The following papers numbered 1 to 17 read on this motion by third-party defendant, NEXA GOMEZ, for an order pursuant to CPLR 3211(a)(7) and 3211(a)(1) dismissing the defendant/third-party plaintiff's complaint for failure to state a cause of action and based upon documentary evidence:

Papers

Numbered

Notice of Motion-Affirmation-Exhibits..................1 - 8

Plaintiff's Affirmation in Opposition..................9 - 14

Reply Affirmation.....................................15 - 17 [*2]

Plaintiff, Juan Ponce, commenced an action to recover damages for personal injuries he sustained on September 29, 2011, when he tripped and fell down a portion of the common stairway at the premises located at 41-07 Denman Street, Elmhurst, Queens County, New York. Plaintiff contends that he tripped on a loose piece of plastic runner covering the stairwell. In his complaint, filed on May 8, 2012, the plaintiff alleges that Miao Ling Liu owned, operated, managed, maintained, repaired and controlled the subject premises. The premises consists of a four-story multi- unit apartment building which is divided into four separate apartments all of which are rented to tenants by defendant, Ms. Liu.

The complaint alleges that on September 29, 2011, while plaintiff, Juan Ponce, was a guest of Nexa Gomez, one of the tenants at the premises, he sustained severe personal injuries as the result of a trip and fall due to a defective, hazardous and unsafe condition, specifically a defective stairwell and steps in the subject premises. The complaint alleges that it was the duty of defendant Liu, as owner of the premises, to maintain the subject premises in reasonably safe and adequate condition and repair. The plaintiff alleges that defendant was negligent in the ownership, operation, management, maintenance and control of the premises in question, including the staircase which was permitted to remain in a hazardous, dangerous and defective condition. The complaint further alleges that the defendant failed to inspect, repair or warn of the defective stairwell condition and, in addition, defendant created the condition, or had actual or constructive notice of it. The complaint also states that the defendant ignored tenants' complaints regarding the steps and stairwell.

Issue was joined by Miao Ling Liu by service of a verified answer dated August 15, 2012. On May 9, 2013, defendant Liu commenced a third-party action for indemnification naming Nexa Gomez, as third-party defendant. The gravamen of the third-party complaint is that Ms. Liu leased an apartment to one Jasmine Hernandez and that Nexa Gomez resided with Jasmine without the knowledge or permission of the landlord. The third-party complaint also alleges that the plaintiff, Juan Ponce, was unlawfully on the premises when he tripped and fell on the stairwell. The landlord, Ms. Liu, alleges that the plaintiff's injuries were caused or contributed to by the negligence of the third-party defendant and therefore the landlord is entitled to apportionment of damages, common-law indemnification and/or contribution from Nexa Gomez.

The parties stipulated to extend the time for third-party [*3]defendant to serve an answer to the third-party complaint. Prior to the time the answer was due, third-party defendant filed the instant motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(1) and 3211(a)(7) for failure to state a cause of action and based upon documentary evidence.

In support of the motion, third-party defendant, Nexa Gomez submits an affidavit dated July 26, 2013, stating that he has lived in the apartment building located at 41—07 Denman Street since 2006 with the permission of Ms. Liu. He stated that he first moved into a two-bedroom apartment on the third floor of the premises in 2006. Ms. Liu did not require him to sign a lease or rental agreement. He states that in 2008 he advised Ms. Liu that his cousin Jasmine Hernandez and her husband would move into a spare bedroom in his apartment. He states that he has not had a lease and pays the rent in cash or by check. He states that Ms. Liu is responsible for the repair and cleaning of the main front vestibule and the interior staircases. He states that he was never told that it was his responsibility to clean and/or maintain the interior staircase leading to his apartment.

Roy Silverberg, Esq., counsel for the third-party defendant,

now moves for an order dismissing the third-party complaint seeking indemnification from Nexa Gomez because Nexa Gomez did not have a written lease or rental agreement nor any common law duty to maintain the common areas of the premises including the interior stairwells. Counsel contends that the third-party complaint fails to state a cause of action against Gomez as the building owner, Ms. Liu, has no cognizable cause of action against Gomez because there is no duty owed by Gomez to Liu pursuant to a written agreement or by common law.

Third-party defendant claims that in order to successfully plead a common law cause of action for indemnification, the proponent must show that the indemnitor owes a duty to the indemnitee (citing Balkheimer v Spanton, 103 AD3d 603 [2d Dept. 2013][the key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor]). Further, counsel states that although the complaint alleges that both Gomez and Ponce were on the premises without the landlord's permission or consent, there is also no duty for indemnification owed by a trespasser to the landlord. Third-party defendant also asserts that documentary evidence shows that Gomez was residing on the premises with the knowledge and consent of the landlord. Counsel claims that the receipts for personal checks paid to the defendant/third-party plaintiff by Gomez conclusively establish that the third-party defendant was [*4]residing at the premises with the consent and knowledge of the landlord. Counsel asserts that the checks submitted by Gomez indicate that while Gomez did not sign a contract, assumption of lease or any other rental agreement, the landlord accepted rental payments from Gomez and thereby impliedly consented to Gomez living in the apartment. Movant contends that by accepting rental payments the building owner created a tenancy at will.

In opposition to the motion, counsel for Ms. Liu, Ying Hua Huang, Esq., alleges that there are question of fact regarding whether the third-party defendant was a lawful tenant in the building and whether the plaintiff was intoxicated when he fell down the stairwell. Counsel claims there is also a question of fact as to the responsibility of the third-party defendant who, it is alleged, was responsible for allowing an intoxicated guest to leave the apartment by means of a stairwell which was known to the tenant to have been defective. Therefore, third-party plaintiff alleges that the facts pleaded in the complaint are sufficient to allege a cause of action for apportionment. Counsel also claims that the check receipts attached do not have the name of Nexa Gomez on them and therefore there is a question of fact as to whether the third-party defendant was a legal tenant in the building.

Counsel Huang submits copies of the testimony of the examinations before trial of plaintiff Juan Ponce and defendant Miao Ling Liu. Plaintiff Ponce, age 38, testified on February 13, 2013. At the time of the accident in 2011 he was employed as a bus boy at Minetta Tavern in Manhattan. On the date of the accident he had gone to the home of his co-worker, Nexa Gomez. He stated that Gomez lived on the fourth floor and there was no elevator but there was one common staircase that one could use to get upstairs to his apartment. He stated that the stairs were carpeted but they had a plastic runner covering them. He stated that the plastic was loose on the staircase near the first landing as he was ascending and also on the portion of the staircase leading up to the top floor. He stated that as he was coming down from the top floor the plastic on the top two steps was loose. He stated that he noticed that the plastic was loose when he visited Mr. Gomez two weeks prior to the accident. At that time he told Nexa Gomez that the plastic was loose. On the date of the accident he had gone to the apartment with Mr. Gomez and two other persons after they had finished working at the Tavern arriving between 2:00 and 3:00 a.m. He testified that while at the apartment he consumed six or seven beers. Nexa Gomez called a cab to take plaintiff home between 5:30 and 6:00 a.m. They went down the first two sets set of stairs from the apartment and when he got to the second landing he noticed that [*5]there were no lights on in the staircase. He then proceeding to go down the third set of stairs and after going down one or two steps his foot got caught in a raised piece of loose plastic that was covering the steps and he tripped and fell forward down the staircase. His left side hit the stairs and his head hit a metal object at the bottom of the staircase. He lost consciousness as a result of the fall and has no recollection of any other details immediately after he fell. The next thing he remembers is waking up in a hospital over a month later. He sustained several injuries including a severe head injury requiring the temporary removal of part of his cranium.

Ms. Liu testified at an examination before trial on May 2, 2013. She stated that she purchased the subject property, a four-story, four-family house in 2000. She lived in one of the apartments in the building from the time she bought it until she relocated in 2005. She stated that she rented out the apartments but did not require a lease from the tenants. She stated that there is one staircase in the building that begins on the ground floor and then goes floor to floor. She stated that the stairs and landings are made of concrete and covered with carpeting. She stated that the carpeting has been covered with plastic since the time she purchased the building. She testified that she was responsible for the maintenance and repair of the stairs in 2011 and the tenants were not responsible for any repairs or maintenance of the stairs. She stated that she was never advised that the plastic was defective and she never observed a problem with the plastic on her inspections. She stated that if she had been told there was a problem with the stairs she would have remedied it herself. Further, she testified that the tenants did not have the responsibility of changing the light bulbs in the staircases. She stated that she never rented an apartment to Nexa Gomez and never heard that name.

Counsel for Ms. Liu alleges that based upon the deposition testimony there are questions of fact as to whether the third-party defendant was responsible for allowing an intoxicated person to leave, as well as for failing to take precautions for a defective condition of which he had been previously made aware. Further, Liu asserts that Gomez was not a tenant in the building despite the fact that he testified that he had been living in the building for several years.

In reply, counsel for Gomez asserts that whether Gomez or the plaintiff was on the premises legally or illegally, there is no basis for contribution as there is no proof in the record that Gomez had any responsibility for maintaining or making repairs to the staircase in question. Further, counsel alleges that there is [*6]no proof in the record that Gomez was intoxicated at the time he attempted to leave the building or that Gomez was liable for causing the accident.

Plaintiff has not opposed the motion.

Upon review and consideration of the motion by third-party defendant, the affirmation in opposition by the third-party plaintiff and the reply thereto, this court finds that the evidence submitted with the motion is sufficient to demonstrate, prima facie, that the complaint fails to state a cause of action against Nexa Gomez. In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a)(7), the court must "accept the facts as alleged in the pleading as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83[1994]).

As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property (see Suero-Sosa v Cardona, 2013 NY Slip Op 8240 [2d Dept. 2013]; Sanchez v 1710 Broadway, Inc., 79 AD3d 845 [2d Dept. 2010]; Kydd v Daarta Realty Corp., 60 AD3d 997 [2d Dept. 2009];Ruffino v New York City Tr. Auth., 55 AD3d 817 [2d Dept. 2008]; Casale v Brookdale Med. Assoc., 43 AD3d 418 [2d Dept. 2007]).Control is the test which generally measures the responsibility of an owner or occupant of real property for defects relating to it (see Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10,[2d Dept 2011]).

Here, the owner of the building clearly testified that Gomez was not a tenant in the building and moreover, even if he was a tenant, he was not given a lease. The complaint alleges that Gomez resided at the apartment of Jasmine Hernandez without the permission of the defendant landlord and also that the plaintiff was on the property unlawfully. The complaint seeks indemnification and apportionment of liability. However, the owner testified that the tenants were not responsible for making repairs to the common stairway, rather as the owner it was her responsibility to maintain the staircase. Thus, Gomez was under no obligation to perform any services within the common staircase as the evidence shows that he did not own, operate, manage or have a written lease or rental agreement for the premises. Therefore, Gomez demonstrated prima facie, that he had no duty to maintain the common stairwell in the apartment building and [*7]therefore no contractual or common law liability for the plaintiff's injuries.

Further as stated above, the Appellate Division held in Balkheimer v Spanton, 103 AD3d 603 [2d Dept. 2013] that the key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor. Here, the third-party complaint does not allege the existence of any duty owed by the third-party defendant to the third-party plaintiff. The cause of the accident is alleged to have been the defective condition on the staircase. The building owner, Ms. Liu failed to present any evidence which would form a basis to impose liability on the third-party defendant for the condition of the stairwell(see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909[2d Dept. 2012]).

With respect to the cause of action for contribution, contribution may be obtained if the breach of duty by a third-party defendant "had a part in causing or augmenting the same injury for which contribution is sought" (Williams v Brentwood Farmers Mkt., 256 AD2d 613 [2d Dept 1998]; Gonzalez v Jacoby & Meyers, 258 AD2d 560 [2d Dept 1999]). Here, there is no proof in the record that the third-party defendant had any role in causing or contributing to the accident which caused the plaintiff's injuries (see Phillips v. Trommel Constr., 101 AD3d 1097 [2d Dept. 2012]). Insofar as direct liability is not possible without evidence that third-party defendant created the alleged dangerous or defective condition, or had control of the demised premises and common staircase (see Kennedy v C & C New Main St. Corp., 269 AD2d 499 [2nd Dept. 2000]; see also Collado v Cruz, 81 AD3d 542 [1st Dept 2011]), the concomitant duty to indemnify defendant Liu must be considered to be contingent upon such creation or control. It would be incongruous to expect that a tenant be charged with the obligation to indemnify where it did not create the unsafe condition, and had no authority to control the activity or condition bringing about the injury to enable it to avoid or correct such unsafe condition (see Xia-Ping Wang v. Diamond Hill Realty, LLC, 39 Misc 3d 1205(A)[Supt Ct. Queens Co. 2013]). Third -party plaintiff makes no claim that third-party defendant created any condition or performed any repairs or maintenance vis-a-vis the stairway where the accident allegedly occurred. Thus, defendant was not responsible to take steps to remedy the alleged defective or dangerous condition or to warn of the alleged unsafe condition.

In opposition, third-party plaintiff failed to submit evidence to raise a triable issue of fact as to whether defendant [*8]owned, maintained or exercised any control over the premises at the time the plaintiff was injured or assumed any duty to the plaintiff which might serve as a predicate for liability.

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED that the motion by third-party defendant, NEXA GOMEZ, to dismiss the cause of action for indemnification asserted by third-party plaintiff, MIAO LING LIU in the third-party complaint is granted (CPLR 3211[a][7]; Balkheimer v Spanton, 103 AD3d 603 [2d Dept. 2013], and it is further,

ORDERED, that the Clerk of Court is authorized to enter judgment accordingly.

Dated: Long Island City, NY

December 24, 2013

______________________________

ROBERT J. MCDONALD

J.S.C.