Opinion
INDEX No. 13-14608
04-05-2019
MADELINE CLEMENTI and PHILIP CLEMENTI, Plaintiffs, v. SUFFOLK COUNTY WATER AUTHORITY, JEFFREY RUBIN, D.D.S., and NORTHPORT FAMILY DENTAL, Defendants.
CHRISTOPHER S. OLSEN, ESQ. Attorney for Plaintiffs 434 New York Avenue Huntington, New York 11743 SOBEL PEVZNER, LLC Attorney for Defendants Suffolk County Water Authority 464 New York Avenue, Suite 100 Huntington, New York 11743 THE LAW OFFICE OF EPSTEIN, GIALLEONARDO & FRANKINI Attorney for Defendants Rubin and Northport Family Dental 330 Old Country Road, Suite 200 Mineola, New York 11501
COPY
SHORT FORM ORDER CAL. No. 17-02130OT PRESENT: Hon. DAVID T. REILLY Justice of the Supreme Court MOTION DATE 3-21-18 (003)
MOTION DATE 4-11-18 (004)
ADJ. DATE 10-10-18
Mot. Seq. # 003 - MG
Mot. Seq. # 004 - MG; CASEDISP CHRISTOPHER S. OLSEN, ESQ.
Attorney for Plaintiffs
434 New York Avenue
Huntington, New York 11743 SOBEL PEVZNER, LLC
Attorney for Defendants Suffolk
County Water Authority
464 New York Avenue, Suite 100
Huntington, New York 11743 THE LAW OFFICE OF EPSTEIN,
GIALLEONARDO & FRANKINI
Attorney for Defendants Rubin and
Northport Family Dental
330 Old Country Road, Suite 200
Mineola, New York 11501
Upon the following papers numbered 1 to 64 read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers 1-12; 19-55; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers 13-16; 56-60; Replying Affidavits and supporting papers 17-18; 61-64; Other ___; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion (003) by defendant Suffolk County Water Authority, and the motion (004) by defendants Jeffrey Rubin, DDS and Northport Family Dental are consolidated for the purposes of this determination; and it is
ORDERED that defendant Suffolk County Water Authority's motion for an Order pursuant to CPLR 3212, granting summary judgment dismissing the complaint against it, is granted; and it is
ORDERED that defendants Jeffrey Rubin, D.D.S. and Northport Family Dental's motion for an Order pursuant to CPLR 3212, granting summary judgment dismissing the complaint against them, is granted.
Plaintiff commenced this action to recover damages for injuries she allegedly sustained on November 29, 2012, as a result of a trip and fall accident which occurred on the sidewalk adjacent to the premises known as 265 Main Street, Northport, New York. The complaint alleges that plaintiff was caused to trip and fall on a metal water valve cover owned by the defendant Suffolk County Water Authority (SCWA) that was dangerously constructed, placed improperly, and was not flush with the sidewalk. The complaint further alleges that the brickwork was improperly placed by defendants Jeffrey Rubin, D.D.S. and Northport Family Dental, which caused the water valve cover to abut upward, out of the sidewalk. Plaintiff Philip Clementi brought a derivative claim for loss of services.
SCWA now moves for summary judgment in its favor dismissing the complaint and all cross claims against it on the grounds that plaintiff is unable to identify what caused her to fall, and that it did not have a duty to maintain the brickwork that allegedly caused plaintiff's fall. SCWA also argues that it did not create or have notice of the alleged defect or derive a special use from the public way. SCWA's submissions in support of its motion include copies of the pleadings and the notice of claim; the transcript of plaintiff Madeline Clementi's General Municipal Law §50-h testimony; transcripts of the deposition testimony of Madeline Clementi, Jeffrey Rubin and Richard Reinfrank; a photograph of the sidewalk; and an affidavit of Frederick Berg.
Defendants Jeffrey Rubin, D.D.S., and Northport Family Dental (hereinafter the Rubin defendants) also move for summary judgment dismissing the complaint and any cross claims against them, arguing that plaintiff is unable to identify the cause and location of her fall, that they had no duty to maintain the sidewalk where plaintiff fell, that they did not create the alleged defective condition, and that, even if the Court were to find that there existed a dangerous condition where plaintiff fell, there is no causal connection between any arguable dangerous condition and any action on their part. In support of their motion, they submit copies of the pleadings and the parties' deposition testimony.
Plaintiffs oppose both motions, arguing triable issues of fact exist as to whether defendants are concurrently liable for plaintiff's injury.
At her General Municipal Law §50-h examination, plaintiff Madeline Clementi (hereinafter plaintiff) testified that on November 29, 2012, at approximately 7:30 p.m., she and her husband parked on Main Street in Northport Village. She testified that after she exited the car, she walked two steps backward, she tripped and fell to the ground adjacent to the building known as 265 Main Street. She testified that she fell as a result of the back of her shoe making contact with a metal plate sticking up in the brick sidewalk. Plaintiff testified that at the time of her accident it was dark outside, that she did not see the metal plate either before or after she fell, and that she did not look at the ground prior to stepping out of her car. She testified that when she was on the ground she knew that she fell on something. Plaintiff testified that her husband was in the car when she fell, that he exited the car and helped her up, and that they walked to the theater. She further testified that due to her pain, they left the theater and neither of them returned to look at the area where she fell.
Similarly, at her examination before trial, plaintiff testified that on the accident date, she tripped backwards and fell onto the ground on the sidewalk area adjacent to where her vehicle was parked on Main Street in Northport. She testified that she did not know what caused her to fall, nor did she see anything sticking out of the ground where she fell. Plaintiff testified that after she fell, she did not look to see what may have caused her to fall, but that she learned sometime after her accident by looking at photos of the area. She testified that at the time she fell, it was dark outside, and that she never returned back to the area to look at what may have caused her to fall. Plaintiff testified that a friend took pictures of the area, but that she never gave him an address of the area where she believed she fell prior to having the pictures taken. She testified that she believed she fell on a metal water pipe because her husband told her that he thought she fell on it. Plaintiff also testified that she assumed she fell over the water pipe after she saw some pictures of it, but that she, herself, never saw the area. Upon being shown photographs, she further testified that the she did not know where the water pipe was located, whether the water pipe upon which she fell was depicted, nor whether the photographs depicted the same water pipe or different ones. Plaintiff testified that she never previously walked in that area, nor had she ever complained about it or the water pipe. She testified that when the accident occurred she did not know whether the material she stood upon was brick, concrete, or asphalt.
At his examination before trial, plaintiff Philip Clementi (hereinafter Clementi) testified that on the accident date he parked his car on Main Street in Northport. He testified that his wife exited the car and stood on the brick sidewalk while he moved the car approximately one foot forward and away from a fire hydrant. Clementi testified that when he got out of the car, his wife was on the ground, approximately four feet from the front of his car, and he went over to help her. He testified that when he picked his wife up from the ground, he saw a metal pipe sticking up over the brick near the area and told his wife that is what she might have tripped on. Clementi testified that even though it was dark outside, he could see the light reflected in the shadow of the pipe. He further testified that when his wife told him she tripped on something, he assumed she tripped on the metal pipe. Clementi testified that he saw brick sidewalk around the pipe, and that it looked like the brick was in sand and the pipe was on an angle sticking up approximately one inch.
At his examination before trial, defendant Jeffrey Rubin testified that he owned the property known as 265 Main Street, Northport, at which he operated his business, Northport Family Dental, on the incident date, and that he had owned such property since the 1990s. He testified that sometime between 1996 and 1998, at the direction of Northport Village, he contracted with a company to install brickwork in the sidewalk abutting his property. Rubin testified that the village conducts maintenance of the area, but that if a brick was missing, he would have to replace it. He testified that he never complained to anyone about the condition of the metal valve cover nor did anyone make any complaints about it to him. Rubin testified that the bricks appeared to have a slight depression surrounding the metal water cover, and that, after they were first installed, SCWA placed the valve cover above the level of the brick so that it was not flush by about half an inch.
At his examination before trial, Richard Reinfrank testified on behalf of defendant SCWA. He testified that he is the director of field operations for the customer service department since 2013, and that prior to his employ. Clifford Foy held the position in 2012. Reinfrank testified that SCWA started an investigation into the incident in February 2013 when a field representative was sent to the site, and as a result of the investigation a report was filed. He testified that he never personally observed the area, but that according to the filed report, it indicated that the water valve box and cover were level, but that the brick work around it was not level. Reinfrank testified that SCWA did not have a custom of inspecting valves regularly unless they received a complaint, but that they regularly tested the valves and if they observe something wrong at that time it is addressed. He also testified that if a water valve is at proper grade, but brickwork surrounding it is not, then it is the responsibility of the municipality to fix it when it was not the result of SCWA construction. Reinfrank testified that there were no previous complaints regarding the water valve at the subject Nothport sidewalk location.
In his sworn affidavit, Frederick Berg avers that he has been employed by the SCWA since 1986 and is currently the deputy director of construction and maintenance, in whose capacity he has access to the records maintained by SCWA regarding complaints, maintenance, inspection and repair related to water boxes, covers, valves and lids. Berg avers that SCWA owns the metal water valve cover, box and lid on the public sidewalk adjacent to Northport Family Dental, and that the water valve's purpose is to control the water supply to the fire hydrant on the sidewalk. He further avers that the SCWA does not own, did not install, and is not responsible for maintaining the sidewalk surrounding the metal water valve, and that SCWA did not receive any complaints or accident reports related to the water valve, hydrant or sidewalk abutting Northport Family Dental.
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). "[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" ( George Larkin Trucking Co. v Lisbon Tire Mart , 185 AD2d 614, 615, 585 NYS2d 894 [4th Dept 1992]). If the moving party meets this burden, the burden then shifts to the opposing party, who must demonstrate evidence of the existence of a material issue of fact (see Alvarez v Prospect Hosp ., 68 NY2d 320, 508 NYS2d 923 [1986]; Zuckerman V City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]). The failure of the moving party to make this prima facie showing requires denial of the motion ( Winegrad v New York Univ. Med. Ctr., supra). Since the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and ail inferences that may be drawn are to be accepted as true (see Roth v Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O'Neill v Town of Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]).
An owner or possessor of real property has a common law duty to maintain such property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the potential injury, and the burden of avoiding the risk ( Peralta v Henriquez , 100 NY2d 139, 144, 760 NYS2d 741 [2003]; Basso v Miller , 40 NY2d 233, 241, 386 NYS2d 564 [1976]). To establish liability in a trip-and-fall action, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (see Bradish v Tank Tech Corp ., 216 AD2d 505, 628 NYS2d 807 [2d Dept 1995]; Gaeta v City of New York , 213 AD2d 509, 624 NYS2d 47 [2d Dept 1995]). In addition to notice, the plaintiff must also demonstrate that the alleged dangerous condition was the proximate cause of his or her injury (see Dapp v Larson , 240 AD2d 918, 659 NYS2d 130 [3d Dept 1997]). Where a plaintiff is unable to give a specific reason for the cause of an alleged accident he or she may not recover based on pure speculation (see Hunt v Meyers , 63 AD3d 685, 879 NYS2d 725 [2d Dept 2009]; Visconti v 110 Huntington Assoc., 272 AD2d 320, 707 NYS2d 884 [2d Dept 2000]; Barland v Cryder House , 203 AD2d 405, 610 NYS2d 554 [2d Dept 1994]).
Both SCWA and the Rubin defendants established their entitlement to summary judgment as a matter of law. SCWA and the Rubin defendants each met their burden by independently submitting deposition testimony showing that plaintiff was unable to identify the cause of her fall without engaging in speculation (see Hunt v Meyers , supra; Visconti v 110 Huntington Assoc ., supra). Plaintiff's testimony revealed that she fell her foot bump something sticking up in the ground, but that she never looked at the area either before or after her fall. The testimony further revealed that after her fall, she never returned to the scene to observe the area in which she fell, and that she only "assumed there was something" that caused her to fall when her husband told her there was something sticking out of the ground. Plaintiff was not able to identify the object when shown a photograph, other than to guess it was the water pipe she fell upon. Moreover, plaintiff's husband testified that he never witnessed plaintiff fall; rather, he stated that he only observed the shadow of a pipe reflected in an area on the ground near the location of plaintiff's fall and surmised that she must have tripped on it.
Plaintiffs' submissions in opposition failed to show that other possible causes for the fall, like a simple misstep or loss of balance, were sufficiently remote (see Deal v Woods , 48 AD3d 1093, 851 NYS2d 772 [4th Dept 2008]; O'Connor v Lakeview Assocs., LLC, 306 AD2d 518, 761 NYS2d 858 [2d Dept 2003]; Collins v City of New York , 305 AD2d 529, 759 NYS2d 349 [2d Dept 2003]; Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 753 NYS2d 470 [1st Dept], lv dismissed in part, denied in part 100 NY2d 636, 769 NYS2d 196 [2003]; cf. Stanojevic v Scotto Bros . Rest. Enters., 16 AD3d 575, 792 NYS2d 147 [2d Dept 2005]). Moreover, mere speculation as to the cause of plaintiff's fall is insufficient to conclude that the alleged dangerous condition was the proximate cause of her fall (see Vojvodic v City of New York , 148 AD3d 1086, 41 NYS3d 534 [2d Dept 2017]; Louman v Town of Greenburgh , 60 AD3d 915, 876 NYS2d 112 [2d Dept 2009]). Inasmuch as both defendants met their burden in establishing plaintiff's inability to identify the source of her fall, there is no need for the Court to address defendants' remaining arguments.
Accordingly, the motion by defendants Jeffrey Rubin, D.D.S., and Northport Family Dental and the motion by SCWA for summary judgment dismissing the complaint are granted. Dated: April 5, 2019
/s/_________
J.S.C.