Opinion
# 2017-053-511 Claim No. 119842 Motion No. M-89882
05-25-2017
RAZIM RAMULIC and RAJKA RAMULIC, Individually and as Husband and Wife v. STATE OF NEW YORK
ANDREWS BERNSTEIN, MARANTO & NICOTRA, PLLC BY: Andrew J. Connelly, Esq. ANSPACH MEEKS ELLENBERGER, LLP BY: David M. Stillwell, Esq.
Synopsis
The State's motion for summary judgment is denied as questions of fact exist as to the State's ownership and use of the premises at the time of the subject accident and whether the State was an out-of-possession owner or lessor of th premises.
Case information
| UID: | 2017-053-511 |
| Claimant(s): | RAZIM RAMULIC and RAJKA RAMULIC, Individually and as Husband and Wife |
| Claimant short name: | RAMULIC |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119842 |
| Motion number(s): | M-89882 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ANDREWS BERNSTEIN, MARANTO & NICOTRA, PLLC BY: Andrew J. Connelly, Esq. |
| Defendant's attorney: | ANSPACH MEEKS ELLENBERGER, LLP BY: David M. Stillwell, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | May 25, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim was brought by claimants Razim and Rajka Ramulic for personal injuries suffered by Razim Ramulic on February 13, 2011 when he slipped and fell on snow and ice near the rear gate of the H.H. Richardson Complex (Richardson Complex) at 400 Forest Avenue in the City of Buffalo, New York. The defendant State of New York (the "State") now moves for summary judgment dismissing the claim on the basis that a non-party, the Richardson Center Corporation (RCC) had possession and control of the subject premises at the time of the incident, which included responsibility for the removal of snow and ice in the vicinity of claimant's accident. The claimants oppose this motion. FACTS
This claim arises from a slip and fall accident that occurred on February 13, 2011 at approximately 10:15 p.m. near the rear gate of the H.H. Richardson Complex (Richardson Complex). Claimant Razim Ramulic was employed at that time as a security guard by non-party Buffalo Protection & Investigation and was walking towards his employer's trailer on the grounds of the Richardson Complex when he alleges that he slipped and fell on an accumulation of snow and/or ice.
At the time of the claimant's accident, it is alleged that the State was the owner of the Richardson Complex. On June 23, 2006, the RCC was incorporated as a not-for-profit entity with the purpose of developing a plan for the comprehensive rehabilitation of the Richardson Complex. On July 1, 2007, the Dormitory Authority of the State of New York (DASNY) allegedly entered into a permit with the RCC so that they could access the Richardson Complex to carry out preconstruction activities relating to the historic preservation of the Richardson Complex. The permit was in effect at the time of the subject accident as the term of the permit was from July 1, 2007 and terminates "at the same time that the project has been completed." It also specifically sets forth that it was not intended to give the RCC complete possession and control of the Richardson Complex and that the State reserved the right to enter the premises for repairs and improvements. On October 14, 2009, DASNY, Empire State Development Corporation and RCC allegedly entered into an Amended and Restated Project Management Agreement (Project Management Agreement) to develop and implement a plan to rehabilitate the Richardson Complex. This agreement restated that the owner of the Richardson Complex was the State of New York and identified DASNY as the Project Manager who was authorized to use the grant funding provided by the State to perform work on the facilities and enter into agreements to perform the work at the Richardson Complex.
See Exhibit H to the State's Notice of Motion for Summary Judgment at page 3, the Amended and Restated Project Management Agreement among Dormitory Authority of the State of New York (the Authority), Richardson Center Corporation and New York State Urban Development Corporation (doing business as Empire State Development Corporation), which at paragraph 4 states as follows: "WHEREAS, the Richardson Complex is presently owned by the State of New York, is part of Buffalo Psychiatric Center of the New York State Office of Mental Health and is a mental hygiene facility for purposes of the Facilities Development Corporation Act." The copy provided as Exhibit H is not executed by any of the parties to this agreement.
Exhibit E, as well as Exhibit F at p. 119 to the State's Notice of Motion for Summary Judgment.
Exhibit G to the State's Notice of Motion for Summary Judgment. See paragraph 2, entitled "Term". Paragraph 3, entitled "Inspection"states that "[t]his permit is not intended to give possession and control of the Premises to the Permittee. Furthermore, the State continues to have an interest in the manner in which the Permittee intends to undertake the Project. . . The Permittee shall permit the AUTHORITY and STATE . . . to enter the Premises for the purposes of repairs and/or improvements. . . The State shall have access to all parts of the Premises . . ." In its Memorandum of Law in support of its motion for summary judgment, it is stated that the permit was executed by Joseph Durkin of DASNY and by Stanford Lipsey, Chairman of the RCC. The Court notes that the quality of the copy of the Permit provided is very poor and that only a partial signature of Mr. Lipsey can be seen. Further, no affidavit by anyone with knowledge of this agreement or authenticating the Permit has been provided.
Exhibit H to the State's Notice of Motion for Summary Judgment.
In conjunction with the project management agreement, a fully executed copy of a contract between DASNY and Smith Brothers Construction (Smith Brothers) is attached to the motion papers as Exhibit J. In addition, Michael Clark, who was employed by Smith Brothers during the relevant time period, testified that he executed this contract as secretary of Smith Brothers. He also testified that Smith Brothers did not provide a snow plowing service, but provided snow plowing on a contract basis as part of their work under this contract. Attached to this contract are two job orders dated February 8, 2011 (pre-dating the subject accident) and July 6, 2011 (post-dating the subject accident), which state that Smith Brothers will "[p]rovide overall site maintenance at the HH Richardson Site. Work to include but not limited to: snow removal, repair/board up openings into building, general cleaning of designated interior areas." Monica Pellegrino Faix, Executive Director of the RCC, testified at a deposition that DASNY contracted with a company to perform snow and ice removal at the Richardson Complex. Ken Abram, a field representative employed by DASNY to manage construction projects testified at a deposition that DASNY hired Smith Brothers to perform snow and ice removal and that Smith Brothers entered into a contract with the RCC "through us". Mr. Abram also testified that the State's role with respect to this project was limited to funding, that the State did not have any involvement in specific projects, and that the New York State Office of General Services (OGS) did not have any involvement with the projects at the Richardson Complex.
Exhibit K to the State's Notice of Motion for Summary Judgment at pp. 11-13.
Exhibit J to the State's Notice of Motion for Summary Judgment, Appendix A and attached job orders.
Exhibit I to the State's Notice of Motion for Summary Judgment at pp. 6-9.
Exhibit P to the State's Notice of Motion for Summary Judgment at pp. 7, 25-26.
Exhibit P to the State's Notice of Motion for Summary Judgment at pp. 15-18.
There is no factual dispute that the claimant's incident occurred in the area within the chain-link fence surrounding the Richardson Complex. This fence was installed by DASNY at the request of the RCC and the Buffalo Psychiatric Center. The Buffalo Psychiatric Center is located immediately adjacent to the Richardson Complex. Pamela Esposito, Deputy Director of Administrative Services for the Buffalo Psychiatric Center, testified at a deposition that snow and ice removal for the Buffalo Psychiatric Center was performed by their employees and that they did not perform snow and ice removal inside the fenced area comprising the Richardson Complex. DECISION
Exhibit P to the State's Notice of Motion for Summary Judgment at pp. 15-16.
Exhibit Q to the State's Notice of Motion for Summary Judgment at pp. 4-5, 10-11.
In general, the State has a duty to maintain its property in a reasonably safe condition in view of all circumstances, which includes evaluating the likelihood of injury to others, the seriousness of the injury and the burden to avoid that risk (Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller 40 NY2d 233 [1976]). At the same time, the State is not an insurer against every injury that may occur upon its property (Smith v State of New York, 260 AD2d 819 [3d Dept, 1999]). Where a hazardous or dangerous condition is alleged to exist, the State may be held liable where it has actual or constructive notice of the hazardous condition and fails to take reasonable measures to correct the danger (see, Friedman v State of New York, 67 NY2d 271, 286 [1986]). Whether a dangerous or defective condition exists on property so as to create liability depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976 [1997]). And with respect to a claim that the accumulation of snow and ice has created a hazardous condition, the owner of property may be held liable upon a showing that it had actual or constructive notice of the dangerous condition and that a reasonably sufficient time period has elapsed since the cessation of the storm to take appropriate measures, or upon a showing that it caused, created or exacerbated the hazardous condition (Krichevskaya v City of New York, 30 AD3d 471 [2d Dept, 2006]).
The State alleges that at the time of the claimant's accident it had relinquished possession and control of the subject premises to the RCC and as such, was an out-of-possession owner. Generally, an out-of-possession owner of property is not liable for injuries sustained from a slip and fall on snow and/or ice unless there is a provision in the lease that obligates the owner to be responsible for its removal (Sexton v Resinger, 70 AD3d 1360 [4th Dept 2010]), the landlord attempted to remove snow and ice and made the condition more hazardous (Gerber v City of New York, 280 AD2d 289 [1st Dept 2001]) or unless the landlord created the pathway in the snow upon which the incident occurred (Adley v Kansas Fried Chicken, Inc., 106 AD3d 565 [1st Dept 2013]).
In a motion for summary judgment, the defendant is required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate all material issues of fact in the action (Zuckerman v City of New York, 49 NY2d 557 [1980]). The first issue is whether the documents and other proof offered by the State in this motion are sufficient and in admissible form. As previously stated, the permit attached as Exhibit G is only executed by one party, the RCC. The signature page of the Project Management Agreement, attached as Exhibit H is not executed by any of the four parties to the agreement. The permit was included in the motion papers by the State to establish that the State was an out-of-possesion owner and that the RCC was in possession and control of the Richardson Complex at the time of the subject incident. The Project Management Agreement was included in the motion papers to similarly establish that the State was an out-of-possession owner of the premises and to explain the role of non-party DASNY as project manager and its relationship with non-party RCC.
The motion papers do not include an affidavit from anyone with knowledge about the permit or the Project Management Agreement so as to establish that these exhibits were executed by all parties, are true and accurate copies of the original executed agreements, and that the agreements were in effect on the date of the claimant's accident. The State has failed to comply with CPLR 3212 (b), which requires that a motion for summary judgment be supported by an affidavit of a person with requisite knowledge of the facts, together with a copy of the pleadings and by other available proof (Spearmon v. Times Sq. Stores Corp., 96 AD2d 552, 553 [2d Dept 1981] ). Further, the State is required to present evidence in admissible form sufficient to establish that there is no cause of action as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). It has been held that the "[f]ailure to make such prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]).
The State's motion for summary judgment must be denied unless their entitlement to summary judgment can be established without reference to these two exhibits. However, without these exhibits, there is no proof in admissible form to establish that anyone other than the State owned, possessed and controlled access to and upon the premises where the claimant's accident occurred. In addition, it is only by reference to the permit that the State's status as an out-of-possession owner with only a reservation of rights to re-enter the Richardson Complex for repairs and improvements is established. None of the transcripts of the depositions attached as exhibits to the State's motion papers indicate that anyone was questioned about the permit or the contractual relationship between the State and the RCC. Without proof in evidentiary form as to the applicability of the permit and the Project Management Agreement, the State cannot eliminate the issues of fact relating to its ownership and use of the premises or to establish that it was at that time an out-of-possession owner or lessor of the premises.
Based on the foregoing, defendant's motion no. M-89882 for summary judgment is denied.
May 25, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of David M. Stillwell, Esq. sworn to February 2, 2017, with annexed Exhibits A-Q; 2. Affirmation in Opposition of Andrew J. Connelly, Esq. dated March 13, 2017.