Opinion
Index No. 66187/2017
05-11-2023
RACHAEL METHAL and STERLING SMITH, Plaintiff(s), v. VILLAGE OF ARDSLEY, JOHN J. ANNUNZIATA, P.E., P.C., and FLAVIO LA ROCCA & SONS, INC., Defendant(s). VILLAGE OF ARDSLEY, Third-Party Plaintiff(s), v. SUMMIT LAND SURVEYING P.C., Third-Party Defendant(s).
Unpublished Opinion
PRESENT: HON. LEWIS J. LUBELL, JUSTICE OF THE SUPREME COURT.
DECISION & ORDER
LEWIS J. LUBELL, Justice of the Supreme Court.
Defendant Flavio La Rocca &Sons Inc. (Flavio) moves (Motion #5) for an order, I sanctioning plaintiffs and defendant Village of Ardsley (Village).
Plaintiffs move (Motion #6) for an order, excluding the mention in the presence of the jury, by counsel, witnesses, or any other person in the courtroom, of the phrases, contributory negligence comparative negligence or words with related meaning or effect; and (2) an order excluding any and all evidence, references to evidence, testimony or j argument relating to Defendants' affirmative defenses for contributory/comparative negligence.
The Village cross-moves (Motion #7) for sanctions.
The Village moves (Motion #8) for an order, dismissing certain affirmative defenses interposed by Flavio.
The Village moves (Motion #9) for an order, precluding plaintiff from referencing the negligent design cause of action due to municipal immunity.
| The following papers were read: | 1-4 |
| Notice of Motion (#5), Affirmation, and Exhibits (2) | 5 |
| Affirmation in Support | 6-9 |
| Affirmation in Opposition, Exhibits (2), and Memo of Law | 10-12 |
| Affirmation in Reply and Exhibits (2) | 13 |
| Affirmation in Reply | 14-15 |
| Notice of Motion (#6) and Memo of Law | 16-21 |
| Affirmation in Opposition, Exhibits (4), and Memo of Law | 22-25 |
| Notice of Cross-Motion (#7), Exhibits (2), and Memo of Law Memo of Law in Opposition | 26 |
| Notice of Motion (#8), Exhibits (4), and Memo of Law | 27-32 |
| Affirmation in Opposition and Exhibits (6) | 33-39 |
| Notice of Motion (#9), Exhibits (2), and Memo of Law | 40-43 |
By way of background, in 2012, plaintiffs purchased certain real property known as 11 McKinley Place, Ardsley, New York (Premises). In 2014, plaintiffs decided to improve the Premises by leveling the backyard and constructing a retaining wall (Retaining Wall) to support the additional soil. Plaintiffs hired Flavio to construct the Retaining Wall and retained defendant John J. Annunziata, P.E., P.C. (Annunziata) to, among other things, design the Retaining Wall. Thereafter, Annunziata designed the Retaining Wall and its plans were approved by the Village. Flavio constructed the Retaining Wall in the summer of 2015. Subsequently, issues arose in the backyard of the Premises. On October 4, 2017, plaintiffs commenced this action with the filing of a summons and complaint. The complaint alleges that a storm drain pipe (Storm Drain Pipe), owned by the Village, and running underneath the backyard of the Premises, deteriorated and caused sinkholes and other damage in the backyard of the Premises. In addition, the complaint alleges that the construction of the Retaining Wall contributed to the subject deterioration. Subsequently, the parties engaged in discovery. On September 25, 2019, plaintiffs filed the note of issue. Thereafter, the Village, Flavio, and Annunziata moved (Motion ## 2, 3 and 4) for summary judgment, which were decided on April 29, 2020. On February 2, 2023, the Court held a conference on this matter and scheduled the trial to commence on May 18, 2023. The Court directed the parties to make any motions in limine returnable on March 31, 2023. On March 6, 2023, Flavio filed Motion #5, returnable on March 31, 2023. On March 6, 2023, plaintiffs filed Motion #6, returnable on March 31, 2023. On March 23, 2023, the Village filed Motion #7, returnable on March 31, 2023. On April 26, 2023, the Village filed Motion #8, returnable on May 5, 2023. On May 9, 2023, the Village filed Motion #9, returnable on May 17, 2023.
Motion #5
In support of Motion #5, Flavio asserts that the Village had a section of the Storm Drain Pipe removed during the instant litigation without giving the parties an opportunity to inspect it and that portion of the Storm Drain Pipe is now lost. Flavio seeks the issuance of a negative inference against plaintiffs and the Village.
"The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense" (Lentini v Weschler, 120 A.D.3d 1200, 1201 [2d Dept 2014], internal quotation marks omitted). At this juncture, Flavio has failed to prove that the disposal of a portion of the Storm Drain Pipe in 2018 "fatally compromised its ability to prove" its defense. Accordingly, Flavio's motion is denied without prejudice.
Motion ##6 and 7
In support of Motion #6, plaintiffs note that the Village has asserted an affirmative defense for contributory negligence and Flavio and Annunziata have asserted affirmative defenses for contributory and comparative negligence. Plaintiffs then contend that these affirmative defenses are inappropriate, given the claims asserted by plaintiffs. Thus, plaintiffs contend that defendants should be precluded from mentioning or proffering any evidence of the same at the time of trial.
Essentially, plaintiffs seek to preclude defendants from presenting argument or evidence to support certain of their affirmative defenses, which plaintiffs have never sought to dismiss. At this juncture, such relief is not appropriate.
Next, the Court considers the Village's application for sanctions (Motion #7). The Court may "impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct" (see Rules of Chief Admin of Cts [22 NYCRR] 130-1.1 [a]; Strunk v New York State Bd. of Elections, 126 A.D.3d 779, 780 [2d Dept 2015]). "[C]onduct is frivolous if. . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (see 22 NYCRR 130-1.1 [c]; see Weissman v Weissman, 116 A.D.3d 848, 849 [2d Dept 2014]). The decision to impose costs or sanctions for frivolous conduct is generally entrusted to the Court's sound discretion (see Matter of Khan-Soleil v. Rashad, 111 A.D.3d 727, 728 [2d Dept 2013]). Here, the imposition of sanctions is not warranted. .
Motion ## 8 and 9
In support of Motion #8, the Village notes that Flavio's fourth, fifth, and sixth affirmative defenses assert that he "engaged in reasonable operation of its business and otherwise acted in a reasonable commercial manner" and that "the conduct of the defendant, its servants, agents, or employees was not negligent. . ." and "the conduct... of the answering defendant... was not the proximate cause of plaintiffs' damages, if any." The Village asserts that evidence demonstrates that Flavio violated New York's excavation laws and thus the Court should strike these affirmative defenses be dismissed.
In support of Motion #9, the Village notes that plaintiffs have a claim for the negligent design relating to the Storm Drain Pipe. The Village asserts that plaintiffs should be precluded from referencing their claim for negligent design because of municipal immunity.
Motion ## 8 and 9 are untimely, based on the Court's earlier directive that such . motions be made returnable by March 31,2023. In addition, with the inclusion of evidence, Motion #8 also appears to be either an improper successive or untimely motion for summary judgment. Essentially, the Village seeks to preclude plaintiffs from presenting argument or evidence to support one of their claims, which has not been dismissed. At this juncture, such relief is not appropriate.
Conclusion
Based on the foregoing, it is hereby
ORDERED that Motion ##5, 6, 8, and 9 are DENIED without prejudice to remaking the applications to the trial judge if and when appropriate; and it is further
ORDERED that Motion #7 is DENIED.