Cidni Todd,
Plaintiff,
against
800 Tenth Avenue Developer LP; ALCHEMY
PROPERTIES, INC; JT 800 TENTH, LLC; JAMESTOWN 800 TENTH, LLC;
JAMESTOWN, LP; HALSTEAD PROPERTY, LLC; TERRA HOLDINGS, LLC; AND
GRIFFIN COURT CONDOMINIUM, Defendants.
|
24185/2012
Robert J. McDonald, J.
This is an action for damages for personal injuries sustained by the plaintiff, Cidni
Todd, age 71, on June 23, 2011, when she slipped and fell in the lobby near the rear
courtyard of the Griffin Court Condominium located at 454 West 54th Street, New York
County, New York. As a result of the fall the plaintiff allegedly sustained a torn medial
meniscus of the right knee as well as other injuries to her knee, elbow and ankle.
This action was commenced by the filing of a summons and complaint on
December 6, 2012. Issue was joined by service of the moving defendant's verified
answer dated February 12, 2013. Defendant Griffin Court Condominium joined issue by
service of its answer dated February 28, 2013. Plaintiff filed a Note of Issue on June 27,
2014. The matter is presently on the calendar of the Trial Scheduling Part for June 8,
2015.
Defendants 800 Tenth Avenue Developer LP, Alchemy Properties, INC., JT
800 Tenth, LLC, Jamestown 800 Tenth, LLC, Jamestown, LP, Halstead Property, LLC,
Terra Holdings, LLC, move for an order pursuant to CPLR 3212(b), granting summary
judgment on the issue of liability and dismissing the plaintiff's complaint and all
cross-claims. Counsel for said defendants contends that on the date of the plaintiff's
accident the condominium building and its common elements were managed by the
Condominium's Board of Managers. Counsel asserts that defendant 800 Tenth Avenue
Developer LP retained Alchemy Properties to sell residential condominium units in the
subject building. It is alleged that neither defendant is liable as neither one owned,
occupied or controlled the common elements where the plaintiff's accident occurred. In
addition, it is asserted that defendant Terra Holdings and Halstead Property LLC did not
own, occupy or control the buildings common elements. Counsel states that defendant
Terra Holdings is a member of Halstead Property Development Marketing which was an
agent hired to sell condominium units in the building. It is also stated that defendants JT
800 Tenth, LLC, Jamestown 800 Tenth, LLC and Jamestown, LP likewise did not own,
occupy or control the common elements of the condominium. Thus, the moving
defendants contend that they are entitled to summary judgment dismissing the plaintiff's
complaint and all cross-claims asserted against them [*2]because said defendants, who did not own, occupy, control
of make special use of the area where plaintiff was allegedly injured, did not owe a duty
of care to the plaintiff (citing O'Keefe v Valente Industries Corp. 266 AD2d 192
[2d Dept. 1999]).
Further, said defendants assert that the bylaws of the Griffin Condominium
state that the Board of Managers shall govern the affairs of the condominium and shall
maintain the common areas. Thus, moving defendants asserts that the Condominium
owed a duty to the plaintiff as they were in control of the common area where she fell
and was required to maintain that area.
In support of the motion, the defendants submit affidavits from Joel
Breitkopf, Kenneth Horn, Babette Krolik and Matt Bronfman to demonstrate that
defendants' entities did not own, occupy or control the common areas where plaintiff's
accident occurred.
In his affidavit, Joel Breitkopf, a partner of defendant 800 Tenth Avenue
Developer LP, states that his company retained Alchemy Properties, Inc. to act as his
company's agent for the purpose of assisting 800 Tenth Avenue Developer LP in the
pre-development design, marketing, and sale of residential condominium units being
constructed at the subject location. Thus, he states that on the date of the accident, the
common elements of the condominium building were not owned by 800 Tenth Avenue
Developer, LP.
Kenneth Horn, the President of Alchemy, states in his affidavit that Alchemy
Properties, Inc. did not own, lease, occupy, or control the subject property on the date of
the plaintiff's accident.
Babette Krolik, General Counsel of defendant, Terra Holdings, LLC, states
that on June 23, 2011 Terra Holdings LLC was a member of defendant Halstead Property
LLC. Halstead was one of the co-exclusive agents hired to sell condominium units
located in the building. She stated that Terra and Halstead did not own lease, occupy, or
control the subject building on June 23, 2011.
Matt Bronfman, the President of Jamestown US Properties Corp., states that
it is the sole member of JT 800 Tenth LLC. He states that the name "Jamestown 800
Tenth LLC" is a fictitious name and no entity exists with that name. He states that his
company was an owner of residential units and in the process of selling units although
the building was managed by the condominium's board of managers. He states that
Jamestown did not [*3]own, lease, occupy or control 245
West 54th Street.
In her examination before trial which took place on May 13, 2014, the
plaintiff testified that her accident occurred inside the building located at 454 West 54th
Street. She went to the premises for a reception hosted by real estate broker, Halstead,
who was showing available units. She learned of the reception from an email from
Halstead Realty. When she arrived that day she joined the reception for potential buyers.
She went out to the courtyard and mingled with other guests. She then went to look at
two or three units. She stated that there was a sudden burst of rain and they all went
indoors into the lobby of the building. She testified that she was in an indoor foyer area
when she slipped and fell due to puddles of dirty water that had been tracked into the
building. She also stated that the water came from the eaves of the building
Co-defendant, Griffin Court Condominium by counsel John F. Kelly, Esq.
states that on August 1, 2013, the parties entered into a preliminary Conference Order
which directed the parties, including the moving defendants, to appear for depositions.
On February 2, 2014, the parties entered into a compliance conference order which again
directed the defendants to appear for depositions. On September 11, 2014, the parties
entered into a stipulation, so-ordered by Justice Ritholtz, directing depositions of the
defendants to be held on September 17, 2014. However, the Condominium asserts that
the defendants have repeatedly adjourned their depositions. Counsel states that the
co-defendants, who have not yet been deposed, offer only self-serving affidavits to
support their motion or summary judgment. Counsel submits the affidavit of Sali
Zymberi, the superintendent of the subject premises, stating that defendants, Alchemy
properties and Jamestown LLC, hosted the reception during which the plaintiff was
injured. The affidavit states that no one from Griffin Court worked as wait staff for the
event or cleaned up after the event. Further, counsel states that co-defendants have
produced no records pertaining to the event. Griffin asserts that the co-defendants
moving for summary judgment were involved in hosting the event and made special use
and exercised control over the area where the plaintiff's accident occurred. Griffin
requests therefore, that the Court grant an order denying summary judgment and
directing the moving defendants to appear for a deposition or have their answer
stricken.
In her affidavit, Maureen Whyte, the deposition clerk for the Law Office of
Margaret G. Klein and Associates, states that a search of the records shows that he
deposition of moving defendants was adjourned on 2/18/14, 5/13/14, 7/11/14, 9/17/14
[*4]and 11/14/14.
Sali Symberi states in her affidavit that she was employed by Griffin
Condominiums as the superintendent of the building on June 23, 2011. She states that on
that date Alchemy Properties and Jamestown LLC hosted an event for prospective buyers
for the newly constructed building. She states that she was off duty at the time of the
event. However, she states that no one from Griffin Court was hired or assigned to work
or act as wait staff at the event. She states that any people working at the event would
have been hired or retained by Alchemy Properties and or Jamestown LLC.
In opposition, Joseph Varvaro, Esq., counsel for moving defendants claims
that defendants are prepared to offer certain dates in April for depositions of his clients.
He states that the absence of depositions is not the result of wilful or contumacious
conduct on the part of the clients and therefore his clients' answers should not be
stricken. He states that he filed the within motion for summary judgment despite
discovery not being completed because the preliminary order required the summary
judgment motion to be filed by December 2014. In addition, counsel claims that
defendants made a prima facie case for dismissal based upon the affidavits of the
defendants stating that they did not control the area where the plaintiff fell and therefore
owed no duty to the plaintiff. Further, counsel asserts that plaintiff has not provided an
evidentiary basis to show that additional discovery would assist in opposing the
motion.
Plaintiff, by counsel Marc J. Musman, Esq., opposes the motion for
summary judgment stating that although the plaintiff appeared for an examination before
trial in May, 2014, the defendants failed to appear despite being court ordered to do so on
several occasions. Plaintiff asserts that the defendants have failed to demonstrate, prima
facie, that they owed no duty to the plaintiff with respect to her slip and fall at the
premises. Counsel asserts that the affidavits submitted merely stating that the entities did
not own or control the area where plaintiff slipped are insufficient, without any
supporting written documents to demonstrate which entity was under a duty to maintain,
manage, and control the common areas of the building. Counsel claims that since the
evidence shows that the defendants invited the plaintiff into the building for the
reception that they had a duty to provide members of the general public with a reasonably
safe premises including a safe means of ingress and egress (citing Thomassen v J
& K Diner, Inc., 152 AD2d 421[2d Dept. 1989]).
Plaintiff claims that as there are issues of fact with regard to which of the moving
defendants, as sponsors of the condominium, maintained control oover the building on
the date of the accident (citing Zebzda v Hudson St., LLC, 72 AD3d 679 [2d Dept. 2010])
and questions of fact as to the roles each entity played and whether the entities were
required to maintain liability insurance, and whether any of the entities maintained
comtrol over the premises especially in view of the fact that Halstead invited the plaintiff
to the premises for the reception during which she allegedly tripped and fell,
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]).
Upon reviewing the defendants motion for summary judgment, the
cross-motion of co-defendant Griffin Court Condominium, and the reply of the plaintiff,
this court finds that the defendants' motion for summary judgment is denied. This court
finds that the conclusory affidavits submitted in support of the motion are insufficient to
demonstrate, prima facie, as a matter of law that the moving defendants had no duty with
respect to providing a reasonably safe premises for the plaintiff. The evidence submitted
including plaintiff's deposition testimony creates a question of fact as to whether
Halstead Property, LLC was the sponsor of the reception to which the plaintiff was
invited and whether Halstead made special use of and maintained control of the area
during the reception. In addition, the evidence creates questions of fact as to the roles of
the various defendants vis a vis the condominium which have not been sufficiently
clarified. Further, the defendants have not provided sufficient documentation to show
that they did not in fact have ownership or control over the common elements of the
building on the date of the accident. The declaration document provided by the movants
indicate that the movants may have had an ownership interest or control over the the
common elements of the condominium at least while defnedants still owned or were in
posssesion of any unsold units in the condominium.
This court finds, in addition, that the plaintiff and co- defendant are entitled
to obtain depositions from the moving defendants as it is clear that facts supporting the
plaintiff's position may exist but without further discovery cannot be stated at this time
(CPLR 3212(f).
Accordingly, for all of the aforesaid reasons, it is hereby,
ORDERED, that the defendants' for summary judgment is denied, and it is
further,
ORDERED, that the co-defendant's cross-motion is granted to the extent that
all defendants who have not yet appeared for depositions shall have their answers
stricken unless they appear for an examination before trial no later than 30 days from
service of a copy of this order with notice of entry thereof.
Dated: April 13, 2015
Long Island City, NY
_____________________
ROBERT J. MCDONALD
J.S.C.