Marte v. Dollar Tree Stores, Inc.

LOURDES MARTE AND THOMAS SANTOS, Plaintiff, v. DOLLAR TREE STORES, INC., FAMILY DOLLAR STORES OF NEW YORK, INC., and FAMILY DOLLAR, Defendants.

DOLLAR TREE STORES, INC., FAMILY DOLLAR STORES OF NEW YORK, INC., and FAMILY DOLLAR, Third-Party Plaintiffs, v. 705-711 FRANKLIN REALTY LLC and JAMAICA AUTUMN, LLC, Third-Party Defendants.

No. 20-cv-00313 (ERK) (VMS)

United States District Court, E.D. New York

February 17, 2023

NOT FOR PUBLICATION

MEMORANDUM & ORDER

KORMAN, J.:

Plaintiffs Lourdes Marte and Thomas Santos (“plaintiffs”) filed this lawsuit against defendants Dollar Tree Stores Inc., Family Dollar Stores of New York, Inc., and Family Dollar (jointly, “Family Dollar”), to recover damages allegedly caused by a fall Marte suffered while inside a Family Dollar Store located at 888 Jamaica Avenue in Brooklyn, New York (the “Premises”). Marte principally alleges that she slipped on liquid on the floor of the Premises, and that the ceiling above where she fell exhibited signs of water damage.

Family Dollar filed a third-party complaint against third-party defendants 705-711 Franklin Realty LLC (“Franklin Realty”) and Jamaica Autumn LLC (“Jamaica Autumn”), alleging that, under the terms of a lease agreement between Family Dollar and Franklin Realty governing the uses of the Premises (the “Lease Agreement”) and applying both tort and contract theories of liability, the third-party defendants are liable for any damages owed to the plaintiffs. See ECF No. 9. Jamaica Autumn, which had previously fully assigned the Lease Agreement to Franklin Realty when it sold the property, moved to dismiss the third-party complaint. I construed Jamaica Autumn's motion as one for summary judgment, and granted it, thus removing Jamaica Autumn from this action. See Marte v. Dollar Tree Stores, Inc., 2022 WL 955278 (E.D.N.Y. Mar. 30, 2022).

Franklin Realty now moves for summary judgment, arguing that, as an out-of-possession landlord, and without prior notice of the defect, Franklin Realty cannot be held liable for transient defects that occur on the Premises. Franklin Realty also contends that it has not breached any contractual duty that would give rise to Family Dollar's claims for indemnity and contribution, and that it did not breach the terms of its lease agreement with Family Dollar by failing to purchase insurance for the Premises.

FACTUAL BACKGROUND^[1]

On June 4, 2015, Family Dollar and Jamaica Autumn entered into the Lease Agreement for the Premises. See Ex. E (Lease Agreement). Jamaica Autumn sold the Premises to Franklin Realty on June 22, 2016, and assigned the Lease Agreement to Franklin Realty as part of that sale. See Ex. F (Assignment of Lease). The Lease Agreement provided that Franklin Realty will “maintain and repair and replace when necessary all exterior portions of the building constituting part of the [] Premises, including the roof, exterior walls, gutters, downspouts, and also all structural portions of the building whether interior or exterior.” Ex. E (Lease Agreement) at 11. Pursuant to the same agreement, Family Dollar agreed to “maintain and repair all interior, non-structural portions of the building, except for repairs [that Franklin Realty] is required to make.” Id.

On January 18, 2017, Family Dollar sent a letter through SMS Assist^[2]to Mark Weiss, owner of Franklin Reality, regarding a leak in the roof of the Premises.^[3] Ex. M (Terry Tr.) at 51:22-52:4, 52:8-11. On August 10, 2017, Family Dollar sent a second letter to Weiss through SMS Assist about the leak. Ethridge Aff. Ex. B (Letter) (corrected). The letter's subject line noted “TENANT'S WORK ORDER - B1451487; Roof→Major leak.” Id. (emphasis in original). The letter stated:

This letter serves to notify you of the need for Landlord [i.e., Franklin Realty] to perform certain repair work at the Premises. In accordance with Landlord's obligations under the Lease, Landlord is obligated to repair roof leaks. The store has reported there is a roof leak on the sales floor when it rains. To facilitate the timely completion of these needed repairs, we would appreciate it if you would please contact the undersigned within 24 hours of receipt of this notice to verify receipt and update Tenant on the steps to be taken to address the needed repairs.

Id.

On June 29, 2018, Family Dollar sent another letter to Weiss through SMS Assist, stating that there was a “roof leak which currently in need of repair” and that “there is[sic] four major leaks causing the ceiling tiles to fall.” Kohn Decl. Ex. D (Terry Tr.) at 79:6-80:13. Franklin Realty contends that the January 2017 letter and the June 2018 letter were not received by Mark Weiss, because they were sent to a different Mark Weiss at the firm Cushman & Wakefield. Third-Party Defs. Mot. for Summ. J. (“Mot.”), ECF No. 87-2, ¶¶ 49-51.

On July 25, 2018, plaintiff Marte allegedly slipped and fell inside the Premises ECF No. 87-3 ¶¶ 1-2. At her deposition, plaintiff testified that she slipped in a puddle of water on the floor of the Premises approximately three feet wide and three feet long. Ex. J (Marte Tr.) at 81:19-83:2. Plaintiff also stated that, after she fell, she saw that the ceiling above the puddle appeared to be damaged with “water spots” and “discoloration,” but did not see any water falling from the ceiling to the floor. Id. at 80:24-81:11. Anthony Burgos, a customer who assisted plaintiff after she fell, testified that he saw liquid falling from the ceiling onto a shelf, and that the liquid was dripping from the shelf to the floor. Kohn Decl. Ex. B. (Burgos Tr.) at 17:818:20.

LEGAL STANDARD

Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In determining whether there is a genuine dispute as to a material fact, [the court must] resolve all ambiguities and draw all inferences in favor of the non-moving party.” Vincent v. The Money Store, 736 F.3d 88, 96 (2d Cir. 2013). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

DISCUSSION

I. Out-of-Possession Landlord

Under New York common law, a landowner “has a duty to maintain his or her premises in a reasonably safe condition, taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Davidson v. Steel Equities, 138 A.D.3d 911, 912 (2d Dep't 2016) (internal citations omitted). An out-of-possession landlord, however, can be “held liable for injuries that occur on its premises only if the landlord has retained control over the premises[,] and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct.” Duggan v. Cronos Enters., Inc., 133 A.D.3d 564, 564 (2d Dep't 2015). “Even if a defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it.” Davidson, 138 A.D.3d at 912.

Franklin Realty argues that it is an out-of-possession landlord, and therefore cannot be liable for plaintiffs' injury from the leaking roof. Mot. at ¶¶ 35-37.

Moreover, Franklin Realty maintains that even if it could be liable because plaintiff's injuries were caused by water leaking from the roof-which Franklin Realty was obligated under the Lease Agreement to repair-Franklin Realty did not have actual or constructive notice from Family Dollar of the leaking roof, and thus Franklin Realty had no liability for such injuries. Id. at ¶ 60. The Lease Agreement is clear that Franklin Realty was obligated to “maintain and repair and replace when necessary all exterior portions of the building ... including the roof.” Ex. E (Lease Agreement) at 11 (emphasis added). Franklin Realty was obligated, therefore, to fix the defect on the roof of the Premises that was purportedly causing water to leak into the store. And Franklin Realty has not asserted any facts demonstrating that the Lease Agreement did not require it to fix the roof in the event that it was damaged or defective.

Although at least one witness (Burgos) testified that he saw water dripping from the ceiling on the day of plaintiff's accident, whether the water coming from the ceiling in fact caused plaintiff to fall remains in dispute. See Kohn Decl. Ex. B. (Burgos Tr.) at 17:8-18:20. The letter that Family Dollar sent to Weiss in August 2017 stated that “[t]he store has reported there is a roof leak on the sales floor when it rains.” Ethridge Aff. Ex. B (Letter) (corrected). But on the day of plaintiff's injury, at least one witness affirmatively testified that it had not been raining that day. See Kohn Decl. Ex. B (Burgos Tr.) at 35:2-4. On the other hand, weather data collected by the National Weather Service for July 25, 2018, of which the court can take judicial notice,^[4] indicates that there was at least some precipitation in New York City on that day. See https://www.weather.gov/. And Burgos also testified that, in addition to seeing water dripping from the ceiling onto the shelves and subsequently the floor, he saw “something else, like something soapy-ish” on the floor near the puddle of water where plaintiff slipped and fell. Kohn Decl. Ex. B (Burgos Tr.) at 8:17-20.

Whether Franklin Realty had actual or constructive notice of the leak is also disputed. Washington-Fraser v. Indus....