| DeCourcey v Briarcliff Cong. Church |
| 2013 NY Slip Op 01799 [104 AD3d 799] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Bridget DeCourcey et al., Respondents, v BriarcliffCongregational Church et al., Appellants. (Action No. 1.) Bridget DeCourcey,Respondent, v Christian Nursery School, Inc., Respondent-Appellant. (Action No.2.) |
—[*1] Miranda Sambursky Slone Sklarin Verveniotis, LLP, Elmsford, N.Y. (RichardSklarin and Michael Neri of counsel), for appellant Joanne T. Borchers, doing businessas Christian Nursery School and respondent-appellant. Lawrence J. Glynn, White Plains, N.Y., for respondents.
In two related actions to recover damages for personal injuries, etc., (1) BriarcliffCongregational Church appeals, as limited by its brief, from so much of an order of theSupreme Court, Westchester County (Loehr, J.), entered June 8, 2011, as denied thosebranches of its motion which were for summary judgment dismissing the complaint inaction No. 1 insofar as asserted against it, and for summary judgment on its claim forcontractual indemnification against the defendant Christian Nursery School, Inc., and, ineffect, granted that branch of the motion of the defendants Joanne T. Borchers, doingbusiness as Christian Nursery School, and Christian Nursery School, Inc., which was forsummary judgment dismissing the claim of Briarcliff Congregational Church forcontractual indemnification against the defendant Christian Nursery School, Inc., and (2)Christian Nursery School, Inc., cross-appeals, as limited by its brief, from so much of thesame order as denied that branch of its cross motion, made jointly with the defendantJoanne T. Borchers, doing business as Christian Nursery School, which was for summaryjudgment dismissing the complaint in action No. 2.
Ordered that the notice of cross appeal is deemed to be by Christian Nursery School,Inc. (see Matter of Tagliaferri v Weiler, 1 NY3d 605 [2004]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, those branches ofthe motion of Briarcliff Congregational Church which were for summary judgmentdismissing the complaint in action No. 1 insofar as asserted against it, and for summaryjudgment on its claim for contractual indemnification against the defendant ChristianNursery School, Inc., are granted, that branch of the cross motion of the defendantChristian Nursery School, Inc., made jointly with the defendant Joanne T. Borchers,doing business as Christian Nursery School, which was for summary judgmentdismissing the claim of Briarcliff Congregational Church for contractual indemnificationagainst the defendant Christian Nursery School, Inc., is denied, and that branch of thecross motion [*2]of the defendant Christian NurserySchool, Inc., made jointly with the defendant Joanne T. Borchers, doing business asChristian Nursery School, which was for summary judgment dismissing the complaint inaction No. 2 is granted; and it is further,
Ordered that one bill of costs is awarded to Briarcliff Congregational Church payableby the plaintiffs and Christian Nursery School, Inc., and one bill of costs is awarded toChristian Nursery School, Inc., payable by the plaintiffs.
The plaintiff Bridget DeCourcey (hereinafter the injured plaintiff) was injured whenshe fell on a stairway located on property owned by the defendant BriarcliffCongregational Church (hereinafter the Church), while she was trying to get to a part ofthe Church's property that had been leased to the defendant Christian Nursery School,Inc. (hereinafter the Nursery School). The injured plaintiff, and her husband suingderivatively, commenced action No. 1 against the Church and Joanne T. Borchers, doingbusiness as Christian Nursery School. Upon ascertaining that the Nursery School, notBorchers, leased the subject premises, the injured plaintiff commenced a second actionsolely against the Nursery School. The Church moved for summary judgment dismissingthe complaint in action No. 1 insofar as asserted against it, and on its claim forcontractual indemnification against the Nursery School. Borchers and the Nursery Schoolcross-moved for summary judgment dismissing both complaints insofar as assertedagainst each of them and the Church's claims for contractual indemnification. TheSupreme Court denied the motion and that branch of the cross motion which was todismiss the complaint in action No. 2, granted that branch of the cross motion which wasto dismiss the complaint in action No. 1 and the Church's claims for contractualindemnification insofar as asserted against Borchers, and, in effect, granted that branchof the cross motion which was to dismiss the Church's claims for contractualindemnification insofar as asserted against the Nursery School.
The Supreme Court should have granted that branch of the Church's motion whichwas for summary judgment dismissing the complaint in action No. 1 insofar as assertedagainst it. Contrary to the Supreme Court's determination, the Church established itsprima facie entitlement to judgment as a matter of law by demonstrating that variousprovisions of the New York State Building and Construction Code and the New YorkState Uniform Fire Prevention and Building Code upon which the plaintiff relied wereinapplicable, that the subject stairway and door complied with all applicable codeprovisions, and that the subject stairway was not defective. In opposition, the plaintiffsfailed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). They failed to demonstrate that the various code provisionsupon which they relied were in effect at the time the subject structure was built, or thatthe structure underwent significant repairs or adjustments which would bring it under thecoverage of these provisions (see Ryan v KRT Prop. Holdings, LLC, 45 AD3d 663, 665[2007]; Meehan v David J.Hodder & Son, Inc., 13 AD3d 593, 594 [2004]; Hyman v Queens CountyBancorp, 307 AD2d 984, 986 [2003]). Additionally, while the absence of a violationof a specific code or ordinance "is not dispositive of [a] plaintiff's allegations based oncommon-law negligence principles" (Zebzda v Hudson St., LLC, 72 AD3d 679, 680-681[2010]), here, even assuming the existence of a dangerous condition, such condition wasopen and obvious and not inherently dangerous (see Schwartz v Hersh, 50 AD3d 1011, 1011-1012 [2008];see also Capozzi v Huhne,14 AD3d 474 [2005]).
The Supreme Court also should have granted that branch of the cross motion ofBorchers and the Nursery School which was for summary judgment dismissing thecomplaint in action No. 2. "Generally, liability for a dangerous condition on real propertymust be predicated upon ownership, occupancy, control, or special use of the property"(Russo v Frankels Garden CityRealty Co., 93 AD3d 708, 710 [2012]; see Bennett v Weber Job Lot Corp., 93 AD3d 684 [2012];Morrison v Gerlitzky, 282 AD2d 725, 725 [2001]; Millman v Citibank,216 AD2d 278, 278 [1995]). Here, the Nursery School established its prima facieentitlement to judgment as a matter of law by demonstrating that it had no exclusive rightto possession of the exterior stairway, which it was merely permitted to use in commonwith the Church, and that it had no contractual obligation to perform repairs to thestairway (see Bennett v WeberJob Lot Corp., 93 AD3d 684 [2012]; Quarless v Dengler, 48 AD3d 438, 439 [2008];Morrison v Gerlitzky, 282 AD2d 725 [2001]; Millman v Citibank, 216AD2d 278 [1995]). Moreover, the plaintiffs did not allege that the Nursery Schoolcreated the condition which allegedly caused the injured plaintiff's accident, or that theNursery School made special use of the stairway (see Morrison v Gerlitzky, 282AD2d 725 [2001]; Millman v Citibank, 216 AD2d 278 [1995]). In opposition,the plaintiffs failed to raise a triable issue of fact.[*3]
The Supreme Court should have granted thatbranch of the Church's motion which was for summary judgment on its claim forcontractual indemnification against the Nursery School, and denied that branch of thecross motion which was for summary judgment dismissing that claim. The subjectaccident falls within the scope of the indemnification provision contained in the leasebetween the Church and the Nursery School as the subject accident was "a thing growingout of the occupation of the demised premises" (see Amato v Our Lady of Peace R.C. Church, 56 NY2d 999, 1000-1001 [1982]; Bailey v Macy's E., Inc., 78 AD3d 624, 625 [2010]).Moreover, under the circumstances presented here, the subject indemnification provisiondoes not violate General Obligations Law § 5-321, since the accident was notcaused by any negligence on the part of the Church (see Correa v 100 W. 32nd St.Realty Corp., 290 AD2d 306, 306 [2002]; Eccleston v Berakha, 233 AD2d417 [1996]; see also Brown v Two Exch. Plaza Partners, 76 NY2d 172, 179-181[1990]; Alesius v GoodSamaritan Hosp. Med. & Dialysis Ctr., 23 AD3d 508 [2005]). Skelos, J.P.,Dickerson, Leventhal and Roman, JJ., concur.