Opinion
No. K1–2013–416.
05-06-2016
Tonya BRYANT, Individually and as the Parent and Natural Guardian of Victor M. Rosa, III and Victor M. Rosa, III, Plaintiffs, v. ESTATE OF Brian D. GANE, Defendant.
Brian York, Esq., Attorney for Plaintiffs. Reisner Law Group, Attorneys for Defendant. Jeffrey P. Reisner, Esq., of Counsel.
Brian York, Esq., Attorney for Plaintiffs.
Reisner Law Group, Attorneys for Defendant.
Jeffrey P. Reisner, Esq., of Counsel.
FRANK A. SEDITA III, J.
Plaintiffs commenced this action to recover damages for injuries sustained while Victor M. Rosa, III, was mowing the lawn on property owned by the late Brian D. Gane. Defendant moves for summary judgment and seeks to dismiss the complaint.
On June 13, 2008, Gane and plaintiff Tonya Bryant (Rosa's mother), entered into a residential rental agreement. The agreement mandated that all needed repairs to the premises were to be brought to the attention of the landlord and prohibited the tenant from making repairs without Gane's approval. Bryant also received a $100 monthly rent reduction in exchange for property maintenance, which included mowing the lawn. Bryant delegated this duty to her teenage son, who used a power lawnmower owned and maintained by Gane. Rosa mowed the lawn with this device and without incident for nearly two years.
Tragedy struck on June 3, 2010 while Rosa was mowing a sloped portion of the lawn, adjacent to a set of stairs. According to his deposition testimony, Rosa “was next to the railing coming down and my [left] foot went inside the hole. I tried to use my other foot to balance and slipped and the right one went underneath [the lawnmower].” Rosa described the area as, “like a gap in between the railing and the dirt it was like a dip inside the ground.” The lawnmower's rotating blade severed three of the sixteen year-old boy's toes and caused such extensive trauma, that a fourth had to be surgically amputated.
As amplified by their pleadings and answers to the court's questions at oral argument of the instant motion, plaintiffs advance two principal theories of liability. One is negligent entrustment, where it is alleged that Gane provided a “deceptively dangerous” lawnmower to the plaintiffs. The other is premises liability, where it is alleged that Gane failed to take reasonable measures to protect others from a dangerous condition on his land.
Although the rental agreement, as well as the deposition testimony of both plaintiffs, is included in their moving papers, defendant's summary judgment motion is principally supported by the affidavit of his attorney. Counsel persuasively discusses the lack of evidence supporting the plaintiffs' liability theories but he has no personal knowledge of the relevant facts and is not an expert as to a factual issue. Notably absent is an affidavit or transcript of testimony from the late Mr. Gane, who owned and (according to the plaintiffs) regularly visited the premises and who owned and maintained the lawnmower. Also absent is an affidavit from an expert or sufficiently qualified mechanic or repairman attesting to the non-defective condition of the lawnmower.
On a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 ). Summary judgment is a drastic remedy and the moving party must tender sufficient evidence demonstrating the absence of any genuine issue of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 ). An affirmation by an attorney without personal knowledge of essential facts is insufficient to support an award of summary judgment (Werdien v. Johnson, 221 A.D.2d 899 ; also see, Beaucejour v. General Linen Supply & Laundry Co., 39 AD3d 444 ; Warington v. Ryder Truck Rental, Inc., 35 AD3d 455 ). The moving party's failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers (Vega v. Restani Construction Co., 18 NY3d 499, 503 ). Nor can a defendant obtain summary judgment against the plaintiff simply by pointing out to the court the lack of evidence supporting the plaintiff's causes of action (see, Higgit, Practice Commentary, McKinney's Cons Laws of NY, Electronic Update, A Basic Point Worth Reinforcing: The Movant Must Make an Affirmative Showing of Entitlement to Judgment as a Matter of Law, CPLR 3212 ).
Regarding plaintiffs' negligent entrustment theory, defendant's main contentions are that the lawnmower was in good working order; that Gane had no knowledge of any purported defect; and, that defendant entrusted the mower to Bryant but not Rosa. Mindful of the arguably weak proof presently offered by the plaintiffs in support of their negligent entrustment claim, a judgment in defendant's favor as a matter of law might be appropriate at the close of plaintiffs' case (see, Zara v. Perzan, 185 A.D.2d 236 ). For purposes of a summary judgment motion, however, defendant has not demonstrated the absence of any material issue of fact regarding whether he negligently entrusted the lawnmower to Rosa (see, Gonzalez v. City of New York, 133 AD3d 65 ).
Regarding plaintiffs' dangerous premises theory, defendant's main contentions are that Gane was an out-of-possession landlord without sufficient control over the premises; that he neither created nor had notice of the allegedly dangerous condition; and, that the alleged defect was trivial. Regardless of the arguably weak proof presently offered in support of plaintiffs' dangerous premises theory, for the purposes of a summary judgment motion, defendant has not demonstrated the absence of any material issue of fact as to whether he was an out-of-possession landlord lacking control over the property (see, Koch v. Drayer Marine Corp., 118 AD3d 1300 ) or that he lacked actual or constructive notice of the alleged defect/dangerous condition (see, Rivera v. Tops Markets, LLC, 125 AD3d 1504 ) or that the defect was trivial (see, Hutchinson v. Sheridan Hill Hospital, 26 NY3d 66 ).
Based upon the foregoing, defendant's motion for summary judgment is denied.
The foregoing shall constitute the order of this court.