Opinion
106110/07.
May 5, 2011.
In Motion Sequence No. 005, third-party defendants Nina Zilberman ("Zilberman") and Alexander Senderovich ("Senderovich") move to sever the third-party action. In Motion Sequence No. 006, Zilberman and Senderovich move for summary judgment dismissing the third-party action. In Motion Sequence No. 007, third-party defendant Ulster Heights Lake Inc. ("Ulster") moves for summary judgment dismissing the third-party action. In Motion Sequence No. 008, defendants Mountain Lake Camp Resort Inc. ("Mountain") and Richard Parzoch ("Parzoch") move for: summary judgment dismissing the main action; renewal and reargument of their previous motion for summary judgment and an extension of time for the reargument; and sanctions to either strike Zilberman's and Senderovich's answer or strike the note of issue. The motions are consolidated for disposition.
This court denied plaintiff's cross motion for recusal in Motion Sequence No. 008 after oral argument on the record on March 1, 2011, finding inter alia that there was no basis for recusal and that, in any event, the cross motion, apparently an afterthought, was procedurally defective.
Plaintiff, then 76 years old, was injured in or about July 2004 while visiting her daughter, Zilberman, who had leased a lakeside bungalow at the premises Mountain owned. Plaintiff was injured when she stepped into a hole in the sand at a beach area across the lake from the rented bungalow. Plaintiff's complaint alleges that defendants owned, operated, controlled and maintained the beach area where she fell. Plaintiff further alleges defendants were negligent in creating and allowing a hazardous condition to exist, in failing to remedy the condition and in failing to provide any warning as to the alleged dangerous condition.
Defendants brought an earlier motion for summary judgment to dismiss the action. Their arguments were as follows: defendants did not own, control or possess the beach area where the accident occurred; plaintiff does not know what caused her to fall; defendants did not have actual or constructive notice of the condition; and the condition complained of was natural, open and obvious. By decision and order dated February 8, 2010 (the "Feb. 8 order"), this court denied the motion on the grounds that plaintiff's opposition papers raised issues of fact "as to whether defendants assumed responsibility for the maintenance of the beach area, whether they had constructive notice of a recurrent condition there and whether the hole in the sand constituted an open and obvious condition." Feb. 8 order at pp. 6-7.
Subsequently, the parties conducted discovery and plaintiff filed a note of issue. Thereafter, defendants brought a third-party action against Zilberman, Senderovich and Ulster, claiming inter alia that Ulster owned the beach area at the time of the incident. Ulster concedes its ownership of the beach area.
Zilberman and Senderovich move to sever the third-party action so that more discovery can be conducted and the main action can proceed as scheduled. They argue that because the trial date for the main action has been scheduled, there is limited time to conduct relevant depositions related to the third-party action. They also complain that defendants chose to commence the third party action belatedly after the note of issue was filed, and urge that a severance should be granted in the interest of justice.
In opposition to this motion, defendants argue that a severance would prejudice them, result in undue expense and lead to complications such as inconsistent verdicts. They defend their decision to bring a late third-party action on the ground that plaintiff is responsible for whatever delay has occurred by failing to timely disclose Zilberman and Senderovich as notice witnesses in her action. Defendants also argue that the motion should be denied because Zilberman and Senderovich failed to appear for depositions as ordered by this court. Alternatively, defendants ask this court to strike the note of issue and direct that discovery be completed within 90 days.
Plaintiff opposes the motion as well as any attempt to strike the note of issue. Plaintiff states that this court granted an age-related trial preference and expedited discovery. She further argues that any delay in the scheduled trial would be contrary to the court's orders. Plaintiff argues that the third-party action against Zilberman and Senderovich lacks merit because they owed her no duty and cannot be held liable for her accident. Plaintiff claims that defendants are trying to stall her action against them and their conduct is prejudicial.
Related to this motion is third-party defendants Zilberman's and Senderovich's motion for summary judgment for dismissal. If this motion is granted, the motion for a severance would, of course, be rendered moot. The third-party complaint alleges negligence against Zilberman and Senderovich under theories of contribution and/or indemnification. They argue that liability for the accident points to defendants based upon their conduct and evidence of constructive notice. They deny any duty of due care toward plaintiff or any vicarious liability. Aware of defendants' motion for summary judgment, they state that if defendants are dismissed from this action, they should be as well.
Defendants oppose third-party defendants' motion for summary judgment stating that Zilberman and Senderovich owed a duty to plaintiff while on the premises. Based on plaintiff's daughter's and son-in-law's awareness of the beach area's condition, as they had claimed that the alleged hazardous condition was recurrent, Zilberman and Senderovich allegedly could have foreseen the probability of an accident occurring there. Due to their alleged lack of oversight, defendants contend that Zilberman and her husband were at least partially liable for her mother's resulting injury. Defendants also reiterate that the motion should be denied due to Zilberman's and Senderovich's failure to appear for court-ordered depositions.
In reply, Zilberman and Senderovich argue that notice and knowledge of a recurrent condition do not create a duty where none exists. They deny any special duty to essentially act as plaintiff's guardian, insisting plaintiff was of sound faculties on the date of the accident. As for their non-appearance at the scheduled deposition, they deny willfully disregarding court orders. Alternatively, they contend that defendants have failed to provide an affirmation stating that defendants' counsel conferred with their counsel in good faith to resolve the discovery issue.
Remaining third-party defendant Ulster moves for summary judgment seeking dismissal of the third-party action. Ulster admits that it owns the beach area where plaintiff was injured and as such, Mountain and Parzoch cannot be liable to plaintiff for negligence. Upon dismissing the main action on this ground, the third party action for contribution and indemnification must also fail. Further, Ulster argues that even if defendants' summary judgment motion is denied, the third party complaint should be dismissed since there is no evidence Ulster created the alleged condition or had notice thereof; the condition at issue was neither apparent nor visible and could not be determined prior to the accident; and Ulster would not have had sufficient time to remedy the condition had it been apparent.
It is undisputed that any direct action by plaintiff against Ulster would be barred by the applicable statute of limitations.
Plaintiff's opposition to the motion is based upon her assertion that there is an issue as to Ulster's control of the area and whether it contracted out some of its functions as owner. She avers that Mountain and Parzoch "accepted responsibility over the beach area by making a special use of the area, advertising it, providing transportation to it, accepting complaints about the conditions on the beach, collecting money from tenants for the maintenance of the beach, promising to clean up the beach and to fill in the holes in it, performing some (though inadequate maintenance) [sic] on the beach . . ." Pager Aff. in Opp. to Ulster's motion at ¶ 34. According to plaintiff, this court resolved the question of notice.
Defendants' partial opposition addresses the possibility of this court denying their motion for summary judgment dismissing the main action. They urge that the third-party action should continue if their own summary judgment motion is denied.
Defendants now bring a second motion for summary judgment. Simultaneously, they seek renewal of their earlier motion on the ground of newly discovered evidence, specifically the subsequent discovery of Ulster's actual ownership of the beach area. Defendants argue that since they were not the owners, they lacked control or possession of the area. Defendants also seek an extension of time to move for reargument, raising the same arguments they raised in the earlier motion, namely, lack of ownership and notice. Plaintiff opposes the motion, arguing an alleged dispute as to control of the area and the recurrence of certain conditions thereat.
In reply, defendants argue that the fees they collected were unrelated to the beach area and that they had no control or special use thereof. If the court denies their motion again, they argue that the note of issue and Zilberman's and Senderovich's answer should be stricken and an extension of time provided to complete all depositions and other discovery.
Analysis
If this court grants the portion of defendants' motion seeking dismissal of the main action, all other motions herein will be rendered moot. As such, this court addresses this motion first.
Defendants' motion for summary judgment raises the question of the duty, if any, defendants owed to plaintiff. Defendants reiterate that they do not own the beach property and therefore had no duty to maintain it. Ulster's admission that it owns the beach area confirms defendants' denial of ownership. As the actual owner of the property, Ulster denies having notice of the condition.
"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. Where none of these factors are present, a party cannot be held liable for injuries caused by the allegedly defective condition. Liability can be imposed upon a landowner or a lessee who creates a defective condition on the property, or had actual or constructive notice of the allegedly defective condition." Gover v Mastic Beach Prop. Owners Assn., 57 AD3d 729, 730 (2d Dept 2008) (citations omitted).
Defendants note that the cases this court relied on in its Feb. 8 order involved the liability of property owners, landlords and/or tenants. Here, it is now apparent that Mountain and/or Parzoch's duty, if any, did not arise from their having any such possessory interest in the beach area. Rather, on a very different record, plaintiff argued in opposition to defendants' prior summary judgment motion that defendants' liability arose from their control of the area as evidenced by their allegedly holding themselves out as its owners and their assumption of responsibility for maintaining it. This court's Feb. 8 order found that if defendants voluntarily maintained the beach area they could be liable for injuries resulting from their negligence. See Hochberg v Riverbay Corp., 230 AD2d 680, 681 (1st Dept 1996) (liability may be premised upon a gratuitous undertaking negligently performed).
On that record, there was no affirmative proof, other than Parzoch's cursory denial, that defendants did not own the area in question. Moreover, it was not clear whether defendants had some other interest therein which might have given rise to liability for a dangerous condition on the beach area. Now, on this record, it is clear that Mountain and Parzoch lack any interest in the beach area in that they do not own it and there is absolutely no evidence of any relationship with Ulster which would require defendants to maintain the area.
Not being an owner or tenant, and there being no evidence of any contractual relationship with Ulster, defendants are more akin to an adjacent landowner, who has no duty to warn of or remedy a dangerous condition unless it caused or contributed to it ( Garner v City of New York, 6 AD3d 387, 388 [2d Dept 2004]), or an inn keeper who has no duty with respect to conditions on property it does not own yet encourages or facilitates the use thereof ( Darby v Compagnie Natl. Air France, 96 NY2d 343). Thus, defendants' awareness of the beach's condition, alleged promises to maintain the beach and encouragement of its use do not give rise to any duty on defendants' part vis a vis beach users.
Here, plaintiff acknowledges that third parties dug the holes on the beach. As to defendants' alleged attempts to fill the holes and/or maintain the beach area, neither plaintiff, Zilberman nor Senderovich alleges any specific facts as to when defendants undertook such remedial efforts, how such measures might have been performed negligently or whether the alleged measures contributed to plaintiff's fall. Third-party defendants had the opportunity to expound upon their allegations at their court-ordered depositions, but failed to appear.
As evidenced by plaintiff's deposition testimony and Zilberman's and Senderovich's affidavits, defendants did not engage in any course of regular conduct with respect to the beach area's upkeep. In fact, plaintiff and these third-party defendants emphatically state just the opposite.
For all of the foregoing reasons, this court grants defendants' motion to the extent of granting renewal of the Feb. 8 order, and upon granting renewal, summary judgment is granted in defendants' favor dismissing the complaint. It therefore follows that all three third-party defendants' respective motions for summary judgment dismissing the third party complaint must be granted. The portion of defendants' motion to strike Zilberman and Senderovich's answer and these third-party defendants' motion for a severance are denied as moot in light of the third party action's dismissal.
Parenthetically, had this court denied defendants' motion for summary judgment dismissing the main action, third-party defendants Zilberman's and Senderovich's motion for summary judgment would have been granted. Defendants essentially argue that these third-party defendants owed a special duty of due care to plaintiff and they breached such duty by failing to prevent the accident from occurring. The court finds no merit to this argument.
For purposes of a negligence action, the determination of the existence and scope of duty involves a consideration not only of the wrongfulness of defendant's action or inaction, but also of plaintiff's reasonable expectations of care others owe her. See Malloy v Delk Transmission, Inc., 191 AD2d 303, 304-5 (1st Dept 1993). "[F]oreseeability alone does not define duty; it merely determines the scope of the duty, once it is determined to exist [internal quotation marks and citations omitted]." Jonathan A. v Board of Educ. of City of New York, 8 AD3d 80, 82 (1st Dept 2004).
Zilberman and Senderovich merely rented a bungalow across the lake from the beach area. There is no evidence that they had any control over the conditions on the beach. In the absence of a duty owed to plaintiff, third-party defendants are not liable for the condition that caused plaintiff's injuries, no matter how foreseeable it may have been.
For all of the foregoing reasons, it is
ORDERED that third-party defendants Nina Zilberman's and Alexander Senderovich's motion (seq. 005) to sever the third-party action as to them is denied as moot; and it is further
ORDERED that third-party defendants Zilberman's and Senderovich's motion (seq. 006) for summary judgment is granted and the third-party complaint as to them is dismissed with costs and disbursements to these third party defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that third-party defendant Ulster Heights Lake Inc.'s motion (seq. 007) for summary judgment is granted and the third-party complaint as to them is dismissed with costs and disbursements to this third party defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendants Mountain Lake Camp Resort Inc.'s and Richard Parzoch's motion (seq. 008) is granted to the extent that the court grants the portion of the motion seeking renewal of the February 8, 2010 order, and upon renewal summary judgment is granted in defendants' favor dismissing the complaint, and the motion is otherwise denied.
The foregoing constitutes this court's decision and order. Copies of this decision and order have been provided to counsel for the parties.