Motion sequences 002, 003, and 004 are consolidated and resolved in the following memorandum decision.

This personal injury action arises out of plaintiff's claim that she sustained injuries on January 30, 2006 when she fell in the entranceway of Da Filippo Ristorante, an Italian restaurant in Manhattan.

By motion sequence 002, defendant Da Filippo Ristorante Italiano, Inc. ("Da Filippo") moves pursuant to 22 NYCRR 202.21 to vacate the Note of Issue and Certificate of Readiness filed in this action. In addition, Da Filippo moves for additional discovery pursuant to CPLR 3124, as well as additional time in which to file a motion for summary judgment.

By motion sequence 003, defendants 1315 Second, LLC ("1315 Second"); Fanny Klein, Murray Klein and Irwin Klein (collectively, the "Klein defendants") and Harfay Management Corp. ("Harfay) move for summary judgment on their cross-claims for contribution and/or indemnification as against DaFillipo. In opposition, plaintiff cross-moves for summary judgment, and additionally moves for a special trial preference pursuant to CPLR 3403(a)(4). A second cross-motion is advanced by defendant Da Filippo, seeking summary judgment and dismissal of both plaintiff's complaint as well as the cross-claims asserted by the Klein defendants.

By motion sequence 004, plaintiff moves for an order restoring this matter to the trial calendar with a special preference.

Background

As mentioned above, plaintiff claims that she was injured when she fell while leaving Da Filippo Ristorante ("the restaurant". The restaurant is located on the first floor of the building located at 1314 Second Avenue in Manhattan ("the building"). According to the complaint, on [*2]the date of plaintiff's accident, 1315 Second, LLC. owned the building, a five-story commercial/residential structure managed by defendant Harfay. Additionally asserted in the complaint is the claim that Fannie Klein and her sons, Murray Klein and Irwin Kline are the owners of 1315 Second, LLC.

The gravamen of plaintiff's complaint is that she was injured as she was exiting the restaurant. Specifically, plaintiff claims that she slipped and fell on the steps in front of the restaurant's entranceway. Plaintiff claims that the incident was caused solely by defendants' negligence, including

the failure to maintain the restaurant's entranceway steps. Each of the defendants to this action answered these claims with general denials. The answer of the Klein defendants asserts a cross-claim for contribution and/or indemnification as against defendant Da Filippo. The answer of defendant Da Filippo contains a similar claim for contribution and/or indemnification as against the Klein defendants.

Notwithstanding the claim that discovery had not been completed, plaintiff filed a Note of Issue and Certificate of Readiness for Trial in November of 2007 (Notice of Motion, Sequence 002, Exhibit B).^[FN1] These motions followed.

Discussion

Motion Sequence 002

As a preliminary matter, this court notes that on June 5, 2008, this court struck plaintiff's note of issue. As such, the portion of motion sequence 002 which seeks an order striking the Note of Issue and Certificate of Readiness in this matter is denied as moot.

The portion of the motion advanced by defendant Da Filippo seeking discovery, is granted in accordance with the directives in the balance of this decision. The balance of the motion, which sought an order extending the time to file a motion for summary judgment, is denied.^[FN2]

Motion Sequence 003

This brings the court to its discussion of motion sequence 003 which is comprised of one primary motion and two cross-motions, all of which seek some form of summary judgment, and in the case of the respective defendants, orders either denying or dismissing the advanced cross-claims.

Motions for summary judgment limit this court's role to finding issues, and not resolving them. Success on the motion therefore requires the moving party to provide the court with admissible evidence sufficient to demonstrate an absence of [*3]any triable issues of fact, thereby demonstrating entitlement to judgment as a matter of law (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]. See generally, Barr, Altman, Lipshie, and Gerstman; New York Civil Practice Before Trial, [James Publishing 2007] §37:91-92).

The opposing party bears the burden of producing evidentiary proof in admissible form that is sufficient to establish the existence of material issues of fact requiring trial. Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient for this purpose (Zuckerman v. City of New York, 49 NY2d 557 [1980]), and, if there is any doubt that triable issues of fact exist, summary judgment will not be granted.

Plaintiff's complaint, though lengthy, advances a single cause of action for negligence. As such, to succeed on its claim, plaintiff must demonstrate that defendants (1) owed a duty to plaintiff; (2) breached that duty; and (3) that plaintiff's injury was proximately caused by the breach (Solomon v. City of New York, 66 NY2d 1026 [1985]).

The Klein defendants maintain that plaintiff's complaint, as advanced against them, should be dismissed since they did not own

the subject premises on the date of the alleged incident. However, review of the record indicates that the issue of who actually owns the property involved in this action is not as clear-cut as the Klein defendants would like this court to believe.

In August 2007 defendant Murray Klein testified that 1315 Second, LLC. was part of a real estate portfolio owned by his mother, Fannie Klein, and that the portfolio included 1315 Second Avenue, the building where Da Filippo operates its restaurant (Da Filippo Cross Motion, Exhibit D, p. 6). Mr. Klein further testified that 1315 Second, LLC. acquired the building approximately five years earlier, kept it for a few months, and then sold it to New Beginnings I, LLC. and New Beginnings II, LLC. (id. at 6-7). According to Mr. Klein, New Beginnings I, LLC. and New Beginnings II, LLC. each owned a 50% interest in the building in January 2006 (id. at 39-40), and both entities are owned by his mother, Fannie Klein, and his brother, Irwin Klein (id.). Mr. Klein himself, is a principal of New Beginnings II, LLC (id. at 39-40), and, while unemployed at the time of his deposition, had last worked as an Officer of defendant Harfay (id. at 39-40).

In addition, a document entitled Corrections to Murray Klein's EBT, states, in pertinent part:

I am a member of New Beginnings II LLC which is a member of 1315 Second LLC. Fannie Klein is not a principal of 1315 Second, LLC.

... 1315 Second LLC is owned by two equal members, New Beginnings [*4]I LLC and New Beginnings II LLC, each of which owns 50%.

I know that 1315 Second LLC no longer owns the property at 1315 Second Avenue. The property was part of the sale to Icon in May 2007. From before 2003 through the sale to Icon in May 2007, 1315 Second LLC owned the property at 1315 Second Avenue.

Before 2003 the property at 1315 Second Avenue was transferred from Fannie Klein to 1315 Second LLC. From before 2003 through the sale to Icon in May 2007, 1315 Second LLC owned the property at 1315 Second Avenue

... .

Through the end of 2006, Fannie Klein, Irwin Klein, Jamie Klein, and Sherry Klein were the members of New Beginnings I LLC.

Through the end of 2006, Fannie Klein, Murray Klein, David Klein, and Melissa Klein were the members of New Beginnings II LLC ... .

I personally do not have the purchase documents for the building

(Da Filippo Cross Motion, Exhibit D). Stated differently, there appears to be multiple questions of fact concerning the ownership of the subject building. As such, summary judgment cannot be awarded to any of the Klein defendants based on denial of ownership of the subject building.

Summary judgment is also not warranted with respect to defendant Da Filippo.

Landowners have a well established duty to exercise reasonable care in maintaining their property in a reasonably safe condition (Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). Owners and operators of a store have a similar duty to "take reasonable care that [its] customers shall not be exposed to danger of injury through conditions in the store or at the entrance which [it] invites the public to use" (Miller v Gimbel Bros., 262 NY 107, 108 [1933]).

At plaintiff's deposition, plaintiff gave the following account of how the accident occurred:

I walked down this one step and friends of mine were in front of me. I did not know that there was a second step because there was sort of a bunch a bunch of people bunched up. I don't recall if it was only my friends or there had been other people in front of them, but meanwhile it seemed like they're all bunched up in on the bottom stair, out already. And I was coming out but I did not see that other step because all I saw ... were coats and people in front of me and heads, and there was nothing and when I realized that I was losing my footing there's nothing to hold to. I couldn't grab anything so I guess I must have fallen into them and they must have been and I fell on my to break my fall I fell to the side rather than falling on me, you know, forward

(Da Filippo Cross Motion, Exhibit B, Deposition of Bernice Podell, p. 36).

Da Filippo argues that they are entitled to summary judgment based on their claim that plaintiff has failed to establish that Da Filippo breached a duty owed to her and failed to specify [*5]the alleged defect in the entranceway or steps that caused the alleged incident. At the very least, however, plaintiff's deposition testimony, that there was nothing for her to hold onto as she fell, raises a triable issue of fact as to whether Da Filippo breached a duty to take reasonable care that its customers not be exposed to danger of injury (see, Miller, supra). Similarly, the proffer by plaintiff and Da Filippo of conflicting evidence, including photographs and affidavits pertaining to the condition of the entranceway and steps, warrant a trial of this action.

Cross Claims for Contribution and/or Indemnification

The court additionally declines to award summary judgment to any of the defendants with respect to the issues concerning cross claims for contribution and/or indemnification. Notwithstanding the collective arguments advanced by the respective defendants in this action, the questions raised with respect to obligations of the parties under applicable lease agreements (Notice of Motion, Motion Sequence 003, Exhibit D; Da Filippo Cross Motion, Sequence 003, Renewal of Lease Agreement, Exhibit E), the questions raised pertaining to building ownership, and more particularly, the issue of whether the entranceway involved in the claimed incident is a "common" space of the building involved raises more than enough triable issues of fact to warrant a trial.

Motion Sequence 004

This brings the court to Motion sequence 004, which, much like motion sequence 003, seeks an order granting a trial preference and restoration of the action to this court's trial calendar.

In opposition to plaintiff's motion all of the defendants once again assert that they do not have all of the demanded discovery from plaintiff, and further claim that they themselves do not have complete discovery responses from each other (see, affidavits in opposition to Motion Sequence 004). Documents defendants still await from plaintiff include medical authorizations from plaintiff's treating physicians at Lenox Hill Hospital, authorizations for records and films from Lenox Hill hospital, authorizations for plaintiff's insurance records, and authorizations from American Express (see, affidavits in Opposition, Motion Sequence 004). Defendant Da Filippo claims that it still requires a copy of the file demanded from defendant 1315 Second which includes writings submitted to 1315 Second for permission to renovate the restaurant. Counsel for the Klein defendants, defendant 1315 Second and defendant Harfay claim that defendant Da Filippo owes them copies of checks from January 2006, and repair/maintenance records for the premises.

With respect to the discovery demands, the court directs the following: to the extent discovery remains outstanding, the parties are directed to produce all outstanding discovery within forty-five days of issuance of this order. Any discovery not produced within this time frame, which will not be extended further, will be precluded from use and discussion at trial.

Furthermore, notwithstanding the objections of defendant Da Filippo, it is this court's position that repair and maintenance records for the stairs in question are discoverable, and they must be produced.

The court declines to consider the request for an age preference at this juncture.

As a final note, plaintiffs are directed to appear for a Pre-Trial conference on March 6, 2009 at 11:00 a.m. This is the same day that plaintiff will be filing their Note of Issue, and the same day this court will preclude the use of any unproduced and overdue discovery at trial. [*6]

Accordingly, it is

ORDERED that the portion of motion sequence 002 seeking to vacate the note of issue in this matter is denied as moot; and it is further

ORDERED that the portion of motion sequence 002 seeking to extend the time in which to file summary judgment motions is denied as moot; and it is further

ORDERED that the motion and cross-motions associated with motion sequence 003 and seeking summary judgment are each denied in their respective entirety, and it is further

ORDERED that the portions of motion sequences 002 and 004 which seek outstanding discovery are decided in accordance with this court's decision; and it is further

ORDERED that in the event that a party intends to take the position that they do not have the requested information, that such statements shall be made by affidavit; and it is further

ORDERED that the relief sought in motion sequence 003 and 004 with respect to a trial preference is denied with leave to renew upon the completion of discovery; and it is further

ORDERED that the portion of motion sequence 004 which sought restoration of this action to the court's trial calendar is denied until such time as the Note of Issue in this matter is filed.

This constitutes the Decision and Order of the Court.

Dated:

ENTER:

______________________

Hon. Walter B. Tolub, J.S.C.