| Baulieu v Ardsley Assoc., L.P. |
| 2011 NY Slip Op 05196 [85 AD3d 554] |
| June 16, 2011 |
| Appellate Division, First Department |
| Rene Baulieu et al., Respondents, v Ardsley Associates,L.P., et al., Appellants, and Powerhouse Maintenance Inc., Respondent, et al.,Defendants. |
—[*1] Gorton & Gorton LLP, Mineola (John T. Gorton of counsel), for Baulieu respondents. Harris, King & Fodera, New York (Kevin J. McGinnis of counsel), for PowerhouseMaintenance Inc., respondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 13, 2010,which, in this trip and fall personal injury action, denied that branch of defendants ISJManagement Corp.'s (ISJ) and Ardsley Associates L.P.'s (Ardsley LP) motion for summaryjudgment dismissing the complaint and all cross claims as against ISJ; denied, with leave torenew, that branch of ISJ/Ardsley LP's motion seeking a change of venue from New York Countyto Westchester County; and granted defendant Powerhouse Maintenance Inc.'s (Powerhouse)motion for summary judgment dismissing the complaint and all cross claims as against it,unanimously reversed, on the law, without costs, Powerhouse's motion denied, and the complaintand cross claims reinstated as against it, and ISJ/Ardsley LP's motion for summary judgment asto ISJ and for a change of venue as to Ardsley LP, granted. The Clerk is directed to enterjudgment dismissing the complaint and all cross claims as against ISJ.
Powerhouse contracted with Ardsley LP to perform "as-needed" repair work on Ardsley LP'sstrip mall parking lot. Plaintiff Rene Baulieu allegedly lost her balance as she stepped down fromthe mall sidewalk, into the parking lot, and her right foot came into contact with a "build-up" ofasphalt, which abutted the curb and sloped sharply downward to the level of the parking area.Plaintiff was allegedly "pitched-forward" and inadvertently stepped into a pothole, which causedher injury.
We find that Powerhouse did not establish prima facie entitlement to summary judgmentdismissing plaintiffs' claim, which was predicated upon the first exception in Espinal vMelville Snow Contrs. (98 NY2d 136 [2002]; see generally Martorel v Tower Gardens,Inc., 74 AD3d [*2]651 [2010]; Prenderville v International Serv. Sys.,Inc., 10 AD3d 334 [2004]). Powerhouse never addressed the issue of the steepslope/macadam raised in plaintiffs' bill of particulars and deposition testimony, and Powerhouse'sprincipals could not state with certainty whether Powerhouse had performed asphalt repair workin the area where plaintiff was injured.
In any event, even assuming, arguendo, Powerhouse had met such prima facie burden, theevidence proffered by ISJ/Ardsley LP and plaintiffs raised triable issues of fact whether theasphalt work performed by Powerhouse created an unreasonable risk of harm, or exacerbated apreexisting hazardous condition (see Church v Callanan Indus., 99 NY2d 104 [2002]).The affidavit of plaintiffs' expert engineer, which was submitted in opposition to Powerhouse'smotion, opined that the macadam had a dangerous slope and violated certain specified localcodes and regulations. The expert affidavit should have been considered on the motion,notwithstanding that plaintiffs failed to timely disclose information about the expert before filingtheir note of issue. On this record, we find no evidence that plaintiffs' belated disclosure of theexpert information was willful, or that it prejudiced Powerhouse, inasmuch as the specifics of thealleged macadam defect, and the codes and regulations claimed to be violated, were previouslyset forth in plaintiffs' bill of particulars and deposition testimony (see generally Downes vAmerican Monument Co., 283 AD2d 256 [2001]; Jefferson v Temco Servs. Indus.,272 AD2d 196 [2000]).
The evidence did not raise a triable issue of fact as to whether ISJ, as managing agent to mallowner Ardsley LP, owed plaintiffs' a duty of care. ISJ established that its management of thepremises was not comprehensive or exclusive (see Espinal, 98 NY2d 136). While ISJemployees performed bookkeeping for the mall, fielded complaints from tenants regarding themall premises, and contacted contractors to perform repairs at the mall when needed, inspectionof the premises was conducted by a separate independent contractor (Raho), and Raho wouldperform minor repairs. Substantial repairs, having a cost of $5,000 or more, had to be approvedby the owner. The owner paid for all repairs, and whether the owner had sufficient money at agiven time dictated the extent of allowable repairs. Such evidence precluded a finding that ISJhad authority over the management of even minor repairs at the mall (see Vushaj v Insignia Residential Group,Inc., 50 AD3d 393 [2008]).
While there was evidence that ISJ was given prior notice of the pothole defect in front of theSunnydale store (see e.g. Tushaj v Elm Mgt. Assoc., 293 AD2d 44 [2002]), and that itwas ISJ's duty to make arrangements to remedy the defect, financial issues regarding asphaltrepair still remained largely within Ardsley LP's control. Indeed, the defects at issue whichallegedly contributed to Baulieu's fall appear to involve substantial cost to repair (i.e., potentialcorrection of the macadam slope along the 241-foot curbline, in addition to pothole repair). Onthis record, it may not be reasonably inferred from the facts that a triable issue exists whether ISJhad comprehensive control and authority over remedying the alleged property defects thatplaintiffs' claimed contributed to the fall and injury.
With dismissal of ISJ from the action, that branch of ISJ/Ardsley LP's motion that sought achange of venue to Westchester County should be granted, as venue in New York County waspredicated solely upon ISJ's principal place of business in such county (see Moracho v Open Door Family Med.Ctr., Inc., 79 AD3d 581 [2010]; Halina Yin Fong Chow v Long Is. R.R., 202AD2d 154 [1994]), and the remaining parties in the action either reside in Westchester County orare agreeable to a change of venue to that county (see e.g. Gramazio v Borda, Wallace &Witty, 181 AD2d 428 [1992]). Concur—Andrias, J.P., Friedman, Sweeny, Renwickand RomÁn, JJ. [Prior Case History: 2010 NY Slip Op 32272(U).]