Marks v. Cosmos Ventures I, LLC

2024 NY Slip Op 33617(U)

• Court: New York Supreme Court, New York County
• Decided: October 11, 2024
• Docket: Index No. 156521/2017
• Status: Unpublished

Opinion

Marks v Cosmos Ventures I, LLC 2024 NY Slip Op 33617(U) October 11, 2024 Supreme Court, New York County Docket Number: Index No. 156521/2017 Judge: Paul A. Goetz 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. 156521/2017 NYSCEF DOC. NO. 579 RECEIVED NYSCEF: 10/11/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 156521/2017 JENNIFER MARKS, AS ADMINISTRATRIX OF THE ESTATE OF LYNNE MARKS, DECEASED, 06/26/2023, MOTION DATE 06/28/2023 Plaintiff, MOTION SEQ. NO. 015, 016 - V -

COSMOS VENTURES I, LLC, and TRUMP DECISION + ORDER ON INTERNATIONAL HOTELS MANAGEMENT LLC MOTION Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 015) 413, 414, 415, 416, 417,418,419,420,421,422,423,424,425,426,427,428,429,430,431,432,433,434,435,436,437, 438,439,440,441,529,532,533,534,535,536,537,538,539,547,549,553,554,559,560,562,563, 565 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

The following e-filed documents, listed by NYSCEF document number (Motion 016) 500, 501, 502, 503, 504,505,506,507,508,509,510,511,512,513,514,515,516,517,518,519,520,521,522,523,524, 525,526,527,528,530,531,540,541,542,543,544,545,546,548,550,555,556,557,558,561,564, 566 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

In this negligence action, defendant Trump International Hotels Management LLC

(Trump), the building owner, moves pursuant to CPLR §3211 and CPLR §3212 for dismissal or

summary judgment dismissing the plaintiff's complaint in its entirety and all cross-claims as

against it (NYSCEF No. 413, Notice of Motion, motion sequence number 015 [MS #15]).

Defendant Cosmos Ventures I, LLC (Cosmos), the condominium unit owner, moves

pursuant to CPLR §3212 for summary judgment dismissing plaintiff's complaint in its entirety

and all cross-claims as against it (NYSCEF No. 500, Notice of Motion, motion sequence number

016 [MS #16]).

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BACKGROUND

Plaintiff as Administratrix of the Estate of Lynne Marks, deceased (Plaintiff), 1 moved

into the subject apartment, a condominium unit owned by Cosmos, located at One Central Park

West, Unit 26B, New York, New York, on November 8, 2016, pursuant to a lease agreement

with Cosmos for a term of three years (NYSCEF No. 514, the Lease). Less than a month into

her tenancy on December 6, 2016, plaintiff notified Trump by email regarding the presence of

what she categorized as mold in the master bathroom shower (NYSCEF No. 511, pg 81, Exhibit

H). 2 In response, defendants authorized and instructed plaintiff to remedy the issue to her

satisfaction and deduct any cost incurred for the remediation from her rent (Id. at 79-80).

Thereafter, plaintiff was absent from the apartment from December 28, 2016, through March 5,

2017. It was during this time that a water leak occurred (on February 22, 2017) due to a broken

supply hose under the sink in the kitchen of the apartment. Defendants immediately retained a

professional drying service to clean up the water and dry out the kitchen (NYSCEF Nos. 501 &

541 ,i,i 5-7, Statement and Response to Material Facts; See also NYSCEF No. 512, pg 145,

Exhibit I). After plaintiffs return to the apartment the parties were in communication via email

on March 5, 2017, regarding scheduling repairs due to the water damage caused by the leak

(NYSCEF No. 512, pg 157, Exhibit I).

On March 9, 2017, plaintiff notified defendants by email that a mold condition in the

apartment allegedly caused her to become ill and demanded repairs be immediately made and

that her monthly rent in the lease be renegotiated. Plaintiff also referenced the December 6, 2016

1 This action was filed prior to the death of plaintiff, Lynne Marks, and the caption was amended pursuant to a Status Conference Order. (NYSCEF No. 149). 2 Despite conducting a "very thorough" walk through of the apartment prior to taking possession, plaintiff neglected to go into the shower and speculates that mold had been there for quite some time before notifying defendants (see NYSCEFNo. 511,pg 81). 156521/2017 LEAF, LAWRENCE vs. COSMOS VENTURES I, LLC Page 2 of 8 Motion No. 015 016

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email she previously sent defendants complaining of mold in the master bathroom shower (Id. at

pg 159). On the same day Cosmos authorized all necessary repairs, including air testing for the

presence of mold (Id. at pg 161; see also pg 43 lines 11-20, Malikova-Frankel Transcript).

Defendants retained a licensed mold assessor from Warren Panzer Engineers, P.C. to test for

mold plaintiff's apartment in response to plaintiff's complaint. However, access was denied by

plaintiff for testing on March 10, 2017, as plaintiff alleged this visit was not prearranged and she

was not available to supervise (NYSCEF No. 511, pg 110, Exhibit H). On March 13, 2017,

plaintiff granted access her apartment, and air and surface samples were collected. The results

were negative for active mold (NYSCEF No. 512, pg 148, Mold Sampling Letter dated March

20, 2017). On March 23, 2017, defendants emailed plaintiff advising of their desire to bring in

an alternate contractor to provide an estimate for the repairs in the apartment. Plaintiff advised

defendants in response via email that no contractor was permitted to enter the apartment and that

any further correspondence would have to be directed to her attorney (Id. at pgs 155-156).

Thereafter, Cosmos agreed to terminate plaintiff's lease and by April 18, 2017, plaintiff had

vacated the apartment (Id. at pg 163; see also NYSCEF nos. 501 & 541, ,i 12).

In July 2017, plaintiff sued defendants for personal injuries allegedly sustained from

mold exposure in the apartment (NYSCEF No. 1, Summons and Complaint). Trump answered

the complaint in August 2017, and Cosmos answered the complaint in September 2017.

Defendants raised cross-claims against each other, with Trump replying to Cosmos' cross-claims

in September 2017. However, the court notes that there is no record of an answer by Cosmos to

the cross-claims against them on NYSCEF (see NYSCEF Nos. 2, Trump Answer; 6, Cosmos

Answer; 15, Trump Reply to Cross-Claims). 3

3 While CPLR 3 212 (b) requires a motion for summary judgment to be supported by a copy of the pleadings, the court may extend a search of the record to include the court file for purposes of ascertaining a procedural history 156521/2017 LEAF, LAWRENCE vs. COSMOS VENTURES I, LLC Page 3 of 8 Motion No. 015 016

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Defendants now move separately for summary judgment in their favor to dismiss the

complaint and all cross-claims they have asserted against each other. In MS #15, Trump argues

that it does not owe a duty to the plaintiff because the allegations in this case involve portions of

the condominium that are not deemed to be "common elements" of the building, and defendant

Cosmos, as the unit owner is solely responsible for any duty to third-parties. In MS #16, Cosmos

argues that it lacked any actual or constructive notice of a mold condition within the subject

apartment during plaintiff's tenancy, and that there is no evidence in the record to establish

general or specific causation that such a mold condition was a proximate cause of plaintiff's

lllJury.

In opposition, plaintiff posits that the cross-claims concerning liability or indemnification

is an issue that should be settled between the codefendants. As such, plaintiff opposes only that

branch of both motions that seek dismissal of the complaint. Specifically, plaintiff argues that

summary judgment must be denied because defendants had a duty to maintain a safe and

habitable environment for plaintiff as she was their tenant, and defendants were put on notice

when plaintiff initially contacted them regarding the insufficient cleaning of the shower prior to

taking possession of the apartment. Plaintiff further argues that as defendants owned and

maintained the apartment, defendants caused and created the dangerous condition that resulted in

plaintiff's injuries.

In reply defendants' assert that they have met their prima facie burden in establishing

their entitlement to summary judgment and argue that plaintiff has failed to raise an issue of fact

that demonstrates that defendants had actual or constructive notice of a mold condition.

(see Barca v City ofNew York, 13 Misc 3d 464, *468 [Sup Ct, Bronx County 2006]). Despite such a search, the court could not find an answer by Cosmos to the cross-claims against them on NYSCEF. 156521/2017 LEAF, LAWRENCE vs. COSMOS VENTURES I, LLC Page 4 of 8 Motion No. 015 016

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DISCUSSION

"On a summary judgment motion, the moving party must make a prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the

absence of any material issues of fact" (Trustees of Columbia Univ. in the City ofN.Y v

D'Agostino Supermarkets, Inc., 36 NY3d 69, 73-74 [2020] [internal quotation marks and

citations omitted]). "This burden is a heavy one and on a motion for summary judgment, facts

must be viewed in the light most favorable to the non-moving party" (Jacobsen v New York City

Health & Hasps. Corp., 22 NY3d 824, 833 [2014] [internal quotation marks and citations

omitted]). Where the moving party fails to make such a showing, the motion must be denied

without regard to the sufficiency of the opposing papers (see Voss v Netherlands Ins. Co., 22

NY3d 728, 734 [2014]). Only after the moving party makes a prima facie showing does the

burden shift to the opposing party "to produce evidentiary proof in admissible form sufficient to

establish the existence of material issues of fact which require a trial of the action" (Bazdaric v

Almah Partners LLC, 41 NY3d 310, 316 [2024] [internal quotation marks and citations

omitted]). "Since [summary judgment] deprives the litigant of [its] day in court it is considered a

drastic remedy which should only be employed when there is no doubt as to the absence of

triable issues" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

For a defendant to be held liable for negligence, the plaintiff must establish that the

defendant owes some duty of care to the plaintiff (see Pulka v Edelman, 40 NY2d 781, 782

[1976] ["In the absence of duty, there is no breach and without a breach there is no liability"]).

In a landlord tenant relationship, a landlord warrants that there are no conditions that materially

affect the health and safety of a tenant and the landlord has a responsibility to maintain the

premises in accordance with the warranty of habitability (see RPL sec. 235-b; Park W Mgt.

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Corp. v Mitchell, 47 NY2d 316,328 [1979]). Therefore, a condominium unit owner acting in the

capacity of a landlord has a duty to maintain its property in a reasonably safe condition under the

extant circumstances (see Powers v 31 E 31 LLC, 24 NY3d 84, 94 [2014]); see also Basso v

Miller, 40 NY2d 233,241 [1976]).

However, to hold defendants liable for a hazardous condition such as the alleged toxic

mold condition in the apartment, plaintiff must show that defendants either created the condition

or had actual or constructive notice of its existence (see Atashi v Fred-Doug 117 LLC, 87 AD3d

455,456 [1st Dept 2011]). Therefore, to be entitled to summary judgment dismissing the

complaint insofar as asserted against them, defendants must establish, prima facie, that they did

not create the defective condition or have actual or constructive notice of its existence for a

sufficient length of time to discover and remedy it (see Gordon v Am. Museum of Natural

History, 67 NY2d 836, 837 [1986]).

While there is no dispute that plaintiff complained of mold in the bathroom shower after

moving into the apartment, the record indicates that plaintiff's complaint was timely addressed

by defendants, and the issue was not brought to the defendants' attention again until several

months later, only after plaintiff complained of a different mold condition following the leak that

had occurred in the kitchen. Therefore, defendants were unaware that a mold condition allegedly

persisted in the shower. Defendants were first notified by plaintiff of the mold condition in the

kitchen in March 2017, the same month that plaintiff became aware of it, and approximately a

month prior to when plaintiff vacated the apartment. As such, the record here does not establish

that defendants had actual or constructive notice of a mold condition, either in the shower or in

the kitchen, as defendants were not given a sufficient opportunity to discover and remedy it, nor

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was either condition alleged to be caused by defendants. Therefore, defendants have met their

prima facie burden, and established their entitlement to judgment as a matter oflaw.

In opposition, plaintiff argues that defendants were put on notice in December 2016,

when plaintiff initially contacted them regarding the presence of mold in the shower. However,

plaintiff inspected the apartment prior to taking possession and only made the complaint of mold

after moving in, and this complaint was timely addressed by defendants. As plaintiff cannot

establish when the mold in the apartment began, plaintiffs argument is unavailing. 4 A landlord

does not have an ongoing duty to monitor a plaintiffs apartment for the possible development of

environmental hazards (see Beckv JJA. Holding Corp., 12 AD3d 238,240 [1st Dept 2004]).

Accordingly, inasmuch as plaintiff has failed to raise a triable issue of fact in opposition

to defendants' prima facie showing demonstrating that defendants neither created or had actual

or constructive notice of the mold condition complained of, and having failed to meet this burden

or to have established any other act or omission on defendants' part which could have been

considered a proximate cause of plaintiffs ailments, defendants' motions will be granted.

CONCLUSION and ORDER

Based on the foregoing, it is

ORDERED that defendant Trump International Hotels Management, LLC's motion for

summary judgment dismissing the complaint and all cross-claims insofar as asserted against it is

granted, and the complaint and all cross-claims insofar as asserted against Trump International

Hotels Management, LLC are dismissed (MS #15); and it is further

4 Plaintiff's daughter, Jade Marks, testified that she had "no idea when [plaintiff's] mold started" (NYSCEF No 513, pg 54 line 3, Marks Transcript). 156521/2017 LEAF, LAWRENCE vs. COSMOS VENTURES I, LLC Page 7 of 8 Motion No. 015 016

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ORDERED that defendant Cosmos Ventures I, LLC's motion for summary judgment

dismissing the complaint and all cross-claims insofar as asserted against it is granted, and the

complaint and all cross-claims insofar as asserted against Cosmos Ventures I, LLC are dismissed

(MS #16); and it is further

ORDERED that the clerk is directed to enter judgment accordingly with costs and

disbursements to defendants as taxed by the clerk.

10/11/2024 DATE PAUL A. GOETZ, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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