Opinion
2016-2039 Q C
03-01-2019
Subhagaie RAMLOCHAN, Appellant, v. Deighton HOBBS, The City of New York, Keyspan Energy Delivery, N.Y.C., Triumph Construction Corp. and Power Concrete Co., Inc., Defendants, and Rocco Agostino Landscape & G.C. Corp., J. Pizzirusso Landscaping Corp., and Heavy Construction Co., Inc., Respondents.
C. Robinson & Associates, LLC (W. Charles Robinson of counsel), for appellant. Law Offices of Andrea G. Sawyers (William L. Bonifat and Timothy Campanella of counsel), for respondent Rocco Agostino Landscape & G.C. Corp. Lawrence, Worden, Rainis & Bard, PC (Roger B. Lawrence and Michael Shay of counsel), for respondent Heavy Construction Co., Inc. Gorton & Gorton, LLP (Thomas P. Gorton of counsel), for respondent J. Pizzirusso Landscaping Corp.
C. Robinson & Associates, LLC (W. Charles Robinson of counsel), for appellant. Law Offices of Andrea G. Sawyers (William L. Bonifat and Timothy Campanella of counsel), for respondent Rocco Agostino Landscape & G.C. Corp.
Lawrence, Worden, Rainis & Bard, PC (Roger B. Lawrence and Michael Shay of counsel), for respondent Heavy Construction Co., Inc.
Gorton & Gorton, LLP (Thomas P. Gorton of counsel), for respondent J. Pizzirusso Landscaping Corp.
PRESENT: DAVID ELLIOT, J.P., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
ORDERED that the order, insofar as appealed from, is modified by providing that the motions by defendants Heavy Construction Co., Inc. and J. Pizzirusso Landscaping Corp. for summary judgment dismissing so much of the complaint as was asserted against each of them are denied; as so modified, the order is affirmed, without costs.
Plaintiff commenced this action against defendants Deighton Hobbs (Hobbs) and the City of New York (the City) to recover damages for personal injuries she had sustained when she had allegedly tripped and fallen on a sidewalk. Plaintiff alleged that Hobbs and the City were negligent in, among other things, failing to properly repair, supervise and maintain the sidewalk. Insofar as relevant to this appeal, plaintiff alleged, in an amended complaint, that defendants Rocco Agostino Landscape & G.C. Corp. (Rocco), Heavy Construction Co., Inc. (Heavy) and J. Pizzirusso Landscaping Corp. (Pizzirusso) had performed work on the sidewalk prior to plaintiff's accident and created the condition that caused the accident. After some discovery, as pertinent here, Heavy and Pizzirusso each moved for summary judgment dismissing the complaint as to them. Plaintiff opposed the motions and separately cross-moved to strike the answers of Rocco, Heavy and Pizzirusso pursuant to CPLR 3126 for failure to respond to plaintiff's discovery demands and failure to comply with the parties' stipulations regarding court-ordered discovery. Plaintiff appeals from so much of an order of the Civil Court, entered June 21, 2016, as granted the motions by Heavy and Pizzirusso for summary judgment dismissing the complaint as to them and denied plaintiff's cross motions to strike the answers of Rocco, Heavy and Pizzirusso.
"Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action" ( Vega v. Restani Constr. Corp. , 18 NY3d 499, 503 [2012] [internal quotation marks, brackets and citations omitted]; see Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014] ; Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). In deciding a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party (see Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d at 833 ; Vega v. Restani Constr. Corp. , 18 NY3d at 503 ) and may grant the motion only if there is no doubt as to the absence of triable issues (see Castlepoint Ins. Co. v. Command Sec. Corp. , 144 AD3d 731, 733 [2016] ; Kolivas v. Kirchoff , 14 AD3d 493, 493 [2005] ).
Here, in support of their motions for summary judgment, both Heavy and Pizzirusso submitted evidence that they had not performed any work in the area where plaintiff's accident had occurred. However, in opposition to the motions, plaintiff proffered proof that both Heavy and Pizzirusso had been issued permits to "open" the sidewalk in the area of the accident. This was sufficient to raise a triable issue of fact as to whether Heavy and Pizzirusso had performed work at the subject location and were liable for plaintiff's injuries. Consequently, the motions by Heavy and Pizzirusso for summary judgment should have been denied (see generally Vega v. Restani Constr. Corp. , 18 NY3d at 507 ).
With respect to plaintiff's separate cross motions to strike the answers of Rocco, Heavy and Pizzirusso, although a court may strike the "pleadings or parts thereof" ( CPLR 3126 [3] ) as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed [upon notice]" ( CPLR 3126 [3] ), "the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" ( Jenkins v. Proto Prop. Servs., LLC , 54 AD3d 726, 726-727 [2008] [internal quotation marks and citation omitted]; accord Laskin v. Friedman , 90 AD3d 617, 617-618 [2011] ; see Denoyelles v. Gallagher , 40 AD3d 1027, 1027 [2007] ). Here, as plaintiff did not make a clear showing that the alleged failure of Rocco, Heavy and Pizzirusso to comply with plaintiff's discovery demands and the stipulations directing disclosure was willful, contumacious or in bad faith, the Civil Court did not improvidently exercise its discretion in denying plaintiff's cross motions to strike their answers (see Laskin v. Friedman , 90 AD3d at 617-618 ; Weber v. Harley-Davidson Motor Co., Inc. , 58 AD3d 719, 722 [2009] ; Jenkins v. Proto Prop. Servs., LLC , 54 AD3d at 726-727 ; Denoyelles v. Gallagher , 30 AD3d 367, 368 [2006] ).
Accordingly, the order, insofar as appealed from, is modified by providing that the motions by Heavy and Pizzirusso for summary judgment dismissing so much of the complaint as was asserted against each of them are denied.
ELLIOT, J.P., WESTON and SIEGAL, JJ., concur.