FILED: BRONX COUNTY CLERK 03/27/ :27 PM INDEX NO /2016E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 03/27/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX MARIA AGUILAR, Index No.: 25084/2016E against Plaintiff ALLIANCE PARKING SERVICES, LLC, ALLIANCE PARKING MAINTENANCE, LLC, ALLIANCE 185TH PARKING, LLC, and PARK 185TH LLC, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT PARK 185TH LLC'S MOTION FOR SUMMARY JUDGMENT CERVINI SWANSON LLP 500 Fifth Avenue, Suite 3020 New York, New York Tel. (212) Counsel for Defendant Park 185th LLC 1 of 13

2 (" Defendant" Defendant Park 185th LLC ("Defendant") in the captioned personal injury action (the "Action" "Action") (" Plaintiff' commenced by plaintiff Maria Aguilar ("Plaintiff"), submits this Memorandum, together Affidavit" with the Affidavit of Andrew Meyer, sworn to on March 26, 2018 (the "Defendant Affidavit") and the Affirmation" Affirmation of Scott L. Swanson, dated March 26, 2018 (the "Attorney Affirmation"), together with the exhibits attached thereto (collectively, the Memorandum, the Defendant Affidavit and the Attorney Documents" Affirmation are referred to as the "Motion Documents"), in support of Defendant's motion pursuant to section 3212 of New York Civil Practice Law and Rules ("CPLR"), seeking: (i) summary judgment "Answer" upon defenses asserted in its Verified Answer filed on January 27, 2017 (the "Answer") to the claims asserted against it in Plaintiff's Amended Verified Complaint filed on August 29, 2016 (the "Complaint"); (ii) dismissal of the claims asserted against it with prejudice; and (iii) such other and "Motion" further relief in favour of Defendant as this Court deems just and proper (the "Motion"). L PRELIMINARY STATEMENT As a matter of settled law and documented fact, Defendant has no liability for the claims asserted by Plaintiff in the Complaint. Plaintiff's claims relate to injuries allegedly suffered from a slipandfall accident that occurred on March 2, 2015 (respectively, the "2015 Broadway Accident" Date" and the "2015 Accident Date") on an icy sidewalk in front of a building located at 4320 Broadway, New York, New York (respectively, the "Broadway Accident Site" and the "Broadway Retail Premises" Premises"). Attorney Aff., Ex. A., 41. Occupied Tenant" by Staples (the "Broadway Retail Tenant"), the Broadway Retail Premises is connected to other commercial structures located in the interior of the block off of Broadway, between West 184th and 185th (the "Commercial Complex") including a commercial parking garage (the "Complex Garage"). Defendant previously leased the Complex Garage. Defendant is one of many prior and current tenants of the Commercial Complex that were named as defendants in the Action as parties potentially responsible for maintenance of the sidewalks 2 of 13

3 at the Broadway Accident Site at the time of the 2015 Accident Date. However, as set forth below, Defendant is not a liable party as: (i) Defendant was never responsible for maintenance of the sidewalks on Broadway that are the alleged location of the Broadway Accident Site; (ii) Defendant was not in possession of the Complex Garage nor responsible for its maintenance in any way at the time of the 2015 Broadway Accident; and (iii) Defendant had not been in possession of the Complex Garage or otherwise responsible for its maintenance in any way for nearly a decade prior to the 2015 Broadway Accident. Defendant's lack of liability is a matter of welldocumented record established by the various lease agreements and other instruments attached to the Defendant Affidavit. These documents establish that Defendant is entitled to judgment upon its affirmative defenses and that Plaintiff's claims against it should be dismissed. II. STATEMENT OF FACTS Below is a brief summary of facts detailed in the Defendant Affidavit with respect to Defendant's limited and longbygone involvement with the Commercial Complex as a tenant of the Complex Garage at the near of the complex off of Broadway. A. Defendant's 2003 Lease of the Complex Garage Defendant's only involvement with the Commercial Complex was its lease of the Complex Garage in On October 31, 2003, Defendant (through a predecessor entity) entered into a written lease agreement with the owner of the Commercial Complex, Washington Heights Parking LLC (the Landlord" "Complex Landlord"), for a term of twenty (20) years (the "2003 Master Lease").1 The Complex Garage was located off of Broadway in the interior of the block between 184th and 185th Street. 1 The predecessor entity of Defendant which originally entered into the 2003 Master Lease was 4320 Broadway Parking LLC. Later, the leasehold was transferred to a successor Delaware entity, Defendant pursuant to a written assignment agreement entered into between Defendant, the predecessor entity and the Complex Owner on December 19, 2007 (the "2007 Assignment Agreement"). See Defendant Aff., Ex. B (copy of the 2007 Assignment Agreement). 3 of 13

4 Critically, the 2003 Master Lease limited Defendant's responsibility for maintenance of the sidewalks adjoining the Complex Garage and expressly excluded any responsibility of Defendant for maintenance of the sidewalks on Broadway (the alleged location of the Broadway Accident Site) stating: 47. CARE OF SIDEWALK. [Defendant] agrees that at its own cost and expense, it will make all repairs and replacements to, and have all snow and ice removed from the sidewalks which adjoin 184th Street and 185th Street (and not Broadway) and leading into the driveway or driveways to the [Complex Garage] as soon as practicable and will keep the said sidewalks at all times clean and free of rubbish, and will deposit ashes, garbage, and other refuse in proper, covered receptacles. Owner represents that it will install new sidewalks at or prior to the commencement of this Lease. Defendant Aff., Ex. A (emphasis added). This limited maintenance obligation (the "Garage Maintenance Obligation") was transferred away from Defendant years prior to the 2015 Accident Date when Defendant subleased the Complex Garage to a third party in 2008 with the consent of the Complex Landlord. B. Defendant's 2008 Transfer of Possession of the Complex Garage to a Third Party in 2008 In 2008, Defendant transferred its leasehold in the Complex Garage to a thirdparty subtenant, Subtenant" Alliance 185th Parking, LLC (the "First Subtenant"). Defendant and First Subtenant entered into a Sublease" twentyoneone (21) year written sublease agreement on August 1, 2008 (the "2008 Sublease"). Id., Ex. C. Pursuant to the 2008 Sublease, First Sublessee took possession of the Complex Garage and assumed responsibility for performance of all maintenance obligations thereunder, including the Garage Maintenance Obligation, for the term of the 2008 Sublease. See id., Ex. C, 4 (stating that "during the Term [of the 2003 Sublease]," the First Subtenant "shall perform [all] obligations under the [2003 Master Lease]"). This sublease was authorized by the Complex Landlord pursuant to a written consent 4 of 13

5 agreement contemporaneously executed by the parties. Id., Ex. D. This was the last time that Defendant had any possession of or responsibility for the Complex Garage or its maintenance. C. The 2014 Transfer of Possession of the Complex Garage to ThirdParty 185th Operating LLC In 2014, First Subtenant assigned its rights under the 2008 Sublease to a thirdparty entity, Possession" 185th Operating LLC (the "Subtenant in Possession"). The assignment was made pursuant to a written consent to assignment executed by the First Subtenant and the Subtenant in Possession, as well as Defendant and the Complex Landlord (the "2014 Sublease Assignment"). Id., Ex. E. Pursuant to the 2014 Sublease Assignment, Subtenant in Possession assumed responsibility for all obligations under the 2008 Sublease (and, in turn, the 2003 Master Lease). Importantly, pursuant to the Sublease Assignment, Subtenant in Possession expressly assumed responsibility for all thirdparty claims in connection with the 2008 Sublease for the term of the 2008 Sublease (i.e. through 2029), stating: Assignee acknowledges and agrees that it is liable for, without limitation, any third party claims, judgments, violations, expenses, fees, amounts, debts, contracts, agreements, promises, damages or demands of or against Assignor, or the Demised Premises, under the Sublease, from August 1, 2008 through the entire term of the Sublease. Id., 7. Accordingly, as demonstrated by the 2014 Sublease Assignment, Subtenant in Possession was in possession of the Complex Garage and obligated to perform all maintenance obligations thereunder during all relevant periods after 2014 including the 2015 Accident Date. D. Plaintiff's Alleged 2015 Broadway Accident and Commencement of the Action After filing a similar action in 2015 (which was later consolidated with the instant action), Plaintiff initiated the Action on July 27, 2016, seeking to recover from various defendants for the 2015 Broadway Accident which allegedly occurred: (i) on the 2015 Accident Date of March 2, 2015; (ii) at the Broadway Accident Site on the sidewalk on Broadway in front of the Broadway Retail Premises; 5 of 13

6 (iii) as a result of negligent maintenance of the subject sidewalk in violation of sections 7210 and 16 Code" 123 of the New York City Administrative Code (the "Administrative Code"); and (iv) resulting in "icy, unsafe, hazardous and dangerous conditions [on] the aforesaid sidewalk" which caused Plaintiff's 2015 Broadway Accident. Attorney Aff., Ex. A, i. The Various Parties Related to the Commercial Complex Named as Defendants Liable for the 2015 Broadway Accident Apparently unsure of the party responsible for maintaining the sidewalks on Broadway at the Broadway Accident Site at the 2015 Accident Date, Plaintiff indiscriminately named as defendants in the Action various parties which she and her attorneys believed to be related to the Commercial Complex. Named defendants in the action include not only the Complex Landlord and the Broadway Retail Tenant but also Defendant and First Subtenant (neither of which were in possession of or responsible for the Complex Garage at the time of the 2015 Broadway Accident and neither of which ever had any responsibility for maintenance of the sidewalk at the Broadway Accident Site). Ironically, Plaintiff named as defendants virtually every party with any association to the Complex Garage in the past decade except the party that was actually in possession of the Complex Garage at the time of the 2015 Broadway Accident: Subtenant in Possession. ii. Plaintiff's Discovery Responses in the Action and Confirmation that the 2015 Broadway Accident Occurred on Broadway Plaintiff's discovery responses conclusively confirm that the 2015 Broadway Accident occurred on Broadway (and not on any sidewalk for which Defendant or any other party ever had any maintenance obligation under the 2003 Master Lease). In response to a demand for bill of particulars dated March 31, 2017, Plaintiff provided the Verified Bill of Particulars dated November 7, 2017 (the "Discovery Response") attached as Exhibit C to the Attorney Affirmation. The Discovery Response attaches various documents including a picture of the alleged Broadway Accident described as a "postaccident photograph[]... where Plaintiff points to the accident location" (the "Plaintiff Accident 6 of 13

7 Photo" Photo"). Attorney Aff., Ex. C, 3 and p. 9. The location which Plaintiff identifies in the photograph as the 2015 Broadway Accident is very clearly on Broadway across the street from "Rivas Travel" which is located at 4321 Broadway at the northwest corner of West 184th Street. Id., p. 9. The location of the 2015 Broadway Accident readily verifiable by reference to map search engines such as Google Maps. iii. Defendant's Answer in the Action and Affirmative Defenses As Defendant has previously explained to Plaintiff's counsel, Defendant has no conceivable liability in this Action as, inter alia: (i) Defendant was not in possession of the Complex Garage at the time of the 2015 Broadway Accident; (ii) Defendant was not responsible for maintenance of the sidewalks adjoining the Complex Garage at the time of the 2015 Broadway Accident; and (iii) Defendant was never responsible for maintenance of the sidewalks on Broadway at the Broadway Accident Site. This position was restated in the affirmative defenses asserted by Defendant in its Defenses" Answer filed in the Action (collectively, the "Affirmative Defenses"), including, inter alia: (i) the Fourth Affirmative Defense that "[p]arties other than Defendant caused... the Complaint" damages that Plaintiff claims to have suffered in the [i.e. the party responsible for maintaining the sidewalks on Broadway in front of the Broadway Retail Defense" Premises] (the "Improper Party Defense"); and (ii) the Fifth Affirmative Defense that "[a]t no relevant time has Defendant possessed or controlled the premises referenced in the Complaint or had any responsibility for its repairs" maintenance or since "[a]t all relevant times, the subject premises were leased to other parties which possessed exclusive control of the subject premises and were repair" Defense" solely responsible for its maintenance and (the "OutofPossession Defense"). Attorney Aff., Ex. B, Each of these defenses is a complete defense to liability in this Action and established by the documents attached to the Defendant Affidavit and Plaintiff's own Discovery Responses. 7 of 13

8 III. LEGAL ARGUMENT POINT 1: The Applicable Standards for Summary Judgment CPLR 3212(b) authorizes the Court to grant summary judgment upon defenses where, as here, the proof submitted to the Court demonstrates that judgment should be entered in favor of defendant as a matter of law. It is well settled that summary judgment should be granted "without hesitation" hesitation where no material issue of material fact is presented to justify trial. Appel v. Root, 18 A.D.2d 686, 233 N.Y.S.2d 5 (2d Dep't 1962), aff'd, 13 N.Y.2d 748, 241 N.Y.S.2d 870 (1963). A defendant establishes prima facie entitlement to summary judgment where it puts forward proof by affidavit and documentary evidence of entitlement to judgment upon its defenses. Relevant here, New York courts have consistently held both written contracts between the parties and a plaintiff's admissions in a bill of particulars (like the Discovery Response in this case) constitute sufficient evidence for a defendant to establish prima facie entitlement to summary judgment upon its defenses. See, e.g., Wing Wong Realty Corp. v. Flintlock Constr. Servs., LLC, 95 A.D.3d 709, 712 (1st Dep't 2012) (finding prima facie entitlement to summary judgment established by defendant based upon provisions of contract with plaintiff); and Sanchez v. Oxcin, 157 A.D.3d 561 (1st Dep't 2018) (finding defendant established prima facie entitlement to summary judgment by plaintiff's admissions in bill of particulars). Where a moving party establishes prima facie entitlement to summary judgment, the party opposing summary judgment must present affirmative proof sufficient to demonstrate the existence of a genuine triable issue of fact. See Zuckerman v. City of N.Y., 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The opposing party's mere conclusory assertions unsupported by evidence are insufficient to meet this burden. See Ihmels v. Kahn, 126 A.D. 701 (2d Dep't 1987). To successfully oppose summary relief, the opposing party must assemble and lay bare its affirmative proof to demonstrate 8 of 13

9 that genuine triable issues of material fact exist. See Kornfeld v. NRX Tech.,,.Inc., 93 A.D.2d 772, 461 N.Y.S.2d 342 (1st Dep't 1983), aff'd, 62 N.Y.2d 686, 476 N.Y.S.2d 523 (1984). POINT 2: Defendant Is Entitled to Summary Judgment Because It Never Had Any Duty to Maintain the Sidewalks that Plaintiff Has Identified as the Broadway Accident Site As set forth above, Plaintiff's claims against Defendant are premised upon the allegation that Defendant was responsible for the maintenance of the sidewalk on Broadway where the 2015 Broadway Accident took place, including "removal of snow and ice from the sidewalk" in question. Attorney Aff., Ex. B, Of course, a duty of Defendant to maintain the sidewalks where Plaintiff was alleged injured is a critical element and prerequisite of Plaintiff's claims. See Kenney v. City of N.Y., 30 A.D.3d 261, 262 (1st Dep't 2006) ("To maintain a negligence cause of action, plaintiff must be able to prove the existence of a duty" and "[o]ne who... is not responsible for [the subject work] at an accident site owes no duty to a plaintiff injured at the site"). In this case, any maintenance duty of Defendant as a commercial tenant of the Complex Garage must have arisen by contract (i.e. in its lease agreements with the Complex Landlord). The Administrative Code provisions cited by Plaintiff in the Complaint (as creating the sidewalk maintenance obligations underlying her claims, i.e. Administrative Code 7210 and 16123) apply to owners not their commercial tenants. See Langston v. Gonzalez, 2013 NY Slip Op 23031, 3, 39 (" Misc. 3d 371, 377, 958 N.Y.S.2d 888, 893 (N.Y. Sup. Ct., Kings Cty., Feb. 4, 2013) ("The Administrative Code does not impose any duty on a commercial tenant" and leaves the issue of sidewalk maintenance obligations "to the property owner and his contract (lease) with the tenant."). The contractual maintenance obligations of Defendant in this case (i.e. under the 2003 Master Lease with Complex Landlord) explicitly exclude the sidewalks which Plaintiff has identified as the Broadway Accident Site. Again, as set forth above at section II(D)(ii), Plaintiff's Discovery Response confirmed that the Broadway Accident Site was located on Broadway. See id,ex. Ex. C, p. 9 (picture of 9 of 13

10 Plaintiff pointing at sidewalk on Broadway). As set forth at section II (A), above, the 2003 Master Lease limited the Garage Maintenance Obligation of Defendant to the sidewalks adjoining the Complex Garage (in the interior of the block between 184th and 185th Streets). By its express terms, the 2003 Master Lease expressly excluded any responsibility of Defendant for maintenance of the sidewalks on Broadway (where Plaintiff confirms the alleged injury took lace. Its entirety, the relevant provision of the lease provides as follows: 47. CARE OF SIDEWALK. [Defendant] agrees that at its own cost and expense, it will make all repairs and replacements to, and have all snow and ice removed from the sidewalks which adjoin 184th Street and 185th Street (and not Broadway) and leading into the driveway or driveways to the [Complex Garage] as soon as practicable and will keep the said sidewalks at all times clean and free of rubbish, and will deposit ashes, garbage, and other refuse in proper, covered receptacles. Owner represents that it will install new sidewalks at or prior to the commencement of this Lease. Defendant Aff., Ex. A, 47 (emphasis added). Accordingly, Defendant never had any obligation to maintain the allegedlyimproperly maintained sidewalks on Broadway which Plaintiff has identified in the Complaint and her Discovery Response as the location of the Broadway Accident Site. On this ground alone, Defendant is entitled to summary judgment upon its defenses and dismissal of the claims asserted against it by Plaintiff in the Action. However, other independent bases for summary judgment in favor of Defendant exist as well. POINT 3: Defendant Is Also Entitled to Summary Judgment Because Defendant Did Not Have Possession of or Any Maintenance Obligation for the Complex Garage at the Time of the 2015 Broadway Accident (or a Decade Prior) Not only does the 2003 Master Lease demonstrate dispositively that Defendant never had any duty to maintain the sidewalks on Broadway where Plaintiff alleges that she fell, the subsequent sublease documents attached to the Defendant Affidavit establish that Defendant had not had any maintenance obligations whatsoever for the Complex Garage (or its adjoining sidewalks) for nearly a decade prior to the 2015 Broadway Accident. I 10 of 13

11 As set forth at sections II(B) and (C), above, Defendant had assigned its possessory rights and obligations under the 2003 Master Lease to First Subtenant in 2008 pursuant to the 2008 Sublease. First Subtenant then assigned the 2008 Sublease to Subtenant in Possession in 2014 pursuant to the 2014 Sublease Assignment. In each of these transactions, both the First Subtenant and the Subtenant in Possession not only took possession and control of the Complex Garage but also assumed all obligations of Defendant under the 2003 Master Lease with respect to the leasehold (collectively, the 2003 Master Lease, the 2008 Sublease and the 2014 Sublease Assignment are referred to as the Documents" "Garage Lease Documents"). Accordingly, the Garage Lease Documents demonstrate that Defendant was at the time of the 2015 Broadway Accident and for nearly a decade prior an outofpossession sublandlord with no control over the Complex Garage or any maintenance obligation whatsoever with respect to the property. New York courts have repeatedly addressed precisely this situation and held that outofpossession property owners and sublandlords, which are not contractually obligated to perform maintenance on a property, are not liable for injuries caused by negligence of the subtenant. As the Second Department explained in Iturrino v. Brisbane S. Setauket, LLC, 135 A.D.3d 907 (2d Dep't 2016): "[A]n outofpossession landlord may be liable for injuries occurring on the premises if 'it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to repairs' " perform such maintenance and (Yehia v Marphil Realty Corp., 130 AD3d 615, 616, 13 NYS3d 194 [2015], quoting Denermark v 2857 W. 8th St. Assoc., 111 AD3d 660, 661, 974 NYS2d 533 [2013]; see Rivera v Nelson Realty, LLC, 7 NY3d 530, 534, 858 NE2d 1127, 825 NYS2d 422 [2006]; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, , 509 NE2d 51, 516 NYS2d 451 [1987]). *** However, "where the premises have been leased and subleased and the subtenant assumes the exclusive obligation to maintain the premises, both the outofpossession landlord and the outofpossession lessee/sublessor will be free from liability for injuries to a third party caused by the possession" negligence of the subtenant in (Mehl v Fleisher, 234 AD2d of 13

12 274, , 650 NYS2d 784 [1996]; see Grippo v City of New York, 45 AD3d 639, 640, 846 NYS2d 264 [2007]). Id., pp New York courts have directly applied this rule to dismiss claims confronted by the Court here, namely, claims by an alleged slipandfall victim against outofpossession sublandlords for negligence maintenance of sidewalks. For example, in Washington v. Milford Mgmt. Corp.,, NY Slip Op 30425(U), 11 (N.Y. Sup. Ct., N.Y. Cty, February 24, 2012), the Court found that an outofpossession sublandlord had established prima facie entitlement to summary judgment and dismissal of slipandfall claims against it due to negligent maintenance of sidewalks â where lease documents established that the outofpossession sublandlord "exercised no control over the [p]remises" and was not responsible for snow removal at the premises, concluding that "[a]s such, [the defendant] has prima facie established that it owed no duty to plaintiffs." The same is true in this case. In this case, like the Washington case, the Garage Lease Documents establish that Defendant was an outofpossession sublandlord of the Complex Garage at the time of the 2015 Broadway Accident and had been for nearly a decade prior with no control over the premises or obligation to maintain the premises (or its sidewalks). If any occupant of the Complex Garage were liable to Plaintiff, it would be the Subtenant in Possession which the Garage Lease Documents establish was in possession of the Complex Garage at the time of the 2015 Broadway Accident. However, as set forth above, the Garage Maintenance Obligations established under the 2003 Master Lease expressly excluded any obligation of Defendant (or its subtenant successors) to maintain the sidewalks on Broadway where Plaintiff has confirmed in her Discovery Response was the location of her alleged injury. Accordingly, Defendant has established its prima facie entitlement to summary judgment finding it had no duty to Plaintiff, granting its Affirmative Defenses, and dismissing Plaintiff's claims against. I 12 of 13

13 IV. CONCLUSION Based on the foregoing, Defendant is entitled to summary judgment upon its Affirmative Defenses as a matter of law and to dismissal of the claims asserted against it by Plaintiff with prejudice. There are no triable issues of fact herein. The Garage Lease Documents and Plaintiff's Discovery Responses are clear on their face and demonstrate that, as a matter of law, Defendant is not liable to Plaintiff for any claims related to the 2015 Broadway Accident. Accordingly, Defendant respectfully requests that the Motion is granted in its entirety together with such other and further relief in favor of Defendant as this Court deems just and proper. Dated: New York, New York CERVINI SWANSON LLP March 27, 2018 By: Joseph P. Cervini, Jr. Scott Swanson 500 Fifth Avenue, Suite 3020 New York, New York (212) Counsel for Defendant Park 185th LLC of 13