Opinion
Index No. 614628/2019 Mot. Seq. No. 01-Mot D
01-22-2021
JANICE MAYS-CARNEY, Plaintiff, v. COUNTY OF SUFFOLK, TOWN OF BABYLON, METROPOLITAN TRANSPORTATION AUTHORITY (MTA), LONG ISLAND RAILROAD d/b/a MTA LONG ISLAND RAILROAD (LIRR), STALCO CONSTRUCTION INC., and L.K. COMSTOCK &COMPANY, INC., Defendants.
HARMON, LINDER &ROGOWSKY, Attorneys for Plaintiff. DENNIS M. BROWN, ESQ. SUFFOLK COUNTY ATTORNEY, Attorney for Defendant- SUFFOLK. JOSEPH WILSON, ESQ. TOWN ATTORNEY- TOWN OF BABYLON Attorney for Defendant- BABYLON. SHEIN &ASSOCIATES, P C. Attorney for Defendants- MT A &LIRR. LAW OFFICE OF ANDREA G. SAWYERS Attorney for. Defendant- STALCO. LEWIS BRISBOIS BISGAARD &SMITH, LLP Attorney for Defendant- L.K. COMSTOCK.
Unpublished Opinion
HARMON, LINDER &ROGOWSKY, Attorneys for Plaintiff.
DENNIS M. BROWN, ESQ. SUFFOLK COUNTY ATTORNEY, Attorney for Defendant- SUFFOLK.
JOSEPH WILSON, ESQ. TOWN ATTORNEY- TOWN OF BABYLON Attorney for Defendant- BABYLON.
SHEIN &ASSOCIATES, P C. Attorney for Defendants- MT A &LIRR.
LAW OFFICE OF ANDREA G. SAWYERS Attorney for. Defendant- STALCO.
LEWIS BRISBOIS BISGAARD &SMITH, LLP Attorney for Defendant- L.K. COMSTOCK.
PRESENT'. Hon. JOSEPH A. SANTORELLI Justice of the Supreme Court.
JOSEPH A. SANTORELLI JUDGE.
Upon the following papers numbered 1 - 63 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1-22; Notice of Cross Motion and supporting papers__; Answering Affidavits and supporting papers 23-28, 29-36 & 37-55; Replying Affidavits and supporting papers 56 - 59 & 60-63; Other_; (and after hearing counsel in support and opposed to the motion) it is,
Defendant Stalco Construction, Inc., seeks an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and any and all cross claims asserted against it. The plaintiff and codefendants have filed opposition to the application arguing that discovery has not been completed.
The plaintiff seeks recovery of damages for personal injuries sustained as the result of a trip and fall accident that occurred at or near the Wyandanch train station, at the southeast comer of the intersection of Straight Path Road and Merritt Avenue, Wyandanch, New York at 9:20 pm on June 14, 2018. The plaintiff claims that "the defective conditions that caused her to trip and fall were as follows: construction debris and/or wooden blocks; a defective sidewalk that was elevated, uneven, un-level, broken, and/or dilapidated and/or inadequate or improper area lighting". Stalco claims that the plaintiffs accident occurred at or near the existing LIRR train station and that the allegations against it should be dismissed because it "was hired to construct the 'new' LIRR station 200 to 300 yards away from the accident site". The plaintiff and co-defendants argue that discovery has not been completed and there are triable issues of fact as to where the wood that the plaintiff tripped on came from, as well as questions about the location and method of construction debris removal that Stalco utilized while doing carpentry and construction work at the site. The plaintiff and co-defendants claim that the outstanding discovery and a needed examination before trial of someone from the Stalco entity require denial of this motion for summary judgment.
CPLR §3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment (Qian v. Farrell Lines, Inc., 105 A.D.2d 653, 481 N.Y.S.2d 370 (1st Dept., 1984; aff'd 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985); Spearman v. Times Square Stores Corp., 96 A.D.2d 552, 465 N.Y.S.2d 230 (2nd Dept., 1983); Weinstein-Kom-Miller, New York Civil Practice Sec. 3212.09)).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v. Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ... and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp, v. Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988]; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v. Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v. Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983]).
On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v. Keltie's Bum Steer, supra, citing Glick &Dolleck v. Tri-Pac Export Corp., 21 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985], aff'd, 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282).
In Colombini v. Westchester County Healthcare Corp., 24 A.D.3d 712, 715 [2d Dept 2005], the Court held that
Summary judgment should be denied as premature where, as here, the party opposing the motion has not had an adequate opportunity to conduct discovery (see CPLR 3212 [f]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 506, 618 N.E.2d 82, 601 N.Y.S.2d 49 [1993]; OK Petroleum Distrib. Corp, v. Nassau/Suffolk Fuel Oil Corp., 17 A.D.3d 551, 793 N.Y.S.2d 152 [2005]; Mazzola v. Kelly, 291 A.D.2d 535, 738 N.Y.S.2d 246 [2002]).
The Court in Gardner v. Cason, Inc., 82 A.D.3d 930, 931-932 [2d Dept 2011], held
It was premature to award summary judgment at this stage of the case. "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 793, 533 N.Y.S.2d 143 [1988]). The plaintiff and the defendant Grumbly submitted, among other things, affidavits containing discrepancies pertaining to the circumstances of the accident, including as to the decedent's culpability. Furthermore, no depositions have been conducted, including any depositions of key eyewitnesses identified in the police accident report. Accordingly, the Supreme Court should have denied the plaintiffs motion for summary judgment on the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v. City of New Rochelle, 'll A.D.3d 1025, 900 N.Y.S.2d 144 [2010]; Aurora Loan Servs., LLC v. LaMattina &Assoc., Inc., 59 A.D.3d 578, 872 N.Y.S.2d 724 [2009]; Martinez v. Ashley Apts. Co., LLC, 44 A.D.3d 830, 842 N.Y.S.2d 918 [2007]; Tyme v. City of New York, 22 A.D.3d 571, 801 N.Y.S.2d 744 [2005]; see generally CPLR 3212 [f]).
Based upon a review of the motion papers the Court concludes that the plaintiff and codefendants have not had an adequate opportunity to conduct discovery into issues within the knowledge of defendant Stalco as to the whether the wood that the plaintiff tripped on was part of the construction debris left behind by Stalco or part of a ramp for its work. Thus the motion for summary judgment on the issue of liability is denied with leave to renew after the completion of discovery; and it is further
ORDERED that a compliance conference is scheduled for March 18, 2021. All attorneys shall appear on March 18, 2021 at 10:30 a.m. via Microsoft Teams in Courtroom A361 of the Hon. Alan D. Oshrin Supreme Court Building, 1 Court Street, Riverhead, New York, as part of the above-referenced action. Attorneys appearing must have knowledge of the case and be authorized to discuss details regarding this action. A failure to appear may result in the matter being dismissed or a default being granted. .
The foregoing constitutes the decision and Order of the Court.