By notice of motion filed on July 23, 2012, under motion sequence three, defendant/third-party plaintiff Only Realty Company (hereinafter "ORC" or "defendant") has moved pursuant to CPLR 3212 for an order granting summary judgment in its favor on the issue of liability (1) as against the plaintiff and dismissal of the complaint and (2) as against third-party defendant Bread in Tribeca, LLC (hereinafter BIT) on its third-party complaint for contractual indemnification.

Plaintiff, Elvis Figueroa (hereinafter "Figueroa" or "plaintiff") and BIT have opposed ORC's motion as asserted against each of them.

By stipulation made after the instant motion was filed, ORC unconditionally withdrew that branch of its motion which sought a default judgment against BIT. Pursuant to CPLR 2001, the Court has disregarded that branch of ORC's motion which sought summary judgment and dismissal of all cross-claim asserted against it since there [*2]are no such claims.

BACKGROUND

On March 19, 2010, Figueroa commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. By amended answer signed on June 1, 2010, ORC joined issue. On or about February 24, 2012, ORC served a third-party summons and complaint naming BIT as a third party defendant. BIT had not joined issue prior to this motion being made. A note of issue was filed on March 23, 2010.

Plaintiff's complaint, bill of particulars and deposition testimony allege, among other things, that on January 11, 2008, at 4:15 pm, he slipped and fell on a wet step leading from the bathroom to the locker room in the basement of 301 Church Street (hereinafter the subject property). At the time of the occurrence he was employed as a dishwasher by BIT, who leased the subject property from ORC. Plaintiff alleges that ORC was negligent in allowing water to leak from the pipes in the basement creating a dangerous condition.

ORC commenced a third-party complaint against BIT for contractual indemnification based on their lease agreement.

MOTION PAPERS

Defendant's motion papers consist of an attorney affirmation and thirteen annexed exhibits labeled A through M. Exhibit A consists of the summons and verified complaint. Exhibit B contains a stipulation to amend the caption of the complaint. Exhibit C is a notice pursuant to CPLR 3042 (b). Exhibit D contains a notice of filing of affidavits of service of the third party summons and complaint served on BIT. Exhibit E is a letter dated June 26, 2012 sent from ORC to BIT requesting that they respond to the complaint. Exhibit F is a print out from e-law. Exhibit G is a copy of an order to show cause to vacate the note of issue and for outstanding discovery. Exhibit H is the verified bill of particulars. Exhibit I contains a transcript of plaintiff's examination before trial. Exhibit J is the examination before trial of Robert Moskowitz for ORC. Exhibit K is a lease signed by ORC and BIT. Exhibit L contains discovery demands. Exhibit M contains plaintiff's response to combined demands of defendants.

Plaintiff's opposition papers consist of an attorney affirmation and three exhibits labeled A though C. Exhibit A contains a partial copy of plaintiff's deposition. Exhibit B contains the lease agreement. Exhibit C contains an incomplete copy of Robert Moskowitz's examination before trial.

BIT's opposition papers consists of an attorney affirmation and three exhibits labeled A through C. Exhibit A contains a stipulation in which ORC agreed to withdraw the part of its motion which sought a default judgment against BIT. Exhibit B contains BIT's answer to the third party complaint. Exhibit C contains BIT's amended answer to the third-party complaint.

ORC's reply papers consist of an attorney affirmation and two annexed exhibits labeled A and B. Exhibit A is a copy of an order to show cause signed by this Court on [*3]April 23, 2012. Exhibit B contains an order of this Court signed on July 12, 2012, which ruled on the relief requested in the order to show cause.

ORC's affirmation of further support of the summary judgment motion contains an attorney affirmation and four exhibits labeled A through D. Exhibit A is a copy of this Court's order dated October 26, 2012, which permitted ORC to supplement its reply papers. Exhibit B contains an affidavit of Alexandro Munoz, an employee of BIT. Exhibit C is a copy of the answer to the third-party complaint. Exhibit D contains a copy of the amended answer to the third-party complaint

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, supra, 68 NY2d at 324).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]).

ORC's Motion for Summary Judgment on the Complaint

The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]).

Plaintiff complaint and bill of particulars claims that ORC negligently failed to keep the subject property safe under common law liability principles. Under New York common law a landowner has a duty to maintain his or her premises in a reasonably safe condition, taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2nd Dept 2011])(internal citations omitted).

However, it is also a general rule that no liability attaches to the landlord for injuries resulting from the condition of premises where such injuries are sustained after the landlord has divested himself or herself of possession and control even though the landlord is permitted to use such premises by the tenant (Lugo v Austin-Forest Associates, 99 AD3d 865 (2nd Dept 2012).

The common-law rule, however, rests on the premise that, by transferring possession of the premises to the lessee, the landowner has also surrendered "control" over them. The concept of "control is the test which measures generally the [*4]responsibility in tort of the owner of real property" (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2nd Dept 2011]). However, control is not the only measure of an out-of-possession landlord's duty. An out of possession landlord may be liable for dangerous conditions on leased premises when there is a duty imposed by statute, assumed by contract, or created by a course of conduct (Id.)

ORC claims that it has no duty to the subject property and the plaintiff as it was an out of possession landlord and divested itself of control of the subject property. ORC also claims that it had no notice of the alleged dangerous condition which caused plaintiff's accident. In support of these contentions ORC offered the deposition testimony of Robert Moskowitz and a copy of the lease agreement between ORC and BIT.

Robert Moskowitz, a member of ORC, testified at his examination before trial that ORC had not done any work to the pipes in the bathroom since 2003. He also testified that the extent of work that ORC performed for BIT was to replace the storefront on the first floor and some air conditioning work on the roof. Further, that BIT performed extensive remodeling once it took possession and that he would enter the space every day during those renovations, in order to ensure that the work was performed according to landmark preservation requirements. Thereafter, he would enter the premises once a week just to see if the work was being done legally. Once the premises opened for business in 2005 he would enter approximately once every other month in connection with other construction plans to ensure the legality of the work. However, he never went in or near the bathroom in the basement as it was not located in the area being remodeled. Also, that he was not aware of any leak from pipes in the basement prior to the accident.

ORC submitted a copy of the lease to support its contention that it was an out of possession landlord, without a duty to the plaintiff. The lease contains thirty-nine numbered paragraphs within five pages followed by two riders. The font of the thirty-nine numbered paragraphs is so small that it is barely legible without magnification. What is clear is the bottom of each of the first four pages of the lease is cut off and therefore missing text. In particular the text at the end of paragraph number three and the beginning of paragraph four is cut off. The text of the riders are legible. Paragraph forty-one of the annexed rider stated in pertinent that tenants obligations for maintenance and repair were "subject to the provisions of paragraph four pertaining to Landlord's obligations with respect to structural and non-structural repairs."

Without a complete and legible copy of the lease agreement, ORC could not meet its burden of showing that it has no duty to the plaintiff based on its agreement with BIT. It is unclear whether ORC agreed to be responsible for the maintenance and repair of any part of the subject property, including the area in which the accident occurred. Furthermore, the deposition testimony of Robert Moskowitz does not demonstrate that ORC had no notice of the allegedly dangerous condition of the subject property. A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been [*5]discovered and corrected (Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034, 1035 [2nd Dept 2010], quoting Hayden v Waldbaum, Inc., 63 AD3d 679, 679 [2nd Dept 2009]). To meet its initial burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (Feola v. City of New York, —- N.Y.S.2d ——, 102 AD3d 827 [2nd Dept 2013]). Robert Moskowitz testified that ORC never inspected the area where the plaintiff's accident occurred.

In this instance ORC's showing does not remove all material issue of fact. In particular, the lease raises an issue of fact as to whether ORC agreed to be responsible for the pipes located in the basement of this premise. Therefore, ORC failed to meet its prima facie showing that it had no duty assumed by contract (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2nd Dept 2011]).

ORC's Motion for Summary Judgment on the Third-Party Complaint

ORC also moves for summary judgment on the third-party complaint seeking indemnity against BIT. It is undisputed that ORC had not received BIT's answer prior to the motion being made. CPLR 3212 (a) provides that "any party may move for summary judgment in any action after issue has been joined." In fact, BIT opposes ORC's motion based on that very ground. Therefore, the parties did not evidence an intent to chart a summary judgment course (cf. Kulier v Harlan Transportation Co., Inc., 189 AD2d 803 [2nd 2006]. At the time the instant motion was made there was no joinder of issue, therefore, the motion is denied as premature (The John and Mary Markle Foundation v Manufacturers Hanover Trust, Co., 173 AD2d 784 [2nd Dept 1991] see also CPLR 3212[a]).

In conclusion, ORC's motion for summary judgment in its favor on the issue of liability and dismissal of the complaint is denied.

ORC's motion for summary judgment in its favor on the issue of liability as against third-party defendant BIT for contractual indemnification is denied as premature.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.

Enter Forthwith:____________________________

J.S.C.