SUPREME COURT - STATE OF NEW YORKPresent:

HON. VITO M. DESTEFANO,Justice

TRIAL/lAS , PART 21NASSAU COUNTY

MARYANN NEWELL and CHARLES NEWELLDecision and Order

Plaintiff,

-against-

MOTION SUBMITTED:April 16 , 2010MOTION SEQUENCE:04 , 05, 06INDEX NO. 9524-

DR. STEPHEN DREZNIN, HUNTINGTONARTIFICIAL KIDNEY CENTER, LTD., d/b/aFREEPORT KIDNEY CENTER, 256 BROADWAYREALTY COMPANY,

Defendants.

256 BROADWAY REALTY, LLC, s/h/a 256BROADWAY REAL TY COMPANY,

Third-Party Plaintiff,

-against-

DV A OF NEW YORK, INC., f/k/a GAMBRO OF NEWYORK, INC., DA VITA, INC. , and FRANK GESUALDO,

Third-Party Defendants.

The following papers and the attachments and exhibits thereto have been read on themotions:

Notice of MotionAffirmation in Partial Opposition to Defendant 256 Broadway RealtyCompany s Motion for Summary Judgment and in Further Support ofSummar JudgmentAffrmation in Reply to Davita s Partial Opposition to 256 Broadway s Motion

Affirmation in Reply to Plaintiffs ' Opposition to 256 Broadway s MotionNotice of MotionReply Affirmation

Notice of MotionAffrmation in OppositionReply Affirmation

Affirmation in Partial OppositionReply Affirmation

Plaintiffs Attorney s AffirmationSubmitted in Opposition of Defendant'sMotions for Summar Judgment

The Defendant Third-Par Plaintiff, 256 Broadway Realty, LLC , s/ha 256 BroadwayRealty Company move for an order:

Pursuant to CPLR Rule 3212 , granting summar judgmentto defendant/third-par plaintiff 256 Broadway Realty,LLC * * * , s/h/a 256 Broadway Realty Company,dismissing the verified complaint of plaintiffs, Mar AnNewell and Charles Newell , and all cross-claims andcounterclaims asserted against 256 Broadway on theground that, in the absence of any triable issues of factwith regard to the lack of liability on the par of 256Broadway, plaintiffs ' verified complaint should bedismissed as a matter of law;

The Defendant Stephen R. Dreznin, M.D. moves for an order pursuant to CPLR 3212dismissing plaintiffs complaint and any and all cross-claims with prejudice and directing that

Granting contractual indemnification in favor of 256Broadway based on the indemnity provisions in its leasewith third-pary defendant DV A of New York, Inc. , f/k/aGambro of New York;

Pursuant to CPLR 9 603 and Rule 3212(e)(1), severing theaction against 256 Broadway from the remaining actionsto facilitate the entry of a separate judgment; and

Granting such and other further relief as this Court maydeem just and proper.

summar judgment be entered in favor of the defendant, Stephen R. Dreznin, M.D. s/ha Dr.Stephen Dreznin, and such other, further and different relief as this court may deem just andproper.

The Defendant Huntington Artificial Kidney Center, L TD , d/b/a Freeport Kidney Centerand the third-pary defendants DV A of New York, lnc.. , f/ka Gambro of New York, Inc. andDavita lnc , move for an order:

Pursuant to CPLR 93212 granting summar judgment fordefendant HUNTINGTON ARTIFICIAL KIDNEYCENTER, LTD, d/b/a FREEPORT KIDNEY CENTER andthird-party defendants DV A of NEW YORK, INC. , f/k/aGAMBRO OF NEW YORK, INC. and DAVIT A, INC.And dismissing all claims against each;

Directing entry of judgment in favor of the movingdefendant/third-part defendants;

Amending the caption to remove the name of the movingdefendant/third part defendants therefrom; and

Granting such and other relief as this Court may deem justand proper.

Background

Defendant Third-Par Plaintiff 256 Broadway Realty ("256 Broadway ) is the owner ofa building located at 267 West Merrick Road in Freeport, New York (the "Propert"). On May

, 1997 256 Broadway leased the Propert to Third-Party Defendant Gambro of New YorkInc. , now DV A of New York, Inc. DV A is a subsidiar corporation of DaVita, Inc. , whichco signed" the lease. (Gambro , Da Vita and DV A are collectively referred to as "DV A"

Defendant Huntington Artificial Kidney Center d/b/a Freeport Kidney Center ("HAKC" orkidney center ) sublet the premises from DV A.

On Januar 7 , 2005 , the Plaintiff, at 5:27 A. , Maran Newell , entered the KidneyCenter to receive her regularly scheduled dialysis treatment. Plaintiff has undergone dialysistreatment there three times per week since 2003. (Ex "D" to Plaintiffs Opposition toDefendants ' Motions for Summar Judgment , at p. 37). The Plaintiffs blood pressureimmediately prior to receiving treatment was 141/61 while seated (Ex. "K" to HAKC Motionfor Summary Judgment). Plaintiffs dialysis treatment lasted three hours, until 8:28 a.m. The

Plaintiff s blood pressure was automatically taken by a machine , and then recorded in acomputer, every hour during her three-hour dialysis treatment. (Ex "D" to PlaintiffsOpposition to Defendants ' Motions for Summar Judgment , at pgs 88-89; Ex. "H" to DrezninMotion for Summar Judgment, at pg 72). During that three-hour period, the Plaintiffs bloodpressure varied from 171/67 to 112/59. (Ex. "K" to HAKC Motion for Summar Judgment)

Her dialysis treatment ran "according to normal course" and there were nocomplications. Following dialysis treatment, the Plaintiffs ' blood pressure was 131/60 sittingand 130/64 standing. (Ex. "K" to HAKC and DV A' s Motion for Sumar Judgment).

The Plaintiff testified that she felt fine during the three-hour dialysis treatment but whenshe stood up immediately thereafter, informed a technician of her dizziness. (Ex "D" toPlaintiffs Opposition to Defendants ' Motions for Sumar Judgment, at pgs 96-97). ThePlaintiff then proceeded to weigh herself, submit her weight to the technician, and returned toher dialysis chair where she remained for approximately 15 additional minutes. (Ex "D" toPlaintiffs Opposition to Defendants ' Motions for Sumar Judgment, at pgs 90-93) ThePlaintiff testified that while she was sitting in the chair she was stil dizzy which again related tothe technician. Plaintiff could not remember the identity of the technician. (Ex "D" to Plaintiff sOpposition to Defendants ' Motions for Summar Judgment , at pg 97). Plaintiff furher testifiedthat she did not tell anyone other than the unidentified technician that she was dizzy (Ex "D" toPlaintiffs ' Opposition to Defendants ' Motions for Sumar Judgment, at pgs 98- 101).

At around 9:00 a. , the Plaintiff proceeded to leave the kidney center. While holdingonto the railing, and after descending approximately three steps in the front of the building, thePlaintiff fell. (Ex "D" to Plaintiffs ' Opposition to Defendants ' Motions for Summary Judgmentat pgs 101- , 110). The Plaintiff is unable to explain the reason that she fell. All paries haveagreed that, when plaintiff fell , it was light outside, and that there was no snow, ice, water, oranything else on the steps which caused her to fall.

Following Plaintiffs fall , a receptionist and two other employees (one technician andone nurse) from HAKC , came out of the kidney center to help the Plaintiff, who was sitting onthe steps. (Ex "c" to HAKC and DV A' s Motion for Summar Judgment, at pg 106). TheHAKC employees helped the Plaintiff onto a wheelchair and brought her back inside the kidneycenter where she was transferred to a dialysis chair. (Ex "c" to 256 Broadway s Motion forSummar Judgment, at pgs 108- 13). The Plaintiff testified that at this time she told the nursehelping her, Crystal Kim, that she had pain in her lower legs. (Ex "D" to Plaintiffs ' Oppositionto Defendants ' Motions for Summar Judgment , at pg 114).

While in the dialysis chair, her blood pressure was taken again. Although she did notfeel dizzy, her blood pressure was found to be low. (Ex "D" to Plaintiffs ' Opposition to

Defendants ' Motions for Sumar Judgment at pgs 114- 15; Ex. "L" to HAKC Motion forSumar Judgment, at 7). The Plaintiffwas then examined by defendant Dr. StephenDreznin. I Plaintiff testified that she told Dr. Dreznin that both of her lower legs hurt but that heonly examined her right anle and did not examine any par of her left leg or anle (Ex "D" toPlaintiffs ' Opposition to Defendants ' Motions for Summary Judgment , at pgs 118-22). Dr.Dreznin concluded that the Plaintiff suffered from a "likely sprain" in her right anle andprescribed an x-ray. (Ex "D" to Plaintiffs ' Opposition to Defendants ' Motions for SumarJudgment, at pg 123). The Plaintiff was then discharged from the kidney center (Ex "D" toPlaintiffs ' Opposition to Defendants ' Motions for Summar Judgment , at pgs 123-24).

Following her discharge, the she proceeded to walk towards her car. Halfway there , shewas provided a wheelchair for the remainder of the distance. Nurse Kim helped the Plaintiff outof the wheel chair and into her car (Ex "D" to Plaintiffs ' Opposition to Defendants ' Motions forSummar Judgment, at pg 133). The Plaintiff drove to her house a short distance away andwaited inside her car for her husband to return home from work to take her for an x-ray. (Ex "to Plaintiffs ' Opposition to Defendants ' Motions for Summar Judgment , at pgs 135-37).

As a result of her fall, the Plaintiff sustained a bilateral anle fracture and commenced anaction sounding in negligence and medical practice against the various defendants. The injuredPlaintiffs husband, Charles Newell , commenced a loss of services derivative action.

Analysis

Initially, the court rejects plaintiffs argument that the defendants ' motions should bedenied as untimely because they were served upon a wrong address. The Plaintiffs have hadsufficient time in which to oppose the motions. Furher, a reasonable excuse exists for the latefiing of Defendants ' motions and for service on Plaintiffs ' attorney at a prior address , which theparies repeatedly used prior to the attorney s relocation to a new address. (CPLR 2004).Moreover, any untimeliness was an isolated incident after almost three years of litigation in thismatter. (De Bartolo De Bartolo 46 AD3d 739 (2d Dept 2007); Montejiore Med Ctr.

HartfordAcc lndemn. Co. 37 AD3d 673 (2d Dept 2007)).

In order to prevail on a motion for summary judgment, the proponent must make a prima

I Dr. Dreznin was not employed by the kidney center but, rather, was a voluntar

nephrologist with admitting privileges thereat.

2 Any reference to the Plaintiff throughout this opinion wil refer to the injured PlaintiffMaryan Newell.

facie showing of entitlement as a matter of law, tendering sufficient evidence to eliminate anymaterial issue of fact from the case. (Winegradv New York Univ. Med Ctr. 64 NY2d 851 853

(1985); Zuckerman City of New York 49 NY2d 557, 562 (1980)). The evidence submitted bythe moving par must be viewed in a light most favorable to the non-moving par. (MarineMidland Bank Dino Artie s Automatic Transmission Co. 168 AD2d 610 (2d Dept 1990)).The failure to make such a showing, regardless of the sufficiency of the opposing papersrequires a denial ofthe motion. (Winegrad New York Univ. Med Ctr. 64 NY2d at 853,supra). Once the movant has established a prima facie showing of entitlement, the paropposing the motion must demonstrate, by evidentiary proof in admissible form, a triable issueof fact. (CPLR 3212(b); Zuckerman City of New York 49 NY2d at 562 supra).

Medical Malpractice

The Plaintiff asserts that HAKC and Dr. Dreznin committed malpractice by failing tomonitor Plaintiff s blood pressure before, during and after her dialysis treatment prior to her falland, additionally, by failing to properly treat and care for Plaintiff after her fall. For the reasonsset forth below, the causes of action sounding in medical malpractice must be dismissed as bothHAKC and Dr. Dreznin demonstrated their prima facie entitlement to sumar judgment by thesubmission of extensive medical records, deposition testimony, and expert affirmations whichestablished, to a reasonable degree of medical certainty, that neither defendant depared from theaccepted standard of care. (Burgos Rate 64 AD3d 530 (2d Dept 2009)).

The prima facie elements of a medical malpractice action are deviation or deparure fromgood and accepted medical practice and evidence that such deparure was a proximate cause ofthe injur (Burgos Rate 64 AD3d at 530 supra). General allegations of medicalmalpractice , merely conclusory and unsupported by competent evidence tending to establish theessential elements of medical malpractice, are insufficient to defeat defendant physiciansummar judgment motion. (Alvarez Prospect Hosp. 68 NY2d 320 324-25 (1986)). Ratherthe plaintiff must come forth with expert medical opinion to rebut defendant' s prima facieshowing. (Fiore Galang, 64 NY2d 999 , 1000-01 (1985)). Except as to matters within theordinary experience and knowledge of laymen, in the absence of expert medical opiniondemonstrating the merits of plaintiffs case , the complaint must be dismissed. (Id)

Medical Malpractice claims against HAKC

In essence , the Plaintiffs ' medical malpractice claim against HAKC is premised on twoseparate and distinct incidents. The first allegation of medical malpractice concerns HAKC'failure to properly monitor and respond to the Plaintiff s low blood pressure before, during andafter her dialysis treatment and that it was this failure which caused Plaintiff to fall and sustainher injuries. (Ex "A" to 256 Broadway Realty s Motion for Summar Judgment, at ~~ 98- 106).

Pursuant to CPLR 3212 , HAKC and DV A moved for sumar judgment on the grounds thatthe Plaintiff was properly treated at the kidney center and that HAKC and its employees did notdepar from accepted standards of dialysis practice in their care and treatment of the Plaintiffboth before and after her fall.

In support of its motion, HAKC submitted the expert affirmations of Dr. Vaughn Folkertand Nurse Crystal Hwa Kim, who was the charge nurse at HAKC on the day that the plaintifffell. By his Affirmation, Dr. Folkert, who is board certified in Internal Medicine andNephrology, indicated that the range in blood pressure during the dialysis period is "notindicative of an impending hypotensive episode" and, fuher, that is "not uncommon fordialysis patients to experience a sudden drop in blood pressure following dialysis treatment."Moreover, such a drop in blood pressure is "difficult to anticipate unless the patient complainsof related symptoms" such as dizziness or weakess. (Ex "M" to HAKC's Motion for SummarJudgment, at ~ 7). Dr. Folkert fuher indicated, based upon his review of the Plaintiffs dialysisrecords , that her range of blood pressure varing from as high as 171/67 to as low as 112/59during her dialysis treatment was not indicative of an impending hypotensive episode. (Ex "to HAKC's Motion for Sumar Judgment, at ~ 7). In sum, Dr. Folkert concluded that it waswithin an appropriate standard of care for HAKC to have discharged Plaintiff from the kidneycenter 25 minutes after the conclusion of her dialysis treatment "because she had normal bloodpressure and there (were) no documented complaints." (Ex "M" to HAKC' s Motion forSummar Judgment, at ~ 11). Immediately following her dialysis treatment, the Plaintiffsblood pressure was 131/60 sitting and 130/64 standing. (Ex. "K" to HAKC' s Motion forSumar Judgment). Dr. Dreznin agreed that the Plaintiffs post-dialysis numbers wereperfect" (Ex. G" to Dreznin s Motion for Summar Judgment, at pg. 264)

HAKC also submitted the affirmation and deposition testimony of Crystal Hwa KimR.N. , the Charge Nurse for HAKC. Nurse Kim indicated that as the Charge Nurse, techniciansare required to inform her of any complaints, including dizziness or weakess , made during orafter the dialysis treatment and that any complaints would be reflected in a patient's char (ExL" to HAKC's Motion for Summar Judgment , at ~~ 4 5). According to Nurse Kim, the

Plaintiffs char did not indicate that Plaintiff had any complaints during or after her dialysistreatment but, rather, that her vital signs were stable. (Ex "L" to HAKC's Motion for SummarJudgment, at ~ 6). The absence of any complaints of dizziness in the Plaintiffs char issupported by that portion of the Plaintiff s deposition testimony wherein she testified thatimmediately prior to her fall she did not feel dizzy. (Ex. "G" to HAKC's Motion for Summar

Judgment, at pg. 106).

In opposition to HAKC's motion , the Plaintiff maintains that, she was dischargedprematurely after dialysis considering that she complained of dizziness to a technician and herblood pressure was low. The Plaintiff does not submit any expert medical opinion to supporther argument, however. Plaintiff s conclusory allegation of medical malpractice , in the absenceof any expert testimony to support such a conclusion, is insuffcient to rebut HAKC' s primafacie showing of entitlement to judgment as a matter of law. (Alvarez Prospect Hosp. , 68NY2d 320 324-25 (1986); Fiore Galang, 64 NY2d 999 1000-01 (1985)).

In a separate medical malpractice allegation, the Plaintiff alleges that HAKC shouldhave taken additional precautions when releasing the Plaintiff after her fall so as to preventfuher injur. Specifically, according to Plaintiffs complaint, HAKC should have called anambulance or other transportation to assist the Plaintiff in leaving the kidney center withoutfuher injury. (Ex. "A" to 256 Broadway Realty Motion for Summar Judgment at ~ 109).Contrar to the Plaintiff s contention, HAKC's release of Plaintiff after her fall , under thecircumstances, was not a deviation from accepted medical practice. In addition, the Plaintiff hasfailed to demonstrate that HAKC' s release of the Plaintiff after her fall adversely affected hercondition or ultimate prognosis. (Giambona Stein 265 AD2d 775 (3d Dept 1999). In theabsence of medical proof that HAKC's release caused a worsening of the Plaintiffs conditionPlaintiff has not established a prima facie case of medical malpractice and, thus , that cause ofaction in Plaintiffs ' complaint alleging that HAKC committed medical malpractice byprematurely" releasing her after fallng must be dismissed.

(Id at 776)

Similarly, the Plaintiffs allegation that "Nurse Kim was not qualified to treat and/ordiagnose" the Plaintiffs injury after her fall (Plaintiffs Affrmation to Defendants ' Motion forSummar Judgment at ~ 40) is rejected given the Plaintiffs own testimony wherein she statedthat it was Dr. Dreznin who examined her after her fall , and not Nurse Kim. (Ex. "G" toHAKC's Motion for Sumar Judgment, at pgs. 118-25).

Medical Malpractice claim against Dr. Stephen Dreznin

The Plaintiffs medical malpractice allegations against Dr. Dreznin are similarlypremised upon Dr. Dreznin s purported premature release of the Plaintiff after her dialysistreatment. However, Dr. Dreznin s function at the kidney center on the day of Plaintiffs fall

3 With respect to whether the Plaintiff felt dizzy immediately prior to her fall, the Plaintiff

made inconsistent statements in her deposition. (Ex. "G" to HAKC' s Motion for SummaryJudgment, at pgs. 106 310 , and 312).

was limited to visiting patients receiving dialysis at the facility.4 The Plaintiff was under the

care of Nurse Kim, the Charge Nurse whose duty was to manage patient care and treatment aswell as supervise the technicians at the center. (Ex. "H" to Dreznin s Motion for SummarJudgment, at pgs 13- 15). Nurse Kim testified that she had discharged the Plaintiff after sheunderwent her dialysis treatment and that the discharge was "routine" because the Plaintiff wasstable" (Ex "H" to Dreznin s Motion for Sumar Judgment, at pgs 63-65).

Unlike Nurse Kim, Dr. Dreznin had no obligation to personally supervise the bloodpressure monitoring or the release of the Plainitff from the kidney center at the conclusion ofher dialysis treatment. That role was strictly left to Nurse Kim and the staff of

HAKC. (SeeKleinert F Begum 144 AD2d 645 (2d Dept 1988)). "Although physicians owe a general dutyof care to their patients , that duty may be limited to those medical fuctions undertaken by thephysician and relied upon by the patient." (Markley Albany Med Ctr, et aI 163 AD2d 639, 640(3d Dept 1990)). Accordingly, Dr. Dreznin has demonstrated his entitlement to judgment as amatter of law with respect to Plaintiff s allegations of medical malpractice prior to her fall.

In opposition to Dr. Dreznin s prima facie showing, the Plaintiff was required to produceexpert evidentiar proof to rebut Dr. Dreznin showing that his actions were within acceptedstandards of care. (Alvarez Prospect Hosp. 68 NY2d 324-25 (1986)). Here, the medicalmalpractice cause of action asserted against Dr. Dreznin alleging that he prematurely allowedthe release of the Plaintiff from the kidney center after her dialysis was not supported by anyexpert medical opinion attesting to any deviation from accepted medical practice and thus , thatcause of action in Plaintiffs ' complaint is dismissed. (Fiore Galang, 64 NY2d 999 , 1000-(1985); Straton Orange County Dept ofSoc Servs. 217 AD2d 576 (2d Dept 1995); Donohoe

Goldner 168 AD2d 1990)). Plaintiff s generalized allegations of medical malpractice areunsupported by any expert medical evidence tending to establish the essential elements ofmedical malpractice and are insufficient to defeat Dr. Dreznin s motion for sumar judgment.(Alvarez Prospect Hosp. 68 NY2d 324-25 (1986)).

Furhermore , Dr. Dreznin submitted the expert affirmation of Dr. Alfred Derrow, whoindicated that the "medical care rendered by Dr. Dreznin (after Plaintiffs fall) was not substantial contributing factor to the patient' s injuries. Dr. Dreznin was called to conduct alimited examination based on the patient' s limited complaint and he did so within theappropriate standard of care.

" ("

Ex "A" to Dreznin s Motion for Summary Judgment , at ~ 16).

4 This was confirmed by the Plaintiff s deposition testimony where she testified thatalthough she undergoes dialysis treatment three times a week at the kidney center, that she seesdoctor only once every week or two weeks. (Ex. "D" Plaintiffs ' Opposition to DefendantsMotions for Summar Judgment, at pg 37).

Keeping in mind that Dr. Dreznin is a nephrologist and not an orthopaedist, Dr. Drezninexamination of the Plaintiff, followed by a prescription for her to undergo an x-ray, was withinthe acceptable standards of care. Accordingly, this Cour concludes , as a matter of law, that Dr.Dreznin did not deviate from accepted medical practice when he allowed the Plaintiff to leavethe kidney center after her fall.

Negligence

Defendant 256 Broadway, as owner of the building where the kidney center is locatedmoved for summar judgment on the following grounds: 1) that it did not create any dangerousor defective condition on the steps nor did it have actual or constructive notice of any dangerousor defective condition; and 2) that it was an out of possession landlord and, as such, it is notliable for those injuries sustained by third paries on the leased premises after possession hasbeen transferred to the tenant. The cour concludes that, 256 Broadway has made a prima facieshowing of its entitlement to judgment as a matter of law. Furthermore, the Plaintiffs did notoffer suffcient evidence to demonstrate the existence of a triable issue of fact.

In a tyical slip and fall case such as the one before this Court, a defendant who movesfor sumar judgment has the initial burden of making a prima facie showing that it did notcreate the hazardous or defective condition or that it had actual or constructive notice of thecondition for a sufficient period of time to discover and remedy it.

(Zambri Madison Sq.Garden - NYS2d _ 2010 WL 1999517 (2d Dept May 18 2010); Prusak New York CityHous. Auth. 43 AD3d 1022 (2d Dept 2007). ' In a trip and fall case, (a) plaintiffs inability toidentify the cause of his or her fall is fatal to his or her cause of action, since, in that instancethe trier of fact would be required to base a finding of proximate cause upon nothing more thanspeculation

'"

(Antonia Srour 69 AD3d 666 (2d Dept 2010), quoting Louman Town ofGreenburgh, 60 AD3d 915 , 916 (2d Dept 2009); Melnikov v 249 Brighton Corp. 72 AD3d 760(2d Dept 2010); Hunt Meyers 63 AD3d 685 (2d Dept 2009)).

At bar, the Plaintiff testified at her deposition as follows:

Upon exiting the building that day, January 7 of2005 , did you then proceed to walkdown the steps?Yes.

And what, if anything, happened when you were walking down the steps?I got halfway down the steps holding onto the railing and down I went. The next thing I

The court rejects plaintiffs reference to what she calls the "unkown cause" line ofreasoning (Plaintiffs Opposition to Defendants ' Motions for Summary Judgment , at ~ 62).

knew I was on my back laying on the steps.Did you lose consciousness at all?No.Do you remember what caused you to fall?No.Did you trip at all or lose your footing?No.Did you black out at all?No.

(Ex. "c" to 256 Broadway s Motion for Sumary Judgment, at pgs. 101-02). And then againlater in her deposition, the Plaintiff testified as follows:

When you fell down the stairs, did you slip on something?No.Did your foot miss a step or something?No.Do you have any recollection as to how it was that you, actually, fell down the steps?No.

(Ex. "c" to 256 Broadway s Motion for Summar Judgment, at pgs. 139-40). And again, basingher fall on dizziness rather than any condition of the steps, the Plaintiff testified as follows:

As you were going down the steps, were you looking down at the step, looking out?I was looking down at the steps.Do you, actually, remember falling or do you just remember going down the steps andthen being in the position where you, actually, had already landed?I remember falling.Okay. At that moment that you were fallng, what happened?It happened so quick.But describe what happened. Did you feel anything physically?No. I was just going down the steps and then the - holding on and then the next thingboom, I was down - I felt I was going down.Do you know whether you blacked out or had any lightheadedness or dizziness as youwere going down the steps?No. I just felt the weakness and the dizziness that I had at the chair.

(Ex. "c" to 256 Broadway s Motion for Sumar Judgment, at pgs. 279-80)

Based on the Plaintiffs own testimony that she is unable to identify the reason for her

fall, 256 Broadway has made a prima facie showing of entitlement to judgment as a matter oflaw on that branch of their motion for summar judgment. (Scott Rochdale Vii. , Inc. 65 AD3d621 (2d Dept 2009); DeSantis Lessing , Inc. 46 AD3d 742 (2d Dept 2007); Jung KumGang, Inc. 22 AD3d 441 (2d Dept 2005)).

Moreover, sumar judgment dismissing the complaint as against 256 Broadway is alsowaranted given that 256 Broadway is an out of possession landlord, retaining no control overthe subject premises except when structural repairs were needed (Exhibit "H" to 256Broadway s Motion for Sumar Judgment: Lease Agreement) (see, Kempter Horton, 33AD3d 868 (2d Dept 2006) Mitaras Pickman Realty Corp. 60 AD3d 827 (2d Dept 2009) (outof possession landlord retained no control over the premises, was not obligated to maintain orrepair the premises, and did not violate a specific statutory provision); Stein Harriet Mgt.,

LLe. 51 AD3d 1007 (2d Dept 2008); Connell L.B. Realty Corp. 50 AD2d 752 (2d Dept2008); Grippo City of New York 45 AD3d 639 (2d Dept 2007)). In opposition to 256Broadway s showing, the Plaintiff failed to set forth a triable issue of fact.

Contractual Indemnifcation

Having found that the complaint against 256 Broadway, as owner of the subject premisesshould be dismissed, the court next addresses the branch of256 Broadway s motion for sumaryjudgment against third-par Defendant DV A for contractual indemnification based on DV A'breach of the lease.

With respect to liability insurance by DV A (Tenant), Article X of the lease provides , inrelevant par:

During the term hereof Tenant shall, at tenant's own cost and expense:

Provide and keep in force for the benefit oflandlord public liability insurance policyor policies of standard form in the State of New York, with limits of Five HundredThousand ($500 000.00) / One Milion ($1 000 000.00) Dollars bodily injury,including death, and Fifty Thousand ($50 000.00) Dollar limit for propert damagessuch policy or policies to cover the demised premises inclusive of sidewalks andparking facilities. . . . If the tenant shall fail to keep such insurance in force andeffect throughout the term of this Lease, landlord may procure same and receivepayment of all sums paid from Tenant. . . .

The lease between 256 Broadway and DV A thus required DV A to procure liabilityinsurance coverage in the amount of $500 000 for the benefit of 256 Broadway. (Ex. "to 256 Broadway s Motion for Summar Judgment, at Art X). It is undisputed that DV Afailed to procure such insurance.

In lieu of such insurance , DV A cites to a letter indicating that it had a $5 milionself-insured retention which named 256 Broadway was an "additional insured" (Ex. " 1" toHAKC' s Affirmation in Parial Opposition to 256 Broadway s Motion for SummarJudgment). However, a self-insured retention is not insurance at all but, rather, arepresentation by the self-insured that it has a financial means to pay. The risk of loss isretained by the one upon whom it was imposed (as compared to insurance where theinsured' s risk ofloss is actually shifted to the insurer).

(Guercio Hertz Corp. 40 NY2d680 684 (1976) ("self insurance is no insurance at all"

);

Consolidated Edison Co LibertyMutual 193 Misc2d 399 (Sup Ct New York County 2002)).

Because DV A breached its agreement to procure liability insurance, it is liable forthe resulting damages incurred in defending the action, including the costs of reasonableattorney fees, etc. (Kinney v G. W risk Co. , Inc. 76 NY2d 215 , 219 (NY 1990); AmericanRef-Fuel Co. of Hempstead Resource Recycling, Inc. 248 AD2d 420 (2d Dept 1998)(breach of contract damages available for failure to procure insurance);

DiMuro Town ofBabylon, et aI. 210 AD2d 373 (2d Dept 1994); see also Seney Kee Assoc. 15 AD3d 383(2d Dept 2005) (sumar judgment on landlord' s claim for contractual indemnificationwaranted where lease contained indemnification clause requiring tenant to indemnifylandlord for expenses and attorney fees and, also, required tenant to maintain liabilityinsurance naming landlord as additional insured)).

In this regard, the indemnification provision of the 256 Broadway - DV A leasestates the following in Article Xl:

Except for its own acts/negligence/omissions or that of its servants, agents, oremployees , the landlord shall not in any event whatsoever be liable for any injuror damage to any person happening on or about the demised premises, or to anypropert of tenant, or to any property of any other person, firm, association, orcorporation on or about the demised premises. If the tenant shall fail to keep inforce and effect the insurance hereinabove set forth, then the tenant shall indemnifyand save harmless landlord from and against any and all liability and damages, andfrom and again any and all suits, claims and demands of every kind and natureincluding reasonable counsel fees, by or on behalf of any person, firm , associationor corporation arising out of or based upon any accident, injur or damageshowever occurring, other than by Landlord' s own acts or negligence or acts of itsservants , agents or employees about the demised premises or in or about the vaultsstreets, sidewalks or curbs in front of or adjacent thereto , and from and against anymatter or thing growing out of the condition, maintenance, repair, alteration, useoccupation or operation of the demised premises or of the vaults , streets , sidewalksor curbs in front of or adjacent thereto.

An insurer s duty to defend is "exceedingly broad" (BP Air Conditoning Corp.

One Beacon Ins. Group, 8 NY3d 708 714 (2007)). "If a complaint contains any facts orallegations which bring the claim even potentially within the protection purchased, theinsurer is obligated to defend.

(Id) One must look to the allegations in the complaint toascertain whether the duty to defend has been triggered. (ld)

DV A argues that it properly refused to defend on the ground that the complaintalleged that it was 256 Broadway s negligence which caused Plaintiffs ' fall. Thisargument is without merit, however, as it is well settled that "' additional insured' coverageprovides coverage to the named additional insured without regard to negligence.(Consolidated Edison Co Liberty Mutual 193 Misc2d 399 (Sup Ct New York County2002) citing Consolidated Edison Co Hartford Ins Co. 203 AD2d 83 (1 st Dept 1994)).In conclusion, 256 Broadway s request for contractual indemnification against DV A mustbe granted.

Accordingly, it is hereby ordered that: the motion of Dr. Stephen Dreznin isgranted in its entirety; branches (a) and (b) of the motion of Huntington Arificial KidneyCenter are granted, and branch (c) thereof is denied as academic; branches (1) and (2) ofthe motion of256 Broadway Realty are granted, and branch (3) thereof is denied asacademic. The complaint is dismissed. 256 Broadway s claim for contractualindemnification against DV A is granted.

This constitutes the decision and order of the cour.

Dated: June 29 , 2010

Hon. Vit

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