Pettinato v. EQR-Rivertower, LLC

Pettinato v EQR-Rivertower, LLC

2025 NY Slip Op 30705(U)

March 3, 2025

Supreme Court, New York County

Docket Number: Index No. 159909/2016

Judge: Francis A. Kahn III

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 159909/2016

NYSCEF DOC. NO. 578 RECEIVED NYSCEF: 03/03/2025

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. FRANCIS A. KAHN, Ill PART

Justice

---------------------X INDEX NO. 159909/2016

LAURA PETTINATO, DUSTIN FISHLER,

- V -

Plaintiff,

MOTION DATE

--~=-+

MOTION SEQ. NO. _ _0_0_8_0_0_9_t-,

···•······-· ···· · ·· EQR 0 RIVERTOWER, LLC,EQR-RIVERTOWER A, ............ t·· ···•·

LLC,EQR-RlVERTOWER B, LLC,EQR-RIVERTOWER C, l

LLC,EQR-RIVERTOWER D, LLC,EQR-RIVERTOWER E, DECISION + ORDER ON

LLC,RIVER TOWER OWNER LLC.OLDCASTLE MOTION

BUILDINGENVELOPE, INC.

Defendant.

---------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 008) 463, 464, 465, 466,

467,468,469,470,471,472,473,474,475,476,477,478,4 79,480,481,482,483,484,485,486,487,

488,489,490,491,492,493,494 495,496,497,518,519,522,524,525,526,527,528,529,53 0,531,

532,547,548 •

were read on this motion to/for JUDGMENT - SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 009) 498, 499, 500, 501,

502,503,504,505.506, 507. 508. 509.510. 511,512,513,514,515,516,517,520,523,533,534,535,

536,537,538,539,540,541,542,543,544,545,546,549,5 50,551

were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

Upon the foregoing documents, the motions are determined as follows:

This action arises out an incident that occurred on March 16, 2016, in the bathroom withjn the

apartment located at 420 East 54 th Street, Apt. 12G, New York, New York. The premises wher~ the unit

is located is a large residential apartment building containing approximately 378 units and Plaintiffs

were the lessees. At the time, the subject bathroom was improved by a combination bathtub and shower

which was enclosed with glass doors that ran along a track. Plaintiff Laura Pettinato ('·Pettinato[') took

up residence in the apartment with her husband, Dustin Fishlcr ('Tishler"), in July 2008 and usefi the

shower almost daily without occurrence until the incident. Pettinato asserts she was injured wh~n she

fell stepping out of the bathtub/shO\ver and cut her genitals on the shower door track. P1aintiff<; :

acknO\vledge that the shower door track was unchanged from their initial occupancy until the in~ident.

Pettinato testified at her deposition that prior to the accident she never complained to building ;:

management about the sho\.ver track but called for service of a clogged drain in the tub and a "st~ffed"

toilet. Immediately prior to her fall, Pettinato reported she felt faintish, attempted to exit the tutj and her

left foot slipped. Fishlcr reported he found Pettinato unconscious on the bathroom floor, remov: d her to

the bedroom and perfonncd CPR until EMT personnel arrived.

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Motion No. 008 009

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NYSCEF DOC. NO. 578 RECEIVED NYSCEF: 03/03/2025

When the incident happened, Defendant River Tower Owner, LLC ("River Tower") ojed the

building where Plaintiff's apartment was located. River Tower acquired the building by deed dated

January 28, 2016, forty-eight [48] days prior to the incident, from Defendants EQR-Rivertower,! LLC,

EQR-Rivertower A, LLC, EQR-Rivertower B, LLC, EQR-Rivertower C, LLC, EQR-Rivertow~ D,

LLC and EQR-Rivertower E, LLC ("EQR"). The contract of sale for the premises between

and EQR was dated October 30. 2015.

Ri1

r Tower

1

In the amended complaint, Plaintiff pied, inter alia, multiple causes of action based inc mmon-

law negligence against River Tower and EQR. Plaintiffs allege the tub surface was negligently slippery

and that the sho\ver door track was in a dangerously sharp condition. Defendant River Tower ar;iswered

··· ... ·- ·- - and pled three affirmative defenses as \ve-11 as a crossclaim for common-law contribution against EQR.

Defendants EQR answered and pled ten affirmative defenses as well as crossclaims against all the other

Defendants for common-law indemnification and contribution. contractual indemnification and ror

breach of contract for failure to obtain insurance. The action was discontinued as against Defentlant

Oldcastlc Building Envelope, Inc. All Defendants answered the various crossclaim:. '

I

Thereafter, Defendant EQR moved to dismiss Plaintiff's complaint and all crossclaims p~irsuant

to CPLR §3211 [aj[7], as well as for summary judgment under CPLR §3212, upon the argumcnt1it was

-----+1ot the ov,ner at the time of the incident. Plaintiff and Defendant River To\ver opposed the motjon. By

order dated September 19, 2019, Justice Arlene Bluth denied EQR's motion in its entirety. Justice Bluth

held that "there is an issue of fact \Vith respect to v,:hether River Tower had a reasonable time to /inspect

and discover the alleged dangerous condition (the sharp shower/worn bathtub track). The Cour~ is

unable to find as a matter of law that less than two months was enough time for River Tower". Justice

l

Bluth also rejected the claim that an ··as is" clause in the contract of sale insulated EQR from liability for

the accident.. Resultantly, the branch of EQR's motion to dismiss River Tower's crossclaims fot

indemnification and/or contribution was also denied.

Now, Defendants ~QR again moves pursuant to CPLR §§3211 and 3212 (ivfot Seq No 8, for

summary judgment dismissing Plaintiff's complaint and River Tower's crossclaims. EQR also ~eeks

summary judgment on its indemnification crossclaim. Defendant River Tower moves pursuant to CPLR

§3212 (Mot Seq No 9) for swnmary judgment dismissing Plaintiff.~s complaint and EQR's crosrlaims.

Plaintiff opposes both motions. Defendant River Tmver partially opposed .EQR's motion.

A party moving for summary judgment must establish, in the first instance, entitlement t,

judgment as a matter oflaw by tendering sufficient evidence in evidentiary form which eliminat,es any

material issues of fact (see Alvarez v Prospect Jfospital, 68 NY2d 320 [1986]; Zuckerman v cd· of New

York, 49 NY2d 557 [ 1980]). Failure to make a primafacie case requires denial of the motion re~ardless

of the sufficiency of the opposition papers (see Alvarez v Pro.spec! llospital, supra at 324; see alw

Smalls v AJI Industries. Inc., 10 NY3d 733, 735 [2008]). If the movant meets its requirement, e

burden shifts to the opposing party Lo establish the existence or a triable issue or fact (see Alvar z v

Pro:.pect llo:.p., supra; Zuckerman v City ofNew York, supra).

EQR's summary judgment motion is successive to its prior motion which was denied up n a

determination that an "issue of fact" existed as to v,hether "less than two months" was enough tiime for

River Tower to ''inspect and discover" the defect at issue. Although second motions for accclcr~ted

judgment are disfavored, where, as here, the "first motion, made b~fore discovery. is denied on fue

ground of the existence of a factual issue which, through later uncove1ing of the facts. is resolve~ or

eliminated'' the motion can be entertained (see Pough v Aegis Property Services Corp., 186 AD1d 52,

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53 ll st Dept 1992], ciring Freeze Right Refrigeralor & Air Conditioning Svcs v City ofNew Yor , 101

AD2d 175, 181 [1 st Dept 1992]).

"[A] landowner is under a duty to maintain its property in a reasonably safe condition uµder the

existing circumstances, which include the likelihood of injury to a third party, the potential that such an

injury \Vould be of a serious nature. and the burden of avoiding the risk," (Smith v Costco Wholesale I

Corp., 50 AD3d 499 [Pt Dept 2008] citing Basso v Miller, 40 NY2d 233, 241 f1976)). That duty, and

by extension liability for negligence, is premised upon the landholder's exercise of occupancy, I

ownership, control or a special use of such premises since "the person in possession and control1of

property is best able to identify and prevent any harm to others" (see Butler v Rqtf"erty, 100 NY2d 265.

270 [2003]; see also Basso v Alf!ler, 40 NY2d 233 [1976]). ·'Thus, '[a] property owner is subje4t to

-------l-hM.afH-hil.i-iy-for a defective condition on its premises if a plaintiff demonstrates that the owner eitheri created

the alleged defect or had actual or constructive notice of it"' (Doherty v 730 Fifth Upper, LLC, p7

---~A~D=';=d~606, 607 [1 st Dept 2Q')4], quoting Singh v United Cerebral Paf.\y of IVY City, Inc .. 72 Af?3d 272,

275 ll '1 Dept 2010]). However, '·a landlord is not liable to a tenant for dangerous conditions onithe

o:

leased premises, unless a duty to repair the premises is imposed by statute, by reg~lation by cpntract"

(Rivera v lv'elson Realty, LLC, 7 NY3d 530, 543 [2006]). 1n Nev., York, that duty 1s established µndcr

Multiple Dv<'elling Lav,: §78[1] which requires the owners of such buildings "be kept in good repair".

New York City landlords are further charged under the Administrative Code with the responsibi;lity for

safe maintenance of their buildings and facilities (see NYC Administrative Code §§ 27-127, 27-il28).

To sustain its burden on a motion to dismiss a premises liability cause of action, a property

o\\11er is required to demonstrate, as a matter oflaw, that one or more of these essential elements are

negated as a matter of law (see eg Rodriguez v Kwik Realty, LLC, 216 A.D.3d 477 [!5 1 Dept 202p]; Poon

v :Viscmov. 162 l\D3d 804 f2d Dept 20181). For instance. "[i]n the absence of duty. there is no breach

and without a breach there is no liability" (Pulk.av Edelman. 40 NY2d 781, 782 [1976)). The p~mary

I

argument posited by EQR Dctcndants is that since it is undisputed they did not nwn the prcmis on the

day or the incident, they owed no duty to Plaintiff

Typically, a lando'w-ner's liability for the condition ofreal estate ceases when possession and

control is transferred (see Pharm v Lituchy, 283 NY 130, 132 [1940)). '·A narrow exception exi ·ts,

however, and liability may be imposed where a dangerous condition existed at the time of the 1

conveyance and the nev,' O\Vner has not had a reasonable time to discover the condition, if it waJ

unknown, and to remedy the condition once it is known'' (Bittroljf v Ho's Dev. Cm7J., 77 NY2d ~96, 898

[1991 ]; see also Davis v Angiolefli, 215 AD3d 552 [Pt Dept 2023]). "The nature of the conditiqn. the

manner in which the buyer uses the land, and the time elapsed are all to be considered in detenn1ning

whether the buyer had reasonable opportunity and the seller's responsibility had, therefore, cnde~·, (IA

PJI3d 2: I 08 at 758 [2025)). Regarding the nature of the condition, "[a) very latent defect, not li~ely to

be discovered in the course of nom,al inspection or use of the land, may make the vendor liahle ffor a

considerable length of time after he surrenders possession, whereas a somewhat more obvious ohe.

which might reasonably be expected to be discovered in the course of normal use, would make him

I

liable only for a shorter time" (Restatement, [Second] of Torts §353, Comment g). As to the usJ

of the

premises, ··[o ]ne who occupies land as his dwelling may reasonably be expected to discover conditions

of which he might reasonably remain unmvare if the land .vere allowed to remain vacant" (id). I

It

. Here, EQR's argume?t. on this point in the prior motion was based exclusively on the pa~sage of

time bet\veen transference ot title and the date of the accident. Since issuance of the decision mi the

prior motion, the parties engaged in significant discovery and EQR's present motion is founded on

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Motion No. 008 009

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deposition testimony and documents marshaled in discovery. This e,idence demonstrated that lvcr

Tower, through its agents, was granted repeated and extensive access to the subject building. as\vel1 as

the multiple units therein, for some four months prior to the sale. These inspections included access

given to an architect and engineer retained by River Tower. Steve Figari and Michael Zampctti,

employees of River Tower's parent company, testified regarding their access prior to closing. Zampetti

ackno\vledged he visited the building more than twenty times prior to the closing and that other;

representatives toured the property on more than forty occasions. Figari admitted visiting the p~operty

some twentv-five times before the sale and that he accessed vacant units on each occasion. Jerehliah

Thorpe ("Thorpe"), a Regional Manager for the EQR Defendants, whose responsibilities includ~d

overseeing the building at issue. denied knowledge of any complaints concerning slipperiness of the tubs

?r sharpness of~e s~~w~r d,oor rails prior to the accident. But Thorpe acknowledged that EQ1never

inspected the ··su1tabil1ty, ot the shower door and tracks. . !

In an al1idavit submitted in this action by Pettinato, dated January 27, 2020, she averred ~hat

prior to the sale and the accident, a representative of River Tower and an engineer inspected her\

apartment, including the bathroom, in detail. She averred that the examination of the unit inciu4cd

taking photographs as well as video and that similar inspections were performed of the apartments of her

"friends and neighbors in the building". As to the existence of the alleged condition, Plaintiff t9stified

that it was present when her occupancy began in 2008 but admitted that she never complained tI' EQR

regarding the condition of the shower door track.

Although this new evidence might constitute sufficient proof to support that River Towe, could

have discovered the purported condition through the pre-closing inspections of the apartments, ihcluding

Plaintiffs unit (see eg Privette v Precision El, 143 AD3d 639. 640 [1st Dept 2016]: Brazell v Wells

Fargo Home Mtge .. lnc., 42 AD3d 409 [l 't Dept 2007]), FQR proffered notfong to support its a$sertion

that adequate time to remedy the cond1lion existed (see Farragher v New York, 26 AD2d 494 [l~tI Dept

1966], ajjd on opn below 21 NY2d 756 [1968]; Moyse v Wagner, 66 AD3d 976, 977 [2d Dept 2p09l

Brown v O'Connor, 193 AD2d 1088 [4 th Dept 19931; Young,• Hanson, 179 AD2d 978 [3d Deptil992]).

Despite the access granted to River Tmver during the escrow period, there is no indication from :rhe

contract or the testimony that \Vhile the contract vendee River Tower was authorized to performjpre-

closing repairs on Plaintiffs unit. much less the other 377 apartments in the building.

Any argument regarding the claimed prcclusive effect of the "as is" language in the sale,

agreement is unavailing. '·Under New York law an 'as is' clause in a contract is interpreted to bar only

actions based upon breach of \varranty" (International Clinical Laboratories, Inc. v SL evens, 71 Qf Supp

466,469 [EDNY 1989]). Therefore, ""[als is' clauses arc intended to negative the existence of Jny

representations by the seller as to the particular condition, fitness, type of construction, etc., of tbe

premises sold" (Approved Properties, lnc. v. Nev.' York, 52 Misc. 2d 956 [Sup Ct Rich. Cty 1966J). •

Here. there is nothing to indicate that the parties intended that provision to absolve EQR from miy

r

potential negligent conduct of its own (see generally Sweeney v Herrz Corp, 292 AD2d 286 l ' 1 Dept

2002]). Indeed. it should be noted that no new or different evidence was submitted which would

contradict Justice Bluth's holding that the contract language does not "unmistakably state that E'· R \Vas

purporting to contract m.vay its own negligence".

Accordingly, the branch of Defondant EQR's motion for summary judf:,rn1cnt dismissing

Plaintiffs complaint is denied.

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Motion No, 008 009

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Defendant R.i ver Tower posits that it is due dismissal of Plainti fr s complaint si nee "th1

credible evidence of any actionable defect of either the shower door track or of the bathtub". Walso

is no

claims that irrespective of the existence of an actionable defect, "Plaintiff's medical emergency:was a

superseding, intervening cause'' of her accident. "[W]hether a dangerous or defective conditioq exists

on the property of another so as to create 1iability depends on the peculiar facts and circumstantjes of l.

each case' and is generally a question of fact for the jury" (Trincere v County ofSuffolk, 90 NYN 976, I'

977 [1997]lcitations and quotations omitted]). Nevertheless, "[s]ummary judgment in favor of~

defendant is appropriate where a plaintiff fails to submit any evidence that a particular conditio1~ is

actually defective or dangerous" (Lezama v 34-15 Parsons Blvd. LLC, 16 AD3d 560 [2d Dept 2p05]).

On this motion, it is of course Defendant's burden to shov. prima facie that the alleged defect is: not

actionable (see eg Hunter v Riverview Towers, Inc., 5 ADJd 249 [1 st Dept 2004]). i

Here, Defendant River Tower pointed to Plaintiffs' extended use of the shower without tfficulty

and Pettinato· s neglect to lodge a complaint about the shower with EQR during her occupancy. iAbsent,

however. was any expert analysis that the shower door track was not defective and complied with

applicable building codes (see h1go v Belmont Blvd. Ilous. Dev. Fund Co .. Inc., 157 AD3d 559lfl si Dept

2018] ). Reliance on this type of generalized testimony is insuflicient to meet Defendant's burd~n in the

first instance (see Dan v City of New York, 217 AD3d 495 [P' Dept 2024]). Further, evaluation\ofthe

crcdibilitv of the evidence is not. wider the circumstances. a court's function on a motion for suinrnarv

,,,, , , I .,.

judgment (see eg Ferrante v American Lung Assn., 90 NY2d 623, 631 f 1997]). Even were a pr~mafacie

case made, the affidavit of Plaintiffs professional engineer regarding the condition of the showh would

raise an issue of fact (see Siciliano v Henry Model! & Co., Inc., 85 AD3d 534 [l st Dept 2011 J). I

. I

Concerning causation, a "plaintiff must generally show that the defendant's negligence V<'as a

substantial cause of the events which produced the injury'· by a preponderance of the evidence

(Derdiarian v Felix Contractor Corp., 51 NY2d 308,315 [1980]). However, the mere existence of an

exculpatory cause of a plaintiffs injuries is not, in and of itself, fatal since "there may be more i;han one

proximate cause of an injury" (Argentina v Eme,y World Wide Delivery Corp., 93 NY2d 554, 5(>0 n2

[1999J; see also Mazella v Beals, 27 NY3d 694, 706 (2016]; Galioto v Lakeside Hospital, 123 ,4D2<l

421,422 [2d Dept l986]["in order for a plaintiff to recover damages, a defendant's negligence ~eed not

be the sole cause of the injury; it need only have been a substantial factor in bringing the injury about"]).

In this case, River To,ver need not have foreseen that a tenant might become dizzy or faint while using

the sho\l,rer, rather the trier of fact could conclude the "foreseeable. normal and natural result" of\ the

shower floor and door track created the risk at issue (see Delaney v First Concourse Mgmt. Co., 275 1

AD2d 233 [P1 Dept 20001; see also Clindinin v }Vew York City Haus. Auth., 117 AD3d 628 [!51 Dept

2014]l. 1

• I

I 1

Accordingly, the branch of Defendant River Tower's motion for summary judgment dismissing

Plaintiff's complaint is denied. I

Regarding Lhc branches of Detcnctams· motions related to their cross-claims, common-law

indemnification cannot be obtained "unless [the putative indemn.itccl has been held to be vicariduslv

liable <w'ithout proof of any negligence or actual supervision on its own part" (McCarthv v Turne~ ·

Constr., inc., 17 NY3d 369, 377-378 [2011]; Broyhill Furniture Indus .. Inc. v Hudson Furniturd

Galleries_'. LLC. 61 AD3d 554,556 [JS1 Dept 20091). Based on the foregoing detem1inations oft e

Court, neither party demonstrated an absence of negligence on their part. -

Accordingly, it is

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Motion No. 008 009

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NYSCEF DOC. NO. 578 REC EIVED NYSCEF: 03/ 03/ 202 5

1

and 9) are

ants EQR and River Tower (Mo t Seq No 8

ORDERED that the motions by Defend I

~~-

3/3/2 025

DATE

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FRANCIS A. KAHN, Ill, A":i s.c.

I

CHECK ONE: CASE DISPOSED x No NJ filN Pcf RA NC

JS A. }~ HN Ill

GRANTED 0 DENIED GRAN TED IN PART

□ OT➔ER J.S.C.

SETTLE ORDER SUBMIT ORDER

I

APPU CA TION:

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vs. EQR-RlVERTOWER ' LLC

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Motio n No. 008 009 i

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