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RODRIGUEZ v. AMERICAN RESTAURANT VENTURES

May 1, 1996

LOUIS RODRIGUEZ and NANCY RODRIGUEZ, Plaintiffs, against AMERICAN RESTAURANT VENTURES, INC., d/b/a POSA POSA RESTAURANT AND PIZZERIA and AMERICAN CONTINENTAL PROPERTIES, INC., Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 On September 22, 1994, plaintiffs Louis and Nancy Rodriguez filed this action against defendants American Restaurant Ventures, Inc. d/b/a/ Posa Posa Restaurant and Pizzeria ("Posa Posa") and American Continental Properties, Inc. ("ACP"). Both defendants have moved for summary judgment. For the reasons set forth below, Posa Posa's motion is granted, and ACP's motion is denied.

 BACKGROUND

 Defendant Posa Posa operates a restaurant located in Rockland Center Mall. On March 24, 1992, Louis and Nancy Rodriguez ate dinner at the restaurant. Afterwards, they left the restaurant and crossed a brick sidewalk, which runs along the front of the mall's stores, to two steps leading down to the mall's parking lot. The sidewalk is covered by an overhanging roof that is supported by square brick pillars. One of the brick pillars abuts one side of the steps. Louis Rodriguez slipped and fell on the top step, injuring his left leg.

 Plaintiffs testified that as they were waiting for the ambulance to arrive, they noticed some water and a thin layer of ice on the top step. See Transcript of Deposition of Louis Rodriguez and Nancy Rodriguez, dated Sept. 22, 1995, at 43-45, 107-09, attached as Exhibit G to Affidavit of Steven I. Milligram, dated Nov. 7, 1995. Louis Rodriguez testified that the face of the pillar was wet. See id., at 46-47. Nancy Rodriguez stated that as she sat on the second step, she felt water drip onto her a few times, although she was not sure where it came from. See id., at 111-12. The weather was clear that evening; the most recent snowfall had ended at 9 a.m. the day before. Plaintiffs testified that the sidewalk and parking areas were clear of snow and ice, as was a different set of steps that they used on their way into the restaurant. See id., at 22-23, 32, 46, 94, 97, 99.

 Rockland Center Mall is owned by Rockland Center Associates and operated by ACP. Posa Posa leases the restaurant's premises from Rockland Center Associates. The lease agreement provides that Rockland Center Associates "shall operate, manage, . . . repair and maintain the Common Areas . . ." and "shall have the right to prescribe reasonable rules and regulations for the use of the Common Areas . . . ." Exhibit F, at § 4.01, attached to Milligram Aff. The common areas include walkways and sidewalks. See id., at § 4.04. The mall's rules and regulations provide that Posa Posa shall keep "the outside areas immediately adjoining the premises . . . clean and free from snow, ice, dirt and rubbish . . . ." Exhibit E, at P 7, attached to Affidavit of Arthur J. Ferraro, dated Dec. 18, 1995.

 The testimony of Jim Jacob, an ACP employee who serves as the site manager at the mall, and of John Mandara, Posa Posa's manager, establishes that sanding, salting and shoveling the sidewalks, walkways and steps is the responsibility of Jacob, rather than of the storeowners. See Transcript of Deposition of James M. Jacob, dated Sept. 22, 1995, at 34-36, attached as Exhibit E to Milligram Aff.; Transcript of Deposition of John Mandara, dated Sept. 22, 1995, at 36, 38-39, attached as Exhibit D to Ferraro Aff. Mandara testified that if anyone noticed that the sidewalk and steps were icy, Posa Posa employees would sometimes throw kitchen salt on that area "until [Jacob] can come by and take care of it." Mandara Dep. at 36, 46-47, 61. Posa Posa employees never shoveled snow or sanded the sidewalk or steps. See id., at 36. On March 24, 1992, the steps had not been salted or sanded.

 Plaintiff Louis Rodriguez has asserted claims for negligence against ACP and Posa Posa, and plaintiff Nancy Rodriguez has asserted claims for loss of consortium against both defendants. Posa Posa and ACP have asserted crossclaims against one another. Both defendants have moved for summary judgment dismissing the claims and crossclaims against them.

 DISCUSSION

 Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one that "might affect the outcome of the suit under the governing law . . . ." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). No genuine issue for trial exists unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict for that party. See id., at 248-49. In evaluating a motion for summary judgment, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id., at 255.

 I. Posa Posa's Motion

 Under New York law, an owner or tenant in possession of real property owes a duty of reasonable care to maintain the property in a safe condition. See Abdul-Azim v. RDC Commercial Center, Inc., 210 A.D.2d 191, 620 N.Y.S.2d 70, 71 (App. Div. 1994); McGill v. Caldors, Inc., 135 A.D.2d 1041, 522 N.Y.S.2d 976, 977 (App. Div. 1987). "Liability for a dangerous condition on property is predicated upon ownership, occupancy, control, or special use of the property." Millman v. Citibank, N.A., 627 N.Y.S.2d 451, 452 (App. Div. 1995); see also Abdul-Azim, 620 N.Y.S.2d at 71 ("The determinative issue is one of possession and control." (citations omitted)). There is no doubt that Posa Posa did not own, occupy or make special use of the steps on which Louis Rodriguez fell. Plaintiffs assert, however, that a question of fact exists regarding whether Posa Posa exercised control over the steps. We disagree.

 The lease agreement between Posa Posa and Rockland Center Associates clearly and unambiguously provides that responsibility for maintaining the common areas of the mall, including the steps, lies with the mall. See Exhibit F, at §§ 4.01, 4.04, attached to Milligram Aff. Given this circumstance and in the absence of other evidence that Posa Posa had possession or control of ...


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