SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
February 9, 2012
SAFIJA CUCAJ AND ESHRAJ CUCAJ,
PARAMOUNT FEE, L.P.,
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered January 14, 2010.
Cucaj v Paramount Fee, L.P.
Decided on February 9, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., PESCE and RIOS, JJ
The order denied defendant's motion to dismiss the complaint.
ORDERED that the order is affirmed, without costs.
In this action to recover damages for personal injuries, plaintiffs alleged in their complaint that defendant was the owner of the premises located at 1501 Broadway, New York, New York, and that Safija Cucaj sustained personal injuries when an office door located at said premises fell on her. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7).
In support of the motion, defendant submitted an attorney's affirmation alleging that defendant was an out-of-possession owner of the premises and submitted, among other things, a copy of a 1968 "ground lease," which contained a provision granting the lessor a right of re-entry to maintain and repair the premises. The Civil Court denied defendant's motion to dismiss the complaint.
"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v City of New York, 9 NY3d 825, 827  [internal quotation marks omitted]). Where evidentiary material is submitted on a motion to dismiss, pursuant to CPLR 3211 (a) (7), it may be considered in assessing the viability of a complaint, but unless the defendant demonstrates, without significant dispute, that a material fact alleged in the complaint is not a fact at all, the motion will not be granted (see 1911 Richmond Ave. Assoc., LLC v G.L.G. Capital, LLC, 60 AD3d 1021, 1022 ; Quesada v Global Land, Inc., 35 AD3d 575 ). Even when a defendant submits an affidavit in support of a CPLR 3211 (a) (7) motion to dismiss, the motion will not be granted unless it is established conclusively that the plaintiff has no cause of action (see Sokol v Leader, 74 AD3d 1180, 1182 ; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 493 ).
Under this standard, we are of the opinion that defendant's contention regarding the sufficiency of the complaint is without merit. To the extent that defendant's attorney's affirmation alleges that defendant is an out-of-possession owner, defendant's attorney has not established that he has personal knowledge of the facts, and the "ground lease" submitted in support of the motion does not conclusively establish that defendant cannot be held liable to plaintiffs (see 1911 Richmond Ave. Assoc., LLC, 60 AD3d at 1022; Alsol Enters., Ltd., 11 AD3d at 494).
Accordingly, the order is affirmed.
Pesce and Rios, JJ., concur.
Weston, J.P., dissents in a separate memorandum. SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT WESTON, J.P., PESCE and RIOS, JJ.
SAFIJA CUCAJ and ESHRAJ CUCAJ, Respondents, v. NO. 2010-2508 K C DECIDED PARAMOUNT FEE, L.P., Appellant.
Weston, J.P., dissents and votes to reverse the order and grant defendant's motion to dismiss the complaint, in the following memorandum:
Accepting the facts alleged in the complaint as true, I cannot agree that plaintiffs adequately stated a cause of action. In my opinion, defendant's submission of the ground lease was sufficient to establish that defendant was an out-of-possession owner with a right of entry and, thus, chargeable with notice only if the defect was a significant structural or design defect which violated a specific statutory provision.[FN1] Since the pleadings fail to allege any relevant statutory violations, I vote to reverse the Civil Court's order and grant defendant's motion to dismiss the complaint.
An out-of-possession owner is generally "not liable for personal injuries sustained on the premises unless the owner . . . retains control of the property or is contractually obligated to repair or maintain the premises" (Thompson v Port Auth. of NY & N.J., 305 AD2d 581, 581-582 ). Where an out-of-possession owner has reserved a right under the lease to enter the premises for the purpose of inspection and repair, the owner may be charged with constructive notice of a defective condition, "provided a specific statutory violation exists and there is a significant structural or design defect" (id. at 582).
"[O]nly a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord" (Velazquez v Tyler Graphics, 214 AD2d 489, 489 ).
Here, plaintiffs withdrew their statutory claims that defendant had violated certain provisions of the Building Code and failed to allege the existence of any significant structural or design defect which violated a statutory duty to repair (see Eckers v Suede, 294 AD2d 533 ; Briggs v Country Wide Realty Equities, 276 AD2d 456 ). To the extent the Civil Court found plaintiffs' Labor Law § 200 claim sufficient to establish a violation, I disagree. Labor Law § 200 is a general provision which codifies "the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352  [emphasis added]). Since it is undisputed that the premises at issue was not a construction site, the Civil Court improperly relied on Labor Law § 200 to find a statutory violation sufficient to support a cause of action. In any event, an improperly secured glass door, as alleged here, is not a significant structural defect for which an out-of-possession landlord may be held liable (see Angwin v SRF Partnership, 285 AD2d 570  [improperly secured magnetic lock mounted above door frame not a significant structural defect]; Morrone v Chelnik Parking Corp., 268 AD2d 268  [tilted drain cover not a significant structural defect]).
Even if plaintiffs had alleged a significant structural defect in violation of a statute, the Civil Court improperly concluded that plaintiffs' allegations also supported a finding of constructive notice. To constitute constructive notice, the defect must be visible and apparent, and must have existed for a sufficient length of time prior to the accident to allow the owner to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836 ). Assuming plaintiffs' allegations to be true, proof that the same door struck another employee more than five years earlier is insufficient, as a matter of law, to charge defendant with constructive notice.
Accordingly, I vote to reverse Civil Court's order and grant defendant's motion to dismiss the complaint. Decision Date: February 09, 2012 Footnotes Footnote 1: It should be noted that the Civil Court, invoking the law of the case doctrine, relied on another court's decision to determine defendant's status as an out-of-possession landlord with the right to re-enter.
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