Opinion
000891-09.
November 17, 2010.
ARDITO ARDITO, L.L.P, Franlin Square, New York, Att: John A. Ardito, Esq., Attorney for Plaintiff.
WHITE, QUINLAN STALEY, L.L.P./ The Villages at Huntington Development Corp., Garden City, New York, LAW OFFICES OF VINCENT D. MCNAMARA/ The Villages West Homeowners Association, Inc., East Norwich, New York, PEREZ VARARO/ Barbash Real Estate Company, Uniondale, New York, Attorney for Defendants.
The following papers having been read on this motion:
Notice of Motion (Summary Judgement) 1 Opposition. 2 Reply 3 Notice of Motion (Consolidate) 4 Partial Opposition 5 Cross Motion (Summary Judgement) 6 Opposition 7 Reply 8 Cross Motion 9
........... .................................... .......................................... ................. ............................. ............... ..................................... .......................................... ...................................Motion in a negligence action by defendants, The Villages at Huntington Development Corp., The Villages West Development Corp., and McGovern-Barbash Associates, LLC, for an Order pursuant to CPLR § 3212 awarding summary judgment dismissing the Complaint of the plaintiff, William J, Harding, Sr., for injuries sustained in a slip and fall accident on premises known as Villages West, is granted and the Complaint is dismissed. The cross claims between defendants are rendered moot.
Motion by plaintiff for an Order consolidating second cause of action against NAI Long Island, and an Order pursuant to CPLR § 3126 striking Verified Answer of the defendants for willful failure to respond to plaintiff's discovery demands, is rendered moot.
Cross Motion by defendant, The Villages West Home Owners Association, Inc. and NAI Long Island for an Order pursuant to CPLR § 3212 dismissing all cross claims against them, is rendered moot.
Cross Motion by defendants, The Villages West Home Owners Association, Inc. ("HOA") and NAI Long Island ("NAI") for an Order pursuant to CPLR § 3212 granting Summary Judgment dismissing plaintiff's Complaint against them for injuries sustained in a slip and fall accident on defendants' property, is granted.
Plaintiff commenced the first action by filing a summons and complaint in January, 2009, alleging that defendants, real estate developers, were negligent in that they allowed snow and ice to accumulate on the walkway/parking area, failed to install guard rails along the berm, and prohibited plaintiff from parking in an area closer to his assigned post. In March, 2010, plaintiff commenced the second action against NAI, setting forth the same facts and allegations as the first action, adding that NAI is liable to plaintiff as HOA's managing agent. FACTS
On February 15, 2007, plaintiff, while on duty as a security guard assigned to man the gatehouse of the Villages West gated community, sustained injuries when he slipped and fell on snow and ice while taking his usual shortcut through a sloped landscaped earthen berm to the cul-de sac where he parked his vehicle upon reporting for work. After parking his car, plaintiff would have to climb up the berm by holding on to trees and shrubs to get to his assigned gatehouse post.
According to plaintiff, who worked the 4:00 p.m. to 12:00 a.m. shift on that date, there was an ice storm in progress when he arrived at work. Shortly after his arrival, plaintiff left his post and descended the berm to assist his departing coworker with de-icing his vehicle, which was also parked in the cul-de-sac. When he reached the base of the berm, plaintiff, while still on the dirt surface, slipped and fell on snow and ice. He was able to get up, ascend the berm to return to his post, and continue working through his shift. Shortly before the end of his shift, he descended the berm to deice his vehicle when he slipped and fell on ice and snow a second time. It is noted that he was again standing on the dirt surface in essentially the same area where he previously fell. Consequently, he sustained injuries to his neck, pelvic area, hand and back. The second fall gives rise to the underlying matter.
At the time of the accident, plaintiff was an employee of MCI with whom Villages West at Huntington contracted to provide security services. Initially, plaintiff and the 4 or 5 other guards who worked in the complex, parked their vehicles in the "turn-around" area in the back of gatehouse. After a few months, HOA prohibited them from parking in that area due to complaints from the residents. Plaintiff claims that he was directed to park in the cul-de-sac which was about 200 yards away from the post. Defendants deny issuing any such directive while alleging that there were other areas where plaintiff could have parked which were closer to his post. Plaintiff stated that he took the shortcut through the berm for about three months.
As the first motion by defendants, The Villages at Huntington Development Corp., The Villages West Development Corp., and McGovern-Barbash Associates, LLC, impact the viability of the pending related motions and cross motions, the Court will first address their motion regarding the first cause of action. The bases of their summary judgment motion is that they owed no duty to the plaintiff as they did not own the property at the time of the accident, they lacked actual and/or constructive knowledge of the condition that caused the injury, they did not create the hazardous condition that caused the injury, and they owed no duty to plaintiff to maintain the berm as it was not a pathway and/or walkway nor were they aware that plaintiff and his coworkers were using it to access their vehicles.
Defendants submit deposition transcripts of the plaintiff; George Dowd, the project manager of Villages West at Huntington; Timothy Stapleton, the senior property manager of NAI; William Borruso, president of HOA; and Susan Barbash, a representative of Barbash Associates, LLC. In addition, defendants submitted copies of deeds showing transfers of the subject premises from McGovern-Barbash Associates, LLC to Villages West Development Corp in 2002, and from Villages West Development Corp. to HOA in 2005. In opposition, plaintiff submits his affidavit, and an expert affidavit from an engineer alleging that the berm was a well worn pathway and its construction constituted a hazard created by the defendants.
A Court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is; therefore, entitled to summary judgment as a matter of law ( Alvarez v. Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial ( Miller v. Journal-News, 211 AD2d 626 [2nd Dept. 1995]).
The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issue of fact ( Ayotte v. Gervasio, 81 NY2d 1062). If this initial burden has not been met, the motion must be denied without regard to the sufficiency of the opposing papers ( Alvarez v. Prospect Hospital, 68 NY2d 320, supra; Miceli v. Purex, 84 AD2d 562 [2d Dept. 1981])
Once the this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form, sufficient to create material issues of fact requiring a trial. Mere conclusions and unsubstantiated allegations or assertions are insufficient ( Zuckerman v. City of New York, 49 NY2d 557, 562) even if alleged by an expert ( Alvarez v. Prospect Hospital, 68 NY2d 320 supra; Aghabi v. Serbo, 256 AD2d 287 [2nd Dept. 1998]).
A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie case that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (See Sloane v. Costco Wholesale Corp., 49 AD3d 522 [2nd Dept. 2008]).
It is well settled that to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837). It is also well settled that a property owner who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition (see Petri v. Half Off Cards, 284 AD2d 444 [2nd Dept 2001]); Osorio v. Wendell Terrace Owners Corp., 276 AD2d 540 [2nd Dept 2000]; Benn v. Municipal Hous. Auth. for City of Yonkers, 275 AD2d 755 [2nd Dept 2000])
Although it may be prudent to dispose of the case as to defendants, The Villages at Huntington Development Corp., The Villages West Development Corp., and McGovern-Barbash Associates, LLC as their argument that they were not owners of the premises at the time of plaintiff's accident, is unopposed and not controverted, the merits of the Complaint have to be addressed as NAI was named as an additional defendant and there is a pending motion to consolidate both actions. Further, there are motions and cross motions that are related thereto.
The defendants' evidence indicates that the berm was not a walkway or path for pedestrians, that they were unaware that the security guards were using it as a shortcut, and that such use was not foreseeable as there was no directive issued to the guards to park in the area abutting the berm. Mr. Stapleton testified that he did not know where the 4 or 5 guards parked their vehicles nor were they directed to park in any particular area. They were only directed not to park in the turnaround areas abutting the gatehouse. (Notice of Motion, Exhibit H, Tr. Stapleton, p. 57 12-25, 58, 1-15, 59., 1-14). Further he testified that there were no stepping stones or paths in the berm (Exhibit H p. 65, In. 18-20). Mr. Borruso's testimony indicated that he only learned that the security personnel used the berm to access their parked cars when the defendants were served papers regarding the instant matter (Notice of Motion, Tr., Borruso, Exhibit J, p. 19, ln. 23-25; p. 20 ln. 1-23). He testified that he was not aware of any well worn path area in the berm (Notice of Motion, Exhibit J, Tr. Borruso p. 21, ln. 1-14). Ms. Barbash also testified that she was unaware of any security personnel using the berm as a shortcut or of any other person using it for that purpose.
The plaintiff's own testimony describing the physical appearance of the berm and his reasons for using it, also supports defendants' arguments that the berm was not intended for use as a walkway. He testified that the slope of the berm was so steep that ". . .[he] had to hold on to some of the bushes getting up and down" (Notice of Motion, Exhibit G, Tr. Harding, p. 39, ln. 9-16). He also indicated that he was still on the dirt and holding on the bushes when he fell (Notice of Motion, Exhibit G, Tr. Harding p. 53, ln. 16-25, p. 54, In. 1-5). The movants are therefore entitled to summary judgment as they had no duty to maintain free of snow and ice an unpaved area that was not intended to be a public walkway ( see Rosenbloom v. City of New York, 254 AD2d 474).
In opposition, plaintiff has failed to raise a triable issue of fact. He did not provide any evidence that the berm was in a decayed or dangerous condition, or so maintained that it constituted a trap or a nuisance. The danger, if any, came from the snow and ice accumulating on the berm and not from any affirmative act of the defendants. An accident such as the one suffered by plaintiff, was not within the foreseeable anticipation of defendants (see Merriman v. Baker 34 NY2d 330).
Plaintiff did not produce any writing directing him and his co workers to park in the cul-de-sac and he only testified that the cul-de-sac was "pointed out" as place where "[he] could park" (Notice of Motion, Exhibit G. Tr. Harding, p. 37 Ln, 15-22) Even if directed to park there, there is no evidence to conclude that the guards were forced to take a shortcut through landscaping to get to their cars. Plaintiff also contends that defendants knew he usually cut through the berm, but he did not submit any evidence to support this. Mere conclusory allegations, expressions of hope, or unsubstantiated assertions may not defeat a motion for summary judgment. (see Carleton Studio, Ltd. v. Mony Life Ins. Co., 18 AD3d 491 [2nd Dept 2005]).
It is noted that plaintiff alleges with certainty in his affidavit in opposition, that he observed that the sidewalks were covered in snow and ice, implying that he was forced to use the berm as a result. When asked during deposition if the roads were plowed or sanded, he responded, "No, I don't think they were" (Notice of Motion, Exhibit G, Tr. Harding, p. 42, ln. 24-35, p. 43, ln. 1-3). Because he also testified that he stayed in the gatehouse for the entire tour, it is unlikely that he would have opportunity to observe whether the walkways and sidewalks were plowed or sanded before he walked to his car.
Generally, the court's role in a motion for summary judgment is not one of resolving issues of credibility. Further, courts have held that any inconsistencies that may exist between the deposition testimony of the plaintiff and the plaintiff's affidavit submitted in opposition to the summary judgment motion, generally present credibility issues for trial (see Knepka v. Tallman, 278 AD2d 811 [4th Dept. 2000]; Yaziciyan v. Blancato, 267 AD2d 152 [1st Dept. 1999]). However, it has also been established that where self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of his earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendants' motion for summary judgmen(see Phillips v. Bronx Lebanon Hosp., 268 AD2d 318 [1st Dept 2000]; see also Wright v. South Nassau Communities Hosp. 254 AD2d 277 [2nd Dept 1998]).
Plaintiff's affidavit in opposition, taken together with the string of cases he cited, purports to conform the facts of his case to the case law for purposes of rehabilitating his prior testimony. His testimony indicated that he cut through the berm because it was a shorter and direct route. He never mentioned the condition of the streets and walkways as being the reason he took the shortcut.
Further, the testimony of Robert Liss, professional engineer, concludes that the route taken by the plaintiff was a well worn pathway used by him and his co workers, but offers no reason for his conclusion. Although the design of the berm may cause a freezing condition, this does not avail if the area was not meant to be a walkway and management had no knowledge that it was being used as a walkway. He also states that the employees were told to park in the cul-de-sac but neither he nor plaintiff submitted any evidence to support this. In any event, the expert's affidavit was conclusory, failed to set forth foundational facts, assumed facts not supported by the evidence, and failed to recite the manner in which he came to his conclusions (see Ioffe v. Hampshire House Apt. Corp., 21 AD3d 930; see also Brady v. Bisogno Meyerson 32 AD3d 410 [2nd Dept 2006]).
In addition, according to plaintiff's testimony, his only concern regarding accessing his car on the day of the accident, was using the shortcut; "No. It wasn't matter of walking on the sidewalks, it was the distance that it took to [walk to the car]. . . . When we first went in we would ride and park our car. Now you're talking about rather than walking on the sidewalk, yes, instead of going back this way again we took the shortcut up into the gatehouse" (Notice of Motion, Exhibit G, Tr. Harding, p. 39, ln. 9-16). He also chose to cut through the berm again, after he had already fallen once on that day.
Accordingly, the defendants established their entitlement to summary judgment and the plaintiff failed to submit any evidence to raise a triable issue of fact. Accordingly, the defendant's motion for summary judgment dismissing the complaint is granted. As defendants, HOA and NAI set forth the same arguments to support its cross motion for Summary Judgment dismissing the Complaint against them, in view of the foregoing, their motion is granted and the second Complaint as to NAI is dismissed.
All related cross claims, and pending motions are therefore rendered moot.
This constitutes the decision and order of the Court.