Middleton v. HWM S. Conduit, LLC

2024 NY Slip Op 51053(U)

Kareem C. Middleton, Plaintiff, v. HWM South Conduit, LLC, 624 SOUTH CONDUIT AVE LLC, and SYED RESTAURANTS ENTERPRISES, INC., 624 SOUTH CONDUIT OPERATING CORP, d/b/a BURGER KING and 624 SOUTH CONDUIT OPERATING CORP, d/b/a POPEYES, Defendants.

Index No. 510899/2020

Supreme Court, Kings County

August 14, 2024

Unpublished Opinion

Wingate, Russotti, Shapiro, Moses & Halperin, LLP Manhattan (Luigi Izzo of counsel), for Kareem C. Middleton plaintiff.

Raneri, Light & O'Dell, PLLC, White Plains (Edward A. Frey of counsel), for HWM South Conduit, LLC and 624 South Conduit Ave., LLC, defendants.

McCabe & Mack, LLP, Poughkeepsie (Kimberly Hunt Lee of counsel), for Syed Restaurant Enterprises, Inc. and 624 South Conduit Operating Corp d/b/a Burger King and 624 South Conduit Operating Corp d/b/a Popeyes, defendants.

AARON D. MASLOW, J.

The following numbered papers were used on this motion:

Submitted by Moving Defendants in Support of the Motion

NYSCEF Doc No. 167: Notice of Motion

NYSCEF Doc No. 168: Edward A. Frey Affirmation

NYSCEF Doc No. 169: Exhibit A - Order Dated 4/11/24

NYSCEF Doc No. 170: Exhibit B - Statement of Undisputed Facts

NYSCEF Doc No. 171: Exhibit C - Kenneth L. Raisch Affidavit

NYSCEF Doc No. 172: Exhibit D - Christopher Todd Affidavit

NYSCEF Doc No. 173: Exhibit E - Summons and Complaint

NYSCEF Doc No. 174: Exhibit F - Moving Defendants' Answer

NYSCEF Doc No. 175: Exhibit G - Defendant Syed Restaurant Enterprises, Inc.'s Answer

NYSCEF Doc No. 176: Exhibit H - Supplemental Summons and Amended Complaint

NYSCEF Doc No. 177: Exhibit I - Moving Defendants' Answer to the Amended Complaint

NYSCEF Doc No. 178: Exhibit J - Defendant Syed Restaurant Enterprises Inc's Answer to the Amended Complaint

NYSCEF Doc No. 179: Exhibit K - Bill of Particulars

NYSCEF Doc No. 180: Exhibit L - Plaintiff's Deposition Transcript

NYSCEF Doc No. 181: Exhibit M - Javaid Syed's Deposition Transcript

NYSCEF Doc No. 182: Exhibit N - 2013 Bargain and Sale Deed

NYSCEF Doc No. 183: Exhibit O - 2015 Bargain and Sale Deed

NYSCEF Doc No. 184: Exhibit P - Lease Dated 12/29/94

NYSCEF Doc No. 185: Exhibit Q - Lease Assignment

NYSCEF Doc No. 204: Edward A. Frey Reply Affirmation

NYSCEF Doc No. 205: Exhibit A - Statement of Undisputed Material Facts

NYSCEF Doc No. 206: Exhibit B - Omnibus Counterstatement of Material Facts

NYSCEF Doc No. 207: Exhibit C - Statement of Undisputed Material Facts

NYSCEF Doc No. 208: Exhibit D - Omnibus Counterstatement of Material Facts

NYSCEF Doc No. 209: Exhibit E - Kenneth L. Raisch Affidavit

NYSCEF Doc No. 210: Exhibit F - Marked Statement of Undisputed Material Facts

Submitted by Plaintiff in Opposition to the Motion:

NYSCEF Doc No. 186: Omnibus Counterstatement of Material Facts

NYSCEF Doc No. 187: Exhibit A - Kenneth L. Raisch Affidavit

NYSCEF Doc No. 188: Exhibit B - Google Maps Topography

NYSCEF Doc No. 189: Exhibit C - Mark Lucaj Deposition Transcript

NYSCEF Doc No. 190: Exhibit D - Javaid Syed's Deposition Transcript

NYSCEF Doc No. 191: Exhibit E - Plaintiff's Deposition Transcript

NYSCEF Doc No. 192: Exhibit F - Hospital Records

NYSCEF Doc No. 193: Exhibit G - Google Maps Photo

NYSCEF Doc No. 194: Exhibit H - Mohammed Hossain Deposition Transcript

NYSCEF Doc No. 195: Exhibit I - Summons and Complaint and Answers

NYSCEF Doc No. 196: Exhibit J - Lease Dated 12/29/94

NYSCEF Doc No. 197: Exhibit K - Priester Decision (Wade J.)

NYSCEF Doc No. 198: Exhibit L - Plaintiff's Affidavit re Photographs

NYSCEF Doc No. 199: Exhibit M - Affidavit and Report of Dr. William Marletta

NYSCEF Doc No. 201: Luigi Izzo Affirmation

Filed by Court

NYSCEF Doc No. 215: Transcript of Oral Argument

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, ^[1] the within motion is determined as follows.

Facts

This is a trip and fall case where Plaintiff was injured after stepping into a hole in Defendants' parking lot, thereby sustaining allegedly serious injuries. Before the court is Defendants HWM South Conduit, LLC and 624 South Conduit Ave., LLC's (hereinafter "Movants-Landlords" or "Landlords") motion for summary judgment dismissing Plaintiff's complaint and all Defendant cross-claims against them; also for indemnification and contribution (see NYSCEF Doc No. 167, notice of motion). ^[2]

Movant Argument

Movant-Landlords argue that they are entitled to judgment as a matter of law because they are out-of-possession landlords who did not control the rear parking lot where Plaintiff alleges to have fallen and, in absence of such control, they did not owe a duty of care to Plaintiff (see NYSCEF Doc No. 168, Frey Aff ¶ 2). Additionally, Movants-Landlords aver that all of the maintenance responsibilities without exception were transferred to the tenant (see NYSCEF Doc No. 184, Lease ¶ 6; NYSCEF Doc No. 168, Frey Aff. ¶ 41). Not only this, but the parties both had a mutual understanding that Landlords were not responsible for anything maintenance- or repair-related on the premises (see NYSCEF Doc No. 168, Frey Aff. ¶ 40; NYSCEF Doc No. 181, Syed Transcript at 10, lines 18-24).

Opposition Argument

The opposition to this motion has been filed by Plaintiff. His argument is that Movants-Landlords have failed to demonstrate that they are not responsible for parking lot maintenance based on the verbiage of the lease because an order and accompanying decision, written by Hon. Carolyn E. Wade, J.S.C., in a similar pending action concerning the same lease, held in that action that Defendants Landlords were unable to establish that they owed the plaintiff therein no duty (see NYSCEF Doc No. 165, Izzo Aff ¶ 10). Plaintiff's argument herein is essentially that this Court should follow suit. Importantly, Defendant-Tenants (the remaining Defendants) take no position on the motion.

Analysis

It is well established in New York that out-of-possession landlords owe no liability for injuries that occur on their premises unless they have retained possession of the premises and are obligated contractually, statutorily, or based on a course of conduct (see Michaele v Steph-Leigh Assoc., LLC, 178 A.D.3d 820, 820 [2d Dept 2019]). The Second Department has also held that the reservation of a right of reentry may be sufficient grounds on which to predicate out-of-possession landlord liability for a subsequently arising dangerous condition where there is a dangerous structural condition or design defect (e.g. Alnashmi v Certified Analytical Group, Inc., 89 A.D.3d 10 [2d Dept 2011]; Gavallas v Health Ins. Plan of Greater NY, 35 A.D.3d 657 [2d Dept 2006]).

Equally well settled is the parol evidence rule, which precludes the admission of extrinsic evidence in contract interpretation unless there is some ambiguity that would be corrected by the evidence's admission (see Ross v 2582 Hylan Blvd. Fitness Group, 206 A.D.3d 893, 894-95 [2d Dept 2022]). Importantly, courts must admit such evidence according to the parties' intent, and "should be extremely reluctant to interpret an agreement as impliedly stating something which the parties neglected to specifically include. Hence, courts may not by construction add or excise terms, nor distort the meaning of those used..." (id. [internal citations omitted]).

In the instant action, Movant-Landlords have established themselves as out-of-possession landlords. As a result, summary judgment should only be denied if Movant-Landlords have failed to establish that they owe no duty of care to Plaintiff as a matter of law. They succeed in carrying their burden on the first element of the legal considerations, which is to say that they establish that they did not retain any control whatsoever of the demised premises as evidenced by the supporting affirmation of Kenneth L. Raich (lease negotiator and draftsman) (NYSCEF Doc No. 171) and the testimony of Javaid Syed (principal of Tenant) (see NYSCEF Doc No. 181).

Even assuming, arguendo, that Movant-Landlords did retain some control of the premises, they would still be entitled to summary judgment, as the other elements to establish duty are not satisfied. No party has identified any statutory obligation that would impose liability on Landlords, and there has been no evidence presented that would suggest that Movant-Landlords have ever repaired or maintained anything on the premises such to establish a course of conduct, which would leave only a contractual obligation.

In this action, the contract is the lease. Movant-Landlords' position that the lease specifically prescribes all liability to Tenants is persuasive here. More so, Plaintiff's argument that this Court should follow in the footsteps of Justice Wade's decision falls flat. In that decision Justice Wade, after being presented with the same lease as in the instant action, holds that there had not been a prima facie showing of an entitlement to summary judgment, given that the lease was silent on parking lot maintenance. As a result, Justice Wade denied the motion. However, there was no mention whatsoever of parol evidence in the decision, and therefore, it is possible that Mr. Raisch's contention - that the lease paragraph 6's use of "ways" was understood by all parties to mean the parking lots - was not included on the...