Yurman v. Pohl

2024 NY Slip Op 33411(U)

• Court: New York Supreme Court, New York County
• Decided: September 26, 2024
• Docket: Index No. 160455/2018
• Status: Unpublished

Opinion

Yurman v Pohl 2024 NY Slip Op 33411(U) September 26, 2024 Supreme Court, New York County Docket Number: Index No. 160455/2018 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. 160455/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 09/26/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 160455/2018 REED YURMAN, 10/19/2023, Plaintiff, 10/30/2023, MOTION DATE 10/30/2023 - V - 0_08_00_9_0_1_0_ MOTION SEQ. NO. __ URSULA POHL, CHURCH STREET APARTMENT CORP., PEERSPACE INC.,REAL VISION PRODUCTIONS, INC.,SPENCER HEWETT, AUTOMATON INC. D/B/A DECISION + ORDER ON RADAR, CUITLAHUAC PINEDA YOUNISS MOTION Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 008) 208, 209, 210, 211, 212,213,214,215,216,217,218,219,220,221,222,223,224,225,226,227,228,229,230,231,232, 233,234,235,236,237,238,239,240,241,242,286,287,292,293,294,295,296,297,298,301,302, 306,307,308,309,310,311,312 were read on this motion to/for JUDGMENT-SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 009) 244, 245, 246, 247, 248,249,250,251,252,253,254,255,256,288,299,313,314 were read on this motion to/for JUDGMENT-SUMMARY

The following e-filed documents, listed by NYSCEF document number (Motion 010) 257, 258, 259, 260, 261,262,263,264,265,266,267,268,269,270,271,272,273,274,275,276,277,278,279,280,281, 282,283,284,285,289,300,303,304,305,315,316 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

In this personal injury suit multiple defendants move for summary judgment pursuant to

CPLR § 3212 dismissing the complaint against them. In Motion Sequence 008, defendants

Church Street Apartment Corp., and Ursula Pohl move for summary judgment and seek and

order dismissing the complaint against them, and cross claims against them brought by

defendants Real Vision Productions, Inc., Automaton, Inc d/b/a Radar, Spencer Hewett, and

Peerspace, Inc; in Motion Sequence 009, defendant Real Vision Productions, Inc, moves for

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

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it; and in Motion Sequence 010, defendant, Peerspace Inc. moves for summary judgment

dismissing the complaint as against it, and all cross-claims asserted against it.

BACKGROUND

This action arises out of an alleged injury that plaintiff suffered when moving a wooden

table in an apartment located on the 2nd Floor of 257 Church Street, New York, NY, 10013 (the

"premises") (NYSCEF Doc No 1). Defendant, Church Street Apartment Corp. ("Church") is the

owner of the cooperative building located at 257 Church Street, where the alleged injury took

place (id.). Defendant, Ursula Pohl is a shareholder of Church and holds the proprietary lease for

the 2nd floor apartment (id.). Defendants Spencer Hewett, Cuitlahuac Pineda Youniss, and

Automaton, Inc d/b/a Radar ("Radar") were subtenants of Ursula Pohl (id.). Defendant

Peerspace, Inc. ("Peerspace") is a company which lists and advertises short term sublets for

overnight accommodations, events, parties and film/television shoots (id.). On January 26, 2018

defendant Real Vision Productions, Inc. ("Real Vision") rented, leased, and booked the premises

through the use of Peerspace's website. Real Vision rented the space in order to film a video

interview (Bennington EBT; NYSCEF Doc No 251 at 13:2- 14:14).

Plaintiff, was working as a freelance photographer who was hired to assist during the film

interview by Thomas Ramsey, a independent contractor who contracted with Real Vision as the

director of photography for the video interview (Yurman EBT; NYSCEF Doc No 249 at 21:24 -

22:4). Plaintiff alleges that on January 26, 2018, while she was working at the premises, she was

directed by Ramsey to assist in moving a wooden table so the lighting for the video shoot could

be adjusted (id. at 29: 19 - 30:2). The tabletop consisted of three large wood planks sitting atop

two crossbeams that were notched into the four table legs (NYSCEF Doc Nos 212 & 295). The

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three wood planks each weighed between 107 and 123 pounds were not attached to the rest of

the table and relied solely on gravity to hold them in place (id.).

Plaintiff alleges that while she was attempting to help move the table, she pushed one of

the planks, and because it was not attached to the crossbeams it slid onto the ground, crushing

her fingers (Yurman EBT; NYSCEF Doc No 249 at 33:7 -33:16). Plaintiff alleges that the

injury partially amputated one of her fingers and required three surgeries to repair the injured

fingers (id. at 36: 18 - 38:2; 41 :8 - 41: 19; 42:23 - 43: 16; 45:23 - 46: 19).

DISCUSSION

Summary Judgment Standard

It is well settled that 'the proponent of a summary judgment motion 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'" (Pullman v Silverman, 28 NY3d 1060,

1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). "Failure to make

such showing requires denial of the motion, regardless of the sufficiency of the opposing papers"

(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Once such a prima facie

showing has been made, the burden shifts to the party opposing the motion to produce

evidentiary proof in admissible form sufficient to raise material issues of fact which require a

trial of the action" (Cabrera v Rodriguez, 72 AD3d 553, 553-54 [1st Dept 2010]).

"The court's function on a motion for summary judgment is merely to determine if any

triable issues exist, not to determine the merits of any such issues or to assess credibility"

(Meridian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-11 [1st Dept 2010]

[internal citations omitted]). The evidence presented in a summary judgment motion must be

examined "in the light most favorable to the non-moving party" (Schmidt v One New York Plaza

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Co. LLC, 153 AD3d 427,428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339

[2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of

fact (Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]). If there is any doubt as to the

existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders

v Ceppos, 46 NY2d 223,231 [1978]).

Negligence against Church

Church argues that it is an out of possession landlord and owed no duty to plaintiff.

Church also argues that even if it did owe a duty to plaintiff, it did not breach that duty as

plaintiff has failed to establish that the table was defective.

"To establish a prima facie case of negligence, the plaintiff must demonstrate that ( 1) the

defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached that duty; and

(3) a resulting injury was proximately caused by the breach" (Solomon v City ofNew York, 499

NY2d 392 [1985]). "Landowners generally owe a duty of care to maintain their property in a

reasonably safe condition, and are liable for injuries caused by a breach of this duty" (Henry v

Hamilton Equities, Inc., 34 NY3d 136, 142 [2019]). "In contrast, a landowner who has

transferred possession and control [i.e., an out-of-possession landlord] is generally not liable for

injuries caused by dangerous conditions on the property" (id. [internal quotation marks

removed]). "[W]ithout notice of a specific dangerous condition, an out-of-possession landlord

cannot be faulted for failing to [remedy] it (Chapman v Silber, 97 NY2d 9, 20 [2001). However,

an out of possession landlord may be held liable if it"( 1) is contractually obligated to make

repairs or maintain the premises or (2) has a contractual right to reenter, inspect and make

needed repairs and liability is based on a significant structural or design defect that is contrary to

a specific statutory safety provision" (Padilla v Holrod Assoc. LLC, 215 AD3d 573, 573 [1st

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Dept 2023]). Once, a defendant meets their burden of establishing that they are an out of

possession landlord, the burden shifts to plaintiff "to raise issues of fact regarding defendant's

status as an in-possession landlord" or that they meet one of the exceptions that can hold an out

of possession landlord liable (Vargas v Weishaus, 199 AD3d 620 [1st Dept 2021])

Here, Church submits an affidavit from Ming Lu, the president and a shareholder of

Church. Lu avers that the premises had been leased to Ursula Pohl, and that Church was not

responsible for maintaining the condition of the furniture inside the apartment (NYSCEF Doc No

209). Church also submits the Proprietary Lease between Church and Pohl, which states that

Church has a right of reentry to make repairs, however Church's responsibility to repair is

limited and does not include furniture within apartments (NYSCEF Doc No 210). Plaintiff and

Real Vision fail to raise a triable issue of fact in opposition to Church's prima facie showing that

it was an out of possession landlord.

Real Vision argues that Church should be precluded from submitting the Proprietary

Lease as evidence, because a July 20, 2023 status conference order precluded Church from

introducing documents into evidence that were not provided in response to Real Vision's post

EBT demands dated September 8, 2022 (NYSCEF Doc Nos 308, 309, and 310). Specifically,

Real Vision had demanded "A copy of the house rules including the prohibition against

subletting apartments on AirBNB" (NYSCEF Doc No 308), and Church responded stating

"Defendant does not have a copy of the house rules, including the prohibition against subletting

apartments on AirBNB" (NYSCEF Doc No 309). Real Vision notes that the Proprietary Lease

submitted by Church includes a copy of the house rules and argues that because of this, the court

should preclude the introduction of the entire Proprietary Lease (NYSCEF Doc No 210 at p 27).

Because, the court "has broad discretion in supervising disclosure and in resolving discovery

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disputes" Church will only be precluded from offering the portion of the Proprietary Lease which

includes the house rules (Pizzo v Lustig, 216 AD3d 38, 44 [2d Dept 2023]). The portion of the

Proprietary Lease establishing Church as an out of possession landlord is admissible. Therefore,

plaintiff and Real Vision have failed to rebut Church's prima facie showing that it cannot be held

liable for plaintiffs injuries since it is an out of possession landlord.

Accordingly, summary judgment will be granted in Church's favor and the complaint and

the cross-claims against Church will be dismissed.

Negligence against Pohl

Pohl argues that she too is an out of possession landlord and cannot be held liable

because she owed no duty to plaintiff. She also argues that even if she did owe a duty to plaintiff,

that duty was not breached because there was no defect in the table. Plaintiff and Peerspace

oppose arguing that Pohl owed a duty to plaintiff because she had a right to reenter the

apartment, was aware of the danger the table posed, and that she breached that duty by failing to

maintain, repair, and/or warn of any allegedly defective conditions.

"An out of possession landlord may not be held liable even if it had notice of the

defective condition prior to the accident" (Padilla v Holrod Assoc. LLC, 215 AD3d 573, 574 [1st

Dept 2023]). However, while "liability may attach to an out-of-possession owner who has

affirmatively created a dangerous condition or defect" (Utica Mut. Ins. Co. v Brooklyn Navy

Yard Dev. Corp., 83 AD3d 817, 819 [2d Dept 2011]).

Here, unlike the Proprietary Lease between Church and Pohl, the sublease between Pohl

and Hewett includes a provision establishing that Pohl maintained ownership of the table

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(NYSCEF Doc No 232 ,i 35 1 & 53 2). Therefore, there is a question of fact as to whether Pohl

was an out of possession landlord. Further, even assuming Pohl can satisfy her burden of

establishing that she was an out of possession landlord, there exists a triable issue of fact as to

whether she created a dangerous condition by requiring that the table remain in the apartment

despite being aware of the potential hazard it created if someone attempted to move it.

Accordingly, Pohl's motion for summary judgment will be denied.

Negligence against Real Vision

Real Vision argues that the complaint must be dismissed as against it because it owed no

duty to plaintiff. It argues that it did not cause or create the allegedly dangerous condition, nor

did it have actual or constructive notice of the condition. Plaintiff argues that there are triable

issues of fact regarding Real Vision's notice of the dangerous condition.

"As a general rule, liability for a dangerous condition on real property must be predicated

upon ownership, occupancy, control, or special use of the property" (Knight v 177 W 26 Realty,

LLC, 173 AD3d 846, 847 [2d Dept 2019]). To establish liability plaintiff must show "the

defendant either created the condition which caused the accident, or that it had actual or

1 "Furniture - The Apartment is being subleases as partially furnished; a rider attached to this Sublease lists all furniture and furnishings contained in the Apartment. You shall accept the furniture and furnishings contained in the Apartment "as is" on the commencement date of this Sublease. Owner represents that all such furniture and furnishings are in good repair and in working order on the commencement date of this Sublease except as may be noted in such rider. You shall take good care of the furniture and furnishings during the pendency of this Sublease and shall be liable for any damages caused by You to such furniture and furnishings. You shall not be responsible for any damages to such furniture and furnishings not caused by You or caused by ordinary wear and tear. You shall surrender such furniture and furnishings when this Sublease terminates in the same condition as the date this Sublease commenced, subject to ordinary wear and tear. If any repairs are required to the furniture and furnishings in the Apartment, You shall pay Owner upon demand the cost of any required repairs. You mat not remove any furniture to furnishings from the Apartment or change the location of any such furniture or furnishings during the pendency of this Sublease without Owner's prior written consent. 2 "Supplementing paragraph 35, the furniture which shall be left in the Apartment include: 1 large wooden table, 1 super store book cabinet, 1 wall length white book case, 1 foldable sofa bed, 2 white chairs, and 1 small round table. All furniture shall be returned to Landlord in good condition in accordance with this Lease" 160455/2018 YURMAN, REED vs. POHL, URSULA Page 7 of 11 Motion No. 008 009 01 O

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constructive notice of the hazardous condition and a reasonable time within which to correct it"

(Campanella v 1955 Corp., 300 AD2d 427,427 [2d Dept 2002]).

Here, it is undisputed that Real Vision did not own, purchase, design or create the table.

To establish lack of actual notice, Real Vision submits deposition testimony of co-defendant

Spencer Hewett who testified that he never posted any rules or directions on Peerspace regarding

the table or potential hazards in moving it (NYSCEF Doc No 252 at 62:9 - 62: 13). However,

Hewett also testified that co-defendant, Cuitlahuac Youniss, would generally tell tenants who

were renting the apartment not to move the table (id. at 62: 18 - 63: 19). Real Vision also submits

the testimony of Real Vision, employee Ash Bennington, who testified that when he arrived at

the film shoot, he did not receive any instructions about the table or any furniture in the

apartment (NYSCEF Doc No 251 at 27:2 - 27: 11 ). However, Bennington also stated that

because he was a member of the editorial team, receiving these instructions "would have been

outside of [his] purview" (id. at 27: 10 - 27: 11 ).

While Bennington's testimony may establish that he lacked actual notice of the allegedly

dangerous condition, it does not establish that Real Vision did not receive actual notice because

Bennington was not the Real Vision employee charged with setting up the shoot. As such, Real

Vision has not established that it did not receive a warning regarding the table and thus is unable

to establish a lack of actual notice (see Clarkin v In Line Rest. Corp., 148 AD3d 559 [1st Dept

2017]). Accordingly, Real Vision's motion for summary judgment will be denied.

Negligence Against Peerspace

Peerspace argues that it cannot be found liable for plaintiffs injuries because it did not

owe a duty to plaintiff since it had no control over the apartment where her injury occurred.

Plaintiff argues that Peerspace had notice of the allegedly dangerous table and that Peerspace

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owes a duty to ensure that the properties that are rented on its website are safe for the people who

rent them.

"Generally, liability for a dangerous or defective condition on real property must be

predicated upon ownership, occupancy, control or special use of that property" (Garcia v Town

of Babylon Indus. Dev. Agency, 120 AD3d 546, 548 [2d Dept 2014]).

Here, it is undisputed that Peerspace did not own, control, operate, or maintain the

apartment. Therefore, as a matter of law it did not owe a duty to plaintiff to protect her from an

allegedly dangerous condition on the property. While plaintiff argues that Peerspace had actual

notice of the table since Peerspace "did not owe a duty to the plaintiff ... the issue of whether it

had notice of the alleged dangerous condition" is irrelevant (id. at 54 7). Further, plaintiff argues

that a rental website owes a duty to inspect the properties that are listed on its website, but does

not cite any legal authority to support her argument. Accordingly, Peerspace' s motion for

summary judgment will be granted and the complaint as against it will be dismissed.

Cross-Claims as against Peerspace

Peerspace also moves to dismiss the cross-claim as against it by co-defendant Hewett for

breach of contract for failure to procure insurance. Peerspace argues that there was no contract

between Peerspace and Hewett because the booking on the Peerspace website was between Real

Vision and co-defendant Y ouniss. Further, Peerspace argues that pursuant to the terms of its

contract, supplemental insurance coverage is contingent upon the host already having primary

insurance, which Y ouniss did not procure. Hewett does not submit any opposition to this motion.

Peerspace submits the listing of the apartment showing that it was associated with

Youniss (NYSCEF Doc No 261). Consequently, Peerspace has established that there was no

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contract between Peerspace and defendant Hewett. Accordingly, Hewett's breach of contract

cross-claim as against Peerspace will be dismissed.

Accordingly it is

ORDERED that defendant Church Street Apartment Corp.' s motion for summary

judgment (MS #008) is granted and the complaint is dismissed as against it and the clerk is

directed to enter judgment accordingly; and it is further

ORDERED that defendant Ursula Pohl's motion for summary judgment (MS #008) is

denied; and it is further

ORDERED that defendant Real Vision Productions, Inc.'s motion for summary judgment

(MS #009) is denied; and it is further

ORDERED that defendant Peerspace Inc.'s motion for summary judgment (MS #010) is

granted and the complaint and cross-claims are dismissed as against it and the clerk is directed to

enter judgment accordingly; and it is further

ORDERED that the caption in this matter is hereby amended as follows:

REED YURMAN,

Plaintiffs, -v- URSULA POHL, REAL VISION PRODUCTIONS, INC.,SPENCER HEWETT, AUTOMATON INC. D/B/A RADAR, CUITLAHUAC PINEDA YOUNISS

Defendants.

And it is further

ORDERED that all papers, pleadings, and proceedings in the above-entitled action be

amended in accordance with this change, without prejudice to the proceedings heretofore had

herein; and it is further

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ORDERED that defendant Church Street Apartment Corp. shall, within 30 days of entry

of this order, serve a copy of this order with notice of entry upon the County Clerk and the Clerk

of the General Clerk's Office, who are directed to mark the court's records to reflect the change in

the caption herein; and it is further

ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's

Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse

and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page

on the court's website).

9/26/2024 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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