The following e-filed documents, listed by NYSCEF document number (Motion 001) 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61 were read on this motion for SUMMARY JUDGMENT.

This action arises from a trip and fall. On September 18, 2021, plaintiff, Phyllis Finkelstein, dined at a restaurant owned by defendant The Capri Group Hamptons, LLC. Capri operates the restaurant on premises it leases from defendant Pietra Dura, LLC.

Plaintiff was dining at the outside portion of the restaurant. As she entered the inside portion of the restaurant at about 7:00 p.m., she tripped and fell on a single step separating the outdoor and indoor dining spaces. According to plaintiff, that area was dark, the step was unmarked, and there were no handrails. (NYSCEF No. 1 at ¶ 23 [complaint].) Plaintiff argues that these conditions created an optical illusion.

Plaintiff brought this negligence action against the defendants. Pietra asserts crossclaims for contribution and contractual indemnification against Capri. Capri asserts crossclaims for contribution/common-law indemnification and contractual indemnification against Pietra.

On this motion, Pietra moves for summary judgment dismissing plaintiff's complaint against and Capri's crossclaims. The motion is granted in part and denied in part. Capri cross-moves for summary judgment dismissing plaintiff's complaint against it and Pietra's crossclaims. The cross-motion is granted in part and denied in part.

A. Branch of Motion for Summary Judgment Dismissing Plaintiff's Complaint

Plaintiff alleges that she could not perceive the step and therefore tripped and fell. The parties do not dispute that Pietra installed the step when it renovated the premises in 2016. Pietra argues that it may not be held liable for plaintiff's injuries because it is an out-of-possession landowner; it contends that only tenant may be held liable for conditions on the premises. Plaintiff counters that an out-of-possession landowner may still be held liable for design and structural defects on the premises.

An out-of-possession landlord is typically not liable for negligence connected to the condition of the premises "unless it: (1) is contractually obligated by lease or otherwise to make repairs or maintain the premises, or (2) has a contractual right to re-enter, inspect and make needed repairs, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision." (Henry v Hamilton Equities, Inc., 161 AD3d 418, 418-419 [1st Dept 2018], affd 34 NY3d 136 [2019].)

Pietra has shown that it is an out-of-possession landlord with no duty to maintain or repair the premises. Pietra provides its lease agreement with Capri which states that "[t]enant shall make, at Tenant's expense, all necessary repairs and perform all necessary maintenance to the Leased Premises." (NYSCEF No. 37 at 4.) Additionally, the lease does not afford defendant a contractual right to reenter the premises to make repairs. (See NYSCEF No. 37 at 7 [allowing landowner reentry for purposes of inspection, not repairs].)

Plaintiff seeks to raise an issue of fact, however. She testifies that she did not see the step, because "[t]here was not any designating stripes or handrails." (NYSCEF No. 34 at 28.) She represents that "I was looking straight and, you know, you would see a handrail, you would see yellow tape, there was nothing, so I, in good faith, thought it was flat." (Id. at 30.) Plaintiff argues that the lack of handrails and color strips—that were not black and yellow tape—on the [*2]step caused her injury.

With respect to the lack of handrails, plaintiff does not bring evidence to support that handrails were required by building regulations for this single step such that their absence constitutes a dangerous condition on the premises. (Cf. Al Aabdy v 281 St. Nicholas Partners LLC, 193 AD3d 402, 403 [1st Dept 2021] [holding "that plaintiff's expert opinion raised an issue of fact as to whether the absence of handrails on the staircase violated a specific statutory provision of the applicable Building Code" for which an out-of-possession landowner could be held liable].) Accordingly, plaintiff does not raise an issue of fact about handrails.

With respect to the colored tape, plaintiff does not bring evidence to suggest that this was a structural or design defect in the stair that would constitute a defect for which an out-of-possession landowner is liable. She points to the testimony of John Tortorella, managing director of the trust that owns Pietra. Tortorella represents that he did not know whether Pietra even placed the tape on the step to begin with. Plaintiff thus argues that Pietra might have placed the tape down itself, thus creating the hazardous condition. (NYSCEF No. 35 at 29.) But, as Pietra contends, Capri testified that it applied the tape on the steps. (NYSCEF No. 36 at 39.) Accordingly, Pietra is not liable for hazards caused by the tape.

The branch of Pietra's motion for summary judgment dismissing the complaint against it is granted.

B. Branch of Pietra's Motion for Summary Judgment Dismissing Capri's Crossclaims

In light of the court's conclusion that Pietra was not negligent, the branch of Pietra's motion for summary judgment dismissing Capri's crossclaim for common-law indemnification/contribution is granted. The branch of Capri's motion for summary judgment dismissing the crossclaim for contractual indemnification is denied. Capri does not set forth its prima facie case on this crossclaim.

A. Branch of Capri's Cross-Motion for Summary Judgment Dismissing Plaintiff's Complaint

Capri argues that plaintiff's account of the accident is impossible and therefore that the complaint must be dismissed against it. According to Capri, plaintiff's theory is that she tripped due to a sliding door by the step at issue. Capri argues that plaintiff's contention that the sliding door on the premises turned the step into a hazardous condition is implausible, because the sliding doors were not installed at the time of the accident. (NYSCEF No. 42 at 5-6.)

Plaintiff argues that Capri has misapprehended plaintiff's allegations. The court agrees. Plaintiff does not allege that she fell due to the presence of the sliding door; rather that the edge of the platform and the step itself were indistinguishable in the poor lighting, creating an optical illusion. (NYSCEF No. 1 at ¶ 23.) In support, plaintiff submits a photograph, which, she contends, shows that the platform was indistinguishable from the level down. (NYSCEF No. 53 at 3.)

Nonetheless, Capri also provides an expert opinion from an engineer who opined that there was enough light for plaintiff to see the change in elevation due to both natural and artificial light. (NYSCEF No. 44 at ¶ 9.) But plaintiff testified that the lighting was "dim" (NYSCEF No. 34 at 41.) Further the court takes note of the date, time, and location of the accident—7:00 p.m. in September as plaintiff was walking from outside the premises to the inside—likely as daylight was dimming. This court thus concludes that plaintiff raises an issue of fact about lighting.

The engineer further opines that Capri made no alterations to the step before the accident, except that it added some caution tape as a precaution and as directed by the Fire Marshall. (NYSCEF No. 44 at 4.) Capri thus argues that it did not create an alleged hazardous condition. Plaintiff testified, however, that at the time of the accident, she saw no tape on the step.^[FN1] (NYSCEF No. 34 at 30 [plaintiff's testimony].) Plaintiff argues that Capri should have placed "different color strips or materials at the edge of the platform to alert a guest of the existence of a step down." (NYSCEF No. 47 at 14.^[FN2] ) This court concludes that plaintiff raises an issue of fact about the nature of the tape on the step.

The court concludes that plaintiff has raised issues of fact concerning the lighting and taping of the step.

B. Branch of Capri's Cross-Motion for Summary Judgment Dismissing Pietra's Crossclaims

Capri cross-moves for summary judgment dismissing Pietra's crossclaims for contribution and contractual indemnification against it. It argues that Pietra is the liable party, because it installed the step when it renovated the premises. But as discussed above, there is no evidence suggesting that the step was defective. Accordingly, Capri's motion for summary judgment dismissing Pietra's crossclaim for contribution is denied, and summary judgment on liability is granted in favor of Pietra.

Summary judgment dismissing the contractual-indemnification crossclaim is denied. Capri does not make out a prima facie case on the contractual indemnification crossclaim.

Accordingly, it is

ORDERED that the branch of Pietra's motion for summary judgment dismissing [*3]plaintiff's complaint against it is granted; and it is further

ORDERED that the branch of Pietra's motion for summary judgment dismissing Capri's crossclaim for common-law indemnification/contribution is granted; and it is further

ORDERED that the branch of Pietra's for summary judgment dismissing Capri's crossclaim for contractual indemnification is denied; and it is further

ORDERED that the branch of Capri's cross-motion for summary judgment dismissing plaintiff's complaint is denied; and it is further

ORDERED that the branch of Capri's cross-motion for summary judgment dismissing Pietra's crossclaim for contribution is denied; and summary judgment on that crossclaim is granted to Pietra on liability; and it is further

ORDERED that the branch of Capri's cross-motion for summary judgment dismissing Pietra's crossclaim for contractual indemnification is denied; and it is further

ORDERED that the balance of the claims in this action are severed and shall continue; and it is further

ORDERED that the parties appear for a telephonic preliminary conference on August 11, 2025; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendants and on the office of the County Clerk (using the NYSCEF document type "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.