“Much Ado About [Almost] Nothing”

De Minimis Non Curat Lex: The law does not concern itself with trifles.

Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 2012 NY Slip Op 01321 (Court of Appeals of New York February 21, 2012)

The Court of Appeals summarized the questions presented:

In this appeal, we are asked to consider whether a minimal and inconsequential retaking of space that has been leased to a commercial tenant constitutes an actual partial eviction relieving the tenant from all obligation to pay rent. We conclude, under the circumstances of this case, where such interference by a landlord is small and has no demonstrable effect on the tenant’s use and enjoyment of the space, total rent abatement is not warranted.

The facts:

In February 1998, plaintiff Eastside Exhibition Corp. entered into a lease with defendant 210 East 86th Street Corp. to occupy two floors in defendant’s seven story retail and office building to operate a multiplex movie theater with 1,150 seats and four screens. The lease ran from March 1, 1998 to December 16, 2016. Article 13 of the lease permits the landlord to enter the demised premises to make repairs and improvements and provides that there be no abatement of rent during the time such work is in progress. Article 4 of the lease provides that there be no allowance to the tenant for the diminution of rental value arising from the making of any repairs or improvements.

More than nine years ago, in December 2002, defendant landlord, without giving notice to or receiving permission from plaintiff, entered the demised premises and installed cross-bracing between two existing steel support columns on both of plaintiff’s leased floors causing a change in the flow of patron foot traffic on the first floor and a slight diminution of the second floor waiting area. The concededly unaesthetic cross-bracing was placed in preparation for the addition of two additional floors to the building. Plaintiff ceased paying rent as a remedy for the alleged actual partial eviction and commenced this action, seeking a permanent injunction barring defendant from doing any further work in the premises and directing defendant to remove the cross-bracing. Plaintiff also sought an abatement of its rent obligation [FN1]. Supreme Court granted plaintiff a temporary restraining order on any further work by defendant and also ordered defendant to expeditiously complete the current work. Subsequently, a nonjury trial was held to determine whether the cross-bracing constituted an actual partial eviction so as to allow for the complete abatement of rent. At trial, the parties stipulated that the total area of the premises was between 15,000 and 19,000 square feet and that the cross-bracing occupied approximately 12 square feet.

The decision in Supreme Court:

Supreme Court, as relevant here, dismissed plaintiff’s claim and entered judgment for defendant for unpaid rent. In its decision, the court stated that although the lease did not grant the landlord the right to permanently deprive the tenant of any portion of the demised premises and that such a deprivation will normally result in “liability for all rent [being] suspended although the tenant remains in possession of the portion of the premises from which he was not evicted” (quoting Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]), here, the taking of 12 square feet of non-essential space in plaintiff’s lobby constituted a de minimis taking not justifying a full rent abatement.

And the Appellate Division:

The Appellate Division modified on the law, holding that there is no de minimis exception to the rule that any unauthorized taking of the demised premises by the landlord constitutes an actual…However, the court declined to award plaintiff a full rent abatement, stating that “current landlord/tenant realities [make it] particularly untoward automatically to apply harsh and oppressive strictures derived from feudal law that mirror the policies and concerns of that earlier society” and that in light of that, the remedy is to compensate plaintiff for its actual damages…The Appellate Division remanded the matter to Supreme Court for a hearing to determine actual damages[.]

And the proceedings on damages:

The hearing on damages was held three years later. Plaintiff proffered two witnesses, who were unable or unwilling to estimate actual damages, essentially testifying that damages were impossible to determine given the significant number of variables in the motion picture theater industry. After the hearing, Supreme Court found that plaintiff failed to establish any damages and made no award to plaintiff. The Appellate Division affirmed, declining to revisit legal issues as it felt bound by the law of the case as earlier expressed in the first Appellate Division order…We granted plaintiff leave to appeal…and now affirm on different grounds.

The Court of Appeals summarized the applicable law:

It is well settled that the withholding of the entire amount of rent is the proper remedy when there has been a partial eviction by a landlord…suspends the obligation of payment…because it involves a failure of the consideration for which rent is paid…If such an eviction, though partial only, is the act of the landlord, it suspends the entire rent because the landlord is not permitted to apportion his own wrong”]).  “The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord; and thus the consideration of his agreement to pay rent has failed”…This is true even if a tenant remains in possession of the premises…This remedy of total abatement of rent for an actual partial eviction is one of very long standing in New York…and we do not, herein, jettison or overrule it as stated by the dissent[.]

The question we now address is whether there can be an intrusion on the demised premises that is of such trifling amount that imposition of the draconian remedy of total rent abatement is unjustified. We made it clear in Lounsbery v. Snyder…that not every intrusion amounts to an eviction which warrants a full rent abatement and damages are an appropriate remedy when there has been no substantial interference with the use of the premises. We further stated “[i]f it were necessary, [one] might properly invoke the application of the familiar maxim, ‘de minimis non curat lex’” (the law does not concern itself with trifles)[.]

Plaintiff’s contentions:

Plaintiff would like us to adopt an all or nothing rule that would allow for full rent abatement. However, applying the principle that a “landlord is not permitted to apportion his own wrong”…and a rule that any minimal intrusion warrants a total abatement to a case such as this, involving only a trivial taking, “has little but age and inertia to recommend it”…Scholars have criticized an all or nothing rule noting that it is “more talismanic than rational”[.]

Concluding that:

Given the inherent inequity of a full rent abatement under the circumstances presented here and modern realities that a commercial lessee is free to negotiate appropriate lease terms, we see no need to apply a rule, derived from feudal concepts, that any intrusion no matter how small on the demised premises must result in full rent abatement. Rather, we recognize that there can be an intrusion so minimal that it does not prescribe such a harsh remedy. For an intrusion to be considered an actual partial eviction it must interfere in some, more than trivial, manner with the tenant’s use and enjoyment of the premises[.]

*     *     *

Thus we conclude that on the record before us plaintiff has totally failed to demonstrate any actual damages or loss of enjoyment of the premises due to the landlord’s erection of the cross-bracing occupying 12 square feet in a 15,000 to 19,000 square foot space. That the flow of foot traffic was minimally impeded and the cross-bracing was unattractive was merely a trivial interference with the tenant’s use and enjoyment of the premises. The interference by the landlord here is thus de minimis and “[n]either injunctive nor monetary relief is warranted”[.]

Saab v. CVS Caremark Corp., 2016 NY Slip Op 07763 (App. Div. 1st Dept. November 17, 2016)

The First Department, as follows, summarily described and disposed of the appeal:

Defendants established prima facie that any defect in the sidewalk that allegedly caused plaintiff to trip and fall was insignificant and that there were no surrounding circumstances that magnified the dangers it posed…They submitted plaintiff’s testimony that he could not describe the characteristics of the alleged defect or specify exactly where on the sidewalk he fell, and an affidavit by an expert who took photographs and measured the area and found no defect presenting an elevation differential of more than one quarter inch and no space between sidewalk slabs greater than one half inch. Contrary to plaintiff’s contention, the fact that the photographs were taken and the inspection performed almost two years after the accident is immaterial. Defendants submitted testimony that there had been no repairs to the sidewalk since the accident, and plaintiff does not argue that the photographs do not show the sidewalk in substantially the same condition as existed at the time of the accident.

In opposition, plaintiff failed to raise a triable issue of fact. He was unable to describe the defect, except to say that it was not wide and it was not deep, and he cites no surrounding circumstances that enhanced the danger. Nor did he offer any measurements of the alleged defects in the area of his fall in refutation of defendants’ expert’s measurements.

Atkinson v. Key Real Estate Assoc., LLC, 2016 NY Slip Op 06160 (App. Div. 1st Dept. September 27, 2016)

The First Department, as follows, once again summarily described and disposed of the appeal:

The parties agree that the height differential between the marble step and the bull-nosing on which plaintiff caught her heel, causing her to fall, was one-eighth to one-quarter of an inch.  This defect, as a matter of law, did not constitute a trap or nuisance, nor were the intrinsic characteristics or the surrounding circumstances such that they magnified the danger posed by this otherwise insignificant defect…Thus, this defect was trivial as a matter of law, and therefore nonactionable.

Myles v. Spring Val. Marketplace, LLC, 2016 NY Slip 05351 (App. Div. 1st Dept. July 5, 2016)

The Appellate Division summarized the various claims:

Plaintiff alleges that on June 7, 2011, around dusk, she tripped when the tip of her right foot hit a metal bar on the ground that formed part of a shopping cart corral in the parking lot of defendant CTS’ store, located in a shopping center owned by defendant Spring Valley Marketplace (SVM). CTS brought a third-party action against McCue, which designed and sold it the corral, seeking contribution, common-law indemnification and contractual indemnification based on claims sounding in negligence, breach of warranty, strict liability, and breach of contract.

The submissions:

The submissions on the motion establish that “the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses…McCue presented photographs taken by plaintiff’s photographer, which show that the metal bar was only three-eighths of an inch above the surface of the parking lot. Those photographs, and others in the record that were shown to plaintiff at her deposition, establish that the bar was not hidden or covered in any way and did not constitute a trap.

McCue also presented the deposition transcripts of plaintiff, CTS’ assistant manager, and McCue’s comptroller. Plaintiff testified that the tip of her foot hit the bar, but could not identify any defects in the bar or the parking lot surface. While she testified at one point that there was “bad visibility” because the bar was under the canopy, when asked if she saw the bar the moment before she tripped, she replied as follows: “It is hard to say. I was looking straight ahead to get the cart.” When asked again if she had looked at the ground, plaintiff repeated that she was “looking straight ahead” and did not remember seeing the bar.

CTS’ assistant manager testified that although there was no lighting inside the corral, there were between five and ten lampposts in the parking lot and that the corral was well lit when he inspected it shortly after the accident. He also testified that there was no space between the surface of the parking lot and the bar, and that there had been no complaints about the bar prior to plaintiff’s accident. McCue’s comptroller testified that the cart corral had been sold for more than 10 years and that he was not aware of any claims or suits.

The expert affidavit:

An expert affidavit submitted by CTS stated that the bar did not violate any safety codes, rules, or regulations, was not defectively designed, and did not present a tripping hazard. The expert stated that at the time of his August 9, 2013 visit, the bar was flush with the ground and its height was measured consistently at one-eighth of an inch above the pavement. He also stated that the bar was smooth, shiny and reflective, and its silver color contrasted sharply with the texture and color of the black, grainy surface of the parking lot, which made it conspicuous and easily observable, even at night; that the exterior weather enclosure covering the corral had clear plastic sides, which allowed the surface under the corral to be illuminated by natural light or the lampposts in the parking lot; and that the bar was located near the open entrance to the corral, which also permitted light to illuminate it. Furthermore, CTS presented the specifications for the cart corral which showed that the metal bar itself was only one-fourth of an inch in height, and that the sides of the corral were clear.

Concluding that:

In opposition, plaintiff failed to raise a triable issue of fact as to the size of the defect itself, or whether “its intrinsic characteristics or the surrounding circumstances magnif[ied] the dangers it pose[d], so that it unreasonably imperil[ed] the safety of [plaintiff]… Plaintiff’s “guess” that the height of the bar was “maybe an inch or so” off the ground is not probative and is contradicted by the specifications and the photographs in the record. Her claim that she did not see the bar due to insufficient lighting, is belied by her deposition testimony that she did not see it because she was looking straight ahead at the carts in the corral.

Plaintiff’s arguments that the motion court properly denied summary judgment dismissing the complaint as against CTS because McCue failed to argue in its moving papers below that the bar constituted a “trivial defect” and because the court had previously denied CTS’ motion for summary judgment on that specific ground are unavailing. While McCue did not make an express trivial defect argument as a grounds for dismissing the complaint as against CTS, it did seek summary judgment on the basis that, as a contractor, it did not owe a duty to plaintiff, a noncontracting third party…Since the height of the bar was a basis for the motion court’s decision, we may consider the issue on appeal. While the motion court denied CTS’ prior motion for summary judgment, the doctrine of law of the case only applies to courts of coordinate jurisdiction and is not binding on this Court (see Martin v City of Cohoes, 37 NY2d 162, 165 [1975]).

Goldstone v. Gracie Terrace Apartment Corp., 2013 NY Slip Op 05725 (App. Div., 1st Dept. August 27, 2013)

The Appellate Division summarized the claim and prior proceedings:

A cooperative shareholder suffered extensive property damage to her apartment when the 10,000-gallon water tank above her unit overflowed, causing flooding in her apartment and, thereafter, accumulations of toxic mold. The plan of renovation and repair proposed by the cooperative’s board of directors would necessitate a 50-square-foot reduction in space of the apartment’s more than 1,400 square feet. The shareholder objected to the proposal, claiming it violated the terms of the proprietary lease, and sought a preliminary injunction prohibiting the board from proceeding with its planned work. The motion court denied the application, and this appeal ensued.

Plaintiff Maro A. Goldstone has been a proprietary lessee of Penthouse B in defendant’s co-op building at 605 East 82nd Street since 1972, when she and her former husband purchased the apartment. Plaintiff Thomas R. Newman is Ms. Goldstone’s second husband and an occupant of the apartment. After the water tank overflowed and flooded plaintiffs’ apartment in August 2003, and toxic mold was subsequently discovered, defendant cooperative corporation had a contractor gut the apartment’s interior down to the cement, floors, ceilings and walls. Since then, the apartment has remained in uninhabitable condition.

Plaintiffs commenced this action in 2007, seeking damages and equitable relief based on causes of action for breach of contract, breach of the warranty of habitability, constructive and actual eviction, and a variety of torts. In 2010, this court declared that plaintiffs were entitled to a 100% abatement of maintenance from the date the water damage began until the apartment was restored to habitable condition…and in 2011 the motion court granted plaintiffs summary judgment on their claims for breach of the warranty of habitability and breach of the lease obligation to make repairs.

The submissions in Supreme Court:

In a motion made just before the present motion, defendant sought an injunction granting it access to the apartment to perform work. That motion was granted over plaintiffs’ opposition, in which they made some of the same arguments raised in the present motion.

Plaintiff Goldstone then brought the motion under consideration here, challenging defendant’s plan for the renovation of their apartment and seeking to prevent the work from proceeding. Plaintiff asserted that she and her husband gave defendant plans prepared by their architects in 2008 providing for a redesign of the exterior walls of the apartment to prevent water infiltration, and also provided bids from four qualified waterproofing contractors. However, rather than responding to that proposal, defendant had another engineer prepare plans providing for waterproofing and facade repair work for the building, including the renovation of plaintiffs’ apartment, that defendant asserted avoided the prohibitively expensive need to demolish all the exterior walls.

Plaintiff argued that defendant’s plan would decrease the size of the interior of the apartment, in violation of her rights under the proprietary lease. Specifically, plaintiff asserted that by placing insulation on the apartment’s interior, defendant’s alterations would decrease the size of the interior and alter the apartment’s configuration, because it would cause the loss of 2½ inches along every wall where the insulation was placed, which plaintiffs’ expert calculated as a total loss of 50 square feet. Plaintiff stated that this alteration would reduce the hallway to a width smaller than that required by the Building Code, and that to maintain a hallway of the necessary width, the adjoining room would have to be decreased in size, and its interior partitions reconfigured, or new interior partitions installed, with new doors. These changes would, in turn, require alterations or adjustments or replacements of plaintiffs’ storage and display units and their custom-designed kitchen countertops and built-ins.

Plaintiff relied on the foregoing assertions to contend that the reduction in the size and dimensions and the reconfiguration of the partition in the living space would violate the terms of the proprietary lease, which defines “the apartment” as “the rooms in the building as partitioned on the date of the execution of this lease . . . together with their appurtenances and fixtures and any closets, terraces, balconies, roof, or portion thereof outside of said partitioned rooms, which are allocated exclusively to the occupant of the apartment” (emphasis added).

In opposition to plaintiff’s motion, defendant did not dispute the opinions of plaintiffs’ architects. Rather, it argued that (1) plaintiff could not show a likelihood of success on the merits because the board’s decision as to how to make repairs was shielded by the business judgment rule, (2) plaintiff could not show irreparable harm because the reduction in space is de minimis (50 square feet in a more than 1,400- square-foot apartment) and could be compensated by a reduction in the maintenance charges if appropriate, and (3) the equities are balanced in defendant’s favor because plaintiff’s proposal would require the excessive alternative of demolishing the exterior walls, which would cause undue expense to all the shareholders, to whom the co-op owed a fiduciary duty.

Noting that:

Injunctive relief may only be awarded if the movant makes a clear showing of a probability of success on the merits, a danger of irreparable injury in the absence of an injunction, and that the balancing of the equities weighs in its favor[.]

Initially, we agree with plaintiff that her showing established the probable success on the merits of her claim that the repairs will constitute a breach of the proprietary lease, because defendant does not dispute the assertion by plaintiffs’ expert that the plan will create a diminution of apartment space and necessitate some reconfiguration and alterations…Defendant’s reliance on the business judgment rule…is misplaced. The rule does not shield cooperatives from liability for breaches of contract…”[W]hile it may be good business judgment to walk away from a contract, this is no defense to a breach of contract claim”…A breach of a tenant’s proprietary lease by the cooperative’s board of directors may be the best of the options open to the board, but that does not protect it from liability for that breach.

Nevertheless, we do not believe that plaintiff has made a clear showing of irreparable harm, or that the balance of the equities is in her favor. To establish irreparable harm, plaintiff relies not only on the loss of square footage, but also on the claim that the apartment will have to be reconfigured, which involves the moving of partitions and doors and will necessitate adjustments or replacements of many features of the apartment, such as built-in cabinetry. Initially, we find that any costs incurred in making alterations to built-in cabinetry or replacing structural items or components of the apartment or in addressing any other difficulties that are engendered by any necessary adjustments are largely compensable in money damages.

With the admonition that:

Beyond that, while we recognize that the anticipated diminution of square footage alone constitutes an injury, we agree with the motion court that in itself the injury is de minimis insofar as a claim of irreparable harm is made…Nevertheless, an alteration to residential quarters may be so minor that even though the tenant may be entitled to some form of compensation, a finding of irreparable harm is not warranted. Cases in which interference was sufficient to justify either injunctive relief or orders preventing the work from proceeding…do not preclude the possibility that interference in other circumstances may be so minimal as to fail to justify injunctive relief. Plaintiff failed to make a clear showing that the possible square footage reduction, a small fraction of the total footprint of the apartment, was more than de minimis. This conclusion, however, does not preclude compensation by other means.

Moreover, the balance of the equities does not weigh in plaintiff’s favor. Although plaintiff proposed an alternative method of performing the work on the exterior, she failed to respond to defendant’s assertion that this method would entail substantial extra expenses that defendant was under a fiduciary duty to avoid imposing on the other cooperative shareholders…The claimed impact to plaintiff of the planned modifications to her apartment, most of which will be compensable based on plaintiffs’ breach of contract theory, is far outweighed by the expense to the co-op of demolishing and rebuilding exterior walls, especially when those walls have already been repaired and treated for waterproofing.

Sanford v. Delta Air Lines, 2016 NY Slip Op 50790(U) (Appellate Term, 2nd Dept.  May 12, 2016)

The Court summarized the claim and prior proceeding:

In this action to recover for injuries sustained when plaintiff fell as she stepped off a curb outside defendant’s airline terminal, the complaint alleges that the curb was defective and that the surrounding area was unsafe. Defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff’s testimony:

Plaintiff testified at her deposition that the curb that she fell over “was high,” which she estimated to be “4, 5 inches higher” than other curbs, and that she “couldn’t see” as it was “dark” and there were no artificial lights on. Plaintiff’s witness testified at his deposition that there were light fixtures illuminating the general area of the terminal at the time of the incident but they were only dimly lit, and the light fixtures at the precise location under the overpass where plaintiff fell were not lit at all.

Concluding that:

Upon a review of the record, we conclude that the Civil Court did not improvidently exercise its discretion in denying defendant’s motion. Whether a dangerous or defective condition exists so as to impose liability against a defendant depends, in the case of an alleged height differential of a curb, upon, among other things, the depth and elevation of the curb, the type of irregularity and its appearance, and the time, place, and circumstances of the injury…We find that defendant’s motion failed to establish, as a matter of law, that the alleged defect was too trivial to be actionable…Moreover, we note that inadequate lighting is a circumstance that may create liability even where a defect is otherwise considered to be trivial[.]

Getz Plaza Corp. v. Staten Is. WG, LLC, 2014 NY Slip Op 51721(U) [Civ. Ct., Richmond Co., December 4, 2014]

The Court outlined the nature of the proceeding and the pending motion:

Petitioner, Getz Plaza Corp., commenced this commercial summary proceeding against the respondents, Staten Island WG, LLC (WG), Massi SI LLC (Massi), Noddle Development Company (Noodle) and Walgreen Inc. (Walgreen), alleging that the respondents’ tenancy was terminated when they failed to cure a default under the terms of the lease. All sides are represented by counsel.

*     *     *

Currently before the court is a motion for summary judgment by Massi pursuant to CPLR §3212 to dismiss the proceeding. Petitioner opposed that motion. Petitioner filed a cross-motion for summary judgment granting it a judgment of possession. Respondent Massi opposed that motion. None of the other parties have submitted papers in regard to either motion. Additional motions between petitioner and respondents other than Massi were withdrawn.

Summarized the facts:

On August 1, 2003, Getz, as landlord, entered into a Ground Lease with WG, as tenant, for a term that terminates on July 31, 2052. Massi is the assignee of the round lessee of the Getz Ground Lease with WG, while Walgreen is now the subtenant of Massi. WG and Walgreen entered into a written lease for a building to be erected by WG at the site set forth in the Ground Lease. The Building Lease also terminates on July 31, 2052 and provided for monthly rent payment of $24,583.33 above the monthly rent in the Ground Lease. This figure remains constant for the entire fifty year term of the Building Lease. The Building Lease also provides for additional rent payments based on gross sales at the store.

On March 17, 2014, petitioner caused to be issued a Thirty Day Notice to Cure by “April 30, 2014 or thirty (30) days after your receipt of this Notice, which ever is later”. This notice alleges that the respondents were in breach of paragraph 7 of the Ground Lease having failed to pay water and sewer charges as required by that agreement. Service of the Notice was completed on March 31, 2014 when an additional copy was mailed to the respondents.

On May 1, 2014, petitioner caused to be issued a Ten Day Notice of Termination informing respondents that the Ground Lease would terminate on May 15, 2014 for failure to cure the default by the April 30, 2014 date set forth in the March 17, 2014 notice. Service of the Ten Day Notice was completed by mailing an additional copy on May 5, 2014.

The subsequent developments:

Petitioner’s notice of petition and petition dated May 16, 2014 were filed with the clerk of the court on May 22, 2014.

Respondent Massi had caused to be issued a check from to the NYC Water Board on May 8, 2014 in the amount of $8,594.82. The check was credited to the account on May 15, 2014. Which means that the default had been cured prior to the litigation being commenced and the check had been issued and credited to the respondent’s account with the NYC Water Board prior to the date petitioner set for termination of tenancy, May 15, 2014.

Petitioner commenced this proceeding alleging that the respondents failed to pay $8,594.92 in municipal water and sewer charges as required by the Ground Lease. Petitioner asserts that notice was given to all of the respondents and none of them cured the default in a timely manner nor sought a “Yellowstone Injunction”[First National Stores v Yellowstone Shopping Center, Inc., 21 NY2d 630(1968)]. Petitioner contends that the default was not cured until May 15, 2014, after the April 30, 2014 cure period.

And granted respondent’s motion for summary judgment dismissing the nonpayment proceeding and denied petitioner’s cross-motion for summary judgment:

Respondent Massi’s motion for summary judgment dismissing this nonpayment proceeding is granted. Petitioner’s cross-motion for summary judgment is denied.

First, the term of the Ground Lease is fifty-years and the rental value of the lease is in excess of $16,000,000.00. A failure to cure a water/sewer charge payment of about $8,600.00 until two weeks after the cure date in petitioner’s notice is a de minimis violation of the lease terms. It is not a material breach and is not a basis to terminate a lease of such length or monetary value, especially considering the cost of constructing a store on the land. Petitioner has not established that it has been harmed in any way or its interests in the real property impaired by respondent’s “breach” of the agreement and late payment of the water/sewer charge. Petitioner has not established that this late payment is a repetitious practice of the respondent requiring the petitioner to regularly send default notices, to retain counsel, or to commence legal proceedings. There is no showing that the actions of the respondent were willful or there was any prejudice to the petitioner. The rules of equity relieve the respondent of any penalties for its failure to timely act under these circumstances as it would result in the forfeiture of a valuable asset, this long term lease and the improvements to the property by respondent [Sy Jack Realty Co. v Pergament Syosset Corp., 27 NY2d 449 (1971)].

It appears that under the terms of the Ground Lease, the petitioner has no responsibility for the payment of any utility or municipal charges. Paragraph 7 of the Ground Lease makes these payments the sole responsibility of the respondent. This means that the petitioner was not required to make payment for them in the event of default, as the building constructed is free-standing, built at respondent’s sole cost and expense pursuant to an agreement between WG and Walgreen to which petitioner consented. Payment of these utility expenses, including the water/sewer charge under the terms of the Building Lease, is the responsibility of Walgreen. Paragraph 17 of the Building Lease sets forth the rights and remedies of the parties in the event of a default in the performance of the terms of the agreement.

Second, the respondent has a leasehold mortgage from Wachovia Bank, NA, on the premises that respondent Massi assumed from its predecessor WG. It is not disclosed what entity currently is holding this mortgage as Wachovia has ceased operating under that name. The respondent alleges that the mortgage is in the amount of $3,100,000.00. In connection with respondent securing the leasehold mortgage, petitioner, as the landlord, executed a Ground Lessor Estoppel And Agreement. This was required to ensure that the lender would fund construction of the tenant’s building. Paragraph 7 of the Estoppel Agreement required the petitioner-landlord to give notice to the lender on “any default by Tenant under the Lease simultaneously with sending such notice to Tenant, and no exercise of remedy by Landlord as a result of any such default, shall be effective unless such notice shall have been delivered to Lender.” In spite of being a party to this agreement, there is no indication that the petitioner caused to be served upon the lender any of the predicate notices nor the pleadings in this proceeding. Therefore, petitioner has failed to comply with a condition precedent to effectively commence this litigation, that is giving notice of the lender of the default.

Third, respondent alleges in its motion papers that Paragraph 14(a) of the Ground Lease limits the petitioner-landlord’s remedy for a breach by the tenant of a lease term as follows:

If any fixed rent is due and remains unpaid for ten (10) days after receipt of notice from Landlord, or if Tenant breaches any other covenants of this Lease and if such other breach continues for thirty (30) days after receipt of notice from Landlord, Landlord shall then but not until then, as its sole legal remedy but in addition to its remedies in equity, if available have the right to sue for rent and other sums due Landlord under this Lease; but if Tenant shall pay said rent within ten (10) days, or in good faith within said thirty(30) days commence to correct such other breach, and diligently proceed therewith, then Tenant shall not be considered in default. Without limiting the foregoing, in no case and under no circumstances shall termination of this Lease be a permitted Landlord remedy. Landlord shall in no event entitled to accelerate rent and/or other charges due by Tenant under this Lease, except that any payments under this Lease paid more than 30 days after due date shall include a 5% penalty.

Apparently this clause in on page 12 of the lease agreement. Unfortunately, none of the copies of the lease agreement submitted by any of the parties contains that page where it is supposed to be, presumably between page 11 and 13. It appears between page 16 and 17. I checked, this is not an example of Abbott and Costello arithmetic.

The paragraph only is applicable to a failure to pay “fixed rent.” Although section 2 of the lease is labeled “Rent,” that paragraph does not use the term “fixed rent” in describing those payments. “Fixed rent” is not described anywhere in the Ground Lease. Perhaps it is a reference to the provision of the Building Lease between Massi and Walgreen where there is a monthly rent set forth for the entire term of the lease and an additional rent payment tied to gross sales. A reading of the rental terms of that agreement leads to the conclusion that the monthly rent recited for the fifty-year term is what the parties meant by “fixed rent” because it does not fluctuate while the gross sales portion would fluctuate on a monthly basis. Apparently the “fixed rent” language was included in the Ground Lease as it was executed the same date as the Building Lease.

A fair reading of the Ground Lease and the Building Lease leads to the conclusion that water and sewer charges are not included in the definition of “fixed rent” to be subject to the limitation on the landlord’s remedy for nonpayment in Paragraph 14(a). Therefore the failure of the respondent to make a timely payment of that amount to the Water Board, is a default of a general lease term.

Paragraph 7 of the lease, “Utilities” requires the respondent-tenant to “pay when due all bills for water, sewer rents, sewer charges….” It does not specify that the failure of the tenant to pay these charges constitutes either “rent, fixed rent or additional rent” under the lease terms. Nor does it give the landlord a specific remedy if the monies are not timely paid. This paragraph does not even by its terms authorize the landlord to pay the outstanding bill and then seek to be reimbursed by the tenant.

Petitioner had to give thirty days’ notice to the respondent of the breach, which it did. Once the respondent failed to make payment Paragraph 14 limited the petitioner’s “sole legal remedy” to “sue for rent and other sums due Landlord under this Lease.” Giving this clause its plain meaning, the petitioner could have brought a plenary action for money damages.

As the payment in dispute is not “rent” or additional rent, the question arises whether a right to bring summary payment for nonpayment is permitted. Real Property Actions and Proceedings Law §711(3) permits a summary proceeding to be commenced for nonpayment “of any taxes or assessments levied on the premises” which the tenant has agreed in writing. Such a proceeding would be permitted under the facts of this case but for the parties agreeing in the Ground Lease to only allow an action for money damages and not for recovery of the property. A summary proceeding is therefore prohibited by the Ground Lease if as a result the petitioner could obtain possession of the premises.

Paragraph 14(a) specifically says: “Without limiting the foregoing, in no case and under no circumstances shall termination of this Lease be a permitted Landlord remedy.” The plain meaning of this clause is that then during the term of the lease, the landlord’s sole remedy is a money judgment in regard to any breach of the lease. Recovery of the premises does not appear is not a permitted remedy. Petitioner is entitled to a 5% penalty on “any payments” paid after the due date. Common sense would tell you that the landlord would only be entitled to a 5% penalty on monies due it from the tenant or on monies it paid to third parties for the benefit of the tenant to cure a tenant’s default. Under that reasoning, if petitioner had paid the water/sewer bill of $8.594.92, petitioner would be entitled to $429.75 as a penalty fee.

On the other hand Paragraph 14(a) does not say the penalty is imposed only on monies the landlord pays on behalf of the tenant, it says the 5% penalty is imposed for “any payments under this Lease paid more than 30 days after its due date.” Therefore because the water/sewer payment was made more than 30 days after its due date, petitioner is entitled to invoke the monetary penalty of $429.75.

Fourth, the court must question whether the landlord has any standing to commence a summary proceeding based on the tenant’s failure to timely pay the water/sewer charges or any utility charges because this is a Ground Lease of vacant land. Even though there is a clause in regard to water/sewer and utility charges in the Ground Lease (Paragraph 7), no such utilities or municipal services existed at the site when the Ground Lease was entered into. Such a clause was irrelevant to the Ground Lease, but was an integral clause in the Building Lease. The tenant, Massi, constructed the building pursuant to a separate agreement with Walgreen. The water/sewer service and utility charges are supposed to be in the Building Lease tenant’s name and for the account of that tenant. The bill in question was paid in Massi’s name and Massi had recourse to seek reimbursement from its tenant Walgreen under the terms of the Building Lease. Petitioner was aware of the Building Lease and its terms and conditions. It would seem that petitioner’s rights should only be able to be exercised in the event the Build Lease tenant and landlord failed to make payments and the water/sewer charge was in danger of becoming a lien on the property which would adversely effect petitioner’s title. That is not the case here.

Noting that:

The default is not material. It did not impact on petitioner in a manner which would justify forfeiture of a fifty-year, sixteen million dollar lease. Further, by the lease terms petitioner agreed to limit his remedies solely to an action for money damages and not to seek termination of the Ground Lease. Petitioner is stuck with the agreement it made.

Next Generation Fulton, LLC v. Community Counseling & Mediation Servs., 2016 NY Slip Op 26262 (Civ. Ct., Kings Co. July 21, 2016)

The Court summarized the question presented:

The first issue presented is whether a commercial lease term can be terminated automatically when a tenant defaults in payment of rent or real estate taxes, and the landlord previously violated the lease resulting in a judgment for the tenant which remains unpaid. The second issue is whether the tenant established a valid defense to the holdover by showing that the judgment amount in the tenant’s favor exceeded the unpaid real estate taxes claimed as the basis for eviction.

The prior proceedings:

Petitioner Next Generation Fulton, LLC (“petitioner” or “NGF”) commenced this holdover proceeding in August 2014 against respondent tenant Community Counseling and Mediation Services (“respondent” or “CCMS”). Petitioner alleged that the lease on the property located at 1 Hoyt Street, 7th Floor, Brooklyn (“subject property”) automatically terminated pursuant to the conditional limitation set forth in Paragraph 17 of the lease, because respondent was late in paying real estate taxes in the amount of $41,479.84. Respondent counterclaimed for a set-off because at the time NGF filed the instant proceeding, Next Generation Chera (“NGC”), the predecessor-in-interest to NGF, owed CCMS over $400,000 pursuant to a judgment from Supreme Court, New York County (Louis Crespo, Special Referee, 3/22/2013), affirmed by the First Department on March 25, 2014…Justice Debra A. James subsequently ruled that NGF, as successor-in-interest to NGC, took the lease subject to counterclaims that CCMS had against NGC[.]

*     *     *

In October 2014, respondent paid and NGF accepted the monies owed in real estate taxes. However, petitioner did not satisfy the judgment until February 2016.

Concluding that:

This Court finds that respondent established a valid defense to the instant nonpayment proceeding by showing that the judgment amount exceeded the unpaid real estate taxes claimed as the basis for eviction[.]

The Court further finds that Paragraph 17 of the lease, as applied to the facts herein, is an impermissible forfeiture of respondent’s right to cure under Real Property Actions And Proceedings Law (“RPAPL”) § 751(1). The latter section provides that tenants have a right to obtain an automatic and indefinite stay of the issuance and execution of a warrant of eviction by paying the amount owed into court prior to the issuance of a warrant.

Paragraph 17 provides that if the tenant defaults in the payment of rent or taxes due and such default continues for 15 days after the landlord provides written notice of such default, the owner may serve upon the tenant a written five days’ notice of cancellation of the lease, upon the expiration of which, the lease terminates. Paragraph 17 is a “conditional limitation,” i.e., the lease automatically expires on the happening of a specified event, namely, the arrival of the termination date fixed in the notice…Petitioner allegedly provided written notice to respondent that its tax payment was due within 10 days of receipt of the statement. Upon respondent’s alleged default, petitioner served another written notice upon respondent that if the real estate taxes and late fees were not paid within five days, the lease would be terminated. Following respondent’s alleged default, petitioner notified respondent that the lease had terminated and then commenced a holdover.

Admonishing that:

In general, a summary proceeding could be properly maintained where there is a conditional limitation in a commercial lease and the tenant held over after defaulting in the payment of rent or taxes…However, a conditional limitation may not be enforced if there is a showing of “fraud, exploitive overreaching or other unconscionable conduct on the part of the landlord.”

Here, petitioner’s commencement of a holdover after a judgment had been recently rendered for respondent and against petitioner constitutes unconscionable retaliatory conduct. Accordingly, the conditional limitation in the lease on the subject property may not be enforced. Furthermore, a conditional limitation is subject to strict scrutiny so as to avoid forfeiture of the lease and will not be enforced for “minor breaches or where no substantial injury occurs.”…Here, respondent’s alleged breach ($41,479.84) was minute compared to petitioner’s major breach of the lease (over $400,000), as determined by the Supreme Court. Therefore, respondent’s right to cure under RPAPL § 751(1) could not be forfeited by the conditional limitation in the lease.

Haynes v. Bellport Prop. Invs. I, LLC, 2016 NY Slip Op 31951(U) (Sup.  Ct., N.Y. Co. Schecter, J., October 14, 2016)

The Court summarized the facts:

In August 2012, the Hayneses moved into an apartment owned by Bellport and managed by Panco.  On the morning of September 9, 2012, Haynes planned on having while in the master bathroom.  He stepped back to a towel from the rack behind him and his sock got caught in a vent on the floor, causing him to fall forward and hit his head[.].

The claim and defense:

Plaintiffs commenced this action to recover for injuries sustained after Haynes tripped and fell.  Defendants move for summary judgment.  They urge that the bathroom vent was not elevated more than half an inch and was only a de minimus defect that is too trivial to be actionable.

The burden of proof as to the triviality of a defect:

A defendant moving for judgment based on the triviality of a defect “must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.  Only then does the burden shift to the plaintiff to establish an issue of fact”[.]

The opinion of defendants’ expert, a bio-mechanical engineer, that:

[T]he subject vent was elevated, if at all, no more than ½ of an inch at the time of the alleged incident.  Furthermore, there was no irregularity, and nothing on the edge, top surface, or undersurface of the vent, that presented any danger, or that would case a sock to “catch” on it as well-lit and, according to Plaintiffs’ testimony, the alleged condition was well-known by them for weeks prior to the alleged incident.  As such…even assuming [plaintiffs’] allegations to be true, the alleged condition was de minimus and in no way constituted a snare or trap-like condition”[.]

The question of fact:

Even assuming that defendants met their heavy burden – based on the eight-paragraph expert affidavit that makes no mention of whether the surrounding circumstances increased the risks posed by the elevated vent other than mentioning that the bathroom was well-lit and the problem well-known – plaintiffs have shown that a question of fact exists as to whether the condition was “difficult to pass over safely on foot in light of the surrounding circumstances”[.]

The opinion of plaintiff’s engineer:

Plaintiffs’ expert, Vincent Ettari, P.E., an engineer, opines that regardless of whether the vent was elevated no more than half an inch “the protruding floor vent cover was not physically insignificant and…did present a tripping hazard…[The] risk that the floor vent cover presented was increased by the small size of the bathroom; the layout of the bathroom (including the location of the towel rack and window sill); and the nature of the bathroom’s use, including the reasonable foreseeable uses in which people would be wearing socks, slippers, barefoot or otherwise not wearing outdoor shoes while moving about in the bathroom”…Mr. Ettari further disagreed with Dr. Otis’ opinion that nothing about the vent made it likely to catch on a person’s sock, explaining that the vent cover “had a sharp edge that, when protruding from the vent floor as it was at the time of the accident, was certainly dangerous and capable of “catching” a sock or a foot that came into contact with it”[.]

Finding that:

Contrary to defendants’ contention on reply, Mr. Ettari accounts for aggravating circumstances and awareness of the condition prior to the accident does not undermine “any argument that the alleged defect was non-trivial”[.]

Callan v. LaRocca, 2016 NY Slip Op 31961(U) (Sup.  Ct., Suffolk Co., Mayer, J., August 1, 2016)

The Court summarized the facts in this personal injury/”trip and fall” case:

Plaintiff testified at her deposition that she was walking home from her employment at the IGA supermarket located at 870 Montauk Highway in Copiague at approximately 3:45 p.m. on March 10, 2011.  She indicated that she was walking on the sidewalk on the north side4 of Beach Avenue, heading in the direction of the house she rented at 28 Beach Avenue and that it was “rainy”.  Callan explained that this was the same route she has walked, beck and forth, give days a week since the year 2000.  She stated that the condition of the sidewalk has been the same since she began walking on it, and that neither she nor anyone she knows has complained to anyone about its condition.  Callan testified that when she approached the area of the sidewalk in front of 12 Beach Avenue she was looking “[s]traight down the street towards [her] house”, had a bag of groceries in each hand, and had her handbag on her left shoulder.  She indicated that she was walking at a “normal” speed when her left foot “hit” the sidewalk, causing her to go “flying forward” and land on her hands.  At her General Municipal Law § 50-h hearing, she testified that the area of the sidewalk caused her fall was “where it was all damaged, where it was paved over, [where] it dips down and there is patchwork done to it.”  Callan further testified that she remained on the ground for approximately a minute and looked around to see if there were any people who witnessed her fall, but saw no one.  She stated that she then stood up and walked to her home, which was three houses down the block, and called her brother for assistance.

Defendant’s contention:

Defendant LaRocca first contends that he is entitled to summary judgment that he is entitled to summary judgment on the ground that the sidewalk condition is, in essence, a trivial defect.  It is well settled that “a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip”…Nevertheless, “liability does not ‘[turn] upon whether the hole or depression causing the pedestrian to fall…constitutes a trap’”…”A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses”[.]

The legal standard:

Whether a dangerous or defective condition exists on a property depends…upon the particular circumstances of each case and generally is a question of fact for the jury, unless the defect is trivial as a matter of law…In determining whether a defect is trivial as a matter of law, a court must examine the facts presented, “including the width, depth, elevation, irregularity, and appearance of the defect along with the ‘time, place and circumstance’ of the injury”…It has been held that a number of factors may “render a physically small defect actionable, including a jagged edge[,] a rough, irregular surface[,] the presence of other defects in the vicinity[,] or a location – such as a parking lot, premises entrance/exit, or heavily traveled walkway – where pedestrians are naturally distracted from looking down at their feet”…Generally, photographs of a defective condition which accurately depict how such condition appeared on the date of an incident may be used as proof on the issue of whether such defect is trivial…Viewing the limited photographic evidence submitted by LaRocca in the light most favorable to plaintiff, LaRocca has not established, as a matter of law, that the sidewalk defect in question is trivial…Rather, subject sidewalk appears to have cracked and subsided, creating a gap between adjacent concrete slabs, and that such defect was patched with asphalt.

Brumm v. St. Paul’s Evangelical Lutheran Church, 2016 NY Slip Op 07079 (App. Div., 3rd Dept., Peters, J., October 27, 2016)

The Court summarized the facts and the pending motion:

In March 2012, plaintiff tripped and fell on a sidewalk adjacent to property owned by defendant in the City of Saratoga Springs, Saratoga County. She commenced this negligence action asserting that her fall was caused by a deteriorated portion of the sidewalk. Following discovery, defendant moved for summary judgment dismissing the complaint, arguing, as pertinent here, that the sidewalk defect was too trivial to be actionable and that plaintiff’s identification of the defect as the cause of her fall was speculative. Plaintiff opposed the motion, and Supreme Court denied it. Defendant appeals.

The evidence presented:

Plaintiff, a parishioner at defendant’s church, testified that the weather was clear and there was no snow on the ground at the time of her fall. She was approaching the church in the late morning, carrying a handbag and a binder, when the toe of her right foot caught on something. As she took the next step, her left ankle rolled and she fell. She was taken to a hospital for treatment of serious injuries to her ankle, wrist and hand. At the time of her fall, plaintiff did not look at the sidewalk to determine the precise cause, but she returned to the site approximately one month later and identified a cracked, uneven area of the sidewalk as the location and cause of her fall. Her expert witness, a forensic architect, photographed a crack measuring 18 inches long in what he described as a “deteriorated and uneven sidewalk flag,” with a raised vertical surface of approximately one inch. Based upon his observations and experience, the expert opined with a reasonable degree of professional certainty that the defect created a dangerous condition, and that this condition had existed for an extended period of time before plaintiff’s fall.

The applicable law:

As defendant contends, there is authority to the effect that small changes in elevation in walkways that are otherwise in good condition are trivial and nonactionable as a matter of law…However, when — as here — a height differential results from the deterioration in a walkway that is cracked or broken, a triable issue of fact may be posed as to whether the accident was caused by an actionable dangerous condition[.]

Concluding that:

Photographs of the sidewalk where plaintiff fell depict a deteriorated area with various cracks in several adjacent slabs on the side of the walk bordering the street. In the location where plaintiff alleges her accident occurred, the deteriorated area takes up approximately one third of the sidewalk. The photographs reveal that the cracked section of concrete where plaintiff fell is depressed below the surface of the rest of the sidewalk, creating a raised, irregular vertical edge measuring, as previously noted, approximately one inch high and 18 inches long. In view of the length and depth of the crack where the fall occurred, the uneven surface of the walkway and the overall size of the deteriorated area, we agree with Supreme Court that it cannot be determined as a matter of law that the condition “was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen”[.]

Defendant likewise failed to meet its burden to prove on a prima facie basis that plaintiff’s identification of the location of her fall was too uncertain to establish that the defect was the proximate cause of the fall. A defendant can meet this burden by proving “that the plaintiff cannot identify the cause of his or her fall without engaging in speculation”…However, even when a plaintiff is unable to identify the cause of a fall with certainty, “a case of negligence based wholly on circumstantial evidence may be established if the plaintiff show[s] facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred”[.]

Here, although plaintiff acknowledged the delay in identifying the cause of her fall, she testified that she knew that her toe had caught on some object and decided to examine the location in question because she knew that it was “where something has to be.” She identified the cracked area as “exactly that spot that [her] shoe caught.” Although plaintiff’s statements were not without some inconsistencies, we find her testimony adequate to allow a jury to rationally infer that the cracked area of the sidewalk caused her fall, without being forced to resort to mere speculation and surmise. Accordingly, Supreme Court properly denied defendant’s summary judgment motion on this issue[.]

Stein v. Sarkisian Bros., Inc., 2016 NY Slip Op 07501 (App. Div., 4th Dept., Peradotto, J., November 10, 2016)

The Appellate Division summarized the pleadings and prior proceedings:

Plaintiff’s decedent commenced this action seeking damages for injuries she sustained when her shoe caught on the bullnose tile used as a transition from a concrete floor in the hallway of an arena to the tile floor in a bathroom, which had an open entrance. It is undisputed that defendant directed subcontractors to install bullnose tile rather than a threshold as provided for in the contract. Contrary to defendant’s contention, we conclude that Supreme Court properly determined that plaintiff raised an issue of fact whether it owed a duty of care to decedent because, “while engaged affirmatively in discharging a contractual obligation, [it] creat[ed] an unreasonable risk of harm to others, or increas[ed] that risk”[.] We nevertheless conclude that the court erred in determining that plaintiff raised an issue of fact whether the alleged defect was trivial as a matter of law and thus erred in denying defendant’s motion for summary judgment dismissing the complaint.

Holding that:

It is well established that we “must consider all the facts and circumstances presented’ . . . before concluding that no issue of fact exists” whether the alleged defect is trivial as a matter of law…Such issues of fact include the dimensions of the alleged defect, its appearance and elevation, and the time, place and circumstance of the injury (see id.). Here, the record establishes that the bullnose tile was slightly less than one-half of an inch in height and was not the same color as the tile floor. Decedent testified at her deposition that she was standing in the hallway conversing with a group of people, approximately three to four feet from the bathroom, before she turned to walk into the bathroom. She testified that she glanced at the tile floor but did not see the “lip” that caught her shoe and caused her to stumble and be propelled several feet before she struck the towel dispenser. In opposition to defendant’s motion, plaintiff provided the expert affidavit of an architect who opined that “such a vertical edge constitutes a snare and a trap for those who might be distracted by the crowd moving in and out of the bathroom.” We conclude that the opinion of plaintiff’s expert is not sufficient to raise an issue of fact whether the defect is trivial because it is speculative and conclusory on that issue…particularly because there is no indication in the record that anyone other than decedent was entering or leaving the bathroom. Furthermore, “the test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances”…Upon our review of the photos of the alleged defect and in view of the less than ½-inch height of the bullnose tile and the circumstances surrounding decedent’s accident…we conclude that, although an accident occurred that is “traceable to the defect, there is no liability” because the alleged defect “ is so slight that no careful or prudent [person] would reasonably anticipate any danger from its existence’ “ under the circumstances present here[.]

Baer v. 180 Varick LLC, 2016 NY Slip Op 32290(U), Sup. Ct. N.Y. Co. (November 14, 2016)

The Court summarized plaintiff’s claim:

Plaintiff alleges that on August 15, 2013, she tripped and fell due to an uneven, broken raised and unsafe condition of the hallway flooring on the fourth floor of 180 Varick Street, New York, New York (the “building”).  Plaintiff claims that 180, as owner of the building, Olmstead, as building manager, and General Contracting, the contractor working at the accident location, were negligent.

The pending motions:

In this personal injury action arising out of a trip and fall accident, defendant Mario’s General Contracting, Inc. (“General Contracting”) moves for summary judgment (sequence 001) dismissing plaintiff’s complaint and all cross-claims against. Defendants 180 Varick LLC (“ 180”) and Olmstead Properties, Inc. (“Olmstead”) (collectively, the “Owner/Manager”) join in General Contracting’s motion to dismiss the complaint and all cross-claims asserted against it.

The Owner/Manager separately moves. for summary judgment on its cross-claims against General Contracting for breach of contract, indemnification, contribution, and attorneys’ fees (motion sequence 002). General Contracting opposes the motion, and cross moves to dismiss the cross-claims and third party complaint against it.

The contentions of the parties:

In support of its motion to dismiss the complaint and all cross-claims, General Contracting argues (and the Owner/Manager concurs) that the alleged dangerous condition was trivial and not actionable as a matter of law. Plaintiff testified to an “unevenness” under her foot when she fell and the indentations in the area were a quarter of an inch; she could not say . . whether the indentations were more than a half inch. General Contracting’s carpenter, Nicholas Perry, who was performing work in the area in the hallway at a doorway away from the area, stated that he had cleaned the area when plaintiff fell and that he observed no tripping hazard in the area. Further, 180’s Building Administrator Jordan Hathaway stated that she had shown space to a prospective tenant earlier in the day, and the floor was uncoated, but no one had difficulty walking on the floor and there were no complaints about the condition .of the floor before the accident. There is no evidence that General Contracting caused or created the condition and the testimony shows that there was no debris in the area.

In opposition, plaintiff argues that the testimonies and statements by the parties and four non-party eyewitnesses establish that the dangerous condition was not trivial and that the Owner/Manager had prior notice of the dangerous condition.

In reply, General Contracting argues that the nonparty witnesses do not provide any reliable measurements contradicting that there were no floor defects of any substantial height. Any alleged debris remaining in the hallway was of unknown origin, and General Contracting had no duty to clean any other debris in the hallway. The only work performed by General Contracting on the day of the accident was the removal of an exit door, and the jackhammer was not used, and no concrete had been cut yet. General Contracting’s owner also stated that he did not know when jackhammering was performed. 180’s building manager toured the floor before leaving at 5:00 p.m. and saw no unsafe condition.

The Owner/Manager’s separate motion for judgment on its cross-claims argues that the construction Contract and subsequent Proposal with General Contracting governed the work for the fourth floor corridor renovation at the building. Based on the affidavit of Olmstead’ s Executive Managing Director (Steven Marvin), and deposition testimonies of 180’s Building Manger (Cesar Vasquez) and Administrator (Jordan Hathaway), and General Contracting’s owner (Marijan Juncaj) and carpenter (Nicholas Perry), plaintiff’s injury arose out of or was related to General Contracting’s work under the contract. Plaintiffs injury did not arise out any acts or omissions on the part of the Owner/Manager. Thus, the Owner/Manager is entitled to common law and contractual indemnification and contribution by General Contracting. The record also establishes that General Contracting was contractually obligated to procure insurance in favor of the Owner/Manager. However, General Contracting’s insurer, Northfield Insurance Company (“Northfield Insurance”) denied the Owner/Manager’s tender for defense and indemnification on the ground that the Owner/Manager was neither listed nor qualified as an  additional insured on the subject policy.

In opposition, General Contracting argues that the Owner/Manager’s motion is moot in light of the trivial nature of the alleged defect. In any event, the Owner/Manager was aware of the alleged conditions and took no remedial action when it found the area safe and that no remedial action was necessary. The accident occurred after General Contracting’s work was completed for the day, and after the flooring was cleaned.  And, plaintiff’s accident occurred on the natural topography of the floor.  Since the Owner/Manager is ultimately liable for the condition of the common hallway, and failed in its obligation to undertake protective measures, there is no basis for contractual or common law indemnity.  Further, the indemnification and insurance procurement clauses do not apply to the work at issue.  Nothing in the Proposal contains any indemnification or insurance obligations, or indicates that there were any prior agreements that are incorporated for the job being performed at the time of the accident.  And, the Owner/Manager’s witnesses lack personal knowledge of the purported agreements.  Even if the Contract applies to the work, the indemnification clause exempts liability for the negligence of the proposed indemnitees; and, General Contracting was not negligent.  Plaintiff’s fall occurred beyond the area where General Contracting’s workers were performing work and Perry and Hathaway stated that there was no debris in the subject area.  And, the cross-claims against General Contacting must be dismissed because there is no occasion for the Owner/Manager to held liable for the acts or omissions of General Contracting.  Alternatively, any grant of indemnification is premature as there is no determination of liability.  Further, General Contracting obtained an appropriate insurance policy, and the Owner/Manager never answered Northfield Insurance’s offer to provide a defense on a co-primary basis.  Any damages for failing to procure insurance is limited to the cost of any increased premiums, which has not been demonstrated.

The Owner/Manager opposes General Contracting’s request to dismiss the former’s cross-claims, maintaining that plaintiff’s accident arose out of General Contracting’s work under the Contract and Proposal.  And, plaintiff’s claim arose out of General Contracting’s work and its failure to leave the area safe for pedestrians.  In the event the Owner/Manager is held liable for plaintiff’s injuries, General Contracting is required to indemnify it.

The legal template:

A defendant who moves for summary judgment in a trip-and-fall action “has the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence”…Once a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof”[.]

The existence of a dangerous condition:

The question of “whether a dangerous or defective condition exists on the property of another so as to create liability “depends on the peculiar facts and circumstances of each case” and is generally a question of fact for the jury”…It is well settled that “[t]here is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable”…In determining whether a defect is trivial in nature, the court must examine the facts of each case “including the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance’ of the injury”[.].

The facts as presented by plaintiff:

Here, plaintiff testified that as she was leaving the office and walking towards the stairwell, “something uneven under my foot, it felt like just unevenness and rubble, and my…foot just gave out, and I fell forward”…She repeated, “it was almost like I was dealing with unevenness.  So there was rubble or something.  Underneath…And I sort of became unsteady on the, on the rubble”, she later described the loose debris as “Loose particles”…She later stated, “…The floor, essentially, was debris”…When asked if there was rubble or debris there, plaintiff relied, “yes”…According to plaintiff, “…there was sort of rubble there, um, big, bigger stones and smaller stones and dust, and it was very uneven”…When describing indentations in the floor, plaintiff stated “They were like little ridges” more than a quarter inch…She did not know whether the rides were less than half an inch…When asked if her foot got caught, plaintiff replied, “Got – year”…There was no other way to talk around in the hallway to avoid the rubble area…She had seen the bigger and smaller stones prior to the date of her accident”…the floor had rubble on it the day before (EBT, p. 153).

Defendant’s contentions:

Defendants’ contentions that the condition complained of did not present a trap or snare or an actionable defect lacks merit…Further, the photographs submitted by General Contracting are unclear in several areas and do not demonstrate the absence of an actionable defect…factually distinguishable …Therefore, defendants failed to establish that the condition on which plaintiff’s allegedly fell constituted a trivial defect.

Issues of fact warranting a trial:

In any event, plaintiff’s submission of the affidavit of Lauren Racusin, who states that there was a depression about one inch deep in the floor where plaintiff fell…raises an issue of fact as to whether the depth, elevation, irregularity and appearance of the condition was dangerous[.].

Further, issues of fact exist as to whether General Contracting caused or created the alleged dangerous condition.  Although General Contracting contends that its carpenter Perry cleaned the area and saw no tripping hazard in the subject area, Perry testified as to the terracotta pieces of the door he took down…, which he picked up with his hand…It is unclear whether such debris is the rubble of which plaintiff testified.  Although Perry testified that he did not see anything that would cause her to fall…, and had not used the jackhammer…, Racusin and another non-party witness, Renee Schoonbeck, attested that the gravel had been there for days “and the depression had gravel in it”[.].

Berr v. Grant, 2016 NY Slip Op 32382(U), Sup. Ct. N.Y. Co. (December 2, 2016)

The Court summarized the facts:

The relevant facts are as follows.  On or about July 3, 2013, plaintiff hosted a party at a house that he rented from defendants, which was located at 915 Dune Road, Westhampton, New York.  The backyard of the house contains a deck with a pool and a hot tub.  The pool and the hot tub had been “closed” earlier in the day and plaintiff testified during his depositions that the area where the pool and the hot tub were located was dry at the time of the party.  A barbecue grill owned by defendants had been placed by the party’s caterer in a location that blocked a pathway around the pool to the house.  Plaintiff testified that he was walking from the pool area back to the house, between the pool and the hot tub, when he suddenly slipped and fell into the hot tub, thereby sustaining injuries (the “accident”).  When asked how and why the accident occurred, plaintiff testified that “[i]t happened so fast it’s difficult to even remember.”  Plaintiff did not remember which foot slipped.

Defendant’s submission:

In support of their motion, defendants have submitted the building permit and the Certificate of Occupancy for the house issued on May 26, 2004 by the Village of West Hampton Dues Building Department (the “Village”), which defendants claim referenced the pool and the hot tub.  Further, defendants have submitted the affidavit of their engineering expert, James Koester (“Koester”), who states that the hot tub was shown on the April 14, 2004 survey in the Village’s file.  Defendants argue that these documents establish that there was no dangerous condition with respect to the area between the pool and the hot tub as the layout of the pool and the hot tub was approved by the Village.

Plaintiff’s opposition:

In opposition to the motion, plaintiff has submitted the affidavit of his engineering expert, Andrew S. Haimes (“Haimes”).  Haimes states in his affidavit that he inspected the premises and found two defective conditions in the area between the pool and the hot tub.  He states that there was a height differential of 0.05 inches between and among coping bricks located between the pool and the hot tub, presenting a “significant tripping hazard.”  Further, Haimes states that the gap of approximately 15 inches between the pool and the hot tub did not constitute a safe code compliant passageway.

Concluding that:

In the present case, defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff is unable to identify the cause of his accident is denied on the ground that there is an issue of fact as to whether the accident was caused by the allegedly dangerous conditions of uneven coping bricks or the narrow width of the area between the pool and the hot tub.  Defendants have made a prima facie showing of their entitlement to summary judgment dismissing the complaint through their submission of plaintiff’s deposition testimony wherein he was unable to identify what caused him to slip and fall.  In opposition, plaintiff has raised a triable issue of fact through his submission of the expert testimony of Haimes that there were two defects in the area between the pool and the hot tub where he fell, namely a dangerous height differential between and among the copying bricks, which allegedly presented a “significant tripping hazard,” and the narrow width of the area, which allegedly did not constitute a safe or code compliant passageway.  Moreover, defendants have failed to submit reply papers to plaintiff’s opposition papers, thereby conceding the correctness of plaintiff’s argument.

Accordingly, defendants’ motion for summary judgment is denied.  This constitutes the decision and order of the court.

Lovetere v. Meadowlands Sports Complex, 2016 NY Slip Op 06774, App. Div. 1st Dept (October 18, 2016)

The First Department, as follows, unanimously affirmed the Order of Supreme Court which granted defendant’s motion for dismissing the complaint:

Defendants established entitlement to judgment as a matter of law by submitting deposition testimony, expert opinion, and photographic evidence showing that the alleged hazardous defect in the ceramic floor tile (a “spall”) was physically insignificant and trivial. The depth of the defect in a grouted area of the tiled floor measured only three-sixteenths of an inch, as well as seven-eighths of an inch wide and four inches in length. Moreover, the spall’s edges, as compared to the immediate surrounding surface areas, were not dangerously irregular. Plaintiff acknowledged that the lighting enabled her to see the floor area in the six-foot-wide corridor while she walked with family members, and that the alleged defect was not noticeable despite the grouting having a darker color than the surrounding tile. There was also evidence indicating no prior accidents or complaints were reported that involved the subject tiled area of the well-traveled corridor.

In opposition, plaintiff failed to raise a triable issue of fact. The eyewitness testimony regarding how the heel of her shoe had become stuck in the floor and remained there, together with photographic evidence, failed to raise an issue as to whether the subject spall represented an unreasonably dangerous hazard under all of the circumstances presented[.]

Dien v. 80-81 & First Assoc., L.P., 2017 NY Slip Op 30055(U) [Sup. Ct. N.Y. Co. January 11, 2017]

Supreme Court summarized the facts:

Plaintiff allegedly tripped and fell on a sidewalk outside Apple Bank located at 1555 First Avenue in New York County.

The Condominium’s motion for summary judgment:

The Condominium moves for summary judgment dismissing the complaint on the grounds that (1) plaintiff did not know what caused her to fall and (2) the defect was trivial. Concerning the first ground, proximate cause requires that the defendant’s act or failure to act was a “substantial cause of the events which produced the injury”…Failing to identify the cause of a fall may be fatal to the complaint. Otherwise, a jury “would be required to base a finding of proximate cause upon nothing more than speculation”[.]

The facts in support of the Condominium’s motion:

In moving for summary judgment, the Condominium relies on plaintiffs EBT testimony: when she fell, she did not notice what she had tripped on or how she fell. But plaintiffs affidavit suggests that she tripped, and, therefore, did not lose her balance or faint…[“[m]y trip and fall [was] through no fault of my own”]). Plaintiff also avers that she identified what she alleges was the defective condition in a photograph at her deposition…”[a]t my deposition, I was able to point out on those photographs the exact portion of the raised defective sidewalk which caused by trip and fall”])[.]  At her EBT, plaintiff testified that she remembered the location, went back to it approximately two weeks after the incident, and then determined what caused her to fall[.]

The plaintiff’s burden of proof:

On her summary-judgment motion, plaintiff is not required to demonstrate that she knew exactly what she tripped over precisely at the time of the occurrence. No evidence exists that the condition about which plaintiff complains was of a transitory nature and that it could not be identified later- provided that plaintiff knew where she fell – with a reasonable degree of precision. As the nonmoving party, plaintiff is entitled to have the court view the evidence in the light most favorable to her and give her the benefit of all reasonable, favorable inferences that can be drawn from the evidence…Thus, the court cannot determine based on the evidence presented whether plaintiff will be able to demonstrate at trial that the difference between the pavement slabs caused her fall. Nor can it determine that a jury could not reasonably conclude that plaintiff tripped because of raised pavement. To the extent that this issue is about credibility, a court may not decide credibility issues on a summary-judgment motion[.]

The applicable law:

Concerning the nature of the defect, “there is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable”…Generally, whether a dangerous or defective condition exists depends on the particular circumstances of each case and is an issue of fact for the jury to determine[.]

A court’s “mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable”…But “trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection,” are not actionable…To determine whether a defect is trivial as a matter of law, the court must examine all the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance’ of the injury”…A court should also consider whether other conditions exist that make an otherwise trivial defect an actionable hazard, such as weather, location, or adverse lighting[.]

Although elevation differentials of about one inch are trivial and non-actionable…an otherwise-trivial defect may be actionable where the defect has characteristics of a trap or snare:

“While a gradual, shallow depression is generally regarded as trivial … the presence of an edge which poses a tripping hazard renders the defect nontrivial…Furthermore, factors which make the defect difficult to detect present a situation in which an assessment of the hazard in view of the peculiar facts and circumstances is appropriate”[.]

Defendant must establish that the defect is trivial as a matter of law[.]

Concluding that:

Although the method plaintiff used to measure the difference in height between two pavers – using a key chain, and later measuring the key chain – may not be perfect, defendants have not persuaded the court to exclude plaintiff’s method as an invalid or incorrect measurement. Plaintiff stated that the difference between the pavers was 3/4 of an inch to almost an inch. Conflicting testimony that defendants offer – that it measured the difference in height between the pavers and it was less than plaintiff’s measurement – does not resolve the issue, but raises a factual issue. In her affidavit, which supplements her EBT testimony, plaintiff avers that there was an edge where she fell – plaintiff thus raises a factual issue about whether the condition was a trivial defect, and the court cannot resolve this issue on this motion. The bank employee’s testimony suggests that one or more people, aside from plaintiff, fell at the same location[.]

Lessons learned:  Our Courts often spend an enormous amount of time determining whether or not a matter or defect is trivial.

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