O'Connor v. Metro Management Development, Inc.

In an action to recover damages for personal injuries, etc., the defendant Consolidated Edison Company of New York appeals from so much of an order of the Supreme Court, Queens County (Hart, J.), dated November 13, 2013, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendants Metro Management Development, Inc., and Sunnyside Towers Owners Corp. separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is reversed, on the law, with one bill of costs payable by the plaintiffs to the defendants appearing separately and filing separate briefs, and the respective motions of the defendant Consolidated Edison Company of New York and the defendants Metro Management Development, Inc., and Sunnyside Towers Owners Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them are granted.

The plaintiff Patrick O’Connor (hereinafter the injured plaintiff) allegedly was injured when he fell down a flight of stairs in an interior stairwell of the cooperative apartment building in which he resided. Due to a power outage, the lights in the stairwell were not on at the time of the accident. The injured plaintiff and his wife, suing derivatively, commenced this personal injury action against the owner of the building, Sunnyside Towers Owners Corp., and the building manager, Metro Management Development, Inc. (hereinafter together the building defendants), as well as the utility that supplied electricity to the building, Consolidated Edison Company of New York (hereinafter Con Edison). Con Edison moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the building defendants separately moved for summary judgment dismissing the

In support of its motion, Con Edison made a prima facie showing that it did not owe a duty of care to the injured plaintiff, since the customer to which it had agreed to provide electricity for the common areas of the subject building was Sunnyside Towers Owners Corp., and not the injured plaintiff. The Court of Appeals has held that an electricity-supplying utility “is not answerable to the tenant of an apartment building injured in a common area as a result of [the utility’s] negligent failure to provide electric service as required by its agreement with the building owner” (Strauss v Belle Realty Co., 65 NY2d 399 , 405 [1985]; see Milliken & Co. v Consolidated Edison Co. of N.Y., 84 NY2d 469 [1994]). Contrary to the plaintiffs’ contention, the injured plaintiff’s status as a shareholder in the cooperative corporation that owned the building did not make him a party to the contract with Con Edison, such that Con Edison owed him a duty of care (see Goldstein v Consolidated Edison Co. of N.Y., 115 AD2d 34 [1986]). The holding of Strauss v Belle Realty Co. is applicable in this case because the lessee of a proprietary lease in an apartment cooperative “is in much the same position as any other tenant under the usual leasing arrangement,” and, furthermore, “a tenant/shareholder’s ownership interest in the cooperative corporation does not give him [or her] an individual right to recover for breach of the corporation’s contract” (Goldstein v Consolidated Edison Co. of N.Y., 115 AD2d at 39, 40 ; see New Castle Siding Co. v Wolfson, 97 AD2d 501 [1983], affd 63 NY2d 782 [1984]). In opposition to Con Edison’s prima facie showing, the plaintiffs failed to raise a triable issue of fact.

Thus, the Supreme Court should have granted Con Edison’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

In support of their separate motion, the building defendants made a prima facie showing that the plaintiffs “cannot identify the cause of [the injured plaintiff’s] fall without engaging in speculation” (Ash v City of New York, 109 AD3d 854 , 855 [2013]; see Kudrina v 82-04 Lefferts Tenants Corp., 110 AD3d 963 , 964 [2013]). “[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” (Rivera v J. Nazzaro Partnership, L.P., 122 AD3d 826 , 827 [2014]; see Ash v City of

The plaintiffs’ remaining contentions are without merit. The building defendants’ remaining contentions need not be addressed in light of our determination.

Accordingly, the Supreme Court should have granted the building defendants’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Leventhal, J.P., Chambers, Roman and Hinds-Radix, JJ., concur.