[*1]
Harmon v Metropolitan Opera
2013 NY Slip Op 50361(U) [38 Misc 3d 1231(A)]
Decided on March 12, 2013
Supreme Court, Queens County
McDonald, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 12, 2013
Supreme Court, Queens County


Elaine Harmon and DAVID HARMON, Plaintiffs,

against

The Metropolitan Opera, LINCOLN CENTER FOR THE PERFORMING ARTS, INC., NEW YORK ELEVATOR AND ELECTRICAL CORP., and THYSSENKRUPP ELEVATOR CORPORATION, Defendants.




2329/2011

Robert J. McDonald, J.



The following papers numbered 1 to 21 were read on this motion by defendant, LINCOLN CENTER FOR THE PERFORMING ARTS, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint and all cross-claims asserted against it:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits................ 1 - 6

Plaintiff's Affirmation in Opposition-Exhibits.......7 - 11

Defendant Thyssenkrupp Affirmation in Opposition....12 - 15

Reply Affirmations(2)...............................16 - 21

____________________________________________________________

This is an action for damages for personal injuries allegedly sustained by plaintiff, Elaine Harmon, as a result of a fall on the "Front of House Escalator" at the Metropolitan Opera House located at 70 Lincoln Center Plaza, New York County, New York on February 2, 2008. [*2]

The plaintiff commenced an action for negligence against the Metropolitan Opera, Lincoln Center for the Performing Arts, Inc., New York Elevator and Electrical Corp. and Thyssenkrupp Elevator Corporation, by filing a summons and verified complaint on January 31, 2011 and a supplemental summons and complaint on May 23, 2011. Issue was joined by the service of a verified answer by defendants New York Elevator and Electrical Corp. (New York Elevator) and Thyssenkrupp Elevator Corporation (Thyssenkrupp) on February 22, 2011 and by service of an amended answer by Lincoln Center for the Performing Arts (Lincoln Center) on June 17, 2011. Pursuant to the order of this Court dated October 18, 2012 and entered January 14, 2013, the complaint against The Metropolitan Opera was dismissed for lack of personal jurisdiction due to improper service of process. Plaintiff filed a note of issue on June 19, 2012. This case is presently on the calendar of the Trial Scheduling Part for April 25, 2013.

The gravamen of the complaint is while the plaintiff was on an escalator going down to a lower level at the Metropolitan Opera House at Lincoln Center, a handrail malfunctioned on the escalator causing the plaintiff to fall forward and to sustain personal injuries. The plaintiff alleges that Lincoln Center was negligent in the ownership, operation, maintenance, repair and control of the escalator. Plaintiff asserts that Lincoln Center failed to make reasonable inspections of the handrail, failed to remedy the dangerous condition, and permitted the escalator to remain in a dangerous and defective condition. Plaintiff contends that the defective handrail condition existed for such period of time that defendant, in the exercise of due care, should have recognized and remedied it. The plaintiff's bill of particulars also asserts that res ipsa loquitur applies against Lincoln Center

Counsel for defendant, Lincoln Center, now moves for an order granting summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against it on the ground that Lincoln Center, the owner of the Metropolitan Opera building is an out-of-possession landlord who does not retain control of the premises and is not contractually obligated to perform maintenance and repairs on the escalator in question. Defendant Lincoln Center asserts that it did not create the condition as no employee of Lincoln Center performed any work on the handrails of the escalator, that Lincoln Center did not have actual notice of any problems with the escalator prior to February 2, 2008 and that Lincoln Center did not have constructive notice of the alleged issues with the escalator. Defendant asserts that the lease agreement between the Metroplitan Opera and and Lincoln Center placed responsibility for maintenance and repair of the [*3]premises on Metropolitan Opera. Lastly, counsel asserts that res ipsa loquitur does not apply to defendant Lincoln Center as Lincoln Center did not have exclusive control over the escalator in question.

In support of the motion, defendant's counsel, Evy L Kazansky, Esq., submits her own affirmation dated November 1, 2012; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the lease between Lincoln Center and The Metropolitan Opera; copies of the transcripts of the examinations before trial of plaintiff Elaine Harmon and Peter Flamm, director of Operations, Facilities and Public Spaces for Lincoln Center; the affidavit of James Naples, House Manager for the Metropolitan Opera; an elevator preventative maintenance agreement between The Metropolitan Opera and New York Elevator; the retainer agreement between Lincoln Center and Otis Elevator; and a photograph depicting the top of the escalator in question.

In her examination before trial, taken on July 20, 2012, plaintiff, Elaine Harmon, age 89, testified that her accident occurred on Sunday, February 2, 2008 at the Metropolitan Opera House at Lincoln Center, New York. After attending a ballet performance at the New York State Theater, she and her friends walked to the Metropolitan Opera House intending to take the escalator in the Opera House down to the public parking garage. When she got on the escalator she put her left hand on the handrail. About a quarter of the way down, the handrail stopped but the stairs kept moving. As plaintiff held the handrail, her feet were being pulled down the moving stairs causing her to fall backwards. She stated that her legs and back hit the steps and she was bleeding from her right calf. Two security men came, helped her up and took her to the upper level. Her friend's car was brought out to the front of the Opera House and she was driven home. She stated that used that same escalator many times before, it always operated properly, and she never heard of any one else being injured on that particular escalator.

Defendant also submits a transcript of the examination before trial of Peter Flamm, Senior Director for Operations, Facilities and Public Spaces who testified on behalf of Lincoln Center. He did not believe that Lincoln Center has any maintenance responsibility for the escalators within the Metropolitan Opera. He did state that Lincoln Center had a maintenance contract for escalators in the public spaces. He stated that Lincoln Center was responsible for a total of eight escalators on the campus. He stated that Lincoln Center holds a maintenance contract with Otis for specific escalators on the campus which includes escalators that are in the public area. He [*4]did not believe that the escalators within the Metropolitan Opera are mentioned in the contract with Otis. He stated that the general services budget for Lincoln Center does include components that relate to areas within the Metropolitan Opera that are called out within the lease with Lincoln Center, however, he stated that they do not include reference to any escalators or elevators within the Metropolitan Opera facility itself. He stated that Lincoln Center maintains three locations within the Opera house pursuant to the lease such as a telecom room, a security changing room, and an area that houses the cooling towers. He stated that Lincoln Center employs engineers who work in the general services department. The engineers for Lincoln Center operate equipment and systems that support the campus and public areas. He stated that to his knowledge, under the terms of the lease, Lincoln Center does not maintain the area in the Metropolitan Opera where the escalator exists or it servicing.

Mr. Flamm, also testified that Lincoln Center is the owner of the Metropolitan Opera building. He stated that there are publicly accessible concourse systems on the campus that are outside of the Metropolitan Opera's operational area that are maintained by Lincoln Center. He stated that there are escalators at Lincoln Center in public areas that are outside of the Metropolitan Opera's responsibilities. He stated that there are eight escalators that are maintained under service contracts for Lincoln Center six of which are in publicly accessible areas, and four of which are in proximity to the Metropolitan Opera House. Mr. Flamm stated that under Article 8 of the lease, the Metropolitan Opera is responsible to contract for and maintain all areas within the Metropolitan Opera House that are defined in the lease including any escalators within the Opera House. He stated that he was only familiar with excerpts of the lease agreement.

Defendant also submits an affidavit dated October 18, 2012 from Jim Naples, the House Manager for 26 years of the Metropolitan Opera House. He states that pursuant to the lease, the escalator on which plaintiff had her accident, which runs between the Plaza level lobby and the concourse level, is within the Metropolitan Opera's jurisdiction under the lease. The Metropolitan Opera employees control the direction of the escalator. He also states that Metropolitan Opera entered into a five year contract with New York Elevator Company commencing September 1, 2005 to perform service work on the elevators and the escalator in question. He states that Metropolitan Opera pays the contract out of their own operating budget. He states that on February 2, 2008, Lincoln Center did not direct, control, operate [*5]or maintain the escalator in question. He states that the Metropolitan Opera's employees and New York Elevator maintained, operated and controlled the escalator.

Defendant also submits a copy of the lease between Lincoln Center as landlord and Metropolitan Opera House as tenant for the period June 1, 1991 through May 31, 2016 as well as a copy of the elevator contract between New York Elevator and Metropolitan Opera house dated March 29, 2006.

Lincoln Center contends that it is not liable for the plaintiff's accident as it is an out-of-possession landlord who does not control the escalator in the Metropolitan Opera House and is not contractually obligated to perform maintenance and repairs on said escalator. Further, defendant contends that the evidence shows that Lincoln Center did not create the alleged dangerous condition or have actual or constructive knowledge of the alleged defect which caused the plaintiff's accident. Defendant asserts that no employee of Lincoln Center was advised of a prior problem with the escalator and that Metropolitan Opera hired New York Elevator to inspect and repair the escalator. Counsel asserts that the lease agreement placed responsibility for maintenance and repair of the escalator and the premises on the Metropolitan Opera. Counsel also asserts that res ipsa loquitur does not apply because Lincoln Center did not have exclusive control over the escalator in question. Rather, counsel submits, The Metropolitan Opera had control over the escalator as well as New York Elevator according to the terms of its service contract.

In opposition, counsel for New York Elevator, Matthew J. Rosen, Esq. argues that an out-of-possession landlord may be held liable for injuries occurring on its premises where it is contractually obligated to perform maintenance and repairs or when it has retained control over the premises (citing Sciammarella v Manorville Postal Assoc., 87 AD3d 530 [2d Dep. 2011]). Counsel contends that although Lincoln Center may have been an out-of-possession landlord and although Metropolitan Opera House may have assumed responsibility for various duties within the premises, including retaining New York Elevator to service specific escalators, Lincoln Center had a right of re-entry. Counsel states that pursuant to Article 19 of the lease, the Opera House is required to provide Lincoln Center with access to such portions of the Opera House as are necessary to inspect, operate, maintain and repair all piping and other mechanical and electrical connections, machinery and equipment servicing. Counsel claims that where there is a right of re-entry, an out of [*6]possession landlord may be held liable for personal injuries suffered on the premises.

Plaintiffs counsel, Jay J. Massaro, Esq. also opposes the motion stating that after the plaintiff left the New York State Theater she was utilizing the escalator in a public portion of the Opera House to get to a public parking garage located under the Metropolitan Opera House. Counsel submits a document from the Metropolitan Opera's web site indicating that there are public parking garages located under Lincoln Center. Counsel also submits a repair ticket for the escalator dated January 7, 2008 indicating that co-defendant, New York Elevator serviced the escalator's handrails one month prior to the plaintiff's accident. Counsel claims that pursuant to provisions of the lease, Lincoln Center only leased specified portions of the Opera House building to the Metropolitan Opera and maintained control of other public portions of the Opera House. Plaintiff contends that the escalator that allegedly caused Ms. Harmon's accident is located in a public area of the Opera House building that defendant Lincoln Center was required to maintain pursuant to the lease. Counsel refers to Article 9 of the lease agreement which states that Lincoln Center agreed to maintain areas of the Opera House building which are "under the control of Lincoln Center" as well as the grounds, public areas, and common facilities in the Lincoln Center complex. Counsel points out, however that the lease contains an exhibit which delineates the "areas of the opera house building under the control of Lincoln Center" but however that those exhibits referred to in the lease as exhibits 1(a) through 1(k) which purport to refer to the areas under Lincoln Center's control are missing from the copy of the lease submitted by the defendant. Counsel also states that he has not been provided with this exhibits in response to his requests for discovery. Counsel contends that without that missing portion of the lease defendant has failed to demonstrate, prima facie, that the escalator on which the plaintiff fell is not in an area of the Opera House which is under Lincoln Center's control.

Counsel alleges that the escalator in question is in a public area and that the main purpose of the escalator is as a means of egress and ingress from the Lincoln Center parking garage. Thus, counsel argues that there is a question of fact pertaining to whether the escalator that caused plaintiff's accident in located in a "common area." Counsel also asserts that the lease provides that Lincoln Center retained certain easements in the Opera House building. Those easements, which are exceptions to the portion of the building rented to the Opera [*7]House, are purported to be identified in Exhibit 2 attached to the lease. However, Exhibit 2, listing the designated easements, is also not attached to the lease submitted by the defendant in support of the motion.

Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

An out-of-possession landlord is not liable for injuries that occur on its premises unless it retains control over the premises or is contractually bound to repair unsafe conditions" (Taylor v Lastres, 45 AD3d 835 [2d Dept. 2007]). The liability of a landlord for injuries caused by a defective condition upon leased premises depends on whether the landlord retained sufficient control of the premises to be held to have had constructive notice of the condition (see Notkin v. Gristina Vineyards, 298 AD2d 445 [2d Dept. 2002]).

Here, the evidence submitted by Lincoln Center was insufficient to demonstrate, prima facie, as a matter of law, that as a landlord and under the terms of the lease, it was not liable for making repairs or maintaining the escalator in the Metropolitan Opera on which the defendant was injured. Pursuant to the terms of the lease, Lincoln Center specifically retained control over certain easements and over certain areas of the Opera House as well as public areas and common facilities (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2d Dept. 2011][control refers to the ability of an out-of-possession landlord to remedy dangerous conditions, and it pertains to conditions on any portion of the leased premises]). However, the portions of the lease which delineate the areas over which Lincoln Center retained control were not submitted to the court. Without submitting a complete copy of the lease and without evidencing those portions of the lease which describe the areas over which Lincoln Center maintained control, the defendant did not establish prima facie, that they were not contractually obligated to maintain the subject escalator or repair the alleged defect that allegedly caused the plaintiff's accident (see Lee v Second Ave. Vil. Partners, LLC, 953 NYS2d 259[2d Dept. 2012]; [*8]Lalicata v 39-15 Skillman Realty Co., 63 AD3d 889 [2d Dept. 2009][summary judgment denied where defendant failed to provide a complete copy of the lease between the defendant and co-defendant demonstrating their lack of control or contractual obligation to maintain the stairs]).

Further, the evidence submitted fails to demonstrate that defendant Lincoln Center inspected the handrail in question and fails to demonstrate that Lincoln Center did not have actual or constructive knowledge of the allegedly dangerous condition.

Accordingly, this court finds that there is a question of fact raised by the defendant's submissions as to whether Lincoln Center retained control over the escalator in question and whether the area where the escalator was located could be considered a public area under the terms of the lease for which Lincoln Center would have responsibility. The landlord is required to provide safe means of ingress and egress in public areas of the building (see Sarisohn v 341 Commack Rd., Inc., 89 AD3d 1007 [2d Dept. 2011]).

Therefore, based upon the foregoing it is hereby,

ORDERED, that the motion of the defendant LINCOLN CENTER FOR THE PERFORMING ARTS, INC., for an order granting summary judgment dismissing plaintiff's complaint and all cross-claims against it is denied.

Dated: March 12, 2013

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.