Opinion
804822/2014
10-27-2016
Jeanne Fumerelle, Plaintiff, v. Visone Bros., Inc., LAKEFRONT CONSTRUCTION CO. INC., AND JOHN VISONE, Defendants. VISONE BROS., INC., LAKEFRONT CONSTRUCTION CO., INC., AND JOHN VISONE,Third-Party Plaintiffs v. FNH AND BJH, INC.,Third-Party Defendants.
SCOTT ORNDOFF, ESQ. Attorney for Plaintiff, Jeanne Fumerelle MICHAEL A. RIEHLER, ESQ. Attorney for Defendant, Visone Bros., Inc.,Lakefront Construction Co. Inc., and John Visone (Formerly Defendants/Third-party Plaintiffs) PHILIP C. BARTH, III, ESQ. Attorney for Defendant, FNH and BJH, Inc. (Formerly Third-party Defendant)
SCOTT ORNDOFF, ESQ. Attorney for Plaintiff, Jeanne Fumerelle MICHAEL A. RIEHLER, ESQ. Attorney for Defendant, Visone Bros., Inc.,Lakefront Construction Co. Inc., and John Visone (Formerly Defendants/Third-party Plaintiffs) PHILIP C. BARTH, III, ESQ. Attorney for Defendant, FNH and BJH, Inc. (Formerly Third-party Defendant) Emilio Colaiacovo, J.
This action arises out of a fall down accident which occurred on September 25, 2013. At that time, Plaintiff, Jeanne Fumerelle, was intending to step from a sidewalk, off a curb and onto the surface of a parking lot. As stated in the affirmation of her counsel, Plaintiff:
"alleges two theories of recovery: (1) that the sidewalk/curb were in a dangerous condition because of an excessive variation in the curb height and slope, and (2) that the property lacked an accessible means of ingress/egress (i.e., a ramp) for disabled persons."
Defendants, Visone Brothers, Inc., Lakefront Construction Co., Inc. and John Visone (hereinafter referred to as "Lakefront") and Defendant, FNH and BJH, Inc. (hereinafter referred to as "FNH"), owned property in the area of Plaintiff's fall. (McDonald's Corporation was the prior owner of that portion now owned by FNH. A McDonald's restaurant existed, and still exists, in the plaza where Plaintiff's accident occurred.)
Lakefront moves and FNH cross-moves for summary judgment dismissing the complaint and all cross-claims on the grounds that Plaintiff is unable to specify where she fell or what caused her to fall, no defect existed in the area of Plaintiff's fall, there is no evidence of any causal connection between any alleged defect and Plaintiff's fall, and the Americans with Disabilities Act does not create a private right of action. Additionally, Lakefront moves for summary judgment against FNH on the ground that §5-332.1 of the General Obligations Law precludes any claim for contractual indemnification under a contract referred to herein as the "encroachment agreement".
Pursuant to Plaintiff's notice of cross-motion, Plaintiff seeks summary judgment in her favor on the issue of comparative negligence. The supporting affirmation of Plaintiff's counsel, however, states that Plaintiff also cross-moves for summary judgment on the issue of proximate cause.
Procedurally, counsel stipulated to amendment of the complaint to name FNH as a main Defendant in the primary action. All counsel agree that even though the caption was inadvertently not changed to reflect this stipulation, Lakefront and FNH are now co-Defendants.
"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 demonstrate the absence of any material issues of fact. Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). On a motion for summary judgment, the Court must "view the evidence in the light most favorable to the nonmoving party." Coffed v. McCarthy, 130 AD3d 1436 (4th Dept. 2015).
The Court finds that Defendants have established their entitlement to summary judgment and no triable fact issues have been raised sufficient to defeat the motions. Additionally, the Court finds that Plaintiff has not established her entitlement to summary judgment.
Defendants met their initial burden by establishing as a matter of law that Plaintiff,
"was unable to specify what caused her to fall without engaging in speculation. Although in a circumstantial evidence case a plaintiff is not required to exclude every other possible cause of the accident but defendant's negligence, plaintiff's proof must render those other causes sufficiently remote or technical to enable the jury to reach a verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence."Smart v. Zambito, 85 AD3d 1721 (4th Dept. 2011).
In the instant action, Plaintiff, who was 81 years old at the time of the accident, testified that she stepped down, lost her balance and fell. Specifically, Plaintiff stated, "All I remember is I lost my balance." When asked what caused her to lose her balance, Plaintiff stated, "Stepping down, probably." When cautioned against guessing, she acknowledged that she could not say what caused her to lose her balance. Plaintiff reiterated, "I remember just losing my balance and going down." Despite many opportunities to elaborate on the mechanism of her fall, Plaintiff repeatedly limited her response to having lost her balance.
Plaintiff also admitted to having lost her balance on other occasions at another location on the property, which is not at issue in the case. In response to defense counsel's question as to why she would not step into the parking lot near the back of the building, Plaintiff testified, "There isn't enough room. I would lose my balance there also."
Plaintiff did not know, nor could she estimate, the height of the curb where she stepped down, and was unable to causally relate any feature of the curb to the happening of the accident. Furthermore, Plaintiff could not recall with which foot she initially stepped down or whether her foot ever touched the pavement of the parking lot prior to her fall. Plaintiff did not know whether she stepped on something that caused her to lose her balance, nor did she know "whether her foot slipped on anything as far as moisture, such as water, oil, or grease." Additionally, Henry Fumerelle, Plaintiff's son who was with her at the time of the incident, testified that he does not know what caused his mother to fall. Moreover, there is no evidence in the record of any complaints from any source relative to the sidewalk, curb or parking lot prior to Plaintiff's accident.
Thus, as was the case in Smart v. Zambito, the evidence establishes that,
"it is just as likely that the accident could have been caused by some other factor unrelated to any alleged negligence on defendant's part, such as a misstep or loss of balance, and thus any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation."As the Court further stated in Smart,
"it is just as likely that Plaintiff fell due to dizziness or loss of balance or by some other non-negligent factor. Negligence by the defendant cannot be presumed from the mere happening of an accident. Negligence must be proven." Smart v. Zambito, 85 AD3d 1721 (4th Dept. 2011).
In the case at bar, Plaintiff is unable to articulate what caused her to fall, other than reiterating that she lost her balance. She could not state what caused her to lose her balance and, in fact, Plaintiff acknowledged that she had lost her balance on prior occasions while navigating another area of the property. Moreover, neither during her deposition, nor in her affidavit on these motions, did Plaintiff reference any observation, sensation, physical characteristic of the scene or any other factor present at the time of her fall supportive of the claim that a differential in curb height and/or the absence of a handicapped ramp caused the accident. Under these circumstances, Defendants have met their burden under Smart v. Zambito, 85 AD3d 1721 (4th Dept. 2011) and Plaintiff has not demonstrated the existence of triable fact issues.
Defendant, Lakefront, has also moved for summary judgment on the ground that it did not own the property on which Plaintiff fell. In this regard, Plaintiff could not testify specifically as to the location of her fall. During her deposition, Plaintiff was asked to place a circle on a photograph at the general location of the accident. However, when asked to place her initials next to the circle after marking the photograph, Plaintiff stated, "Well, I don't know if that's actually the right place."
In support of this application, Lakefront relies on the testimony of Edward Zelechoski and David Visone, as well as the affidavit of Professional Land Surveyor, Michael J. Pohl, and various exhibits. Mr. Zelechoski is a supervisor for Sandy Management, a company which has managed the McDonald's on the site since 1995. Mr. Zelechoski testified that he does not know where the property line is located between the property owned by FNH (formerly owned by McDonald's Corporation) and the property owned by Lakefront.
While Mr. Visone testified that he does not know where the property line begins and ends, he nonetheless testified that Lakefront owns the stamped concrete portion of the sidewalk, but that it does not own the non-stamped concrete portion of the sidewalk.
In his affidavit, Mr. Pohl states,
" the survey shows that there is a stamped concrete walk that runs on the western side of the Lakefront property in a northerly direction the entire length of the building. The property line runs essentially down the middle of that stamped concrete walk. Therefore, a portion of the stamped concrete walk is on the property owned by Lakefront and the remaining portion is on the property formerly owned by McDonald's."
A review of the submissions demonstrates that: (1) the location of the accident has not been established on account of Plaintiff's inability to sufficiently identify where she fell; (2) consequently, neither the Pohl affidavit nor survey, establishes ownership with respect to the property on which the accident occurred; and (3) the testimony of Edward Zelechoski and David Visone likewise does not establish ownership of the property at issue.
Nonetheless, the Court finds that Defendant has met its burden on this issue under the holding in Smart v. Zambito, 85 AD3d 1721 (4th Dept. 2011). As Plaintiff has presented insufficient evidence to establish where she fell, Defendant cannot be subject to premises liability predicated on ownership of the accident location. Furthermore, the opposing parties have offered no evidence sufficient to raise triable issues of material fact in opposition to this aspect of Defendant's motion. Accordingly, Lakefront's motion is granted in this respect as well.
Defendants, Lakefront and FNH, also move for summary judgment with respect to the existence of a defective condition and the issue of proximate cause. They rely on the affidavit of Wallace J. Ochterski, P.E., who opines within the bounds of reasonable engineering certainty that "the curb/sidewalk on the west side of the shopping center at 5150 Broadway was installed and maintained properly, and was in good condition." He is of the further opinion that,
"the height and slope of the curb are within the building code requirements; that the contrast in color between the curb/sidewalk and the asphalt parking lot allows for users to have adequate sight and perception; that the Building Code of New York State (2003 Edition) sections the claimant lists are generalities and do not reflect any violations of standards and the owner of 5150 Broadway was not required by the Village of Depew building permit mandate or any complaints by users or renters or a Department of Justice investigation to make the store fronts on the west side ADA compliant or provide accessible routes to thebusinesses or general public using the building.".
Moreover, the testimony of Plaintiff's son, Henry Fumerelle, David Visone and Edward Zelechoski, establish that the curb was neither defective, nor hazardous.
In opposition, Plaintiff has submitted the affidavit of architect, Anthony Cartonia, Jr., who states that "the subject sidewalk was improperly designed and /or constructed and there is no ramp from the sidewalk to a driveway/parking area." He finds a defective condition with regard to the "excessive variation in curb height". Specifically, he contends that the curb height varied from 5 and 3/4 inches to less than 2 inches and that only a portion of the sidewalk fell within the standard curb height. Additionally, Mr. Cartonia concludes that the absence of an accessible route to the storefronts violated the federal ADA and New York Highway Law §330.
Finally, Plaintiff's expert opines to a reasonable degree of scientific and/or professional certainty that "at the time of the incident, the sidewalk area was unsafe for the purpose intended and violated various laws, codes and standards" which he references in his affidavit.
However, Mr. Cartonia gives no opinion relative to a causal connection between any alleged defect or violation, and Plaintiff's fall.
The Court finds that Defendants have met their burdens on these motions in light of the factual deficiencies relative to the location of the accident and the mechanism of Plaintiff's fall. Smart v. Zambito, 85 AD3d 1721 (4th Dept. 2011). Furthermore, Plaintiff's testimony regarding why she fell is not sufficient to create a question of fact on causation. Artessa v. City of Utica, 23 AD3d 1148 (4th Dept. 2005). Moreover, there exists an absence of any evidentiary facts or expert opinion supporting a causal connection between Plaintiff's accident and a differential in curb height or any of the alleged statutory, code or regulatory violations.
"Whether a particular height difference . . . constitutes a dangerous or defective condition, depends on the peculiar facts and circumstances of each case, including the width, depth, elevation, irregularity and appearance of the defect as well as the time, place and circumstances of the injury. There is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Whether a particular condition gives rise to liability . . . is generally an issue of fact for the jury. In some cases, however, the trivial nature of the defect may loom larger than any other element, thus justifying a court's refusal to submit the issue to a jury. In such cases, a small difference in elevation . . . will be considered too trivial to be actionable unless the defect has the characteristics of a trap, snare or nuisance." (1997); Tesak v. Marine Midland Bank, N. A., 254 AD2d 717 (4th Dept 1998), citing Trincere v. County of
Suffolk, 90 NY2d 976 (1997).
Here, Plaintiff cannot state where she fell or what caused her to fall. Moreover, the expert retained by Plaintiff offers only conclusory allegations in support of the claim of defect, with no specific causal nexus to the manner in which this particular accident purportedly occurred. By contrast, the plaintiff in Tesakwas able to state that "she fell after her foot became caught in a crevice between two slabs of concrete." Furthermore, plaintiff's expert in that case "confirmed the existence of the crevice and its role in causing the fall". Additionally, the expert in Tesak that, "the defect constituted a trap for the unwary because it was located close to the entrance to the bank, where a person's attention would be drawn to the door, not the sidewalk." No such evidence has been presented herein in opposition to summary judgment.Furthermore, no evidentiary facts or expert opinion have been submitted supporting a causal link between the absence of a handicapped ramp and the happening of the accident. Also, Defendants' claimed violation of 14 U.S.C.A. § 12188, commonly known as the Americans with Disabilities Act (hereinafter referred to as the "ADA"), which Plaintiff has offered in opposition to these motions, does not serve to raise an issue of fact sufficient to defeat summary judgment. Corbett v. Adelphia W.NY Holdings , LLC, 45 AD3d 1293 (4th Dept 2007). Accordingly, Defendants' motion must be granted in this regard.
Regarding Plaintiff's claim under the ADA, Defendants have demonstrated a prima facie entitlement to summary judgment in that it is well settled that the,
"ADA allows litigants to pursue actions only for injunctive relief, and does not provide a private right of action for monetary damages in a personal injury action. Since ADA'spurpose is to address issues of discrimination and not safety, the act should not be construed as setting a safety standard for stairs or walkways, even with respect to disabled plaintiffs."Lugo v. St. Nicholas Associates, 18 AD3d 341 (1st Dept 2005).
Plaintiff has not raised any legal argument or presented any evidentiary facts sufficient to defeat this aspect of Defendants' motions.
Defendant, Lakefront, also moves for summary judgment in its favor against Defendant, FNH, on the issue of contractual indemnification arising out of an "encroachment agreement" dated January 5, 2000 between Lakefront and McDonald's Corporation, the predecessor to Defendant, FNH. Pursuant to this agreement, the parties acknowledged that the roof of the Lakefront building encroaches 3.6 feet onto McDonald's property and Lakefront agreed to indemnify, defend and hold McDonald's harmless for any claim, expense, injury or cause of action arising out of or in any way related to the encroachment on McDonald's property.
Lakefront retained Professional Land Surveyor, Michael J. Pohl, as an expert in this matter. Mr. Pohl performed a survey of the property with respect to which he focused "primarily on the property line between the Lakefront property to the eastern side of the property line and the property formerly owned by McDonald's on the western side of the property."
As already referenced herein, Mr. Pohl states that,
"the survey shows that there is a stamped concrete walk that runs on the western side of the Lakefront property in a northerly direction the entire length of the building. The property line runs essentially down the middle of that stamped concrete walk. Therefore, a portion of the stamped concrete walk is on the property owned by Lakefront and the remaining portion is on the property formerly owned by McDonald's."
Mr. Pohl concludes that "the encroachment agreement is only applicable to the area directly underneath the overhang, which extends only 3.6 feet west of the Lakefront property line." He opines that the stamped concrete sidewalk encroaches 2.6 feet onto the former McDonald's property. He further states that it is his professional opinion with a reasonable degree of surveying certainty that "the remaining portion of the concrete sidewalk and/or curb area to the west of the face of the overhang would not be governed by the encroachment agreement."
Based on Mr. Pohl's opinions, Lakefront argues that Plaintiff fell to the west and outside of the area encompassed by the encroachment agreement and therefore the indemnification provision included in that agreement would not apply herein.
Moreover, Lakefront argues that to the extent the indemnification provision obligates it to indemnify FNH for FNH's own negligence, the encroachment agreement is void and unenforceable under General Obligations Law 5-32.1.
§5-322.1 provides as follows:
"a covenant, promise, agreement or understanding in, or in connection with . . . a contract or agreement relative to the construction, alteration, repair or maintenance of a building . . . purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable."
The Court finds that Lakefront has established its entitlement to summary judgment with respect to indemnification and that FNH has not raised any triable fact issues sufficient to defeat the motion. Charney v. Lechase Construction, 90 AD3d 1477 (4th Dept. 2011).
Regarding Plaintiff's cross-motion, the Court finds that Plaintiff has not made a prima facie showing of entitlement to summary judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact relative to the absence of comparative negligence or with respect to proximate cause. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 N.Y.320 (1986). Plaintiff's cross-motion is therefore denied.
Accordingly, the motion of Defendants, Visone Brothers, Inc., Lakefront Construction Co., Inc. and John Visone, for an order granting summary judgment in dismissing Plaintiff's Complaint and all cross-claims is GRANTED.
The cross-motion of Defendant, FNH and BJH, Inc., for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint of the Plaintiff, together with any and all cross-claims, on the ground that FNH and BJH, Inc. was not negligent in causing or contributing to Plaintiff's fall is GRANTED.
The cross-motion of the Plaintiff, Jeanne Fumerelle, for an order granting summary judgment in her favor on the issues of comparative negligence and proximate cause is DENIED.
Defendants, Visone Brothers, Inc., Lakefront Construction Co., Inc. and John Visone, shall submit an order on notice. DATED: October 27, 2016 Buffalo, New York __________________________________ HON. EMILIO COLAIACOVO Supreme Court Justice