Opinion
No. 61590.
05-16-2017
Jon E. COVALS, Plaintiff, v. Adam CASEY and Tadd Casey d/b/a The Full Moon Bar & Grill and Karen Sommer, Defendants.
Brennan & White, LLP, Queensbury (Joseph R. Brennan of counsel), for plaintiff. Towne, Ryan & Partners, P.C., Albany (Claudia A. Ryan of counsel), for defendants.
Brennan & White, LLP, Queensbury (Joseph R. Brennan of counsel), for plaintiff.
Towne, Ryan & Partners, P.C., Albany (Claudia A. Ryan of counsel), for defendants.
ROBERT J. MULLER, J.
Defendants, Adam Casey and Tadd Casey d/b/a The Full Moon Bar & Grill [hereinafter Full Moon] operate a tavern in the Town of Queensbury at a premises they lease from the co-defendant Karen Sommer [hereinafter Sommer]. They move for summary judgment in this slip and fall which occurred in the defendants' parking lot on the evening of February 13, 2014, asserting that the parking area was reasonably maintained to be free of hazardous conditions and, alternatively, that if hazards were present, they lacked actual or constructive notice of them. The defendant Sommer also moves for summary judgment on an independent theory that she is an out of possession landowner. Under her lease agreement she is not responsible for any maintenance of the building or of the parking lot. There is no opposition to the Sommer motion.
At depositions plaintiff testified he went out with a friend to another Queensbury tavern at approximately 5:00 p.m. and stayed there for about an hour before leaving for the Full Moon. Upon their arrival, he exited the passenger side of the truck, walked around the back of the vehicle and headed without incident into the Full Moon. He described "little ice ponds" everywhere in the parking lot, did not make any complaints of this to anyone in the Full Moon, had one beer, and headed back to the vehicle. He testified that as he walked around the back of the vehicle he had some difficulty because the area was slippery and he could see ice patches which required him to hold on to the vehicle as he walked around toward the passenger side. In this process his legs went out from under him and his shoulder hit the running board of the vehicle. Afterwards he needed to be helped into the passenger seat.
Defendant Tadd Casey testified that he was working the date of the accident, had arrived at the bar at approximately 10:30 a.m. on February 13, 2014 and, in walking through the parking lot that morning he noticed no ice ponding in the parking lot nor any snow accumulations. This defendant further emphasized he walked the same areas upon which the plaintiff had traveled. Again, at approximately 5:30 p.m. this defendant had briefly left the Full Moon, returning by 6:00 p.m., walking through the same portion of the parking lot and not seeing any ice or snow at that time. This testimony revealed that shortly after the plaintiff left the tavern another patron alerted the defendants that the plaintiff was having difficulty getting into his vehicle—with the plaintiff indicating in an outside encounter with Tadd Casey that "his legs weren't working" but not also adding that he had fallen due to ice.
Defendants claim that no other patron made complaints regarding the condition of the parking lot on the date of the incident. The testimony also reveals that an employee of the Full Moon was responsible for sanding and salting the premises, that the lot was plowed regularly by a contractor who performed that specific task, and that there were also buckets of a sand and salt mixture on the premises for use over the parking areas as necessary. There are no records or testimony presented to demonstrate that the employee responsible for sanding and salting the premises actually did so on any particular occasion prior to February 13, 2014 or even on that date.
In opposition the plaintiff submits an affidavit of the friend accompanying him on this evening-offering a description of the conditions of the parking which contradicts the movant's evidence. The plaintiff further submits his own affidavit contradicting the movants' evidence together with an opposing affidavit of Certified Consulting Meteorologist, Alicia C. Wasula, who opines based upon her review of meteorological records that the last significant snowfall prior to February 13, 2014 was on February 5, 2014 and that the air temperature had not been above freezing following the end of the snowfall on February 5, 2014 and up to the time of the plaintiff's fall.
For defendants to prevail on their summary judgment motion they are "required to establish as a matter of law that they maintained the property in question in a reasonably safe condition and that they neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof" (Mokszki v.. Pratt, 13 AD3d 709786 N.Y.S.2d 222[2004]; Richardson v. Rotterdam Sq. Mall, 289 A.D.2d 679, 679,734 N.Y.S.2d 303 [2001] ). Furthermore, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). The defendants' evidence on this motion does not eliminate all triable issues of fact when viewing the evidence in the light most favorable to the plaintiff and drawing all reasonable inferences in his favor (see Negri v. Stop and Shop, 65 N.Y.2d 625, 491 N.Y.S.2d 151, 480 N.E.2d 740 ; Brandes v. Incorporated Village of Lindenhurst, 8 AD3d 315, 777 N.Y.S.2d 720 ). The Court therefore concludes that the defendants failed to establish their entitlement to summary judgment (see Clark v. Chau Shing Wong, 293 A.D.2d 640, 740 N.Y.S.2d 443 ; Sweeney v. D & J Vending, 291 A.D.2d 443, 737 N.Y.S.2d 388 ; Chin v. Harp Mktg., 232 A.D.2d 601, 648 N.Y.S.2d 697 ) and this failure requires denial of the motion regardless of the sufficiency of the opposing papers (id.).
Lastly, the argument in the reply papers concerning a storm in progress defense is not being considered in this analysis. It is well established that an argument cannot be raised for the first time in reply papers (see US Bank N.A. v. Thurm, 140 AD3d 1578, 1578 [2016] ; Jones v. Castlerick, LLC, 128 AD3d 1153, 1154 [2015] ; see also Duran v. Milord, 126 AD3d 932, 933 [2015] ; Jackson–Cutler v. Long, 2 AD3d 590, 590 [2003] ). Indeed, " ‘reply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion" ( Jones v. Castlerick, LLC, 128 AD3d at 1154, quoting N.A.S. Partnership v. Kligerman, 271 A.D.2d 922, 923 [2000] ). Here, plaintiff was " ‘not afforded an opportunity to address the new argument and, in addition, the record was not sufficiently developed to resolve such issues as a matter of law" ( Jones v. Castlerick, LLC, 128 AD3d at 1154, quoting Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827 [2008] ). The Court has therefore disregarded the argument.
Therefore, having considered the Affirmation of Claudia A. Ryan, Esq., dated January 26, 2017 submitted in support of the motion together with Exhibits "A" through "I", the Affidavit of Tadd Casey sworn to January 24, 2017, the Memorandum of Law of Claudia A. Ryan, Esq., dated January 26, 2017, submitted in support of the motion, the Affidavits in Opposition of Joseph R. Brennan, Esq., sworn to March 15, 2017, Todd Baxter, sworn to March 9, 2017, Jon E. Covals, sworn to March 10, 2017, and Alicia C. Wasula, Ph.D. sworn to March 10, 2017, with exhibits, submitted in opposition to the motion, the Memorandum of Law of Joseph R. Brennan, Esq. dated March 15, 2017, submitted in opposition to the motion, the Reply Affirmation of Claudia A. Ryan, Esq., dated March 28, 2017 and the Reply Memorandum of Law of Claudia A. Ryan, Esq. dated March 28, 2017, submitted in further support of the motion and oral argument held before the Court on May 12, 2017, with Caitlin A. Goetz, Esq. appearing in support of the motion and Joseph R. Brennan, Esq. appearing in opposition thereto, it is hereby
ORDERED that the motion of defendants Adam Casey and Tadd Casey d/b/a The Full Moon Bar & Grill is denied in its entirety, and it is further
ORDERED that motion of defendant Karen Sommer is granted in its entirety, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated January 26, 2017. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.