Opinion
Index No. 612126/2019
01-20-2023
Lilia Lorenzo, Plaintiff, v. The Village of Mineola, THE TOWN OF NORTH HEMPSTEAD, NASSAU COUNTY, LONG ISLAND POWER AUTHORITY, PSEG LONG ISLAND, SNH MEDICAL OFFICE, HUB PROPERTIES TRUST, RMR GROUP LLC and VERIZON NEW YORK, INC., Defendants.
Dominick Lavelle, Esq., represented Plaintiff, Lilia Lorenzo. Gerber, Ciano, Kelly, Brady, LLP., represented Defendant, The Village of Mineola. Selena Krystal Marchan, Esq., represented Defendant, The Town of North Hempstead. Kerri Hoffman, Esq., of Nassau County Attorney's Office, represented Defendant, Nassau County. Hannum, Feretic, Predergast & Merlino, represented Defendant, Long Island Power Authority and PSEG Long Island. Quirk & Bakalor, P.C., represented Defendant, SNH Medical and RMR Group LLC. Wislon, Elser, Moskowitz, Edelman & Dicker, LLP, represented Defendant, Verizon New York Inc.
Unpublished Opinion
Dominick Lavelle, Esq., represented Plaintiff, Lilia Lorenzo.
Gerber, Ciano, Kelly, Brady, LLP., represented Defendant, The Village of Mineola.
Selena Krystal Marchan, Esq., represented Defendant, The Town of North Hempstead.
Kerri Hoffman, Esq., of Nassau County Attorney's Office, represented Defendant, Nassau County.
Hannum, Feretic, Predergast & Merlino, represented Defendant, Long Island Power Authority and PSEG Long Island.
Quirk & Bakalor, P.C., represented Defendant, SNH Medical and RMR Group LLC.
Wislon, Elser, Moskowitz, Edelman & Dicker, LLP, represented Defendant, Verizon New York Inc.
DECISION AND ORDER
HON. CONRAD D. SINGER, J.S.C.
ON MOTIONS
The following submissions were read on these motions:
Motion Seq. 002
Town of North Hempstead's Notice of Motion and Supporting Papers x
Plaintiff's Affirmation in Opposition and Supporting Papers x
Town of North Hempstead's Reply Affirmation x
Motion Seq. 003
LIPA/PSEG's Notice of Motion and Supporting Papers x
Plaintiff's Affirmation in Opposition and Supporting Papers x
LIPA/PSEG's Reply Affirmation x
Motion Seq. 004
Plaintiff's Notice of Motion and Supporting Papers x
LIPA/PSEG's Affirmation in Opposition and Supporting Papers x
Motion Seq. 005
The Village of Mineola's Notice of Motion and Supporting Papersx
Plaintiff's Affirmation in Opposition and Supporting Papers x
The Village of Mineola's Reply Affirmation x
Motion Seq. 006
SNH/RMR's Notice of Motion and Supporting Papers x
Plaintiff's Affirmation in Opposition and Supporting Papers x
SNH/RMR's Reply Affirmation x
Motion Seq. 007
Verizon's Notice of Motion and Supporting Papersx
Plaintiff's Affirmation in Opposition and Supporting Papers x
SNS/RMR's Affirmation in Partial Opposition x
Verizon's Reply Affirmation to Plaintiff's Opposition x
Verizon's Reply Affirmation to SNS/RMR's Opposition x
Motion Seq. 008
SNH/RMR's Notice of Motion and Supporting Papers x
Plaintiff's Affirmation in Response x
Each of the defendants who remain in this premises liability action have moved for an Order pursuant to CPLR § 3212, granting each of them summary judgment and dismissing the plaintiff's Complaint, as well as any cross-claims asserted against them [Motion Seq. Nos. 002, 003, 005, 006, and 007]. Additionally, the plaintiff moves [Seq. 004] to consolidate this action with an action that she commenced in the Supreme Court, Queens County under Index No. 719848/2021, arising from the same accident, and bearing the caption Lilia Lorenzo v. Cablevision Systems Corp., Keyspan Communications Corp., Optical Communication Group, Inc., MCI Communication, Inc. Defendants SNH Medical Office Properties Trust, s/h/a SNH MEDICAL OFFICE ["SNH"] and THE RMR GROUP LLC, s/h/a RMR GROUP LLC ["RMR"] [collectively, "SNH/RMR"] also move for an Order [Seq. 008] which: 1) strikes the plaintiff's Supplemental Verified Bill of Particulars, or alternatively, (2) precludes the plaintiff from offering evidence of the alleged new injury set forth in the Supplemental Verified Bill of Particulars, or alternatively, (3) vacates the Note of Issue and orders the plaintiff to provide additional discovery permitting the defendants to obtain full disclosure as concerns the new injury alleged in the Supplemental Verified Bill of Particulars.
By stipulation e-filed January 6, 2020 [NYSCEF Doc. No 26], this action was discontinued as to defendant Hub Properties Trust. By stipulated e-filed March 4, 2022 [NYSCEF Doc. No. 61], this action was discontinued as to defendant Nassau County.
Upon the e-filed papers recited above in accordance with CPLR § 2219[a], the defendants' respective motions [Seq. Nos. 002, 003, 005, 006, and 007] for an Order pursuant to CPLR § 3212, the plaintiff's motion for an Order to consolidate [Seq. 004], and SNS/RMR's motion to strike the plaintiff's Supplemental Verified Bill of Particulars [Seq. 008], are consolidated for disposition and are determined as hereinafter follows:
This action arises from an incident which occurred on September 10, 2018 at approximately 8:30 a.m. at or near the building located at 200 Old Country Road in Mineola, Nassau County, New York. The plaintiff, Lilia Lorenzo ["plaintiff"], alleges that while she was walking on the sidewalk on Main Street, adjacent to 200 Old Country Road, she was caused to trip and fall, causing her to sustain serious injuries.
Defendant, Town of North Hempstead ["the Town"], argues that it is entitled to Summary Judgment [Seq. No. 002], because 1) the alleged site of the plaintiff's accident is not under the jurisdiction and/or control of the Town; 2) the Town is not responsible for maintaining the site of the accident; and 3) the Town was not involved in road maintenance on the day of the accident at the site of the accident.
The proponent of a summary judgment motion must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (See Orellana v. Mendez, 208 A.D.3d 888, 888 [2d Dept. 2022]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). "This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." (Cach, LLC v. Khan, 188 A.D.3d 1135, 1136 [2d Dept. 2020]). "Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non-moving party bears no burden to otherwise persuade the court against summary judgment." (Cach, LLC, 188 A.D.3d at 1136). However, once the movant has made the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Alvarez, 68 N.Y.2d at 324). The opponent's mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a summary judgment motion. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]).
"[A] defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it". (Madden v. 3240 Henry Hudson Parkway, LLC, 192 A.D.3d 1095, 1095-96 [2d Dept 2021] [citations omitted]).
However, as relevant in this case, where a town establishes that it did not own or control the situs of an accident, it is entitled to summary judgment as a matter of law. (See, Alcalay v. Town of N. Hempstead, 262 A.D.2d 258, 259 [2d Dept 1999] lv. dismissed 94 N.Y.2d 796 [1999]). In this case, the Town sustained its initial burden of demonstrating entitlement to judgment as a matter of law by submitting that the location where the accident occurred was not owned or controlled by the Town. (Carlo v. Town of East Fishkill, 19 A.D.3d 442, 443 [2d Dept 2005]).
The Town satisfied its prima facie burden by relying on inter alia, the transcript from the EBT of Leonard Palumbo, who testified on behalf of defendant Village of Mineola ["the Village"], that the subject location where the incident occurred is located in the Village of Mineola and is not located in the Town of North Hempstead, and further testified that Village Code of the Village of Mineola does not place responsibility for maintenance of a sidewalk upon the Town of North Hempstead.
The Town also relied upon the transcript from the EBT of Bill Wilenski, a Town employee who was the highway construction supervisor for the Department of Public Works Sidewalk District, and who testified that the Town does not own the sidewalk where the plaintiff's incident occurred and that the Town never does maintenance work on sidewalks that they don't own. They also rely upon the affidavit of Harry Weed, who is the Superintendent of Highways for the Town, and whose responsibilities include the maintenance and repair of the roadways and walkways within the Town's jurisdiction. Mr. Weed attests that, based on his examination of the plaintiff's Notice of Claim and a search of the records in his office, the subject location is not within the incorporated area of the Town, is not under the jurisdiction and control of the Town, and that the Town Highway Department undertook no construction, repair, or alteration to the sidewalk in front of 200 Old Country Road, in Mineola, New York, nor did the Town issue any permits to private contractors for work at the subject location.
The plaintiff failed to raise an issue of fact in opposition to the Town's motion. Accordingly, the portion of the Town's motion [Seq. No. 002] which seeks dismissal of the plaintiff's Complaint and any cross-claims filed against the Town is GRANTED.
The Town also moves for an Order pursuant to 22 NYCRR § 130-1.1, awarding it the costs of making the instant motion and sanctioning the plaintiff for frivolous conduct.
Under 22 NYCRR § 130-1.1(a):
The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart(22 NYCRR § 130-1.1[a]).
Conduct is frivolous if "(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another". (22 NYCRR § 130-1.1[c][2]). In this case, the Court finds that the plaintiff's refusal to voluntarily discontinue against the Town, in spite of counsel for the Town's repeated efforts to obtain a voluntary discontinuance, and even after deposition testimony from numerous witnesses confirmed that the subject location was not within the Town's jurisdiction, and even after the plaintiff voluntarily discontinued the action against a similarly situated defendant, all of which required the Town to expend the time and resources to file its Summary Judgment motion, warrant the imposition of costs against the plaintiff.
Accordingly, the portion of the Town's Summary Judgment motion [Seq. No. 002] which seeks costs and sanctions is GRANTED to the extent that the Town will be awarded the costs and fees incurred in filing the instant motion.
The remaining movant defendants, Long Island Power Authority ["LIPA"] and PSEG Long Island ["PSEG"] [collectively, LIPA/PSEG] [Seq. No. 003], the Village of Mineola ["the Village"] [Seq. No. 005], SNH Medical Office Properties Trust, s/h/a SNH MEDICAL OFFICE ["SNH"] and THE RMR GROUP LLC, s/h/a RMR GROUP LLC ["RMR"] [collectively, "SNH/RMR"] [Seq. No. 006], and VERIZON NEW YORK INC. i/s/h/a VERIZON NEW YORK, INC. ["Verizon"] [Seq. No. 007], argue in their respective motions that the plaintiff's Complaint should be dismissed because, inter alia, she is unable to identify the defect that caused her claimed accident.
"Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it." (Mitgang v PJ Venture HG, LLC, 126 A.D.3d 863, 863 [2d Dept 2015]). "However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation". (Mitgang, 126 A.D.3d at 863-864 [citations omitted]; See also Mallen v Dekalb Corp., 181 A.D.3d 669, 669 [2d Dept 2020] [citations omitted]). "If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation". (Moiseyeva v New York City Hous. Auth., 175 A.D.3d 1527, 1528-29 [2d Dept 2019] [citations omitted]). Therefore, "a plaintiff's inability to establish the cause of his or her fall-whether by personal knowledge or by other admissible proof-is fatal to a cause of action based on negligence." (Moiseyeva, 175 A.D.3d at 1529).
In this case, the defendants established, prima facie, that the plaintiff is unable to identify what caused her fall by citing to the plaintiff's EBT testimony and Exhibit A to the plaintiff's EBT transcript, which is a photograph depicting the area where the plaintiff's fall occurred. The plaintiff initially stated that she tripped on broken cement. At her deposition she was shown a photograph of the area where her fall is alleged to have occurred, and the plaintiff circled the area where she alleges that her fall occurred. The photograph as marked up by the plaintiff depicts a portion of the sidewalk, a metal electrical box access cover, a sunken area between two sidewalk flags, and areas with missing portions of cement.
The plaintiff testified that she fell in the area depicted in the photograph, but that she did not remember what caused her to fall because it has been a long time since the incident. She identified an area of the sidewalk where she fell, but she was unable to identify whether she tripped over a crack in the sidewalk or a metal electrical box cover or something else. For example, when the plaintiff was asked if she tripped on the metal electrical box cover, she responded, "I don't remember what is that now [ sic ] because long time". (EBT Transcript for plaintiff Lilia Lorenzo, 42:1-3, 42:8-11, appended as Exhibit L to Affirmation of Adam Oustatcher, Esq., Motion Seq. No. 3; Exhibit E to Affirmation of Brian W. Mcelhenny, Esq., Motion Seq. No. 005; Exhibit K to Affirmation of Dominic S. Curcio, Esq., Motion Seq. No. 006; Exhibit G to Affirmation of Omar Y. Graham, Esq., Motion Seq. No. 007). The plaintiff was asked "So what did your left foot trip on?" and the plaintiff responded, "[My] left foot trip [ sic ] on, I don't know, I fell down from the broken there [ sic ] or I fell right away". (EBT Transcript for plaintiff Lilia Lorenzo , 42:15-18). She testified that she didn't see what caused her to fall before her accident. (EBT Transcript for plaintiff Lilia Lorenzo, 120:10-12). She again testified, when asked what caused her to fall "I don't really remember, maybe, I don't really remember on [ sic ] that time". (EBT Transcript for plaintiff Lilia Lorenzo, 103:22-24).
Furthermore, the plaintiff's deposition testimony indicates that she had circled the area of the photograph depicting the alleged defect based on her recognition of the approximate location where she fell, and not based on her recognition of the defect itself. (Siegel v. City of New York, 86 A.D.3d 452, 454-55 [1st Dept 2011] [citations omitted]). Therefore, the plaintiff's deposition testimony and the marked up photograph used in her deposition establishes, prima facie, that the plaintiff could not identify what caused her fall without speculating. (Mitgang, 126 A.D.3d at 863-864; Mallen v Dekalb Corp., 181 A.D.3d 669).
The plaintiff fails to raise a triable issue of fact in opposition to the defendants' showing that the plaintiff could not identify what caused her fall without resorting to speculation. The Court is not persuaded by the plaintiff's counsel argument that the entire area of the sidewalk where the plaintiff is alleged to have fallen constitutes "one defect", because the plaintiff nevertheless fails to refute the defendants' showing that she expressly testified she could not remember and could not specify what caused her fall.
Therefore, based on the foregoing, the defendants established in their respective motions, Seq. 003, 005, 006, and 007, that they are entitled to Summary Judgment and that the plaintiff's Complaint should be dismissed. Accordingly, LIPA/PSEG's Motion to Dismiss the Complaint and all cross-claims asserted against them [Seq. 003] is GRANTED. The Village's motion to dismiss the plaintiff's Complaint and all cross-claims asserted against it [Seq. 005] is GRANTED. Likewise, SNH/RMR's motion to dismiss all claims and cross-claims asserted against them [Seq. 006] is GRANTED, and Verizon's motion to dismiss the Complaint [Seq. 007] is GRANTED.
As the Complaint in this action is dismissed as against all movant defendants, the plaintiff's motion to consolidate this action with the action that she commenced in Supreme Court, Queens County [Seq. 004], and the motion filed by defendants SNS/RMR for an Order striking the plaintiff's Supplemental Verified Bill of Particulars [Seq. 008], are DENIED, as moot.
Accordingly, it is hereby, ORDERED, that the motion of defendant Town of North Hempstead for an Order pursuant to CPLR § 3212 dismissing the plaintiff's Complaint [Seq. 002] is GRANTED; and it is further, ORDERED, that the portion of the defendant Town of North Hempstead's motion which seeks an Order granting it costs and imposing sanctions on the plaintiff is GRANTED, to the extent that the plaintiff is hereby directed to pay the costs and fees incurred by the Town in connection with bringing Motion Seq. 002, and it is further, ORDERED, that within 30 days of this Decision and Order being entered the Town shall submit an affirmation or affidavit establishing the costs and reasonable fees incurred by the Town in connection with its making Motion Seq. 002. The plaintiff will have five days after being served with such affirmation/affidavit to respond, only as to the reasonableness of costs and fees being sought. Thereafter, the Court will issue a supplemental Order directing the payment of reasonable costs and fees; and it is further, ORDERED, that the Town's failure to submit such affirmation/affidavit in accordance with the above may be deemed a waiver of the claim for costs and fees; and it is further, ORDERED, that the motion of defendants LONG ISLAND POWER AUTHORITY, PSEG LONG ISLAND, for an Order pursuant to CPLR § 3212 dismissing the plaintiff's Complaint and any cross-claims asserted against them [Seq. 003] is GRANTED; and it is further, ORDERED, that the motion of defendant the Village of Mineola, for an Order pursuant to CPLR § 3212 dismissing the plaintiff's Complaint and any cross-claims asserted against it [Seq. 005] is GRANTED; and it is further, ORDERED, that the motion of defendants SNH Medical Office Properties Trust, s/h/a SNH MEDICAL OFFICE and THE RMR GROUP LLC, s/h/a RMR GROUP LLC, for an Order pursuant to CPLR § 3212 dismissing the plaintiff's Complaint and any cross-claims asserted against them [Seq. 006] is GRANTED; and it is further, ORDERED, that the motion of defendant VERIZON NEW YORK, INC., for an Order pursuant to CPLR § 3212 dismissing the plaintiff's Complaint [Seq. 007] is GRANTED; and it is further, ORDERED, that the plaintiff's Complaint is dismissed in its entirety; and it is further, ORDERED, that the plaintiff's motion to consolidate this action with the action that she commenced in Supreme Court, Queens County under Index No. 719848/2021 [Seq. 004], and the motion filed by defendants SNS/RMR for an Order striking the plaintiff's Supplemental Verified Bill of Particulars [Seq. 008], are both DENIED in their entirety, as moot; and it is further, ORDERED, that all other requests for relief not specifically addressed herein are deemed DENIED.
This constitutes the decision and Order of this Court.