Opinion
Index No. 150736/2021
08-11-2023
Louis Torino and Jennifer Torino, Plaintiffs, v. Giove's "Wood Fired Pizza", Ltd, and PIZZERIA GIOVE, Defendants.
Attorney for the Plaintiff Glen Devora, Esq. JONATHAN D'AGOSTINO & ASSOCIATES, P.C. Attorney for the Defendant Michael Edmund Pressman LAW OFFICES OF MICHAEL E. PRESSMAN
Unpublished Opinion
Attorney for the Plaintiff Glen Devora, Esq. JONATHAN D'AGOSTINO & ASSOCIATES, P.C.
Attorney for the Defendant Michael Edmund Pressman LAW OFFICES OF MICHAEL E. PRESSMAN
HON. RONALD CASTORINA, JR. JUSTICE
The following papers were read on this motion, e-filed and numbered by NYSCEF as 52-67. Oral argument was heard in court on July 20, 2023.
I. Procedural Posture
A Certification Order was issued by the Court on April 12, 2023, directing Plaintiff to file a Note of Issue and Certificate of Readiness within thirty (30) days thereof. Plaintiff filed a Note of Issue and Certificate of Readiness on May 12, 2023. Defendant filed the within motion on June 9, 2023, within the time allotted pursuant to the Part's Rules. Defendant seeks the following relief as and for Motion Sequence: #003, to wit: [1] an Order pursuant to CPLR § 3212, granting summary judgment to Defendants on the issue of liability, dismissing Plaintiff's Complaint in its entirety, [2] an Order pursuant to CPLR §3042 [d], striking paragraphs #7 and #8 of Plaintiff's Verified Bill of Particulars, and [3] an Order granting such other and further relief as this Court may deem just and proper.
II. Facts
Plaintiff commenced this action by filing a Summons and Verified Complaint on or about April 8, 2021. Defendants filed an Answer on or about August 3, 2021. Plaintiff's Verified Bill of Particulars and Response to Combined Demands was filed on or about March 1, 2022. An Examination Before Trial [hereinafter "EBT"] was conducted of Plaintiff Louis Torino on February 6, 2023 and of Plaintiff Jennifer Torino on April 6, 2023. Defendants appeared for an EBT on February 9, 2023.
Plaintiff Louis Torino [hereinafter LT] alleges that he was caused to sustain personal injuries on May 11, 2018, at the Pizzeria owned and operated by Defendants. LT claims that he was "struck by a foreign object." At the time of the incident, LT was sitting at a dining table with his wife, Defendant Jennifer Torino [hereinafter JT]. The dining table is alleged to have been located next to the restaurant's front door, where customers enter and exit the establishment. At some point, while at the dining table, LT felt a foreign object hit him in the back of the head. LT did not see the object come in contact with his head, or how the object moved so as to come into contact with his head. After the indigent, LT observed that the object which allegedly struck him in the head was a "Please wait to be seated" sign. LT testified that he did not see anyone knock the sign over before it made contact with his head. LT was not able to identify who, if anyone, might have caused the sign to come in contact with his head.
JT claims to have been looking at the menu when the incident occurred. JT does not know how the sign came into contact with LT's head. JT did not observe anyone make contact with the sign before it allegedly struck LT. JT testified that on the night of the incident, the pizzeria was extremely busy and that many people were waiting near the entrance to get inside. JT claims that it was so hectic that she and LT had to wait twenty (20) to thirty (30) minutes to be seated.
Giorgio Giove [hereinafter owner] is the owner of the pizzeria where JT's accident took place. Owner was present at the time of the incident, but he did not witness it. Owner testified that he did not know who, if anyone, might have knocked the sign over. Owner further claims that he is unaware of any witness to the accident.
III. Discussion
Defendant moves for summary judgment and to strike portions of Plaintiff's Verified Bill of Particulars asserting that Plaintiff's have failed to identify the cause of LT's accident or to identify any negligence on behalf of Defendants. Further, Defendant argues that Plaintiffs did not identify any of Defendant's employees, servants, and/or agents as being responsible for knocking over the sign which allegedly struck LT in the head. Defendants claim that Plaintiff's Bill of Particulars did not allege that Defendants were negligent in this regard, and that as such, they are entitled to summary judgment as a matter of law on the issue of liability.
Plaintiff asserts that Defendant's motion is procedurally defective, in that, to establish a prima facie entitlement to summary judgment, Defendant must come forward with evidentiary proof in admissible form, demonstrating the absence of any triable issues of fact. More particularly, Plaintiffs allege that Defendants have not complied with Uniform Rule 202.8-g, failing to provide a Statement of Material Facts, instead, providing "long unsupported paragraphs claiming to be a statement of facts" [Plaintiff's Affirmation in Opposition, Para 5]. Further, Plaintiff claims that the defect continues, wherein, the Defendant failed to submit evidence in admissible form, claiming that a review of the motion papers reveals that the EBT transcripts they submit in support, are incomplete and unsigned, without any evidence that they were mailed to the witnesses. Plaintiff maintains that in addition to the alleged procedural defects, that Plaintiffs clearly identified the cause of LT's accident. They allege that during the course of the depositions, Defense counsel presented Plaintiffs with a photograph to identify. LT positively identified the sign depicted in the photograph, as well as the portion of the sign that caused the accident.
LT testified, in sum and substance that he believed, based upon the facts and circumstances that a delivery driver, knocked over the sign. He claimed that during the course of the commotion afterwards, that "it was determined that he was the deliver driver" [JT's Deposition Transcript, Page 87]. Moreover, he identified the "delivery driver" as a white male over 30. [JT's Deposition Transcript, Page 86-88].
A. Summary Judgment - Pursuant to CPLR §3212
i. Statement of Material Facts
Defendant has failed to submit a Statement of Material Facts in its moving papers, pursuant to Uniform Court Rule §202.8 g. However, Defendants rightly indicate that the Uniform Rules state that "the court may direct that there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs ". IAS Part 7's rules do not expressly state same as a requirement as of the date of this motion. Therefore, the failure to submit a Statement of Material Facts is not fatal to Defendant's motion.
ii. Unsigned EBT Transcripts
Defendants do not deny their failure to submit signed transcripts with their motion. They however, aptly argue that the Plaintiff's use of the same transcripts in their opposition, without question as to their accuracy, thus adopting same as true; vitiate the Defendant's failure to submit them as signed in their moving papers. The Second Department maintains that unsigned deposition transcripts submitted in support of a summary judgment motion are admissible where Plaintiff raises no objection to its accuracy and, in fact, requests that the Supreme Court incorporate the transcript into their opposition (see Gallway v Muintir, LLC, 142 A.D.3d 948, 949 [2016]). As the facts in this case are analogous, it is clear to this Court that the unsigned deposition transcript of the defendants' property manager was admissible under CPLR §3116 [a] since it was submitted by the Plaintiffs themselves and thus adopted as accurate (see David v Chong Sun Lee, 106 A.D.3d 1044 [2d Dept 2013]).
iii. Issues of Fact
Defendant's motion raises an issue as to whether the Plaintiff was able to identify the act or actor that caused LT's accident. Defendants motion papers characterize the testimony as being devoid of any indication by LT that he is or was able to identify the person that "knocked over the sign." However, a close review of the EBT testimony, submitted by Defendants and adopted by Plaintiff in their opposition, plainly shows that the Plaintiffs both identified a person they believe to be a delivery driver for Defendants, to be the cause of the accident.
It is clear that neither Plaintiff saw the act that caused the accident. However, according to LT's EBT transcript, the following occurred contemporaneously or shortly thereafter the accident: [1] a white male over 30, exiting the pizzeria, exiting the restaurant apologized to LT for knocking over the sign, [2] a hostess came over to the table to assess the situation and see if LT was ok and offered food and drink to comfort him, [3] a male patron named Stefano Lombardo witnessed the accident and asked LT if he was all right [4] that LT alleges that he was told by someone that a delivery driver knocked the sign over [5] that the manager did not charge LT and JT for any food they ordered.
Further, there is no testimony controverting that the sign was property of Defendants, and that Defendants and/or their servants or agents placed the sign at the location where the accident occurred. During oral argument, the court asked several questions of the parties, particularly as to whether an accident such as this, under these facts, could occur in the absence of the negligence of the Defendants, with respect to the location of the sign. Although not outcome determinative of this motion, a direct answer to the question was not provided to the Court. The Defendants rely upon the rule in Pelino v Red Rose Rest Inc, (106 A.D.3d 972 [2d Dept 2013]) where the court maintained that a Defendant established their prima facie entitlement to summary judgment when the Plaintiff was unable to identify the cause of her accident without engaging in speculation. However, that case was a slip trip and fall on a sidewalk, and the instant matter involves a sign that was clearly property of Defendants, used for the purposes of providing patrons with direction, and was placed in a location in proximity to the entrance by the Defendants, their servants and/or agents. There is no admissible evidence in the moving papers or appended EBT transcripts controverting these facts. The owner testified that the sign was "free standing" and that "we would move it around depending on what day of the week it was...". Additionally, the owner testified that "I was told that the driver on his way out bumped the sign and the sign fell on his head and again I don't remember who told me...". There is no question that there are real issues of fact and credibility that ought be reserved for a trier of fact, and not dismissed via summary judgment.
Therefore, the facts in this case, having been viewed in the light most favorable to the Plaintiff non moving parties, are deemed sufficient to make out a prima facie case of negligence against the Defendants (see Robinson v. 211-11 Northern, LLC, 46 A.D.3d 657, 847 N.Y.S.2d 599), and Defendants motion is hereby DENIED.
B. Plaintiff's Verified Bill of Particulars
Defendants contend that the Court should strike paragraphs seven (7) and eight (8) of Plaintiff's Verified Bill of Particulars because they are vague and over broad, pursuant to CPLR §3042 [d]. Defendants make this conclusory statement without any analysis as to how or why these alleged statements are vague and/or overbroad, stating only that "it contains boilerplate allegations of negligence which are vague and overbroad." The Court having reviewed the responses deems them to be specific enough as to negligence in connection with Defendants herein, and therefore Defendant's request to strike is DENIED.
IV. Decretal Paragraphs
Based upon the foregoing, it is hereby ORDERED, that Defendant's motion seeking an Order pursuant to CPLR §3212 granting summary judgment to the Defendants on the issue of liability, dismissing Plaintiff's Complaint in its entirety is DENIED, and it is further;
ORDERED, that Defendants request, pursuant to CPLR §3042 [d], striking certain responses in Plaintiff's Verified Bill of Particulars is DENIED, and it is further;
ORDERED, that the clerk of the Court shall enter judgment accordingly.
The remaining contentions of the parties were considered and found to be moot, without merit, and/or unavailing.
This shall constitute the Decision and Order of the Court.