Defendants 335 Madison Avenue, LLC ("335 Madison"), Milstein Properties Corp. ("Milstein") and General Electric Capital Services, Inc. ("GE") (collectively, "defendants") move pursuant to CPLR 3212 for summary judgment dismissing the complaint.

This is an action to recover for personal injuries plaintiff allegedly sustained as a result of a January 21, 2009 trip and fall accident at plaintiff's place of employment, 335 Madison Avenue, second floor, mezzanine level, New York, New York. According to the complaint, plaintiff alleges that she tripped on a raised edge of the metal molding surrounding a trap door on the floor of her office's photocopy/pantry room. The purpose of the trap door is to access a crawl space approximately three feet high that lies beneath the pantry room floor. There were no witnesses to this accident.

In her bill of particulars, plaintiff alleges that some or all of the defendants were negligent in creating and maintaining the accident location and that they violated several provisions of the Health Code (24 RCNY §§ 131.01; 135.03 (a), (b), (c) and (d); 135.13; and 135.17) and Building Code (Administrative Code of the City of New York §§27-127 and 27-128), as well as Labor Law § 376. Motion, Ex. B.

Defendants contend that Labor Law § 376 is inapplicable to the instant matter because [*2]that section applies only to mercantile establishments and restaurants, not to offices. Defendants also argue that Building Code §§ 27-127 and 27-128 were not in effect at the time of plaintiff's accident as they were repealed on July 1, 2008.

With regard to the alleged Health Code violations, defendants also argue that 24 RCNY §§ 135.13 and 135.17, which define particular requirements regarding constructing and maintaining floors, and 24 RCNY §§ 131.01 and 135.03, which define the scope of responsibility, do not apply to defendants because these sections state that an owner of commercial space is not responsible for compliance if "otherwise provided by the terms of a lease by which a tenant assumes responsibility ...." Defendants allege that, pursuant to the terms of the lease in effect for the premises, plaintiff's employer assumed such Health Code compliance responsibility.

Section 6.01 of the lease between 335 Madison, the building owner, and GE, the tenant, states:

Tenant shall take good care of the Demised Premises and the fixtures, glass, appurtenances and equipment therein (including such portions of the Building Systems that are located within the Demised Premises and were installed by Tenant or are not covered by walls and ceilings (e.g. outlets, switches, covers), and at its sole cost and expense shall make all repairs, restorations and replacements (hereinafter collectively referred to as "Repairs") as and when needed to preserve them in good working order and condition, whether or not such Repairs are ordinary or extraordinary, or foreseen or unforeseen at this time, but excluding structural repairs unless covered under the following sentence and also excluding repairs necessitated by negligence or acts of Landlord or Persons Within Landlord's Control. All damage or injury to the Building or the Building Systems outside of the Demised Premises caused by or arising from acts or negligence of Tenant or Persons Within Tenant's Control, including those which are structural, extraordinary and unforeseen, shall be repaired, restored or replaced by Tenant, at its sole cost and expense. All Repairs shall be in quality and class equal to the original work or installations and shall be done in good and workmanlike manner, using prime quality materials.

Motion, Ex. D. According to section 13.01 of this lease, 335 Madison reserved the right to enter and inspect the leased premises for the purpose of making repairs. Id.

Paragraph 5 of the sublease between GE and plaintiff's employer, American Independence Financial Services, Inc. ("American Independence"), formerly known as Arrivato Advisors LLC, provides in relevant part:

The provisions of the master Lease, except as otherwise herein specifically provided, are hereby incorporated in this Sublease with the same effect as if entirely rewritten herein, and shall fix the rights and obligations of the parties hereto with respect to the Premises with the same effect as if the Sublessor and Sublessee were, respectively, the landlord and tenant named in the master Lease. Sublessee hereby covenants to perform all of the covenants and undertakings of Sublessor as tenant under the master Lease, but only to the extent such covenants and undertakings pertain to the Sublease Premises. . .

Motion, Ex. E. Defendants maintain that, pursuant to the above-referenced lease provisions, the obligation to comply with the Health Code provisions plaintiff cites in her bill of particulars devolved upon American Independence rather than defendants. [*3]

In support of their argument that American Independence is responsible for maintaining the trap door, defendants submit the affidavit of Theresa Donovan ("Donovan"), American Independence's Chief Compliance Officer. Donovan avers that American Independence is the entity responsible for maintaining and repairing the trap door in the premises American Independence leases. Motion, Ex. F. Donovan also states that prior to plaintiff's accident: no one complained about any problem with the trap door, including plaintiff; she was unaware of any problem with the trap door or its molding; and the room in which the trap door is located is well lit. Id.

Milstein states that it is a tenant in the building where the accident occurred but at no time did it have any ownership, tenancy, subtenancy or occupancy relationship with the portion of the building in which plaintiff's accident occurred. Motion, Ex. G, Aff. of Kevin M. Buckley, Chief Financial Officer of Milstein.

Lastly, defendants argue that plaintiff fails to establish any negligence on their part. At her examination before trial ("EBT"), plaintiff testified that prior to the date of the accident, she never saw the molding surrounding the trap door sticking up, she never complained about the trap door, nor was she aware of anyone else having complained about the trap door. Motion, Ex. H, at 65-66, 68-69, 72 and 100. Plaintiff also testified that she had no idea how the condition regarding the trap door molding came about or how long it had existed. Id. at 69-71. Plaintiff stated that the first time she saw the edge of the molding sticking up was immediately after she tripped. Id.

Nick Cluess ("Cluess"), general manager of 335 Madison, testified that: the trap door is located in the portion of the premises American Independence rented; the building engineer has no role with respect to maintaining the trap door; and there were no records reflecting any complaints or problems with the trap door or its surrounding molding prior to plaintiff's accident. Cluess EBT, at 22, 36 and 49. Additionally, Christopher Caulfield ("Caulfield"), assistant chief engineer for the building, testified that he had personally raised the trap door in question on several occasions prior to the date of plaintiff's accident to investigate odor complaints, but that at no time did he observe any problem with the metal molding surrounding the trap door. Caulfield EBT, at 30, 33, 38 and 42-43.

John Esposito ("Esposito") testified on behalf of GE. According to Esposito, GE maintained office space on the 11th and 12th floors of the building, but he never had occasion to visit the floor where plaintiff worked. Esposito EBT, at 20-21, 37. Further, Esposito was unaware of anyone having made any complaints about the condition of the trap door prior to the date of plaintiff's accident. Id. at 38.

In opposition to the instant motion, plaintiff submits the affidavit of Joseph Farahnik, P.E. ("Farahnik"), a licensed professional engineer, who inspected the accident location on November 10, 2010, more than 20 months after the accident, and reviewed photographs of the trap door taken shortly after the accident. As a result of his investigation, Farahnik determined that the hatch and metal framing do not comply with NYC Adm. Code § 28-301.1, nor is it in conformance with sections 4.1.1 and 5.1 of the American Society of Testing and Material (AFTM) Standards. Farahnik stated that he felt the molding with his hand and found it to be raised above the floor level, which forms the basis of his professional opinion that the trap door and its molding presented a dangerous condition. Opp., Ex. C. [*4]

Plaintiff asserts that the edge of the metal frame around the trap door was not flush with the floor and that defendants had both actual and constructive notice of this unsafe condition. Plaintiff also argues that, whereas defendants are correct in stating that NYC Adm. Code §§ 27-127 and 27-128 were repealed prior to the date of the accident, those provisions were recodified in substantially similar form as NYC Adm. Code §28-301.1, which states:

Owner's Responsibilities. All buildings and all parts thereof and all other structures shall be maintained in a safe condition. All service equipment, means of egress, materials, devices, and safeguards that are required in a building by the provisions of this code, the 1968 building code or other applicable laws or rules, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working condition. Whenever persons engaged in building operations have reason to believe in the course of such operations that any building or other structure is dangerous or unsafe, such person shall forthwith report such belief in writing to the department. The owner shall be responsible at all times to maintain the building and its facilities and all other structures regulated by this code in a safe and code-compliant manner and shall comply with the inspection and maintenance requirements of this chapter.

Plaintiff maintains that this code provision imposes a non-delegable duty upon an owner to comply with its provisions. Plaintiff also indicates that there is some evidence in the photographs of the trap door that yellow tape may have once been placed around it which, plaintiff alleges, indicates that there was some prior problem or warning with respect to the trap door.

Moreover, plaintiff contends that the metal frame around the trap door is part of the building structure and therefore is specifically excluded from the portion of the lease between 335 Madison and GE that delineates the tenant's repair responsibilities. Thus, according to plaintiff, 335 Madison and GE are jointly responsible for maintaining the trap door and cannot shift that obligation to American Independence.^[FN1]

In reply, defendants argue that Farahnik's affidavit should not be considered because it is conclusory and not based on any actual measurements. Moreover, according to defendants, the trap door and its molding had existed for at least 10 years prior to the date of the occurrence and in that time not a single person complained that it created an unsafe condition.

Defendants also dispute the allegation that there may have been yellow tape around the trap door at some time in the past as not being supported by the record, there being no reference to such tape by plaintiff or anyone else deposed in this matter. Consequently, defendants maintain that any conclusion that this indicates a problem with the door and its metal molding is speculative at best.

Defendants submit the affidavit of Robert L. Grunes, PhD., P.E. ("Grunes"), who inspected the premises on August 31, 2010, approximately 19 months after plaintiff's accident. Grunes provides a dimensional analysis of the trap door and its molding, which indicates an elevation differential between the molding and the floor of 0.020", which he states is de minimis and does not provide a basis for claiming either a faulty design or installation, or failure to [*5]properly maintain. Grunes further states that the most recent building filing for the structure occurred in 1912, and the building is, therefore, subject to building code standards in effect at that time and pursuant to applicable grandfather clauses in the codes.

In addition, Grunes states that 24 RCNY §§ 135.13 and 135.17 do not apply to office space, and that the alleged violations of AFTM Standards were not only superceded, and therefore not applicable at the time of the event, but are only designed to indicate good practices and are not governing law in New York. In conclusion, Grunes opines, with a reasonable degree of engineering certainty, that there are no issues of improper maintenance of the trap door or its molding and that the alleged violations of the Building Code and Health Code are inapplicable, irrelevant, or moot.

DISCUSSION

"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 [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

At the outset, that portion of defendants' motion for summary judgment seeking to dismiss the complaint as against Milstein is granted. There is no evidence that Milstein had any ownership, tenancy, subtenancy or occupancy relationship with the portion of the building in which plaintiff's accident occurred, and plaintiff has failed to oppose this portion of the motion. Additionally, Labor Law § 376 is inapplicable to the case at bar and plaintiff does not oppose or even address this branch of the motion. Thus, the portion of defendants' motion for summary judgment seeking to dismiss plaintiff's cause of action based on a violation of Labor Law § 376 is granted.

The portion of defendants' motion for summary judgment seeking to dismiss plaintiff's cause of action based on violations of the Health Code is also granted. Health Code § 135.01 as applied at the time of plaintiff's accident^[FN2] defined "commercial premises" as:

a place, building or portion of a building which is used for a purpose other than as a residence, office or place of worship ... .

Health Code Regulations 24 RCNY § 135.01, 135.13 and 135.17 apply to commercial premises and, as a consequence, these provisions are inapplicable to the office in which plaintiff's accident took place.

That portion of defendants' motion for summary judgment seeking to dismiss plaintiff's cause of action based on violations of NYC Adm. Code §§ 27-127 and 27-128 is granted. These Building Code sections were repealed on July 1, 2008. Plaintiff's accident occurred on January 21, 2009; the complaint was filed on February 5, 2009; and the bill of particulars, which specifies [*6]the Building Code sections that plaintiff alleges were violated, was served on April 6, 2009. Plaintiff filed the note of issue for this action on August 3, 2010. The very first time that plaintiff acknowledged that NYC Adm. Code §§ 27-127 and 27-128 were repealed prior to the date of the occurrence was on December 2, 2010, in her opposition to the instant motion. Plaintiff's only argument for alleging the violation of a different section of the Building Code at this time is that the new section is a recodification of the repealed sections. It is noted that plaintiff merely asserts this as the basis of her opposition to this portion of defendants' motion, but she does not seek leave to amend her bill of particulars to include NYC Adm. Code § 28-301.1, which she now argues is the section that was violated.

There can be no question that plaintiff was capable of determining that the Building Code sections she contends were violated were no longer in effect as of the date of her accident, yet she waited almost two years after filing her complaint, and four months after filing the note of issue, to argue the applicability of a different Building Code section. Moreover, she did not even seek leave to amend her bill of particulars. At this juncture, without amending her bill of particulars, it would be unfair to defendants to allow plaintiff to assert different Building Code sections as the basis for her cause of action:

It is well settled that a bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial ... . Whatever the pleading pleads, the bill must particularize since the bill is intended to [afford] the adverse party a more detailed picture of the claim ... . A bill of particulars may not be used to allege a new theory not originally asserted in the complaint' [internal citation omitted].

Darrisaw v Strong Mem. Hosp., 74 AD3d 1769, 1770 (4th Dept 2010), affd ___ NY3d ___, 2011 WL 65940 (2011).

Moreover, even though NYC Adm. Code § 28-301.1 is a recodification of sections 27-127 and 27-128 and is substantially similar (Cusumano v City of New York, 15 NY3d 319 [2010]), the thrust of those sections depends on whether the owner of the premises had actual or constructive knowledge of a dangerous condition which it failed to correct, a basic negligence theory of liability, and does not address specifics that define what would constitute a "safe condition". See Guzman v Haven Plaza Hous. Dev. Fund Co., Inc., 69 NY2d 559 (1987). Based on the foregoing, defendants' motion seeking summary judgment dismissing plaintiff's cause of action based on the specified sections of the Building Code appearing in her bill of particulars is granted.

Plaintiff also asserts a cause of action against defendants based on common-law negligence. In order for plaintiff to establish a cause of action in negligence as against 335 Madison and GE, she must demonstrate the existence of a duty flowing from 335 Madison and/or GE to her, breach of that duty, causation between the breach and her injury, plus proof of actual damage. Febesh v Elcejay Inn Corp., 157 AD2d 102 (1st Dept 1990). The basis of plaintiff's claim is that an unsafe condition existed which was the duty of 335 Madison and/or GE to repair. However, in order to hold a party liable for a dangerous condition, it must be established that the party so charged either created the dangerous condition or had prior actual or constructive notice of the condition. Early v Hilton Hotels Corp., 73 AD3d 559 (1st Dept 2010). As held in Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 219 (1st Dept 2007): [*7]

In order to hold a landowner liable for a dangerous condition on its premises, a plaintiff must demonstrate that the defendant either created, or had actual or constructive notice of the hazardous condition which precipitated the injury. However, notice alone is not enough; the plaintiff must also show that defendant had a sufficient opportunity, within the exercise of reasonable care, to remedy the situation' after receiving such notice [internal citations omitted].

As stated in Larsen v Congregation B'Nai Jeshurun of Staten Island, 29 AD3d 643, 643 (2d Dept 2006):

A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected.

In the case at bar, plaintiff has failed to demonstrate that defendants had either actual or constructive notice of a dangerous condition. In her EBT, plaintiff testified that although she used the pantry room several times each day over a period of several years, she had never been aware of the molding surrounding the trap door being in a dangerously elevated position. Plaintiff never complained about the trap door's condition, nor had others made any complaints about it or its molding to any defendant in this action, or to plaintiff's employer, the tenant of the premises. According to plaintiff's own testimony, the first time she noticed that an edge of the molding surrounding the trap door was elevated was immediately after she tripped.

Although 335 Madison and GE argue that the lease agreements relieve them of repair and maintenance obligations for the premises rented by American Independence and pass those obligations on to the tenant, 335 Madison retained the right of entry and inspection of the premises pursuant to its lease with GE. Such right of entry and inspection provides a sufficient basis to charge a property owner with constructive notice of a dangerous condition. Guzman v Haven Plaza Hous. Dev. Fund Co., Inc., 69 NY2d at 565-566. Further, the sublease between GE and American Independence establishes that GE retains the same rights and obligations as 335 Madison under the master lease. Hence, both 335 Madison and GE could be found to have constructive notice of a dangerous condition depending upon the actual circumstances of the case.

Based on the evidence presented, the trap door and its molding had been in place for a minimum of ten years and in all that time there had never been a single complaint about it. Since no one, including plaintiff, ever complained about the molding even though it was visible and apparent, there is no evidence to indicate that it created a hazard over a period of time. It bears repeating that, in plaintiff's own sworn account of the accident, she states that the first time that she noticed the raised edge of the molding, which she alleges was the cause of her accident, was immediately after she tripped. There is no evidence that there was any problem with the molding edge for a sufficient period of time for 335 Madison or GE to become aware of a problem or to remedy it if one existed.

Nor has plaintiff submitted any evidence sufficient to raise an issue of fact as to whether the trap door and its molding was a dangerous condition that was a structural defect in violation of the Building Code. Rodriguez v E & P Assoc., 71 AD3d 405 (1st Dept 2010). Hence, defendants cannot be held to have notice of a dangerous condition which they failed to correct.

Since notice, actual or constructive, is a prerequisite to holding a landowner liable for a [*8]dangerous condition located on its property and no such notice is demonstrated in this case, the court need not consider the conflicting affidavits of the parties' experts as to whether the trap door and its molding was, in fact, a dangerous condition. Accordingly, that portion of defendants' motion for summary judgment seeking to dismiss plaintiff's cause of action based on negligence is granted.

Based on the foregoing, it is hereby

ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

The foregoing is this court's decision and order. Courtesy copies of this decision and order have been sent to counsel for the parties.

Dated: New York, New York

January 19, 2011

Martin Shulman, J.S.C.