Opinion
Index No. 91/2012
10-23-2012
MICHAEL DeSTEFANO, as Administrator of the ESTATE OF DONALD WILLIAM DeSTEFANO, KRISTOPHER DeSTEFANO, MATTHEW DeSTEFANO, JOSHUA DeSTEFANO, and JEREMY DeSTEFANO, Plaintiffs, v. ROSEMARY A. GRASSO, CITY OF PORT JERVIS, and ORANGE & ROCKLAND UTILITIES, INC., Defendants.
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry,
The following papers numbered 1 to 10 were read on defendant Orange & Rockland Utilities, Inc.'s ("O & R") motion for summary judgment as against plaintiffs:
Notice of Motion-Affirmation-Affidavit-Exhibits....................................1-4
Affidavit in Opposition-Affirmation-Exhibits-Memorandum of Law.....................5-8
Reply Affirmation-Exhibit..................................................... 9-10
Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows: This is an action in personal injury and wrongful death stemming from a motor vehicle accident in which plaintiffs' decedent, a pedestrian, was struck and killed by a motor vehicle driven by defendant Grasso on November 19, 2011. In addition to Grosso, plaintiffs allege O & R bears responsibility for the accident in that certain streetlights were not working at the time thereby making the accident location improperly lit and hazardous for plaintiff's decedent.
Previously, the City of Port Jervis moved for summary judgment which was granted. O & R now moves for summary judgment claiming that it owed no duty and bore no responsibility for replacing the streetlight bulbs or alternatively that it lacked notice of the condition.
According to O & R, Port Jervis owns and operated 3 vintage street lights and O & R owns 2 additional utility lights, one on Fowler Street north of the intersection where the accident occurred, and one approximately 195 feet from the intersection itself. Port Jervis and O & R entered into an arrangement whereby O & R would replace any streetlight bulb on the two O & R owned fixtures only upon receiving a fax from Port Jervis requesting the bulb. O & R obtained Port Jervis records from September-December, 2011 and the records fail to indicate any request by Port Jervis for bulb replacement for the 2 fixtures in question at any time prior to plaintiff's decedent's accident, and first occurred 12 days after the accident.
As a procedural matter, the statements of the two independent eyewitnesses submitted by O & R will not be considered as they are complete hearsay. In State Farm Mut. Auto. Ins. Co. v Langan 18 AD3d 860 (2nd Dept. 2005), the court determined that a portion of a police report constituted impermissible hearsay since the eyewitness who gave a statement to the police lacked a business duty to report (id. at 862; see Jupa v Zaidi, 309 AD2d 606, 607 (1st Dept. 2003); People v Roberts, 304 AD2d 364, 364 (1st Dept. 2003); Pector v County of Suffolk, 259 AD2d 605, 606 (2nd Dept. 1999); Hatton v Gassler, 219 AD2d 697, 697 (2nd Dept. 1995); Matter of Christopher B., 192 AD2d 180, 184 (4th Dept. 1993)). In this case, the report was taken two days after the accident. There is no indication that either non-party witness was under a duty to make the statements, and absent any sworn testimony, they will not be considered by this Court.
In Andre v Pomeroy, 35 NY2d 361, 364 (1974), the Court of Appeals held that:
[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law . . . when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.
A party opposing a motion for summary judgment must lay bare his or her proof. Del Giacco v Noteworthy Company, 175 AD2d 516, 517 (3rd Dept., 1991). In order for a party to successfully oppose a motion for summary judgment, he must demonstrate a bona fide defense to the action which defense must be fairly debatable and of a substantial character. See, Kaye v Keret, 89 AD2d 885, 886 (2nd Dept. 1982). If the papers show no real defense, or at best a shadowy or perfunctory defense, summary judgment may be granted. See, Sabato v Soffes, 9 AD2d 297, 300 (1st Dept. 1959). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient [cit. om.]." Zuckerman v City of New York, 49 NY2d 557, 562 (1980).
Before determining whether the O & R had notice of any burned out lights it owned and then determining whether the absence of light from any allegedly burned out lights were the proximate cause of the accident at issue, the first question which must be answered is whether O & R owed a duty to plaintiff's decedent in the first place.
The failure of a public utility to replace allegedly burned out light bulbs in violation of a contract between a municipality and a utility to perform that responsibility is not a basis for liability which can be asserted by a third-party allegedly injured as a result of poor illumination of an area in question. See, Kraye v Long Island Lighting Co., 42 AD2d 972 (2nd Dept. 1973). A similar result was reached in Pizzaro v City of New York, 188 AD2d 591 (2nd Dept. 1992). In Pizzaro, the contractor responsible for changing burned out light bulbs in streetlights for the City of New York was awarded summary judgment as against a plaintiff who was allegedly injured in an accident claiming poor illumination. The Court in Pizzaro held that the contractor owed no duty to plaintiff, a member of the public and a non-party to the contract with the City. See, Id. at 594; see also, Kornblut v Chevron Oil Co., 62 AD2d 831 (2nd Dept. 1978). "A duty directly assumed to benefit one person does not extend to third parties who are not intended beneficiaries of the undertaking to perform, even if it is foreseeable that someone else might be damaged by the nonfeasance [citations omitted] " Oathout v Johnson, 88 AD2d 1010, 1010 (3rd Dept. 1982). As the Second Department noted in Strauss v Belle Realty Co., 98 AD2d 424, 427 (2nd Dept. 1983), "an intention to assume an obligation of indefinite extension to every member of the public is seen to be the more improbable when we recall the crushing burden that the obligation would impose." Permitting non-parties to a contract to sustain a breach of contract claim in a situation such as this "would introduce new parties with new rights and would subject the defendant to a multitude of suits for damages that could not have been intended or in the contemplation of the parties at the time the contract was made." Strauss, 98 AD2d at 427-428 (citing Shubitz v Consolidated Edison Co., 59 Misc2d 732).
The instant case is on fours with Kraye, supra. The law does not permit an extension of any duty between Port Jervis and O & R to extend to plaintiffs such as plaintiff's decedent. Therefore, O & R established a prima facie case for summary judgment insofar as it demonstrated that it did not owe any duty to plaintiff's decedent under the facts of this case. In opposition, plaintiffs failed to come forth with any evidence in opposition to demonstrate the existence of any such duty. The conclusory affirmation submitted by plaintiffs' attorney and the accompanying affidavit of plaintiff's decedent's brother are insufficient to create triable issues of fact. In opposing a motion for summary judgment a party must present evidentiary facts sufficient to raise triable issues of fact (Freedman v Chemical Construction Corp., 43 N.Y.2d 260). Conclusory allegations, bold assertions or speculation are simply insufficient to successfully oppose a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557; Rotuba Extruders v Ceppos, 46 NY2d 223). A shadowy semblance of an issue is not enough to defeat a motion for summary judgment. (LoBreglio v Marks, 105 AD2d 621). As such, plaintiffs' failed to come forth with any evidentiary proof sufficient to defeat O & R's motion for summary judgment. Therefore, O & R's motion is granted in its entirety.
The foregoing constitutes the decision and order of this Court.
Dated: October 23, 2012
Goshen, New York
ENTER
________________
HON. CATHERINE M. BARTLETT,
A.J.S.C.