Rose Bottger, Plaintiff, v. 521 FIFTH AVENUE PROPERTY INVESTORS IV LLC 1278 1284 FIRST AVENUE REALTY LLC (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 005) 85, 86, 87, 88, 89, 90, 91, 92, 93, 99, 100, 101 were read on this motion to/for JUDGMENT - SUMMARY.

In March 2022, plaintiff Rose Bottger ("plaintiff") commenced this premises liability action against defendants Urban Outfitters, Inc., ("Urban") 521 Fifth Avenue Property Investors IV, LLC, ("Fifth Ave") and 1278-1284 First Avenue Realty, LLC ("1278 First Ave") (collectively "defendants") arising from her slip and fall between the ground and second levels (the "Unit") located at 521 5th Avenue in New York county and state (the "Premise").

In motion sequence 005, defendant Fifth Ave moves for: (1) summary judgment and the dismissal of plaintiff's complaint pursuant to CPLR 3212, (2) for alternate relief under CPLR 3025 (b) for leave to amend its answer to assert crossclaims against Urban for common law and contractual indemnification and contribution and (3) upon leave, for summary judgment against Urban for same. Plaintiff opposes the motion insofar as asserted against her claims. For the following reasons the motion is granted in part.

BACKGROUND

In December 2021 plaintiff allegedly fell after she "stepped off into space" from a riser step on the first floor inside Urban's Unit. (See NYSCEF doc. no. 87 at 45, Exhibit A, January 11, 2023 deposition of Rose Bottger, "Bottger dep.") Her complaint alleges that the defendants negligently maintained the Unit. At the time of the accident, Urban occupied the Unit under a 15-year commercial lease with the former property owner (and non-party) Green 521 Fifth Avenue, LLC ("Green 521"), a lease that Fifth Ave later assumed. (See NYSCEF doc. no. 90, Exhibit D, "Lease.")

The preexisting Lease required Urban to maintain the interior and non-structural portions of the Unit such as water, air, and electric utility systems. (Id.) Fifth Ave had the right to enter the Unit to make structural repairs, alternations, and additions. (Lease at 17, 51.) The area where plaintiff fell was covered with long brown wooden plank flooring that resembled a boardwalk. Urban installed the flooring with Green 521's approval. (Lease at 33.) As will be discussed below, the parties dispute whether Fifth Ave was required to maintain the riser step. In support of its motion, Fifth Ave argues that it is an out-of-possession landlord with no duty to maintain the riser step, that it was unaware of the hazard, and that it had no contractual obligation to maintain the riser step. (See generally NYSCEF doc. no. 86, "Fifth Ave memo in support.") It relies on the deposition testimony of Anthony Freer ("Freer") and Sui-Hang Wong ("Wong"). Freer was Fifth Ave's general manager at the time of the incident. He testified that Fifth Ave's maintenance duties were limited to the common portions of the building, otherwise known as the "base building" and that he would only enter the Unit if the issue related to structural systems connected to the base building such as plumbing, water, or electric. (NYSCEF doc. no. 88 at 57-58, 61-64, Exhibit B, January 19, 2023 deposition of Anthony Freer, "Freer dep.") He also testified that neither he nor his staff were aware of any hazards inside the Unit and that he received no complaints about anyone falling inside the Unit. (Id. at 70,).

Wong worked in the Unit as Urban's assistant manager since the Fall of 2019 and testified that Urban installed the flooring fixture, that its display artist put orange anti-slip tape along the edge of the riser step to alert patrons, that it replaced the tape as it wore over time, and that Urban installed a ramp near the riser step as an alternative path but had no signage posted to alert patrons of the riser step. (NYSCEF doc. no. 89 at 24-31, Exhibit C, January 19, 2023 deposition of Siu-Ha Wong, "Wong dep.") Wong was also unaware of anyone falling off of the riser step. (Id. at 81.) Fifth Ave also relies on the Lease and Freer's testimony to argue that it was only contractually required to maintain the base building and structural systems of the Unit and that it never assumed or controlled any of Urban's duties to maintain the riser step or the interior of the Unit. (See Lease; Freer dep. at 90.)

Fifth Ave's request for alternative relief seeks leave to amend its answer to include cross claims against Urban for contractual indemnification and common law indemnification and contribution, though its proposed amended answer is not redlined and does not clearly demarcate the amended provisions. If granted, it then seeks summary judgment on same, (NYSCEF doc. no. 91, Exhibit E, "proposed amended answer.") It argues (unopposed) that under section 16 of the lease, titled "Indemnification; Waiver of Subrogation", subsection (a), Urban is required to indemnify it from claims arising out of the Unit based on Urban's negligence. (Lease at 31.) Fifth Ave's arguments for common law indemnification and contribution are similarly premised on Urban's alleged sole negligence. (Id.)

Plaintiff, through her attorney's affirmation, only opposes Fifth Ave's summary judgment application as to liability. She contends that Fifth Ave is an in-possession landlord because (1) it exercised control over the Unit and (2) is contractually required to maintain portions of the building. (NYSCEF doc. no. 99, "Plaintiff opposition affirm.") Lastly, she contends that because Fifth Ave reserved the right to enter and inspect the Unit it is subject to an exception that holds out-of-possession landlords responsible for negligence when it involves structural defects that violate safety statute. Further to this, she references the unsworn engineering report authored by Robert Fuchs ("Fuchs") marked as trial exhibit on NYSCEF. (NYSCEF doc. nos. 94, Exhibit A, Expert Engineer Report of Robert T. Fuchs, "engineer report.") Fuchs opines that the riser step is a structural defect that violates several safety statutes and that Fifth Ave had a duty to maintain it. (Id.) In reply, Fifth Ave reasserts its initial arguments, replies that plaintiff's factual and contractual rebuttals are unsupported by the record, and that the Fuchs' engineer report is unsworn, and thus cannot be considered in opposition to its motion because same is inadmissible hearsay. (NYSCEF doc. no. 101, "Fifth Ave reply.")

DISCUSSION

To prevail on a motion for summary judgment a movant must make a prima facie showing of entitlement, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact. (Zuckerman v City of NY, 49 NY2d 557 [1980]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986].) If the moving party meets its burden, the burden shifts to the party opposing the motion to show, by admissible evidence, the existence of a factual issue requiring a trial of the action. (Jacobsen v New York City Health and Hospitals Corp., 22 NY3d 824, 988 [2014]; Vega v Reslani Construction Corp., 18 NY3d 499, 503 [2012].) Since summary judgment is an extreme remedy, the Court must draw all reasonable inferences in favor of the non-moving party. (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012].) Where there is doubt as to the existence of material facts or where different conclusions can reasonably be drawn from the evidence, summary judgment should be denied. (Udoh v Inwood Gardens, Inc., 70 AD3d 563, 565 [1st Dept 2010].)

An out-of-possession landlord is typically not responsible for negligence arising from the condition of its property unless they are either contractually required to make repairs or maintain the premises or have a contractual right to reenter, inspect, and perform repairs at the tenant's expense. (Quing Sui Li v 37-65 LLC, 114 AD3d 538, 539 [1st Dept 2014] citing Johnson v Urena Serv. Ctr., 227 AD2d 325, 326, [1st Dept 1996], lv denied 88 NY2d 814 [1996].) In such cases, liability may arise where there is a significant structural or design defect that violates a specific statutory safety provision. (Id.)

The Court finds that the testimonial and documentary evidence shows Fifth Ave's prima facie burden that it is an out-of-possession landlord with no contractual duty to maintain the riser steps. The lease required Urban to maintain and repair the interior area where plaintiff fell. Wong's testimony about Urban's routine use of orange tape along the edge of same to alert patrons of the change in elevation and Urban's use of a ramp near the riser step is consistent with Urban's obligation under the lease. And Freer's testimony shows that Fifth Ave did not assume any of Urban's contractual obligations inside the Unit or exercise control over same outside of its contractual duty to maintain the base building. Similarly, no language in the preexisting lease expressly requires that Fifth Ave maintain the area where plaintiff fell or makes mention of the riser step as a structural portion of the Unit that Fifth Ave had to maintain.

Conversely, plaintiff fails to raise triable issues of fact as to any of Fifth Ave's prima facie showing or that any exception precludes summary judgment. As to control of the Unit, she points to Ritto v Goldberg, 27 NY2d 887 (1970) for the general proposition that the question of whether Fifth Ave controlled the Unit is a question for the jury. But Ritto involves the reversal of a trial verdict that was based on an incomplete trial record, not because the issue of control was ill-suited for a summary judgment motion. Thus, while Ritto certainly controls what should be submitted to a trial jury, it does not stand for the principle that the question of whether a landlord controlled a leased premises is exclusively reserved for a jury, as plaintiff suggests. Next, plaintiff contends that Fifth Ave controlled the building by virtue of its contractual obligation to maintain the areas designated as the base building. This is unavailing. Of the terms that she quotes from the lease, none support her claim that Fifth Ave was contractually required to maintain the riser step, nor does it contradict Freer or Wong's testimony that Urban maintained the rise step or any other portions of the lease that required Urban to maintain the Unit's interior.

Lastly, plaintiff correctly contends that because it is undisputed that the lease provides Fifth Ave with the right to reenter the Unit, it may be liable if the riser step is structurally defective and violates safety statute. Plaintiff relies exclusively on Fuchs' engineering report to advance this argument. Indeed, Fuchs' report analyzes the height of the riser step, testimony on how plaintiff fell, relevant safety statutes, and he writes that the riser step is a defective structure that violates at least two safety statutes. (Id.) But, as Fifth Ave correctly points out, Fuchs' engineering report is unsworn and inadmissible as hearsay. (Gonzalez v 1225 Ogden Deli Grocery Corp., 158 AD3d 582 [1st Dept 2018] [finding that unsworn statements are inadmissible hearsay].) And while a court may consider hearsay evidence in opposition to a motion for summary judgment, it must not be the sole basis of the nonmovant's opposition. (Id. 158 AD3d at 584 citing Narvaez v NYRAC, 290 A2d 400 [1st Dept 2002] [holding that inadmissible statement unaccompanied by other supporting evidence insufficient to raise a question of fact to defeat summary judgment].) That is the precise scenario here. Here, Fuchs' unsworn engineering report—to the extent that it can be considered as attached to his opposition— is the sole basis for plaintiff's contention that the riser step is structurally defective and violates safety statues. This alone, is insufficient to raise a question of fact to defeat Fifth Ave's motion for summary judgment.

Accordingly, it appearing to the Court that Fifth Ave has met its prima facie burden as to liability and there being facts within the record that raise an issue or triable fact, is hereby,

ORDERED that defendant 521 Fifth Avenue Property Investors IV's motion for summary judgment pursuant to CPLR 3212 for the dismissal of plaintiff's complaint is granted; and it is further

ORDERED that defendant 521 Fifth Avenue Property Investors IV's motion to amend its answer pursuant to CPLR 3025 (b) to include cross claims for contractual indemnification and common law indemnification/ contribution against codefendant Urban Outfitters Inc., is moot; and it is further

ORDERED that defendant Fifth Avenue Property Investors IV's motion for summary judgment pursuant to CPLR 3212 as to its cross claims against codefendant Urban Outfitters Inc., for contractual indemnification and common law indemnification/ contribution is denied as moot pursuant the Court's grant of summary judgment as to liability; and it is further

ORDERED that within ten (10) days of the entry of this order defendant Fifth Avenue Property Investors IV shall serve a copy of same with notice of entry on all parties in this action by notice of entry on NYSCEF.

This constitutes the Decision and Order of the Court.

DATE 7/6/2026

DAKOTA D. RAMSEUR, J.S.C.

Dakota D. Ramseur, J.