This is an action for damages for personal injuries sustained by plaintiff, Caren [*2]Rodriguez, on November 23, 2010 when she tripped and fell on a floor/platform within a clothing store located at 32-31 Junction Boulevard, Queens County, New York. Defendant Moya owns the building and leased the premises to defendant D.T.J. Sportswear Corporation. Moya now asserts that he is entitled to summary judgment because as an out-of-possession landlord he had no duty to maintain or repair the subject flooring at the leased premises.

The plaintiff commenced an action for negligence against Henry Moya, D.T.J. Sportswear Corporation, Elvis Espinal and Elvis Jimenez, by filing a supplemental summons and amended complaint on February 9, 2011. By decision and order dated September 20, 2011, a default judgment was granted in favor of the plaintiff against all defendants without opposition. An inquest was held on November 22, 2011. At that time the Court granted a judgment in the amount of $450,000. However, pursuant to a stipulation between plaintiff and defendant, Henry Moya, dated October 17, 2012, the plaintiff agreed to vacate the default judgment against Moya and accepted Moya's verified answer with cross-claims dated October 18, 2012. By decision dated October 29, 2013, the matter was restored to the active trial calendar and the parties were granted leave to serve all dispositive motions prior to December 15, 2013. The matter is presently on the calendar of Trial Scheduling Part on April 3, 2014.

In her verified bill of particulars, dated November 2, 2012, the plaintiff alleges that Mr. Moya was negligent in the ownership, maintenance, operation, management, and control of the premises, that he created a dangerous condition and failed to remedy the dangerous condition despite having actual and constructive notice of it. Plaintiff alleges that defendant was negligent in failing to properly maintain the premises in a reasonably safe condition, that defendant negligently constructed, erected, maintained and allowed a platform to exist within the premises, and that said platform was broken, worn, uneven and not properly marked and as such became a trap, hazard and snare to those invited into the premises. It is alleged that defendant failed to properly place warning signs, and negligently placed clothing racks in such a position as to prevent a clear view of the platform and the surrounding flooring and failed to inspect the premises. The bill of particulars claims that Mr. Moya had actual knowledge of the dangerous condition in that said platform was constructed at the request of Mr. Moya or with his permission. If not constructed by Moya then it is alleged that the defective condition was present when he inspected the premises. It is claimed that Mr. Moya had constructive notice because the dangerous raised platform existed for a number of years and that defendant, in the exercise of due care, should have recognized and remedied it.

Plaintiff alleges that as a result of the trip and fall she sustained a non-displaced fracture of the lateral malleolus of the right ankle and a partial tear of the rotator cuff of the right shoulder requiring arthroscopic surgery.

Counsel for defendant, Henry Moya, now moves for an order granting summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against Moya on the ground that Mr. Moya, as the owner of the building, had no control over the clothing store where the accident occurred. The defendant cl aims that the [*3]

clothing store was leased to co-defendant D.T.J. Sportswear Corporation, who operated the store. Defendant, Moya, contends that as the owner of the building he played no role in the operation of the store, and did not supply, own, manage, repair or have anything whatsoever to do with the alleged defect that plaintiff claims was the cause of her injuries. Mr. Moya contends that he had no duty to repair the subject flooring on the leased premises nor can any duty be inferred by statute, contract, or course of conduct. Further, Mr. Moya contends that there is no evidence he created the allegedly dangerous condition within the leased premises or had actual or constructive notice of same.

In support of the motion, defendant's counsel, Jane M. O'Callaghan, Esq., submits her own affirmation, dated November 21, 2013; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; and copies of the transcripts of the examinations before trial of plaintiff, Carmen Rodriguez, defendant, Henry Moya and non-party witness, Miguel Reyes.

In her examination before trial, taken on March 18, 2013, plaintiff, Caren Rodriguez, age 59, testified that on November 23, 2012, she went to shop at D.J Sportswear clothing boutique at approximately 12:45 p.m. The women's clothing store was on the ground floor of a two-story building that is attached on both sides and also has residential housing on the second floor. She stated that upon entering the store there was thin industrial type red carpeting in the front of the store. At the back of the store where the register was located the floor was covered with vinyl or linoleum. She stated that to get to the register there was a ten degree incline or ramp that goes from the red carpeted area to the vinyl floor where the register was. After she paid for her merchandise at the register she turned to leave the store. She testified that she took two or three steps down the incline and she felt something shift or buckle under her foot. She fell down, landing on her right side. When she tried to get up she felt pain to her right shoulder and right ankle and foot. After she fell she was assisted to a seat on the premises and a female employee told her that she, the employee, had also fallen in the same place. The employee showed the plaintiff where the board was loose and the vinyl was upturned. Plaintiff testified that she believed that what caused her fall was some type of wood that was underneath the vinyl flooring breaking or giving way. She does not know how long that condition existed prior to her accident.

Defendant also submits a copy of the transcript of the examination before trial of defendant Henry Moya, taken on March 18, 2013. Mr. Moya testified that he works as a doorman in Manhattan and maintains a residence in Connecticut. He testified that he purchased the building located at 3221 Junction Boulevard in 2007. He stated that the building consists of a commercial space on the first floor and two apartments on the second floor. He stated that he leased the commercial premises to a woman named Jimenez of DJT Sportswear for $2,000.00 per month who stayed for two years. Subsequently, he leased the premises to a barber shop. He stated that Ms. Jimenez paid her rent in cash giving it to his friend Reyes who owned a grocery store next to his building. He stated he would come to Queens to pick up the rent from Reyes and he visited the property to inspect it on an occasional basis. He stated that he had a written lease with Jimenez but his copy of the lease was destroyed in a flood in the basement of the building. He testified that he was never told of any problems at the sportswear store. He testified that the [*4]tenant built the counter where the cash register was located when she took over the premises. He stated that he was not aware of and did not remember a raised area near the counter.

Defendant also submits a copy of the deposition testimony of Miguel Antonio Reyes a non-party witness who testified on July 24, 2013. At his deposition Mr. Reyes stated that he owns a bodega located at 32-29 Junction Boulevard, East Elmhurst, New York. The building which also has a residential tenant upstairs is owned by his wife. He stated that the bodega is one door away from Moya's property. He stated that Moya comes to Queens twice a month to pick up his mail. He stated that there was a clothing store at Moya's premises in 2010. He stated that Moya's tenants leave the rent with him. He stated that other than collecting the rent he has no other duties at Moya's property. He stated that the owner of the clothing store was Norca Jimenez who was married to Elvis Jimenez. He does not know where she lives or works. He stated that he walked into the clothing store approximately once a month to buy clothing. He stated that the cash register was to the rear of the store and was on a slight incline. He stated that the raised portion of the floor was there when Mr. Moya bought the building. However, he stated that the raised portion was only in the area reserved for the employees. However in order to get to the dressing room he stated that the customer would have to step on the platform. He stated that the there was no defect with the floor or the platform.

Defendant contends that Mr. Moya is an out-of-possession landlord with no duty to maintain the latent defect in the floor as there is no evidence that he was contractually obligated to maintain the area, that he endeavored to maintain the flooring, or that he owed plaintiff a duty of care. Counsel states that the evidence shows that the landlord neither constructed the platform nor was there any proof that he was made aware of any loose floor board or any uplifting edge of the floor that allegedly caused plaintiff's accident. Further, the proof shows that from the time he purchased the property in 2007 he made no alterations or repairs to the store. In addition, defendant argues that there is no proof that he created the allegedly defective condition or that he had actual or constructive notice of same for such period of time that in the exercise of reasonable care the condition could have been remedied. Defendant asserts that there is no evidence other than speculation that Moya had actual notice of a defective condition in the premises (citing Cantwell v Fox Hill Community Assn., Inc., 87 AD3d 1106 [2d Dept. 2011] Orlov v BFP 245 Park Co., LLC, 84 AD3d 764 [2d Dept. 2011] Ortiz-Tulla v Federated Dept. Stores, Inc., 88 AD3d 669 [2d Dept. 2011]).

Further, defendant claims that an out-of-possession landlord with the right of reentry will only be liable for an injury on the premises if the injury resulted from a significant structural defect which was a violation of the administrative code. Counsel states, however, that the plaintiff has not alleged any administrative code violations. Further counsel asserts that "an out-of-possession landlord's duty to repair a dangerous condition on leased premises may only be imposed by statute or regulation, by contract, or by a course of conduct" (citing Castillo v Wil-Cor Realty Co., Inc., 109 AD3d 863 [2d Dept. 2013] quoting Mercer v Hellas Glass Works Corp., 87 AD3d 987 [2d Dept. 2011]. Counsel claims that there is no proof that Mr. Moya was contractually obligated to maintain the floor nor did he endeavor to do so. [*5]

Defendant asserts that the deposition testimony demonstrates that both Reyes and Moya had been in the store on several occasions and neither one noticed any type of defective condition toward the rear that was either broken or had upturned edges(citing Lal v Ching Po Ng, 33 AD3d 668 [2d Dept. 2006]. Counsel claims that the evidence shows that there was no observable defect on the floor/ramp prior to the happening of the accident and the condition of the broken floor board only came into being at the time of the incident itself.

In opposition, plaintiff submits the affidavit of the Caren Rodriguez, dated November 26, 2013. She states that on November 23, 2010 at approximately 1:00 p.m. she was shopping at DTJ Sportswear. She had not been in the store prior to that occasion. She stated the store is small with a dressing room in the back to the side of the cash register. She states that there is a short platform where the cash register is and as one pays the cashier they are standing on th platform with their back to the front of the store. She states that when she finished paying for the item she began to walk off the platform. When she put her foot down a board on the platform deflected down and she fell. There was no sound of a crack just a movement. She stated that after she fell an employee helped her onto a chair and the employee told her there was a broken board on the platform. The employee stated that she had also fallen in the same location. Plaintiff stated that she observed that the platform was severely worn and depressed and the linoleum on the edges was raised and curled. It appeared to her that the linoleum at the platform edges had been receiving repairs for a long time.

Counsel claims that Mr. Moya is not an out-of-possession landlord as he testified that he goes to the premises to collect the rent six times a year at which time he inspects the premises. Counsel states that although the defendant argues that he had no duty to make repairs on the premises, the defendant is relying on a lease which he stated he no longer has because it was destroyed in a flood. In addition, because the lease was destroyed he no longer has the full name or address of the former tenant. Counsel claims that based on plaintiff's description of the platform and the worn linoleum on the ramp, Mr. Moya should have noticed the defective condition during the times he entered the premises. Therefore, counsel argues that there is a question of fact as to whether the landlord had a contractual duty to repair the premises and whether the condition was apparent for such time as the landlord could have observed and remedied the situation.

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 occurring on the premises unless it [*6]has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs (see Denermark v 2857 W. 8th St. Assoc., 111 AD3d 660 [2d Dept. 2013] Volpe v Hudson View Assoc., LLC, 109 AD3d 814 [2d Dept. 2013] Alnashmi v Certified Analytical Group Inc., 89 AD3d 10[2d Dept. 2011] Tragale v 485 Kings Corp., 39 AD3d 626[2d Dept. 2007] Knipfing v V & J, Inc., 8 AD3d 628 [2d Dept. 2004]). Reservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition. Therefore, 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, based upon the evidence submitted by the defendant, including the defendant deposition as well as the plaintiff's affidavit and deposition testimony, this Court finds that there are questions of fact as to whether the alleged hazardous condition of the raised platform and the upturned vinyl floor around the platform was visible and apparent for a sufficient amount of time for the landlord to have repaired it, and whether the condition constituted an inherently dangerous condition or a trap or snare. Although the landlord testified that he lived in Connecticut and rarely came to the premises he did testify that he did come into the premises on several occasions to collect the rent and make inspections. However, because the landlord could not produce the lease or the name and address of the prior tenant, the landlord could not demonstrate, prima facie, that under the terms of the lease he had no duty to inspect and no duty to repair the floor defect or make other non-structural repairs (see Ford v Weishaus, 86 AD3d 421 [1st Dept. 2011] Ramirez v Saka, 76 AD3d 673 [2d Dept. 2010][landlord's motion for summary judgment denied where landlord could not produce a lease or other written agreement between the defendants and the tenant to establish that the defendants were out-of-possession landlords who were absolved of their statutory duty to maintain the premises in good repair] Dougherty v Allen House, LLC, 2009 NY Slip Op 32374(U) [Sup. Ct. NY Co. 2009] cf. Moltisanti v Virgin Entertainment Group, Inc., 91 AD3d 838 [2d Dept. 2012]).

Thus, because the lease was not produced, the rights and obligations of the parties under the lease cannot be ascertained. As the landlord testified that he had a right of reentry to make inspections and that he did make periodic inspections of the premises there is a question of fact as to whether the landlord was contractually obligated to maintain the floor and/or repair the alleged hazardous condition, and whether the alleged defect on the floor where the defendant fell existed for a sufficient time for the landlord to have discovered and remedied the condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986] Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2d Dept. 2011]).

Accordingly, as defendant failed to meet his initial burden of establishing that he owed no duty to the plaintiff and failed to show that he did not have constructive notice of the allegedly dangerous condition, and based upon the foregoing, it is hereby, [*7]

ORDERED, that the motion by defendant, Henry Moya, for an order granting summary judgment dismissing the plaintiff's complaint is denied.

Dated: March 26, 2014

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.