Opinion
2018-33993 Index 51682/2017
10-22-2018
BARBARA MIGLIONICO, Plaintiff, v. THE ARBORS HOMEOWNERS' ASSOCIATION INC., STEVE LAUNZINGER d/b/a SRL LANDSCAPE CONSTRUCTION, WESTCHESTER CUSTOM PLUMBING & HEATING CORP., DHR MANAGEMENT, DIANNE FEINSTEIN as managing agent, C&K LANDSCAPING & POOLS, INC., SUEZ WATER WESTCHESTER, INC. and FREDDY GONZALEZ as a member of C&K LANDSCAPING & POOLS INC., Defendants. Mot. Seqs. 3, 4, 5, 6
Harmon, Under & Rogowsky, Esq. Attorneys for Plaintiff Via NYSCEF Marshall Dennehey Warner Coleman and Goggin Attorney for Defendants the Arbors Homeowners' Ass'n., Inc., DHR Management & Dianne Feinstein Via NYSCEF Law Offices of Craig P. Curcio Attorneys for Defendant SRL Landscape Construction Via NYSCEF Litchfield Cavo, LLP Attorney for Suez Water Westchester, Inc. Via NYSCEF Gallo Vitucci Klar, LLP Attorney for C&K Landscaping & Pools, Inc. Via NYSCEF
Unpublished Opinion
Motion Date: 09/05/18
To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
Harmon, Under & Rogowsky, Esq. Attorneys for Plaintiff Via NYSCEF
Marshall Dennehey Warner Coleman and Goggin Attorney for Defendants the Arbors Homeowners' Ass'n., Inc., DHR Management & Dianne Feinstein Via NYSCEF
Law Offices of Craig P. Curcio Attorneys for Defendant SRL Landscape Construction Via NYSCEF
Litchfield Cavo, LLP Attorney for Suez Water Westchester, Inc. Via NYSCEF
Gallo Vitucci Klar, LLP Attorney for C&K Landscaping & Pools, Inc. Via NYSCEF
DECISION/ORDER
HON. LAWRENCE H. ECKER, J.S.C.
The following papers numbered 1 through 116 were considered on the motion of defendant C&K LANDSCAPING & POOLS, INC. and FREDDY GONZALEZ, as a member of C&K LANDSCAPING & POOLS, INC. ("jointly C&K Landscaping") [Mot. Seq. 3], made pursuant to CPLR 3212, for an order dismissing plaintiff BARBARA MIGLIONICO's ("plaintiff') complaint and all cross-claims against it, and on the motion of defendant THE ARBORS HOMEOWNERS' ASSOCIATION, DHR MANAGEMENT and DIANNE FEINSTEIN as managing agent (jointly "the Arbors") [Mot. Seq. 4], made pursuant to CPLR 3212, for an order dismissing plaintiff's complaint against it, or in the alternative, granting it summary judgment on its cross-claims, and on the motion of defendant SUEZ WATER WESTCHESTER, INC. ("Suez") [Mot. Seq. 5], made pursuant to CPLR 3212, for an order dismissing the complaint and all cross-claims against it, and on the motion of defendant STEVEN LAUNZINGER d/b/a SRL LANDSCAPE CONSTRUCTION ("SRL Construction") [Mot. Seq. 6], made pursuant to CPLR 3212, for an order dismissing plaintiff's complaint and all cross-claims against it:
| PAPERS | NUMBERED |
| Mot. Seq. 3 [C&K Landscaping] | |
| Notice of Motion, Affirmation, Memorandum of Law Exhibits A-EE, | 1-34 |
| Affirmation in Opposition (by the Arbors against SRL Construction, C&K Landscaping & Suez), | 35 |
| Affirmation in "Reply"(by the Arbors against SRL Construction, C&K Landscaping & Suez), | 36 |
| Affirmation in Reply (C&K Landscaping), | 37 |
| Mot. Seq. 4 [the Arbors] | |
| Notice of Motion, Affirmation, Exhibits A-BB | 37-66 |
| Affirmation in Opposition (SRL Construction), | 67 |
| Affirmation in Partial Opposition (C&K Landscaping) | 68 |
| Affirmation in "Reply"(by the Arbors against SRL Construction, C& K Landscaping & Suez), | |
| Mot. Seq. 5 (Suez) | |
| Notice of Motion, Affirmation, Exhibits A-W | 69-95 |
| Affirmation in Opposition (by the Arbors against SRL Construction, C&K Landscaping & Suez), | |
| Reply Affirmation (Suez), | 96 |
| Affirmation in "Reply"(by the Arbors against SRL Construction, C& K Landscaping & Suez), | |
| Mot. Seq. 6 [SRL Construction]. | |
| Notice of Motion, Exhibits A-R. | 97-115 |
| Affirmation in Opposition (by the Arbors against SRL Construction, C&K Landscaping & Suez), | |
| Affirmation in "Reply"(by the Arbors against SRL Construction, C& K Landscaping & Suez), Reply Affirmation (SRL Construction). | 116 |
Upon the foregoing papers, the court determines as follows;
This is an action for personal injuries arising from an accident that occurred on April 13 2014, at around 8;30 am. Plaintiff Barbara Miglionico alleges that, on that morning, she was walking with a friend through the trails behind the Arbors Condominium Complex where she resides. At some point, plaintiff and her friend exited from the trail and came upon a construction area, surrounded by yellow tape and a metal portable fence, in the parking area near the streets of Bayberry Lane and Ivy Hill Lane. Plaintiff alleges that due to these barricades, she was caused to st~p up onto a curb and into an uncovered hole in the dirt adjacent to the curb, causing her to fall. The defect was a water meter pit with a cover that was allegely only partially covering the hole. It is alleged that, before the construction, the water meter pit had been covered by dirt.
The construction project on the Arbors' property was to remove an old shed and erect a new shed to be a storage facility for landscaping materials and other items. SRL Construction was hired to build the new shed. The new shed required a water connection to the existing water supply. SRL Construction alleges that, while it contracted to create water access to the shed, it was informed that a water line and meter were in place, and hence that it did not need to create access. SRL Construction claims that it never saw the water meter pit, and does not know who removed the soil covering the pit. SRL Construction admits that, on the day of the occurrence, it put up the warning tape around the accident site, but alleges that it did not place the metal barricades encircling the construction area.
C&K Landscaping was hired, pursuant to a Landscaping/Snow Maintenance and Plowing Contract, by the Arbors to, among other things, maintain the common areas of the development. C&K Landscaping asserts that it placed the metal barriers around the construction site at the request of the Arbors. It further claims that it had no responsibility to cover holes on the property, and that the last time it performed work in the relevant area was in the fall of 2013. Finally, C&K Landscaping denies uncovering the hole or removing the dirt from around the water meter pit.
Suez owned the water meters on the property, but all of the relevant equipment and land, including the water meter pit in question, were owned by the Arbors. Suez's employee testified that he was responsible for supervising work on the meters, he had visited the relevant area many times and possibly worked on the meters that were in the meter pits, but did not recall the specific work or when it was done. Suez alleges, among other things, that it did not, under the circumstance,, have exclusive access to the water meter pit.
Plaintiff originally commenced an action on March 5, 2015, naming the Arbors as defendant. Plaintiff then amended the complaint to add SRL Construction as a defendant. Defendants filed answers and discovery was conducted. On January 30, 2017. plaintiff filed a stipulation of discontinuance of the action.
Plaintiff commenced a new action on February 6, 2017, by serving a new summons and complaint naming the Arbors, SRL Construction, Westchester Custom Plumbing & Heating Corp. ("Westchester Custom"), C&K Landscaping and Suez as defendants.
On or about March 7, 2017, Suez filed an answer with general denials and affirmative defenses. [NYSCEF No. 25]. It also alleged cross-claims against the Arbors, SRL Construction, Westchester Custom, and C&K Landscaping for contribution, common law indemnification, contractual indemnification, and breach of contract.
On March 8, 2017, the Arbors filed an answer with general denials, affirmative defenses and cross-claims against SRL Construction, Westchester Custom, C&K Landscaping, and Suez for contractual indemnification, common law indemnification, and contribution [NYSCEF No. 14].
On March 22 2017, SRL Construction filed an answer with general denials, affirmative defenses, and cross-claims for common law indemnification, contractual indemnification and contribution as against the Arbors, Westchester Custom, C&K Landscaping, and Suez. [NYSCEF No. 15].
On or about March 29, 2017, SRL Construction filed replies to the Arbors' and Suez's cross-claims against it. [NYSCEF No. 17, 21.. The Arbors filed replies to Suez's and SRL Constructions cross-claims on May 5, 2017 [NYSCEF No. 118].
On May 22 2017, C&K Landscaping served an answer with general denials, affirmative defenses and cross-claims against the Arbors, SRL Construction, Westchester Custom and Suez for contribution and common law indemnification. [NYSCEF No. 30]. The Arbors and SRL Construction served replies to C&K Landscaping's cross-claims. [NYSCEF No. 39, 66].
The action and all cross-claims against Westchester Custom were discontinued by stipulation dated February 16, 2018. [NYSCEF No. 71].