New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2000-010-031, Claim No. 96712, Motion Nos. M-61054, CM-61315


Synopsis


Defendant's motion for summary judgment and claimant's cross-motion to strike defendant's answer.

Case Information

UID:
2000-010-031
Claimant(s):
SABINE HERNANDEZ AND BENJAMIN HERNANDEZ
Claimant short name:
HERNANDEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96712
Motion number(s):
M-61054
Cross-motion number(s):
CM-61315
Judge:
Terry Jane Ruderman
Claimant's attorney:
YOUNG, SYMONS AND GELFANDBy: Ellen Buchholz, Esq.
Defendant's attorney:
LAW OFFICE OF GARY A. CUSANOBy: Edwin B. Winder, Esq.
Third-party defendant's attorney:

Signature date:
August 15, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-7 were read and considered by the Court on defendant's motion for summary judgment and claimants' cross-motion to strike defendant's answer:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Notice of Cross-Motion, Attorney's Opposing Affirmation, Opposing Affidavit of Sabine Hernandez and Exhibits................................................................................2

Attorney's Opposing Affirmation in Reply and Exhibit...........................................3

Claimants' Memorandum of Law..............................................................................4

Defendant's Memorandum of Law..........................................................................5

Defendant's letter Dated July 12, 2000 and EBT Transcript of Thomas Kelly........6

Claimants' Letter Dated July 19, 2000.......................................................................7

Filed Papers: Claim, Answer

Claim No 96712 alleges that on August 5, 1995, at approximately 8:30 p.m., claimant, Sabine Hernandez[1],was walking through the recreation center at Baker Camp in Harriman State Park, Rockland County, when a free standing rotating metal fan "came apart, causing the claimant to be struck with one of the blades" and sustain personal injuries (Ex. A to Claimant's Cross-Motion Papers, Verified Bill of Particulars, ¶ 4). Claimants allege that defendant was negligent in its maintenance of the fan and is therefore liable for the injuries sustained. Defendant, the owner of the property and the building, moves for summary judgment dismissing the claim on the ground that an organization known as Woods and Water in the Park, Ltd. (hereinafter "Woods"), operated the camp and the State was not responsible for maintaining the Woods fan.
Defendant's Summary Judgment Motion
A written agreement between the State and Woods set forth the duties and responsibilities of the parties (Ex. A of Defendant's Reply Papers, "Agreement"). The agreement provided that Woods would occupy Camp No. SB-5 for camping purposes between November 1st and October 31st of each year from November 1, 1993 until October 31, 1995. Woods was responsible for "keeping the buildings, grounds and equipment in good order at all times and returning the premises in the same condition as it was in the beginning of the term" (Agreement, ¶ 12). A camp inspection was to be conducted by defendant on September 30th of each year to determine the damages to be repaired by Woods prior to the next operating season (Id.). "All indoor and outdoor lighting fixtures" were to be maintained by Woods and "all kitchen equipment, beds, tables, chairs, infirmary equipment, boats, oars, life jackets, heaters (including furnaces, hot water) [were to] be owned and maintained" by Woods (Agreement, p. 9). The State agreed to maintain 1.7 miles of the entrance road, including plowing and sanding, and Woods agreed to maintain all the blacktop paths within the camp (Id. at p. 9). The State was responsible for "major maintenance of buildings, park water supply, sewage disposal plant, water and sewage lines, electrical lines, removal of dead trees, and garbage removal" (Id.). The parties further agreed that a resident director and a permanent maintenance person would be provided on an annual basis and a seasonal maintenance person would be provided from May 1 to October 31, the cost of which to be paid by Woods (Id.).

The EBT testimony of Thomas Kelly, the State's park manager since October of 1992, was submitted on the motion. Kelly supervised the maintenance of 32 group camps, which comprised approximately 1200 buildings, with each camp utilizing 30 to 40 buildings (EBT, pp. 6, 8). Kelly's staff consisted of 12 people who performed maintenance work on the water and sewer plants, repaired and replaced roofs, paved roads and plowed snow (EBT, pp. 10-11). When asked at the EBT, "To your knowledge, is there always a State employee on the premises [of Woods] ?" (EBT, p. 19). Kelly responded, "No there isn't" (EBT, p. 19).

Consistent with the agreement, Kelly stated that Woods owned all the equipment, including the fan which Kelly described as a six foot pedestal fan with three blades that were covered by a metal cage (EBT, pp. 7-8). Kelly explained, "The State just owns the property and the buildings." Woods runs "the day-to-day operation of the camp" (EBT, pp. 12-13), which would include "plugging in any fans" (EBT, pp. 13-14). Kelly was asked, "In regard to maintenance, if there was ever a problem with a fan, would you or someone from your crew be required to maintain these fans, or that's solely on [Woods] ?" (EBT, p. 15). Kelly answered, "The operating equipment for the day-to-day operating equipment is the responsibility of the camp operator" (EBT, p. 15). Kelly further noted that the State did not require the operator of the camp to keep any records regarding repairs to their equipment, nor was the State aware of whether such records were kept by Woods (EBT, p. 16). While Kelly would become aware of any incident reports filed by Woods, he had no knowledge of any incidents with a fan prior to claimant's accident (EBT, p. 17). Kelly explained, "Most of the camps' operators would deal with that kind of thing ***" (EBT, p. 20). When asked if the camps were supervised by the State, Kelly responded, "No. They have to conform to the sanitary codes, State Health Code, sanitary code. *** There are rules and regulations as far as boats used on the lakes in the park" (EBT, p. 26).

Claimants argue that the agreement and the EBT testimony of Thomas Kelly raise triable issues of fact as to whether defendant was responsible, either exclusively or co-extensively with Woods, for the repair and maintenance of the camp's instrumentalities (Claimant's Memorandum of Law at p. 15).

"[S]ummary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 quoting Moskowitz v Garlock, 23 AD2d 943, 944), and "negligence cases by their very nature do not lend themselves to summary dismissal ‘since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination'" (McCummings v New York City Tr. Auth., 81 NY2d 923, 926 quoting Ugarriza v Schmieder, 46 NY2d 471, 474). Here, however, the Court finds that defendant has made a sufficient showing to warrant granting judgment dismissing the claim (see, Windvand v 4612 13th Ave. Realty Corp., 269 AD2d 527 [out of possession landowner should have been granted summary judgment dismissing claim for injuries that occurred on the leased premises]).

The law is well settled that an out-of-possession owner is not liable for injuries that occur on the premises unless the owner either retained control over the premises or is contractually or statutorily obligated to repair or maintain the premises (see, Putnam v Stout, 38 NY2d 607, 617; Ritto v Goldberg, 27 NY2d 887, 889). In the instant case, the agreement provided that Woods was responsible for "keeping the buildings, grounds and equipment in good order at all times and returning the premises in the same condition as it was in the beginning of the term" and that a camp inspection would be conducted by defendant on September 30th of each year to determine the damages which were to be repaired by Woods prior to the next operating season (Agreement, ¶ 12). This limited right to reenter and inspect did not establish that defendant had retained sufficient control to provide a basis for imposing liability on defendant for injuries sustained in the camp (see, Dalzell v McDonald's Corp., 220 AD2d 638 [defendant owner's reservation of right to enter and inspect the premises is insufficient to impose liability on defendant]). Additionally, all repairs had to be done by Woods, at their expense (Blackwell v Jamal Holding Corp., 240 AD2d 527 [landlord's mere reservation of right to enter a leased premises to make repairs is insufficient to give rise to liability for a subsequently arising dangerous condition; moreover parties had contracted that, except for exterior structural repairs, tenant would make all repairs at its own expense]).

The agreement at page nine provided that the State was responsible for "major maintenance of buildings, park water supply, sewage disposal plant, water and sewage lines, electrical lines, removal of dead trees, and garbage removal." This is consistent with the EBT testimony of the State's park manager, Thomas Kelly, that the State merely owns the property and the buildings. Kelly also had a maintenance staff of only 12 people assigned to cover 32 camps comprising approximately 1200 buildings and their responsibilities were consistent with that set forth in the agreement, i.e., major maintenance, such as work on the water and sewer plants, repair and replacement of roofs, paving roads, and plowing snow. The State's degree of maintenance does not evidence a sufficient degree of control over the Woods premises to warrant imposing liability on the State (see, Zaglas v Gironda, 266 AD2d 282 [although defendant owner/lessor performed routine maintenance and was physically present on a portion of the property, defendant did not retain sufficient degree of control to warrant imposition of liability]).

Additionally, the fan was owned by Woods, as provided by page nine of the agreement that all camp equipment be owned and maintained by Woods (see, Butler v Passaro, 166 AD2d 548 [maintenance of the pool was the sole responsibility of the tenants, therefore defendant owner could not be held liable for structural defects in existence when tenant took possession of pool]; Gelardo v ASMA Realty Corp., 137 AD2d 787 [tenant was in exclusive possession of that portion of the premises where accident occurred and tenant was expressly covenanted to make all interior repairs]).

Further, consistent with the agreement, Kelly testified that Woods ran "the day-to-day operation of the camp" (EBT, pp. 12-13), which included "plugging in any fans" (EBT, pp. 13-14). Kelly was asked, "In regard to maintenance, if there was ever a problem with a fan, would you or someone from your crew be required to maintain these fans, or that's solely on [Woods]?" (EBT, p. 15). Kelly responded, "The operating equipment for the day-to-day operating equipment is the responsibility of the camp operator" (EBT, p. 15). According to Kelly, the State did not require the operator of the camp to keep any records regarding repairs to their equipment, nor was the State aware of whether such records were kept by Woods (EBT, p. 16). Clearly, the State did not retain control of the day-to-day operations of Woods (see, Baker v Getty Oil Co., 242 AD2d 644 [summary judgment in favor of lessor where it did not retain degree of control over premises and day-to-day business operations so as to permit imposition of liability against it]).

In sum, "a right of reentry for general inspection purposes, unrelated to any affirmative obligation to maintain or repair, does not confer control over the premises sufficient to impose liability for a subsequently arising dangerous condition ***, particularly where the dangerous condition arises concerning a piece of lawful equipment installed by the tenant ***, over which the landlord has no control ***" [citations omitted] (Canela v Foodway Supermarket, 188 AD2d 416 [landlord granted summary judgment dismissing complaint of shopper who was struck by food scale which fell from supermarket's ceiling suspension]). Contrary to claimant's assertions, there are no issues of fact which would preclude a granting of summary judgment dismissing the claim against defendant. Rather, the facts clearly establish that the State did not have sufficient dominion and control of the premises to warrant holding the State liable for the alleged negligent maintenance of a fan owned and maintained by Woods.
Claimants' Cross-Motion
Claimants cross-move for an Order striking defendant's answer on the ground that defendant failed to comply with claimants' discovery demand regarding the contractural agreement between the State and Woods. In reply, defendant submitted the agreement (Ex. A to Defendant's Reply Papers). The Court does not find claimants' allegations of willfulness, set forth for the first time in their memorandum of law, to be persuasive. Notably, claimants could have moved to compel discovery in 1998. However, claimants never sought to compel discovery in this claim until faced with a summary judgment motion. Under these circumstances, the Court finds claimants' allegations are intended to detract from their lack of diligence in proceeding with this case. Accordingly, claimants' cross-motion is DENIED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 96712.


August 15, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
The claim of Benjamin Hernandez, claimant's husband, is derivative.