Opinion
Index No. 522582/2017
01-04-2024
VALENTINA BUTOVA and ALEXANDER BUTOV, Plaintiffs, v. THE SEA GATE ASSOCIATION, BROOKLYN UNION GAS COMPANY d/b/a NATIONAL GRID, THE HALLEN CONSTRUCTION CO., INC., NEW YORK PAVING, INC, and MOHAMMED YAKATALLY, Defendants.
Unpublished Opinion
At an IAS Part 83 of the Supreme Court of the State of New York held in and for the County of Kings at 360 Adams Street, Brooklyn, New York, on the 4th day of February 2024.
DECISION AND ORDER
The following e-filed papers considered herein: NYSCEF Doc. Nos.
Notice of Motion/Affirmation in Support/Exhibits...................... 130-135
Affirmation in Opposition........................................................... 164
Reply Affirmation......................................................................... 165
In this matter, Plaintiffs Valentina Butova and Alexander Butov (collectively, "Plaintiffs") move for leave to renew and reargue the Court's decision dated March 14, 2022, granting Defendant The Sea Gate Association's ("Sea Gate") motion for summary judgment; and upon reargument, vacating that decision and denying Seagate's motion (Mot. Seq. No. 4). Sea Gate opposes Plaintiffs' motion, arguing that the Court did not overlook or misapprehend any issues of fact or law.
Plaintiffs commenced this trip and fall action by filing a summons and complaint on or about November 20, 2017. The complaint was subsequently amended two times-the latest on May 6, 2019. The underlying facts are essentially the same. Plaintiff Valentina Butova ("Butova") alleges that on April 20, 2017, while walking down a public sidewalk abutting a house located at 4001 Sea Gate Avenue in Kings County, New York (the "Premises") she was caused to trip over an uneven sidewalk and sustained injuries. The Premises was owned by Mohammed Yakatally ("Yakatally") at the time of the accident and was located within the Sea Gate Community, a gated community operated by Sea Gate. Butova asserted a cause of action for negligence against defendants, while her husband Plaintiff Alexander Butov brought a derivative claim.
Subsequently, Sea Gate moved for summary judgment on the grounds that (a) homeowners bore all responsibility for sidewalks in front of their house pursuant to the Rules and Regulations of the Sea Gate Association and (b) any alleged condition was created by co-defendants Brooklyn Union Gas Company d/b/a National Grid ("National Grid"), the Hallen Construction Co. Inc. ("Hallen") and New York Paving Inc. ("NY Paving") during their pipe replacement project. In opposition, Plaintiffs argued that Sea Gate owned the sidewalk and had a non-delegable duty to maintain it in a safe condition and that there was an issue of fact as to whether Sea Gate had actual and/or constructive notice. Moreover, Plaintiffs argued that pursuant to the Rules and Regulations, Sea Gate was to regularly inspect and assess the quality of sidewalks and then notify homeowners of any unsatisfactory or hazardous condition. Plaintiffs asserted that Sea Gate's witness Joanna Crowe testified that no notices were issued to Yakatally regarding the condition of the sidewalk. On March 14, 2022, the Court granted Sea Gate's motion, finding that it had established that (1) National Grid, Hallen and NY Paving were performing a large-scale project that involved removal and replacement of a section of the sidewalk where Butova allegedly tripped and fell and (2) the abutting property owner Yakatally was responsible for maintaining and repairing the sidewalk. Plaintiffs now seek to renew and reargue her opposition to Sea Gate's motion.
National Grid and Hallen also opposed Sea Gate's motion for summary judgment but did not put forth any papers relating to the present motion.
In deciding Sea Gate's motion, Plaintiffs contend that the Court overlooked and/or misapprehended the following: (1) Sea Gate's failure to rebut the assertion of ownership of the subject sidewalk, (2) precedent set forth by the Second Department in Weinberg v. City of New York, 3 A.D.3d 489 [2d Dept 2004], (3) the fact that there was a condition precedent that Sea Gate had to fulfill first before Yakatally's duty to act arose, (4) the issue of an implied-in-fact contract that was formed between Plaintiffs and Sea Gate, (5) Sea Gate's notice of the defect, and (6) whether Sea Gate could be held liable for injuries resulting from a recurring dangerous condition it left unattended. Plaintiffs also seek to renew their opposition on the basis that the testimony of John Labita of National Grid, whose deposition was taken after the motion was fully submitted, raises questions of credibility of witnesses.
In opposition to Plaintiffs' present motion, Sea Gate contends that the Court properly granted its motion for summary judgment and Plaintiffs failed to demonstrate that the Court misapplied the law or otherwise erred in making its determination. With respect to Plaintiffs' claim that the Court overlooked the issue of ownership, Sea Gate argues that the Court did not do so by stating that Yakatally was responsible for maintaining and repairing the sidewalk. Sea Gate asserts that it addressed the issue of its lack of ownership in its moving papers through the testimony of its witness Ms. Crowe, the community manager. Sea Gate further argues that the corporate co-defendants created any alleged defective condition, of which Sea Gate had neither notice of nor left unattended. In support, Sea Gate cites to the deposition testimony of Mr. Labida, who stated, in part, that Sea Gate did not have any responsibility for the work being performed by National Grid. Sea Gate further contends that Plaintiffs mischaracterize the testimony of Mr. Labida as at odds with Ms. Crowe's.
In their reply, Plaintiffs contend that their arguments about the issue of ownership, an "implied-in-fact" contract and recurrent dangerous condition Sea Gate created or left unattended were raised in their initial opposition and were left unrebutted in Sea Gate's reply, warranting denial of Sea Gate's motion. As the owner of the sidewalk, as determined in Weinberg, Plaintiffs contend that Sea Gate had a non-delegable duty to maintain it in a safe condition. With respect to Ms. Crowe's testimony concerning ownership, Plaintiffs claim that she was not a qualified witness because she is not an attorney, property surveyor or employee of the Clerk's Office. Plaintiffs also claim that Mr. Labida's failure to confirm that he received any messages from Ms. Crowe regarding the sidewalk prior to Plaintiffs fall means that he is lying or the alleged complaints were never made to him. Plaintiffs further argue that a jury could find that Sea Gate had notice because of the prior complaints about sidewalks in the community and Ms. Crowe's inspection and photographs of other sidewalks during the project.
The decision to grant leave to renew or reargue is at the sound discretion of the court (see Rodney v New York Pyrotechnic Prod. Co., 112 A.D.2d 410, 411 [2d Dept 1985] [internal citation omitted]; Gold v Gold, 53 A.D.3d 485, 487 [2d Dept 2008]). A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d] [2]). However, a motion for leave to reargue is "not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (McGill v Goldman, 261 A.D.2d 593, 594 [2d Dept 1999] [internal citations omitted]).
Upon the court's review of the merits of the movant's arguments, the motion for reargument is essentially granted (see McNamara v Rockland Cnty. Patrolmen's Benevolent Ass'n., Inc., 302 A.D.2d 435, 436 [2d Dept 2003]). Thus, the only remaining question is whether or not the Court will adhere to its prior determination granting Sea Gate's motion for summary judgment.
It is well-established that on a motion for summary judgment, the burden rests with the movant to demonstrate that there are no triable issues of fact and that it is entitled to judgment as a matter of law (see Englington Med., P.C. v Motor Vehicle Acc. Indem. Corp., 81 A.D.3d 223, 230 [2d Dept 2011]; CPLR 3212 [b]). "As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of that property" (Gover v Mastic Beach Prop. Owners Ass 'n, 57 A.D.3d 729, 730 [2d Dept 2008] [internal citations omitted]). A duty of care results from "[t]he existence of one or more of these elements" (Pollard-Leitch vR&D Utica Realty, Inc., 186 A.D.3d 513, 514 [2d Dept 2020] [internal citation omitted]). It logically follows that when all elements are absent, "a party cannot be held liable for injuries caused by the allegedly defective condition" (Gover, 57 A.D.3d at 730 [internal citations omitted]).
The Court will first address Plaintiffs' contention that the Court overlooked Sea Gate's failure to rebut the assertion of ownership. In Chernoguz v. Mirrer Yeshiva Cent. Inst., 121 A.D.3d 737 [2d Dept 2014], the plaintiff commenced an action alleging that she tripped and fell due to a defective or dangerous condition on the sidewalk. The Second Department found that the affidavit submitted in support of a motion for summary judgment "failed to demonstrate the absence of any triable issues of fact regarding the ownership of the subject property" (Chernoguz, 121 A.D.3d at 738). Likewise, the Court finds Ms. Crowe's testimony wholly deficient to conclusively establish Sea Gate's lack of ownership. Though Ms. Crowe testified that homeowners owned the sidewalks, there was no testimony or documentary evidence provided to demonstrate the basis of her conclusory statement. Accordingly, Ms. Crowe's testimony, by itself, was insufficient to establish Sea Gate's prima facie entitlement to summary judgment (see Buckley v Rockefeller Grp., Inc., 143 A.D.2d 623 [2d Dept 1988] [denial of summary judgment was proper where only proof that appellants did not operate or control premises was the unsubstantiated conclusory testimony of an employee]), particularly in light of Sea Gate's role per the Second Department in Weinberg v City of New York (3 A.D.3d at 490 ["Sea Gate Association .. . owned the sidewalk"]). The Court finds that it is for the trier of fact to determine whether Sea Gate owed a duty of care to Butova by virtue of ownership of the subject sidewalk.
In this action, defendants Morris Morgenstern High School and Sara Persky Rabbinical College moved for summary judgment (the "moving defendants"). Rabbi Pinchos Hecht, executive director of defendant Mirrer Yeshiva Central Institute ("Mirrer Yeshiva"), submitted an affidavit in which he admitted that Mirrer Yeshiva owned the property adjacent to the subject sidewalk and stated that the moving defendants were simply trade names and they did not own, operate or maintain the premises (aff of Rabbi Pinchos Hecht). Plaintiff argued that no documentary evidence or other proof except the self-serving affidavit was submitted (brief for plaintiff-respondent, available at 2014 WL 7641474, *5).
In Weinberg, the plaintiff commenced an action after falling on a sidewalk within the Sea Gate community. The Second Department determined that the homeowners of the property abutting the sidewalk and Sea Gate were entitled to summary judgment because plaintiff was unable to identify the cause of her accident (Weinberg, 3A.D.3d at 490). The Court in Weinberg stated that Sea Gate owns the sidewalk. However, since neither party presented the underlying arguments or evidence proffered in that case, this Court cannot determine the basis for that statement.
The Court next addresses Plaintiffs' contention that the Court overlooked or misapprehended the fact that there was a condition precedent that Sea Gate had to fulfill first before Yakatally's duty to act arose. According to the Rules and Regulations, Sea Gate "reserves the right to repair the unsafe [sidewalk] condition" if the homeowner does not make repairs within 60 days from the date of written notice. Since Sea Gate did not send notices to repair to Yakatally, Plaintiffs argue that the duty to act never shifted from Sea Gate to Yakatally. Where the Rules and Regulations state that it is the "sole responsibility of the homeowner ... to maintain and repair broken and cracked sidewalks," it defies logic to imply that homeowners must wait to receive written notice of a condition in front of their own house before they must undertake any repair. Nonetheless, the Rules and Regulations do provide that homeowners have 60 days to make repairs "[a]fter receiving written notice from [Sea Gate] of an unsafe sidewalk condition." The question is whether Sea Gate can be held liable because it retained some control of the sidewalk by reserving its right to repair. The answer rests with the jury since "it cannot be said as a matter of law that the [homeowner's] Association assumed no responsibility or control over the [unsafe] sidewalk" (Armbruster v In the Woods Ass 'n, Inc., v, 980 [4th Dept 1998]).
In Armbruster, the plaintiff slipped and fell on an icy sidewalk in front of a townhouse governed by a homeowner's association (the "HOA") and sued the HOA and the snow removal contractor (249 A.D.2d at 980). The HOA argued that under its corporate documents, the individual homeowner was exclusively responsible for applying calcium, sand or salt to their sidewalk (id.). However, the court found that there was proof that the contractor was responsible under its contract with the HOA to make those applications at the direction of the HOA (id.). Here, the Rules and Regulations provide that it is the homeowner's sole responsibility to maintain and repair the sidewalks, but it also provides that Sea Gate will give the homeowner notice and if that is not complied with, Sea Gate reserves the right to repair.
Sea Gate did not proffer evidence sufficient to eliminate all triable issues of fact as to whether it owned, controlled or was otherwise responsible for the sidewalk where Butova fell. Accordingly, the Court should have denied Sea Gate's motion for summary judgment because Sea Gate failed to establish that it did not owe Butova a duty of care as a matter of law (Simmons v Elmcrest Homeowners' Ass'n, Inc., 11 A.D.3d 447, 448 [2d Dept 2004] [grant of summary judgment to homeowner's association and its managing agent is erroneous where there is an issue of fact as to ownership and control of subject area]).
Plaintiffs finally argue that the Court overlooked the fact that Sea Gate had notice of the condition of the subject sidewalk. Sea Gate argues that since homeowners are responsible for the sidewalks and it did not create the condition, whether it had notice or not is irrelevant. Assuming arguendo that Sea Gate owed a duty of care, the Court finds that Plaintiff raised a triable issue of fact as to whether Sea Gate had constructive notice. On these grounds, the Court should have also denied Sea Gate's motion for summary judgment. It is undisputed that the work performed by National Grid, Hallen and NY Paving was large-scale, involving sidewalks throughout the community. There is no evidence that Sea Gate received a complaint about the exact section of the sidewalk Plaintiff fell. However, there is evidence of complaints from homeowners about other sidewalks, including one a short distance from the subject sidewalk. Though Sea Gate avers that these complaints do not impute notice, they may, in fact, be sufficient proof for a jury to find that Sea Gate had constructive notice (see Gutz v Cnty. of Monroe, 221 A.D.2d 838, 839 [3d Dept 1995] [denial of motion for directed verdict is proper where jury could find that defendant had constructive notice of dangerous condition of tiles on subject stairs due to its knowledge of the recurring problems with the tiles in other areas of the building]; Armstrong v Ogden Allied Facility Mgmt. Corp., 281 A.D.2d 317, 318 [1st Dept 2001], citing Gutz, 221 A.D.2d at 839).
In opposition to Sea Gate's motion for summary judgment, Plaintiff raised the issue of notice. It was not until its reply to that opposition that Sea Gate addressed notice.
The Court now turns to the portion of Plaintiffs' motion seeking leave to renew. A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]). The movant most also proffer a "reasonable justification for the failure to present such facts on the prior motion" (id.). Plaintiffs provides that Sea Gate will give the homeowner notice and if that is not complied with, Sea Gate reserves the right to repair. submit that the facts are contained within Mr. Labida's deposition testimony in which he purportedly denied that Ms. Crowe ever conveyed any homeowners' complaints concerning the sidewalk. As for a reasonable justification, Plaintiffs aver that Mr. Labida's deposition took place months after the motion for summary judgment was fully briefed. Sea Gate's opposition takes issue with Plaintiffs characterization of Mr. Labida's testimony (e.g., Mr. Labida did not testify that Ms. Crowe did not inform him of complaints about the sidewalk; instead, he stated "Not that I recall"). It would be improper for the Court, on a summary judgment motion, to resolve questions of credibility or determine the accuracy of witnesses (Kahan v Spira, 88 A.D.3d 964, 966 [2d Dept 2011] [internal citations omitted]).
Thus, it is hereby
ORDERED, that Plaintiffs' motion for leave to renew and reargue (Mot. Seq. No. 4) is granted and, upon renewal and reargument, this Court's March 14, 2022 order is vacated and Sea Gate's motion for summary judgment is denied.
All other issues not addressed herein are without merit or moot.
This constitutes the decision and order of the Court.