wooden beams that comprise the floor structure of the Subject [*3] Premises and has placed a weight upon said floor that exceeds 60 pounds per square foot. (emphasis added).

The notice to cure essentially ends with the requirement that respondent cure this default by February 1, 2006. It is silent as to what respondent would have to specifically do in order to effectuate a cure. That is the crux of the issue before the Court. At conference, respondent, while not admitting any of the allegations, indicated he would agree to effectuate a cure by moving or removing any items in the apartment that were in violation of the lease or certificate of occupancy. However, petitioners indicated that in their view, just removing the items in question would not constitute a cure of respondent's default under the lease. Their position is that, in order for respondent to cure and avoid eviction, he would have to expend an estimated $ 45,000 and repair, himself, the structural damage allegedly caused by his placing a weight upon his apartment floor that exceeds 60 pounds per square foot, including the substantial damage which allegedly has occurred outside of the confines of his apartment and in the "space" below. Given these conflicting positions, the parties agreed [*4] by stipulation to brief the following issue as defined prior to trial: In a holdover proceeding based upon lease violation, can a notice to cure not

only require the ceasing of the lease violation but also require, as a condition to avoid eviction, the repairing of structural damages not within the apartment, assuming they were caused by the lease violation. (emphasis added).

By subsequent stipulation, the parties also agreed that this proceeding is submitted for summary determination based on the issue stated above and the briefs submitted thereon. Thus, the Court must first and foremost decide whether a notice to cure can require not only the cessation of the offending conduct, but also require the mitigation of damage rendered to the structure of the building itself, and not merely contained within the subject apartment. Petitioner appears to set forth a novel argument, and from the memoranda and reply memoranda submitted by the parties, it would appear that there is little case law to look to for guidance. [HN1] The freedom to contract, as a controversial mainstay of constitutional jurisprudence, is often rightly curbed to reduce the effect that unequal bargaining power has on the contracting [*5] parties. Leases are naturally no exception. What each party can be expected to do in order to satisfy lease provisions is relative to their respective positions as representing owner, with complete dominion over the physical structure and edifice, and the tenant, who pays for the privilege of a temporary occupancy of a defined space within the owned entity. The space contracted for is the only space that carries with it any legal right that the tenant has to occupy it. In the case at bar, that space is contained within the walls of the subject apartment. If the tenant were to affect that space in a manner forbidden by a lease provision, then that tenant would have to cure the violation and would have a right to do so within a legally specified time. All of this is well settled. However, here, the petitioner would have the Court say it is able to remove respondent from the premises by force of law for affecting the space outside of his apartment, namely the structure of the building under the floor, which space is not contracted for by landlord and tenant and, concerning which, the tenant owes no duties within the lease. Respondent has a duty within the lease not to affect or occupy such [*6] space as is not contracted for, and to this end, he must cure and cease affecting that space (i.e., assuming the certificate of occupancy provides that the live load of the floor cannot exceed 60 pounds per square foot, by moving or removing items which are proven to be on the floor of the apartment and which place a weight upon said floor which exceeds the

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live load limit). However, petitioners go much further and assert that in order to avoid eviction from his home of some 35 years, respondent must pay for and effectuate repairs, allegedly caused by the excessive load on his floors, in areas of the building outside the confines of the space he is renting, outside of his dominion and control, and regardless of the cost. In Havens v. Hartshorn, 184 Misc. 310, 55 N.Y.S.2d 698 (Sup Ct, Genesee County 1945), a defendant in a negligence action sought to implead a tenant whom the landlord defendant claimed violated the repairs provision in their lease, causing the floor beams below the apartment to eventually collapse, causing the injuries from which relief was sought. In describing the tenant's duty to repair, the lease read " . . . and to keep the leased premises in repair except for ordinary wear and tear and [*7] depreciation from use, it being understood that the party of the second part will take care of all minor and incidental repairs to the interior of said premises as and when they become necessary, during the term of this lease." This is a fairly standard recitation of the general duty of a tenant to not alter the premises. The court interpreted the provision as follows: It is apparent that their only duty was to make minor or incidental repairs to that portion of the premises occupied by it, towit: 'the floor space on the second and third floors actually occupied' by it. There is no agreement to make structural repairs such as the beams and supports of the flooring. As well might it be claimed that the impleaded defendant contracted to repair the foundations of the building. This Court therefore concludes that under the terms of the lease, the impleaded defendant violated no duty owing to the defendants to repair the beams and supports." Havens at 314. See also this Court's decision in Gammerman v Kulko and Debaun Kavelman, 27 HCR 257A, 259 n.o.r. (Civ Ct, Kings County 1997). Like in Havens and Gammerman, supra, the instant lease was never intended to allow, let alone impose a duty upon, [*8] tenants to access such structural areas of the building order to make repairs, in the tens of thousands of dollars, necessary to cure possible breaches of lease provisions. If that were the case, tenants could run rampant through the building, altering electrical, plumbing, and other elements of infrastructure, which would not only be unsafe, but would often be illegal for them to access.

While, at this point, it cannot be said that respondent is necessarily free from financial liability for the damage to the structure of the building, he certainly is not in substantial violation of his lease, pending eviction if left without cure. It might be instructive to state what this case is not. It is not a holdover case based upon the more common scenario of substantial alteration of the premises, where, without the knowledge or permission of the landlord, a tenant makes structural alterations within the subject apartment or nonstructural alterations which are inconsistent with the contemplated use of the premises. Such typical instances of waste are very much within the realm of the duty to repair clause in the standard residential lease, and make up the bulk of petitioners' cited cases. In [*9] such a case, in order to avoid eviction, the apartment might have to be restored to its original condition at the tenant's expense, regardless of the cost (e.g., removing unauthorized partitions). The cure can be effectuated because the remedial work is to be done within the tenant's apartment. This case is also not a nuisance or objectionable conduct case where the tenant's unreasonable behavior is recurring, frequent, or extremely dangerous. In such a case, the tenant might not be entitled to an opportunity to cure nuisance conduct at all. This case is, on the other hand, based upon alleged accidental damage of a structural element of the building outside of the premises being leased. That is not to say that a lease containing a clear clause imposing a duty upon a tenant to repair structural damage outside of his apartment might not be grounds for eviction if a default on such provision were not cured. However, since no such provision exists here, and all attempts made by petitioner to interpret paragraph 8 of the 1988 lease as extending to these ends have stretched the bounds of plausibility concerning an understanding between the parties at the formation of the lease, the Court [*10] cannot but see that the duty the petitioner seeks to impose here was not contracted for, and therefore cannot form the basis of respondent's eviction. There are a long line of cases in which courts have found tenants could not be evicted on the basis of an isolated instance of objectionable conduct, even though the consequences of that conduct could be substantial. For example, a single incident of setting fire to an apartment (James v. New York City Housing Authority, 186 AD2d 498, 589 N.Y.S.2d 331 [1st Dept 1992]), and a single incident of threatening the landlord's employees, including hurling a cup of coffee in their direction (Sanford Flushing Assocs v. James, NYLJ, May 21, 1997, p 29, col 6 [App Term, 2d Dept]) were insufficient to warrant the tenant's eviction. A fire can cause thousands or even millions of dollars of property damage to a building, including damage outside of the tenant's apartment, as can a

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single incident of accidentally allowing the water to overflow. Throwing coffee or engaging in a single fight can cause substantial personal injury to the landlord or its employees. Similarly, cases are legion where tenants avoid eviction in holdover cases based upon breach of a substantial [*11] obligation of the tenancy by simply ceasing the breach. This Court is not aware of any case in which it was determined that the nature or infrequency of the nuisance conduct did not warrant the tenant's eviction, or in which the tenant ceased the substantial violation of his tenancy, however the tenant still was to be evicted under another separate ground for eviction -- that is, the failure of the tenant to pay the enormous sums that may be required to repair fire damage to the building and actually effectuate the repairs, or the failure of the tenant to pay the personal injury bills of the landlord or its employees, or, as here, the failure of the tenant to pay the estimated $ 45,000.00 cost of the structural repairs to the building as well as being responsible himself for having the repairs done. Thus, the Court concludes that under the Facts and circumstances of this holdover proceeding, the notice to cure cannot go beyond requiring the respondent to cease the lease violation by also requiring, as a condition to

avoid eviction, that respondent repair the structural damage outside the apartment (assuming they were indeed caused by the lease violation), regardless of the cost. If the [*12] petitioners have the necessary proof of causation and damage, they may very well have appropriate remedies to recover the cost of repairing the alleged structural damage under the lease and/or under negligence law. However, they cannot create a new basis for eviction by requiring not only the cessation of the violation, but further, that the tenant pay for, and effectuate, the extensive structural repairs to the building upon penalty of eviction. The parties have stipulated that this proceeding is submitted for summary determination based on the briefs submitted and the issue the Court has determined above. As the Court has decided that [HN2] a notice to cure a lease violation may not require, as a condition to avoid eviction, the repairing of structural damages not within the subject apartment, and the notice to cure herein requires exactly that, as confirmed by petitioner's stated position at oral argument, the notice to cure is fatally defective. Accordingly, the petition is dismissed. This constitutes the decision and order of the Court.

42 of 55 DOCUMENTS [*1] 426-428 West 46th St. Owners, Inc., 46th Street Associates, LP, and Robert M. Gottesman, Plaintiffs, against Greater New York Mutual Insurance Company, Defendant. 603354/03 SUPREME COURT OF NEW YORK, NEW YORK COUNTY 2007 NY Slip Op 51420U; 16 Misc. 3d 1114A; 847 N.Y.S.2d 896; 2007 N.Y. Misc. LEXIS 5078 July 25, 2007, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

aging agent, matter of law, duty to defend, providing coverage HEADNOTES

CORE TERMS: tenant, apartment, insured, cooperative, notice, staircase, summary judgment, occurrence, shareholder, coverage, loft, building superintendent, estate manager, swear, insurer, policyholder, investigate, indemnify, medical condition, issues of fact, declaration, deposition, reasonableness, umbrella, floor, rent, man-

[**1114A] [***896] Insurance--Duty to Defend and Indemnify--Notice to Insurer. Insurance--Construction of Policy--What Constitutes "Insured." COUNSEL: For Plaintiffs: Fried & Epstein LLP, New

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York, NY, Of Counsel: John W. Fried. For Defendant: Greater New York Mutual Insurance Company, New York, NY, Of Counsel: Richard C. Rubinstein. JUDGES: Bernard J. Fried, J. OPINION BY: Bernard J. Fried OPINION Bernard J. Fried, J. This case involves an insurance coverage dispute. 1 Plaintiffs seek a declaration that defendant Greater New York Mutual Insurance Company (GNY) is obligated to defend and [*2] indemnify them in a personal injury action commenced by Michelle Marshall (the Tenant), who was allegedly injured from a fall from a staircase in a studio apartment with a loft (the Apartment), in which she then resided, on West 46th Street in Manhattan. Plaintiffs also seek damages for GNY's alleged breach of the insurance policy in refusing to defend and indemnify them in the Tenant's underlying personal injury case. 1 The facts of this case are also discussed in my prior decision on the motion to dismiss (426-428 West 46th St. Owners, Inc. v Greater New York Mut. Ins. Co., [Sup Ct, NY County, July 6, 2004], affirmed 23 AD3d 207, 804 N.Y.S.2d 61 [1st Dept 2005]). GNY moves for summary judgment, pursuant to CPLR 3212, dismissing the complaint as against the defendant, and for a declaration that GNY need not defend or indemnify plaintiffs in the Tenant's underlying action, on the ground that plaintiffs failed to comply with the notice provisions of the GNY commercial general liability primary and umbrella insurance policies (together, the Policy), 2 issued to 426-428 West 46th St. Owners, Inc. GNY also moves for summary judgment in its favor against 46th Street Associates, LP (Associates) and Robert M. Gottesman (Gottesman), on the ground that in the capacity in which these plaintiffs were sued by the Tenant in the underlying case, they are not covered under the Policy. 2 Except where it is necessary to differentiate based on the separate policies, "the Policy" will be used to signify both the primary and umbrella policies. During the time periods relevant in this case, plaintiff Gottesman was a board member and the president of 426-428 West 46th St. Owners, Inc., a domestic cooperative corporation that owns the building on West

46th Street in which the Tenant lived at the time of the incident (the Cooperative Corporation). Plaintiff Associates, a domestic limited partnership, is owner of the shares of the Cooperative Corporation allocable to the proprietary leases of several apartments in the building at 428 West 46th Street, including the Apartment. Associates leased the Apartment to the Tenant through an executed residential lease. On that lease, Associates is listed as the "Owner" of the Apartment (Rubenstein Aff., Exh. C). Gottesman swears that in 2002, when the incident occurred, he was a general partner of Associates (Fried Aff., Exh. 3, at 2, P 7). 3 Gottesman testified that his wife, non-party Irene Fish Gottesman (Fish Gottesman), is vice president of Associates. 3 Gottesman swears that, as of today, his partnership interest has been assigned to a limited liability company (Fried Aff., Exh. 3, at 2, P 7). In the underlying action, the Tenant sued plaintiffs for injuries that she alleges she sustained as a result of a fall on August 27, 2002 from a defective staircase inside the Apartment. 4 Plaintiffs notified GNY of this incident on June 18, 2003, approximately 10 months after the incident occurred, but shortly after their receipt of the Tenant's summons and complaint. After receiving notice of the claim, GNY disclaimed, asserting that the notice was not timely under the Policy and that Associates and Gottesman were not insured thereunder. 4 Originally the Tenant sued Associates and Gottesman, but later amended her complaint to add the Cooperative Corporation. The parties do not dispute that, at the time of the incident, the Apartment was a one-room studio, with a staircase leading to an elevated loft area. The Tenant testified that she used the loft or platform area of her apartment, which is elevated about eight or nine feet above the main floor of [*3] the Apartment, for sleeping purposes. 5 5 Defendant includes a picture of a part of the Apartment, and "post-alteration" pictures of the stairwell "to give the Court an idea of the height of the fall and of [the Tenant's] apartment in general" (Rubenstein Moving Aff., at 10). Also undisputed is that the building superintendent (the Building Superintendent) called 911 after he heard the Tenant's cries for help, unlocked her front door with a passkey, and found her on the floor, inside the apartment on August 27, 2002. The Building Superintendent testified that the Tenant told him that she was unable to

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move, and asked that he cover her unclothed body. The Tenant was taken to the hospital by ambulance, where Fish Gottesman visited her within weeks after the incident. The primary GNY policy contains the following notice provision:

sleeping loft in the Apartment, there was no valid excuse for the 10-month delay in providing notice of the occurrence. GNY contends that, under the circumstances, the insureds failed to reasonably inquire into the facts to determine whether there existed a possible [*4] reportable claim. Recently, the First Department stated:

"You must see to it that we are notified as soon as practicable of an occurrence' or an offense, which may result in a claim. To the extent possible, notice should include: (1) How, when and where the occurrence' or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the occurrence' or offense"

"Where a liability insurance policy requires notice of an occurrence to the carrier as soon as practicable, such notice must be given within a reasonable period of time, and the insured's noncompliance in this respect constitutes failure of a condition precedent (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 833 N.E.2d 1196, 800 N.Y.S.2d 521 [2005]), thus vitiating the contract as a matter of law, without a showing of prejudice (Argo Corp. v Greater NY Mut. Ins. Co., 4 NY3d 332, 339, 827 N.E.2d 762, 794 N.Y.S.2d 704 [2005])"

(Fried Aff, Exh. A, at P-006). "Occurrence" is defined in the primary policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions" (Fried Aff., Exh. A, at P-011). In the umbrella policy, an "Occurrence" is also defined as an accident (Fried Aff., Exh. B, at P-020). The movant on a summary judgment motion has the initial burden of proving entitlement to summary judgment, by tender of evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Finkelstein v Cornell University Med. Coll., 269 A.D.2d 114, 117, 702 N.Y.S.2d 285 [1st Dept 2000]). Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (CPLR 3212 [b]; Zuckerman, 49 N.Y.2d at 562). Regarding its first ground for dismissal, that plaintiffs failed to provide timely notice under the Policy, GNY argues that it is entitled to summary judgment against plaintiffs because of where plaintiffs found the Tenant unable to move, on the main floor of the Apartment at the bottom of banister-less staircase leading to a

(Sorbara Const. Corp. v AIU Ins. Co., 41 A.D.3d 245, 838 N.Y.S.2d 531, 2007 N.Y. App. Div. LEXIS 7582, 2007 WL 1746907 [1st Dept 2007]); see also Paramount Ins. Co. v Rosedale Gardens, Inc., 293 A.D.2d 235, 239, 743 N.Y.S.2d 59 [1st Dept 2002]). "The duty to give notice arises when, from the information available relative to the accident, an insured could glean a reasonable possibility of the policy's involvement" (Paramount, 293 A.D.2d at 239-240 [citation omitted]). Furthermore, "[t]he burden is upon the insured to demonstrate that timely notice was given to the carrier" (Shaya B. Pacific, LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 46, 827 N.Y.S.2d 231 [2d Dept 2006], citing Great Canal Realty Corp. v Seneca Ins. Co., 5 NY3d 742, 833 N.E.2d 1196, 800 N.Y.S.2d 521 [2005]). "There may be circumstances, such as a lack of knowledge that an accident has occurred or a reasonable belief in nonliability, that will excuse or explain delay in giving notice" (White v City of New York, 81 N.Y.2d 955, 615 N.E.2d 216, 598 N.Y.S.2d 759 [1993]; Public Service Mut. Ins. Co. v Hollander, 228 A.D.2d 283, 644 N.Y.S.2d 214 [1st Dept], lv denied 88 N.Y.2d 816, 673 N.E.2d 1244, 651 N.Y.S.2d 17 [1996]). The good-faith belief in nonliability must be reasonable in light of all of the circumstances (Great Canal Realty Corp. v Seneca Ins. Co., 5 NY3d 742, 744, 833 N.E.2d 1196, 800 N.Y.S.2d 521 [2005]; Empire City Subway Co. v Greater New York Mut. Ins. Co., 35 N.Y.2d 8, 13, 315 N.E.2d

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755, 358 N.Y.S.2d 691 [1974]) and it may be relevant to the issue of reasonableness whether and to what extent the insured has "inquired into the circumstances of the accident or occurrence" (Security Mut. Ins. Co. of NY v Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 293 N.E.2d 76, 340 N.Y.S.2d 902 [1972]; Great Canal, 5 NY3d at 744; see also White, 81 N.Y.2d at 958; RMD Produce Corp. v Hartford Cas. Ins. Co., 37 AD3d 328, 331, 831 N.Y.S.2d 135 [1st Dept 2007]). Where an insurance policy requires that notice of an occurrence be given promptly, notice must be given within a reasonable time in view of all of the facts and circumstances (Paul Developers, LLC v Maryland Cas. Inc. Co., 28 AD3d 443, 816 N.Y.S.2d 75 [2d Dept 2006]; see Security Mut., 31 N.Y.2d at 440). Moreover, "[i]t is . . . well settled that the reasonableness of a delay, where mitigating circumstances such as . . . lack of knowledge of the occurrence or its seriousness are offered as an excuse, is usually for the jury" (Deso v London & Lancashire Indemnity Co. of Am., 3 N.Y.2d 127, 143 N.E.2d 889, 164 N.Y.S.2d 689 [1957]; see also Argentina v Otsego Mut. Fire Ins. Co., 86 N.Y.2d 748, 749, 655 N.E.2d 166, 631 N.Y.S.2d 125 [1995]; Galaxy Insurance Co. v 1454 Nicholas Avenue Assocs., 276 A.D.2d 424, 715 N.Y.S.2d 27 [1st Dept 2000]; Levine v Drake Manor, Inc., 256 A.D.2d 448, 683 N.Y.S.2d 859 [2d Dept 1998]). Defendant argues that the record, now fully developed, demonstrates that the Tenant was found in the Apartment in close proximity to the bannister-less staircase that led to the loft, and submits deposition testimony to support this proposition. In further support of its motion, defendant submits the Tenant's deposition testimony, in which she states that she fell because there was nothing to hold on to as she went down the stairs. Defendant also submits witness testimony that Fish Gottesman visited the Tenant in the hospital during which time the Tenant had a conspicuous medical device on her head, and had to be fed the cookies that Fish Gottesman brought on the visit. Defendant asserts that Fish Gottesman [*5] inquired about the Tenant while speaking on the telephone with the Tenant's friends, and was advised of the Tenant's inability to return to the Apartment because it was not wheelchair accessible. Defendant argues that the Tenant's fall down the banister-less stairway in her apartment is unequivocally an occurrence that triggered the Cooperative Corporation's obligation to report the accident to GNY as soon as the Building Superintendent found the Tenant "lying paralyzed at the bottom of the staircase, or for that matter lying paralyzed anywhere in her small apartment" (Rubenstein Moving Aff., at 13, P 38). Defendant contends that the record demonstrates that plaintiffs knew of the severity of the Tenant's injury, increasing their oblig-

ation to investigate the incident. Defendant also points out, and it is not disputed, that plaintiffs installed a railing on the loft stairway sometime after the Tenant moved out, although it is not clear exactly when. Defendant argues that plaintiffs' contentions, made in the earlier motion to dismiss, that they did not know the injuries were serious or that a reportable accident occurred because they did not witness the accident, do not support a goodfaith belief in nonliability, or excuse the plaintiffs from failing to investigate the facts or circumstances surrounding the Tenant's accident. Plaintiffs oppose the motion, stating that they "had no knowledge that: (a) [the Tenant] had sustained an "accident;" (b) the purported accident allegedly was caused by a defect in [the Tenant's] apartment; (c) [the Tenant's] injuries were serious; or (d) [the Tenant] intended to hold plaintiffs liable for her injuries" (Pl. Memo. of Law in Op., at 7). Plaintiffs contend that they were not aware that the Tenant had fallen in the Apartment or suffered an accident, or that an accident, rather than an illness or continuing medical condition, was the cause of the Tenant's hospitalization. They further contend that despite the opportunity to do so, the Tenant did not provide information to them concerning the incident, or her medical condition, and did not indicate that she intended to sue. In opposition to the motion, plaintiffs provide the affidavits of Gottesman and Fish Gottesman who swear that the Tenant never advised them that she felt that the staircase was in a state of disrepair or defective, and did not tell plaintiffs of the nature of her condition (Fried Aff., Exh.6, P 10 [Gottesman]; Fried Aff., Exh. 8, P 4 [Fish Gottesman]). Fish Gottesman swears that she knew the Tenant since 1998, and visited her in the hospital within a few weeks after the incident, where the Tenant was sitting up in bed and did not discuss her condition or say anything about having fallen. Contrary to the testimony offered by defendant, Fish Gottesman testified at her deposition that when she visited plaintiff in the hospital, the Tenant was not wearing any braces or appliances on her body, and that she did not bring anything to the Tenant (Rubenstein Reply Aff., Exh. A, at 102-103). Fish Gottesman further testified that she thought that her relationship with the Tenant was such that the Tenant would have informed her if the incident was related to the Apartment, and the Tenant testified that her relationship with Fish Gottesman was friendly.

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Plaintiffs also submit admissible evidence from the Building Superintendent and Fish Gottesman that neither the Tenant, nor her family members or friends, ever mentioned a fall to them. In addition, plaintiffs submit the Tenant's affidavit in which she swears that she did not tell plaintiffs about the nature of the incident. Plaintiffs point out, and it is not disputed that, albeit late, the Tenant paid rent after the [*6] incident until the time that she vacated the Apartment. Fish Gottesman testified that some time, possibly months, prior to the incident, the Tenant had been unable to pay rent due to a medical condition, and that plaintiffs put no pressure on her to pay her rent (Rubenstein Reply Aff., Exh. A, at 74, 91). It is undisputed that Tenant did not request of plaintiffs the payment of her medical bills. Except for Fish Gottesman's visit to the hospital, described above, until served with a summons and complaint, plaintiffs offer sworn testimony that they never saw or heard from the Tenant again after the incident. The primary issue here is whether the plaintiffs had a reasonable basis to believe that no claim would be asserted by the Tenant under the circumstances (see SSBSS Realty Corp. v Public Service Mutual Insurance Co., 253 A.D.2d 583, 677 N.Y.S.2d 136 [1st Dept 1998]). The heart of defendant's argument is that because of the Tenant's proximity to the staircase, that she was hospitalized and that she told the Building Superintendent that she could not move and asked to be covered, there is no believable excuse for plaintiffs having failed to investigate and report the occurrence, thereby rendering their notice to defendant late, as a matter of law. 6 One of the premises underlying defendant's argument is that plaintiffs knew that the Tenant was paralyzed, because she told the Building Superintendent that she could not move, and asked him to cover her. The Building Superintendent testified, however, that he did not know what was wrong with the Tenant when he found her lying, naked and groggy, on the floor, and that he did not stay with her, but waited outside the Apartment, after calling for an ambulance. 6 Defendant asserts that because the Tenant was found "paralyzed near the banister-less stairway . . . no one can possibly believe that the circumstances here would not compel a reasonable person to investigate the matter to see if a reportable accident occurred" (Rubenstein Reply Aff., P 10). To bolster their argument that plaintiffs knew of the accident and the seriousness of the Tenant's condition, defendant points to Fish Gottesman's deposition testimony in which she states that she may have asked about Marshall's condition. Defendant also provides the testimony of a witness, Stacie Cowan Gray, a friend of the

Tenant, who swore that she advised Fish Gottesman of the Tenant's condition. Based on this evidence, defendant argues that the plaintiffs were advised of the Tenant's condition, which is unequivocal notice of the occurrence, and that Fish Gottesman's affidavit otherwise must be disregarded because it contradicts the "admission" she made during her deposition. It is indeed well settled that a party's affidavit in opposition to a summary judgment motion which contradicts his prior sworn testimony creates only a feigned issue of fact insufficient to defeat a properly supported motion for summary judgment (Harty v Lenci, 294 A.D.2d 296, 298, 743 N.Y.S.2d 97 [1st Dept 2002]). Fish Gottesman's testimony that she may have inquired into the Tenant's condition (see Rubenstein Reply Aff., at 7) cannot be definitively characterized as an admission that she was told of the Tenant's condition, which Fish Gottesman explicitly denies in her affidavit. Moreover, Gray's testimony does not constitute an admission by Fish Gottesman. 7 7 Fish Gottesman also disputes as untrue Gray's testimony that Fish Gottesman was aware that the Tenant had an accident and had not regained used of her legs, and planned to move out of the Apartment because it was not wheelchair accessible (Fried Aff., Exh. 30, P 11). [*7] Presumably to discredit the Building Superintendent, defendant submits the testimony of Terence Bogan, a close friend of the Tenant, who swears that the Tenant told him that the Building Superintendent knew that she had fallen. Bogan's testimony, however, is contradicted by that of the Building Superintendent and the Tenant, raising credibility issues that are not resolvable here (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315, 819 N.E.2d 998, 786 N.Y.S.2d 382 [2004] ["(c)redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he (or she) is ruling on a motion for summary judgment or for a directed verdict" (citation and internal quotation marks omitted)]; S.J. Capelin Assocs. v Globe Mfg. Corp., 34 N.Y.2d 338, 313 N.E.2d 776, 357 N.Y.S.2d 478 [1974]). Defendant contends that plaintiffs' installation of a railing after the Tenant moved out proves their knowledge of a defect or liability. Fish Gottesman swears, however, that the installation of the railing was merely part of an overall renovation of the Apartment made to beautify it so that plaintiffs could get higher rent (Rubenstein Reply Aff., Exh. A, at 62). On summary judgment, inferences must be taken in favor of the nonmoving party and statements made in opposition to the motion are generally accepted as true (Patrolmen's Benevolent Assn. of

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City of NY v City of New York, 27 N.Y.2d 410, 415, 267 N.E.2d 259, 318 N.Y.S.2d 477 [1971]; Wendling v 136 E. 64th St. Assocs., 128 A.D.2d 419, 513 N.Y.S.2d 119 [1st Dept 1987]). Implicit in defendant's contention is that the sworn statements and testimony that plaintiffs have submitted to support their defense that they did not know that the Tenant fell, or that the staircase was defective, are not credible under these circumstances. Credibility determinations, however, are impermissible on summary judgment (Forrest, 3 NY3d 295, 819 N.E.2d 998, 786 N.Y.S.2d 382, supra). Furthermore, the cases upon which GNY relies concerning the issue of reasonableness of delay in notice are distinguishable inasmuch as in those cases it appears that the respective policyholders knew that an accident had occurred (see e.g. White v City of New York, 81 N.Y.2d 955, 615 N.E.2d 216, 598 N.Y.S.2d 759 [1993]; Empire City, 35 N.Y.2d 9, supra [policyholder learned that man was injured in accident occurring in vicinity of its road excavation work site]; Steinberg v Hermitage Ins. Co., 26 AD3d 426, 809 N.Y.S.2d 569 [2d Dept 2006] [involving a fall on the front steps of the policyholder's building and policyholder was notified of incident by injured party's attorney]; Aetna Casualty & Sur. Co. v Lanza, 70 A.D.2d 508, 415 N.Y.S.2d 859 [1st Dept 1979] [policy holder struck pedestrian with automobile causing hospitalization]; Security Mutual Ins. Co., 31 N.Y.2d 436, 293 N.E.2d 76, 340 N.Y.S.2d 902, supra [policyholders knew of newspaper article mentioning their liability but did not notify insurer or investigate]). For example, in White (81 N.Y.2d 955, 615 N.E.2d 216, 598 N.Y.S.2d 759), the insured was aware that a child was injured from a fall on a playground because the incident was reported to the agent. Other cases where courts have found summary judgment in favor of the insurer, as a matter of law, similarly involve knowledge of an accident on the part of the policyholder (see e.g. Felix v Pinewood Builders, Inc., 30 AD3d 459, 818 N.Y.S.2d 119 [2d 2006] [insured aware of accident on work site, and received letter from attorney]; Great Canal Realty Corp. v Seneca Ins. Co., 13 AD3d 227, 787 N.Y.S.2d 22 [1st Dept 2004], revd 5 NY3d 742, 833 N.E.2d 1196, 800 N.Y.S.2d 521 [2005] [premises owner informed a few weeks after the accident of worker's fall from ladder during course of work]; Zadrima v PSM Insurance Cos., 208 A.D.2d 529, 616 N.Y.S.2d 817 [2d Dept 1994] [policy holder received actual notice of worker's fall from a ladder shortly after the occurrence]). In this case, the Tenant was found lying unclothed on the floor in her own residence in the early morning hours, and not at the bottom of a staircase in a building hallway, on a sidewalk, or at a work site. Plaintiffs have also submitted evidence demonstrating that prior to the incident, the Tenant had paid her rent late due to a medic-

al condition. In addition, plaintiffs provide evidence that [*8] supports their assertion that the Tenant chose not to affirmatively volunteer information about her medical condition, or its cause. Such facts, assumed to be true for purposes of this motion, implicate certain nuances concerning privacy not found in cases cited to by defendant. 8 Plaintiffs' apparent failure to inquire into the Tenant's condition and hospitalization by, as defendant suggests, asking the Tenant's healthcare providers, friends and family about the cause of the Tenant's hospitalization and medical condition, does not, as a matter of law, render plaintiffs' excuse unreasonable, but is merely a factor for consideration by the trier of fact. Also an issue for the trier of fact is whether, as defendant appears to imply, plaintiffs' have not been truthful about their knowledge concerning the Tenant's condition or whether the incident involved the staircase. 8 Crediting as true the testimony of the Tenant, the Building Superintendent and the Gottesmans, as is required on summary judgment, plaintiffs have provided evidence that the Tenant choose not to divulge to the Cooperative Corporation's board, her lessor, or the building staff the reasons she was hospitalized. Under these circumstances, GNY's suggestion that a commercial general liability policyholder should investigate the possibility of potential reportable claims by seeking information from a patient's healthcare provider(s) about her medical condition does not warrant serious consideration. "Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact or where the factual issue is arguable or debatable" (International Customs Assoc., Inc. v Bristol-Meyers Squibb Co., 233 A.D.2d 161, 162, 649 N.Y.S.2d 789 [1st Dept 1996]; see Andre v Pomeroy, 35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131 [1974]; Fradera v 124 Realty Co., 220 A.D.2d 258, 632 N.Y.S.2d 464 [1st Dept 1995]). It is where there is no excuse or mitigating factor that the issue of reasonableness poses a legal question for the court, rather than an issue for the trier of fact (see Paul Developers, LLC v Maryland Casualty Ins. Co., 28 AD3d 443, 816 N.Y.S.2d 75 [2d Dept 2006]). Under the circumstances found here, the record reveals mitigating factors that bear on the issue of reasonableness, and summary judgment on the issue of notice is denied. 9 9 As an issue of fact has been raised regarding the primary policy, plaintiffs' argument concerning the umbrella policy, which GNY describes as a "follow the form" policy, need not be addressed. GNY also seeks summary judgment as against Asso-

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ciates and Gottesman, arguing that neither is not an insured under the GNY policies. The relevant provision at issue in the primary policy states: "SECTION II - WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. ... d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insured, but only with respect to their duties as your officers or directors. Your stockholders are also insured, but only with respect to their liability as stockholders. [*9] 2. Each of the following is also an insured: ... b. Any person (other than your "employee"), or any organization while acting as your real estate manager"

(Fried Aff., Exh. 1, at P-006). 10 There is no dispute that the Cooperative Corporation is an insured. 10 In the umbrella policy, contains the following provision: F. "Insured" and "Named Insured" ... 2. "Insured" means "Named Insured" and also

the

... (c) your executive officers, directors and stockholders but only within the scope of their duties as such

Fried Aff., Exh. 2, at P-019. GNY argues that the Policy provides coverage for Associates only in its capacity as a shareholder of the Cooperative Corporation, and that Associates is not being sued therefore, but instead as the owner of the Apartment, or the Tenant's landlord, for renting her an apartment containing a defective staircase. Regarding Gottesman, GNY argues that he is being sued because of his status as a principal of Associates, or as the manager of the Apartment on behalf of Associates, and not arising out of his relationship with the Cooperative Corporation as its president. In the amended complaint in the underlying action, the Tenant alleges that she sustained serious bodily injury as a result of a fall in the Apartment, that the fall was caused by a defective and dangerous staircase in the Apartment, and that the Cooperative Corporation, Associates and Gottesman, respectively, owned, operated, managed, controlled, maintained, and were responsible for the Apartment, its appurtenances and fixtures, and are liable for her alleged injuries. In the first of the three causes of action of the Tenant's complaint, the Tenant alleged that she was caused to slip and fall off of a dangerous and defective staircase because of an unsafe and dangerous condition, and that it was the duty of the "said defendants to maintain the said apartment in a safe condition. . . . " (Fried Aff., Exh 32, P 22). The Tenant alleged that the described incident was caused by the negligence of the defendants and/or their "servants, agents, employees and/or licensees in the ownership, operation, management, maintenance and control of the aforesaid premises" (Fried Aff., Exh. 32, P 23). In the second cause of action, the Tenant alleged that the defendants permitted the alteration of the Apartment to include a loft with a staircase, permitted the construction of the loft with a staircase in the Apartment, should have known that the loft and staircase were negligently and dangerously constructed, and failed to repair the dangerous condition. In the third cause of action, the Tenant alleged that the defendants were aware of certain violations on the premises regarding the subject loft and staircase and failed to take reasonable steps to repair and clear those violations, allowing the Tenant to occupy the premises although the violations were never repaired or cleared. Regarding all of the causes of action, the Tenant alleged that it was the duty of the defendants to maintain the Apartment in a safe condition. As previously stated, in addition to damages for breach of the Policy, plaintiffs seek a [*10] declaration that GNY is obligated to defend and indemnify them in the Tenant's underlying personal injury action. "[A]n in-

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surer's duty to defend [its insured] is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest . . . a reasonable possibility of coverage" (BP Air Conditioning Corp. v One Beacon Ins. Group, 8 N.Y.3d 708, 871 N.E.2d 1128, 2007 N.Y. LEXIS 1617, 840 N.Y.S.2d 302, 2007 WL 1826923 [2007] [citation and internal quotation marks omitted]). Furthermore, "The duty to defend [an] insured[ ] . . . is derived from the allegations of the complaint and the terms of the policy. If a complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend. A duty to defend is triggered by the allegations contained in the underlying complaint. The inquiry is whether the allegations fall within the risk of loss undertaken by the insured [and, it is immaterial] that the complaint against the insured asserts additional claims which fall outside the policy's general coverage or within its exclusory provisions" (ibid. [citation and internal quotation marks omitted]). "If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137, 850 N.E.2d 1152, 818 N.Y.S.2d 176 [2006] [citation and internal quotation marks omitted]). "Thus, an insurer may be required to defend under the contract even though it may not be required to pay once the litigation has run its course" (ibid.); BP Air Conditioning Corp. v One Beacon Ins., 8 N.Y.3d 708, 2007 WL 1826923, supra). The narrower duty to indemnify arises only if the claim for which the insured has been judged liable lies within the policy's coverage (see Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 N.Y.2d 419, 424, 477 N.E.2d 441, 488 N.Y.S.2d 139 [1985]). Therefore, while the duty to defend is measured against the possibility of recovery, "the duty to pay is determined by the actual basis for the insured's liability to a third person" (id.). The party seeking a declaration of insurance coverage bears the burden of proving its entitlement to such coverage, and it is not entitled to coverage if not named as an insured or an additional insured on the face of the policy (National Abatement Corp. v National Union Fire

Ins. Co. of Pittsburgh, PA, 33 AD3d 570, 824 N.Y.S.2d 230 [1st Dept 2006]). An additional insured endorsement is an addition, rather than a limitation, of coverage (National Abatement Corp., 33 AD3d 570, 824 N.Y.S.2d 230, supra). "It is also true that plaintiff's burden on a motion for summary judgment is merely to raise a question of fact as to the coverage under the policy" (Kidalso Gas Corp. v Lancer Insurance Co., 21 AD3d 779, 781, 802 N.Y.S.2d 9 [1st Dept 2005]). The parties dispute both the meaning, and the application of the provisions of the Policy concerning officers, directors and shareholders. Plaintiffs argue that the motion should be denied because GNY has not has not provided evidence that Gottesman and Associates are not insureds. They also argue that the Cooperative Corporation, Associates and Gottesman have each been sued by the Tenant on identical, extremely broad grounds, rendering unpersuasive GNY's assertion that Associates and Gottesman are not being sued in particular roles. Plaintiffs further contend that Associates and Gottesman are insured under several theories. For instance, they argue that Associates may have been sued as the Cooperative Corporation's real [*11] estate manager, as Associates was the managing agent of the Cooperative Corporation from 1988 through April 2006. In support, plaintiffs submit Gottesman's affidavit in which he swears that during the period when Associates was the Cooperative Corporation's managing agent, its responsibilities included, among other things, locating and hiring tradesmen such as plumbers, electricians and carpenters, supervising the work of these tradesmen and purchasing building and/or maintenance supplies. Although the phrase "real estate manager" is not defined in the Policy, plaintiffs contend that a reasonable construction would include a person or business that manages, or conducts the business affairs of a residential rental or cooperative apartment building. It follows, plaintiffs argue, that to the extent that Associates is sued by the Tenant as an entity that managed and maintained the premises, such allegations are consistent with certain of Associates' responsibilities as the Cooperative Corporation's real estate manager. In her complaint, the Tenant alleged that her injuries were caused by the negligence of the defendants and their agents (Fried Aff., Exh. 21 [Amended Verified Complaint], 11 PP 23, 39). All of the defendants and their agents were sued concerning the operation, management, supervision and control of the premises. In addition, the Tenant alleged that the defendants, among other things, had a duty to maintain the Apartment in a safe condition, permitted the alteration of the Apartment to include the loft with a staircase, and the loft's construction, and were aware of and failed to take reasonable steps to repair and

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clear violations concerning the loft and staircase (Fried Aff., Exh. 32 [Amended Verified Complaint], PP 22, 32, 38, 44, 45). 11 Exhibit 21 to the Fried affidavit contains both the Tenant's original complaint, wherein only Associates and Gottesman were named, and her Amended Verified Complaint wherein the Cooperative Corporation was added as a defendant. In Morales v Allstate Insurance Company (170 A.D.2d 419, 419, 566 N.Y.S.2d 295 [1st Dept 1991]), the First Department interpreted an insurance policy which provided for coverage for the named insured's "real estate manager," a phase undefined in the policy. Stating that "any ambiguity in the insurance contract is to be resolved in favor of the insured," the Court found that the record demonstrated that the plaintiff, who managed a building on behalf of the title owner, was covered under the policy (id.). Although GNY disputes plaintiffs' assertion that Associates was the real estate manager for the Cooperative Corporation, arguing, based on her deposition testimony, that Fish Gottesman performed those management duties as vice president of the Cooperative Corporation, in light of Gottesman's sworn statement that Associates was the managing agent for the Cooperative Corporation, that issue is one of fact. Fish Gottesman's testimony is merely conflicting evidence, and GNY's motion is denied as to Associates. Plaintiffs urge that Associates is also entitled to coverage as a shareholder of the Cooperative Corporation. Plaintiffs interpret the Policy as insuring the Cooperative Corporation's shareholders, officers, and directors whenever their acts or omissions are such that the corporation is exposed to liability. Consistent with this interpretation, plaintiffs argue that, to the extent that Associates did something negligent in connection with a defect in the Apartment, it has exposed the Cooperative Corporation, the owner of the apartment, to liability as much as itself, and is therefore a covered entity under the Policy. [*12] To support this interpretation of the Policy, plaintiffs cite to several cases in which courts have interpreted liability insurance policies containing provisions similar to those here as providing coverage for the officers, directors and shareholders of corporations. In those cases, courts have generally interpreted such provisions providing coverage to officers or directors who were sued for acts or omissions related to their role with their respective corporations (see Zavota v Ocean Accident & Guarantee Corp., 408 F.2d 940 [1st Cir 1969]), or where shareholders or officers of corporations were sued because the corporations were no longer viable targets due to, for example, dissolution (see Turner & Ne-

wall, PLC v American Mutual Liab. Ins. Co., 1985 U.S. Dist. LEXIS 23777, 1985 WL 8056 [D DC 1985]; Employers Insurance of Wausau v Duplan Corp., 1999 U.S. Dist. LEXIS 15368, 1999 WL 777976 [SD NY 1999]). 12 12 Plaintiffs seek an overly expansive interpretation of Zavota (408 F.2d 940), in which an executive was sued for his conduct in operating a crane and the Court found that he was covered under the liability policy as an officer or director, despite that his conduct as a crane operator was not executive in nature. In discussing why a corporation might seek insurance for its executives, the Court discussed how a corporate officer is a likely target of litigation, and the purpose of the insurance is their protection. In Zavota, however, there was no dispute that the officer was acting on behalf of the corporation. Similarly, in Turner & Newall, PLC (1985 WL 8056, supra), the defendant-shareholder was sued in its capacity as shareholder because the better target for the tort claims had previously been dissolved. Although the court did not rely on an alter ego analysis, it mentioned that the shareholder provided evidence that the provision was developed to provide insurance for an officer sued as analter ego of the corporation. Generally a corporation's director or officer who takes part in the commission of a tort by the corporation may be held personally and individually liable for his or her participation in tortious acts even if he or she derived no personal benefit, or acted on behalf of and or in the name of the corporation (Haig, 4B Commercial Litigation in New York State Courts § 87:45.50 [West's NY Prac Series 2005 (2d ed), 2007 Pocket Part, at 50]). Officers and directors of residential cooperative corporations are, many times, building residents who serve as volunteers. 13 Thus, cooperative corporations, like other corporations that purchase commercial general liability policies providing coverage to officers, directors and shareholders, seek to protect these parties against certain risks that may arise by virtue of their position with, or conduct and duties on behalf of, the corporation. The Policy may be interpreted as providing coverage to an officer, director, or shareholder who is sued in relation to his or her conduct that is on behalf of the corporation, or inextricably linked to his or her duty, role or position on behalf of the corporation, or where a shareholder is targeted as an alter ego, or similarly targeted. 13 "The cooperative apartment regime . . . combines three forms of property interest: (1) a fee interest (obtained by the

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corporation),

and habitable condition. In addition, the complaint may also implicate duties that the Tenant was alleging Gottesman had as the president of the Cooperative Corporation to investigate and perhaps ensure the abatement of a potentially hazardous condition or violations about which he had knowledge. Thus, liberally construed, the Tenant's claim is within the embrace of the policy, despite that the allegations may ultimately be baseless.

(2) an ownership interest in personal property via stock ownership in such corporation, plus (3) a leasehold estate (obtained by shareholders). The realty relationship between a shareholder-proprietary tenant and the corporation is a landlord-tenant relationship. However, it differs from a traditional landlord-tenant relationship in that (a) the tenant is also partial owner of the corporation, and, to that extent, has a voice in management of the property . . . "

Plaintiffs' argument that Gottesman was the managing agent or real estate manager as the person that managed and maintained the Apartment on behalf of Associates, however, falls short as Gottesman swears in his affidavit that Associates was the managing agent. Although the primary policy provides coverage for the Cooperative Corporation's "real estate manager," there is nothing therein to indicate that also covered are the real estate managers' agents, employees or representatives.

(Di Lorenzo, New York Condominium and Coop. Law § 1:2) While Associates, as the Tenant's lessor, may also be liable to the Tenant, for its negligence, if any, based on that role, the allegations of the complaint are extremely broad, and may also [*13] implicate liability that the Tenant was alleging that Associates had as a shareholder for, as an example, not maintaining the premises in a safe

In light of the issues of fact, discussed above, concerning notice of the occurrence, which is a threshold issue concerning GNY's duty, if any, to defend or indemnify plaintiffs, GNY's motion for summary judgment may not be granted, and a declaration must await resolution of the issues of fact raised here. Accordingly, it is ORDERED that defendant's motion for summary judgment is denied.

43 of 55 DOCUMENTS [*1] Costantino Decorato, as Administrator of the Estate of CONSTANTINO DECORATO, deceased, and COSTANTINO DECORATO, individually, Plaintiffs, against Cozzoli Brothers, LLC, TELCO DISCOUNT OF AVENUE U, INC., and TASK FORCE SECURITY & INVESTIGATIONS, INC., Defendants. 39433/04 SUPREME COURT OF NEW YORK, KINGS COUNTY 2007 NY Slip Op 51347U; 16 Misc. 3d 1108A; 841 N.Y.S.2d 825; 2007 N.Y. Misc. LEXIS 4831 July 10, 2007, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS. CORE TERMS: security guard, landlord, lease, special employee, summary judgment, repair, issues of fact, tri-

able, manager, armed, front, supervisor, robbery, tenant, gun, matter of law, cross-claims, discount, leased, customer, cause of action, business hours, criminal activity, assailant, homicide, planned, station, shell, gates, rear HEADNOTES

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[**1108A] [***825] Workers' Compensation--Existence of Employer-Employee Relationship--Special Employee. Negligence--Duty--Premises Security. JUDGES: HON. Arthur M. Schack, J.S.C.

gent. With respect to defendant Cozzoli, there are no triable issues of fact. Cozzoli, the out of possession landlord, was not responsible for premises' security at 109 Avenue U. Cozzoli's motion for summary judgment is granted.

OPINION BY: Arthur M. Schack

Background

OPINION Arthur M. Schack, J. This action resulted from a brutal armed robbery and homicide at 109 Avenue U, Brooklyn, New York. The premises were then owned by defendant Cozzoli Brothers, LLC (Cozzoli), an out of possession landlord. Cozzoli leased the premises to defendant Telco Discount of Avenue U, Inc. (Telco), who operated a discount variety store at the Avenue U location. Telco contracted with defendant Task Force Security & Investigations, Inc. (Task Force) for security services, including the presence of a security guard at the store. It is uncontroverted that decedent Constantino Decorato (Tino), was shot in his stomach, inside the premises, by an unknown assailant during a robbery at approximately 7:00 P.M. on July 23, 2004. Tino died of his wounds later that evening. He was employed by T & E Stores, Inc. (T & E), Telco's parent company. Tino's estate sued defendants for negligent security and wrongful death, and his father sued for loss of his son's services. There are two motions before the Court. First, defendant Telco moves for summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all crossclaims against it, alleging that: Telco, as Tino's "special employer" granted death benefits to Tino's estate pursuant to the exclusive remedy of the Workers' Compensation Law; [*2] and, Telco cannot be responsible for an unforeseeable violent homicide. Defendant Cozzoli also moves for summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all cross-claims against it, alleging that as an out of possession landlord, and pursuant to the terms of its lease with Telco, it is not responsible for security at the premises and Tino's tragic death. In reviewing the facts in this case, and applying applicable law, the Court denies Telco's motion for summary judgment. Tino was not a "special employee" of Telco. Thus, Tino's estate has a cause of action against Telco. Telco assumed the duty of providing premises security, which appeared inadequate. Task Force's security guard disappeared during the July 23, 2004 tragic holdup and homicide. Once a party undertakes a duty, due care must be exercised. There are triable issues of fact as to whether Telco's attempts to provide security were negli-

According to the affidavit of Gerald Weinstein, T & E's Controller [exhibit A of Telco's motion], T & E is owned by two brothers, Ted and Elliott Serure. T & E operates seven stores in Brooklyn, Staten Island, and Queens. Three stores are directly operated by T & E, and the other stores are operated through subsidiaries, including Telco. Mr. Weinstein states in P 12 of his affidavit that "from a home office location at 6628 18th Avenue in Brooklyn, T & E uniformly provided payroll, insurance (including workers compensation insurance), financial, accounting, and organizational management to each of the three operating subsidiaries including Defendant Telco Discount of Avenue U." Mr. Weinstein makes it clear in his affidavit and in his EBT, pp. 14-22 [exhibit B of Telco's motion], that while Telco had its own regular staff, they were all paid by T & E. Further, T & E acquired all inventory for sale, paid all expenses, including the rent to Cozzoli, and contracted for an unarmed security guard with Task Force. Mr. Weinstein states, in P 23 of his affidavit, that "[e]ach and every cost of doing business of Telco Discount of Avenue U was paid by T & E, out of T & E's own bank account." He then declares, in P 5 of his affidavit attached to Telco's reply affirmation in support of the motion, that Telco is "essentially a corporate shell, all of whose affairs were operated and paid for by T & E." Additionally, Mr. Weinstein claims that Tino did not report to T & E, but to Telco's manager, Svetlana Makayev (Lana) and her assistant manager, Hussain Asmat. However, both Ms. Makayev and Ms. Asmat were T & E employees, like Tino. Ms. Makayev confirms that she was a T & E employee, at p. 7 of her EBT [exhibit C of Telco's motion]. Attached to Mr. Weinstein's affidavit is the New York State Workers' Compensation Board's Form C-2 incident report, prepared by Mr. Weinstein. Mr. Weinstein states that Tino's employer is "T & E Stores, Inc.," not Telco. Further, the nature of the injury was [*3] "gunshot wound to stomach." It states that at the time of the incident the employee was "lowering gates to front of store." In answer to "how did the accident or exposure occur," Mr. Weinstein stated: 3 armed, masked robbers forced Constantino Decorato back into the store. They ran down the steps to the basement.

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Our manager was in the office. She pressed the main panic button and summoned the police/EMS. Another employee Boris Dekhtyar was struck over the head with the assailant's gun. The assailant was forcing a customer and Mr. Decorato to the rear of the store with the gun in the back of the customer, when the gun went off grazing the customer and hitting Mr. Decorato. He died shortly after arriving at Coney Island Hospital. Police report No. UF61 64969. 62nd Precinct. [Sic]

According to the depositions of the store manager, Lana, and Tino's twin sister, Silvana Decorato (Silvana) [exhibit D of Telco's motion], a cashier at the store, each day at closing time the store followed various procedures, which included bringing into the store coin-operated kiddie rides about 30 minutes prior to closing, and then lowering various gates about 15 minutes prior to closing. Lana testified that Tino worked at the Avenue U store as the Receiving Manager [EBT at p. 59]. She testified that there was a central alarm system in her office, at the rear of the store [pp. 41-42]. She said, at p. 47, lines 11-13 that Task Force "had a guard stationed by the door, checking bags, overseeing the floor and making sure that everything goes smoothly." The guard usually was an unarmed, uniformed man named "Joseph" [pp. 47-49]. Tino's duties included assisting with closing procedures, making sure that customers left the store and bringing down and locking gates in the front of the store [p. 63]. At the time of the incident, Lana was behind a cash register when she saw fighting in the front of the store [pp. 71-72]. She stated at p. 71, l. 24-p. 72, l. 4, that "I was behind the register when I saw a fighting in front of the store [sic]. I believe there were three males wearing yellow rain jackets, masks on the faces and duct tape on them all, and I saw my boys were fighting with them." Lana described the three perpetrators as wearing black ski masks, having hoods covering their heads, and their mouths covered with duct tape [pp. 76-77]. Lana subsequently ran to her manager's office in the rear of the store, locked the door behind her, rang the alarm button and called the police [pp. 85- 88]. Lana testified, with respect to the actions of Joseph the security guard, at p. 102, l. 11-p. 103, l. 9: Q. Prior to seeing these criminals come

to the store and fight with the employees, when was the last time that you saw Joseph, the security guard? A. He was in the front, I saw him there. [*4] Q. Did you see Joseph before the criminals came into the store? A. Yes. Q. Did you see Joseph while the criminals were in the store? A. No. Q. What, if anything, was Joseph doing in the front of the store when you last saw him? A. Just standing there. Q. While you witnessed the fight, did you ever see Joseph? A. No. Q. While you were in the back of the manager's room, did you ever see Joseph? A. No.

Tino's sister, Silvana, testified in her EBT that she was a cashier at the time of the incident [p. 9]. When the three masked men entered the store, she first saw them in the front of the store beating a customer and then Boris, the stock boy [p. 16]. Silvana and the other cashiers went to the receiving room in the rear of the store to gain access to the basement [p. 34]. She was asked, at p. 34, l. 17, "Do you know where Lana was when these two people were beating Boris?" Silvana replied at p. 34, l. 19, "Hiding in the office." At the end of the incident, when emerging from the basement, she saw her brother Tino on the floor near the manager's office [pp. 42-43]. Tino was unresponsive to her, other than opening his eyes [pp. 45-46]. When asked about Joseph the security guard, at p. 66, lines 11-17, she testified: Q. The security guard who you said was upstairs when the incident took place, did he also join you downstairs? A. No. Q. Did you ever see him again after the incident when you came up? A. No.

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Mr. Weinstein, in P 29 of his affidavit in support of the motion, states that "[e]xcepting occasional surreptitious and non-violent shoplifting, there was no history of criminal activity whatsoever at the Avenue U Telco Stores location." In his reply affirmation in support of the motion, in P 8, plaintiff's counsel states that through the affidavit of Mr. Weinstein, and the EBT's of Mr. Weinstein, Lana, and Silvana, "there were no history of prior crime such as would be legally necessary to support the existence of a duty as claimed by Plaintiffs." Mr. Weinstein and plaintiff's counsel fail to mention United States v Skowronski, 968 F.2d 242 (2d Cir 1992), which affirmed the conviction of Richard Skowronski's violation of the Hobbs Act, 18 USC § 1951, for engaging in a conspiracy to obstruct, delay and affect commerce, by robbing the Telco Avenue U store, in which Tino was later killed. Skowronski, who was sentenced to 57 months imprisonment, was caught with his co-conspirators by the FBI through the use of court-authorized wiretaps. In describing the planned robbery, the Court said, at 244: [*5] [t]he evidence showed the following. In late 1989, Richard Skowronski, then a college student, worked part-time at the Telco Jewelry ("Telco") store on Avenue U in Brooklyn, New York. The store carried an inventory worth about $ 300,000; when closed, it was protected by security gates lowered over the door and display windows. From Thanksgiving through the end of the Christmas season, the store remained open until 9:00 p.m., and during evening business hours it was protected by security guards. The store was managed by Skowronski's mother. In addition to Skowronski and his mother, it employed three women, and the owner testified that store policy normally required that at least three employees be present at all times. Skowronski's mother, called to testify in his behalf, testified that at all times during the Christmas season there were at least four employees plus a guard in the store, and that at times the total rose to seven. While Skowronski and his co-conspirators were caught before the commission of the planned robbery, there were planning to use force if necessary. The Court held, at 249, that: [T]he evidence at trial included ample direct and circumstantial evidence that the

coconspirators had intended to be armed and to display guns when they robbed the Telco store. First, it was inferable that they planned to be armed from the fact that they knew that (a) noncooperating persons, i.e., persons other than Skowronski, would be present, and (b) the store employed security guards . . . Finally, in recorded conversations, Tinnirello and DiSomma [co-conspirators] discussed their possession of "murrays," a code word the jury could infer meant guns.

Defendant Cozzoli owned the 109 Avenue U premises where Telco ran its business. Robert Cozzoli, Cozzoli's Secretary, in his EBT [exhibit I of Cozzoli's motion] testified, at p.15, that Telco had rented the premises from the early 1980's. In his affidavit attached to Cozzoli's motion [exhibit J of Cozzoli'a motion], Mr. Cozzoli states that Cozzoli had no involvement with the operations of the Telco store and did not control or maintain security at the premises. The Lease in effect at the time of the incident was a standard store lease, giving possession to Telco. Under various clauses of the Lease, Cozzoli was not responsible for maintenance and repairs. § 48 of the Lease sated: Tenant at its own cost and expense is responsible for all maintenance and repairs for the leased premises including without limitation the heating, electrical, plumbing and mechanical systems, the roof and sidewalks. Landlord shall be responsible for all structural maintenance [*6] and repairs for the leased premises except for the roof, but Landlord must Tenant with the existing guaranty on the roof. Cozzoli, as landlord, could only enter the premises during reasonable business hours, except for an emergency. § 63 of Lease stated: In the event Landlord requires access to the premises, Landlord shall be permitted on the premises during reasonable business hours of Tenant except in the case of emergency where Landlord shall be permitted to enter the premises at such time as may be necessary. Where feasible, Landlord agrees to request access to the premises by Certified Mail to Tenant setting forth the date and time of such access.

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Telco. This allows [*7] plaintiffs to pursue their causes of action against Telco. § 8 of the Lease provides that "Owner or its agent shall not be liable . . . for any injury or damage resulting from any cause of whatsoever nature, unless caused by or due to the negligence of Owner, its agents, servants or employees." § 43 of the Lease states, "Tenant shall indemnify and hold harmless the Landlord from and against any and all claims, suits . . . to persons or property which may result from the use, occupancy, operation or maintenance of the demised premises." Summary Judgment Standard 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. See Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986); Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 A.D.2d 648, 649, 444 N.Y.S.2d 305 (3rd Dept 1981); Greenberg v Manlon Realty, 43 A.D.2d 968, 969, 352 N.Y.S.2d 494 (2nd Dept 1974); Winegrad v New York University Medical Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985). CPLR 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 N.Y.2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 (1979). The decedent was not a "special employee" of Telco In examining the evidence in the light most favorable to the non-movant plaintiffs, there are triable issues of fact with respect to whether defendant Telco was negligent in providing security at the store for its failure to provide due care. Before analyzing that issue, the Court determines that Tino was not a "special employee" of

It is undisputed that Tino's estate received funeral benefits from the New York State Workers' Compensation Board. Martin Minkowitz in his Practice Commentaries (McKinney's Cons Laws of NY, Book 64 WCL § 29) explains that "[a]n employee cannot sue his employer or a fellow employee for an accidental injury, which arose out of and in the course of the employment. This is prohibited by the exclusive remedy doctrine (see §§ 11 and 29 (6) WCL)." Telco claims that Tino was its "special employee" and the Workers' Compensation benefits received through T & E as Tino's "general employee," were the exclusive remedies available by decedent's estate and father against Telco. The Court of Appeals, in Thompson v Grumman Aerospace Corporation, 78 N.Y.2d 553, 585 N.E.2d 355, 578 N.Y.S.2d 106 (1991), analyzed the distinctions between a "general employee" and a "special employee." The court, at 557, instructed that: We have consistently found as a general proposition that a general employee of one employer may also be in the special employ of another, notwithstanding the general employer's responsibility for payment of wages and for maintaining workers' compensation and other employee benefits (Stone v Bigley Bros., 309 NY 132, 127 N.E.2d 913; Irwin v Klein, 271 NY 477, 3 N.E.2d 601; Murray v Union Ry. Co., 229 NY 110, 112-113, 127 N.E. 907; Matter of Schweitzer v Thompson & Norris Co., 229 NY 97, 99, 127 N.E. 904; see also, Cameli v Pace Univ., 131 A.D.2d 419, 516 N.Y.S.2d 228). A special employee is described as one who is transferred for a limited time of whatever duration to the service of another (Brooks v Chemical Leamon Tank Lines, Inc., 71 A.D.2d 405, 407, 422 N.Y.S.2d 695). General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer (Stone v Bigley Bros., supra, at 140-143 [and cases cited therein]; Sweet v Board of Educ., 290 NY 73, 76-77, 48 N.E.2d 266; Irwin v Klein, supra, at 484-485; Ramsey v New York C.R. Co., 269 NY 219, 224, 199 N.E. 65). [Emphasis added]

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Further, the Thompson v Grumman Court instructed, at 557-558, that "the determination of special employment status may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact." In the instant action, it is crystal clear that Tino was always under the control of T & E and reported to a T & E supervisor. It is undisputed that all the employees working at the Telco store on Avenue U were employed by T & E, not Telco. Tino reported to his manager, Lana, also an employee of T & E. T & E's Controller, Mr. Weinstein, declared in P 5 of his affidavit attached to Telco's reply affirmation in support of the motion, that Telco is "essentially a corporate shell, all of whose affairs were operated and paid for by T & E." Tino was never lent to Telco and therefore was not a "special employee" of Telco, the "corporate shell," set up to limit T & E's liability at the 109 Avenue U store. [*8] Telco has failed to clearly demonstrate that T & E surrendered control of Tino and that Telco assumed control of Tino. See Kramer v NAB Constr. Corp., 250 A.D.2d 818, 671 N.Y.S.2d 1015 (2d Dept 1998); Martin v Baldwin Union Free School Dist., 271 A.D.2d 579, 706 N.Y.S.2d 712 (2d Dept 2000); Hintze v Brookhaven Nat. Laboratory, 278 A.D.2d 456, 718 N.Y.S.2d 406 (2d Dept 2000). The Appellate Division, Second Department, in Marrero v Akam Associates, LLC, 39 A.D.3d 716, 717, 834 N.Y.S.2d 285 (2007), held that "the key to the determination of whether a special employment relationship exists is who controls and directs the manner, details, and ultimate result of the employee's work (see Thompson v Grumman Aerospace Corporation, supra at 558; Martin v Baldwin Union Free School Dist., supra)." In Thompson v Grumman, David Thompson, a sheet metal mechanic, was employed by ATS, which provided employees to Grumman. ATS paid Thompson and billed Grumman, pursuant to a written agreement. Thompson acknowledged that Dan Schmidt, a Grumman supervisor, directed his work. After being injured at Grumman's Bethpage, New York plant, Thompson received workers' compensation benefits based upon his ATS employment. Thompson sued Grumman for negligence. Grumman claimed that Thompson was its "special employee." Ultimately, Grumman prevailed in the Court of Appeals, with the Court finding, at 558-559, that while ATS paid Thompson and provided benefits to him: [a]ll essential, locational and commonly recognizable components of the work relationship were between Thompson and Grumman. As soon as ATS hired Thompson, it permanently assigned him exclusively to Grumman's plant on a fulltime basis for the entire year prior to the

work-related accident at Grumman's facility. Thompson considered a Grumman supervisor to be his boss and he knowingly accepted the terms of his exclusive work at Grumman; thus, he was aware of and consented to his special employee status . . . He reported daily to this Grumman supervisor only, who regularly directed, instructed, assigned, supervised and controlled his work duties. The work Thompson performed was solely in furtherance of Grumman's business at its facility. He was recruited and hired by ATS solely to meet Grumman's specified employee needs. He could not be reassigned by ATS and his assignment to Grumman could be terminated only by Grumman.

In the instant action, Tino reported to a T & E supervisor, Lana, who controlled and directed his work duties. He worked at Telco to further the needs of T & E. T & E had the power to reassign Tino and terminate Tino. Telco had no supervisors present at the Avenue U location. In fact, Telco, the "corporate shell," had no employees. T & E owned Telco and created it to limit its liability at the Avenue U location. Thus, Telco cannot be the "special employer" of Tino or any of the other T & E employees at the Telco store. There are no triable issues of fact as to whether Tino was Telco's "special employee." Tino, as a matter of law, was not a "special employee" of Telco. He was only [*9] a "general employee" of T & E. See Schramm v Cold Spring Harbor Laboratory, 17 AD3d 661, 793 N.Y.S.2d 530 (2d Dept 2005); Alvarez v Cunningham Assocs., L.P., 21 AD3d 517, 800 N.Y.S.2d 730; Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003, 821 N.Y.S.2d 268 (2d Dept 2006). Therefore, plaintiffs are not precluded by the Workers' Compensation Law from suing Telco. Triable issues of fact about premises security provided by Telco With respect to Telco's attempts to provide security at the premises, there are triable issues of fact as to whether Telco, the lessee in possession, had a duty to provide security because of its knowledge of prior criminal activity at the premises. Further, in providing security personnel for the premises, there are triable issues of fact as to whether Telco provided premises security with due care. T & E's Controller, Mr. Weinstein, testified to "occasional and surreptitious non-violent shoplifting" at the premises. Interestingly, Mr. Weinstein and T & E's coun-

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sel failed to present the Court with any knowledge of the planned armed robbery of the premises by Richard Skowronski and his criminal cohorts. The Court, in United States v Skowronski, supra, at 244, noted that the store was protected "by security guards," as opposed to the one security guard, Joseph, who disappeared during the instant incident. Further, at 249, the Court held that "the coconspirators had intended to be armed and to display guns when they robbed the Telco store." In Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606 (1980), the plaintiff was shot in the back by an unknown assailant while signing a guest register at an unattended desk at about 7:15 P.M. in a midtown Manhattan office building owned and operated by defendants. Usually an attendant would be present at the desk, but that evening the attendant was performing janitorial duties somewhere else in the building. Supreme Court, Nassau County dismissed plaintiff's negligent security claim, and the Appellate Division, Second Department affirmed. The Court of Appeals reversed, finding that plaintiff had made a prima facie case for negligence, reinstated the complaint and ordered a new trial. The plaintiff had presented evidence of prior criminal activity in the building. The Court held, at 519520: Although there was no indication in the record that any of these crimes took place in the lobby area, where plaintiff Nallan was shot, a rational jury could have found from the history of criminal activity in the other parts of the building that a criminal incident in the lobby was a significant, foreseeable possibility. If the jury found that defendants knew or had reason to know of the prior crimes in the building and further found that defendants should have anticipated a risk of harm from criminal activity in the lobby, it properly could have gone on to conclude that defendants failed in their obligation to take reasonable precautionary measures to minimize the risk and make the premises safe for the visiting public.

Further the Nallan Court, at 520-522, on the subject of undertaking a duty to [*10] provide security, noted that if the possessor of the premises voluntarily provided a security guard, the possessor of the premises may be liable for either the absence of the security guard or the negligent performance of the security guard. During the incident resulting in Tino's homicide, Telco's security guard disappeared.

The eminent legal scholar, Judge Benjamin N. Cardozo, in Glanzer v Shepard, 233 NY 236, 239, 135 N.E. 275 (1922), instructed that, "[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." The Nallan Court, at 522, noted that the formula for determining when "one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully" was "articulated by Chief Judge Cardozo as follows" in H. R. Moch Co. v Rensselaer Water Co., 247 NY 160, 167-168, 159 N.E. 896 (1928): If conduct has gone forward to such a stage that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward . . . The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good. See Kaplan v Dart Towing, 159 A.D.2d 610, 612, 552 N.Y.S.2d 665 (2d Dept 1990); Gordon v Muchnick, 180 A.D.2d 715, 579 N.Y.S.2d 745 (2d Dept 1992); Alvino v Lin, 300 AD2d 421, 751 N.Y.S.2d 585 (2d Dept 2002); Mirza v Metropolitan Life Ins. Co., 2 AD3d 808, 809, 770 N.Y.S.2d 384 (2d Dept 2003); Vetrone v Ha Di Corp., 22 AD3d 835, 837, 803 N.Y.S.2d 156 (2d Dept 2005); Demshick v Community Housing Management Corp., 34 AD3d 518, 520, 824 N.Y.S.2d 166 (2d Dept 2006). The Court of Appeals in Parvi v City of Kingston, 41 N.Y.2d 553, 559, 362 N.E.2d 960, 394 N.Y.S.2d 161 (1977), held that "[t]he case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v Nambil Realty Co., 245 NY 256, 258, 157 N.E. 129; Glanzer v Shepard, 233 NY 236, 239, 135 N.E. 275; Zelenko v Gimbel Bros., 158 Misc 904, 287 N.Y.S. 134, affd 247 AD 867, 287 N.Y.S. 136)." See Fonville v N.Y. City Health and Hosps. Corp., 300 A.D.2d 623, 624, 754 N.Y.S.2d 295 (2d Dept 2002); Kowal v Deer Park Fire Dist., 13 AD3d 489, 787 N.Y.S.2d 352 (2d Dept 2004); Bryant v State, 23 A.D.3d 592, 593, 805 N.Y.S.2d 634 (2d Dept 2005). It is clear that Telco undertook affirmative action to provide a security guard at its 109 Avenue U store. However, a thorough review of the moving papers

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leaves the Court with triable issues of fact. What happened to Joseph the security guard during the July 23, 2004 crime? Where did Joseph go? Did Telco provide security at 109 Avenue U with due care? Telco, in providing a security guard at the premises, should have heeded the Court's admonition in Gross v Empire State Bldg. Assocs., 4 AD3d 45, 46, 773 N.Y.S.2d 354 (1st Dept 2004): We live in an uncertain and sometimes unpredictable world seemingly filled with daily reports of random acts of violence, [*11] including bombings, shootings and mayhem on our public streets, in work sites, post offices, fast food restaurants, federal office buildings, schools, subways and commuter trains and, of course, the World Trade Center . . . Security has become a pervasive aspect of everyday life.

Cozzoli is not liable for premises' security It is clear from the Lease between defendant Cozzoli, the landlord, and defendant Telco, the commercial tenant, that Cozzoli is out of possession. Pursuant to the Lease, Cozzoli reserved rights to enter for structural repairs only during business hours and where feasible after requesting access by certified mail, or could enter during an emergency. Telco was responsible for most maintenance and repairs. Absent a statutory duty, the fact that Cozzoli had reserved its right to inspect and repair is not enough to make Cozzoli liable for the July 23, 2004 tragedy. Less than two months ago, in Nikolaidis v La Terna Restaurant, 40 AD3d 827, 835 N.Y.S.2d 726 (2d Dept 2007), the Court held that, "[a]n out-of-possession property owner is not liable for injuries that occur in the property unless the owner has retained control over the premises or is contractually obligated to perform maintenance and repairs." Further, the Court instructed, the "[r]eservation of a right to enter the premises for purposes of inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition, but only where the condition violates a specific statutory provision and there is a significant structural or

design defect." There is no way that Cozzoli could be liable for negligent security at the premises. Cozzoli was not under any statutory duty to provide security. See Scott v Bergstol, 11 AD3d 525, 782 N.Y.S.2d 793 (2d Dept 2004); Couluris v Harbor Boat Realty, Inc., 31 AD3d 686, 820 N.Y.S.2d 282 (2d Dept 2006); Ever Win, Inc. v 1-10 Industry Assoc., LLC, 33 AD3d 845, 827 N.Y.S.2d 63 (2d Dept 2006); Lindquist v C & C Landscape Contractors, Inc., 38 AD3d 616, 831 N.Y.S.2d 523 (2d Dept 2007). The fact pattern in Hepburn v Getty Petroleum Corp., 258 A.D.2d 504, 684 N.Y.S.2d 624 (2d Dept 1999), is similar to the instant case. Plaintiff Hepburn was the employee of Twenty Gas, Inc., which leased a gas station from defendant Shekel Enterprises, Inc. Hepburn was injured during an armed robbery of the gas station. The lease between Twenty Gas and Shekel provided that Twenty Gas would make repairs and maintain the station. Shekel, the out of possession landlord, retained the right to enter the premises to inspect and make repairs if Twenty Gas failed to do so. Supreme Court, Kings County granted summary judgment to Shekel. In affirming the Supreme Court, the Appellate Division, Second Department, stated: The Supreme Court properly granted Shekel's motion for summary judgment dismissing the complaint insofar as asserted against it since it was an out-of-possession landowner and was not obligated under the lease to maintain the premises (see, Stark v Port Auth., 224 A.D.2d 681, 682, 639 N.Y.S.2d 57) . . . Here there is no evidence of a specific [*12] statutory violation or a structural or design defect. There was also no evidence that Shekel was involved in the daily operations of the gas station. See Carvano v Morgan, 270 A.D.2d 222, 703 N.Y.S.2d 534 (2d Dept 2000); Jackson v U.S. Tennis Ass'n., Inc., 294 A.D.2d 470, 742 N.Y.S.2d 374 (2d Dept 2002); Roveto v VHT Enters., Inc., 17 AD3d 341, 791 N.Y.S.2d 843 (2d Dept 2005); Yadegar v International Food Market, 37 AD3d 595, 830 N.Y.S.2d 244 (2d Dept 2007); Rhian v PABR Associates, LLC, 38 AD3d 637, 832 N.Y.S.2d 590 (2d Dept 2007). Cozzoli established its prima facie entitlement to summary judgment and dismissal of the complaint and all cross-claims against it by demonstrating that it relinquished control of the leased premises to Telco, and that no statutory violations existed. In opposition, plaintiffs failed to demonstrate the existence of issues of material

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fact with respect to Cozzoli as the out of possession landlord bearing any responsibility for premises' security. Conclusion

ORDERED that defendant Cozzoli Brothers, LLC's motion for summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all cross-claims against it is granted.

Accordingly, it is

This constitutes the decision and order of the court.

ORDERED that defendant Telco Discount of Avenue U, Inc.'s motion, for summary judgment, pursuant to CPLR Rule 3212, dismissing the complaint and all crossclaims against it, is denied; and it is further

ENTER HON. ARTHUR M. SCHACK J.S.C.

44 of 55 DOCUMENTS [*1] Alexander Cohen, Plaintiffs, against Cablevision Systems Corporation, Cablevision Systems Westchester Corporation and 3432 Lex Corp., Defendants. 007294/05 SUPREME COURT OF NEW YORK, NASSAU COUNTY 2007 NY Slip Op 50791U; 15 Misc. 3d 1121A; 839 N.Y.S.2d 432; 2007 N.Y. Misc. LEXIS 2501; 237 N.Y.L.J. 90 April 10, 2007, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

OPINION BY: John M. Galasso OPINION

CORE TERMS: ladder, tenant's, cable, summary judgment, customer, common law, installation, exterior, overhang, hook, flat, utility pole, permission to use, cause of action, constructive notice, cross-claims, supervised, alteration, installed, purported, installer, cross-motion, junction, scaffold, foreseen, slipped, street, laying, awning, unsafe HEADNOTES [**1121A] [***432] Labor--Safe Place to Work. COUNSEL: Stewart M. Dweck, Esq., Attorney for Plaintiff, New York, NY. William J. Fitzpatrick, Esq., Goldberg Segalla, LLP, Attorneys for Defendant Cablevision, Smithtown, NY. Marc H. Pillinger, Esq., Kuczinski Vila Trallo Pillinger & Miller LLP, Attorneys for Defendant, Elmsford NY. JUDGES: John M. Galasso, J.

John M. Galasso, J. On November 5, 2004 while installing residential cable service, plaintiff fell off a ladder from a height of approximately 11 to 12 feet and was injured. According to plaintiff, an employee of third-party defendant AM Broadband LLC (Broadband), a subcontractor for CSC Holdings, Inc., s/h/a Cablevision Systems Corporation (Cablevision), he first evaluated the job and determined that he would need to install a hook and run a line on the utility pole across the street, drill a hole through the second floor exterior of the building and then run the line into the interior to a customer's apartment. Thereafter, he planned to attach the utility pole line to the building's junction box. Using a ladder provided by his employer, he first attached a "J" hook to the utility pole. Leaving that ladder behind, he then crossed back to the building and asked the customer if he could use a second ladder which happened to be laying flat on an overhang at the rear of

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the building. There was a four-foot deep awning attached to the side of the building over the first floor and plaintiff set up the second ladder at an angle to accommodate it. After climbing about four or five rungs from the top of the ladder, it "slipped out" and plaintiff fell. Plaintiff explains the reason he used two ladders was to minimize the time that he would have to stop traffic with safety cones in order to hook up the cable line from across the street to the newly installed exterior junction box. Section § 240(1) of the Labor Law imposes absolute liability upon owners, contractors or their agents for violations the statute. The comparative fault of a worker is not at issue (Haimes v. New York Telephone Co., 46 N.Y.2d 132, 385 N.E.2d 601, 412 N.Y.S.2d 863). Plaintiff's expert safety engineer opines that plaintiff was not provided with proper protection because the job required two workers and a personal lift or scaffold. Therefore Broadband was in violation of Industrial Code sections 23-1.21(b)(4)(ii), (iv) and (v) (see Brown v. Concord Nurseries, 37 AD3d 1076, 829 N.Y.S.2d 782). Turning first to defendant 3432 Lex Corp., the owner of the building and its summary judgment motion to dismiss the entire complaint, its principal, John Boggi, testified that the corporation owned an aluminum ladder with swivel metal feet with a rubber base. It was kept on a flat roof in the rear of the building and the tenants were specifically told not to touch the ladder. He explained he did not know the person listed on plaintiff's work order, the purported customer, and did not have any knowledge cable was being installed. Lex Corp.'s approval was not obtained by the tenant and no one had permission to use the ladder. Lex's Corp.'s motion to dismiss plaintiff's labor Law § 240(1) cause of action is granted. As owner of the premises it had no nexus to plaintiff's work. Plaintiff was on the owner's property by virtue of Public Services Law § 211 which prohibits a landlord from interfering with cable [*2] television installation. Because of the statute, this defendant cannot be charged with the duty of providing the safe working conditions mandated under Labor Law § 240(1) (Abbatiello v. Lancaster Studio Associates, 3 N.Y.3d 46, 814 N.E.2d 784, 781 N.Y.S.2d 477). The same logic must hold true for actions brought pursuant to Labor Law § 241(6).

With respect to plaintiff's claims of a violation of Labor Law § 200 and ordinary negligence, there is no evidence whatsoever that defendant or its agent directed, controlled or supervised the work. Further there was no contractual relationship between Lex Corp. and the other defendants. Plaintiff's negligence claim is based upon defendant having actual or constructive notice of the alleged unsafe condition, i.e., the defective ladder which was provided to him by a purported tenant. Plaintiff admits the ladder was laying flat on top of a large overhang in the back of the building and when he asked if he could use it the customer said "no problem." However, it is uncontested that defendant Lex Corp. warned the tenants not to place anything on the roof or to use the ladder. Even if defendant's ladder was defective or unsafe, the inquiry regarding foreseeability must also be viewed with the query of was plaintiff's injury was produced solely by a self-operating, intermediary cause disconnected from defendant's action (see Milwaukee & S.P.R. Co. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256). If the intervening act was one that could reasonably be foreseen by defendant, defendant may still be subject to liability (e.g., Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 626 N.E.2d 912, 606 N.Y.S.2d 127). The Court determines as a matter of law under the facts presented that defendant could not have foreseen his tenant or someone on the tenant's behalf would give a cable installer permission to use the ladder which he kept above a one-story overhang and the installer would then employ it in place of the ladder provided to him by his employer to gain access to an exterior wall above the four-foot deep awning. Reasonable foresight, not prophetic vision, is the measure of responsibility (Cartee v. Saks Fifth Avenue, 277 A.D. 606, 609, 101 N.Y.S.2d 761). Accordingly, defendant's motion is granted regarding Labor Law § 200 and common law negligence and plaintiff's complaint against 3432 Lex Corp. and all cross-claims are dismissed. Defendant Cablevision also opposes plaintiff's motion for summary judgment under Labor Law § 240(1) and cross-moves for summary judgment under Labor Law § 200, § 240(1), § 241(6) and common law negligence. [*3] Cablevision's motion for summary judgment under Labor Law § 200 and common law negligence is granted

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and that cause of action and any cross-claims are dismissed. There is no evidence Cablevision directed, supervised or controlled the method or manner of plaintiff's work or was otherwise negligent by having actual or constructive notice of the alleged dangerous condition (Dupkanicova v. Vasiloff, 35 AD3d 650, 829 NYS2d 133; Pilch v. Board of Education of the City of New York, 27 AD3d 711, 815 N.Y.S.2d 617).

NYS2d 484; see Sztachanski v. Morse Diesel International, 9 A.D.3d 457, 780 N.Y.S.2d 367; Urias v. Orange County Agricultural Society, 7 AD3d 515, 776 N.Y.S.2d 92; see also Makaj v. Metropolitan Transportation Authority, 18 AD3d 625, 796 NYS2d 621; e.g. Canino v. Electronic Technologies Company, 28 AD3d 932, 813 N.Y.S.2d 557). Both plaintiff's motion and Cablevision's cross-motion on the § 240(1) claim are denied.

Turning to Cablevision's cross-motion pursuant to Labor Law § 240(1), the Court first must determine if plaintiff's work is of the kind covered under this section. The Court concludes it is. 12 N.Y.C.R.R. § 23-1.4(b)(13) defines construction work as including alteration work. Altering requires a plaintiff to make a significant physical change to the "configuration or composition" of the building and does not encompass mere maintenance (e.g., Joblon v. Solow, 91 N.Y.2d 457, 695 N.E.2d 237, 672 N.Y.S.2d 286 - the installation of a clock; Enge v. Ontario County Airport, 26 AD3d 896, 809 N.Y.S.2d 345 - telephone installation; compare Abbatiello v. Lancaster Assoc., supra).

Regarding the § 241(6) claim, as determined above plaintiff was involved in alteration work which is a covered activity. The factual issue remains as to whether the ladder provided to plaintiff by his employer was suitable to perform the work or some sort of scaffold was needed in violation of the Industrial Code.

Issues of fact remain, however, as to whether plaintiff's choice to use another ladder was the sole proximate cause of his injuries in light of Cablevision's expert affidavit that the ladder supplied by Broadband was adequate to safely perform the job (Blake v. Neighborhood Housing Services, 1 NY3d 280, 803 NE2d 757, 771

The remainder of plaintiff's motion is denied.

Whether the ladder slipped or the wind knocked him off has little relevance to this motion but may be raised at trial as evidence of plaintiff's inconsistent statements (see Curte v. City of New York, 21 AD3d 1050, 801 N.Y.S.2d 154).

Plaintiff and Cablevision are directed to appear at the DCM Pre-Trial Conference on MAY 8, 2007. [*4] Dated: April 10, 2007

45 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 [*1] Devon Neil, Plaintiff, against New York City Housing Authority and THE CITY OF NEW YORK, Defendants. 36847/04 SUPREME COURT OF NEW YORK, KINGS COUNTY 2007 NY Slip Op 50698U; 15 Misc. 3d 1115A; 839 N.Y.S.2d 434; 2007 N.Y. Misc. LEXIS 1763; 237 N.Y.L.J. 72 April 4, 2007, Decided NOTICE:

THIS OPINION IS UNCORRECTED

AND WILL NOT BE PUBLISHED IN THE PRINTED

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OFFICIAL REPORTS. SUBSEQUENT HISTORY: Affirmed by, in part Neil v. New York City Hous. Auth., 2008 N.Y. App. Div. LEXIS 1702 (N.Y. App. Div. 2d Dep't, Feb. 26, 2008) CORE TERMS: tenant, assailant, summary judgment, landlord, criminal activity, assault, vestibule, notice, cause of action, persistent, drug activities, common-law, security measures, deposition testimony, deposition, causal, criminal acts, causal relationship, time limit, assaulted, entrance, shooting, untimely, triable, selling, failure to act, tortious acts, unlawful use, proprietary capacity, failure to state HEADNOTES [**1115A] [***434] Negligence--Maintenance of Premises--Criminal Acts of Third Parties. Real Property Law--§ 231 (2) (Liability of landlord where premises are occupied for unlawful purpose). Civil Practice Law and Rules--§ 3211 (c) (Motion to dismiss; motion treated as one for summary judgment). COUNSEL: Plaintiff was represented by Robert C. Fontanelli, Esq. of Rayo & Fontanelli, P.C. Defendant NYCHA was represented by Natasha L. Nordahl, Esq. of Lester Schwab Katz & Dwyer, LLP. The City was represented by Joseph Salvo, Esq. of the Corporation Counsel of the City of New York. JUDGES: Jack M. Battaglia, Justice. OPINION BY: Jack M. Battaglia OPINION Jack M. Battaglia, J. On May 20, 2004, Plaintiff, who was visiting his mother at 303 Vernon Avenue, allegedly sustained personal injuries when he was assaulted by an unidentified tenant in the public vestibule of the building. Plaintiff commenced the instant action against NYCHA and the City of New York on theories of negligent premises security and violation of Real Property Law § 231(2). NYCHA's Motion for Summary Judgment NYCHA contends that it is entitled to summary judgment dismissing Plaintiff's claim of negligent premises security because Plaintiff's assailant was a tenant at 303 Vernon Avenue and the attack occurred in the public vestibule area. In support of its motion, NYCHA submits, among other things, Plaintiff's Bill of Particulars

in which Plaintiff alleges that his assailant was a tenant of the building. NYCHA also proffers the transcripts of Plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h and at his examination before trial, to the effect that Plaintiff's assailant was a tenant and that the attack occurred in the vestibule of the building, which was open to the public. [*2] "It is well established that a landlord's duty to maintain his property in a safe condition includes the taking of minimal precautions to protect against the reasonably foreseeable criminal acts of third persons." (Maria S. v Willow Enterprises, Inc., 234 A.D.2d 177, 178, 651 N.Y.S.2d 486 [1st Dept. 1996].) This duty of care applies to government entities acting in their proprietary capacity as landlords. (See Venetal v City of New York, 21 AD3d 1087, 1088, 803 N.Y.S.2d 609 [2d Dept 2005].) The duty extends not only to the tenants of the premises, but also to their guests. (See Novikova v Greenbriar Owners Corp., 258 A.D.2d 149, 151, 694 N.Y.S.2d 445 [2d Dept 1999].) "In premises security cases particularly, the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance." (Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 550, 706 N.E.2d 1163, 684 N.Y.S.2d 139 [1998].) As such, Plaintiff may recover only if the assailant was an intruder. (See id.; Provenzano v Roslyn Gardens Tenants Corp., 190 AD2d 718, 719, 593 N.Y.S.2d 80 [2d Dept 1993] [summary judgment granted where assailant was a house guest of a resident]; Carmen P. v PS&S Realty Corp., 259 A.D.2d 386, 388, 687 N.Y.S.2d 96 [1st Dept 1999] [in a negligent security claim, Plaintiff must "present evidence from which intruder status may reasonably be inferred"]; see also Venetal v City of New York, 21 AD3d 1087 at 1089-90, 803 N.Y.S.2d 609.) Moreover, it has been held that a landlord has no duty to an injured plaintiff where the crime at issue occurs in an outdoor common area, or an area that is necessarily accessible to the public, such as an entrance vestibule. ( See Novikova v Greenbriar Owners Corp., 258 A.D.2d at 155; Concepcion v NYCHA, 207 A.D.2d 857, 857, 616 N.Y.S.2d 986 [2d Dept 1994].) NYCHA, therefore, has established prima facie its entitlement to judgment as a matter of law on Plaintiff's negligent premises security claim. In opposition, Plaintiff does not dispute that his assailant was a tenant of the building or that the alleged criminal act occurred in a public entrance vestibule. Accordingly, that branch of NYCHA's motion seeking dismissal of Plaintiff's claim insofar as it alleges negligent premises security must be

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granted. NYCHA also contends that it is entitled to summary judgment dismissing Plaintiff's claim under Real Property Law § 231(2), which "imposes joint and several liability on a property owner who knowingly leases or gives possession of property to a tenant to use the premises unlawfully, or permits such unlawful use." (See Maria S. v Willow Enterprises Inc., 234 A.D.2d at 178.) "A cause of action is stated if plaintiff alleges that the landlord was given notice of persistent criminal activity on the premises creating the likelihood of injury to others and further demonstrates a causal relationship between the complained-of-activities and plaintiff's injuries." (Luisa R. v City of New York, 253 A.D.2d 196, 202, 686 N.Y.S.2d 49 [1st Dept 1999].) The statute is not limited "to mandating the removal only of identified tenants or other identified occupants." (Id. [emphasis in original].) In support of its motion, NYCHA proffers the affidavit of its current employee Winnifred Quinton and the deposition testimony transcript of its former employee Pradip Singh. As will be demonstrated, Mr. Quinton's affidavit lacks foundational support and is without any probative [*3] value. Mr. Singh's testimony does not help NYCHA, in that it demonstrates that NYCHA had received complaints of criminal activity on the premises and did nothing to stop it. In his affidavit, Mr. Quinton avers that he is currently the Development Manager of the NYCHA Sumner Houses Development, which includes the subject building at 303 Vernon Avenue. Mr. Quinton avers that it is NYCHA's business practice to enter all maintenance and repair issues into a computerized work ticket system, and that no entries exist regarding the vestibule area of the subject building. Mr. Quinton also avers that he searched for records of assaults in the front vestibule area of the subject building between the dates of May 20, 2003 and May 20, 2004, and that there was no record of an assault in the vestibule during that period. Although Mr. Quinton is currently the Development Manager, he does not make any statement regarding his familiarity with NYCHA's record-keeping practices during the relevant time period in 2003 and 2004. Mr. Quinton's affidavit does not state whether NYCHA ever kept records of assaults in the normal and regular course of business during the relevant time period, nor any other facts that would allow an inference that the absence of a record of an assault would indicate the absence of a report of an assault. Since Mr. Quinton's affidavit lacks any foundational support, it is without any probative value. (Cf. Carrion v McNally & McNally, 18 AD3d 212, 212, 794 N.Y.S.2d 339 [1st Dept 2005].) NYCHA also submits the deposition testimony tran-

script of its former employee Pradip Singh, who was a Housing Assistant for the subject building from September 8, 2003 through December 9, 2004. As part of his duties, he would handle tenant complaints, and go to court for nonpayment or any type of evictions. Mr. Singh testified that, whenever he received a tenant complaint, he would make a notation in the tenant's folder, and would mention such complaint to management. Also as part of his duties, he would conduct inspections of the exterior of the premises. When asked whether he had knowledge of any kind of history of violent crime in front of the building, Mr. Singh testified that he believed that there had been a shooting incident in 2004. He testified that he learned about the shooting incident when a tenant complained about it. He then noted the complaint in an interview record. He testified that in response to the complaint, management did "nothing, because they are non-tenants." Mr. Singh also testified that Plaintiff's mother, Ms. Belnavis, spoke with him prior to the subject assault regarding her request to transfer to another building. Mr. Singh testified further that, prior to Plaintiff's assault on May 20, 2004, he observed groups of tenants hanging outside the building, although he never witnessed people selling any drugs. Significantly, Mr. Singh admitted that tenants called him to complain that people were selling drugs in the building. Between January and the date of the incident, Mr. Singh estimated that he received less than 10 such complaints regarding drug activities. He told the tenants who complained that they should call the police and file a report. Mr. Singh testified that he had no personal awareness regarding any threats made towards Plaintiff in 2003 or 2004. [*4] In Beatty v NAACP (194 A.D.2d 361, 364, 599 N.Y.S.2d 13 [1st Dept. 1993]) and Simmons v City of New York (168 A.D.2d 230, 230, 562 N.Y.S.2d 119 [1st Dept 1990]), the First Department held that, where it is alleged that a landlord was repeatedly given notice that there was criminal activity on the premises and took no action to stop it, it is a question for the jury whether the landlord's failure to act may serve as a predicate for liability for the tortious acts connected with the illegal activity. TheSimmons case does not make any distinction in the application of said principle to a common-law claim for failure to maintain minimal security precautions and a statutory claim under Real Property Law § 231(2). The Court is aware that Simmons cites Muniz v Flohern (155 A.D.2d 172, 553 N.Y.S.2d 313 [1st Dept. 1990]), which was reversed by the Court of Appeals. (See Muniz v Flohern, 77 N.Y.2d 869, 570 N.E.2d 1074, 568 N.Y.S.2d 725 [1991].) In Muniz, the infant plaintiff was injured by bullet pellets while passing a store during an attempted robbery of the store. (See id., at 870.)

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Plaintiffs alleged that the store owner was aware that the store tenant was engaging in illicit drug activities, and that the owner failed to make an attempt to stop it. The Court of Appeals held, among other things, that the infant plaintiff's injuries did not result from the unlawful use of the premises, namely the drug activities. (See id.) The Court of Appeals noted that there was no relationship between the robbery and the illicit drug activity. (See id.) The Beatty case, which was decided after the Court of Appeals's decision in Muniz, implicitly recognizes that Muniz did not disturb the principle that, where it is alleged that a landlord was repeatedly given notice that there was criminal activity on the premises and took no action to stop it, it is a question for the jury whether the landlord's failure to act may serve as a predicate for liability for the tortious acts connected with the illegal activity. (See Beatty v NAACP, 194 A.D.2d at 364.) Regardless, NYCHA failed to establish that Plaintiff's injuries were not related to the complained-of unlawful activities, including the shooting outside the premises, Ms. Belnavis's complaints in relation to her request to be transferred, and the complaints regarding drug activity on the premises. Mr. Singh's testimony failed to show that NYCHA did not have notice of persistent criminal activity on the premises, and failed to show that such criminal activity did not create the likelihood of injury to others. NYCHA, therefore, has failed to demonstrate prima facie entitlement to summary judgment dismissing that branch of Plaintiff's complaint alleging a violation of Real Property Law § 231(2). In any event, in opposition to NYCHA's motion, Plaintiff's evidence was sufficient to raise a triable issue, and defeat summary judgment. Plaintiff submits the deposition transcript and affidavit of Plaintiff's mother, Marlene Belnavis, who was a tenant in the subject building. Ms. Belnavis avers that she first complained to NYCHA about criminal activities within the premises on January 13, 2003, when she requested to be transferred out of the building. Ms. Belnavis attaches a copy of a written complaint to her affidavit. According to Ms. Belnavis's written complaint to NYCHA, Plaintiff, who was living with her on the premises, had been threatened by a group of young men outside the premises after he had asked that they "lower the noise" outside their apartment. The group of men told Plaintiff that "you and your mother is [*5] going to be clapped, which in street talk means gun down [sic]." Ms. Belnavis's written complaint to NYCHA also states that on January 6, 2003 Plaintiff was approached by one of the men and was punched and threatened again. In her affidavit, Ms. Belnavis avers that she witnessed the same young men selling drugs and gambling

in the vestibule, lobby, hallways, and stairwells of the building up until the time of the subject assault of the Plaintiff on May 20, 2004. In her deposition testimony and in her affidavit, Ms. Belnavis states that she made numerous verbal complaints to Ms. Ahazie, who worked in the NYCHA management office, regarding the alleged persistent criminal activity occurring on the premises. Plaintiff has sufficiently demonstrated the existence of a triable issue as to whether NYCHA was given notice of persistent criminal activity on the premises. Ms. Belnavis's testimony and affidavit, along with Plaintiff's 50h and deposition testimony concerning the threats and subsequent assault, sufficiently create an issue of fact as to whether Plaintiff's assault was in retaliation for complaining to the assailants, the police, and NYCHA about the criminal conduct on the premises. As such, Plaintiff has sufficiently demonstrated that there exists at least a triable issue of fact as to whether Plaintiff's assault was a result of the ongoing criminal activity on the premises. It should be noted that some of the contentions made by NYCHA blur the distinction between a common-law negligent premises security claim and a claim under Real Property Law § 231(2). For example, NYCHA contends that it is entitled to summary judgment under Real Property Law § 231(2) since Plaintiff's injuries arose from a "targeted" attack. In this regard, NYCHA cites Flores v Dearborne Management (24 AD3d 101, 806 N.Y.S.2d 478 [1st Dept 2005]), Harris v NYCHA (211 A.D.2d 616, 621 N.Y.S.2d 105 [2d Dept 1995]), Tarter v Schildkraut (151 A.D.2d 414, 542 N.Y.S.2d 626 [1st Dept 1989]), Iannelli v Powers (114 A.D.2d 157, 498 N.Y.S.2d 377 [2d Dept 1986]), and Snipe v Hennie (11 Misc 3d 1075[A], 816 N.Y.S.2d 701 [Civ Ct Kings County 2006]). However, none of these cases involve a claim under Real Property Law § 231(2), but rather only involve commonlaw claims for negligent premises security. In all of the cases relied upon by NYCHA, it was held that the assailant's intentional conduct was the sole proximate cause of the plaintiff's injuries. The assailant's intentional conduct severed the causal nexus between the alleged failure to take minimum security measures and the plaintiff's injuries. The defendants were relieved of liability because they could not have reasonably foreseen the assailant's intentional unlawful conduct, so as to give rise to a corresponding duty on their part to adopt security measures. (See Iannelli v Powers, 114 A.D.2d at 162). In the instant case, the Court need not address whether the assailant's alleged conduct would have severed the causal nexus between NYCHA's alleged failure to take minimum security measures and Plaintiff's injuries. NYCHA has already been granted summary judgment dismissing the common-law negligence claim based on the undisputed facts that the assailant was a ten-

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ant in the building and that the subject attack occurred in a public vestibule. In actions asserting liability under Real Property Law § 231(2), the fact that an assailant [*6] may have planned, targeted, or designed an attack against a plaintiff does not relieve the defendant landlord of liability. Plaintiff need only demonstrate that the landlord was given notice of persistent criminal activity on the premises creating the likelihood of injury to others, and further demonstrate a causal relationship between the complained-of-activities and Plaintiff's injuries. (See Luisa R. v City of New York, 253 A.D.2d at 202.) Under the statute, if a landlord is aware that an assailant assaulted a plaintiff on a prior occasion, such awareness may be evidence that the landlord was given notice of persistent criminal activity. For example, in the instant case, Plaintiff's and Ms. Belnavis's testimony that Plaintiff had been assaulted and threatened by the assailant in 2003, and that Ms. Belnavis complained to NYCHA about the assailant and others, may be some evidence that NYCHA was given notice of persistent criminal activity on the premises for purposes of Real Property Law § 231(2). The 2003 attack may be evidence of the likelihood of injury to Plaintiff and others after the 2003 attack, and may demonstrate the necessary causal relationship. The fact that the conduct on both occasions was intentional arguably provides weightier evidence of a likelihood of injury and causal connection than had the conduct been unintentional. Accordingly, that branch of NYCHA's motion for summary judgment seeking dismissal of Plaintiff's Complaint insofar as it alleges a violation of Real Property Law § 231(2) is denied. The City's Cross-Motion for Dismissal under CPLR 3211(a)(7), CPLR 3211(c), and CPLR 3212 Plaintiff filed the Note of Issue on July 12, 2006. Non-party Marlene Belnavis appeared for a deposition on September 7, 2006. The City filed the instant motion on January 24, 2007. "[A] party moving for summary judgment outside the statutory (CPLR 3212[a]) or court-imposed time limit must show good cause for the delay." (Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108, 824 N.Y.S.2d 3 [1st Dept 2006]; see also Brill v City of New York, 2 NY3d 648, 652, 814 N.E.2d 431, 781 N.Y.S.2d 261 [2004].) Good cause may be shown by demonstrating that there was significant outstanding discovery at the time of the filing of the note of issue. (See Pena v Women's Outreach Network, Inc., 35 AD3d at 108; Herrera v Felice Realty Corp., 22 AD3d 723, 724, 804 N.Y.S.2d 397 [2nd Dept 2005].)

Here, the City fails to submit any reason for failing to bring its summary judgment motion within 120 days after the filing of the Note of Issue. The fact that Ms. Belnavis's non-party deposition occurred after the filing of the Note of Issue does not excuse the City for failing to bring the summary judgment motion for more than 120 days after the completion of the deposition. Accordingly, that branch of the City's motion for an order, pursuant to CPLR 3212, is denied as untimely. The City also moves for an order, pursuant to CPLR 3211(c) and CPLR 3211(a)(7), dismissing Plaintiff's Complaint. Unlike CPLR 3212, a motion to dismiss pursuant to CPLR [*7] 3211 does not generally have a 120day deadline. (See, e.g., Santana v City of New York, 6 Misc 3d 642, 643, 787 N.Y.S.2d 651 [Civ Ct, New York County 2004].) This Court holds, however, that a motion to dismiss made pursuant to CPLR 3211(c) is untimely if it is made outside the statutory CPLR 3212(a) or court-imposed time limit without a demonstration of good cause for the delay. By its own terms, CPLR 3211(c) permits the court to treat a CPLR 3211 motion as one for summary judgment upon notice to the parties. To hold that a CPLR 3211(c) motion may be made beyond 120 days would defeat the purpose of CPLR 3212(a), and would undermine the Court of Appeals's holding in Brill v City of New York (2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261). (See 166 Siegel's Practice Review 1, Can a Motion to Dismiss Under CPLR 3211 Circumvent the Time Limit of the Motion for Summary Judgment Under CPLR 3212? [Oct. 2005].) Accordingly, that branch of the City's motion for dismissal pursuant to CPLR 3211(c) is also denied as untimely. The City's motion pursuant to CPLR 3211(a)(7) for failure to state a cause of action is not subject to the 120day rule. (See Santana v City of New York, 6 Misc 3d at 643.) "On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true, and according the plaintiff the benefit of every possible inference." (See Gallagher v Kucker & Bruh, 34 AD3d 419, 419, 824 N.Y.S.2d 145 [2d Dept 2006].) Plaintiff's pleadings, including the Complaint and Bill of Particulars, allege, among other things, that the City was negligent in its ownership, operation, management, control, and maintenance of 303 Vernon Avenue. Essentially, Plaintiff alleges a negligent premises security cause of action and cause of action for a violation of Real Property Law § 231(2) against the City. In its motion, the City contends that Plaintiff failed to plead the existence of a special relationship. (See, e.g.,

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McPherson v NYCHA, 228 A.D.2d 654, 655, 646 N.Y.S.2d 16 [2d Dept 1996].) "For liability to be imposed upon a governmental defendant for the breach of a duty which is governmental in nature, such as providing police protection and adequate security, a plaintiff tenant must show that the defendant breached a special duty to him or her." (Id.) Plaintiff's pleadings do not plead a breach of a duty which is governmental in nature. Rather, Plaintiff's pleadings appear to allege that the City was acting in a non-governmental capacity with respect to the subject premises. Where the City acts "in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord." (See Miller v State, 62 N.Y.2d 506, 511, 467 N.E.2d 493, 478 N.Y.S.2d 829 [1984]; see also Price v NYCHA, 92 N.Y.2d 553, 557, 706 N.E.2d 1167, 684 N.Y.S.2d 143 [1998].) The City makes no showing that it has no "proprietary" relationship to the premises a showing that would, in any event, be more appropriate on summary judgment. As such, accepting all the facts alleged in Plaintiff's pleadings as

true, and according Plaintiff the benefit of every possible inference, Plaintiff sufficiently states valid causes of action against the City for negligent premises security and under Real Property Law § 231(2). Accordingly, that branch of the City's motion for an order, pursuant to CPLR 3211(a)(7), dismissing Plaintiff's Complaint, is denied. [*8] In sum, defendant NYCHA's motion for summary judgment is granted to the extent that Plaintiff's common-law negligence claim, alleging that NYCHA failed to provide minimum security measures, is dismissed, and is denied with respect to Plaintiff's statutory cause of action under Real Property Law § 231(2). The City's motion, pursuant to CPLR 3211 and CPLR 3212, is denied in its entirety. April 4, 2007 Jack M. Battaglia Justice, Supreme Court

46 of 55 DOCUMENTS [*1] Kevin C. Dolan, et ano.,, Plaintiffs, against 42 Lee Avenue Corp., Defendant. 11438/04 SUPREME COURT OF NEW YORK, KINGS COUNTY 2007 NY Slip Op 50320U; 14 Misc. 3d 1236A; 836 N.Y.S.2d 498; 2007 N.Y. Misc. LEXIS 490 February 5, 2007, Decided NOTICE: [***1] THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS. CORE TERMS: floor, summary judgment, smoke detector, door, kitchen, ceiling, self-closing, firefighter', light fixture, apartment, interior, hallway, questions of fact, issues of fact, tenants', cords, outlet, spread, duplex's, matter of law, statutory violations, indirectly, ordinance, staircase, movant, stove, holes, fire marshal, electrical, inspection

tion to certain injured or representatives of certain deceased firefighters). COUNSEL: The plaintiff was represented by: Sullivan, Papain Block, McGrath & Cannavo, P.C., New York, NY. The defendant was represented by: Rebore, Thorpe, Pisarello, P.C., Farmingdale, NY. JUDGES: Mark I. Partnow, J.

HEADNOTES

OPINION BY: Mark I. Partnow

[**1236A] Negligence--Injuries to Firefighters. General Municipal Law--§ 205-a (Additional right of ac-

OPINION

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Mark I. Partnow, J. Upon the foregoing papers in this personal injury action, defendant 42 Lee Avenue Corp. moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiffs Kevin C. Dolan and Eileen Dolan. 1 23 1 Plaintiff Eileen Dolan is suing derivatively for the loss of society and companionship of her husband, Kevin C. Dolan. The term "plaintiff" when used in the singular herein refers to plaintiff Kevin C. Dolan. On December 29, 2001, plaintiff, a fire marshal, was injured during the course of [***2] his employment while investigating a fire on the third floor of a four-story brick building at 42 Lee Avenue in Brooklyn (hereinafter, "the premises"). The building, which was owned, managed and maintained by defendant, contained a store on the first level and apartments on the second and third levels. The third-floor extended to the fourth floor. According to his deposition testimony, plaintiff arrived at the third floor apartment, along with fellow fire marshal, John Deprizio, after the fire had been extinguished, and proceeded to assess the amount and location of fire damage in the kitchen. Plaintiff testified that, as he stepped on a refrigerator that was lying on its side, the plaster ceiling came down, striking him in the head and shoulders, knocking him onto the ground and causing injuries to his left shoulder, head and back. Mr. DePrizio subsequently prepared the Bureau of Fire Investigation Report (the report) and an interview sheet. According to the report, the fire originated in the rear of the kitchen in the immediate vicinity of a fluorescent light fixture. He noted that "several extension cords [were] found plugged into one another running from outlet, over door way, [***3] over window, behind stove, under cabinet and wiring of what appeared to be [the] light fixture in question." The report indicated that the cause of the fire was "not fully [*2] ascertained" and "probably heat from electrical equipment." In addition, the interview sheet contained statements made by tenants Esther and Sara Weitzner, who stated that they witnessed a fire in the light fixture under the kitchen cabinets. Neither Esther nor Sara Weitzner reported hearing a smoke detector alarm. On May 24, 2004, plaintiffs commenced this action against defendant, alleging statutory negligence pursuant to General Municipal Law § 205-a and common-law negligence. Plaintiffs claim that defendant was negligent in its maintenance and control of the premises by, inter alia, failing to equip the premises with working smoke detectors, violating the certificate of occupancy, failing

to have adequate fire-stopping in the premises, failing to equip the doors with self-closing devices, and failing to inspect the tenancies for safety and fire hazards. Plaintiffs allege that defendant violated various rules, regulations, ordinances and codes, including New York City Administrative Code §§ 27-127, [***4] 27-128, 27-371, 27-979, 27-2044 and 27-2045; and New York State Executive Law §§ 1193.2 and 1193.3. In support of its summary judgment motion, defendant refers to the testimony of Isacher Ostreicher, its secretary. Mr. Ostreicher testified that, prior to defendant's purchase of the premises, defendant hired an engineer to conduct an inspection. According to Mr. Ostreicher, the engineer reported that there was a smoke detector on every floor of the premises and two smoke detectors in the building stairwells. Mr. Ostreicher also testified that the door to the third floor was self-closing and he never received any complaints about, or made repairs to, the smoke detector, the ceiling or the electrical outlets in the kitchen. Mr. Ostreicher further testified that he did not recall seeing any extension cords or power strips in the kitchen during the inspection. In moving for summary judgment, defendant argues that plaintiff's injuries were not the proximate result of any statutory or code violation attributable to defendant. Defendant asserts that [***5] it did not receive any complaints concerning the smoke detector, the ceiling or electrical outlets in the kitchen, and had not made any repairs to them prior to the fire. In addition, defendant maintains that it did not have notice of the tenants' use of extension cords near the light fixture. Lastly, defendant asserts that, at the time of the accident, the ceiling's structural integrity was significantly compromised due to the fire and to the numerous holes that the fire marshals were required to make in the plaster ceiling. In opposition to the motion, plaintiffs contend that defendant did not have operable smoke detectors, which omission caused a delay in the response of the Fire Department and the department's control of the fire. Plaintiffs also argue that defendant did not have selfclosing doors on the third floor, which caused the fire to intensify and spread more quickly from the third to the fourth floor. As a result of such violations, plaintiffs allege that the rapidly spreading fire required excessive amounts of water, and firefighters had to poke numerous holes in the ceilings and walls to locate pockets of fire, which resulted in the compromise of the structural stability [***6] of the kitchen ceiling. Plaintiffs submit the affidavits of Michael F. Cronin, an expert in the field of firefighting and safety, and of Eugene West, an expert in the field of fire safety, fire investigation and building code compliance, who both [*3] opine that defendant's violations compromised the structural integrity of the

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ceiling, thereby causing plaintiff's injuries. Mr. Cronin avers that a smoke detector and self-closing door on the third floor would have significantly limited the size and damage of the fire and fire wardens would not have been required to poke holes into the ceiling to find possible pockets of fire. Mr. Cronin also notes that the tenants' use of numerous electric cords in place of permanent wiring violated Executive Law 9 NYCRR § 1163. Mr. West states that the third floor public hallway did not have a self-closing door as required under statute and, as a result, the hallway acted as a chimney or internal flue for the fire and caused its immediate extension to the fourth floor. Lastly, Mr. West states that the premises was configured as a three-family multiple dwelling, even though the third and fourth floors were occupied by members of a single family [***7] as a "two-family duplex." Plaintiffs also assert that defendant was both aware of, and negligently permitted, the tenants' use of several extension cords plugged into one another in the same outlet near the light fixture. They allege that defendant knew that Esther and Sara Weitzner were Sabbath observers and would leave the kitchen light fixture and stove on, unattended. In response to the affidavits of Mr. Cronin and Mr. West, defendant submits the affidavit of Edward J. Cuyar, an expert in the field of fire cause and origin, who physically inspected the premises approximately one week after the fire. Mr. Cuyar avers that the fire did not extend into the public hallway via an open doorway on the third floor of the apartment. Mr. Cuyar's inspection disclosed that the public third - floor staircase, the public hallway and front door of the apartment exhibited only moderate smoke staining. He noted that charring in the third floor interior hall which led to the fourth floor indicated that the fire extended horizontally from the kitchen into the interior hallway and then vertically to the fourth floor via an interior staircase. Accordingly, defendant contends that the duplex apartment [***8] contained interior stairs leading from the third floor to the fourth floor and that the apartment was not, therefore, required to have a self-closing door. Lastly, Mr. Cuyar states that the absence of a smoke detector after a fire does not necessarily mean that a detector was not present before the fire since it could have been knocked down, melted or otherwise destroyed during the fire. Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 A.D.2d 757, 759, 592 N.Y.S.2d 388 [1993]; Zarr v Riccio, 180 A.D.2d 734, 735, 580 N.Y.S.2d 73 [1992]). Once the

movant has established its prima facie case, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" [***9] (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; see also Romano v St. Vincent's Medical Center of Richmond, 178 A.D.2d 467, 470, 577 N.Y.S.2d 311 [1991]; Tessier v New York City Health & Hospitals Corp., 177 A.D.2d 626, 576 N.Y.S.2d 331 [1991]). The evidence presented on summary judgment must be scrutinized in the light most favorable to [*4] the party opposing the motion (Goldstein v Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980]). Since summary judgment deprives a party of his or her day in court (Henderson v City of New York, 178 A.D.2d 129, 576 N.Y.S.2d 562 [1991]), it is a drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law (Barclay v Denckla, 182 A.D.2d 658, 582 N.Y.S.2d 252 [1992]). Additionally, "[i]t is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law" (Chahales v Garber, 195 A.D.2d 585, 586, 600 N.Y.S.2d 739 [1993]). Summary judgment is appropriate, however, even in negligence cases, where the movant satisfies his or her [***10] initial burden of proof and the nonmovant's opposition is "entirely conjectural and there is no genuine issue [of fact] to be resolved" (Cassidy v Valenti, 211 A.D.2d 876, 877, 621 N.Y.S.2d 405 [1995]). General Municipal Law § 205-a (1) provides a firefighter with a right of action where the "negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state . . . or city governments" "directly or indirectly" causes the firefighter's injury or death during the discharge of his or her duties. General Municipal Law § 205-a "creates a cause of action for firefighters who suffer line-of-duty injuries directly or indirectly caused by a defendant's violation of relevant statutes and regulations" (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 75, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003]). To assert a valid General Municipal Law § 205-a claim, a plaintiff must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the firefighter was injured, and [3] set forth [***11] those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter' " (id. at 79, quoting Zanghi v Niagara Frontier Transp. Comn., 85

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N.Y.2d 423, 441, 649 N.E.2d 1167, 626 N.Y.S.2d 23 [1995]). To make out a claim under § 205-a the plaintiff is also required to establish a "reasonable connection between the statutory or regulatory violation and the claimed injury" (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003] [internal citations omitted]). Here, plaintiff identified numerous alleged statutory violations by defendants, including Administrative Code §§ 27-127 and 27-128. Administrative Code § 27-127 provides: "Maintenance requirements. All buildings and all parts thereof shall be maintained in a safe condition. All service equipment, means of egress, devices, and safeguards that are required in a building by the provision of this code or other applicable laws or regulations that are required in a building by the provisions of this code or other laws or regulations, or that were required by law when the [***12] building was erected, altered, or repaired, shall be maintained in good working order." Administrative Code § 27-128 provides: "Owner responsibility. The owner shall be responsible at all times for the safe maintenance of the building and its facilities." [*5] Sections 27-127 and 27-128 may form the predicate for a claim under General Municipal Law § 205-a (see Giuffrida, 100 N.Y.2d at 80 n 4). The court finds several questions of fact that preclude summary judgment, including, but not limited to, whether an operational smoke detector was installed, and, if it wasn't, whether the absence of the device caused the uncontrolled spread of the fire and caused plaintiff's injuries. In light of the deposition testimony and affidavit evidence proffered by the parties, it is un-

clear from the record whether a smoke detector was installed or working and summary judgment is therefore inappropriate (see Baker v Riverhouse Realty Co., Inc., 300 A.D.2d 214, 751 N.Y.S.2d 361 [2005]; Fasolino v Sear Co., 179 A.D.2d 738, 578 N.Y.S.2d 644 [1992]). Moreover, there is also a question of fact regarding whether there [***13] was a requisite self-closing door on the third floor to a public hallway and, if there wasn't, whether the lack of the device contributed to the extent and intensity of the fire and caused plaintiff's injuries. While Mr. DePrizio's affidavit indicates that the fire spread to the fourth floor through the open door, Mr. Cuyar's affidavit indicates that the third and fourth floors operated together as a duplex apartment and that the fire traveled along the duplex's interior staircase. Accordingly, there is a question of fact as to whether the fire spread up interior, as opposed to public, stairs, as well as whether a self-closing door was required for the area. Under the circumstances, the court finds an issue of fact regarding whether there is a connection between the statutory violations alleged and the injuries sustained by plaintiff. The court also denies defendant's summary judgment motion with respect to the common law negligence claim because questions of fact exist regarding whether the defendant's statutory violations proximately caused plaintiff's injuries. For example, plaintiff cites Mr. Ostreicher's admission that defendant knew of the tenants' "practice" of leaving the [***14] stove and light fixture on and unattended, thus creating an issue of fact as to whether defendant was aware of the dangerous condition. The court has considered defendant's remaining arguments and finds them to be without merit. For the foregoing reasons, the motion by defendants is, in all respects, denied. This constitutes the order and decision of the court.

47 of 55 DOCUMENTS

Positive As of: Sep 10, 2008 [*1] Paul M. Downey, et ano., Plaintiff, against The Beatrice Epstein Family Partnership, L.P., et ano., Defendants. 7962/04 SUPREME COURT OF NEW YORK, KINGS COUNTY

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2006 NY Slip Op 51560U; 12 Misc. 3d 1193A; 824 N.Y.S.2d 753; 2006 N.Y. Misc. LEXIS 2147 August 4, 2006, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS. SUBSEQUENT HISTORY: Affirmed by Downey v. Beatrice Epstein Family Partnership, L.P., 2008 N.Y. App. Div. LEXIS 1569 (N.Y. App. Div. 2d Dep't, Feb. 19, 2008) CORE TERMS: floor, detection, summary judgment, smoke detectors, firefighter's, apartment, smoke, fire department, arrived, residential, conversion, speculative, tenant, issues of fact, arrival, exact location, arriving, minutes, hook, residential unit, indirectly, deposition, triable, scene, matter of law, code violations, certificate of occupancy, prima facie case, questions of fact, lv denied HEADNOTES [***753] [**1193A] Negligence--Injuries to Firefighters. JUDGES: Ira B. Harkavy, J.S.C. OPINION BY: Ira B. Harkavy OPINION Ira B. Harkavy, J. Upon the foregoing papers, defendants The Beatrice Epstein Family Partnership, L.P (the Epstein Partnership) and Alexander Tregubov, D.D.S. (Dr. Tregubov) move, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint of plaintiffs Paul M. Downey and Anika M. Downey 1 on the ground that plaintiff's alleged injuries were not directly or indirectly caused by statutory violations at the subject premises. Plaintiffs oppose the instant motion on the ground that triable issues of fact exist with respect to both the alleged code violations and the causation of plaintiff's injuries which preclude the grant of summary judgment to defendants. 1 Plaintiff Anika Downey is suing derivatively for the loss of society and companionship of her husband, Paul M. Downey. The term "plaintiff" when used in the singular herein, will always refer to plaintiff Paul M. Downey.

In the instant action, plaintiff, a firefighter for the City of New York, seeks damages for injuries he allegedly sustained while engaged in firefighting duties at 115 Brightwater [*2] Court in Brooklyn (the Premises). The Epstein Partnership owns the Premises and Dr. Tregubov rents office space on the first floor. On September 22, 2003, a fire occurred in Dr. Tregubov's office. Fire department records show that an alarm was first received at 1:07 a.m. and a fire company arrived on the scene at 1:11 a.m. Plaintiff was assigned to Ladder Co. No. 61, the fire company which arrived first at the Premises. A couple of minutes after plaintiff's company arrived, a second company, Ladder Co. No. 169, also arrived. At his deposition, plaintiff testified that after he arrived at the Premises, he did not see any smoke or other signs of fire. Shortly thereafter, he was sent to an apartment located on the second floor because a call had come in to the fire department identifying that apartment as the location of the fire. When plaintiff first arrived at the apartment there was smoke present throughout the apartment, but there were no visible open flames. Thereafter, plaintiff was ordered to try to open up the back of a wall of a closet located in the apartment so as to ascertain the exact location of the fire. Plaintiff tried to use a hook to open the wall but was not able to do so. He eventually was able to open up a corner of the closet with the hook and also pulled down a little of the ceiling. Thereafter, unbeknownst to him, the hook became stuck on a beam in the ceiling and when he attempted to pull the hook back down he felt pain in his neck and shoulders. Plaintiff testified that he was notified at some point during his firefighting duties that the fire was located in an office on the first floor below the second floor apartment where plaintiff was injured. Norma Rivera testified at her deposition on behalf of the Epstein Partnership. She stated that on the date of the fire, her husband, Paul Rivera, was the superintendent of the Premises and that she assisted him with his duties. She testified that those duties included checking the smoke alarms in all of the apartments, including those located in Dr. Tregubov's dental office. On the night of the fire, a tenant from apartment 3F informed Mr. Rivera of a possible smoke condition at the Premises. Ms. Rivera went with her son to the second floor but did not see a fire. She testified that her husband went to the upper floors to investigate. She further testified that within

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five minutes of first being alerted to the presence of smoke, Mr. Rivera discovered that the fire was located in Dr. Tregubov's office. Ms. Rivera stated that her son then called the fire department and firefighters arrived within five minutes of the call. In opposition to the instant motion, plaintiffs submit the expert affidavit of Michael F. Cronin, a principal in a consulting firm specializing in fire protection, life safety and fire analysis, who has held a number of positions within the New York City Fire Department. Mr. Cronin states that upon his review of the certificate of occupancy for the Premises and his own inspection of same, he concluded that Dr. Tregubov's office had been illegally converted from a residential unit to a commercial office without any requisite plans or permits being filed. He also states that such a conversion violates Multiple Dwelling Law §§ 27-126, 27-147, 27-262, 27-215, 27217 and 300. Mr. Cronin also reviewed a fire incident report generated with respect to the subject fire which states that there were no smoke detectors present at the location of the fire. He notes that such a lack of smoke [*3] detection equipment violates Multiple Dwelling Law § 27-979 which requires that all "dwelling units" must be equipped with smoke detection devices. With respect to the cause of plaintiff's injuries, Mr. Cronin opines that such injuries occurred due to an alleged delay in determining where the fire was located. Specifically, he states that if the fire initially had been identified as being confined to Dr. Tregubov's office, as was ultimately learned, plaintiff would not have been present on the second floor and engaged in the fire detection activities which allegedly resulted in his injuries. Mr. Cronin attributes this alleged delay to a lack of smoke detectors in the office as well as to the office's illegal conversion from a residential unit to a dentist's office in violation of the certificate of occupancy for the Premises which limits the Premises to a residential use. He states that the fire marshal's report concerning the fire demonstrates that the fire was "well-developed" by the time it was discovered, thereby evidencing a delay in timely detection of the actual location of the fire. Mr. Cronin determined that if the office had remained a residential unit with an entrance into the lobby of the Premises as opposed to having a separate entrance as it did after the conversion, and had contained adequate smoke detection devices, the fire would have been identified as originating from that location from the outset, either by the residential tenant of the unit itself or by neighboring residential tenants, and plaintiff, as part of the fire company responding first, would have been directed to fight the fire in Dr. Tregubov's office instead of being ordered to engage in the fire detection activities on the second floor of the Premises which allegedly resulted in his injuries.

In response to plaintiffs' expert's affidavit, Dr. Tregubov submits the affidavit of Frank Valenti, a retired New York City fire marshal. Mr. Valenti states that there is no evidence that the fire was "well-developed" at the time plaintiff arrived at the premises, given that when plaintiff and his company first arrived at the Premises, the actual location of the fire was not readily ascertainable by sight. He also states that although the incident report cited to by Mr. Cronin noted that there were no smoke detectors present in the office at the time of the fire, such report did not necessarily take into account that smoke detectors might have been knocked down, melted or otherwise destroyed during the fire or related fire fighting activities. Moreover he notes that Dr. Tregubov, as a tenant, was not responsible for either the alleged illegal conversion of his office, which presumably took place prior to his tenancy, or for supplying smoke detectors for said office. Mr. Valenti also opines that even if the alleged office conversion did represent a code violation or a smoke detector was not present in the office, it is entirely speculative to assume that the fire would have been detected sooner and, in fact, there is no evidence that there was any undue or unusual delay in detecting the actual location of the fire given that said location was not readily ascertainable by sight at the time of plaintiff's arrival at the Premises. Mr. Valenti also opines that even if the exact location of the fire had been reported earlier, it is speculative to assume that plaintiff would not have been assigned to fire detection duties on the second floor because the fire was not immediately visible upon his arrival and it is common for there to be multiple calls regarding a single fire, often giving different locations [*4] for the fire or not giving an exact location, which necessitate an investigation as to the source of the fire. Moreover, Mr. Valenti notes that although the first arriving fire company is generally dispatched to the actual location of the fire, there are various situations, particularly when the location of the fire is not easily ascertainable upon arrival and there are multiple calls involving said fire, where the first arriving company initially might be engaged in fire detection activities in a different area of the affected premises. Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 A.D.2d 757, 759, 592 N.Y.S.2d 388 [1993]; Zarr v Riccio, 180 A.D.2d 734, 735, 580 N.Y.S.2d 73 [1992]). Once the movant has established its prima facie case, the party opposing a motion for summary judgment bears the burden

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of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; see also Romano v St. Vincent's Medical Center of Richmond, 178 A.D.2d 467, 470, 577 N.Y.S.2d 311 [1991]; Tessier v New York City Health & Hospitals Corp., 177 A.D.2d 626, 576 N.Y.S.2d 331 [1991]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980]). Since summary judgment deprives a party of his or her day in court (Henderson v City of New York, 178 A.D.2d 129, 576 N.Y.S.2d 562 [1991]), it is a drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law (Barclay v Denckla, 182 A.D.2d 658, 582 N.Y.S.2d 252 [1992]). Additionally, "it is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law" (Chahales v Garber, 195 A.D.2d 585, 586, 600 N.Y.S.2d 739 [1993]). Summary judgment is appropriate, however, even in negligence cases, where the movant satisfies his or her initial burden of proof and the nonmovant's opposition to the motion for summary judgment is "entirely conjectural and there is no genuine issue [of fact] to be resolved" (Cassidy v Valenti, 211 A.D.2d 876, 877, 621 N.Y.S.2d 405 [1995]). "To make out a valid claim under General Municipal Law § 205-a, a plaintiff must " identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter'" (Zvinys v Richfield Investment Co., 25 A.D.3d 358, 808 N.Y.S.2d 640 [2006] lv denied 7 N.Y.3d 706, 853 N.E.2d 244, 2006 N.Y. LEXIS 1881, 819 N.Y.S.2d 873 [2006], quoting Zanghi v Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 441, 649 N.E.2d 1167, 626 N.Y.S.2d 23 [1995]). "As a remedial statute, [§ 205-a] is subject to liberal construction" (Foiles v V.L.J. Construction Corp., 17 A.D.3d 297, 299, 794 N.Y.S.2d 27 [2005]). Accordingly, to make out a claim under § 205-a, a plaintiff need not demonstrate the same degree of proximate cause as is required in [*5] a common-law negligence action; rather, "the substantial case law that has developed on the subject holds that a plaintiff need only establish a practical or reasonable connection between the statutory or regulatory violation

and the claimed injury" (Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772, 760 N.Y.S.2d 397 [2003][internal quotation marks and citations omitted]). However, although a practical and reasonable connection is all that need be shown, the necessary causative element will not be found where the connection between the alleged injury and the statutory violation is deemed either too speculative or attenuated to support § 205-a liability (see e.g. Kenavan v City of New York, 267 A.D.2d 353, 356, 700 N.Y.S.2d 69 [1999], lv denied 95 N.Y.2d 756, 734 N.E.2d 760, 712 N.Y.S.2d 448 [2000][finding that "the requisite causal connection between the alleged violations of the statues and regulations relied on [was] absent" where, although "the harm might not have occurred" if the defendant municipality had not violated the subject statue, said violation merely, in effect, placed the decedent firefighter at the scene where he was struck by a vehicle, an incident unrelated to the alleged violation]; Dillon v City of New York, 238 A.D.2d 302, 302, 656 N.Y.S.2d 51 [1997], lv denied 90 N.Y.2d 811, 688 N.E.2d 1382, 666 N.Y.S.2d 100 [1997][finding no practical connection between sprinkler system failing to operate and plaintiff's injury which occurred when the fire hose he was using to extinguish the subject fire burst, throwing him to the ground]). Here, defendants have demonstrated their prima facie entitlement to summary judgment and plaintiffs have failed to raise a triable issue of fact with regard to their claim that the alleged code violations either directly or indirectly caused plaintiff's injury. Defendants have established their prima facie case by submitting uncontradicted deposition evidence that plaintiff was injured in a second floor apartment while performing fire detection activities and was not injured due to any structural condition present in the office or attributable to its alleged illegal conversion from a residential unit to an office (cf. Foiles, 17 A.D.3d at 297 [question of fact precluding summary judgment for defendant existed where it was claimed that a defendant's failure to comply with conditions precedent to obtaining a certificate of occupancy, including alterations to allow for light and ventilation, contributed to the poor visibility which allegedly caused the firefighter's injuries]). Defendants also proffer the deposition testimony of Ms. Rivera, who testified that she identified the source of the smoke condition as Dr. Tregubov's office within five minutes of being notified of such condition and that her son called the fire department thereafter informing them of same. Defendants also submit the expert affidavit of Mr. Valenti which states that it is common for multiple individuals to call the fire department without a clear idea of the location of the fire and, accordingly, it is common practice for firefighters to perform fire detection functions to determine the location of the fire, particularly when it is not clear upon arrival

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from which location the fire is emanating. Moreover, Mr. Valenti states that even if smoke detectors had been present or the office had been a residential one, it is pure speculation that the location of the fire would have been determined sooner or called in more accurately or that smoke detection activities on the second floor would have been obviated. In response to the defendants prima facie showing, plaintiff has not demonstrated the existence of a question of fact with regard to the causation of plaintiff's alleged injuries. Mr. [*6] Cronin's affidavit relies on mere speculation with respect to his claim that the alleged lack of smoke detectors and alleged illegal conversion of the office from residential to commercial caused plaintiff to be present on the second floor where he was allegedly injured. As noted by Mr. Valenti, it is entirely conjectural to assume that if the unit in question were residential, the residential tenant would have been present in the unit at the time of the fire and the exact location of the fire would have been detected sooner. Likewise, given that there was no one present in the office at the time - a situation which, as previously noted, could well have occurred even if the unit were residential - it is entirely speculative to assume that the presence of smoke detectors would have alerted tenants in other units of the exact location of the fire more quickly, particularly given the late hour at which the fire occurred. In addition, it is undisputed that plaintiff's fire company arrived approximately four minutes after the first alarm was received by the fire department and that, upon his arrival at the scene, plaintiff saw no signs of a fire, a fact which gives credence to Mr. Valenti's conclusion that the fire was not necessarily "well-developed" due to a delay in detection prior to the arrival of the first-responding company. There is, therefore, no evidence that the fire was not detected close to its inception, as it was not apparent to the arriving firefighters, including plaintiff, where the fire was located. Moreover, although a call was apparently received identifying the subject second floor apartment as the source of the fire, Ms. Rivera testified that her son also called the fire department and gave the correct location of the fire. Since there is evidence that more than one location was identified to the fire department as the source of the fire, it is entirely speculative to assume that no fire detection activities on the second floor would have been conducted or would only have been conducted by the later arriving company, particularly in light of the fact that it appears that the correct location of the fire was, in fact, relayed to the fire department but, nonetheless, the exact location of the fire could not be readily ascertained by the first arriving company. Therefore, even if someone had heard a smoke detector in the first floor office or had called from that unit, it appears that the fire department still would have received a call from the

second floor apartment with regard to a smoke condition that needed to be investigated. Moreover, Mr. Cronin's claim that the office's separate entrance somehow also delayed earlier detection of the fire is conclusory. Finally, even if the code violations had placed plaintiff at the scene of his injury - which, as previously noted, is entirely speculative - it is undisputed that the injury itself was actually caused when plaintiff's hook became caught on a beam, an incident that, in and of itself, is not directly or indirectly related to such alleged violations (see Dillon, 238 A.D.2d at 302). Accordingly, given that it is not claimed that any structural defect or dangerous condition resulting from a statutory or regulatory violation caused plaintiff's alleged injuries, which were sustained in the course of ordinary fire detection activities, and there is no evidence, other than speculation on the part of plaintiffs' expert, that the alleged lack of fire detectors and alleged illegal conversion of the office from residential to commercial delayed the identification of the correct source of the fire, thereby necessitating fire detection activities to be conducted on the second floor which would [*7] otherwise not have been conducted by plaintiff, the court is constrained to grant the defendants' motion for summary judgment with respect to plaintiffs' § 205-a claim. Plaintiffs' claims based upon common law negligence must also fail for much the same reason. 2 As an initial matter, Dr. Tregubov, as a tenant, was not responsible for the alleged illegal conversion or the alleged absence of smoke detectors in the office. Moreover, even if the Epstein Partnership, as owner, had either actual or constructive notice of the alleged violations, as previously discussed, the causal connection between such violations and plaintiff's injuries is wholly conclusory and speculative and plaintiffs have failed to raise an issue of fact with respect to the necessary element of proximate cause (see Driscoll v Tower Assocs., 16 A.D.3d 311, 313, 793 N.Y.S.2d 11 [2005]["Plaintiff's failure to demonstrate that the alleged violations proximately caused the accident meant that defendants could not be liable for common-law negligence"]). Accordingly, any claims asserted by the plaintiffs which are based upon common law negligence principles must also fail. 2 Pursuant to General Obligations Law § 11106, a firefighter injured in the performance of his or her duties whose injuries are proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity other than that of the firefighter's employer, may seek to recover damages from the person or entity whose conduct resulted in the injuries. As a result, the defendants' motions for summary

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judgment are granted and the plaintiffs' complaint is dismissed.

The foregoing constitutes the decision, order and judgment of the court.

48 of 55 DOCUMENTS

Analysis As of: Sep 10, 2008 Carroll v. Nostra Realty Corp. 109293/2002 SUPREME COURT OF NEW YORK, NEW YORK COUNTY 2005 N.Y. Misc. LEXIS 3307; 233 N.Y.L.J. 65 April 6, 2005 SUBSEQUENT HISTORY: Later proceeding at Carroll v. Nostra Realty Corp., 2007 N.Y. Misc. LEXIS 981 (2007) CASE SUMMARY: PROCEDURAL POSTURE: Defendant landlord moved pursuant to N.Y. CPLR 2221 for leave to renew and reargue the prior motion to consolidate the action with his summary non-payment proceeding against plaintiff tenants in Civil Court, New York County. In addition, the landlord petitioned the court to order payment of rent arrears and use and occupancy, pendente lite, from the tenants. OVERVIEW: The cases the landlord sought to consolidate arose from a dispute with the tenants over the living conditions at a residential premises, which the landlord had leased, and continued to lease, to the tenants. Since 2001, the tenants had only tendered four months rent, allegedly in response to the ongoing existence of numerous defects and hazardous conditions in the premises. The landlord commenced the summary proceeding, and the tenants commenced the instant action against the landlord, alleging that they sustained severe and permanent mental and physical injury as a result of the landlord's negligence regarding the presence of toxic mold and asbestos in the premises (the tort action). The court held that as there was a common question of law or fact, the summary proceeding was essentially one to re-

cover money, and there was no demonstrable prejudice to the tenants upon consolidation. Consolidation under N.Y. CPLR 602(b) was warranted. The court also ordered the tenants to tender payment of rent arrears directly to the landlord from August 2004 to December 2004, and a retroactive payment going forward from January 2005 until final disposition of the proceedings. OUTCOME: The court granted the landlord's motion to renew and reargue solely to the extent of granting re-argument, and the motion to consolidate was granted. The court also granted the landlord's motion for use and occupancy, pendente lite, and the tenants were to tender to the landlord payment of rent arrears. CORE TERMS: tenant, landlord, summary proceeding, consolidation, rent, occupancy, consolidate, question of law, tort action, non-payment, movant, consolidated, discovery, pendente lite, reargument, holdover, reargue, counterclaim, remediation, renewal, lease, payment of rent, reply papers, judicial economy, landlord-tenant, non-movant, inure, warranty of habitability, warranty, tenancy LexisNexis(R) Headnotes

Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Rent Recovery [HN1] N.Y. RPAPL 745 (2)(a) provides that in a sum-

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mary proceeding upon the second of two adjournments at the request of the respondent, or, upon the 30th day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner, deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy.

an absence of prejudice to the non-movant, and where such standard has not been satisfied, the court may consider whether the movant has established that consolidation is yet necessary in that the Civil Court does not have power to adjudicate the claims before it.

Civil Procedure > Pleading & Practice > Pleadings > Amended Pleadings > Leave of Court [HN2] In a motion to reargue under N.Y. CPLR 2221(d) the movant alleges that the court has misapprehended or overlooked facts or the law, while a § 2221(e) motion for leave to renew is premised on new facts or law not offered on the prior motion that would change the prior determination.

Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Eviction Actions > Summary Eviction [HN7] The mere fact that a case may be somewhat delayed by consolidation will not suffice to bar it. Indeed, it has been held that the delay in determination of the non-payment proceedings will not cause prejudice sufficient to justify denial of the motion to consolidate where the parties' real controversy concerns money, not possession of the premises and interest may be awarded if landlord prevails.

Civil Procedure > Pretrial Matters > Consolidation of Actions [HN3] The threshold question in considering any motion to consolidate is whether there exists a common question of law or fact between the causes of action that are to be consolidated (N.Y. CPLR 602(a)). Consolidation is generally favored by the courts in the interest of judicial economy and ease of decision making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right.

Civil Procedure > Pretrial Matters > Consolidation of Actions [HN6] The language of N.Y. CPLR 602 permits consolidation where there is a common question of law or fact.

Civil Procedure > Pretrial Matters > Consolidation of Actions [HN8] Even where there are common questions of law or fact, consolidation is properly denied if the actions are at markedly different procedural, stages and consolidation would result in undue delay in the resolution of either matter. JUDGES: [*1] Justice Edmead

Civil Procedure > Pretrial Matters > Consolidation of Actions Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Eviction Actions > Summary Eviction [HN4] Although the Civil Court may be the preferred forum for expediently resolving landlord-tenant disputes, the preference for maintaining summary proceedings in that forum is not absolute. Rather, this preference may lack justification under the facts of a given case, at which point consolidation is appropriate so long as the legal prerequisites are met. Civil Procedure > Pretrial Matters > Consolidation of Actions [HN5] When considering consolidation, the courts must apply the recognized standard for consolidation, to wit: whether there are common questions of law and fact and

OPINION BY: Edmead OPINION MEMORANDUM DECISION 1 1 The Court wishes to thank Edward Yennock, Seton Hall University School of Law, Class of 2006 for his significant contribution to this decision. In this personal injury action, defendant, Nostra Realty Corporation ("landlord") moves pursuant to CPLR § 2221 for leave to renew and reargue its prior motion to consolidate this action with its summary non-payment proceeding against plaintiffs James Carroll and Debra Carroll ("tenants") in Civil Court, New York County, Index No. 103564/2001 (the "summary proceeding"). In addition, the landlord petitions the Court to order payment of rent arrears and use and occupancy, pendente

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lite, from tenants. 2 2 The landlord also moved pursuant to CPLR § 3124 and 3126 to compel tenants to submit to depositions. However, on March 1, 2005, counsel for landlord advised the Court that depositions were held, and its request to compel same is moot. [*2] The cases that the landlord seeks to consolidate arise from a dispute with the tenants over the living conditions at the residential premises of 845 West End Avenue, Apartment 5E, New York, New York ("the premises"), which the landlord has leased, and continues to lease, to the tenants. Since 2001, the tenants have tendered only four months rent, allegedly in response to the ongoing existence of numerous defects and hazardous conditions in the premises. In October of 2001, the landlord commenced the summary proceeding against the tenants in the Civil Court of the City of New York. The tenants proffered the affirmative defenses of breach of the warranty of habitability as well as constructive eviction based on among other things the presence of mold in the premises. The tenants also alleged three counterclaims seeking: (1) monetary damages based on the landlord's breach of the warranty of habitability, (2) an order requiring the landlord to correct the dangerous conditions pursuant to the Multiple Dwelling Law of the State of New York, the Maintenance Code, Building Code and Health Code of the City of New York, and Real Property Law 235-b, and (3) attorney's fees, costs, and disbursements [*3] pursuant to the lease and Real Property Law § 234. Thereafter, in April of 2002, the tenants commenced the instant action against the landlord alleging that they, along with their two children Samantha and Zachary Carroll, sustained severe and permanent mental and physical injury as result of the landlord's negligence regarding the presence of toxic mold and asbestos in the premises (the "tort action"). In the summary proceeding, tenants' and landlord's applications for various forms of relief resulted in a stipulation, dated December 11, 2002 (the "stipulation"), wherein the landlord agreed to return the premises to a "safe and habitable condition hereof, including without limitation, Paragraph VI(d) of the Scope of Work, so that the Respondents may resume their occupancy thereof and the Petitioner may receive payment of the rent." The parties also agreed that the determinations of mutually selected third party contractors regarding remediation and repair would be final and binding. 3 The landlord subsequently undertook remediation and reconstruction of the premises, which was completed approximately one-and-a-half years later. During that period of remedi-

ation, [*4] the tenants resided at a hotel, at the landlord's expense pursuant to the terms of the stipulation. 3 After re-entering the premises, the tenants paid rent for the month of July 2004, but have not paid additional rent since that date. Subsequently, in the tort action, the landlord moved to consolidate the instant tort action with the summary proceeding. The Court denied the motion based upon case law 4 cited by the tenants which held that landlordtenant disputes should be removed from Civil Court only when such forum cannot afford the parties complete relief. The instant motion to renew/reargue ensued. 4 Scheff v. 230 East 73rd Owners Corp., 203 A.D.2d 151, 610 N.Y.S.2d 252 [1st Dept 1983]. In support of renewal and reargument, the landlord contends that the Court misapprehended the posture of the case, insomuch as it was [*5] the landlord, and not the tenants, who moved to consolidate. Also, the landlord, as the movant, was willing to accept the delay in prosecuting the summary non-payment proceeding. The landlord also contends that the Court failed to consider the landlord's reply papers, which were filed and submitted in a timely fashion, when the underlying motion was transferred to the Court. Therefore, reargument and renewal is warranted. The landlord further argues that upon renewal and reargument, the Court should grant consolidation in light of parallel factual allegations set forth by the tenants in both the summary proceeding and the tort action pertaining specifically to the existence and remediation of mold and moisture damage in the premises, and money damages arising therefrom. The landlord further argues that a single trial is necessary because adjudication in either the summary proceeding or the tort action will affect the other action, and alternatively, the issues maybe adjudicated inconsistently. The landlord also cites judicial economy as a justification for consolidation, in addition to its contention that consolidation will result in reduced legal costs for all parties. The landlord [*6] further points out, inter alia, that according to its reply papers the Civil Court's ability to adjudicate the summary proceeding is of no moment, and is in fact the incorrect standard for determining whether a summary proceeding and a Supreme Court action should be consolidated. As argued in its reply papers, Amtorg Trading v. Broadway and 56th Street (191 A.D.2d 212, 594 N.Y.S.2d 204 [1st Dept. 1993]) stands for the proposition that consolidation of a summary proceeding and a Supreme Court action pursuant to CPLR § 602(b) is warranted so long as there is a common question of law or fact between the two causes of action, and there will

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be no prejudice to the non-movant if the motion is granted. The landlord contends that the tenants have failed to demonstrate that any prejudice would inure to them if the cases were consolidated. Relying on Moretti v. 860 W. Tower, Inc. (221 A.D.2d 191, 633 N.Y.S.2d 163 [1st Dept 1995]), the landlord argues that the tenants' bare claim of prejudice arising from removal of the summary proceeding from its recognized forum, and the resultant delay thereof, is inadequate. Furthermore, the landlord argues that [*7] in contrast to Scheff v. 230 East 73rd Owners Corp. (supra), upon which the Court previously relied, consolidation is warranted because any delay in adjudication of the summary proceeding will inure to the detriment of the movant, herein the landlord, which is willing to accept the delay in the interest of avoiding two trials on the same issues. The landlord also argues that should the Court grant consolidation, the Court should order the tenants to pay rent arrears and use and occupancy pendente lite. 5 The landlord notes that since 2001, the tenants have paid only four months rent, including three months pursuant to an Order of the Civil Court and the aforementioned July 2004 payment after remediation and reconstruction was completed. The landlord contends that despite being furnished with a newly renovated apartment which has been approved by a mutually selected environment consultant, the tenants will not pay rent absent a Court order. 5 Landlord seeks rent arrears for August and September 2004 at the rate of $ 2,809.66 per month, and for October, November, and December 2004 at the rate of $ 2,992.29 per month, totaling $ 14,596.19 for the entire period. Landlord also seeks payment for use and occupancy, pendente lite, at the rate of $ 2,992.92 per month. [*8] In opposition to renewal and reargument, the tenants argue primarily that neither Amtorg (supra) nor Moretti (supra) warrant consolidation because those cases are distinguishable upon their Facts. First, it is argued, Amtorg addressed a commercial tenancy, as opposed to a residential tenancy. More importantly, the tenants note, in both Amtorg and Moretti, the controversy concerned the amount of rent due, and not possession of the premises. The tenants maintain that in the summary proceeding at hand, possession remains an issue. The tenants also argue that unlike the cases relied upon by the landlord in which the cases sought to be consolidated were inextricably intertwined; here, the issues of rent abatements and counterclaims would remain even if the Supreme Court failed to find injury in the tort action. The tenants posit that consolidation is inappropriate because the standard for breach of warranty and constructive eviction is whether the conditions in the premises posed a danger to the health and safety of the tenants, not

whether the tenants suffered medical harm due to the landlord's negligence. The tenants also argue that they should not be ordered to pay rent arrears and [*9] use and occupancy. Relying upon Hung-Thanh, Inc. v. Doktori (21 HCR 564A, NYLJ Oct. 28 1993, 27:3 [App Term 1st Dept]) and its progeny, the tenants claim that landlords are not entitled to an award of use and occupancy pendente lite absent a showing of delaying tactics undertaken by the tenant. 6 The tenants maintain that the summary proceeding is ready for trial, and should proceed to trial accordingly. As such, the tenants contend that if the landlord is willing to suffer the prejudice and delay of consolidation, it must, consequently, forgo use and occupancy. The tenants further allege that there were numerous defects in the premises upon re-entry, including, but not limited to: the existence of bags of "soft goods" left in the living room, cracked and discolored grout between bathroom tiles, defective doorknobs, a faulty intercom, malfunctioning hot water valve (which had been repaired), an abnormality in the electrical system (which had been repaired), and an improperly finished bedroom floor (which had been repaired). 6 These cases rely largely on New York Real Property Actions and Proceedings Law ("RPAPL") § 745 (2)(a), which sets specific parameters as to what type of delay will trigger an award of use and occupancy. The law states in pertinent part: [HN1] "In a summary proceeding upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner, deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy . . . ."

[*10] Analysis

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Renewal and Reargument Although the line between renewal and reargument is often blurred, the landlord's motion is more properly characterized as a motion for leave to reargue. [HN2] In a motion to reargue under CPLR § 2221(d) the movant alleges that the court has misapprehended or overlooked Facts or the law, while a § 2221(e) motion for leave to renew is premised on new Facts or law not offered on the prior motion that would change the prior determination. Here, the landlord's reply papers in the underlying motion were not available to and thus overlooked by the Court, through no fault of the landlord. 7 The landlord, as is proper in a motion for leave to reargue, draws the Court's attention to case law contained in its reply papers, and not previously considered (see Macklowe v. Browning School, 80 A.D.2d 790, 791, 437 N.Y.S.2d 11, 12 [1st Dept 1981]). Therefore, the landlord's motion for leave to reargue is granted, and the Court will reconsider the merits of the underlying motion to consolidate. 7 Although the order misapprehended the identity of the movant, the status of the movant as the "landlord" had no bearing on the Court's prior determination. [*11] Motion to Consolidate This case presents the Court with an opportunity to synthesize First Department case law that has yet to articulate a singular analysis to be used in determining whether to consolidate a landlord-tenant summary proceeding with an action in Supreme Court. [HN3] The threshold question in considering any motion to consolidate is whether there exists "a common question of law or fact" between the causes of action that are to be consolidated (CPLR § 602(a)). "Consolidation is generally favored by the courts in the interest of judicial economy and ease of decision making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" (Amtorg, 191 A.D.2d at 213). Hence, the landlord's motion to consolidate is based on the axiom that consolidation of actions sharing a common question of law or fact is desirable in the interests of judicial economy, unless prejudice may be demonstrated by the non-movant.

The tenants' argument against consolidation, however, is based upon another recognized principle that summary proceedings brought in Civil Court [*12] should generally remain there since that court is explicitly designated to hear landlord-tenant disputes. According to the tenants, and the cases upon which they rely, unless the movant can establish a necessity for consolidation, the summary proceeding herein should remain in Civil Court. These basic principles, each meritorious on their own, come into apparent conflict in the present matter. The Court opines that [HN4] although the Civil Court may be the preferred forum for expediently resolving landlord-tenant disputes, the preference for maintaining summary proceedings in that forum is not absolute. Rather, this preference may lack justification under the Facts of a given case, at which point consolidation is appropriate so long as the legal prerequisites are met. The dispute at bar represents such a case, and the landlord's motion to consolidate is therefore granted. Where the preference for consolidation and judicial economy has intersected with the preference that summary proceedings remain in Civil Court, resolutions have been disparate within the First Department. For example, in Amtorg, on which the landlord relies in support of its motion to consolidate, the court granted the [*13] tenant's motion to remove and consolidate a summary holdover proceeding with a Supreme Court action for conversion of the proceeds of a letter of credit used to secure a lease (Amtorg, 191 A.D.2d at 213). The court reasoned that consolidation was appropriate given that (1) there were common questions of law and fact and (2) there was no showing of "prejudice by defendants" since possession of the premises was no longer an issue and the only remaining issues were whether Amtorg became a month-to-month tenant and the amount of rent due (Id.). Similarly, in Atherton v. 21 East 92nd Street Corp. (149 A.D.2d 354, 539 N.Y.S.2d 933 [1st Dept 1989]), the First Department noted that the Supreme Court improperly characterized the summary proceeding as one for possession, and that as such, the Supreme Court's denial of consolidation on the ground that the Civil Court had power to determine issues in dispute was improper. According to the First Department, the "absence in the complaint of any demand for possession, which is essential to the maintenance of a summary proceeding renders the Civil Court suit merely a plenary action for the recovery of money." Therefore, consolidation [*14] of the Civil Court summary proceeding for rent arrears and the Supreme Court action for damages for breach of implied warranty of habitability was warranted since the "suits involve[d] common questions of law or fact." However, in 44-46 West 65th Apartment Corp. v.

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Stvan (3 A.D.3d 440, 772 N.Y.S.2d 4 [2004]), on which tenants primarily rely, the Appellate Division, First Department addressed the potential of consolidating a summary holdover proceeding with a breach of contract action in Supreme Court, and noted that neither party alleged that the Civil Court was incapable of resolving the holdover proceeding, and had thus failed to demonstrate the necessity for consolidation (Id. at 442). In 44-46, the tenants moved to stay a holdover proceeding which was commenced by their landlord in Civil Court two years after the landlord had brought a breach of contract action against the tenants in Supreme Court (Id. at 441). In granting the stay, the Supreme Court found a "great deal of coincidence" between the two proceedings. The First Department, however, reversed, "given the distinct nature of the respective causes and the prejudice to [*15] plaintiff in depriving it of the appropriate recognized forum for a summary holdover proceeding" (Id. at 441-42). Therefore, contrary to the tenants' contention, it appears that [HN5] when considering consolidation, the Courts must apply the recognized standard for consolidation, to wit: whether there are common questions of law and fact and an absence of prejudice to the non-movant, and where such standard has not been satisfied, the court may consider whether the movant has established that consolidation is yet necessary in that the Civil Court does not have power to adjudicate the claims before it. In cases where the Court has considered whether consolidation was necessary, the First Department has found that the necessity to consolidate did not exist. Common Question of Law or Fact The tenants' claims in both the summary proceeding and the tort action arise from a common nucleus of Facts. The tenants' claim for breach of the implied warranty of habitability as well as their negligence claim turn substantially on the nature of the living conditions at 845 West End Avenue, and the degree to which the landlord attempted to resolve the alleged inadequate conditions. Contrary [*16] to the tenants' contention, that the summary proceeding involves "rent" and the instant tort action involves an "injury" ignores the reality that the defense to the non-payment of rent, i.e., breach of warranty of habitability, and the alleged injuries resulting from landlord's negligence arises out of and are premised upon the same Facts: the alleged the presence of toxic mold and asbestos in the premises. The testimony and documentary evidence, if any, to support the allegations of mold and its effect on the tenants are material and necessary to both tenants' defense to the summary proceeding and to their claims for damages for personal injuries. Further, tenants' contention regarding the legal distinctions between the various causes of action and de-

fenses at issue, different burdens of proof, uncommon elements, and different forms of relief do not warrant a different result. [HN6] The language of CPLR § 602 permits consolidation where there is a "common question of law or fact" (CPLR § 602(a)) (emphasis added). This factor is met with ease under the circumstances herein. Prejudice to the Non-movant The tenants argue that prejudice [*17] will inure to them both in the delay of the summary proceeding inherent in consolidation, as well as the removal of the summary proceeding from its recognized forum, which in this case, is capable of adjudicating the matter. The Court observes that [HN7] "[t]he mere fact that a case may be somewhat delayed by such consolidation will not suffice to bar it" (Amtorg, 191 A.D.2d at 213). Indeed, it has been held that the "delay in determination of the nonpayment proceeding will not cause prejudice sufficient to justify denial of the motion [to consolidate where] the parties' real controversy concerns money, not possession of the premises" and interest may be awarded if landlord prevails (Moretti v. 860 West Tower, 221 A.D.2d 191, 192, 633 N.Y.S.2d 163 [1st Dept 1995]). The tenants' characterization of the summary proceeding as one primarily about possession as opposed to money is inaccurate. The summary proceeding at issue, a dispute concerning rent arrears, is clearly a controversy about money, not possession (see Atherton v. 21 East 92nd Street Corp., 149 A.D.2d 354, 539 N.Y.S.2d 933 (finding that the "absence in the complaint of any demand for possession, which is essential to the maintenance [*18] of a summary proceeding renders the Civil Court suit merely a plenary action for the recovery of money"]). The tenants' attempts to frame the nature of the summary proceeding as one about possession do not pass muster; although the tenants in Amtorg were out of possession whereas the tenants in the case at bar maintain possession, such distinction does not render possession the central controversy of the summary proceeding at bar as the tenants contend. That Amtorg involved a commercial tenancy as opposed to a residential tenancy, as pointed out by the tenants, is of no moment. Indeed, a landlord may suffer monetary prejudice if forced to delay recovery from a tenant in a non-payment proceeding, and, a dispute over possession adds an element of urgency that would militate in favor of maintaining the summary proceeding in Civil Court. However, any delay of the summary proceedings does not operate as a bar to consolidation because the party here, the landlord, prejudiced by the delay in the resolution of its summary non-payment proceeding supports, consolidation and acquiesces to the delay of the monetary relief it seeks to recover. Even though the landlord seeks use and occupancy [*19] from the time the tenants re-entered the

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premises, the landlord has willingly accepted the prejudice of the delay in the determination of its claim in the summary proceeding for past rent allegedly due. Furthermore, there are no Facts in the record demonstrating that the delay in resolution of the summary proceeding would inure to the detriment of the tenants in litigating their defense to such proceeding. To accept the tenants' conclusory argument that they will be prejudiced by delay of the summary proceeding, is to adopt the notion that delay is tantamount to prejudice per se. The Court rejects this notion. Rather, since the controversy in the summary proceeding is one about payment and not possession, tenants cannot establish that they will suffer prejudice through delay of its resolution. While the tenants may have a legitimate desire to see the proceedings end as soon as possible, this is not prejudice that could tip the scales against consolidation. It has been held that[HN8] "[e]ven where there are common questions of law or fact, consolidation is properly denied if the actions are at markedly different procedural, stages and consolidation would result in undue delay in the [*20] resolution of either matter" (Abrams v. Port Auth. Trans-Hudson Corp., 1 A.D.3d 118, 766 N.Y.S.2d 429 [1st Dept 2003]). In Abrams, the First Department affirmed the denial of consolidation of a summary proceeding already on the trial calendar with a Supreme Court case that had barely advanced to discovery, on the ground that consolidation would delay both the resolution of the Civil Court action and the trial of the consolidated action. In the instant case, the summary proceeding which, according to the tenants, "could be restored," is not on the trial calendar. And, the parties are proceeding with discovery in the tort action and have held depositions. Further, this Court could also place the instant tort action, as consolidated, on a "rocket docket" expedited discovery schedule. In any event, given that any prejudice in the delay of the prosecution of the summary, proceeding inures to the detriment of the movant for consolidation herein, the holding, in Abrams is not controlling under the circumstances herein. Cases also evince a presumption in favor of maintaining a summary proceeding in Civil Court, and the cases that adhere to this presumption [*21] take for granted that the non-movant will be prejudiced by the removal of the summary proceeding from Civil Court. Thus, the First Department has held that "depriving [a party] of the appropriate recognized forum for a summary holdover proceeding" may be prejudicial (44-46, 3 A.D.3d at 442). However, transferring the summary proceeding at issue from a "recognized" forum to the Supreme Court does not amount to prejudice per se, especially since, the summary proceeding here is not a holdover proceeding, but one for non-payment of rent.

Consolidation is further warranted based on the risk of inconsistent judgments as between the tenants' defenses and counterclaims in Civil Court, and their claims in Supreme Court. Given that the outcome of both proceedings hinges upon largely the same set of operative Facts, namely, the existence (or non-existence) of unhealthy living conditions and the action (or inaction) of the landlord with regard to these conditions, the risk of inconsistent judgments is acute. 8 The same factual overlap speaks to the desirability of consolidation for the purpose of judicial economy as well (see, e.g., Cinelli v. Gillman, 68 A.D.2d 854, 855, 414 N.Y.S.2d 556, 557 [1st Dept 1979] [*22] [keeping actions separate would result in "substantial duplication of evidence"]). Although the purpose of a summary proceeding is to resolve landlordtenant disputes in an expeditious fashion, such purpose is undermined in light of the tenants' affirmative defenses and counterclaims, which beg discovery. To force the landlord to proceed in Civil Court and rebut these defenses and counterclaims without the benefit of discovery would amount to prejudice by the movant. 8 By way of example, it would be entirely inconsistent for the landlord to be held responsible for serious illness contracted by its tenants in the negligence action yet at the same time, to find that the implied warranty of habitability was not breached in the summary proceeding. Accordingly, as there is a common question of law or fact, the summary proceeding is essentially one to recover money, and there is no demonstrable prejudice to the tenants upon consolidation, consolidation under CPLR § 602(b) [*23] is warranted (see, Moretti v. 860 West Tower, 221 A.D.2d 191, 633 N.Y.S.2d 163, supra [where cases involved common questions of law and fact and plaintiff would be unable to obtain full redress of her negligence and injunctive relief claims in the non-payment proceeding, delay in determination of non-payment proceeding will not cause sufficient prejudice and parties' real controversy involves money, not possession, consolidation is warranted]). Payment of Rent Arrears and Use and Occupancy The Supreme Court retains broad discretion in deciding whether to compel payment of use and occupancy pendente lite (Alphonse Hotel Corp. v. 76 Corp., 273 A.D.2d 124, 710 N.Y.S.2d 890 [1st Dept 2000]). Payment of use and occupancy pendente lite "accommodates the competing interests of the parties in affording necessary and fair protection to both and preserves the status quo until a final judgment is rendered" (MMB Assoc. v. Dayan, 169 A.D.2d 422, 564 N.Y.S.2d 146, 147 [1st Dept 1991]). According to the December 2002 stipulation, the

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tenants' resumption of occupancy and payment of rent in correlation therewith was conditioned upon restoration of the premises to a "safe and habitable [*24] condition." For the purposes of the instant motion, the tenants' reentry of the premises and payment of July 2004 rent strongly indicate that the landlord substantially complied with the stipulation and Scope of Work, and that the premises were safe and habitable in July of 2004 and going forward. Thus, having entered into possession, tenants should not now be permitted to reap the benefits of occupancy and, at the same time, avoid the payment of rent (see Eli Haddad Corp. v. Cal Redmond Studio, 102 A.D.2d 730, 731, 476 N.Y.S.2d 864, 866 [1st Dept 1984]; 9 see also Abright v. Shapiro, 92 A.D.2d 452, 458 N.Y.S.2d 913 [1st Dept 1983] [where landlord's summary proceedings in Civil Court against certain doctors was consolidated with a Supreme Court action for declaratory that their apartments were rent stabilized, denial of landlord's application for an injunction prohibiting tenants from continued use and occupancy of the premises was conditioned upon payment of current rent as it became due . . . ]). 9 Though the controversy between landlord and tenant in Eli Haddad was very different than the present case, the court's declaration encapsulates the untenable nature of the tenants' position. [*25] The Court observes that the stipulation states that the parties shall be bound by the remediation and property determinations of the company mutually chosen to facilitate the work done to the premises. As such, the tenants have no grounds to withhold rent based on soft goods left in their living room, or for other defects (improperly-functioning intercom, cracked and discolored bathroom tiles, improperly finished bedroom floor, exposed Sheetrock, etc. . . . ) which may or may not have already been cured, but still do not render the premises unsafe and uninhabitable so as to justify rent-free living until final disposition. Additionally, the existence of housing code violations on the premises cannot be said to summarily entitle the tenants to disturb the status quo and withhold rent at this juncture; this is an issue for trial (see Park West Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 327, 391 N.E.2d 1288, 418 N.Y.S.2d 310, 316 [1979] ["[A] simple finding that conditions on the lease premises are in violation of an applicable housing code does not necessarily constitute automatic breach of the warranty. In some instances, it may be that the code violation is de minimis or has no impact upon habitability]). [*26] The tenants' reliance on Hung-Thanh and its progeny to rebuff the landlord's motion for rent arrears and use and occupancy is misplaced. In Hung-Thanh, the tenant had not sought any adjournments (see RPAPL § 745, subd. 2[a]), moved to stay the proceeding, or other-

wise sought the favor of the court; indeed, any delay of the trial in the matter was occasioned by the landlord's own request for disclosure. Therefore, according to the First Department, in such procedural posture, it was improvident for the court to require interim rent payments to the landlord. However, the tenants herein are seeking favorable relief from this court, in the form of its personal injury action, and, the nature of the tenants' defense and counterclaim to non-payment and affirmative action in Supreme Court necessitates discovery and any concomitant delay associated with such discovery. Accordingly, the Court hereby orders the tenant to tender payment of rent arrears, directly to the landlord, from August 2004 through December 2004 in the amount of $ 14,596.19, as well as $ 2,992.92 per month retroactively from January 2005 going forward until final disposition of the proceedings. [*27] 10 This payment preserves the status quo between landlord and tenants until final judgment (MMB Assoc., 169 A.D.2d at 422). Further, the payment represents no prejudice to the tenants as they may be entitled to an appropriate refund or rent credit should their claims prove meritorious (East 4th St. Garage, Inc. v. Estate of Berkowitz, 265 A.D.2d 249, 697 N.Y.S.2d 266, 267 [1st Dept 1999]). 10 While the tenants contend that it is inappropriate to award rent arrears and use and occupancy to the landlord, they do not contest the accuracy of the rent amounts sought by the landlord. Furthermore, the tenants request to have the moneys deposited into the Himmelstein McConnell escrow account is denied. As the tenant has failed to justify non-payment of rent pursuant to the parties' lease agreement during the pendency of these proceedings, in this Court's discretion, defendant's application for use and occupancy is granted. Accordingly, it is hereby ORDERED that defendant's motion to renew and [*28] reargue is granted solely to the extent of granting reargument; and it is further ORDERED that the motion pursuant to CPLR § 602(b) to consolidate is granted and the above-captioned action is consolidated in this Court with Nostra Realty Corporation v. Debra Carroll and James Carroll, Index No. 103564/01 (Civil Court, New York County) for discovery and trial purposes only; and it is further ORDERED that defendant's motion for use and occupancy, pendente lite, is granted, and the tenants shall tender to landlord payment of rent arrears for August and September 2004 at the rate of $ 2,809.66 per month, and rent arrears for October, November, and December 2004 at the rate of $ 2,992.29 per month, and $ 2,992.92 per

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month for January through March 2005, within 30 days of service of this order with notice of entry; tenants shall also tender $ 2,992.92 per month for April 2005 and continuing each month thereafter as such payment becomes due pursuant to the lease agreement; such payments shall be made without prejudice; and it is further ORDERED that the Clerk of Civil Court, New York County, shall transfer the papers on file in Nostra Realty Corporation v. Debra Carroll and James Carroll under Index No. 103564/01 [*29] to the Clerk of this Court upon service of a certified copy of this order and payment of the appropriate fee, if any; and it is further

ORDERED that the note of issue shall be filed by April 11, 2005; and it is further ORDERED that defendant shall serve a copy of this order with notice of entry upon all parties within 20 days of entry. The foregoing shall constitute the decision der of the court.

11

and or-

11 This decision has been modified for publication.

49 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 [*1] Janine Gordon, Plaintiff, v. Grace Roselli, a/k/a Grace Louhaichy, and Vera Realty Corp., Defendants. 17392/97 SUPREME COURT OF NEW YORK, KINGS COUNTY 2004 NY Slip Op 51140U; 5 Misc. 3d 1001A; 798 N.Y.S.2d 709; 2004 N.Y. Misc. LEXIS 1659 June 29, 2004, Decided NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

JUDGES: David I. Schmidt, J. OPINION BY: David I. Schmidt

DISPOSITION: Defendant Vera Realty's motion for summary judgment granted in its entirety. CORE TERMS: dog's, foot, apartment, vicious propensities, landlord, swing, tire, strict liability, dog bite, tenant's, toy, summary judgment, aggressive, vicious, bitten, roam, deposition, attacked, dog owner, causes of action, full knowledge, personal knowledge, relieved, notice, roommate, clothing, lunged, thigh, sleep, bed HEADNOTES [***709] [**1001A] Animals--Liability for Animal Bite.

OPINION David I. Schmidt, J. Defendant Vera Realty Corporation (Vera) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiff Janine Gordon as well as any cross-claims asserted against it. This action arises out of an incident that occurred on January 18, 1997, in which plaintiff was attacked and bitten by a dog owned by Grace Roselli a/k/a Grace Louhaichy (Roselli). At the time of the accident, plaintiff and Roselli were living as roommates in a building owned by Vera and located at 68 John Street in Brooklyn. Plaintiff

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and Roselli entered into a lease, signed by both women as co-tenants, for a five-year period beginning October 1, 1996. Plaintiff testified at her deposition that she had been introduced to Roselli's dog, a mixed-breed pit bull [*2] named Tar, at Roselli's previous apartment, which was located in another building owned by Vera (or a related entity) and located at 68 Jay Street in Brooklyn. Plaintiff stated that sometime in late 1995 or early 1996 Roselli informed her of Tar's previous aggressive behavior, including incidents in which the dog bit a woman on the thigh inside an apartment in Manhattan, ripped the clothing of a man in the elevator of 68 Jay Street, and lunged at and tore the clothing of a homeless man who asked for change. Despite her knowledge of Tar's vicious behavior, plaintiff agreed to move in with Roselli and Tar in October 1996. After the two women moved into the apartment, they often allowed Tar to roam unrestrained around the space. Plaintiff cared for Tar when Roselli was on vacation, at times letting the dog sleep with her in her bed. On the day of the incident, plaintiff testified that she and Roselli had been cleaning the apartment and were chatting in Roselli's room. Plaintiff rested her foot on a tire swing, which was suspended from the ceiling as a toy for Tar. Plaintiff was aware that the dog sometimes swatted at the tire swing with his paws and gnawed on the tire. After plaintiff placed her foot on the tire, she stated that Tar placed his mouth over her foot. Plaintiff then removed her foot from the tire swing. Roselli chastised Tar and then placed her foot on the swing to see if Tar would respond in the same manner. When Tar did not respond to Roselli's foot on the swing, plaintiff, at Roselli's request, placed her foot on the swing once more to test the dog's reaction. This time, Tar lunged at plaintiff, biting her thigh in two places. Plaintiff's injuries required at least 40 sutures and a skin graft. On or about May 14, 1997, plaintiff commenced the instant action against Vera and Roselli. Roselli was dismissed from the action based on lack of service but was subsequently reinstated through the commencement of a new action and consolidation. Roselli later issued a notice of bankruptcy to plaintiff and obtained discharge of debtor status on or about October 21, 1999. Roselli's attorneys then moved to withdraw as her counsel in this action and were permitted to do so; it appears from the record that she remains unrepresented by counsel. In her complaint, plaintiff outlines two causes of action against Vera, the movant herein, one sounding in strict liability and one in negligence. Plaintiff asserts that Joshua Guttman, the principal of Vera, knew of Tar's vicious propensities and maintained control over the subject apartment. In support of such allegation, plaintiff presents the affidavit of Sharon Strassfeld, who mediated

a dispute between plaintiff and Guttman over a rent payment issue, in which she states that Guttman said at the mediation that he knew of Tar's vicious propensities and of a prior incident in which Tar attacked a man at 68 Jay Street, a building which he owned. In support of its motion for summary judgment, Vera presents Guttman's deposition testimony, in which he states that he had seen the dog before the subject accident but was not aware that the dog had bitten anyone before it attacked plaintiff. At his deposition, Guttman claimed that he did not know of the dog's vicious propensities and did not remember saying that he knew the dog was dangerous. Vera also alleges that plaintiff's actions in placing her foot on the tire swing constituted an intervening act and superceding cause of the dog bite, relieving the landlord of liability. "To recover against a landlord in strict liability for a dog bite, a plaintiff 'must prove that the landlord had notice that the dog was being harbored on the premises, and that the landlord knew or should have known that the dog had vicious propensities'" (Wilson v Livingston, 305 A.D.2d 585, 586, 762 N.Y.S.2d 408 [2003], quoting Madaia v Petro, 291 A.D.2d 482, 738 N.Y.S.2d 676 [2002]). However, even though [*3] liability in dog bite cases is absolute and not dependant on proof of negligence, a dog owner can be relieved of liability where it can be shown that the injured plaintiff had full knowledge of the dog's vicious propensities and voluntarily brought about the injury (Morales v Quinones, 72 A.D.2d 519, 420 N.Y.S.2d 899 [1979]). Thus, it logically follows that a landlord, who has less control over a dog than an owner, can be relieved from liability in the same situation. In Vannucci v Vannucci (180 Misc. 2d 182, 687 N.Y.S.2d 882 [1999]), the court held that the adult son of the dog's owners, who was bitten by his parents' dog while visiting their residence, could not recover for his injury based on strict liability since he had personal knowledge of the dog's vicious propensities. That court found that the plaintiff's personal knowledge of the dog "removes this case from those situations where strict liability must be imposed" (id. at 184; see also Di Grazia v Castronova, 48 A.D.2d 249, 368 N.Y.S.2d 898 [1975]). In the instant case, plaintiff chose to move into an apartment with Tar, in spite of her knowledge of the dog's previous vicious behavior. Plaintiff did not require that her roommate keep the dog chained or caged, but allowed the dog to roam the apartment and to sleep on her bed. At the time of the accident, plaintiff placed her foot on the dog's toy, even after the dog reacted aggressively to her doing so. In such a situation, plaintiff's behavior in light of her knowledge of the dog's vicious propensities removes this situation from one where strict liability would be appropriate.

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Plaintiff's other cause of action against Vera sounds in negligence. While it is clear that a landlord has a duty to protect third parties from the dog of a tenant where the landlord has knowledge of the dog's vicious propensities and control of the premises, no liability should attach where the plaintiff assumed the risks involved in her situation (see Arbegast v Bd. of Ed. of South New Berlin Cent. Sch., 65 N.Y.2d 161, 480 N.E.2d 365, 490 N.Y.S.2d 751 [1985]; Hommel v Benshoff, 178 Misc. 2d 1038, 682 N.Y.S.2d 546 [1998]). Here, plaintiff assumed the risks entailed by living with an aggressive dog when she moved into the apartment with Tar with full knowledge of his previous aggressive behavior, and when she placed her foot on Tar's toy after his previous violent reaction. "It is well-established that the doctrine of implied assumption of the risk may be a viable defense in so-called dog bite cases" (Pisciotta v Parisi, 155 A.D.2d 422, 422, 547 N.Y.S.2d 352 [1998]). Plaintiff's injuries were precipitated by her own actions, including living with the dog, allowing the dog to roam free in the apartment, and placing her foot on the dog's toy (see Seiden v A. Silmac Glass Corp., 251 A.D.2d 141, 674

N.Y.S.2d 316 [1998]). While the dog had vicious propensities of which the landlord may or may not have been aware, plaintiff was fully aware of such propensities and nevertheless engaged in the above-described behavior. "Obviously, there can be no negligence on the part of the owner in not instructing a person as to that which he already knows; and if, before injury, such person ascertain all the information which could have been imparted to him, he is thereafter charged with knowledge thereof" ( Hosmer v Carney, 228 N.Y. 73, 76, 126 N.E. 650 [1920]). Similarly, negligence cannot be imputed to a landlord for not protecting a tenant from a dog living in her own apartment, where such tenant admittedly had full knowledge of the dog's vicious history and where such tenant's actions served to bring about the attack. Accordingly, defendant Vera Realty's motion for summary judgment is granted in its entirety. The foregoing constitutes the decision, order and judgment of the court. Dated: June 29, 2004 [*4]

50 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 William T. Kivlehan, Plaintiff, v. 2220 Adams Place Realty Corporation, Defendant. Index No:15373-00 SUPREME COURT OF NEW YORK, BRONX COUNTY 2 Misc. 3d 851; 774 N.Y.S.2d 626; 2003 N.Y. Misc. LEXIS 1697 October 31, 2003, Decided DISPOSITION: mary granted.

[***1] Defendant's motion for sum-

CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff police officer filed a complaint against defendant realty corporation seeking recovery based on common law negligence and N.Y. Gen. Mun. Law § 205-e. The corporation filed an application for summary judgment to dismiss the officer-

's complaint. OVERVIEW: During a drug patrol, the officer injured his wrist breaking the glass on the outer door of an apartment building when he heard his fellow officers call for help. He contended that the corporation's locking of the outer vestibule door constituted negligence per se. The court held that the actions undertaken by the corporation could not reasonably be construed as negligence. The corporation contacted the police and the tenant whose brother was selling drugs; the building was enrolled in

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the "Clean Halls Program;" the outer vestibule door was locked; and any and all information of which the corporation's president was possessed was turned over to the police department. Further, the firefighter's rule barred the officer's action in common law negligence. It was the presence of the drug dealers that created the need for the officer's presence. If the corporation owed a duty to the officer, it was discharged when keys to the outer door were given to his employer for his use. Finally, there was no violation of N.Y. Mult. Dwell. Law § 50-a, as the law did not prohibit the locking of the outer doors. The tenants chose to have the doors locked after 10 p.m. for their safety. OUTCOME: The application for summary judgment was granted in its entirety. The officer's complaint was dismissed. CORE TERMS: door, outer, locked, tenant, police officer, vestibule, common-law, police department, drug dealer, causes of action, landlord, front, lobby, drug activity, locking, multiple dwelling, summary judgment, entrance, front door, intercom, evict, inner, suspected, apartment, street, wrist, fled, radio, public access, firefighter LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Burdens of Production & Proof > General Overview Civil Procedure > Summary Judgment > Opposition > General Overview Torts > Negligence > General Overview [HN1] In order to succeed, a cause of action must be based on more than speculation. Moreover, conjecture alone does not suffice to defeat a motion for summary judgment. Torts > Negligence > General Overview Torts > Premises Liability & Property > Lessees & Lessors > Liabilities of Lessors > Negligence > General Overview [HN2] A common law negligence cause of action cannot be predicated upon the alleged negligence that created the need for the plaintiff's services. Torts > Negligence > General Overview Torts > Premises Liability & Property > General Premises Liability > Defenses > Firefighter's Rule [HN3] Pursuant to the firefighter's rule, police officers may not recover in common law negligence for line-of-

duty injuries resulting from risks associated with the particular dangers inherent in that type of employment. The scope of the bar to recovery is that the firefighter rule precludes a police officer from recovering in tort when the performance of his duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury. Continued application of the bar is presently grounded on the public policy against awarding damages to police for hazards that create a need for their services and which they are hired, specially trained, and compensated to confront. Torts > Negligence > General Overview Torts > Premises Liability & Property > General Premises Liability > Defenses > Firefighter's Rule [HN4] The determinative factor in applying the firefighter rule's bar is whether the injury sustained is related to the particular dangers which police officers are expected to assume as part of their duties. The necessary connection is present where the performance of the police officer's duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury. In other words, where some act taken in furtherance of a specific police function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common law negligence. Torts > Negligence > General Overview [HN5] Under New York law, a plaintiff may establish negligence by showing: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of that duty; and (3) injury suffered by the plaintiff as a result of that breach. Torts > Negligence > Duty > General Overview [HN6] Duty is essentially a legal term by which the court expresses its conclusion that there can be liability. It tells the court whether the risk to which one person exposes another is within the protection of the law. In fixing the bounds of that duty, not only logic and science, but policy play an important role. Governments > Local Governments > Claims By & Against Torts > Negligence > Proof > Violations of Law > General Overview [HN7] To assert a cause of action under N.Y. Gen. Mun. Law § 205-e, a plaintiff must identify a statute or ordinance with which the defendant failed to comply and must, in addition, set forth facts from which it may be in-

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ferred that the defendant's negligence directly or indirectly caused harm to the police officer. Torts > Negligence > Proof > Violations of Law > General Overview [HN8] See N.Y. Gen. Mun. Law § 205-e(1), (3). Governments > State & Territorial Governments > Police Power [HN9] See N.Y. Mult. Dwell. Law § 50-a. Torts > Negligence > Proof > Violations of Law > Ordinances Torts > Negligence > Proof > Violations of Law > Statutes [HN10] As a rule, violation of a state statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability. By contrast, violation of a municipal ordinance constitutes only evidence of negligence. Governments > State & Territorial Governments > Police Power Torts > Negligence > Proof > Violations of Law > Statutes [HN11] For the purpose of negligence per se, the statutory language of N.Y. Mult. Dwell. Law § 50-a neither mandates a locked outer vestibule door, nor prohibits it. The language of that section merely states that public access is to be given to the main entrance or lobby. Governments > State & Territorial Governments > Police Power [HN12] The gist of N.Y. Mult. Dwell. Law § 50-a is to provide access to the intercom system for the convenience of the tenants of the building so that they may, from the safety of their residence, determine whether or not they wish to allow a visitor into the building. Civil Procedure > Summary Judgment > Standards > Appropriateness [HN13] Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party. HEADNOTES Negligence -- Maintenance of Premises -- Illicit

Drug Activity 1. In an action by a police officer to recover against the owner of a multiple dwelling for injuries he sustained when he cut his wrist while attempting to enter the locked front door of the building in order to assist other officers who were arresting a suspected drug dealer who had fled into the building, the owner of the building was not negligent for failing to take more aggressive steps to evict a tenant who was the brother of the suspected drug dealer. Defendant owner's actions could not be considered as mere acquiescence in the brother's presence around the building where the owner contacted the police, contacted the tenant, enrolled the building in a program that enlisted police support in keeping the premises free of trespassers, locked the outer vestibule door, and turned over all information it possessed to the police. Negligence -- Maintenance of Premises -- Failure to Evict Tenant Based on Illicit Drug Activity 2. In an action by a police officer to recover against the owner of a multiple dwelling for injuries he sustained when he cut his wrist while attempting to enter the locked front door of the building in order to assist other officers who were arresting a suspected drug dealer who had fled into the building, the failure of the owner of the building to evict a tenant who was the brother of the suspected drug dealer did not provide an appropriate basis on which to make a finding of negligence. Sustaining plaintiff's contention would require speculation that any eviction proceedings would have terminated in the defendant's favor and that the proceedings would have been completed before this incident occurred. Negligence -- Injuries to Police Officers -- Illicit Drug Activity 3. A police officer may not recover on a commonlaw negligence claim against the owner of a multiple dwelling for injuries he sustained when he cut his wrist while attempting to enter the locked front door of the building in order to assist other officers who were arresting a suspected drug dealer who had fled into the building. A common-law negligence cause of action cannot be predicated upon the alleged negligence that created the need for the plaintiff's services, and it was the presence of illicit drug activity that created the need for the plaintiff's presence. In addition, during the apprehension of the drug dealer, it was the exigent circumstances created by the need to assist the officers who were engaged in apprehending the perpetrator that caused plaintiff to sustain his injuries. Plaintiff's performance of his duties exposed him to "the heightened risk" of sustaining injury, thereby negating recovery. Negligence -- Injuries to Police Officers -- Violation of Statute -- Locked Front Vestibule Door of

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Multiple Dwelling 4. General Municipal Law § 205-e, which permits recovery by a police officer where a defendant's violation of a statute or ordinance caused harm to the officer, did not provide a basis for an officer to recover against the owner of a multiple dwelling for injuries he sustained when he cut his wrist while attempting to enter the locked front door of the building in order to assist other officers who were arresting a suspected drug dealer who had fled into the building. Locking of the outer door after 10:00 p.m. was not a violation of Multiple Dwelling Law § 50-a, which neither mandates a locked outer door nor prohibits it. The tenants of the building agreed to, and insisted upon, the locking of the outer door so as to better insure their safety in the building. It would be repugnant to interpret section 50-a in a manner that gives public access to the premises a higher priority over safety considerations of the inhabitants of the building. Moreover, plaintiff failed to refute defendant's contention that the police department was given keys to the building. The failure of the police department to distribute keys to officers who may need access to the property should not be shifted to the defendant. COUNSEL: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York City (Brett R. Leitner of counsel), for defendant. O'Brien, McLaughlin & Kenny, Lynbrook (William J. McLaughlin of counsel), for plaintiff. JUDGES: Gerald Esposito, J. OPINION BY: Gerald Esposito OPINION [**628] [*852] Gerald Esposito, J. Motion by defendant for summary judgment to dismiss plaintiff's complaint is decided in accordance with the following: [*853] In this action, the plaintiff seeks recovery for an injury he sustained to his wrist on August 24, 1999. On that date, the plaintiff was employed as a police officer with the New York City Police Department in the Tracer Unit, in the 48th Precinct, Bronx, New York. The Tracer Unit concentrates on drug enforcement tactics within problem areas of a given precinct. As stated in the affirmation in opposition, the plaintiff's version of how he was injured is as follows: "During the course of his tour [of duty] on August 24, 1999, the Tracer Unit was involved in a street narcotics enforcement unit operation. The target of this operation

was drug sales which were taking place in front of defendant's building . . . [The p]laintiff [***2] was stationed on the roof of an adjacent building observing activities taking place in front of [the building when he] observed a male Latino [later revealed to be Mel Apodaca, the brother of one of the tenants in the building] conducting drug sales . . . [The drugs were being stored in a] baby carriage . . . [The plaintiff] relayed this information to his partner [who then entered a radio patrol car with two other officers]. When Mr. Apodaca observed the patrol car approaching the premises, he fled into the building, followed shortly thereafter by the three police officers . . . [The plaintiff] left the adjacent rooftop . . . to assist in the apprehension. While en route to the front of 2220 Adams Place, [the plaintiff] heard his fellow officers calling for help on the police radio . . . Upon arriving at the front door of 2220 Adams Place, [the plaintiff] found that the outer door to the premises was locked. The building had a vestibule area with a door communication intercom system to permit tenants to buzz open the interior entry door to the hallway of the premises . . . [The plaintiff] began yelling and knocking on the windows of the adjoining apartment in the hope that someone [***3] would open the outer door . . . Realizing that he could no longer stand by and wait for someone to open the locked door for him, [the plaintiff] broke the glass in the door with his portable radio and put his hand through the glass to unlock the door. Unfortunately, in the course of this process, [the plaintiff] seriously injured himself, suffering a severe laceration to the right hand and wrist . . . After gaining access to the vestibule, a [*854] second officer came by and, time being of the essence, broke the glass to the interior door and the two officers entered the premises and proceeded to the fifth floor to assist in the arrest of Mr. Apodaca."

As stated in plaintiff's examination before trial, a copy of the transcript of which is annexed to the moving papers as exhibit D (hereinafter referred to as plaintiff's tr.), the incident took place between 11:30 and 12:00

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p.m. (Plaintiff's tr. at 27.) He did not recall the address of the adjacent building where he was stationed on the date of the incident. He was there as part of the street narcotic enforcement unit which would observe drug sale transactions and arrest the individuals involved. (Plaintiff's tr. at 11.) He did not recall [***4] how many police officers were involved in this operation on the date in question. Plaintiff knew that there was a program entitled the "Clean Halls" program whereby a landlord would execute an affidavit requesting that individuals be arrested as trespassers if they are present in the [**629] building but are not there as tenants or visitors. He did not know whether, as part of that program, the landlord would have to supply the police department with keys to the building, and did not know if the defendant was a member of the "Clean Halls" program; however, he did know police officers who did have keys to buildings. (Plaintiff's tr. at 21.) When the decision was made to arrest Mr. Apodaca, the plaintiff radioed the information to his partner. Plaintiff's partner "went down the street. He was in a marked radio motor patrol car. Mr. Apodaca saw him coming down the street. He fled inside the building. [Plaintiff's] partner attempted to get in. And he got in. He got in with [two other officers]." (Id. at 25.) Plaintiff described the locked outer front door as being a wire mesh steel door. (Id. at 29.) To gain entry to the building the plaintiff "struck the window with [his] radio and then at that point [***5] [he] severed [the] nerve on [his] hand." (Id. at 30.) When asked if he actually injured his hand while he was putting the radio through the window, the plaintiff answered, "Yes." (Id. at 31.) Mr. Apodaca was subsequently apprehended, tried and convicted of criminal sale of a controlled substance. (Id. at 38-39.) Plaintiff alleges two causes of action in his complaint. The first cause of action seeks recovery based on common-law negligence. The second cause of action seeks recovery pursuant to General Municipal Law § 205-e. Briefly stated, plaintiff contends that the defendant was negligent in two respects: the first is in allowing criminal activity to be transacted on its premises, and the second is in locking the outer vestibule door. [*855] On October 23, 2001, Ms. Catherine Macri testified at an examination before trial on behalf of the defendant. A copy of her testimony is annexed to the moving papers as exhibit E (hereinafter referred to as tr.). Briefly stated, Ms. Macri testified that she is the president of the defendant corporation. (Tr. at 7.) She is also employed by Cosmopolitan Property Management, Inc., as its president. Cosmopolitan [***6] is employed by the defendant as its managing agent and was the managing agent at the time the plaintiff was injured. (Tr. at 6.) The address 2220 Adams Place, Bronx, New York, is

a multifamily residential building with 15 units, 3 on each floor. (Tr. at 11.) In 1996, Ms. Macri enrolled this building in the police department's "Clean Halls" program because the block where the building is located was experiencing "a lot of drug activity." (Tr. at 13.) The program requires that the police department be given an affidavit of enrollment, keys to the building, and a list of tenants, every three months. "In return, the police department is supposed to watch the building for you. Make their rounds, arrest anyone who's loitering in front of the building, who does not belong there, who cannot prove that they belong in the building." (Tr. at 13-14.) A tenant named Lisa Cosme resided in unit E3, on the fifth floor, at the time the plaintiff was injured. She had resided in the building since 1994. While Ms. Macri did not receive any complaints from tenants or the police regarding Ms. Cosme, the superintendent of the building told her that Ms. Cosme's brother had been released from jail, and as [***7] a result thereof, "there was drug activity and people hanging out in front of the building." (Tr. at 16.) Ms. Macri contacted the police and gave them all the information which was available to her. She also telephoned Ms. Cosme and informed her that the superintendent had advised her that Ms. Cosme's brother had been released from prison and that there was drug activity "going on" in front of the building, "and perhaps that [**630] was her brother." (Id.) Ms. Macri asked Ms. Cosme not to stay in front of the building. Ms. Cosme responded that her brother was leaving and that she would talk to him about it. (Tr. at 17.) Ms. Macri testified about why the outer door was locked on the night of the incident in which the plaintiff sustained his injuries. She stated that the tenants agreed to have the outer door locked after 10:00 p.m. to avoid loitering and drug sales occurring between the outer and inner doors of the building [*856] entrance. Tenants were able to exit the building without a key but no one could enter the inner vestibule without a key. (Tr. at 23.) The key to the inner door also opened the outer door. (Tr. at 25.) With respect to plaintiff's first cause of action for common-law negligence, plaintiff [***8] contends that the defendant created a dangerous condition, had actual notice of the condition, and failed to remedy it, when defendant did not move to evict Ms. Cosme from her apartment after Ms. Cosme's brother was released from prison and began "hanging out" in front of the building. Plaintiff further contends that defendant's locking of the outer vestibule door constitutes negligence per se in that it constitutes a violation of Multiple Dwelling Law § 50-a. Consideration of defendant's statutory violation will be discussed infra in this opinion.

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[1] It is plaintiff's contention that "defendant's failure to take any action against the tenant . . . who was housing a known drug offender, other than a phone call to the police, could be construed by a reasonable person as a negligent act." (Affirmation in opposition ¶ 20.) Defendant's actions cannot, however, be considered as mere acquiescence in that: the police were contacted; Ms. Cosme was contacted; the building was enrolled in the "Clean Halls" program; the outer vestibule door was locked; and any and all information of which Ms. Macri was possessed was turned over to the police department. [***9] Under the circumstances, the actions undertaken by the defendant cannot reasonably be construed as negligence. (See People v. Campbell, 45 Misc. 2d 201, 203, 256 N.Y.S.2d 467 [1965].) Plaintiff contends further that Real Property Law, article 7, § 231, which provides a landlord with the means to evict a tenant based on drug activity, should have been utilized. [2] Consideration of plaintiff's contention, that the defendant's failure to evict Ms. Cosme is a negligent act, requires speculation that had the defendant attempted to evict Ms. Cosme the proceedings would have terminated in the defendant's favor and that the proceedings would have been completed before this incident occurred. The speculative nature of this argument is reflected in the affirmation in opposition (¶ 20), wherein counsel argues that "[h]ad the defendant herein taken advantage of this statute, it is possible that the occurrence which led to Officer Kivlehan's injury would never have occurred." As such, it does not provide an appropriate basis on which to make a finding of negligence. [HN1] "In order to succeed, a cause of action [*857] must be based on more than speculation." (Smith v. Wisch, 77 A.D.2d 619, 619, 430 N.Y.S.2d 115 [1980]]; [***10] see Island Associated Coop v. Hartmann, 118 A.D.2d 830, 500 N.Y.S.2d 315 [1986]; see also Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402, 564 N.Y.S.2d 326 [1991].) Moreover, "[c]onjecture alone does not suffice to defeat a summary judgment motion." (Rogan v. Giannotto, 151 A.D.2d 655, 656, 542 N.Y.S.2d 716 [1989].) [3] Further, [HN2] a "common-law negligence cause of action cannot be predicated upon [the] alleged negligence that created the [**631] need for [the plaintiff's] . . . services." (Rogan, supra at 656 ) In Rogan, the plaintiff firefighters alleged a cause of action for common-law negligence as a consequence of the landlord's failure to maintain operable smoke detectors. The plaintiffs were injured "as they attempted to climb a scuttle ladder which led to the roof" of a building which was adjacent to the building that was burning. (Id.) The Appellate Division, Second Department, reversed the Supreme Court's denial of summary judgment, and granted

the landlord's application to dismiss the complaint and all cross claims. In Zanghi v. Niagara Frontier Transp. Comn. (85 N.Y.2d 423, 436, 649 N.E.2d 1167, 626 N.Y.S.2d 23 [1995]), the Court of Appeals restated its holding in Cooper v. City of New York (81 NY2d 584, 619 N.E.2d 369, 601 N.Y.S.2d 432 [1993]) [***11] with respect to the application of the firefighter's rule to a cause of action in common-law negligence. [HN3] Pursuant to the firefighter's rule as set forth in Cooper (supra), , "police [officers] may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment . . . [The scope of the bar to recovery, the High Court concluded, is that] the firefighter rule precludes a police officer . . . from recovering in tort when the performance of his . . . duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury." (Zanghi at 436.) The Court in Zanghi (supra at 439) further noted that "[c]ontinued application of the bar is presently grounded on the public policy against awarding damages to . . . police for hazards 'that create a need for their services' and which they are hired, specially trained and compensated to confront." [HN4] The "determinative factor," the Court noted, in applying the firefighter rule's bar is "whether the injury sustained is related to the particular dangers which police officers . . . are expected to assume as part [***12] of their duties . . . [The] necessary connection is present where the performance of the police officer's . . . duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury. In other words, where [*858] some act taken in furtherance of a specific police . . . function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common-law negligence." (Id. at 439.) In the matter at bar, the plaintiff contends that the defendant's common-law negligence is based on its failure to remove the drug dealers from the premises. It was the presence of the drug dealers, though, that created the need for the plaintiff's presence. In addition, during the apprehension of the drug dealers, it was exigent circumstances created by the need to assist the officers who were engaged in apprehending the perpetrators that led to the plaintiff sustaining his injuries. Plaintiff's performance of his duties exposed him to "the heightened risk" of his sustaining his injuries. Accordingly, plaintiff's common-law negligence claim fails in this regard as well. In Kazanoff v. United States of Am. (945 F.2d 32 [2d Cir 1991]), [***13] the Court of Appeals for the Second Circuit in New York had occasion to consider the

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propriety of summary judgment where a tenant was murdered in her apartment by two nonresident assailants. The men had gained entry into the building when the postal employee exited the lobby through a locked door. The men just walked through when the employee left. The court affirmed a finding of summary judgment on behalf of the defendant United States of America. In pertinent part, the court noted that [HN5] under New York law, the [**632] plaintiff may establish negligence by showing: "(1) the existence of a duty on defendant's part as to the plaintiff; (2) a breach of that duty; and (3) injury suffered by the plaintiff as a result of that breach. (Afkins v. Glens Falls City Sch. Dist. 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644.)" (Kazanoff, supra at 35.) The concept of duty and its application, the Kazanoff court noted, was set forth by the New York Court of Appeals in De Angelis v. Lutheran Med. Ctr. (58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 462 N.Y.S.2d 626 [1983]) as follows: [HN6] "Duty is essentially a legal term by which we express our conclusion that there can be liability . . . It tells [***14] us whether the risk to which one person exposes another is within the protection of the law. In fixing the bounds of that duty, not only logic and science, but policy play an important role . . . "A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure [*859] to tort liability almost without limit. It is always tempting, especially when symmetry and sympathy would so seem to be best served, to impose new duties, and, concomitantly, liabilities, regardless of the economic and social burden. But, absent legislative intervention, the fixing of the 'orbit' of duty, as here, in the end is the responsibility of the courts . . . ." (See also Kazanoff, supra [citations omitted].)

The police department knew that on August 24, 1999, a drug enforcement operation was taking place in front of 2220 Adams Place and should have anticipated that its officers might need an entry key. If the defendant owed a duty to the plaintiff, it was discharged when keys to the outer door were given to his employer for his use. Plaintiff's second cause of action seeks recovery pursuant to General Municipal Law § 205-e [***15] . [HN7] To assert this cause of action the plaintiff "must

identify a statute or ordinance with which the defendant failed to comply and must, in addition, set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused harm to the police officer." (Aversa v. New York City Hous. Auth., 233 A.D.2d 217, 218, 650 N.Y.S.2d 117 [1st Dept 1996] [citation omitted]; see also Florio v. City of New York, 226 A.D.2d 148, 640 N.Y.S.2d 92 [1996].) General Municipal Law § 205-e (1), in pertinent part, provides that an injured police officer has a right of action if his injury: [HN8] "occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person . . . in failing to comply with the requirements of any of the statutes, [or] ordinances . . . of . . . city governments . . . [T]he person . . . guilty of said neglect, omission, willful or culpable negligence at the time of such injury . . . shall be liable to pay [such] officer . . . a sum of money . . . . "

Said section further provides that the right to recovery exists, "regardless of whether the injury . . . is caused by the violation of a provision which [***16] codifies a common-law duty and regardless of whether the injury . . . is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer . . . ." (General Municipal Law § 205-e [3].)

Plaintiff contends that his statutory right of recovery is based on the defendant's violation of Administrative Code of the City of New York §§ 27-127 [*860] (maintenance requirements), 27-128 (owner responsibility), 27-357 (exit requirements: establishes certain exit requirements for [**633] different types of buildings), 27361 (arrangements: exits shall be clearly visible, accessible and unobstructed), 27-371 (doors: requirements for fireproofing and measurements for doors in certain types of buildings), 27-2005 (duties of owner: multiple dwelling to be kept in good repair), 27-2007 (certain specific duties of tenants and others), and Multiple Dwelling Law § 50-a. Multiple Dwelling Law § 50-a, in pertinent part, provides as follows:

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[HN9] "1. Every entrance from the street . . . to a class A multiple dwelling . . . except an entrance [***17] leading to the main entrance hall or lobby which main entrance hall or lobby is equipped with one or more automatic self-locking doors, shall be equipped with automatic self-closing and self-locking doors and such doors shall be locked at all times except when an attendant shall actually be on duty . . . "2. Every class A multiple dwelling . . . shall also be equipped with an intercommunications system. Such intercommunication system shall be located at an automatic self-locking door giving public access to the main entrance hall or lobby of said multiple dwelling and shall consist of a device or devices for voice communication between the occupant of each apartment and a person outside said door to the main entrance hall or lobby and to permit such apartment occupant to release the locking mechanism of said door from the apartment." (Emphasis supplied.)

While the above sections are alleged to form the basis of plaintiff's claim pursuant to General Municipal Law § 205-e, it appears from a review of the papers submitted that only Multiple Dwelling Law § 50-a is the one upon which the plaintiff relies. Plaintiff contends [***18] that he was prevented from using the intercom system to gain entry into the building because the outer door was locked, and that the locking of the outer door was in violation of the foregoing highlighted portion of Multiple Dwelling Law § 50-a. Moreover, plaintiff contends that this locked front door proximately caused plaintiff's injuries in that, as a consequence of his having to break the glass to gain entry into the inner vestibule, the plaintiff sustained personal injuries. [*861] Plaintiff further contends that defendant's violation of Multiple Dwelling Law § 50-a, by locking the outer vestibule door, constitutes negligence per se. In furtherance of his position, plaintiff cites Ragona v. Hamilton Hall Realty (251 A.D.2d 391, 674 N.Y.S.2d 113 [1998]). In Ragona, the plaintiff alleged that she was assaulted in her building lobby because the perpetrator gained access thereto as a result of a broken inner lobby door. The Appellate Division, Second Department, modified the Queens County Supreme Court order and found

that plaintiff failed to establish notice of prior criminal activity on the premises so as to put the defendant landlord on notice to take minimal security [***19] measures. The Court, however, upheld Supreme Court's denial of defendant's motion for summary judgment on the issue of whether a statutory violation occurred. In pertinent part the Court noted that "[t]he defendant [failed to offer a] reason to cause [the] Court to deviate from the generally-accepted principle that the violation of a statute constitutes negligence per se, and the violation of an ordinance constitutes some evidence of negligence." (Id. at 392.) In Elliott v. City of New York (95 N.Y.2d 730, 734, 747 N.E.2d 760, 724 N.Y.S.2d 397 [2001])), the Court of Appeals noted that [HN10] "[a]s a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability . . . By contrast, violation [**634] of a municipal ordinance constitutes only evidence of negligence." (Citations omitted.) In the case at bar it is contended that Multiple Dwelling Law § 50-a was violated by the defendant's placing of a lock on the outer vestibule door. Consideration of the foregoing language by the Court of Appeals in Elliott (supra) leads to the conclusion that it is a specific duty, imposed by statutory mandate, [***20] which must be violated before negligence may be established. [HN11] The statutory language of Multiple Dwelling Law § 50-a, however, neither mandates a locked outer vestibule door nor prohibits it. The language of that section merely states that public access is to be given to the main entrance or lobby. [4] It is not disputed that the tenants of the building had a key to unlock the outer door. It is also not disputed that it was the tenants of the building who agreed to, and in fact insisted upon, the locking of the outer door so as to better insure their safety in the building. (Tr. at 24.) Under these circumstances, it would be repugnant to interpret Multiple Dwelling Law § 50-a in a manner that gives public access to the premises a higher priority over safety considerations of the inhabitants of the [*862] building. In fact, to render a determination, as urged by the plaintiff, that the landlord owed the plaintiff a duty, under statute, to keep the outer door unlocked, would result in a rendition of that interpretation. [HN12] The gist of the section is to provide access to the intercom system for the convenience of the tenants of the building so that they may, from the [***21] safety of their residence, determine whether or not they wish to allow a visitor into the building. Here, it was the tenants themselves who, it is not disputed, made a determination that their safety was better served by not allowing public access to the inner door, next to the intercom system,

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after 10:00 p.m. (Tr. at 24.) Ms. Macri testified that the tenants would make other arrangements with their visitors if they were expecting company after 10:00 p.m. (Tr. at 23.) The court takes judicial notice of the fact that normal package and mail delivery hours have long expired prior to the time at which the outer door is locked. In addition, the defendant's policy at the time was that if the superintendent saw that drug activity was going on outside of the building and if the individuals involved were making their way into the vestibule, then the superintendent was to lock the outer door after 10:00 p.m. Under these facts, it cannot be said that a statutory violation occurred. As aforesaid, the purpose of the statute is to afford a measure of protection to the tenants of a residential building. Case research has failed to reveal any decision which has determined that a locked [***22] outer door is prohibited by statute. One case determined that a locked outer door is not required. In Robinson v. New York City Hous. Auth. (150 A.D.2d 208, 540 N.Y.S.2d 811 [1989]), the plaintiff contended that the landlord violated Multiple Dwelling Law § 50-a by failing to have a lock on the outer door of the lobby. There was, however, an intercom by an inner locked lobby door. The Appellate Division, First Department, determined that there was no language in Multiple Dwelling Law § 50-a which mandated that the landlord lock the outer vestibule door which leads from the street to an inside intercom. The Court, in dicta, stated that "it would be illogical to require a locked outer door under these circumstances, since such a locked door would prevent visitors and residents, who did not have their keys with them, from reaching the intercom." Id. at 209.) While the Court found that a locked outer door would be illogical under the circumstances of the case before it, the Court did not

find that the locking of the outer door was specifically prohibited by Multiple Dwelling Law § 50-a. [*863] [**635] The matter at bar presents an even more compelling [***23] reason to find that there was no violation of Multiple Dwelling Law § 50-a. The plaintiff has failed to refute the defendant's contention that the police department was given keys to the building. The plaintiff testified at his deposition that he did not know how the other officers gained entry into the building. (Deposition transcript of plaintiff, defendant's exhibit D, at 29.) It is clear that they did not need to break the glass of the outer door to gain entry to the premises because the plaintiff was injured when he had to do so. The failure of the police department to distribute keys to officers who may need access to the property during their tour of duty cannot and should not be shifted to the defendant herein. Moreover, this is not a situation where the landlord created a condition which directly caused injury to the plaintiff, like a pothole. The plaintiff was injured in the performance of the duties of his office, which duties, by their very nature, carry the heightened risk of injury when exigent circumstances are present. [HN13] "Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary [***24] judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." (Kazanoff, supra at 35.) In the matter at bar the plaintiff has failed to raise a question of fact as to warrant denial of the motion for summary judgment on both causes of action. Accordingly, the application is granted in its entirety.

51 of 55 DOCUMENTS [*1] Bijoux Altamirano, Plaintiff, v. 343 East 8th Street Associates LLC Fotah Realty Corp.; Jesse A. Evans, Inc. and Jesse A. Evans, individually, and in his capacity as a principal of Jesse A. Evans, Inc., Defendants. Index No. 110988 SUPREME COURT OF NEW YORK, NEW YORK COUNTY 2003 NY Slip Op 51718U; 2 Misc. 3d 1006A; 784 N.Y.S.2d 918; 2003 N.Y. Misc. LEXIS 1780 September 26, 2003, Decided

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NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS. DISPOSITION: judgment denied.

Defendants' motion for summary

CORE TERMS: apartment, summary judgment, tenant, gate, door, entrance, assailant, street, issues of fact, installation, landlord, triable, security gates, Memorandum of Law, exterior, foreseeable, inside, floor, lobby, locked, matter of law, chain of causation, apartment building, expert testimony, unforeseeable, proximately, precautions, key-turn, equipped, intruder HEADNOTES [**1006A] [***918] Negligence--Maintenance of Premises. JUDGES: HON. WALTER B. TOLUB, J.S.C. OPINION BY: WALTER B. TOLUB OPINION WALTER B. TOLUB, J. In this negligence action Defendants 343 East 8th Street Associates LLC and Fotah Realty Corporation move for summary judgment pursuant to CPLR § 3212(a). Defendants claim they are entitled to summary judgment because: 1) they owed no duty of care to Plaintiff, (2) they did not have actual or constructive notice of an alleged dangerous condition, (3) as they had no authority to control Plaintiff's assailant, who was her invited guest, their acts or omissions were not the proximate cause of Plaintiff's injuries, (4) the acts of Plaintiff's invited guest severed the chain of causation required for a finding of negligence, (5) they complied with the New York Administrative Code Requirements regarding security, and (6) the provisions of section 50(a)(1) of the New York Multiple Dwelling Law do not apply to the building in question. For the reasons stated herein, the court denies defendants' motion for summary judgment. Facts In March, 2001 Plaintiff Bijoux Altamirano (hereinafter "plaintiff") rented Apartment B (hereinafter "Apartment B") at 343 East 8th Street (hereinafter "the building"), New York, NY. 343 East 8th Street Associates LLP (hereinafter "343 Associates"), of which Jane Holzer is the sole shareholder, owns the building. Fotah Realty Corporation (hereinafter "Fotah Realty"), of which Jane Holzer is the sole shareholder and officer,

maintains the building. Fotah Realty employs Anthony Pagan, who is the manager and superintendent of the 343 East 8th Street property. Jesse Evans is the real estate broker who assisted plaintiff in renting her apartment; he is not party to this motion. The building at 343 East 8th Street contains eight residential apartments and two commercial store fronts. Apartment B is a small studio apartment, approximately eighteen by thirteen feet, located on the ground floor; it has its own, private entrance that opens directly onto the street. This entrance is completely separate from the building's main entrance which provides access for all of the other apartments. In November, 1999, Apartment B was converted from a storage to residential space. Anthony Pagan oversaw the renovation of the apartment, which included the installation of iron security gates over each of the apartment's windows and around its door in November, 1999. It is this original iron security gate surrounding Apartment B's door that is at issue in this case. This original gate, which was in place at the time plaintiff rented Apartment B but which has [*2] since been replaced, had a round lock that was keyed on both sides. Although the door leading directly into the apartment was selflocking, the gate was not. The gate could not be opened from the outside, nor the inside, without using a key. The gate would not close unless it had been locked, either from the outside or the inside (Altamirano's Affidavit, p. 141). Accordingly, in order to enter Apartment B, the tenant had to first unlock the exterior security gate, enter through it, and then re-lock it. The tenant then had to unlock the apartment's door before entering the apartment. In order to leave Apartment B, the tenant had to first exit through the door and lock it, then unlock the exterior security gate, exit through it, and re-lock it before proceeding onward. This gate was purchased by Anthony Pagan and he was responsible for its installation (Pagan's Affidavit, p. 22-23). Neither he, nor anyone else, obtained any permits for the renovation work performed at Apartment B; no governmental agency inspected the apartment before it was rented (Id., p. 14). In March 2001 defendant Jesse Evans, a real estate broker, showed plaintiff Apartment B (Altamirano's Affidavit, p. 13); plaintiff moved in shortly thereafter. On or about March 23, 2001 plaintiff met Sean Washington (hereinafter "Washington"), an old friend, on the street in the East Village (Altamirano's Affidavit, p. 126). Plaintiff had known Washington for four years (Id.,

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p. 108). She told Washington where she lived (Id., p. 125) and invited him to "stop by," which he did later that day (Id., p. 114). He stayed for approximately one hour and then left (Id., p. 127). After being repeatedly called by Washington (Id., p. 135), plaintiff agreed he could visit again. On March 24, 2001, plaintiff let Washington into her apartment and closed and locked the exterior security gate from the inside (Id., p. 142). After half an hour (Id., p. 142), plaintiff and Washington left the apartment to go food shopping. They returned to the apartment and plaintiff ate what she had purchased (Id., p. 150). Thereafter, when plaintiff asked Washington to leave, he took her by the throat with a razor, told her to remove her pants, and assaulted and raped her (Defendants' Exhibit F). Washington then slit plaintiff's throat and left. Plaintiff is suing defendants for damages arising out of the medical and emotional injuries she sustained as a result of the attack. Discussion Plaintiff contends that the defendant's negligent installation of the key-turn gate was a substantial factor in proximately causing her injuries because she was prevented from escaping her apartment during the rape and assault. Plaintiff claims that although she wanted to escape she did not try to because her attempt would have been futile given that the outside security gate was locked and the key required to open it was in her pants, out of her reach during the attack (Complaint, p. 5). Plaintiff further contends that defendants' installation of a key-turn gate is compelling evidence of negligence because it violated New York Multiple Dwelling Law § 50-a(1) and New York Administrative Code § 27371(j)(2)(b) (Plaintiff's Memorandum of Law, p. 8).New York Multiple Dwelling Law § 50-a(1) specifies (in pertinent part) that, "every entrance from the street, passageway, court, yard, cellar, or similar entrance to a class A multiple dwelling erected or converted after January first, nineteen hundred sixty-eight, except an entrance leading to the main entrance hall or lobby which main entrance hall or lobby is equipped with one or more automatic selflocking doors, shall be equipped with automatic selfclosing and [*3] self-locking doors and such doors shall be locked at all times except when an attendant shall actually be on duty." New York Administrative Code § 27-371(j)(2)(b) specifies that, "doors to dwelling units shall be equipped with a heavy duty latch set and a heavy duty dead bolt operable by a key from the outside and a thumb-turn from the inside." Plaintiff submitted expert testimony from a licensed

architect stating that by their installation of the key-turn gate, defendants had violated both of these provisions (Korves' Affidavit, p. 1). In opposition, defendants claim that their installation of the subject exterior gate was not negligent. Defendants contend that by installing the exterior security gate at issue, they were actually taking the minimal precautions required to protect their tenant from foreseeable harm (Defendants' Memorandum of Law, p. 7). They claim that the gate was not a "dangerous condition" and even if it were so considered, they had no notice of it because plaintiff never complained about it (Id., p. 8). Furthermore, even if the court deems that actual or constructive notice of the condition existed, the intervening, unforeseeable acts of Washington severed the chain of causation and preclude defendants' from liability. Defendants claim plaintiff did not show that they either knew or had reason to know "from past experience 'that there is a likelihood of conduct on the part of third-persons ... which is likely to endanger the safety of the visitor" (Defendants' Memorandum of Law, p. 4, quoting Nallan v. HelmsleySpear, Inc., 50 N.Y.S.2d 507, 429 N.Y.2d 606, 613, 407 N.E.2d 451 ). Defendants claim that since there was no criminal activity at the building in question, the assault upon plaintiff was unforeseeable (Defendants' Memorandum of Law, p. 5, citing M.D. v. Pasadena Realty Co., 300 A.D.2d 235, 753 N.Y.S.2d 457 (1st Dept. 2002)). Most importantly for our purposes, however, defendants claim that they did not violate New York Administrative Code § 27-371(j)(2)(b) and that New York Multiple Dwelling Law § 50-a(1) does not apply to the building in question (Defendants' Memorandum of Law, p. 18). Defendants have submitted expert testimony that supports this claim and that directly contradicts plaintiff's expert witness (Miele's Affidavit, p. 1-2). Defendants then contend that there are no issues of triable fact and that as a matter of law, summary judgment must be awarded to them. It is axiomatic that on a motion for summary judgment the court's role is to find issues, but not resolve them. To prevail a movant must present evidence sufficient to demonstrate the absence of any triable issues of fact thereby demonstrating entitlement to judgment as a matter of law (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]; see generally, Barr, Altman, Lipshie and Gerstman; New York Civil Practice Before Trial [James Publishing 2001-2002] § 37:91-92). Once this showing has been made, the opposing party must produce admissible evidentiary proof establishing the existence of material issues of fact. Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient for this purpose (Zuckerman v. City of New York, 49 N.Y.2d 557, 404

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N.E.2d 718, 427 N.Y.S.2d 595 [1980]).

sue here.

A violation of the New York Administrative Code is some evidence of negligence, and a violation of the New York Multiple Dwelling Law, a statute, is negligence per se. Here, both parties have submitted conflicting expert testimony as to whether defendants violated one or both of these laws. This court cannot imagine a clearer example of a triable "issue of fact." Summary judgment is therefore inappropriate. Before concluding, however, the court would address defendants' interpretation of a leading New York State premises security case. Defendants, in making their numerous arguments, relied [*4] upon Burgos v. Aqueduct Realty Corp. et. al. (92 N.Y.2d 544, 548, 706 N.E.2d 1163, 684 N.Y.S.2d 139 [1998]) (holding that a plaintiff who was attacked in her apartment building and who sued a landlord for negligent failure to take minimal precautions to protect tenants from harm can withstand summary judgment on proximate cause grounds by raising a triable issue of fact regarding whether landlord's conduct proximately caused plaintiff's injuries, even when the assailant is unknown to plaintiff). In Burgos, the New York Court of Appeals stated that, "landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including a third party's foreseeable criminal conduct." It continued: "in premises security cases particularly, the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder" (Id, at 550-551). Defendants claim that consequently, as a matter of law, they cannot be held liable for plaintiff's injuries because her assailant was not an intruder. Defendants claim the intervening, unforeseeable acts of Washington sever the chain of causation required for a finding of negligence and that they should therefore not be held liable for plaintiff's injuries. By relying on Burgos, defendants cite a valid standard but apply it to the wrong scenario. In Burgos, the Court of Appeals held that a landlord has a (limited) duty to protect tenants from intruders. The Court of Appeals did not hold that a landlord might prevent a tenant from escaping an assailant, which is the is-

The court would point defendants to the relevant statement from Burgos, which is "in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries" (Id., at 550). This case is not dissimilar to Fontanez v. New York City Housing Authority, 224 A.D.2d 372, 638 N.Y.S.2d 77 (1st Dept. 1996). There, the plaintiff entered her apartment building's lobby and noticed a young man loitering. When the man let two other men into the lobby, all three unknown to the plaintiff, she became suspicious and entered the stairwell instead of the elevator. She ran up the stairs to the third floor, where her friend had an apartment. The plaintiff was unable to enter the third floor landing, however, because the stairway door had no handle. When plaintiff turned to go up another floor, one of the men who had followed her hit her in the face with a revolver. In Fontanez the First Department Appellate Division upheld the denial of the defendant Housing Authority's motion for summary judgment. The court deemed summary judgment inappropriate because the plaintiff raised issues of fact as to whether the missing door handle, which prevented plaintiff's escape, contributed to the criminal assault on plaintiff and whether the [*5] occurrence was reasonably foreseeable. As noted in the dissent, summary judgment was denied even though "no evidence [was] presented whatsoever to indicate how the first assailant gained access to the building" (Id., p. 374). The court was not concerned with how the assailant gained entry to the apartment building, the court was concerned with whether issues of fact existed as to whether the Housing Authority's inadequate maintenance was a substantial contribution to the plaintiff's injuries. Here, as in Fontanez and Burgos, there are triable issues of fact as to whether defendants' negligence contributed to plaintiff's injuries. Summary judgment cannot be awarded. Accordingly, it is ORDERED that pursuant to CPLR § 3212 defendants' motion for summary judgment is denied. Dated: September 26, 2003 HON. WALTER B. TOLUB, J.S.C.

52 of 55 DOCUMENTS

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Cited As of: Sep 10, 2008 East 145 Co., Appellant, v. Avraham Benayoun et al., Respondents, et al., Respondents. # 01-207 SUPREME COURT OF NEW YORK, APPELLATE TERM, FIRST DEPARTMENT 190 Misc. 2d 164; 736 N.Y.S.2d 830; 2001 N.Y. Misc. LEXIS 915 November 1, 2001, Decided PRIOR HISTORY: [***1] Appeal from an order of the Civil Court of the City of New York, New York County (Jerald R. Klein, J.), dated February 22, 2001, insofar as it denied petitioner's cross motion for summary judgment and to strike respondents' third affirmative defense and first counterclaim in a holdover summary proceeding.

lord was entitled to have the third affirmative defense and the first counterclaim stricken and to summary judgment on the holdover petition. However, it was appropriate to stay the issuance of the warrant for 10 days so that the tenants could cure the breach. A remand to the civil court was needed for further proceedings on the landlord's claims for use and occupancy and attorneys' fees as the prevailing party.

CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff landlord commenced a holdover proceeding against defendant tenants for harboring a dog in violation of a "no pets" lease provision. The landlord cross-moved to strike the third affirmative defense and the first counterclaim, which were related to the tenants' claims of retaliatory eviction, and moved for summary judgment on the holdover petition. The civil court (New York) denied the landlord's motions. The landlord appealed. OVERVIEW: The tenants conceded that they harbored a dog in violation of the lease. The appellate court discerned no factual issue as to the remaining defense of retaliatory eviction to preclude summary judgment on the petition. There was no allegation of any prior complaint made to governmental authorities concerning conditions in the apartment or any evidence of building code violations. The mere settlement of the tenants' negligence lawsuit, commenced after the tenants' son was injured when a fixture fell in the apartment, was not an adequate basis for the retaliatory eviction claim. Similarly, the denial of the landlord's permissible applications for high income rent decontrol was not evidence of retaliatory motive in the holdover proceeding. Therefore, the land-

OUTCOME: The appellate court (1) modified the order by granting the cross-motion to strike the third affirmative defense and the first counterclaim and by granting the landlord summary judgment on the holdover petition, (2) affirmed the order as modified, (3) stayed issuance of a warrant, and (4) remanded the case to the civil court for further proceedings on the landlord's claims for use and occupancy and attorneys' fees. CORE TERMS: landlord, tenant, retaliatory, eviction, retaliation, lease, summary judgment, high income, apartment, holdover, rent, modified, adequate basis, personal injury action, question of fact, commencement, settlement, decontrol, lawsuit, fixture, motive LexisNexis(R) Headnotes

Real Property Law > Landlord & Tenant > Landlord's Remedies & Rights > Eviction Actions > General Overview Real Property Law > Landlord & Tenant > Tenant's Remedies & Rights > Termination & Retaliatory Eviction Torts > Procedure > Settlements > General Overview

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[HN1] The mere settlement of a negligence lawsuit against a landlord is not, in and of itself, an adequate basis for a retaliatory eviction claim. HEADNOTES Landlord and Tenant - Summary Proceedings - Retaliatory Eviction The mere settlement of a negligence lawsuit, commenced as a consequence of injuries sustained by respondent tenants' son when a fixture apparently fell in the apartment, is not, in and of itself, an adequate basis for respondents' retaliatory eviction defense to petitioner landlord's holdover proceeding. Nor is the Division of Housing and Community Renewal's denial of petitioner's permissible applications for high income rent decontrol evidence of retaliatory motive.

for a retaliatory eviction claim (see, Weil v Kaplan, 175 Misc 2d 482 [App Term, 2d Dept]). Similarly, the Division of Housing and Community Renewal's denial of landlord's permissible applications for high income rent decontrol is not evidence of retaliatory motive in this proceeding. Issuance of the warrant is stayed for 10 days after service of a copy of this order with notice [***3] of entry so that tenants may cure the breach of lease (RPAPL 753 [4]). The matter is remanded to the Civil Court for further proceedings on landlord's claims for use and occupancy and attorneys' fees as the prevailing party. CONCUR BY: William P. McCooe (In Part) DISSENT BY: William P. McCooe (In Part)

COUNSEL: Borah, Goldstein, Altschuler, Schwartz & Nahins, P. C., New York City (Jeffrey R. Metz of counsel), for appellant. Traub, Bonacquist & Fox, L. L. P., New York City (Frederick J. Levy, Paul Traub and Peter G. Lavery of counsel), for respondents. JUDGES: PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. LUCINDO SUAREZ, Justices. Davis and Suarez, JJ., concur; McCooe, J. P., dissents in part in a separate memorandum. OPINION [*165] [**831] PER CURIAM. Order dated February 22, 2001 modified by granting landlord's cross motion to strike the third affirmative defense and first counterclaim, and by granting summary judgment to landlord on the holdover petition; as modified, order affirmed, with $ 10 costs to landlord appellant. Tenants concede that they harbored a dog in violation of the "no pets" lease provision and that this [***2] holdover proceeding was timely commenced under Administrative Code of the City of New York § 27-2009.1. We discern no factual issue as to the remaining defense of retaliatory eviction which would preclude summary judgment on the petition. There is no allegation of any prior complaint made to governmental authorities concerning conditions within the apartment or any record evidence of building code violations (Real Property Law § 223-b). [HN1] The mere settlement of a negligence lawsuit, commenced as a consequence of injuries sustained by tenants' son when a fixture apparently fell in the apartment, is not, in and of itself, an adequate basis

DISSENT William P. McCooe, J. P. (Dissenting in part). I disagree only with that part of the majority decision which found as a matter of law that the commencement of this eviction proceeding was not in retaliation for the tenant having successfully prosecuted a personal injury action against the landlord based upon a condition in the building. A question of fact is present which precludes summary judgment. Real Property Law § 223-b (1) (b) entitled "Retaliation by landlord against tenant" states in relevant part that a landlord shall not commence a proceeding to recover real property in retaliation for actions taken in good faith by a tenant to enforce rights under the lease or law of the State of New York regulating residential premises. The commencement of the personal injury action against [***4] the landlord based upon a condition in [*166] the subject building implicates a breach of the lease and section 78 of the Multiple Dwelling Law. Whether this eviction proceeding was brought in retaliation for commencing that action presents a question of fact which cannot be summarily determined. Weil v Kaplan (175 Misc 2d 482 [App Term, 2d Dept]) is distinguishable since the statute does not apply to an owneroccupied two-family house. Since the statute speaks of actions or complaints by the tenant, the filing of two petitions for high income rent deregulation by the landlord are not within the statute. In any event, by definition retaliation applies to actions previously taken by the tenant against the landlord. The order should be modified to the extent of directing a trial on the specified issue only. Davis and Suarez, JJ., concur; McCooe, J. P., dis-

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sents in part in a separate memorandum.

53 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 [*1] Emilio Crespo Plaintiff, v. City of New York, Dormitory Authority of the State of New York, The City University of New York, S & P Construction Management, Inc., and TDX Construction Corporation, Defendants. Index No. 23922/99 SUPREME COURT OF NEW YORK, BRONX COUNTY 2001 NY Slip Op 40516U; 2001 N.Y. Misc. LEXIS 744 September 25, 2001 Decided NOTICE: [**1] THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE OFFICIAL REPORTS. DISPOSITION: Plaintiffs motion for summary judgment on its claim under Labor Law 240(1) granted. The cross-motion of defendant City to dismiss the complaint and all cross-claims against it granted. The cross-motions seeking indemnity denied. The cross-motion by TDX to compel discovery granted to the extent of directing plaintiff to provide all discovery responses not previously served on defendant. DASNY's cross-motion granted only to the extent of dismissing the claims against it for common law negligence and for violation of Labor Law 200. CORE TERMS: ladder, safety device, scaffold, summary judgment, proximate cause, indemnity, cross-motion, unsafe, upside down, misuse, wheels, issues of fact, cross-claim, common law, general contractors, indemnification, contractual, cross-moves, indemnify, discovery, manager, flange, feet, top, contractor, removing, evident, notice, rubber, pipe COUNSEL: Richard Geller, Esq., Geller & Siegel, LLP, Attorneys for Plaintiff Crespo, New York, New York. David Heller, Esq., Harms, Della Jacono & Finnerman,

Attorneys for defendant City of New York, Elmsford, New York. Smith Mazure Director Wilkins Young Yagerman & Tarallo, Attorneys for defendants Dormitory Authority of the State of New York and The City University of New York, New York, New York. Deirdre M. James, Esq., Conway, Farrell, Curtin & [**2] Kelley, P.C., Attorneys for defendant S & P Construction Management, Inc., New York, New York. Brian T. Deveney, Esq., O'Connor, O'Connor, Hintz & Deveney, LLP, Attorneys for defendant TDX Construction Corporation, Garden City, New York. JUDGES: Hon. Paul A. Victor, Justice of the Supreme Court. OPINION BY: Paul A. Victor OPINION RELIEF REQUESTED Plaintiff moves for an order granting him summary judgment pursuant to CPLR 3212 on his claim under Labor Law 240(1); defendant Dormitory Authority of the State of New York (DASNY) cross-moves for summary judgment dismissing plaintiffs Labor Law 200 and common law claims, and granting it conditional summary

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judgment on its cross-claim against defendant TDX Construction Management (TDX) for contractual indemnification; defendant TDX cross-moves for summary judgment on its cross-claim and third-party complaint against defendant S & P Construction Management Inc. (S & P) for indemnification based on S & P's contractual obligation to indemnify DASNY and itself; defendant TDX (in addition to its previous cross-motion) cross-moves to compel plaintiff to provide discovery as demanded in its notice for discovery and inspection; and [**3] defendant [*2] City of New York cross-moves to dismiss the complaint against it. FACTS AND PROCEDURAL HISTORY On February 22, 1999, plaintiff, an employee of defendant S & P, was seriously injured when he fell from a twenty-foot extension ladder, which had been placed on top of a 5 foot "baker's" scaffold. At the time of the accident, plaintiff and his brother, also an employee of defendant S & P, were painting a section of a chimney which was located twenty four feet above ground in a building which was then under construction. The structure was owned by defendant DASNY, with TDX acting as construction manager. James Callo, an employee of TDX, testified at a deposition that he had observed S & P's employees using a ladder placed on top of a scaffold, and that he had notified an officer of S & P that placing a ladder on a scaffold is an unsafe practice. Plaintiff contends that the foregoing facts warrant judgment under Labor Law 240(1). In opposition, the defendants maintain that there exist issues of fact concerning the manner of the happening of the accident which preclude summary judgment. Specifically, defendants maintain that the various reports and EBT testimony raise conflicting [**4] evidence as to whether the ladder was placed with its rubber feet resting on top of the scaffold, or whether the rubber feet were positioned against the chimney flue. 1 In addition, defendants point to conflicting evidence as to whether the rubber [*3] wheels on the scaffold were in a locked or unlocked position. Lastly, the defendants note that plaintiffs fall was unwitnessed, although he was found on the ground by witnesses moments after the accident. 1 Plaintiff states that the ladder was placed in the correct position, i.e., with its feet on the scaffold. Plaintiff's brother stated in an affidavit that the ladder was placed "upside down" so as to get a better grip on the scaffold. In addition, plaintiff testified that the scaffold had no wheels, while his brother maintained that the scaffold had wheels, and that three of the four wheels did not lock in place.

Defendant DASNY states in its cross-motion that TDX had general responsibility for safety practices at the work site. DASNY contends that it is [**5] entitled to contractual indemnification from TDX, based on its contract with TDX which provided that TDX would hold DASNY harmless from claims "arising out of or in connection with negligent performance of the work undertaken in the Project by the Construction Manager [TDX]." In addition, DASNY argues that it is not subject to liability under theories of common law negligence or under Labor Law 200, as DASNY exercised no actual authority or control over the work site or the activity bringing about the injury, and had no notice of the unsafe work practices. Defendant TDX maintains, in its cross-motion, that S & P is contractually obligated to indemnify both DASNY and TDX. 2 The contract between DASNY and S & P provides that S & P will indemnify the owner and construction manager for losses "resulting from, arising out of, or occurring in connection" with S & P's work. S & P maintains, in opposition, that TDX is not entitled to indemnity because issues of fact exist as to whether it was negligent in failing to stop the unsafe work practices (i.e., placing a ladder on top of a scaffold) of which it was aware. 2 TDX originally interposed cross-claims against S & P, which was a direct defendant in the main action. Plaintiff has now discontinued its action against S & P. The cross-claims are thus converted to third party claims. In addition, TDX has commenced a third party action against S & P. Issue had not been joined in this action as of the time of the making of the motion. It should be noted that DASNY has not moved for indemnity from S & P. [**6] DISCUSSION [*4] Plaintiff's Entitlement to Summary Judgment Pursuant to Labor Law 240(1), i.e., "Two Wrongs Don't Make A Right" It is clear that an injury involving a gravity-related accident within the purview of Labor Law 240(1) which befalls a worker who is not provided with any safety device whatsoever warrants judgment in favor of the worker against an owner and contractor. "Plaintiff met his initial burden of demonstrating his entitlement to judgment as a matter of law by submitting proof establishing that his injuries were proximately caused by the absence or inadequacy of safety devices affording him proper protection from an elevation-related risk (see, Cricks v. Niagara Mohawk Power Corp., A.D.2d [decided Dec. 27, 2000], citing Raczka v. Nichter Util.

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Constr. Co., 272 A.D.2d 874, 707 N.Y.S.2d 735)." ( Matter of Anderson v. Goord, N.Y.S.2d , 2001 WL 100290 [4th Dept. 2001].) Plaintiff has thus met his initial burden on the motion. To the extent that defendant TDX argues that it hired a safety manager to monitor safety related issues, it is evident that the duty imposed by Labor Law 240(1) is nondelegable, [**7] and thus defendant remains liable to the plaintiff. "The duty is nondelegable and a violation imposes absolute liability upon owners and general contractors irrespective of whether they exercised supervision or control over the work...." ( Buckley v. Radovich, 211 A.D.2d 652, 621 N.Y.S.2d 638 [2d Dept. 1995].) The delegation of authority to a third party might result in that third party being liable to plaintiff, but it will not exempt the general contractor from liability. McGurk v. Turner Const. Co., 127 A.D.2d 526, 512 N.Y.S.2d 71 (1st Dept. 1987). Under Labor Law § 240(1), an injured worker, even though unable to demonstrate the precise manner in which the accident happened, may still be granted summary judgment if sufficient [*5] evidence is tendered to demonstrate that the failure to provide a required safety device was a contributing cause of the accident. ( Sheehan v. Fordham University, 259 A.D.2d 328, 687 N.Y.S.2d 22 [1st Dept. 1999]; Reed v. State, 249 A.D.2d 719, 671 N.Y.S.2d 820 [3rd Dept. 1998]; Gambino v. William Crow Construction, 238 A.D.2d 190, 655 N.Y.S.2d 537 [1st Dept. 1997]); [**8] Saldana v. Saratoga Realty, 235 A.D.2d 744, 652 N.Y.S.2d 374 [3rd Dept. 1997]). Here, the ladder was unsecured, and the alleged misuse of the ladder (placing it "upside down") can not under the circumstances presented be considered to be the sole proximate cause of the accident. Similarly, whether or not wheels on a scaffold were locked is immaterial, as the failure to lock the wheels can not be considered the sole proximate cause of the accident. ( Garcia v. 1122 East 180th Street Corp., 250 A.D.2d 550, 675 N.Y.S.2d 2; Lawrence v. Forest City Ratner Companies, 701 N.Y.S.2d 428.) In essence, both safety devices provided to the plaintiff - the scaffold and the ladder were inadequate for the job at hand, as a result of which it is evident as a matter of law that plaintiff was not provided with any sufficient or adequate safety device. It is "well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law § 240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devices." ( Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556 [**9] [1993]). However, it has been made abundantly clear that "section 240 does not give absolution to the plaintiff when his injury has been

caused, exclusively, as a result of his own willful or intentional acts." (Emphasis supplied.) ( Tate v ClancyCullen Storage Co. Inc., 171 A.D.2d 292, 296, 575 N.Y.S.2d 832 [1st Dept. 1991].) This kind of egregious conduct has evolved into the legal "axiom" that liability will not be imposed upon owners and contractors when the worker's conduct is the "sole proximate cause" of the occurrence. [*6] ( Weininger v Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840, 695 N.E.2d 709 [1998], reargument denied, 92 N.Y.2d 875, 677 N.Y.S.2d 777 [1998].) But when the circumstances demonstrate that a statutory violation was a contributing factor to a worker's fall from a ladder or scaffold, the worker's comparative negligence (as distinguished from intentional wrongdoing) is factually and legally irrelevant, and should not be used to defeat summary judgment on the pretext or speculation that the accident may have been caused "solely" because of the culpable conduct of the worker. (See, Kyle v. City of New York, 268 A.D.2d 192, 196, 707 N.Y.S.2d 445 [**10] [1st Dept. 2000].) Thus, the "sole proximate cause" defense should be limited to the situation where a worker has been provided with "proper protection," and the worker thereafter, through intentional misuse of the safety device, or via other egregious misconduct, neutralizes the protections afforded by the safety device. ( McMahon v. 42nd St. Development Project, Inc., N.Y.S.2d , 2001 WL 575517, 2001 N.Y. Slip Op. 21221 [N.Y.Sup., Victor, J., Jan 09, 2001].) However, once plaintiff makes a prima facie showing that he was subjected to one of the hazards covered by Section 240, the burden shifts to the defendants to provide evidentiary proof in admissible form (not speculation) sufficient to establish that proper protection was afforded but rendered ineffective as a result of intentional or culpable conduct on the part of plaintiff. It is evident that the defendants can not make such a showing here, since the defendants, by providing two inadequate safety devices in essence provided no safety device (i.e., no adequate safety device). To the extent that the plaintiff may have engaged in any "misuse" of the ladder by placing it "upside down," such [**11] "misuse" was not a deliberate failure to use a proper safety device. The ladder was inadequate for the task at hand because it was not long enough, and the unusual placement of the ladder (if indeed the ladder was placed "upside down") was an effort by the plaintiff to secure the [*7] ladder from movement when it was placed on the baker scaffold. In other words, if the ladder was placed "upside down," it was done in an effort to further the safety of the plaintiff, who had not been provided with proper safety devices in the first instance. Had he been provided with an adequate safety device he would not have needed to cobble together equipment in an unsafe manner. Under these circumstances his actions amount to

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no more than comparative negligence, which is irrelevant in an absolute liability case predicated on a Labor Law 240(1) violation. Cases Involving Falls From Ladders It is not necessary, in order to impose liability under Labor Law 240, for the jury to find that the fall was caused by a fault or defect in the ladder itself. For example, in Yu Xiu Deng v. A.J. Contracting Co., Inc. (255 A.D.2d 303, 680 N.Y.S.2d 223 [1st Dept. 1998]), the First Department granted [**12] summary judgment in favor of plaintiff under Labor Law 240(1) when the fall was caused by a loss of balance, caused by the plaintiffs negligence in controlling the work materials, holding that: Whether the ladder on which plaintiff was working tipped as a result of plaintiff losing her balance when she lost control of the sheetrock she was handling, or, indeed, whether plaintiff fell off the ladder without it having tipped at all, are not material issues of fact. Plaintiff's negligence, if any, is of no consequence ( Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932). Further, in this case, it is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Guillory v Nautilus Real Estate, 208 A.D.2d 336, 337-338, 624 N.Y.S.2d 110, appeal dismissed and lv denied 86 N.Y.2d 881; Devlin v Sony Corp., 237 A.D.2d 201, 655 N.Y.S.2d 762).

Similarly, in Dasilva v. A.J. Contracting Co. (262 A.D.2d 214, 694 N.Y.S.2d 353 [**13] [lst Dept. 1999]), defendants were held liable under scaffold law for injuries sustained by a worker when he fell from an unsecured ladder on which he was standing when it was struck by section of pipe he had [*8] cut; plaintiff's actions in cutting the pipe were found not to be the sole proximate cause of his injuries. The same reasoning was applied in Dunn v. Consolidated Edison Co. of New York, Inc. (272 A.D.2d 129, 707 N.Y.S.2d 420 [1st Dept.2000]), in which the court held: Plaintiff, a boiler maker, was injured while removing a blank flange during the renovation of one of defendant's plants.

The flange fell, shifting the steel grating on the floor on which plaintiffs A-frame ladder was positioned, and then struck the ladder, both of which actions of the flange caused the ladder to become unsteady, resulting in plaintiffs fall and injury. It is plain that the ladder used by plaintiff was not an adequate safety device for the task plaintiff had been directed to perform, entailing work at a significant elevation removing heavy pipe components. Defendant's failure to furnish a safety device sufficient to protect plaintiff against the elevation-related risk posed by [**14] the assigned work constituted a breach of the duty imposed by Labor Law § 240(1) (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561, 606 N.Y.S.2d 127, 626 N.E.2d 912; compare, Weber v. 1111 Park Ave. Realty Corp., 253 253 A.D.2d 376, 676 N.Y.S.2d 174), and regardless of the propriety of the method plaintiff utilized in removing the flange, that failure "was a substantial cause of the events which produced the injury" ( Gordon v. Eastern Ry. Supply, supra, at 562, 606 N.Y.S.2d 127, 626 N.E.2d 912, quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).

The case of Kadoic v. 1154 First Ave. Tenants Corp. (277 A.D.2d 66, 277 A.D.2d 66, 716 N.Y.S.2d 386 [1st Dept. 2000]) clearly illustrates the proposition that the plaintiffs negligence in handling the work to be performed will not transform ordinary negligence into the "sole proximate cause" of the accident. In Kadoic, plaintiff fell when the weight of the sign being removed from the side of a building caused him to loose his balance. The court held: Plaintiff presented an essentially consistent [**15] version of the circumstances of the accident in both his deposition testimony and affidavit, demonstrating that, whether or not the sign he was attempting to remove actually touched him or the ladder, the force of the sudden release of the sign caused him to lose his balance and fall. Regardless of the propriety of the method plaintiff used to remove the sign, it is plain that the ladder he used was not an adequate safety device for the task he was performing, rendering defend-

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ants, who admittedly provided no safety devices, absolutely liable under section 240(1) ( Dunn v. Consolidated Edison Co., 272 A.D.2d 129, 707 N.Y.S.2d 420). [*9] As noted supra, this is not a case in which the plaintiffs abuse of the safety device would transform his conduct into the "sole proximate cause" of the accident. By way of comparison, in Anderson v. Schul/Mar Const. Corp. (212 A.D.2d 493, 622 N.Y.S.2d 310 [2d Dept. 1995]), the court found that a question of fact existed regarding whether the violation of 240(1) was a proximate cause of the plaintiffs injuries. In that case there was testimony adduced at trial that the plaintiff fell when he missed a rung while descending the [**16] ladder facing away from and not holding onto the ladder carrying a cup of coffee in one hand and his breakfast in the other. Plaintiffs obvious misuse of the ladder (which was adequate for the assigned task) in that case afforded a reasonable fact finder an opportunity to conclude that the plaintiffs conduct was the sole proximate cause of his injuries. In this action, by comparison, the placement of the ladder "upside down" (if that occurred) was not, as noted above, a "misuse" of the ladder, since plaintiff was merely attempting to work in a more safe manner, and since plaintiff was not issued a safety device (ladder or scaffold) which was adequate to perform the task at hand. Indemnity DASNY seeks summary judgment against TDX. However, the indemnity clause relied on by DASNY requires a showing that TDX was negligent. There has not been a showing at this juncture that TDX was in fact negligent. TDX seeks indemnity from S & P. The broadly worded contractual indemnity provision relied on by TDX does not require any finding of negligence or fault on the part of S & P (see, Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 175, 556 N.Y.S.2d 991, 556 N.E.2d 430 [under [**17] broadly drafted contract of indemnity, although there is no evidence of negligence on subcontractor's [*10] part, the indemnification agreement by its terms required subcontractor to indemnify general contractor].) However, it has not been established by TDX that TDX was itself free from negligence. Knowledge on the part of TDX that S & P was using unsafe practices raises issues of fact as to whether TDX was negligent in not further monitoring the activities of S & P. Claims Raised Under the Common Law and Labor Law

200 Labor Law § 200 is a codification of the common law duty of an owner or employer to provide employees with a safe place to work (see, Jock v. Fien, 80 N.Y.2d 965, 590 N.Y.S.2d 878, 605 N.E.2d 365 [1992].) Liability under Labor Law § 200 can not be imposed unless plaintiff establishes that the owner or general contractor supervised or controlled the work performed or had actual or constructive notice of the unsafe condition which precipitated plaintiffs injury (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110; Murray v. South End Improvement Corp., 263 A.D.2d 577, 578, 693 N.Y.S.2d 264 [**18] [3d Dept. 1999]; Butigian v. Port Authority of New York and New Jersey, 266 A.D.2d 133, 699 N.Y.S.2d 41 [1st Dept. 1999] [no evidence that owner or tenant exercised supervisory control over plaintiffs work].) It has not been shown the DASNY was responsible for the manner in which plaintiff performed his work, and thus no cause of action for common law negligence or under Labor Law 200 lies against DASNY. With respect to TDX, on the other hand, there is evidence that it was aware of the unsafe practices employed by S & P, and thus there exist issues of fact as to whether TDX was negligent. [*11] CONCLUSION Plaintiffs motion for summary judgment on its claim under Labor Law 240(1) is granted. The cross-motion of defendant City to dismiss the complaint and all cross-claims against it is granted. No party has submitted any evidence that the City has any involvement in the premises at issue, and it is not disputed that DASNY is the owner. 3 3 The answer of defendant DASNY admits ownership of the structure. [**19] The cross-motions seeking indemnity are denied. The cross-motion by TDX to compel discovery is granted to the extent of directing plaintiff to provide all discovery responses not previously served on defendant. DASNY's cross-motion is granted only to the extent of dismissing the claims against it for common law negligence and for violation of Labor Law 200. All other relief not specifically granted herein is denied. Settle order. 9-25-01 DATE Hon. Paul A. Victor, J.S.C.

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54 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Me'chelle Missouri et al., Infants, by Their Mother and Natural Guardian, Gail Missouri, et al., Plaintiffs, v. Ernestine Boyce et al., Defendants. Index No. 26813/96 SUPREME COURT OF NEW YORK, KINGS COUNTY 182 Misc. 2d 312; 696 N.Y.S.2d 649; 1999 N.Y. Misc. LEXIS 407 September 9, 1999, Decided DISPOSITION: [***1] Plaintiff's complaint dismissed and defendant's cross claim granted. CASE SUMMARY: PROCEDURAL POSTURE: Plaintiffs, on common law negligence theories based on the violation of a duty and the violation of state and local laws, sued defendants for injuries caused by lead-based paint exposure. Defendant owner sought indemnity from defendant housing agency, which sought summary judgment. OVERVIEW: Plaintiffs, tenants under the United States Housing Act of 1937 § 8, 42 U.S.C.S. § 1437f, and its implementing regulations, 24 C.F.R. §§ 882 and 982, sought damages for injuries they sustained after being exposed to lead-based paint. Defendant housing agency argued that it was not liable, because it did not own the apartment. The court first noted that no right of action existed under the housing act, its regulations, or the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C.S. § 4822 et seq., allowing plaintiffs to sue defendant housing agency. The court then rejected plaintiff's negligence argument, finding that defendant housing authority did not have a special duty to plaintiffs simply because it had determined plaintiffs were qualified for low income housing. The court also found that violations of state and local laws governing lead-based paint did not establish negligence. OUTCOME: The court dismissed plaintiffs' complaint,

holding that defendant housing agency owed them no special duty that would give rise to a negligence action, and that no action existed for the violation of state and local laws governing lead-based paint. The court dismissed defendant owner's cross-claim. CORE TERMS: paint, housing, infant, summary judgment, tenants, inspection, apartment, common-law, poisoning, local laws, housing authority, private right of action, cross claim, abatement, exposure, subsidized housing, implementing, lead-based, discovery, tenancy, housing agency, action to recover damages, lead poisoning, personal injuries, administered, placement, detriment, owed, Lead-Based Paint Poisoning Prevention Act LPPPA, justifiably relied LexisNexis(R) Headnotes

Civil Procedure > Federal & State Interrelationships > Federal Common Law > General Overview Public Health & Welfare Law > Housing & Public Buildings > Low Income Housing Real Property Law > Environmental Regulation > Indoor Air & Water Quality [HN1] No private right of action exists under the LeadBased Paint Poisoning Prevention Act, 42 U.S.C.S. § 4822 et seq., United States Housing Act of 1937 § 8, 42 U.S.C.S. § 1437f, or 24 C.F.R. §§ 882 and 982 that would enable individuals to sue a public housing agency.

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Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > Government Officials Torts > Public Entity Liability > Immunity > Sovereign Immunity Torts > Public Entity Liability > Liability > General Overview [HN2] A municipal agency may not be held liable to injured persons for negligently exercising or performing its governmental functions or its obligations imposed by statutes or regulations in the absence of proof of the existence of a special duty owing to the persons injured in contrast to a duty owed to the general public. Such a duty is found when a special relationship exists between the municipal agency and an individual or class of persons warranting the imposition of a duty to use reasonable care for those persons' benefit. Governments > Local Governments > Administrative Boards Torts > Negligence > Duty > Affirmative Duty to Act > Failure to Act Torts > Negligence > Duty > Affirmative Duty to Act > Voluntary Assumption of Duty [HN3] Liability is imposed where a municipal agency has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefitted thereby. Governments > Local Governments > Administrative Boards Public Health & Welfare Law > Housing & Public Buildings > Low Income Housing Real Property Law > Environmental Regulation > Indoor Air & Water Quality [HN4] United States Housing Act of 1937 § 8, 42 U.S.C.S. § 1437f, the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C.S. § 4822 et seq., and 24 C.F.R. §§ 882 and 982 do not impose any affirmative duty upon the public housing agency to enforce local and state laws concerning lead paint. There is no cause of action against a public housing agency for violations of state and local laws governing lead paint. Civil Procedure > Summary Judgment > Opposition > General Overview Civil Procedure > Summary Judgment > Supporting Materials > General Overview Governments > Local Governments > Claims By & Against [HN5] Pursuant to N.Y. C.P.L.R. 3212(f), a motion for summary judgment may be denied to permit disclosure

where it appears from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated. Civil Procedure > Summary Judgment > Supporting Materials > General Overview [HN6] The denial of a motion for summary judgment pursuant to N.Y. C.P.L.R. 3212(f) must be supported by something more than mere suspicion or surmise. HEADNOTES Public Housing - Liability to Tenant in Federally Subsidized Housing - No Federal Private Right of Action for Lead Paint Poisoning 1. Plaintiffs, tenants in Federally subsidized housing, have no Federal private right of action against defendant New York City Housing Authority (NYCHA), which administers their tenancies in its capacity as a public housing agency (42 USC § 1437f), based upon injuries suffered by the infant plaintiff as a result of exposure to lead paint. Neither the Federal housing program, the Lead-Based Paint Poisoning Prevention Act (42 USC § 4822 et seq.), nor their implementing regulations give rise to a private right of action enabling individuals to sue the NYCHA. Public Housing - Liability to Tenant in Federally Subsidized Housing - No Special Duty to Protect Tenants from Lead Paint Poisoning 2. In an action to recover damages for personal injuries allegedly sustained by the infant plaintiffs by their exposure to lead-based paint in their Federally subsidized apartment, defendant New York City Housing Authority, which administered plaintiffs' tenancy in its capacity as a public housing agency (42 USC § 1437f), cannot he held liable based upon common-law negligence in the absence of proof of the existence of a special duty owing to plaintiffs. Defendant cannot be deemed to have affirmatively assumed a special duty to protect plaintiffs from lead poisoning merely by determining that they were qualified to receive its assistance in housing placement and subsidies, and by acting on their behalf in providing such assistance. Plaintiffs have not demonstrated that defendant's acts in any way exceeded its general duty to provide assistance in housing placement or its general duty of inspection under Federal regulations (see, 24 CFR parts 882, 982). Furthermore, there is no evidence that plaintiffs justifiably relied to their detriment upon defendant's routine lead inspection. Public Housing - Liability to Tenant in Federally Subsidized Housing - No Special Duty to Protect Tenants from Lead Paint Poisoning

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3. In an action to recover damages for personal injuries allegedly sustained by the infant plaintiffs by their exposure to lead-based paint in their Federally subsidized apartment, defendant New York City Housing Authority, which administered plaintiffs' tenancy in its capacity as a public housing agency (42 USC § 1437f), cannot he held liable in negligence for its alleged violations of State and local laws and regulations regarding lead paint poisoning, since neither the Federal housing program nor the Lead-Based Paint Poisoning Prevention Act (42 USC § 4822 et seq.) impose any affirmative duty upon a public housing authority to enforce local and State laws concerning lead paint. Moreover, State and local laws governing lead paint do not impose any duty upon defendant with regard to lead paint inspection or abatement. Rather, such duty is imposed upon other entities such as the Department of Health. Public Housing - Liability to Tenant in Federally Subsidized Housing - No Special Duty to Protect Tenants from Lead Paint Poisoning 4. In an action to recover damages for personal injuries allegedly sustained by the infant plaintiffs by their exposure to lead-based paint in their Federally subsidized apartment, in view of the court's determination that the New York City Housing Authority (NYCHA), which administered plaintiffs' tenancy in its capacity as a public housing agency (42 USC § 1437f), cannot be held liable to plaintiffs for its alleged violation of State and local laws regarding lead paint poisoning or for its alleged negligence and violation of its common-law duties, defendant building owner may not seek contribution or indemnification from NYCHA. Furthermore, defendant is not entitled to discovery to enable her to ascertain whether NYCHA undertook some additional responsibility to plaintiffs and induced plaintiffs to rely upon its findings to their detriment. Defendant and plaintiffs have not demonstrated that discovery would produce any evidence supporting liability on the part of NYCHA. A General Municipal Law § 50-h hearing has already been conducted with regard to plaintiffs' claims, and there are no factual allegations by plaintiffs that NYCHA took any steps beyond those required of it in its role as administrator. Accordingly, NYCHA is granted summary judgment dismissing both the complaint and cross claim asserted against it. COUNSEL: Herzfeld & Rubin, New York City (Herbert Lazar of counsel), for New York City Housing Authority, defendant. Tarshis & Hammerman, L. L. P., Forest Hills (Michael A. Hammerman of counsel), for Ernestine Boyce, defendant. Paparian & Bury, New York City (Thomas A. Walbaum of counsel), for plaintiffs. JUDGES: JAMES H. SHAW, JR., J.

OPINION BY: JAMES H. SHAW, JR. OPINION [*313] [**650] James H. Shaw, Jr., J. In this action to recover damages for personal injuries allegedly [*314] sustained by the infant plaintiffs Me'chelle Missouri and Gayle Missouri (the infant plaintiffs) by their exposure to lead-based paint, defendant New York City Housing Authority (NYCHA) moves for summary judgment dismissing plaintiffs' complaint and defendant Ernestine Boyce's cross claim as against it. This action was brought on behalf of two infant plaintiffs, by their mother and natural guardian, plaintiff Gail Missouri, and Gail Missouri, individually, to recover damages against defendants Ernestine Boyce and the NYCHA for injuries allegedly sustained by the infant plaintiffs from their [***2] exposure in 1995 to leadbased paint within an apartment in a building, located at 958 [**651] Bedford Avenue, in Brooklyn, New York. The infant plaintiffs were diagnosed with lead poisoning in July 1995. Defendant Ernestine Boyce is the owner of said apartment building. Plaintiffs were tenants in the subject apartment under the Federal section 8 program of the United States Housing Act of 1937, codified at 42 USC § 1437f. The NYCHA administered plaintiffs' tenancy at the aforesaid apartment in its capacity as a public housing agency (PHA) pursuant to 42 USC § 1437f (section 8), as implemented by the United States Department of Housing and Urban Development (HUD) regulations set forth in 24 CFR parts 882 and 982. Plaintiffs' complaint as against the NYCHA alleges that the NYCHA was negligent in failing to enforce State and local laws regarding lead paint, and also alleges claims of common-law negligence. Defendant Ernestine Boyce has interposed a cross claim seeking contribution and indemnification from the NYCHA. In support of its motion for summary judgment, the NYCHA argues that since it was never the owner of the [***3] section 8 property at issue and its relationship to plaintiffs and the subject apartment arose solely pursuant to the section 8 statute and regulations, it, as a nonowner PHA, cannot be held liable herein. The precise issue of whether a private right of action exists against the NYCHA under the section 8 statute, the Lead-Based Paint Poisoning Prevention Act (LPPPA) (codified at 42 USC § 4822 et seq.), and their implementing regulations was recently addressed in Roman v Morace (1997 WL 777844, 1997 US Dist LEXIS 19926 [SD NY, Dec. 16, 1997]). In that case, the United States District Court for the Southern District of New York, after conducting an

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exhaustive analysis of the section 8 statute (42 USC § 1437f), the LPPPA, [*315] and their implementing regulations, under the standards set by the United States Supreme Court in Cort v Ash (422 US 66), concluded that [HN1] no private right of action exists under these laws enabling individuals to sue the NYCHA. This ruling in Roman v Morace (supra) [***4] is consistent with the rulings by other Federal courts and numerous New York State Supreme Courts which have recently addressed this issue (see, Lindsay v New York City Hous. Auth., 1999 WL 104599, 1999 US Dist LEXIS 1893 [ED NY, Feb. 24, 1999]; Franklin v Caisi Mgt. Co., US Dist Ct, ED NY, June 5, 1997, Raggi, J., 95 Civ 3460; Murdock v Harris, NYLJ, Aug. 4, 1999, at 24, col 3 [Belen, J.]; Cardona v 642-652 Willoughby Ave. Corp., 182 Misc 2d 223; Greene v New York City Hous. Auth., Sup Ct, Kings County, June 18, 1999, Rappaport, J., index No. 28051/96; Palmer v Millien, NYLJ, Mar. 31, 1999, at 35, col 1 [Belen, J.]; Williams v City of New York, Sup Ct, NY County, Mar. 30, 1999, Gangel-Jacob, J., index No. 116908/96; Jenes v Katz, Sup Ct, Kings County, Sept. 25, 1998, Ruchelsman, J., index No. 79140/97; Tavares v Shendell Realty Group, Sup Ct, Bronx County, Aug. 25, 1998, McKeon, J., index No. 7827/97; Hill v 1801 Weeks Ave. Corp., Sup Ct, Bronx County, July 22, 1998, Katz, J., index No. 26402/97; Bannister v Samuel, Sup Ct, Kings County, June 5, 1998, Barasch, J., index No. 49154/96; Feliciano v 1509 St. [***5] Nicholas Assocs., Sup Ct, Bronx County, May 1, 1998, Crispino, J., index No. 18720/96; Seaberry v Henry, Sup Ct, Kings County, Apr. 22, 1998, Held, J., index No. 79367/97). In opposition to the NYCHA's motion, plaintiffs essentially concede that there is no private right of action against the NYCHA under the section 8 statute, the LPPPA, or their implementing regulations. Plaintiffs argue, however, that the NYCHA may be held liable to them based upon common-law negligence and for its alleged violation of State and local laws and regulations. In addressing plaintiffs' arguments, the court notes that [HN2] a municipal agency may not be held liable to injured [**652] persons for negligently exercising or performing its governmental functions or its obligations imposed by statutes or regulations in the absence of proof of "the existence of a special duty owing to the persons injured in contrast to a duty owed to the general public" (Bargy v Sienkiewicz, 207 AD2d 606, 608; see also, Bonner v City of New York, 73 NY2d 930, 932; Garrett v Holiday Inns, 58 NY2d 253, 261; [***6] Florence v Goldberg, 44 NY2d 189, 195-196). "Such a duty is found when a special relationship exists [*316] between the municipal ... [agency] and an individual or class of persons warranting the imposition of a duty to

use reasonable care for those persons' benefit" (Garrett v Holiday Inns, supra, 58 NY2d, at 261). Pursuant to this principle, [HN3] liability is imposed where the municipal agency "has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefitted thereby" (supra, at 262; see also, Bargy v Sienkiewicz, supra, 207 AD2d, at 608-609). Plaintiffs contend that a special duty was owed to them by the NYCHA, and that the NYCHA may, therefore, be held liable to them for common-law negligence. In support of this contention, plaintiffs rely upon Bargy v Sienkiewicz (supra, 207 AD2d 606), a lead-poisoning case, in which the Appellate Division, Third Department, denied summary judgment to the County of Albany, holding that said county had assumed a special duty to [***7] the lead-poisoned infant plaintiffs therein. Such reliance, however, is misplaced since, in Bargy v Sienkiewicz (supra, at 609), there was evidence demonstrating that the county had exceeded its general duty of lead paint inspection and abatement. Specifically, the county had recommended the removal of the infants during the lead paint abatements and had kept the family therein apprised of the progress of each abatement (supra). There was also detrimental reliance by the plaintiff in that case upon representations by the county's inspector as to the safety of the premises (supra). Such inspector advised said plaintiff each time a lead paint hazard was found, stayed in contact with her, and gave her his approval to return to the premises after an inadequate abatement had been completed, resulting in the lead poisoning of the infants therein (supra). In the case at bar, in contrast, plaintiffs merely assert that the NYCHA voluntarily and affirmatively assumed a special duty to them by determining that they were qualified to receive its assistance in housing placement and subsidies, and by acting on their behalf in providing such assistance by placing [***8] them in housing chosen and supervised by it. Plaintiffs also assert that the NYCHA further assumed a special duty to them by its performance of a mandatory routine visual inspection of the premises before placing them to live at such premises. The foregoing assertions by plaintiffs, however, are patently insufficient to establish a special relationship between plaintiffs and the NYCHA so as to create a duty owed by the NYCHA to them to protect them from lead poisoning (see, Lindsay v New York City Hous. Auth., supra, 1999 WL 104599, 1999 US Dist LEXIS 1893; [*317] Murdock v Harris, supra, NYLJ, Aug. 4, 1999, at 24, col 3; Palmer v Millien, supra, NYLJ, Mar. 31, 1999, at 35, col 1; Hill v 1801 Weeks Ave. Corp., supra, Sup Ct, Bronx County, July 22, 1998). There are no facts alleged showing that the NYCHA's acts in any way exceeded its general duty to provide assistance in housing placement

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or its general duty of inspection under the Federal regulations in its role as a section 8 administrator, or that it took any steps beyond those required of it pursuant to statutory mandates (see, Lindsay v New York City Hous. Auth., supra; Murdock [***9] v Harris, supra; Palmer v Millien, supra; Hill [**653] v 1801 Weeks Ave. Corp., supra). Nor are there any factual allegations or evidence that plaintiffs justifiably relied to their detriment upon the NYCHA's routine lead inspection (see, Lindsay v New York City Hous. Auth., supra; Garrett v Holiday Inns, supra, 58 NY2d, at 261-262; Bargy v Sienkiewicz, supra, 207 AD2d, at 609). Thus, inasmuch as no special duty was owed by the NYCHA to plaintiffs, liability for common-law negligence may not be imposed upon it (see, Lindsay v New York City Hous. Auth., supra; Garrett v Holiday Inns, supra, 58 NY2d, at 261-262; Williams v City of New York, supra, Sup Ct, NY County, Mar. 30, 1999). Plaintiffs' further contention that the NYCHA may be held liable to them in negligence for its alleged violations of State and local laws and regulations respecting lead paint poisoning is also devoid of merit. [HN4] The section 8 statute, the LPPPA, and the implementing regulations do not impose any affirmative duty upon the [***10] PHA to enforce local and State laws concerning lead paint (see, Roman v Morace, supra, 1997 WL 777844, 1997 US Dist LEXIS 19926; Palmer v Millien, supra, NYLJ, Mar. 31, 1999, at 35, col 1). Moreover, in Roman v Morace (supra), the Federal District Court specifically held that there was no cause of action against the NYCHA for violations of State and local laws governing lead paint since such laws did not impose any duty upon the NYCHA with regard to lead paint inspection or abatement but, rather, imposed the duty of enforcement on other entities such as the Department of Health. This holding in Roman v Morace (supra) has been consistently followed by New York State Supreme Court decisions (see, Palmer v Millien, supra, NYLJ, Mar. 31, 1999, at 35, col 1; Tavares v Shendell Realty Group, supra, Sup Ct, Bronx County, Aug. 25, 1998; Hill v 1801 Weeks Ave. Corp., supra, Sup Ct, Bronx County, July 22, 1998). Thus, inasmuch as the NYCHA may not be held liable to plaintiffs for its alleged violation of State and local laws and [*318] regulations or for its alleged negligence and violation of its common-law [***11] duties, summary judgment dismissing plaintiffs' complaint as against it must be granted (see, CPLR 3212 [b]; Roman v Morace, supra; Lindsay v New York City Hous. Auth., supra, 1999 WL 104599, 1999 US Dist LEXIS 1893; Palmer v Millien, supra; Tavares v Shendell Realty Group, supra; Hill v 1801 Weeks Ave. Corp., supra). In

view of the court's determination, defendant Ernestine Boyce is not entitled to contribution or indemnification from the NYCHA, and summary judgment dismissing her cross claim against it must also be granted (see, Murdock v Harris, supra, NYLJ, Aug. 4, 1999, at 24, col 3; Palmer v Millien, supra, NYLJ, Mar. 31, 1999, at 35, col 1; Jenes v Katz, supra, Sup Ct, Kings County, Sept. 25, 1998). Defendant Ernestine Boyce's argument, in opposition to the NYCHA's motion, that summary judgment dismissing her cross claim against the NYCHA should be denied in order to permit her to conduct discovery to enable her to ascertain whether the NYCHA undertook some additional responsibility to plaintiffs and induced plaintiffs to rely upon its findings to their detriment is rejected. The court notes that [***12] a General Municipal Law § 50-h hearing has been conducted with regard to plaintiffs' claims and, as discussed above, there are no factual allegations by plaintiffs that the NYCHA took any steps beyond those required of it in its role as a section 8 administrator. While, [HN5] pursuant to CPLR 3212 (f), a motion for summary judgment may be denied to permit disclosure to be had where "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated," here, the opposing papers by Ernestine Boyce and plaintiffs do not give any reason to believe that discovery would produce [**654] any evidence supporting liability on the part of the NYCHA. Ernestine Boyce's attorney's conclusory speculation and expression of mere hope, in his affirmation in opposition to the motion, does not demonstrate what facts or evidence might be uncovered through discovery and does not provide a basis for postponing the court's decision on this motion (see, CPLR 3212 [***13] [f]; Wood v Otherson, 210 AD2d 473, 474; Pow v Black, 182 AD2d 484, 485; Denkensohn v Davenport, 130 AD2d 860, 861; Griffin v Cortland Mem. Hosp., 85 AD2d 837). [HN6] The denial of a motion for summary judgment pursuant to CPLR 3212 (f) must be supported by something more than mere suspicion or surmise (Denkensohn v Davenport, supra, 130 AD2d, at 861). Thus, to deny the NYCHA's motion pursuant to CPLR 3212 (f), [*319] under the circumstances of this case, "would result in impermissibly sanctioning fishing expeditions premised upon surmise, conjecture and speculation" (Kennerly v Campbell Chain Co., 133 AD2d 669, 670; see also, Cadle Co. v Hoffman, 237 AD2d 555; La Scala v D'Angelo, 104 AD2d 930, 931). Accordingly, the NYCHA's motion for summary judgment dismissing plaintiffs' complaint and defendant Ernestine Boyce's cross claim as against it is granted.

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55 of 55 DOCUMENTS

Cited As of: Sep 10, 2008 Casey Cardona, an Infant, by His Mother and Natural Guardian, Jessica Williams, et al., Plaintiffs, v. 642-652 Willoughby Avenue Corp. et al., Defendants. Index No. 1323/96 SUPREME COURT OF NEW YORK, KINGS COUNTY 182 Misc. 2d 223; 697 N.Y.S.2d 231; 1999 N.Y. Misc. LEXIS 416 June 29, 1999, Decided SUBSEQUENT HISTORY: November 29, 1999. DISPOSITION:

[***1] As Corrected

were not intended to create a private cause of action or remedy against entities such as defendant for violations or enforcement of lead paint laws.

Motion to dismiss granted.

CASE SUMMARY: PROCEDURAL POSTURE: Defendant housing authority moved for summary judgment to dismiss the complaint of plaintiffs mother and infant for damages to infant as a result of exposure to lead paint. OVERVIEW: Plaintiffs lived in a housing unit run by defendant. Infant was exposed to lead paint in the unit and was injured. Plaintiffs brought suit for damages. Defendant moved for summary judgment on the basis that it was a non-owner public housing authority and, as such, plaintiffs could not maintain a private cause of action against it under federal regulations and it had no duty to enforce local laws regarding lead paint. The court held that Congress intended HUD to be responsible for compliance with lead paint programs, thus a private cause of action and remedy against defendant was inconsistent with congressional intent under the lead paint laws. Also, none of the lead paint laws or federal regulations imposed on defendant a duty to enforce local lead paint laws and defendant had not acted beyond its usual scope as a public housing authority. OUTCOME: The court granted defendant's motion and dismissed plaintiffs' complaint because defendant had no duty to enforce lead paint laws and federal regulations

CORE TERMS: paint, housing, cause of action, apartment, right of action, implementing, inspection, tenants, infant, municipality's, poisoning, hazards, housing agency, subsidized housing, legislative intent, leadbased, ensuring, nonowner, removal, injuries suffered, congressional intent, inappropriate, enforceable, common-law, relegated, exposure, tenancies, intend, LeadBased Paint Poisoning Prevention Act LPPPA, private right LexisNexis(R) Headnotes

Governments > Federal Government > U.S. Congress Governments > Legislation > Interpretation [HN1] Whether an implied private right of action exists under a Federal statute is strictly a matter of congressional intent. The test reflects a concern, grounded in the separation of powers, that Congress rather than the courts controls the availability of remedies for the violation of statutes. Civil Procedure > Federal & State Interrelationships > Federal Common Law > General Overview Governments > Federal Government > U.S. Congress Governments > Legislation > Interpretation [HN2] Four factors courts are required to consider in de-

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termining whether an individual may have a private right of action under a Federal statute that is silent on the subject: 1) Whether the plaintiff is one of the class for whose "especial" benefit Congress enacted the statute, that is, does the statute create a federal right in favor of the plaintiff; 2) Whether there exists any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; 3) Whether it remains consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff; and 4) Whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law. Governments > Federal Government > U.S. Congress Governments > Legislation > Interpretation [HN3] Courts examine three factors to determine whether a particular statutory provision gives rise to a Federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must show that the asserted right is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation upon the states, meaning the provision must be couched in mandatory rather than precatory terms. Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > Government Officials Torts > Public Entity Liability > Immunity > Sovereign Immunity Torts > Public Entity Liability > Liability > General Overview [HN4] A municipality cannot be held liable for negligently exercising its governmental functions unless there is proof of the existence of a special duty owing to the persons injured in contrast to a duty owed to the general public. Such a duty is found when a special relationship exists between the municipality and an individual or class of persons, warranting the imposition of a duty to use reasonable care for those persons' benefit. This principle operates to impose liability where the municipality has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefited thereby. Establishment of a special relationship requires demonstration of the municipality's assumption, through promises or actions, of an affirmative duty to act on behalf of the victim, knowledge on the part of the municipality's agents that inaction could lead to harm, some form of direct contact between the municipality's agents and the victim, and justifiable reliance by the victim upon the municipality's undertaking .

HEADNOTES Public Housing - Liability to Tenant in Federally Subsidized Housing - No Federal Private Right of Action for Lead Paint Poisoning 1. Plaintiffs, tenants in Federally subsidized housing, have no Federal private right of action against defendant New York City Housing Authority (NYCHA), which administers their tenancies in its capacity as a public housing agency (42 USC § 1437f), based upon injuries suffered by the infant plaintiff as a result of exposure to lead paint. While the Lead-Based Paint Poisoning Prevention Act (LPPPA) and its implementing regulations (42 USC § 4822 et seq.; 24 CFR part 982) create an enforceable Federal right in plaintiffs' favor with regard to lead paint detection, implying a private right of action to enforce that right would be inconsistent with the congressional intent that the Department of Housing and Urban Development (HUD) bear the primary responsibility for ensuring compliance with all program requirements. Congress provided an administrative scheme to remedy violations of the LPPPA by vesting in HUD the responsibility of ensuring that owners and public housing agencies comply with Federal requirements. Since Congress erected a regulatory scheme in sufficient detail to accomplish the LPPPA goals, the implication of a private remedy would be inconsistent with that purpose. In addition, the express Federal usurpation of local standards regarding lead paint inspection and removal (see, 24 CFR 35.40 [c]) also indicates that a private remedy would be inappropriate. Furthermore, neither the Federal housing program, the LPPPA nor their implementing regulations impose an affirmative duty on public housing agencies to enforce local and State laws concerning lead paint. Responsibility for maintenance rests primarily on the property owner and not the agency (see, 24 CFR 982.404). Unless NYCHA is the owner of a building, there is no statutory or regulatory provision that requires NYCHA to abate lead paint conditions. Public Housing - Liability to Tenant in Federally Subsidized Housing - No Liability for Negligent Lead Paint Inspection 2. Plaintiffs, tenants in Federally subsidized housing, fail to state a common-law negligence cause of action against defendant New York City Housing Authority (NYCHA), which administers their tenancies in its capacity as a public housing agency (42 USC § 1437f), based upon injuries suffered by the infant plaintiff as a result of exposure to lead paint. NYCHA's alleged negligent lead paint inspection and its failure to detect hazardous lead levels in plaintiffs' apartment cannot render it liable for damages in the absence of proof of a special duty owing to plaintiffs. Plaintiffs have failed to demonstrate

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that NYCHA acted beyond its usual scope as a public housing agency and there is no proof that a special relationship existed between NYCHA and plaintiffs. Moreover, there can be no common-law cause of action against NYCHA for violations of State and local lead paint poisoning laws since such laws impose the duties of enforcement on entities other than NYCHA. COUNSEL: Herzfeld & Rubin, New York City (Herbert Lazar of counsel), for New York City Housing Authority, defendant. Morrison, Mahoney & Miller, New York City, for Sea Park East Co. and another, defendants. Levy Philips & Konigsberg, New York City (Philip Monier of counsel), for plaintiffs. JUDGES: EDWARD M. RAPPAPORT, J. OPINION BY: EDWARD M. RAPPAPORT OPINION [*224] [**232] Edward M. Rappaport, J. Defendant New York City Housing Authority (NYCHA) moves for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint. In a second, amended notice of motion, NYCHA seeks similar relief, but further seeks an order dismissing the cross claims asserted against it. NYCHA also seeks an award of costs for this motion. For the convenience of the court, the initial motion is deemed to be subsumed by the amended motion. Infant plaintiff and his mother commenced an action against defendants seeking damages for injuries suffered by infant plaintiff as a result of exposure to lead paint. Infant plaintiff, born in December 1990, and his mother [***2] resided at apartment [**233] 35C, at 652 Willoughby Avenue, Brooklyn, New York, from about the time of infant's birth until October 2, 1993. Said apartment and building is owned by defendant 642-652 Willoughby Avenue Corp. While residing at that apartment, infant plaintiff was diagnosed as having high blood lead levels. Upon examination of the apartment, it was found to contain high levels of lead paint. Subsequently, on or around October 2, [*225] 1993, plaintiffs moved to 2970 27th Street, Brooklyn, New York, apartment 709, where they continued to reside through the time of the complaint in the within action. The latter apartment and building is owned by defendant Sea Park East Co. Despite the move, infant plaintiff continued to test positive for elevated blood lead levels. An inspection by the New York City Department of Health on June 17, 1994 resulted in a determination that the second apartment, too, had high levels of lead paint. Plaintiffs' tenancies at both apartments were pursuant to the Federal section 8 pro-

gram (42 USC § 1437f). The stated grounds upon which defendant NYCHA seeks summary judgment are: that it is a nonowner Public [***3] Housing Authority (PHA) and, as such, there is no private right of action under the Federal section 8 statute, the Lead-Based Paint Poisoning Prevention Act (Pub L 91-695, 84 US Stat 2078 [LPPPA]) or their implementing regulations; that neither the section 8 statute, the LPPPA, nor their implementing regulations impose any affirmative duty on a PHA to enforce local and State laws concerning lead paint; that there is no direct cause of action against a PHA (nonowner of premises) for failure to enforce State and local laws regarding lead paint; and that there are no causes of action in tort against a nonowner PHA. For the reasons stated below, NYCHA's motion is granted. Plaintiffs assert that a direct private right of action does exist under the Federal section 8 regulations and the LPPPA. The section 8 and LPPPA statutes and implementing regulations are sufficiently intertwined that they should be viewed as one body of law, promulgated with the objective of combating the evils of lead paint (see, Roman v Morace, 1997 WL 777844, at 8-9, 1997 US Dist LEXIS 19926 [SD NY, Dec. 16, 1997, Cote, J.]). [HN1] [***4] "Whether an implied private right of action exists under a federal statute is strictly a matter of congressional intent" (Chan v City of New York, 1 F3d 96, 101, cert denied 510 US 978). "The test reflects a concern, grounded in the separation of powers, that Congress rather than the courts controls the availability of remedies for violations of statutes" (Wilder v Virginia Hosp. Assn., 496 US 498, 509, n 9). In Cort v Ash (422 US 66), the Supreme Court set [HN2] forth four factors courts are required to consider in determining whether an individual may have a private right of action under a Federal statute that is silent on the subject: [*226] (a) whether the plaintiff is one of the class for whose "especial" benefit Congress enacted the statute, that is, does the statute create a Federal right in favor of the plaintiff; (b) whether there exists any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; (c) whether it remains consistent with the underlying purposes of the legislative [***5] scheme to imply such a remedy for the plaintiff; and (d) whether the cause of action is one traditionally relegated to State law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on Federal law (supra, at 78). Some courts have combined these four criteria into a single question of legislative intent (see, Monaghan,

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Federal Statutory Review Under Section 1983 [**234] and the APA, 91 Colum L Rev 233, 235). This court will nevertheless address them separately.

Hous. Auth., 479 US 418, 431 [considering HUD regulations in determining whether Federal right existed]).

a. Does the LPPPA Create a Federal Right in Plaintiff's Favor?

The LPPPA also contains specific and enforceable [***8] requirements. 24 CFR part 982 requires a PHA to conduct an initial lead paint inspection of section 8 housing units, as well as periodic inspections thereafter. The regulations set forth procedures the PHAs must follow in inspecting for the presence of lead paint (see, 24 CFR 982.405). These regulations are thus specific enough to create a Federal right, and the clarity of these requirements renders them capable of judicial enforcement. Whereas enforcement of vague terms such as "reasonable efforts"--a standard a Federal court found did not create a Federal right in Suter v Artist M. (supra, 503 US, at 363)--might "strain judicial competence" (Blessing v Freestone, supra, 520 US, at 341), the enforcement of the regulations in this case would not. The statute thus meets the second part of the Wilder test.

[HN3] Courts examine three factors to determine whether a particular statutory provision gives rise to a Federal right (see, Wilder v Virginia Hosp. Assn., supra, 496 US, at 509). First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must show that the asserted right is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose [***6] a binding obligation upon the States, meaning the provision must be couched in mandatory rather than precatory terms (see, Blessing v Freestone, 520 US 329, 341, citing Wilder v Virginia Hosp. Assn., supra, 496 US, at 510-511). The LPPPA specifies that Housing and Urban Development (HUD) "shall establish procedures to eliminate as far as practicable the hazards of lead based paint poisoning with respect to any existing housing which may present such hazards and which is covered" by a HUD program, such as section 8 (42 USC § 4822 [a] [1]). The LPPPA's implementing regulations * declare that their purpose is "to assure that purchasers and [*227] tenants of all HUD-associated housing constructed prior to 1978 are notified of the hazards of lead-based paint which may exist in such housing, of the symptoms and treatment of lead-based paint poisoning, and of the importance and availability of maintenance and removal techniques" (24 CFR 35.1). NYCHA does not dispute that the NYCHA's relationship to plaintiffs arose pursuant to the Federal section 8 program through which plaintiffs' apartment was subsidized. Plaintiffs [***7] are clearly members of the class of persons for whose benefit Congress enacted the LPPPA. Therefore, plaintiffs have met the first part of the Wilder test. * According to the relevant case law, courts may consider implementing regulations in determining whether a statute creates a Federal right (see, e.g., Blessing v Freestone, 520 US 329, supra [implicitly taking into account regulations implementing title IV-D of the Social Security Act in analyzing whether Act created Federal right]; Suter v Artist M., 503 US 347, 361-362 [considering regulations promulgated by the Secretary of Health and Human Services implementing the Adoption Assistance and Child Welfare Act of 1990 in determining whether children had Federal right to enforce provisions of Act]; Wright v City of Roanoke Redevelopment &

Finally, the requirements the regulations impose on the PHAs are not permissive. In addition to being detailed, they employ the term "shall" in explaining the PHA's obligations in conducting investigations, as well as in outlining the owners' duties to conduct treatment abatement (see, e.g., 24 CFR 982.401). The regulations, [***9] therefore, are sufficiently "couched in mandatory, rather than precatory, [**235] terms" (Blessing v Freestone, supra, 520 US, at 341) to create a Federal right. The court finds that the LPPPA meets all three prongs of the Wilder test and therefore provides plaintiffs with an enforceable Federal right. Thus, plaintiffs satisfy the first part of the Cort test. [*228] b. Is There Legislative Intent to Create or Deny a Federal Remedy? The second portion of the Cort test focuses on whether there exists any indication of legislative intent, explicit or implicit, to create or deny a Federal remedy (see, Cort v Ash, supra, 422 US, at 78). The LPPPA regulations, as they appeared in 1992, are silent in regard to whether individuals may privately enforce them. 24 CFR 982.406, however, which became effective on October 2, 1995, states that it "does not create any right of the family, or any party other than HUD or the PHA, to require enforcement of the [Housing Quality Standards] requirements by HUD or the PHA, or to assert any claim against HUD or the PHA, for damages, injunction or other relief, for the alleged failure [***10] to enforce the [Housing Quality Standards]." Thus, this provision unambiguously denies a private right of action against PHAs, at least as of October 2, 1995, when the provision became effective. Although the promulgation of 24 CFR 982.406 suggests to this court an intent to clarify that a

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private right of action had never been authorized, the regulation is not conclusive evidence that Congress did not intend to create such a right during the period when the cause of action in this case arose. The regulations in place now and before the 1995 revisions create enforcement mechanisms to ensure that owners and PHAs comply with Federal standards. To ensure owners' compliance, for example, PHAs may withhold section 8 payments or terminate their contracts entirely (see, 24 CFR 982.404 [a] [2], [3]). To ensure PHAs' compliance, HUD must review program operations and inspect PHAs' records (see, 24 CFR 982.401). This enforcement scheme supports the view that Congress intended HUD to bear the primary responsibility for ensuring PHA compliance with all program requirements, which in turn supports a finding that a private right of action is inconsistent with congressional [***11] intent (see, Lindsay v New York City Hous. Auth., 1999 WL 104599, 1999 US Dist LEXIS 1893 [ED NY, Feb. 24, 1999, Gleeson, J.]). Consequently, the statute fails to meet the second part of the Cort test. c. Is Private Enforcement Consistent with the Underlying Purpose of the Legislative Scheme? For the reasons stated above, the court finds that implying a private right of action under the LPPPA is inconsistent with the legislative purposes underlying the statute. Congress provided an administrative scheme to remedy violations of the [*229] LPPPA by vesting in HUD the responsibility of ensuring that owners and PHAs comply with Federal requirements. The statute itself specifies that HUD "shall establish procedures to eliminate as far as practicable the hazards of lead based paint poisoning with respect to any existing housing which may present such hazards and which is covered" by a HUD program (42 USC § 4822 [a] [1]). The administrative mechanisms advance the statute's purpose of assuring "that purchasers and tenants of all HUD-associated housing constructed prior to 1978 are notified of the hazards of lead-based paint [***12] which may exist in such housing, of the symptoms and treatment of leadbased paint poisoning, and of the importance and availability of maintenance and removal techniques" (24 CFR 35.1). Because it appears that Congress erected a regulatory scheme in sufficient detail to accomplish the LPPPA goals, the court concludes that the implication of a private remedy is inconsistent with that purpose (see, Chan v City of New York, supra, 1 F3d, at 102, cert denied 510 US 978). [**236] d. Is this Cause of Action Traditionally Relegated to State Law? The fourth part of the Cort test--whether the cause of action is one so traditionally relegated to the States

that an implied Federal cause of action would be inappropriate--weighs in favor of plaintiffs. Although housing inspection has traditionally been a State and local function, Congress has declared its intention to supercede such authority with respect to lead paint detection (see, 24 CFR 35.40 [c]). This express usurpation of local standards regarding lead paint inspection and removal provides sufficient substantiation for the conclusion that a Federal cause of action would not be [***13] appropriate. Considering all the Cort factors together, the court finds that Congress did not intend to create a private right of action under the LPPPA. While nothing exists in the legislative history or the text of the statute indicating an intent to deny a private remedy, neither does any such evidence point to an intent to confer a private remedy. "The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide" (California v Sierra Club, 451 US 287, 297). This court, too, is not inclined to create Federal remedies where the Federal courts have not. Thus " 'the essential predicate for implication of a private remedy simply does not exist' " (DiLaura v Power Auth., 982 F2d 73, 77). Likewise, neither the section 8 statute, the LPPPA nor their implementing regulations impose an affirmative duty on the [*230] PHA to enforce local and State laws concerning lead paint. Pursuant to 24 CFR 982.404, the responsibility for maintenance rests primarily on the property owner and not the PHA. The PHA's only remedies against a recalcitrant owner are termination, suspension or reduction [***14] of housing assistance payments (HAP) and termination of the HAP contract. (24 CFR 982.404 [a] [2].) Unless NYCHA is the owner of a building, there is no statutory or regulatory provision that requires the nonowner PHA to abate lead paint conditions. Plaintiffs also contend that notwithstanding Federal statutes, NYCHA had a duty under common law to conduct a proper lead paint inspection prior to allowing tenants to move in, and that having assumed that duty, NYCHA's negligent inspection renders it liable for damages proximately caused by its failure to detect hazardous lead levels in the apartment. In Roman v Morace (supra, 1997 WL 777844, at 1112, 1997 US Dist LEXIS 19926) the court held, inter alia, that the plaintiffs tenants--whose claims closely resembled those of the instant plaintiffs--had no commonlaw cause of action against NYCHA for violations of State and local lead paint poisoning laws, since such laws imposed the duties of enforcement on entities other than NYCHA, such as the Department of Health.

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[HN4] "It is settled law that a municipality cannot [***15] be held liable for negligently exercising its governmental functions unless there is proof of the existence of a special duty owing to the persons injured in contrast to a duty owed to the general public ... 'Such a duty is found when a special relationship exists between the municipality and an individual or class of persons, warranting the imposition of a duty to use reasonable care for those persons' benefit ... This principle operates to impose liability ... where the municipality has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefited thereby' ... " 'Establishment of a special relationship requires demonstration of (1) the municipality's assumption, through promise or actions, of an affirmative duty to act

on behalf of the victim, (2) knowledge on the part of the municipality's agents that inaction could lead to harm, (3) some form of direct contact between the municipality's agents and the victim, and (4) justifiable reliance by the victim upon the municipality's [**237] affirmative undertaking' " (Bargy v Sienkiewicz, 207 AD2d 606, 608609). In the instant case, there is no proof that NYCHA acted [***16] beyond its usual scope as a PHA, and there is no proof that a special relationship existed between NYCHA and plaintiffs. [*231] Accordingly, NYCHA's motion is granted to the extent of dismissing the complaint and any and all claims asserted against said defendant, and the action is severed accordingly.

114R95 ********** Print Completed ********** Time of Request: Wednesday, September 10, 2008 Print Number:

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PUBLIC 1, UCS 1 NYS UNIFIED COURT SYSTEM-PUBLIC ACCESS EMPIRE STATE PLAZA STE 2001 ALBANY, NY 12223-1450