DIAZ PASCALL v. Irgang Group, Inc. et al., Defendants–Respondents. (2021)

Order, Supreme Court, New York County (Debra A. James, J.), entered October 17, 2019, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Irgang Group, Inc., Mark Irgang and Jay Irgang, and the cross motion of defendant Acacia Inc., a/k/a and d/b/a Basic Housing, Inc. (Basic Housing) for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

This personal injury action arises from plaintiff Amanda Diaz–Pascall's trip and fall on a stairway inside a four-story mix-use building.  There is no dispute that nonparty 77–79 E. 125th LLC owned the property on the day plaintiff fell.

The individual defendants are entitled to summary judgment dismissing the complaint and all cross claims as against them.  The record shows that they did not own the building at the time of the accident, and there is no evidence that they acted outside the scope of their roles as a representative or managing member of defendant Irgang Group, or that they independently engaged in tortious conduct (see Delagrange v. Payard, 110 A.D.3d 491, 973 N.Y.S.2d 74 [1st Dept. 2013];  Mendez v. City of New York, 259 A.D.2d 441, 441–442, 687 N.Y.S.2d 346 [1st Dept. 1999]).

Irgang Group is entitled to summary judgment dismissing the complaint and all cross claims as against it, because plaintiff failed to present evidence raising a triable issue as to whether it was affirmatively negligent, or in complete and exclusive control of the building (see Caldwell v. Gumley–Haft L.L.C., 55 A.D.3d 408, 866 N.Y.S.2d 46 [1st Dept. 2008]).  That Irgang Group paid for the janitor who cleaned the building under the supervision of Basic Housing does not raise a triable issue of fact as to whether Irgang Group launched a force or instrument of harm by failing to exercise reasonable care in the performance of its contractual duties, whether it entirely displaced the property owner's duty to maintain the premises safely, or whether plaintiff detrimentally relied on the continued performance of its contractual duties (see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140–141, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002];  Romero v. Morrisania Towers Hous. Co. Ltd. Partnership, 91 A.D.3d 507, 508, 936 N.Y.S.2d 202 [1st Dept. 2012]).

Furthermore, Basic Housing is entitled to summary judgement, because the written agreement in effect at the time of the accident states that the owner of the property was responsible to maintain the interior stairway where plaintiff fell, and there is no evidence in the record that Basic Housing caused or created the raised tile that plaintiff alleges was the proximate cause of her fall (see Vohra v. Queen Anne Co., L.L.C., 90 A.D.3d 519, 520, 934 N.Y.S.2d 162 [1st Dept. 2011]).  That plaintiff or another resident complained to Basic Housing about the subject step before plaintiff's fall is of no moment in the absence of evidence that Basic Housing had a duty to keep that area in a reasonably safe condition (see Fraher v. JNPJC Brusco Assoc., 286 A.D.2d 289, 729 N.Y.S.2d 140 [1st Dept. 2001]).

We have considered plaintiffs’ remaining arguments and find them unavailing.