Opinion
No. 50631/2011.
09-15-2014
Sheila L. BISHOP, Plaintiff, v. GREYSTONE PROPERTIES LLC, Velocity at Greystone, LLC, Erik Kaiser, Kendra Pissarra, George Yarrell, Stephen Denardo, CFWB LLC as assignee of Wrightwood Capital Lender, LLC, Remi River Oak LLC, River Oak, LLC, Remi Greystone LLC, P.B. Markovic Individually, The City of Yonkers, Bob Ciamarra, James Hannigan and Matt Foley, all with the Department of Buildings of the City of Yonkers, Defendants.
Arnold S. Kronick, Esq., White Plains, Attorney for Plaintiff. Via Nyscef, Office of the Corporation Counsel, By John J. Phelan, Esq., Attorneys for Defendants City of Yonkers. Bob Ciamarra, James Hannigan, Matt, Foley, all with the Department of Buildings of the City of Yonkers, Yonkers, Via Nyscef, John M. Bundschuh, Esq., Baxter Smith & Shapiro PC, Properties, LLC, Hicksville, Attorneys for Defendant Greystone. Via Nyscef, Velocity at Greystone LLC, Hoboken, NJ.
Arnold S. Kronick, Esq., White Plains, Attorney for Plaintiff.
Via Nyscef, Office of the Corporation Counsel, By John J. Phelan, Esq., Attorneys for Defendants City of Yonkers.
Bob Ciamarra, James Hannigan, Matt, Foley, all with the Department of Buildings of the City of Yonkers, Yonkers, Via Nyscef, John M. Bundschuh, Esq., Baxter Smith & Shapiro PC, Properties, LLC, Hicksville, Attorneys for Defendant Greystone.
Via Nyscef, Velocity at Greystone LLC, Hoboken, NJ.
Opinion
PAUL I. MARX, J.
The following papers numbered 1 through 23 were read and considered on: (1) the motion of Defendant Greystone Properties, LLC. (“Greystone”) for an order pursuant to CPLR § 3212, granting it summary judgment and dismissing the complaint and all cross claims against it (Motion Sequence 9); (2)(a) the cross motion of Plaintiff for summary judgment against Greystone, (b) the motion of Plaintiff for summary judgment against the City of Yonkers, Bob Ciamarra, James Hannigan and Matt Foley (collectively “the Yonkers Defendants”) and (c) the motion of Plaintiff for a default judgment against Velocity at Greystone, LLC (“Velocity”) on the issue of liability (Motion Sequence 10); and (3) the motion of the Yonkers Defendants for an order granting summary judgment and dismissing all claims against them (Motion Sequence 11).
On July 25, 2014, the instant motions were reassigned from Hon. Lester B. Adler, J.S.C. to the undersigned for disposition.
| Motion Sequence No.9 | ||
|---|---|---|
| Notice of Defendant Greystone's Motion for Summary Judgment/Affirmation of Steven M. Bundschuh, Esq./Affidavit of Frank Lalezarian2/Exhibits A–W | 1–3 |
Upon the foregoing papers, the motions are decided as follows:
1.Greystone's motion for summary judgment against Plaintiff is granted in all respects and the complaint and all cross claims are dismissed against it;
2.Plaintiff's cross-motion for summary judgment against Greystone is denied in all respects;
3.Plaintiff's motion for summary judgment against the Yonkers Defendants is denied in all respects;
4.Plaintiff's motion for default judgment against Velocity on the issue of liability is granted; and
5.The Yonkers Defendants' motion for summary judgment is granted in all respects and the complaint and all cross claims are dismissed against them.
BACKGROUND
Plaintiff is the owner of a residence located at 1063 Warburton Avenue, Yonkers, New York. In this negligence action, Plaintiff seeks to recover for damages allegedly caused by excavation, which was performed as part of a development project located north of her residence. Plaintiff alleges that her property, and more specifically the rear/north yard of her property, failed and the foundation of her home slid toward the excavated area on which Defendants Greystone, Velocity, Remi River Oak, LLC, River Oak, LLC, and Remi Greystone, LLC and/or their predecessors in interest were engaged in construction activities. She asserts that, as a result, her home has been rendered uninhabitable and irreparable.
In 2002, Greystone was formed for the purpose of owning property on Warburton Avenue in Yonkers, New York and constructing an apartment building at that location. Greystone purchased three lots adjacent to Plaintiff's property and demolished the houses on the lots in order to construct the apartment building. The address given to the project site was 1077 Warburton Avenue. Greystone obtained approval for its project and a building permit from the City of Yonkers and retained the services of various companies to perform demolition of the houses, excavation of the site, rock drilling, and construction of excavation support systems. Greystone did not supervise the work of any of its contractors. When excavation of the site began in early 2004, Plaintiff sustained damage to her fence. Greystone sent Plaintiff a letter stating that it would repair the damaged fence and that “two rows of sheeting would be installed on the south side of the project site adjacent to her property for the purpose of protecting her property from damage during adjacent excavation and construction activities.” Affidavit of Frank Lalezarian (Managing Member of Greystone) at ¶ 9.
Greystone hired an independent contractor, Chesterfield Associates, Inc., to design, supply and install steel sheet piling around the perimeter of the project site for excavation support, including the two rows of sheeting that were installed adjacent to Plaintiff's property. Chesterfield completed installation of the steel sheet piling no later than July 12, 2004.
On or about August 23, 2004, the City of Yonkers issued a Stop Work Order at the project site after a portion of steel sheet piling on the north side of the site, adjacent to a condominium located at 1085 Warburton Avenue, partially collapsed. The partial collapse allegedly occurred when an excavator hit a “raker” that supported the sheeting, causing it to fall onto the excavator. Greystone's Managing Member, Frank Lalezarian, stated that the “localized sheeting collapse on the north side of the project site ... had no effect on any rows of sheeting located on the other sides of the project, including the two rows located on the south side of the project site adjacent to [Plaintiff's] property.” Id. at ¶ 13. Greystone worked out a plan with the condominium board at 1085 Warburton Avenue to remediate the site, including erecting a bin block retaining wall in the area of the partial collapse. The remediation plan, which received the City's approval, did not require any work on the sheeting on Plaintiff's side of the site. Plaintiff did not complain of any additional damage to her property, beyond the broken fence, during the demolition and excavation activities by Greystone's contractors. Apart from the remediation of the partially collapsed sheeting, Greystone's contractors performed little construction work at the site thereafter.
On or about October 23, 2006, Greystone entered into a contract of sale of the project site at 1077 Warburton Avenue and all of its development rights in the project to Defendant Eric Kaiser. Kaiser also agreed to assume Greystone's obligations under its settlement agreement with the condominium at 1085 Warburton Avenue. Kaiser formed Velocity to effectuate the sale. Kaiser and engineers retained by him or by Velocity inspected the project site prior to the sale. Frank Lalezarian, stated that neither Kaiser, Velocity, or their engineers informed Greystone of any dangerous condition related to the design or installation of the sheeting adjacent to Plaintiff's property.
On December 26, 2006, Greystone transferred the project site to Velocity, with approvals from the City of Yonkers, and ceased to have any ownership of the site or any involvement with the project. The Yonkers Building Department issued an Amendment to the project specifications and plans indicating the change in ownership.
In January, 2007, Velocity commenced construction activity at the project site. By Notice of Violation dated April 5, 2007, the City of Yonkers directed Velocity to immediately cease all construction and evaluate all of the existing shoring on the site. Greystone Notice of Motion, Exhibit V. The Notice of Violation stated, in pertinent part:
Existing shoring installed on the perimeter of the excavation appears to be failing. The easterly side (Warburton Avenue) appears to be undermining the City of Yonkers Right of Way.
All work on the construction of the new building is to cease IMMEDIATELY! A detailed Engineers [sic] report of the failed shoring and a complete evaluation of all existing shoring on the site is to be submitted IMMEDIATELY to this Department. NO WORK TO PROCEED ON THE NEW CONSTRUCTION UNTIL A REVIEW OF THE SHORING DETAIL HAS BEEN APPROVED BY THIS DEPARTMENT.
Thereafter, Velocity again resumed construction activity at the site. On or about January 31, 2008, Velocity built foundation walls for the apartment building and removed a portion of the steel sheeting adjacent to Plaintiff's property.
Neither Greystone nor the Yonkers Defendants explain whether Velocity undertook the evaluation of all shoring required by the April 2007 Notice of Violation.
On January 31, 2008, upon entering her house that evening, Plaintiff felt “a sharp cold wind in the first room that [she] walked in and [she] knew something was wrong, so [she] ... went into the basement and [she] noticed on the north/west corner of the building the foundation was broken away from the house and that was where the cold winds were coming from.” Greystone Notice of Motion, Exhibit I, Plaintiff's Deposition Transcript at 10:3–12. Within a day or two thereafter, she observed that some of the sheeting that was adjacent to her property was laying flat on the ground. She also observed that the ground was broken up and the trees and the hedge that separated her property from the project site were gone.
Plaintiff immediately hired a private engineer who inspected her property on February 3, 2008. The engineer informed Plaintiff that the damage to her property was caused by the removal of the metal sheeting adjacent to her property.
Also on February 3, 2008, the Yonkers Fire Department installed bracing to support Plaintiff's home and the sewer pipes to her home were disconnected. The Fire Department advised her to vacate the property for a period of about two weeks to see whether further damage occurred. Plaintiff has not returned to her home to live.
On February 5, 2008, the Yonkers Building Department issued Velocity an Order to Correct the condition. Velocity responded by building a temporary retaining wall adjacent to Plaintiff's property. In June 2008, the retaining wall collapsed. The Building Department issued a Notice of Unsafe Condition to Velocity. Construction ceased. Velocity subsequently defaulted on its construction loans and the property is being held by a receiver.
On April 9, 2011, Plaintiff filed the instant action. On September 30, 2011, Defendants Velocity, Remi River Oak, LLC, River Oak, LLC, Steven DeNardo and George Yerrall, all represented by the same counsel, filed separate answers. By Order dated January 4, 2013, the claims against DeNardo and Yerrall were dismissed. Thereafter, counsel moved to withdraw from representation of Velocity, Remi River Oak, and River Oak. By Order dated April 15, 2013, Hon. Francesca E. Connolly, J.S.C. granted counsel's motion and directed these parties to appear with new counsel, which they failed to do at subsequent compliance conferences and depositions. Plaintiff later moved for default judgment against Remi River Oak, River Oak and Remi Greystone, LLC. By Order dated September 16, 2013, Hon. Joan B. Lefkowitz, J.S.C. granted default judgment against them on the issue of liability only and ordered that any damages are to be determined at trial. Plaintiff inadvertently failed to include Velocity in the motion and now moves for default judgment against Velocity. No attorney has appeared on behalf of Velocity to oppose the motion.
DISCUSSION
Greystone's Motion for Summary Judgment and Plaintiff's Cross Motion for Summary Judgment
Greystone moves for summary judgment on the ground that its liability to third parties for the condition of the project site ceased when it transferred possession and control of the property to Velocity in December 2006. Greystone argues that the narrow exception to the general rule does not apply here, because Velocity had a reasonable opportunity after acquiring the project site to discover and remedy any dangerous condition that may have existed at the time of conveyance of the property to it. Greystone argues that Velocity's subsequent excavation and construction activity at the site, specifically its action in removing the protective sheeting that abutted Plaintiff's property, was the proximate cause of the damage that occurred to Plaintiff's property in January 2008. Greystone contends that as a prior owner without knowledge of a dangerous condition, it cannot be held liable for the damage to Plaintiff's home and summary judgment should be granted in its favor.
Greystone supports its motion with copies of the pleadings, Plaintiff's response to Notice for Discovery and Inspection, Plaintiff's deposition transcript, Frank Lalezarian's deposition transcripts, Lalezarian's letter to Plaintiff dated May 5, 2004 regarding damage to her fence and Greystone's plan to install metal sheeting to protect her property, the building permit application and permit grant by the City of Yonkers, the amendment to the permit to reflect the change of ownership to Velocity, photographs of the project site, the contract of sale and deed transferring the property from Greystone to Eric Kaiser, a violation notice issued to Velocity dated April 5, 2007 of failed shoring at the site, the February 5, 2008 Notice of Unsafe Conditions with Order to Correct issued to Velocity, the violation notices issued to Velocity in May and June 2008, and the May 2008 amendment to the building plans and specifications filed with the Yonkers Building Department by Velocity.
The general rule is that “liability for dangerous conditions on land does not extend to a prior owner of the premises.” Bittrolff v. Ho's Development Corp., 77 N.Y.2d 896, 898 [1991] (citing Pharm v. Lituchy, 283 N.Y. 130, 132 [1940] ); James v. Stark, 183 A.D.2d 873, 873 [2nd Dept 1992] ; Camillery v. Getty Refining & Marketing Co., 170 A.D.2d 567 [2nd Dept 1991]. There is however, “[a] narrow exception that exists, [whereby] liability may be imposed [on a prior owner if] a dangerous condition existed at the time of the conveyance and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known.” Bittrolff, supra at 898 (citations omitted); Mullen v. Zoebe, Inc., 205 A.D.2d 597 [2nd Dept 1994] (citing Bittrolff and Farragher v. City of New York, 26 A.D.2d 494, 496 [1st Dept 1966], aff'd on opn below 21 N.Y.2d 756 [1968] ).
Greystone has made out a prima facie case of entitlement to summary judgment. It has shown that it had no actual or constructive notice of a dangerous condition and it transferred ownership and control of the property to Velocity more than one year prior to the incident that caused Plaintiff's damage. Greystone established that its contractor installed two rows of metal sheeting adjacent to Plaintiff's property and that Plaintiff did not complain of any damage to her property following the installation of the sheeting. Greystone also established that Plaintiff's property and the sheeting adjacent to her property did not sustain any damage as a result of the partial collapse of sheeting on the opposite side of the project site, which halted all construction activity at the site except for repair work.
Greystone established that Velocity inspected the project site prior to purchasing it from Greystone in December 2006 and did not inform Greystone that it discovered a dangerous condition at the site. Greystone presented evidence that Velocity received a Notice of Violation from the Yonkers Defendants in April 2007 directing it to perform “a complete evaluation of all existing shoring on the site ...” and immediately submit an engineer's report to the Yonkers Building Department. While there is no evidence what, if anything, Velocity did in response to the April 2007 Notice of Violation, Velocity was put on notice that the soundness of the excavation supports should be evaluated immediately. Therefore, even if Velocity had not discovered a dangerous condition prior to April 2007, it had specific notice to evaluate whether there were any defects in the shoring on the site, including the sheeting adjacent to Plaintiff's property, and ample opportunity to remedy any dangerous condition that existed with respect thereto in the intervening ten months after receiving the April 2007 Notice of Violation and the incident on January 31, 2008 that damaged Plaintiff's property. See Bittrolff, supra at 896 (exception did not apply where nine months elapsed between transfer of ownership of property and the injury caused by the dangerous condition of the building); Guzman by Guzman v. 560 Realty Co., 175 Misc.2d 969, 971–72 [Sup Ct., New York County 1998] (six months) (noting cases where the exception was applied involved much shorter time periods, e.g., Slomin v. Skaarland Construction Corp., 207 A.D.2d 639 [3rd Dept 1994] (four days); Brown v. O'Connor, 193 A.D.2d 1088 [4th Dept 1993] (52 days); Young v. Hanson, 179 A.D.2d 978 [3rd Dept 1992] (two months)). Therefore, the narrow exception to a prior owner's non liability to third parties does not apply in this case and Greystone cannot be held liable for the subsidence of Plaintiff's property and the damage to her home.
The burden shifted to Plaintiff to show that genuine issues of material fact remain to be tried and that Greystone is not entitled to summary judgment as a matter of law. In opposition, Plaintiff claims that Greystone is liable for the damage to her property because it failed to timely and properly install protective devices to prevent the deterioration and subsidence of her property that occurred in January 2008. She asserts that Greystone should have installed protection from “the time the first shovel of earth was moved” in 2003. Greystone's failure to do so, she contends, “began the onset of deterioration and subsidence of the north and northwest yards” of her property. She acknowledges that Greystone installed sheeting adjacent to her property in May 2004, but contends that it was improperly and inadequately installed. She submits the affidavits of Leonard Jackson, a consulting engineer, and Joseph Rossini, a professional excavator, in support of her opposition.
Plaintiff's expert, Leonard Jackson, principal of Leonard Jackson Associates, Consulting Engineers, states that he inspected Plaintiff's property in June 2008 and that he based his opinion upon his “review[ ] and inspect[ion of] the premises and the location itself.” Plaintiff's Opposition, Affidavit of Leondard Jackson at ¶ 2. Mr. Jackson relates his observations of Plaintiff's property and the adjacent project site and concludes that “[t]he excavation for th[e apartment] building and its foundational wall has caused the earth on the north and west end of the [Plaintiff's] dwelling to subside ... as the earth supporting [that area of her yard] has been removed.” Id. at ¶ 4. He opines “with a reasonable degree of engineering certainty, that the initial and ongoing excavation for the construction of the adjacent apartment building, notwithstanding an attempt to eliminate the subsidence by installation of steel sheeting, has caused the land upon which the [Plaintiff's] residence was constructed to drop and shift laterally and downward taking with it portions of the [Plaintiff's] residence itself.” Id. at ¶ 6. He opines further that “[f]rom the outset, the removal of the earth as part of the construction of the new apartment building without having properly attended, from the time the first bucket of earth was removed, to the proper stabilization failed to avoid the subsidence of earth which has caused the damage to the [Plaintiff's] residence.” Id. at ¶ 8.
Joseph Rossini offers an expert opinion on the cause of Plaintiff's damage which he based upon his “practical experience and longevity in the field” of excavation since 1963; his review of Plaintiff's property and the project site in 2010 and 2014; his review of photographs of the excavation prior to installation of the partial foundation; and his review of the engineering reports of Leonard Jackson and of the McLaren Engineering Group. Plaintiff's Opposition, Affidavit of Joseph Rossini at ¶ 1–3. Mr. Rossini proffers his “considered opinion that the initial excavation began a downward spiral exacerbated by an improper initially installed sheeting system until it got to a point where the lack of earth and pressure on the foundation caused it to fail in the manner in which plaintiff's residence has been damaged.” Id. at ¶ 7.
Based upon the affidavit of her experts Jackson and Rossini, Plaintiff claims that there are several issues of fact which preclude summary judgment and necessitate a trial of the action. Plaintiff's counsel sets forth the issues of fact in his affirmation in opposition: “First, what representation was made by the Defendant Greystone to the new buyer about the sufficiency of the sheeting, when it was installed and what, if any, subsidence of the earth in the south end of the project, affecting the north end of plaintiff's property, had occurred at the time of the conveyance. Second, what notice, during the course of construction, did the new owner have of the subsidence of earth sufficient, within a reasonable period of time, another sub-issue to be considered by a jury, to undertake further remedial action.” Affirmation of Arnold S. Kronick, Esq. in opposition to Greystone's motion.
In addition, Plaintiff claims that Greystone has not shown that it did not violate New York City Administrative Code § 27–1031(b)(1) and the Industrial Code, 12 NYCRR § 23–4.4. Plaintiff relies on Yenem Corp v. 281 Broadway, 18 NY3d 481 [2012], which addressed a New York City Administrative Code provision that imposed “a specific duty upon those performing excavation work more than 10 feet below curb level to preserve and protect' adjoining structures”. She contends that Greystone is strictly liable. Plaintiff also contends that Greystone must demonstrate its compliance with the provision of the Industrial Code, 12 NYCRR § 23–4.4, which concerns sheeting, shoring and bracing.
In reply, Greystone assails the qualifications of Plaintiff's experts and the underlying foundations of their opinions, contending that their affidavits should be disregarded by the Court as they are speculative and conclusory. Greystone asserts that neither of Plaintiff's experts attests that he has the requisite knowledge, training or experience regarding geotechnical or structural engineering related to excavation support systems. Greystone argues that neither expert provides evidentiary support for his opinion and that the opinion proffered by each of them is not consistent with the facts testified to by Plaintiff. Greystone also challenges Plaintiff's newly raised claims of violations of the City of New York Administrative Code and the Industrial Code, which were never alleged in her complaint.
Plaintiff fails to raise a triable issue of fact. The affidavits of her experts are woefully short on evidentiary support and long on unsubstantiated conclusions. In sum, they are plainly insufficient to rebut Greystone's prima facie case for summary judgment. Leonard Jackson states that he is a civil engineer who has been qualified as an expert in civil engineering, but he does not describe what training or experience qualifies him to opine on the issues in this case. It is apparent from his affidavit that other than a visual inspection of the site in June 2008 following the collapse of Plaintiff's property, his opinion is solely an after the fact exposition of the obvious.
Joseph Rossini, a professional excavator, also does not describe what training or experience he has in the design or installation of excavation support systems, including metal sheeting. He bases his opinion on his site visit in 2010, two years after the incident that caused the subsidence of Plaintiff's property, photographs of the excavation before the partial foundation was installed and upon the reports of Mr. Jackson and the McLaren Engineering Group. Mr. Rossini does not identify what specific reports, or what information contained in the reports he relied upon to form his opinion. He merely asserts that the damage to Plaintiff's property was “directly and proximately caused, from the outset, by the initial excavation conducted by ... Greystone ... removing earth and not properly shoring up the north yard of the plaintiff ...”. Rossini Affidavit at ¶ 3.
Neither expert identified any evidence of subsidence or damage to Plaintiff's property prior to January 2008 when the sheeting was removed by Velocity. Neither expert explained how or why the steel sheeting that was installed by Greystone's contractor was inadequate to prevent subsidence of Plaintiff's property. Neither expert references any facts to support their conclusion that Plaintiff's property was eroding in any way prior to removal of the sheeting adjacent to her property in January 2008, more than a year after Greystone sold the property. Neither expert mentions at all the removal of the sheeting in January 2008. Both affidavits are unquestionably “devoid of evidentiary facts and consist[ed] of mere conclusions, speculation and unsupported allegations'.” Butler–Francis v. New York City Hous. Auth., 38 AD3d 433, 434 [2nd Dept 2007] (quoting Castro v. New York Univ., 5 AD3d 135, 136 [1st Dept 2004] ). Such affidavits are insufficient to raise a triable issue of fact as to Plaintiff's negligence claim against Greystone.
Plaintiff also cannot defeat summary judgment by raising the regulatory violations she belatedly asserts in her opposition. New theories of liability that were not previously alleged in the complaint can not be raised in opposition to a motion for summary judgment. Slacin v. Aquafredda, 2 AD3d 624, 625 [2nd Dept 2003] (citing Araujo v. Brooklyn Martial Arts Academy, 304 A.D.2d 779, 780 [2nd Dept 2003] ; Gustavsson v. County of Westchester, 264 A.D.2d 408 [2nd Dept 1999] ; Alvarez v. Lindsay Park Hous. Corp., 175 A.D.2d 225 [2nd Dept 1991] ). In Slacin, the Appellate Division rejected the plaintiff's effort to oppose the defendants' motion for summary judgment in a negligence action by raising for the first time in their opposition papers a claim that the defendants violated the town's dog control ordinance. Id.; see also Lennard v. Chinkpoo Realty Holding Corp., 76 AD3d 1052, 1054 [2nd Dept 2010] ; Carminati v. Roman Catholic Diocese of Rockville Centre, 6 AD3d 481, 482 [2nd Dept 2004]. The same principle applies here.
Moreover, neither of the code violations cited by Plaintiff has any application here. Plaintiff's reliance on Yenem, supra, is wholly misplaced. Yenem relates to a provision of a municipal ordinance which is limited in its application to New York City. The ordinance at issue in the case had its origins in an 1855 special state law that was itself limited in its application to “the city and county of New–York” and the “city of Brooklyn” and did not apply outside those areas. Yenem, supra at 489. The situs of the subject property is the City of Yonkers. Plaintiff has not shown that there is any basis upon which the New York City ordinance and its strict liability principles can be extended to this case.
Similarly, 12 NYCRR § 23–4.4, the other regulation which Plaintiff claims was violated by Greystone also has no application in this case. That section provides, in relevant part:
“(a) Where any excavation is not protected by sloped sides or banks in compliance with Table I of this Subpart, any person in such excavation shall be protected by sheeting, shoring and bracing in compliance with Tables II, III and IV of this Subpart. Sizes of materials listed in the tables are nominal or trade dimensions.” (Emphasis added)
This section of the Industrial Code comes within Part 23 of the Code, which states that it applies to
“persons employed in construction, demolition and excavation operations, to their employers and to the owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work. This Part (rule) also applies to persons lawfully frequenting the areas of construction, demolition and excavation operations.”
12 NYCRR § 23–1.3. Plaintiff is plainly not within the zone of interests sought to be protected by 12 NYCRR § 23–4.4. Although the provision concerns sheeting, shoring and bracing, it is clear from the language of the provision that it is intended solely to protect workers and other persons physically present at a job site and does not encompass owners of property adjacent to the work site. Therefore, even if Plaintiff had alleged a claim in her complaint based upon that section of the Industrial Code, she lacks standing to assert such a claim.
Plaintiff asserts in her cross motion that the Court “must also consider the doctrine of res ipsa loquitor. ” Notice of Cross Motion, Affirmation of Arnold S. Kronick, Esq. at ¶ 10. She contends that the doctrine applies here because the collapse of the foundation of a house adjacent to a construction site would not occur in the absence of negligence. Plaintiff cites Burgess v. Otis Elevator Co., 114 A.D.2d 784, 786 [1st Dept 1985], aff'd 69 N.Y.2d 623 [1986] (citing Corcoran v. Banner Super Mkt., 19 N.Y.2d 425, 430 [1967] ), which states that the doctrine requires that “(1) the event must be of a kind that does not ordinarily occur in the absence of someone's negligence, (2) it must be caused by an instrumentality within the exclusive control of the defendant, and (3) the plaintiff must not have effected the happening of the event by any voluntary action.”
Greystone urges the Court to disregard Plaintiff's cross-motion because it was untimely filed by approximately three days. Although Plaintiff certainly should have adhered to the dates in the Trial Readiness Order, the Court does not find the time period unduly prejudicial. Therefore, the Court has considered Plaintiff's motions.
Here, as in Dermatossian v. New York City Transit Auth., 67 N.Y.2d 219, 227 [1986], it is “the second of the required three elements-exclusive control-which is critical ...”. Plaintiff has not established that Greystone had sufficient control of the site at the time of the incident that caused damage to her property. Given that Velocity had ownership and control of the project site at the time of the occurrence and was actively engaged in construction activity at the site, including removal of the sheeting adjacent to Plaintiff's property, Plaintiff cannot show that “the possibility of other causes [was] so reduced that the greater probability lies at [Greystone's] door' “. Id. at 227 (quoting 2 Harper and James, Torts § 19.7, at 1086). “Res ipsa loquitur is only applicable where the possibility that the event was caused by the negligence of someone other than the defendant is so remote that it is fair to permit an inference that the defendant is the negligent party.” Fernandez v. Ramos, 300 A.D.2d 348, 349 [2nd Dept 2002] (citing Feblot v. New York Times Co., 32 N.Y.2d 486, 496 [1973] ). The evidence shows that the incident occurred immediately after Velocity removed the sheeting Greystone's contractor installed to protect Plaintiff's property from the very harm that occurred. Plaintiff did not establish any control of the sheeting by Greystone at the time of the incident. Thus, there is no basis for an inference that Greystone was the negligent party and the doctrine of res ipsa loquitor does not apply to this case.
Accordingly, Greystone's motion for summary judgment is granted and Plaintiff's cross motion for summary judgment against Greystone is denied. All claims and cross claims against Greystone are dismissed.
Plaintiff's Motion for Summary Judgment Against the Yonkers Defendants and the Yonkers Defendants' Cross Motion for Summary Judgment (Motion Sequences 9 and 11)
Plaintiff moves for summary judgment against the Yonkers Defendants, claiming that the dangers resulting from “the excavation and the failure to properly secure the earth abutting the north and west portions of [her] property ... were known to The City of Yonkers who nonetheless allowed excavation to continue and/or resume even after problems were detected.” Plaintiff's Affidavit at ¶ 9.
The Yonkers Defendants cross move for summary judgment dismissing Plaintiff's complaint in its entirety. They contend that they are entitled to judgment as a matter of law because Plaintiff has not alleged or proven that a special relationship existed between them which gave rise to a duty of care toward her. They contend further that they are shielded by governmental immunity from liability for the alleged negligent performance of their investigation and enforcement of the building permit for the project, because their actions were discretionary in nature.
“[A]n agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public.' “ McLean v. City of New York, 12 NY3d 194, 199 [2009] [citations omitted] ). Plaintiff bears the burden to allege and prove that the Yonkers Defendants owed her a special duty of care beyond the duty they owed to the public at large. Valdez v. City of New York, 18 NY3d 69, 75 [2011] (“claimants must first establish the existence of a special duty owed to them by the State before it becomes necessary to address whether the State can rely upon the defense of governmental immunity.”). In order to show that such a duty arose in performing their governmental function of inspecting and enforcing the City of Yonkers' building codes and regulations at the project site, Plaintiff must establish that a special relationship was created between herself and the City of Yonkers in one of three ways:
“(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'.”
McLean, supra at 199 (quoting Pelaez v. Seide, 2 NY3d 186, 199–200 [2004] [citations omitted] ).
Although Plaintiff alleged in her complaint that the Yonkers Defendants' negligent and inadequate supervision and monitoring of the project site resulted in violations of the Code of the City of Yonkers, she does not point to any specific provision of the Code. Instead, Plaintiff relies on a provision of the New York City Administrative Code, which is clearly inapplicable, and a provision of the Industrial Code, which was enacted for the benefit of the employees at the work site. Moreover, like Metz v. State of New York, 20 NY3d 175, 180 [2012] and O'Connor v. City of New York, 58 N.Y.2d 184, 190 [1983], which is cited in Metz, the Yonkers Building Code is designed to protect public safety, but it does not create a duty to particular individuals.
Plaintiff also failed to show that hers is “one of the narrow class of cases in which a special relationship' can arise from a duty voluntarily undertaken by a municipality to an injured person', McClean, supra at 201, by establishing the following:
“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.”
Id. (quoting Cuffy v. City of New York, 69 N.Y.2d 255, 260 [1987] [citations omitted] ). Plaintiff did not allege in her complaint or offer any proof either in the papers she submitted in support of her motion or in opposition to the motion by the Yonkers Defendants that the Yonkers Defendants made any promises to her directly or through their actions led her to believe that they were acting on her behalf. In fact, the situation is just the opposite. Plaintiff testified at her deposition that she never met or had any conversations with any of the Yonkers Defendants prior to the incident in January 2008 when her property subsided. Plaintiff's Deposition, Volume I dated July 17, 2013 at 96:13 to 103:4–22. Aside from Plaintiff's broad statement in her affidavit that Defendants were aware of the dangerous condition existing at the site and failed to do anything to protect her from the damage that occurred, Plaintiff offers no evidence of any actions by the Yonkers Defendants that were sufficient to create a special duty to her. Plaintiff has failed to make a prima facie showing of entitlement to summary judgment against the Yonkers Defendants.
Accordingly, Plaintiff's motion for summary judgment against the Yonkers Defendants is denied and their motion for summary judgment against Plaintiff is granted. Plaintiff “must first establish the existence of a special duty owed to [her by the City of Yonkers] before it becomes necessary to address whether the [City] can rely upon the defense of governmental immunity”. Metz, supra at 179. This she has failed to do.
Plaintiff's Motion for Default Judgment Against Velocity (Motion Sequence 10)
Plaintiff moves for default judgment against Velocity based upon its default “in proceeding in this matter following the withdrawal of their counsel ...”. Affirmation of Arnold S. Kronick, Esq. In Support of Plaintiff's Motion at ¶ 1. Velocity's answer to the complaint was filed on September 30, 2011.
CPLR § 3215(a) states in pertinent part: “When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.” Plaintiff submits an affidavit of service of the motion upon Erik Kaiser, Velocity's principal. Velocity did not oppose the motion. Accordingly, Plaintiff's motion for default judgment against Velocity is granted.
SUMMARY
It is therefore,
ORDERED that Defendant Greystone's motion for summary judgment is granted and Plaintiff's cross motion for summary judgment against Greystone is denied. All claims and cross claims against Greystone are dismissed. It is further
ORDERED that Plaintiff's motion for summary judgment against the Yonkers Defendants is denied and the Yonkers Defendants' cross motion for summary judgment is granted. All claims and cross claims against the Yonkers Defendants are dismissed. It is further
ORDERED that Plaintiff's motion for default judgment against Velocity is granted. It is further
ORDERED that the remaining parties appear in the Settlement Conference Part on October 23, 2014 at 9:15 a.m., in Room 1600 of the Westchester County Supreme Court, 111 Dr. Martin Luther King, Jr ., Boulevard, White Plains, New York for an inquest on damages against the defaulting Defendants Velocity at Greystone, LLC, Remi River Oak, LLC, River Oak, LLC, and Remi Greystone, LLC. It is further
As to the remaining defendants not addressed herein: Defendants Erik Kaiser and Kendra Pissarra have not appeared in the action, however, Plaintiff has not moved for default judgment against either of them. By Order dated September 26, 2011, Hon. Lester B. Adler, J .S.C. dsmissed the claims against Defendant CFWB, LLC as assignee of Wrightwood Capital Lender, LLC. By Order dated January 4, 2013, Hon. Lester B. Adler, J.S.C. dismissed the claims against Defendants Stephen DeNardo and George Yarrell. By Order dated January 4, 2013, Hon. Lester B. Adler, J.S.C. granted Defendant P.B. Markovic's motion for summary judgment and dismissed the claims against him.
ORDERED that all moving parties shall serve a copy of this Order with notice of entry within ten (10) days of entry upon all other parties and shall file proof of service on NYSCEF within five (5) days of service.
The foregoing constitutes the Decision and Order of the Court.