DEXTER v. HOROWITZ MANAGEMENT

There is no evidence that Horowitz Management's failure to produce a witness who had, subsequent to the accident, left its employ was willful and contumacious so as to justify the drastic remedy of preclusion (see, Maillard v. Maillard, 243 A.D.2d 448), which, in the circumstances, was tantamount to striking the answer. Horowitz, an out-of-possession landlord pursuant to a lease that imposes upon the tenant the sole responsibility for maintaining the premises, was precluded from "denying ownership, operation, maintenance, management, and control of the subject premises." Moreover, as this record shows, many of the discovery delays, for which the IAS court held Horowitz solely accountable, were attributable to plaintiff. This improvidently granted order of preclusion had the effect of turning an obviously meritless claim against Horowitz into an inquest on damages in a case premised entirely on the negligent maintenance of the demised premises, for which Horowitz was not responsible.

The underlying facts are not in dispute. On December 15, 1993, at approximately 2 p.m., plaintiff, a 56 year-old woman, was shopping at defendant Amiga Decorations, a retail decorating shop that had leased the first floor space of Horowitz's building, when she fell through an opening in the floor leading to the basement, the trap doors of which the tenant, with the knowledge that plaintiff was nearby in the store, had left open. Since, under the lease, the sole responsibility for maintaining the premises was on Amiga, Horowitz cannot be held liable. (See, Manning v. New York Tel. Co., 157 A.D.2d 264, 266-269.) Plaintiff can only defend the denial of summary judgment in favor of Horowitz on the basis of the preclusion order. Moreover, there is no evidence that the trap door itself was defective or that it created an unsafe condition. The trap door "could only become unsafe by an improper use, i.e., left in an open position." (Brown v. Weinreb, 183 A.D.2d 562, 563.) Thus, there is no factual basis upon which to justify denial of Horowitz's motion for summary judgment dismissing the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.