Opinion
Index No. 601723/2019 CAL. No. 202000660OT Mot. Seq. Nos. 002 MG003 MG
03-24-2021
LUIS IDROVO, Plaintiff, v. VILLA AMOROSA LLC and EFRAIN LUCERO, Defendants.
KUJAWSK.I & KUJAWSKI, ESQS. Attorney for Plaintiff KEVIN B. FAGA, ESQ., P.C. Attorney for Defendant Villa Amorosa, LLC JAMES F. BUTLER & ASSOCIATES Attorney for Defendant Efrain Lucero
Unpublished Opinion
MOTION DATE 10/29/20
ADJ. DATE 12/3/20
KUJAWSK.I & KUJAWSKI, ESQS. Attorney for Plaintiff
KEVIN B. FAGA, ESQ., P.C. Attorney for Defendant Villa Amorosa, LLC
JAMES F. BUTLER & ASSOCIATES Attorney for Defendant Efrain Lucero
PRESENT: Hon. JOSEPH FARNETI Acting Justice of the Supreme Court
Joseph Farneti Judge
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant Lucero, dated August 18, 2020; by defendant Villa Amorosa. LLC, dated October 9. 2020; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff, dated December 3. 2020; Replying Affidavits and supporting papers December 16. 2020; Other; it is, ORDERED that the motion by defendant Villa Amorosa, LLC and the motion by defendant Efrain Lucero are consolidated for the purposes of this determination; and it is
ORDERED that the motion by defendant Efrain Lucero for summary judgment is granted; and it is further
ORDERED that the motion by defendant Villa Amorosa, LLC for summary judgment is granted.
Plaintiff Luis Idrovo commenced this action to recover for personal injuries allegedly sustained on September 6, 2018, when he tripped and fell on a portion of the sidewalk in front of the residential premises known as 68 Belford Avenue, Bay Shore, New York. The property allegedly is owned by defendant Villa Amorosa, LLC, and leased by defendant Efrain Lucero. In his complaint, plaintiff alleges that he fell due to the uneven and flooded sidewalk, that defendants were negligent in failing to properly maintain and manage the sidewalk, and that defendants had constructive notice of the defective condition of the sidewalk. Plaintiff further alleges that defendants were negligent in failing to repair the sidewalk and in failing to warn of the alleged dangerous condition, and that defendants violated a duty imposed by the Town of Islip to maintain the sidewalk.
Defendants each move for summary judgment dismissing the complaint against them on the grounds that they neither created the allegedly defective condition nor owed a duty to maintain the public sidewalk abutting the property. In support of the motions, defendants each submit the pleadings, their deposition testimony and plaintiffs deposition testimony.
Plaintiff testified that he was visiting defendant Lucero at his home. They were friends and he had visited the home before. The property was fenced in and the house had a concrete walkway running from the front gate to the front door. He parked his van on the street to the left of the front gate and walkway when he arrived at the house at approximately 6:00 p.m., and went to the outdoor shed in the backyard where his friend was cleaning. It started to rain after he arrived and rained heavily for a half an hour. It was dark when he left the house to put something in his car. After he passed through the front gate he noticed a lot of water in the area outside of the fence. He testified that water had accumulated in an area of the sidewalk that was uneven. He testified that when he was returning to the house he jumped from the left side of the gate to avoid the water on the sidewalk and landed in front of the gate opening. He testified that when he landed his left foot slipped and he fell.
Defendant Efrain Lucero testified that he lived in a house located at 69 Belfort Avenue in Bay Shore that was owned by Kevin Faga, and that he was the only tenant. He and plaintiff were childhood friends and plaintiff stopped by the night of the accident for an unplanned visit. They sat in the shed in back of the house because he was cleaning it. When they were done with the visit, plaintiff asked if he could have an aluminum post and defendant agreed. Plaintiff went to put the post in his car and defendant went into the house. Defendant Lucero stated that while in the house, he heard plaintiff scream. He went outside and found plaintiff on the ground, next to the gate. Plaintiff told him he jumped over the puddle. Defendant Lucero testified that security camera footage showed plaintiff before the fall and on the ground after the fall, but that, perhaps due to lightning, there is no footage of the actual fall. Defendant Lucero testified that he never made any repairs to the sidewalk, never saw any repairs being made to the sidewalk and never made any complaints to anyone about the condition of the sidewalk.
Kevin B. Faga testified that he is the sole member of Villa Amorosa LLC and that said entity owns the subject property. He stated that defendant Lucero rents the home. He testified that Villa Amorosa has never done maintenance or repairs to the sidewalk, never complained to a municipal entity about the sidewalk, and never received any complaints about the sidewalk.
"Generally, liability for injuries sustained as a result of negligent maintenance or the existence of a dangerous and defective condition to the public sidewalk is placed on the municipality'' and not the abutting landowner (Hausser v Guinta, 88 N.Y.2d 449, 452-452, 646 N.Y.S.2d 490 [1996]). However, liability for injuries suffered by a pedestrian due to a defect in a public sidewalk may be imposed on the abutting landowner where the landowner affirmatively created the alleged defective condition, caused the defective condition through a special use of the sidewalk or violated a statute or ordinance which expressly imposes liability on the abutting landowner for failure to maintain the sidewalk (id.; see Pareres v Cho, 149 A.D.3d 1095, 52 N.Y.S.3d 496 [2d Dept 2017]; Peretz v Village of Great Neck Plaza, 130 A.D.3d 867, 14 N.Y.S.3d 113 [2d Dept 2015]). "For a statute, ordinance or municipal charter to impose tort liability upon an abutting landowner for injuries caused by his or her negligence, the language must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he or she will be liable to those who are injured" due to a defect in the sidewalk (Colon v Village of Pleasentville, 146 A.D.2d 736, 737, 537 N.Y.S.2d 221 [2d Dept 1989]).
Defendants herein have each made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that they did not create the alleged defective condition, that they did not perform or hire anyone to perform repairs to the sidewalk, and that they did not make any special use of the sidewalk (see Lewis v Palazolo, 143 A.D.3d 783, 40 N.Y.S.3d 138 [2d Dept 2016]; Brennan v Town of N. Hempstead, 122 A.D.3d 892, 997 N.Y.S.2d 473 [2d Dept 2014]). Furthermore, while section 47A-17 of the Code of the Town of Islip imposes on abutting property owners a duty to keep the sidewalk in front of their house "in good and safe repair," it does not impose tort liability on such owners for injuries resulting from a violation of such duty (Bloch v Potter, 204 A.D.2d 672, 612 N.Y.S.2d 236 [2d Dept 1994]; see also Kilfovle v Town of N. Hempstead, 138 A.D.3d 1069, 20 N.Y.S.3d 292 [2d Dept 2016]; Dalder v Incorporated Vil. of Rockville Ctr., 116 A.D.3d 908, 983 N.Y.S.2d 835 [2d Dept 2014]).
Therefore, the burden of proof shifted to plaintiff to raise an issue of fact sufficient to defeat the motion (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923[1986]). Plaintiffs submissions in opposition fail to raise an issue as to whether defendants owned or created the alleged dangerous condition or caused it to occur by their special use of the sidewalk (see Repetti v City of New York Dept. of Envtl. Protection, 120 A.D.3d 655, 990 N.Y.S.2d 860 [2d Dept 2014]; Grier v 35-63 Realty, Inc., 70 A.D.3d 772, 895 N.Y.S.2d 149 [2d Dept 2010]). Furthermore, plaintiff testified that the accident occurred when he jumped over the alleged defect in the sidewalk and slipped and fell. Based on this testimony, while the alleged defect may have furnished the occasion for the occurrence, it was not the proximate cause of the injury (see Sheehan v City of New York, 40 N.Y.2d 496, 387 N.Y.S.2d 92 [1976]; Christ the King Regional High School v Zurich Ins. Co. of N. Am.9\ A.D.3d 806, 937 N.Y.S.2d 290 [2d Dept 2012]).
Accordingly, defendants' motions for summary judgment are granted and the complaint and any cross claims are dismissed.