Opinion
Index No. 152900/2019
03-04-2022
Ninfa BARRAVECCHIA and David Dotson, Plaintiff, v. Anthony GRANDQUIST and Christina Grandquist, Defendants.
Plaintiffs are represented by: Glen Devora Esq., Jonathan D'Agostino & Associates PC, 3309 Richmond Ave, Staten Island, NY 10312 Defendants are represented by: Gerard Van Leuvan Esq., Alaverdian Van Leuvan P.C., 295 Broadway, 1st Floor, Bethpage, NY 11714
Plaintiffs are represented by: Glen Devora Esq., Jonathan D'Agostino & Associates PC, 3309 Richmond Ave, Staten Island, NY 10312
Defendants are represented by: Gerard Van Leuvan Esq., Alaverdian Van Leuvan P.C., 295 Broadway, 1st Floor, Bethpage, NY 11714
Catherine M. DiDomenico, J.
Recitation as required by CPLR 2219(a) of the papers considered in the review of the motions referenced above
Papers /Numbered
Motion for Summary Judgment by Defendants (Mot. Seq. 001) 1
Notice of Cross Motion by Plaintiffs (Mot. Seq. 002) 2
Affirmation in Opposition to Cross Motion by Defendants 3
Affirmation in Reply by Defendant 4
Affirmation in Reply by Plaintiff 5
Pleadings filed in NY County Case under Index Number 656015/2017 6
Transcript of oral argument held on October 7, 2021 7
Procedural History / Present Motions
The above captioned premises liability action was commenced with the filing of a Summons and Verified Complaint on or about December 13, 2019. The case relates to an incident which occurred on or about May 24, 2019. It is undisputed that the Defendants own the property at issue which is located at 130 Alexander Avenue, in Staten Island, New York. At the time of the incident Plaintiff Ninfa Barravecchia, who was employed as a housekeeper for the Defendants, was taking out the garbage when she fell through the Defendants' porch railing and off their porch, allegedly sustained serious injuries as a result. Plaintiffs allege that the incident occurred because Defendants were negligent in "owning, operating, and maintaining" the PVC railing that surrounded the porch. Defendants argue that they lacked notice of any defective condition relating to the railing and that the incident was caused wholly by the Plaintiff's own negligence, alleging that she struck the railing with a bag of garbage causing it to break before she fell.
On or about June 10, 2021, Defendants filed a motion for summary judgment (Seq. No. 001), seeking an order dismissing Plaintiffs' cause of action on the basis that Defendants did not have notice of the allegedly defective railing, and that the Plaintiff's negligence was the sole proximate cause of her own injuries. On or about June 30, 2021, Plaintiffs cross moved (Seq. No. 002) for an order denying Defendants' motion in its entirety and granting spoliation sanctions. Plaintiffs claim that their case has been hindered by the fact that Defendants did not preserve the railing at issue so that any alleged defect could be inspected during the discovery process. Plaintiffs, in opposition, argue that they were not on notice that they had to preserve the railing. Oral argument of the motions was held on October 7, 2021.
Applicable Law
Under common law, a property owner has a duty to maintain their property in a reasonably safe condition. See Mowla v. Baozhu Wu , 195 AD3d 706 (2d Dept. 2021) . "A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property." Buffalino v. XSport Fitness , 2022 NY Slip Op. 00998 (2d Dept. 2022) .
When moving for summary judgment on a claim of premises liability, a defendant has the burden of establishing, prima facie, that it did not create the alleged dangerous condition, or have actual or constructive notice of it. See Fields v. New York City Housing. Auth. , 186 AD3d 1330 (2d Dept. 2020) . In short, the moving defendant must prove that he or she did not have notice of the dangerous condition. See Bloomfield v. Jericho Union Free School Dist. , 80 AD3d 637 (2d Dept. 2011) . A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. See Gordon v. American Museum of Natural History , 67 NY2d 836 (1986) ; see also Vargas v. Lamberti , 186 AD3d 1572 (2d Dept. 2020) . To meet his initial burden on the issue of a lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred. See Fortune v. Western Beef, Inc. , 178 AD3d 671 (2d Dept. 2019) ; see also Marazita v. City of New York , 2022 NY Slip Op. 01019 (2d Dept. 2022) . When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed. See Hayden v. 334 Dune Rd. , 196 AD3d 634 (2d Dept. 2021) .
A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim such that the trier of fact could find that the evidence would support that claim. See Teodoro v. C.W. Brown, Inc. , 2021 NY Slip Op 07297 (2d Dept. 2021) ; see also Slezak v. Nassau Country Club , 154 N.Y.S.3d 858 (2d Dept. 2021) . The determination of spoliation sanctions, if any, is within the broad discretion of the court. See Denoyelles v. Gallagher , 0 AD3d 1027 (2d Dept. 2007).
Decision
In support of their motion for summary judgment, Defendants argue that there is no evidence to support a finding that they had either actual or constructive notice that the PVC railing at issue was defective. In support of this argument, Defendants rely on Plaintiff's deposition testimony that she worked at Defendants' house for six months, cleaning twice a month, and that she did not notice anything wrong with the railing. Defendants testified that the railing was inspected when the house was purchased in 2017 and no defects or dangerous conditions were identified at that time. Moreover, they did not personally observe any defects or dangerous conditions in the years leading up to the 2019 incident. Accordingly, they could not be on notice of a defective condition as a matter of law, and request that the case against them be dismissed.
In opposition, Plaintiffs argue that the Defendants failed to meet their initial burden on the motion as they did not establish that they periodically inspected the porch and railing. The cases relied upon by the Plaintiffs indicate that if a defect is "concealed from view" a property owner's standard of care entails periodic inspection of the area of the potential defect. See Saintume v. Lamanttina , 192 AD3d 1156 (2d Dept. 2021) ; see also Bentley v. All-Star, Inc. , 179 AD3d 618 (1st Dept. 2020) . However, there is no evidence in the motion record that the defect, if there was one, was concealed from view. Rather, Plaintiffs' own expert concluded that the allegedly defective condition was "easily recognizable" through typical inspection/maintenance.
To meet their burden Defendants were required to establish that there was a reasonably contemporaneous inspection of the area that they relied upon to believe it was safe. See Nsengiyumva v. Amalgamated Warbasse Houses, Inc. 180 AD3d 799 (2d Dept. 2020) ; see also Croshier v. New Horizons Resources, Inc. , 185 AD3d 780 (2d Dept. 2020) . In this regard Defendants rely upon a home inspection conducted when they purchased the property in 2017. This inspection was conducted by AVT Engineers and Consultants on April 1, 2017. However, as argued by Plaintiffs, the section of the report which relates to the porch is inconclusive at best. Each of the sections of the report contains a check box for the engineer to indicate that the area inspected was "satisfactory" or not applicable ("N/A") with an area for written instructions regarding any repairs needed. The section relating to the porch, which explicitly includes the railing at issue, is marked "N/A" instead of "Satisfactory" (see ex. 4. Pg. 8). As a result, there is a question of fact as to whether the railing was inspected at all. As Defendants failed to provide evidence of an inspection, they failed to meet their initial burden of establishing an entitlement to summary judgment. See Kelly v. Roy C. Ketcham High Sch. , 179 AD3d 653 (2d Dept. 2020) ; see also Williams v. Island Trees Union Free Sch. Dist. , 177 AD3d 936 (2d Dept. 2019).
As Defendants failed to meet their initial burden it is unnecessary to consider Plaintiffs' opposition papers. See Aponte v. Airport Indus. Park LLC , 2022 NY Slip Op 00995 (2d Dept. 2022) . However, if the Court were to consider the same, it would find that Plaintiffs raised a triable issue of fact sufficient to defeat the motion. In opposition to the motion, Plaintiffs offer an affidavit from an expert witness, engineer Robert F. Fuchs. Contrary to the position taken by Defendants, it is appropriate to offer an expert affidavit in opposition to a motion for summary judgment. See e.g. Schiller v. Town of Ramapo , 2022 NY Slip Op 01062 (2d Dept. 2022) . After reviewing pictures taken of the railing after the accident, and a picture taken three days before the accident, Mr. Fuchs concludes that the collapse of the railing was likely due to installation defects and an inherently weak assembly system which would have caused the railing to be "wobbly under normal use." Mr. Fuchs further concludes that the condition would have been "easily recognizable." This expert report is sufficient to raise a triable question of fact as to if the alleged defect was visible and apparent, and in existence for a sufficient length of time to allow the Defendants to discover and remedy it. See Hamm v. Review Assoc., LLC, 2022 NY Slip Op 01011 (2d Dept. 2022) ; see also Taliana v. Hines REIT Three Huntington Quadrangle, LLC , 197 AD3d 1349 (2d Dept. 2021). For these additional reasons, Defendants' motion for summary judgment is denied.
Plaintiffs cross move for an order pursuant to CPLR § 3216 striking Defendants' Answer for the failure to preserve the PVC railing at issue. Plaintiffs argue that Defendants willfully or negligently destroyed this "key evidence" which has frustrated their ability to prove their case. A party seeking sanctions for spoilation of evidence must show that the party having control over that evidence had an obligation to preserve it at the time of its destruction, and that the evidence was destroyed with a culpable state of mind. See Golan v North Short-Long Is. Jewish Health Sys., Inc. , 147 AD3d 1031 (2d Dept. 2017) . "Culpable state of mind" may include negligence. See Delmur, Inc. v. School Constr. Auth. , 174 AD3d 784 (2d Dept. 2019) . The harsh remedy of striking a pleading is generally unwarranted unless a spoliator's conduct evinces willfulness. See Russo v. BMW of North America, LLC , 82 AD3d 643 (1st Dept. 2011) .
Plaintiffs allege that Defendants negligently disposed of the railing at a time when they should have anticipated a lawsuit. However, the record is devoid of any evidence as to when the railing was discarded. At his deposition, Defendant Anthony Grandquist testified that he placed the broken railing at the curb for the Department of Sanitation. However, he did not testify as to the date when this occurred, because he was never asked. Absent a showing of when the Defendants disposed of the railing, it is impossible for this Court to determine if the Defendants knew or should have known about a potential lawsuit. See Jane Doe v. Turnmill LLC , 193 AD3d 618 (1st Dept. 2021) ; Garda v. Paramount Theatre , 193 AD3d 827 (2d Dept. 2021) ; Bigelow v. Dick's Sporting Goods, Inc. , 1 AD3d 777 (3rd Dept. 2003) ; China Dev. Indus. Bank v. Morgan Stanley & Co. Inc. , 183 AD3d 504 (1st Dept. 2020).
According to the motion record, the first time the Defendants were placed on notice of an impending lawsuit was on June 12, 2019, nineteen days after the incident. As indicated above, it is unclear if the railing was still in Defendants' possession at that time. On June 12th, Plaintiff's counsel sent Defendants a "preservation letter" informing them that a claim was being made and requesting that they "preserve any recordings in [their] possession." This letter does not demand that the Defendants preserve the railing. As the letter only demands that specific items be preserved, the Defendant had no duty to preserve unspecified items. Accordingly, Defendants could not have negligently disposed of the railing. McAddley v. Western Beef Props., Inc. , 188 AD3d 536 (1st Dept. 2020). Moreover, in light of the various pictures taken contemporaneously with the incident, Plaintiffs did not demonstrate that the missing railing "fatally compromised their ability to prove their claim." See Abdourahamane v. Public Stor. Institutional Fund III , 190 AD3d 666 (2d Dept. 2021) .
As the record is devoid of any date upon which the railing was disposed of, and Plaintiffs failed to demand its preservation, they have failed to prove that Defendants willfully or negligently disposed of the railing with the knowledge that it should be preserved. Accordingly, Plaintiffs' motion seeking discovery sanctions is hereby denied. See Fisch v. City of New York , 194 AD3d 786 (2d Dept. 2021) ; see also N.H.R. v. Deer Park Union Free Sch. Dist. , 180 AD3d 823 (2d Dept. 2020).
This constitutes the Decision and Order of this Court in relation to motion sequence numbers 001 and 002. Any issue raised in either motion not specifically addressed herein is hereby denied. As discovery in this action has been completed, and the Note of Issue filed, the matter is hereby adjourned to this part for a telephonic settlement conference with the Court's attorney which shall be held on May 3, 2022 at 3:30 PM.