Opinion
Index No. 031194/2019
10-05-2021
ROBERT L. GORDON, Plaintiff, v. THE RECREATIONAL ASSN. OF THE JAMES H. ANDERSON POST # 1199 AMERICAN LEGION, INC., PEARL RIVER GUN CLUB, INC., ALPHA CARE SUPPLY DIV OF ALPHA CARE SUPPLY LLC a/k/a AC SUPPLY LLC, BRIGHTVIEW LAKE TAPPAN, LLC, PLATINUM-LECHAEE CONSTRUCTION GROUP LLC, CONSERV CONSTRUCTIO, . INC., CONSERV CONSTRUCTION, INC d/b/a CONSERV CONSTRUCTION and DON BRENNAN, Defendants.
Unpublished opinion
DECISION & ORDER
HON. ROLF M. THORSEN, A.J.S.C.
Plaintiff commenced the within action in March 2019 alleging negligence in connection with an alleged slip and fall accident involving the Plaintiff that occurred on January 15 2018 Defendants Brightview Lake Tappan, LLC ("Brightview'') Platinum-Lechase Construction Group LLC ("Platinum"), Conserv Construction Inc. and Conserv Construction, Inc. d/b/a Conserv Construction (together, "Conserv"), and Don Brennan ("Brennan") (collectively the platinum Defendants") move pursuant to CPLR 3212 for an order awarding the Platinum Defendants sugary judgment dismissing the Complaint and any cross-claims against them as a matter of law Defendant Pearl River Gun Club, Inc. ("Pearl River") separate"; moves pursuant to CPLR 3212 for an order awarding Pearl River summary judgment dismissing the Complaint and any cross-claims against it as a matter of law. The Court has considered the following papers on the two motions:
1. Platinum Defendants' Notice of Motion (#003), Affirmation of AnneMarie Dempsey, Esq. and Exhibits A through EE attached thereto, Affidavit of John M. Scillia, P E and report attached thereto, Platinum Defendants' Statement - of Material Facts, and Platinum Defendants' Memorandum of Law;
2. Pearl River's Notice of Motion (#004), Affirmation of Kenneth P. Skibinski, Esq. and Exhibits A through Y attached thereto, Pearl River's Statement of Material Facts, and Pearl River's Memorandum of Law;
3. Attorney Affirmation in Opposition of Robin A. Schair, Esq. and Exhibit A attached thereto, and Response to Statement of Material Facts by Defendant Alpha Care Supply Div of Alpha Care Supply LLC a/k/a AC Supply LLC ("Alpha") (#003);
4. Conserv Defendants' Affirmation in Opposition of Craig A. Post, Esq. and Exhibits A through I attached thereto (#003 and #004);
5. Platinum Defendants' Reply Affirmation of AnneMarie Dempsey, Esq. to Plaintiff's Opposition (#003);
6. Affirmation in Opposition of Debbie-Ann Morley, Esq. and Exhibits A through C attached thereto, and Response to Pearl River's Statement of Material Facts by Defendant The Recreational Assn. of the James H. Anderson Post # 1199 American Legion ("American Legion")(#003);
7. Affirmation in Opposition of Debbie-Ann Morley, Esq. and Exhibits A through C attached thereto, and American Legion's Response to Platinum Defendants' Statement of Material Facts (#004);
8. Pearl River's Reply Affirmation of Kenneth P. Skibinski, Esq. and Exhibit A attached thereto (#004);
9. Platinum Defendants' Reply Affirmation of AnneMarie Dempsey, Esq. to American Legion's Opposition (#003); and
10. NYSCEF File.
The facts, as are relevant here, are as follows: As noted above, this litigation arises from an alleged . slip and fall accident involving the Plaintiff that occurred on January 15, 2018 in Orangeburg, New York. The Complaint alleges negligence in a single cause of action asserted against the Platinum Defendants, Pearl River, American Legion, and Alpha. As relevant herein, American Legion is the owner of the property on which the accident allegedly occurred; Pearl River is the tenant occupying a gun club on a portion of that property; Brightview owned adjacent property and contracted with Platinum and Conserv to provide certain site work; and Alpha contracted with Pearl River to provide and install
a chair lift in the building occupied by the gun club.
The Defendants all respectively answered the Complaint, denied the material allegations thereof, and asserted various affirmative defenses. Additionally,, Alpha asserted a cross-claim for negligence against American Legion, Pearl River, Brightview and Platinum, seeking apportionment,, - contribution and/or indemnificaton Brightview and Platinum similarly asserted cross-claims for negligence against American Legion, Pearl River, and Alpha, seeking contribution and/or indemnification.. American Legion also asserted cross-claims for contribution, common law indemnification, contractual indemnificatoon, and breach of contract against Pearl River, Alpha, Brightview, and Platinum. Furthermore, Pearl River asserted cross-claims for common law and contractual indemnification and contribution against American Legion, Alpha, Brightview, and Platinum.
In response to the various cross-claim,, the Defendants all respectively replied thereto, denied the material allegations thereof, and asserted various affirmative defenses, with issue being joined in October 2019. Following the completion of discovery, a Note of Issue and Certificate of Readiness for Trial was filed on March 2, 2021.
On April 9, 2021, the Platinum Defendants moved (#003) pursuant to CPLR 3212 for an order awarding the Platinum Defendants summary judgment dismissing the Complaint and any cross-claims against them as a matter of law. On May 18, 2021, Pearl River separately moved (#004) pursuant to CPLR 3212 for an order awarding Pearl River summary judgment dismissing the Complaint and any cross-claims against it as a matter of law. Plaintiff opposed both motions, as did the respective cross-claim Defendants.
It is well settled. that "[s]ummary judgment is a drastic remedy that deprives a litigant of his or her day in court, .and it should only be employed when there is no doubt as to the absence of triable issues." Pizzo-Juliano v Southside Hosp., 129 A.D.3d 695, 696 (2d Dept. 2015), citing, Andre v Pomeroy. 35 N.Y.2d 361, 364 (1974). The function of a court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See, Cast1epoint Ins. Co. v Command Sec. Corp., 144 A.D.3d 731, 733 (2d Dept. 2016). Thus, summary judgment "should only be granted where there are no material and triable issues of fact," and "the papers should be scrutinized carefully in the light most favorable to the party opposing the motion." Gitlin v Chirinkin, 98 A.D.3d 561, 562 (2d Dept. 2012).
"The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty proximately caused injury to the plaintiff." Rampersaud v Hsieh Hsu Mach. Co., 196 A.D.3d 612, 613 (2d Dept. 2021), quoting, Merchants Mut. Ins. Co. v Quality Signs of Middletown. 110 A.D.3d 1042, 1043 (2d Dept. 2013). "Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party." Union v Excel Commercial Maintenance. 185 A.D.3d 869, 869 (2d Dept. 2020), quoting, Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 138 (2002).
Furthermore, "[i]n order for a plaintiff in a slip and fall case to establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition." Hernandez v Conway Stores, Inc., 143 A.D.3d 943, 944 (2d Dept. 2016), citing, Fernandez v Bucknell Realty Ltd. Partnership. 123 A.D.3d 972, 973 (2d Dept. 2014). Additionally,, even if a plaintiff is able to establish a duty on the part of a defendant, the plaintiff must establish "that the breach of that duty was a proximate cause of the plaintiffs injuries." Rd Legal Funding Partners v Worby Groner Edelman & Napoli Bern, 195 A.D.3d 968, 971 (2d Dept. 2021), quoting, Santoro.v Poughkeepsie Crossings. LLC, 180 A.D.3d 12, 18 (2d Dept. 2019). Therefore, a defendant can only be held liable where both the defendant's negligence and proximate cause have been established. See generally, Sheehan v City of New York, 40 N.Y.2d 496, 503-504 (1976); see also, Chen v City of New York, 194 A.D.3d 904, 905-906 (2d Dept. 2021).
Critically with respect to the respective motions at issue herein, "[a] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of demonstratnng, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." Alami v 215 E. 68th St., L.P., 88 A.D.3d 924, 925 (2d Dept. 2011), quoting, Totten v Cumberland Farms, Inc., 57 A.D.3d 653, 654 (2d Dept. 2008); see, DeFalco v BJ's Wholesale Club. Inc., 38 A.D.3d 824, 825 (2d Dept. 2007).
With respect to motion sequence no. 3, the Platinum Defendants established prima facie entitlement to summary judgment dismissing the sole cause of action asserted in the Complaint (for negligence), as they furnished evidence demonstrating that they did not create the alleged hazardous condition, nor had actual or constructive knowledge thereof, and that their conduct did not proximately cause the Plaintiff's alleged injuries See Dempsey Aff., Exs. A-EE; Scillia Aff. and Report; see also. AWv 215 7 68th St., 88 A.D.3d at 925; Totten v Cumberland Farms Inc. 57 A.D.3d at 654. In particular, the Platinum Defendants' set forth prima facie evidence reflecting that there was not a direct causal connection between the work being done by Platinum and Conserv on the property owned by Brightview, and the unlit area on the walkway where the Plaintiff allegedly fell after dark and suffered injuries. See, Dempsey Aff., Exs. A-EE; Scillia Aff. and Report Given that the cross-claims against the Platinum Defendants are all grounded in allegations that they committed acts of negligence the Platinum Defendants' submissions have also established prima facie entitlement to summary judgment dismissing the cross-claims as a matter of law. See, State of New York v Defoe Corn, 149 A.D.3d 889 890 (2d Dept. 2017);Karanikolas v Elias Tavern, . T.T.r 120 A.D.3d 552, 556-557 (2d Dept. 2014).
In opposition, however, Plaintiff and the cross-claim Defendants set forth evidence demonstrating the existence of triable issues of fact regarding the Platinum Defendants' negligence, including whether the Platinum Defendants' created the alleged hazardous condition or had actual or constructive knowledge thereof, and whether the Platinum Defendants proximately caused the Plaintiff's alleged injuries. Se Post Aff., Exs. A-I; Morley Aff Exs. A-C. As such, the Platinum Defendants are not entitled to summary judgment dismissing the Complaint; and in light of issues of fact regarding the Platinum Defendants' negligence, they are accordingly not entitled to summary judgment dismissing the cross-claims as a matter of law. See, Rampersaud v Hsieh Hsu Mach 196 A.D.3d at 611-612; Gatto v Coinmach Core. 172 A.D.3d. 1176.1179 (2d Dept. 2019); State of New York v DefoeCorp., 149 A.D.3d at 889-890.
Regarding motion sequence no. 4, Pearl River has established prima facie entitlement to summary judgment dismissing the negligence cause of action that comprises the Complaint, and the cross-claims that are each grounded in allegations of negligence, as Pearl River set forth evidence demonstrating that it did not create the alleged hazardous condition, nor had actual or constructive knowledge thereof, and that its conduct did not proximately cause the Plaintiff's alleged injuries. See, Skibinski Aff., Exs. A-Y; see also, Alami v 215 r. 68tn St.. 88A.D.3d at 925; Totten v Cumberland Farms, Inc, . 57 A.D.3d. At 654 Specifically Pearl River's moving papers include evidence that they did not own operate, maintain or control the unlit area of the property where Plaintiff allegedly slipped and fell on a walkway, and that Pearl River did not proximately cause the Plaintiff's alleged injuries, which constitutes a prima -facie showing of entitlement to summary judgment. See, Colantonio v Mount Sinai Union Free Sch, Dist., 193 A.D.3d 1031, 1032 (2d Dept. 2021); Maher v White, 184 A.D.3d 630, 632 (2d Dept. 2020). Furthermore, as the cross-claims against Pearl River are premised upon allegations that it committed acts of negligence, Pearl River's moving papers have also established prima facie entitlement to summary judgment dismissing the cross-claims as a matter of law. See, State of New York v Defoe Corp., 149 A.D.3d at 890; Karanikolas v Elias Taverna, LLC, 120 A.D.3d at 556-557.
However, in opposition, Plaintiff and the cross-claim Defendants furnished evidence demonstrating the presence of triable issues of fact concerning Pearl River's alleged negligence, including whether Pearl River created the alleged hazardous condition or had actual or constructive knowledge thereof, and whether Pearl River may have proximately caused the Plaintiff's alleged injuries. See, Post Aff., Exs. A-I; Schair Aff., Ex. A; Morley Aff., Exs. A'c". As such, Pearl River is not entitled to summary judgment dismissing the Complaint; and in light of issues of fact regarding Pearl River's negligence, it is therefore not entitied to summary judgment dismissing the cross-claims as a matter of law. See. Rampersaud v Hsieh Hsu Mach. Co., 196 A.D.3d at 611-612; Gatto v Coinmach Corp., 172 A.D.3d at 1179; State of New York v Defoe Corp., 149 A.D.3d at 889-890. Pearl River is furthermore not entitled to summary judgment dismissing the Complaint or the cross-claims, as the opposition papers include a copy of Pearl River's lease for the gun club property on which the Plaintiff was allegedly injured, which lease terms present a further issue of fact regarding Pearl River's responsibility for maintaining the relevant premises in a safe condition. See, Post Aff., Ex. D at M 5, 13; Schair Aff., Ex. A at M 5, 13; see also, Sobel v City of New York, 120 A.D.3d 485, 486 (1st Dept. 2014)
Based on the foregoing, it is hereby
ORDERED that the Platinum Defendants' motion (#003) pursuant to CPLR 3212 for an order awarding the Platinum Defendants summary judgment dismissing the Complaint and any.cross-claims against them as a matter of law is denied in its entirety; and it is further
ORDERED that Pearl River's motion (#004) pursuant to CPLR 3212 for an order awarding Pearl River summary judgment dismissing the Complaint and any cross-claims against it as a matter of law is denied in its entirety; and it is further
ORDERED that any other relief sought not herein expressly decided is denied; and it is Further.
The foregoing constitutes the Decision and Order of this court