| Kittay v Moskowitz |
| 2012 NY Slip Op 03520 [95 AD3d 451] |
| May 3, 2012 |
| Appellate Division, First Department |
| David R. Kittay, as Chapter 7 Trustee of the Estate of AbbieDastparvardeh, Debtor, Appellant-Respondent, v Herbert Moskowitz, Respondent andHudson River International LLC, Respondent-Appellant. |
—[*1] Weiner, Millo, Morgan & Bonanno, LLC, New York (Alissa A. Mendys of counsel), forrespondent-appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), forrespondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered July 5, 2011,which granted defendant Herbert Moskowitz's motion for summary judgment dismissing thecomplaint as against him, denied plaintiff's cross motions for leave to amend his bill ofparticulars, for spoliation sanctions, and to dismiss defendant Hudson River International LLC's(HRI) ninth affirmative defense, and denied HRI's motion for summary judgment dismissing thecomplaint as against it, unanimously modified, on the law, to grant HRI's motion, and otherwiseaffirmed, without costs.
The record demonstrates that defendant Moskowitz was an out-of-possession landlord, withno duty to maintain the premises. Notwithstanding that he had a limited right to reenter thepremises, at reasonable times, to make repairs not made by the tenant, Moskowitz cannot be heldliable for plaintiff's decedent's injuries because the record does not establish that the basis of thatliability is "a significant structural or design defect that is contrary to a specific statutory safetyprovision" (see Johnson v Urena Serv. Ctr., 227 AD2d 325, 326 [1996], lv denied88 NY2d 814 [1996]; Devlin vBlaggards III Rest. Corp., 80 AD3d 497, 497-498 [2011], lv denied 16 NY3d713 [2011]).
Former Administrative Code of City of NY §§ 27-127 and 27-128 were generalsafety provisions (see Boateng v FourPlus Corp., 22 AD3d 323 [2005]). Administrative Code § 27-375 (f), whichrequires, inter alia, handrails on "[i]nterior stairs," is not applicable, because the subject staircasewas not an "interior stair[ ]," i.e., not one that "serve[d] as a required exit" (Administrative Code§ 27-232; see Cusumano v City ofNew York, 15 NY3d 319, 324 [2010]; Maksuti v Best Italian Pizza, 27 AD3d 300 [2006], lvdenied 7 NY3d 715 [2006]). Noncompliance with regulations that govern tread width anddepth and lighting does not constitute a [*2]significant structuralor design defect (see Babich v R.G.T.Rest. Corp., 75 AD3d 439, 440 [2010]; Bethea v Weston House Hous. Dev. Fund Co., Inc., 70 AD3d 470[2010]; Peck v 2-J, LLC, 56 AD3d277 [2008]). The alleged violation of Multiple Dwelling Law § 190 cannot serve as abasis for liability since the accident is not alleged to have been caused by the presence of acombustible material.
In light of the foregoing, the court correctly denied plaintiff's motion for leave to amend thebill of particulars and for sanctions against Moskowitz for spoliation.
Defendant HRI demonstrated that it was the alter ego of plaintiff's decedent's employer,Antonio Thomas International Corp. (ATIC), HRI's parent company, which operated dentaloffices under the "Vital Dent" trademark and completely dominated and controlled HRI, andtherefore that decedent's exclusive remedy against HRI is the Workers' Compensation Law(see Workers' Compensation Law § 11; Carty v East 175th St. Hous. Dev. Fund Corp. 83 AD3d 529[2011]; Morato-Rodriguez v RivaConstr. Group, Inc., 88 AD3d 549 [2011]; Hernandez v Sanchez, 40 AD3d 446 [2007]). The fact that ATIC isorganized into separate legal entities does not negate alter ego status since, inter alia, the recordreflects that ATIC controlled and dominated HRI (see Ramnarine v Memorial Ctr. for Cancer& Allied Diseases, 281 AD2d 218 [2001]; Di Rie v Automotive Realty Corp., 199AD2d 98 [1993]). HRI did not waive its Workers' Compensation Law defense (see Murray vCity of New York, 43 NY2d 400, 407 [1977]; Raptis v Juda Constr., Ltd., 26 AD3d 153, 155 [2006], lvdenied 7 NY3d 716 [2006]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Saxe, J.P., Sweeny, Moskowitz, Freedman and Manzanet-Daniels, JJ.