SANDRA J. REQUA, Plaintiff,
APPLE INC., BOSTON PROPERTIES INC., BOSTON PROPERTIES LLC, BOSTON PROPERTIES LIMITED PARTNERSHIP, BOSTON PROPERTIES INC d/b/a BOSTON PROPERTIES LIMITED PARTNERSHIP, 767 FIFTH PARTNERS LLC and MOED DE ARMAS & SHANNON ARCHITECTS P.C., Defendants. BOSTON PROPERTIES INC., BOSTON PROPERTIES LLC, BOSTON PROPERTIES LIMITED PARTNERSHIP, BOSTON PROPERTIES INC d/b/a BOSTON PROPERTIES LIMITED PARTNERSHIP and 767 FIFTH PARTNERS LLC, Third-Party Plaintiffs,
GENSLER, Third-Party Defendant. Index No. 106792/2010
HON. CYNTHIA S. KERN, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:________________________
Notice of Motion and Affidavits Annexed..................................
Plaintiff Sandra Requa commenced the instant action to recover damages for personal injuries she allegedly sustained when she fell outside the Apple store on Fifth Avenue. Defendant Apple Inc. ("Apple") now moves for an order pursuant to CPLR § 3212 granting it summary judgment. Defendants and third-party plaintiffs Boston Properties, Inc., Boston Properties, LLC, Boston Properties Limited Partnership, Boston Properties, Inc. s/h/a Boston Properties Inc. d/b/a Boston Properties Limited Partnership and 767 Fifth Partners LLC (collectively referred to herein as "Boston Properties") have cross-moved for an order pursuant to CPLR § 3126 striking Apple's answer and cross claims, pursuant to CPLR § 3124 compelling Apple to produce Jason Barlia for a deposition and pursuant to CPLR § 3214(b) lifting the say on discovery in place pending Apple's summary judgment motion. For the reasons set forth below, Apple's motion is granted and Boston Properties cross-motion is denied as moot.
The relevant facts are as follows. On or about December 8, 2009, plaintiff exited and fell outside the Apple store located at 767 Fifth Avenue in New York City. Apple's retail space at this location has a distinct clear glass cube (the "Cube") sitting atop the outdoor plaza (the "Plaza"). The Cube serves as the entrance to Apple's store, which is underneath the Plaza. In 2009, when the accident occurred, the pavers immediately surrounding the Cube were six inches lower than the level of the surrounding Plaza (the "Recessed Area"), as if the Cube were surrounded by a moat. The Cube and the Plaza were connected by a metal grate placed across the Recessed Area that provided a walkaway between the Plaza and the doors of the Cube (the "Bridge"). On the day the accident at issue herein occurred, plaintiff exited the Apple store, crossed the Bridge and claims to have lost her footing at the edge of the Recessed Area, where she fell and injured herself.
Apple entered into a lease for the property in 2005 (the "2005 Lease"). Apple's leased premises are described in the 2005 Lease as "the space on the . . . plaza level, of the Building including the Cube to be erected thereon ...." Apple did not lease or own either the Plaza or the Recessed Area. Pursuant to the 2005 Lease, the landlord, now Boston Properties, had the duty to "maintain the plaza in good condition and repair." Any improvements to the Plaza were to be made by the landlord but the 2005 Lease provided that the improvements "be presented to Apple for review" and "[a]ny outstanding design differences between the two parties [to] be discussed by [landlord] and Apple CEO, Steve Jobs."
The court first turns to Apple's motion for summary judgment. On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hasp., 68 N.Y.2d 320, 324 (1986). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim." Id.
In the instant action, Apple has established its prima facie right to summary judgment as it has shown that it owed no duty to plaintiff. In order for a defendant to be held liable for negligence, the plaintiff must establish that the defendant owes some duty of care to the plaintiff. See Pulka v. Edelman, 40 N.Y.2d 781 (1976); see also Palsgraf v. Long Is. R. R. Co., 248 N.Y. 339, 342 (1928). "[A]bsent such duty, as we have said before, there can be no breach of duty, and without breach of duty there can be no liability." Kimbar v. Estis, 1 N.Y.2d 399, 405 (1956). As a general matter, an owner owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises. Galindo v. Town of Clarkstown,
2 N.Y.3d 633, 636 (2004). However, courts recognize two exceptions to the general rule: (1) when an owner affirmatively created or contributed to the defective area; or (2) when an owner made special use of the defective area. See id; Kaufman v. Silver, 90 N.Y.2d 204 (1997); Vrabel v. City of New York, 308 A.D.2d 443 (2nd Dept 2003).
Here, the evidence presented by Apple demonstrates that it neither created nor controlled the Recessed Area where plaintiff was injured. The original design for the area surrounding the Cube called for a flat profile with no drop down in elevation. However, at the end of 2004 the New York City Planning Commission ("CPC") wanted the Plaza to "respond" in some way to the Cube, so defendant architect Moed De Armas & Shannon Architects, P.C. ("Moed") redesigned the Plaza to include the Recessed Area around the Cube. Thus, it was Moed that designed the Recessed Area, not Apple. Furthermore, the 2005 Lease clearly states that the Recessed Area is the "Landlord's Work" and it was built by contractors hired by the landlord. Defendants' argument that Apple's undisputed coordination in the design process demonstrates that it helped create the Recessed Area is without merit. It is immaterial that ...