Ramirez v. Columbia Presbyterian Hospital

457 Order, Supreme Court, New York County (Alice Schlesinger, J.), entered June 11, 2007, which denied the motion of defendant-appellant NASA Real Estate Corp. (NASA) for summary judgment dismissing the complaint and cross claims asserted against it, reversed, on the law, without costs, the motion granted and the complaint dismissed as to NASA. The Clerk is directed to enter judgment accordingly. In these consolidated actions to recover for personal injuries allegedly caused by exposure to lead paint, it is undisputed that the infant plaintiff, who was born in April 1992, resided in apartment 3E for four months in 1993 and apartment 3B from March 1995 to December 1997, both of which were in a building located at 80 Arden Street in Manhattan (the Arden Building). In his deposition testimony and affidavit in support of NASA’s motion for summary judgment, NASA’s treasurer and shareholder, Frank Cadeddu, stated that he is a principal and employee of several separate entities that own and manage apartment buildings, including, among others, defendants Arden St. Realty, LLC and NASA. Mr. Cadeddu stated that the Arden Building is owned and managed by Arden St. Realty and that, since its inception around 1976 or 1977, NASA had only owned two buildings, one located in Sunnyside, Queens and another building that it owned for two years during the 1970s. Mr. Cadeddu also stated that around 1995 he used a broker to obtain insurance for various property owning entities, including Arden St. Realty and NASA, and the broker decided to insure all of the entities under one policy issued to NASA, which included coverage for the Arden Building. Mr. Cadeddu emphasized, however, that NASA never owned, operated, managed or controlled the Arden Building. In denying NASA’s motion, the motion court, although stating that it “is an extremely close question,” held that NASA had not sustained its burden of showing with absolute certainty that it had no control over the subject premises. However, given that the deed for the Arden Building reflects that it has been owned by Arden St. Realty Co. since September 17, 1981, and Mr. Cadeddu’s uncontradicted deposition testimony and affidavit that NASA never owned, operated, managed or controlled it, the mere facts that the Arden Building and other properties 458 owned by various entities in which Cadeddu and others had an ownership interest were insured under one policy issued to NASA and that the insurance application stated that “All entities are same financial control,” are not indicia of NASA’s possession or control over the premises and are insufficient to withstand summary judgment (cf. Smith v Andre, 43 AD3d 770, 771-772 [2007]). Concur—Andrias, Catterson and McGuire, JJ.