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Carmen DELGADO, Plaintiff, v. 808 BROADWAY NYC, LLC, Individually and d/b/a 808 Broadway Condominium, the Board of Managers of 808 Broadway Condominiums, Broadway Eleven Owners, Inc., Tudor Realty Services Corp. Masquerade, LLC, individually and d/b/a Halloween Adventure and/or New York Costumes Halloween Adventure in the East Village and Rubie's Costume Company, Inc., Individually and d/b/a Halloween Adventures and/or New York Costumes Halloween Adventure in the East Village, Defendants.
The following papers, numbered 1 to 5, were read on this motion by defendant for summary judgment.
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1
Answering Affidavits — Exhibits (Memo) 2, 3, 4
Replying Affidavits (Reply Memo) 5
This is an action commenced by Carmen Delgado (plaintiff) to recover monetary damages for personal injuries allegedly sustained on October 27, 2017, when she allegedly tripped and fell off an illegal elevated step riser inside the Halloween store located at 104 4th Avenue, New York, New York/ 808 Broadway, New York, New York (the Property). Plaintiff commenced this action by Summons and Complaint on February 17, 2017 against the owners of the Property, 808 Broadway NYC, LLC, individually and d/b/a 808 Broadway Condominium (the 808 Broadway), the Board of Managers of 808 Broadway Condominium (808 Board), Broadway Eleven Owners, Inc. (Broadway Eleven), Tudor Realty Services Corp (Tudor Realty), and Masquerade, LLC, individually, and db/a/ Halloween Adventure and/or New York Costumes Halloween Adventure in the East Village and Rubie's Costsume Company, Inc, individually, and, d/b/a Halloween Adventure and/or New York Costumes Halloween Adventure in the East Village (the Masquerade/ Rubie's Costume defendants) (collectively, referred together as defendants). Masquerade/ Rubie's Costume joined issue and interposed a Verified Answer on May 4, 2017, and asserted cross-claims against 808 Broadway, the 808 Board, Broadway Eleven and Tudor Realty for contribution and common-law indemnification. Discovery is not yet complete in this action and the Note of Issue has not been filed. Plaintiff contends inter alia, that his injuries resulted from defendants' negligence in allowing the erection of an illegal single riser in violation of sections 27-375(d), (d)(1), (d)(2) and (d)(3) of the New York State Administrative Code. Moreover, plaintiff contends that defendants are negligent inasmuch as they have allowed this dangerous condition to continue, and failed to warn their patrons of this defect.
Before the Court is a motion by the 808 Board, Broadway Eleven and Tudor Realty (the moving defendants) for an Order pursuant to CPLR 3211(a)(1), dismissing plaintiff's Complaint and the cross-claims, based upon documentary evidence. Plaintiff and Masquerade/ Rubie's Costume oppose the herein motion and the moving defendants submit a reply.
In support of its motion to dismiss plaintiff's Complaint and the cross-claims, the moving defendants submit a copy of the Summons and Verified Complaint; Masquerade/ Rubie's Costume's Verified Answer with cross-claims; a copy of the Declaration of 808 Broadway; a copy of a Deed, dated May 29, 2008; a Co-operative Apartment House Management Agreement between Broadway Eleven and Tudor Realty, dated June 1, 1995 (the Management Agreement); the affidavit of Mary Frances Shaughnessy (Shaughnessy), Tudor Realty's managing partner; and the affidavit of Joel Witman (Witman), Board President for Broadway Eleven) (see Notice Motion, exhibits A-F). Tudor argues that the Management Agreement unequivocally demonstrate that Tudor did not own, operate, control, manage, or supervise the commercial unit wherein plaintiff fell (see Tudor's Aff in Support ¶ 11). Moreover, the 808 Board and Broadway Eleven rely upon Witman's affidavit wherein Witman affirms that neither the 808 Board nor Eleven Broadway owned, operated, controlled, leased, supervised, repaired, inspected or managed the Halloween store located in the commercial unit where plaintiff fell (see id. ¶ 12). As such, the moving defendants maintain that plaintiff cannot establish a case of negligence against them since they did not owe plaintiff a duty.
In opposition, the Masquerade/ Rubie's Costume defendants argue that the moving defendants' arguments are misplaced since the Declaration of the 808 Broadway Condominium demonstrate that the 808 Board maintained the right to enter and pass through the Unit (the Declaration does not specify which unit or units) during business hours to examine such Unit and for the purposes of performing maintenance and making repairs, installations or additions in or to such units (see Masquerade/ Rubie's Costume defendants' Aff in Opp ¶ 6). Moreover, the Masquerade/ Rubie's Costume defendants argue that under the Management Agreement, Tudor has a duty to maintain the Building (as defined in the Management Agreement), including the interior and exterior of same, and make repairs and alterations to the building (Id. at ¶ 9). Thus, the Masquerade/ Rubie's Costume defendants contend that the documentary evidence creates an issue of fact regarding the moving defendants duties to make repairs to the commercial unit where plaintiff fell. Plaintiff also submitted her opposition to the moving defendants' motion wherein she adopts the arguments proffered by the Masquerade/ Rubie's Costume defendants.
A. Motion to Dismiss
When determining a CPLR 3211(a) motion, “we liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion” (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-152 ; see Leon v. Martinez, 84 NY2d 83, 87 ; Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409 ; Wieder v. Skala, 80 NY2d 628  ).
“A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211(a)(1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim” (Botach Mgt. Group v. Gurash, 138 AD3d 771, 771 [2d Dept 2016]; see Sullivan v. State, 34 AD3d 443 [2d Dept 2006] ). “A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence ‘may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ ” (Rodolico v. Rubin & Licatesi, P.C., 114 AD3d 923, 924-925 [2d Dept 2014], quoting Goshen v. Mut. Life Ins. Co., 98 NY2d 314, 326 ; Sabre Real Estate Group, LLC v. Ghazvini, 140 AD3d 724 [2d Dept 2016]; Yue Fung USA Enters., Inc. v. Novelty Crystal Corp., 105 AD3d 840, 841 [2d Dept 2013] [“dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law”] ).
The evidence submitted in support of a motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence “must be documentary or the motion must be denied” (Rodolico, 114 AD3d at 925 [internal quotation marks omitted] ). “In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence ‘must be unambiguous and of undisputed authenticity’ ” (Rabos v. R & R Bagels & Bakery, Inc., 100 AD3d 849, 851 [2d Dept 2012], quoting Fontanetta v. John Doe 1, 73 AD3d 78, 86 [2d Dept 2010]; Yue Fung USA Enters., Inc., 105 AD3d at 841-842). “ ‘Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case’ ” (Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713, 714 [2d Dept 2012], quoting Fontanetta, 73 AD3d at 84-85). “ ‘Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)’ ” (Cives Corp., 97 AD3d at 714, quoting Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 [2d Dept 2010] ).
After consideration of the foregoing papers, the Court finds that the documentary evidence submitted by the moving defendants fails to utterly refute plaintiff's allegations or conclusively establish a defense as a matter of law (see 25-01 Newkirk Ave., LLC v. Everest Natl. Ins. Co., 127 AD3d 850 [2d Dept 2015]; ThreeAM SPC, Ltd. v. Ribotsky, 113 AD3d 837 [2d Dept 2014] ). First, the Court finds that the affidavit submitted by Shaughnessy and Witman are insufficient to constitute “documentary evidence” under CPLR 3211(a)(1) (see Cives Corp., 97 AD3d at 714; Granada Condominium III Assn., 78 AD3d at 997; Siracusa v. Sager, 105 AD3d 937, 938 [2d Dept 2013] [“Here, the evidence submitted by the Horn defendants either was not documentary within the meaning of CPLR 3211(a)(1) or failed to utterly refute the plaintiff's allegations and conclusively establish a defense as a matter of law”]; Attias v. Costiera, 120 AD3d 1281 [2d Dept 2014] ).
Moreover, upon reviewing the documentary evidence upon which the moving defendants rely, the Court finds that paragraph 11 of the Declaration of 808 Broadway permits the 808 Board to access, upon its own request to any occupant of the Property, any unit to make, inter alia, repairs, installations in or to such unit as may be authorized to comply with law and requirement of public authorities (see Notice of Motion, exhibit D ¶ 11). Additionally, paragraph 3 of the Management Agreement between Broadway 11 and Tudor Realty mandates that Tudor Realty must maintain and cause to repair, for example, carpentry, masonry (see id., exhibit F ¶ C). The Management Agreement further allowed Tudor Realty to make emergency repairs, “i.e., those immediately necessary for the preservation or safety of the building or for the safety of the shareholders, or other persons ․” (see Id.). Thus, since the Management Agreement and the Declaration of 808 Broadway grants the moving defendants the right of access to, inter alia, make repairs to the commercial unit where plaintiff allegedly fell, the Court finds these documents, standing alone, are insufficient to establish that the moving defendants did not exercise that right of entry. Therefore, the Court finds that moving defendants have fail to resolved all of plaintiff's factual allegations; hence, their motion seeking dismissal under CPLR 3211(a)(1) must be denied (see Siracusa v. Sager, 105 AD3d 937, 938 [2d Dept 2013] [“Here, the evidence submitted by the Horn defendants either was not documentary within the meaning of CPLR 3211(a)(1) or failed to utterly refute the plaintiff's allegations and conclusively establish a defense as a matter of law”]; Attias v. Costiera, 120 AD3d 1281 [2d Dept 2014] ).
CONCLUSION AND ORDER
Accordingly, it is hereby
ORDERED that the motion by the 808 Board, Broadway Eleven and Tudor Realty to dismiss the Complaint pursuant to CPLR 3211(a)(1) is denied in its entirety; and it is further,
ORDERED that counsel for plaintiff is directed to serve a copy of this Order with Notice of Entry upon all parties and the Clerk of the Central Compliance Part who is directed to schedule a Preliminary Conference in this matter.
This constitutes the Decision and Order of the Court.
Paul Wooten, J.
Response sent, thank you
Docket No: 503420/2017
Decided: April 24, 2018
Court: Supreme Court, Kings County, New York.
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