Opinion
No. 2006/2014.
06-27-2017
Walter MELENDEZ, Plaintiff, v. FIRST PRESBYTERIAN CHURCH, Defendant.
George M. Lesnett, ESQ., Fellows Hymowitz, P.C., New City, Attorneys for Plaintiff. Martin Galvin, Esq., Burke, Conway & Dillon, Esqs., White Plains, Attorneys for Defendant.
George M. Lesnett, ESQ., Fellows Hymowitz, P.C., New City, Attorneys for Plaintiff.
Martin Galvin, Esq., Burke, Conway & Dillon, Esqs., White Plains, Attorneys for Defendant.
JAMES D. PAGONES, J.
Defendant moves for an order, pursuant to CPLR 3212, granting it summary judgment and dismissing the plaintiff's complaint.
The following papers were read:
Notice of Motion–Affirmation in Support 1–9
Exhibits A–F–Affidavit of Service
Affirmation in Opposition–Affidavit of Service 10–15
Exhibits 1–4
Reply Affirmation–Affidavit of Service 16–17
By way of background, plaintiff commenced this action seeking to recover for personal injuries allegedly sustained as a result of a defective and dangerous condition on defendant's premises. On August 24, 2012, plaintiff claims that his hand/forearm went through a glass window at the premises located at 2576 South Avenue, Wappingers Falls, N.Y. 12590. The apartment in which the window was situated was rented by the plaintiff's brother and owned by the defendant. Plaintiff maintains that while he was traversing the dining room area, he was running his hand along the wall when he made contact with the window and it broke, lacerating his ulnar artery.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974] ). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
Before a landowner may be held liable for an alleged defective condition on its property, a plaintiff must show either that the owner created the condition, or that it had actual or constructive notice of the condition and a reasonable opportunity to remedy it (see Knightner v. Custom Window & Door Prods., 289 A.D.2d 455 [2nd Dept 2001] ). As the proponent of a summary judgment motion, defendant has the burden of establishing, prima facie, that it did not create the alleged defective and unsafe condition or have actual or constructive notice of the condition (see Thomas v. Hempstead Union Free School Dist., 56 AD3d 759 [2nd Dept 2008] ; George v. Ponderosa Steak House, 221 A.D.2d 710 [3rd Dept 1995] ). Here, defendant submits the deposition testimony and affidavit of John Beale, member/Vice President/Chairman of the Property Committee of defendant First Presbyterian Church of Wappingers Falls. Mr. Beale testified that annually, an inspection of the duplex property occurs in December/January (see Deposition of Beale at p 19–20 lines 2–11, lines 15–25). However, the premises in which the plaintiff's brother resided was inspected on July 1, 2012, prior to his moving in (see Deposition of Beale at p 20–21 lines 16–25, lines 2–3). All windows in the property were inspected on July 1, 2012 (see Deposition of Beale at p 34 lines 8–13). The inspection consisted of looking for cracks in the apartment windows or determining whether or not the windows were in fact broken (see Deposition of Beale at p 34 lines 14–16). Mr. Beale stated that prior to August 24, 2012, no tenant has ever complained about the windows in the duplex. The affidavit of Mr. Beale further confirms his deposition testimony, reiterating much of the aforementioned. The defendant also submits the affidavit of Peter Chen, a Mechanical Engineer, who examined the premises and evaluated the incident. Mr. Chen stated that the incident window was visually obvious and safe prior to the accident. The cause of the accident, as Mr. Chen states, was the plaintiff's miscalculation of distance. Ultimately, Mr. Chen states "[b]ased on the location of the injury, the location of the pane damaged, the location of the remaining blood evidence, and the load carrying capability of the window pane, the cause of this accident was more likely than not a punching (uppercut) or similar motion."
The testimony and affidavits as submitted by the defendant are sufficient to establish its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created, nor had notice, actual or constructive, of the alleged defective condition of the premises (see Lawrence v. Gonzalez, 106 AD3d 462 [1st Dept 2013] ; Lawrence v. Rockland County Bd. of Coop. Educ. Servs., 93 AD3d 766 [2nd Dept 2012] ; Quinones v. Federated Dept. Stores, Inc., 92 AD3d 931 [2nd Dept 2012] ; Thomas v. Hempstead Union Free School Dist., 56 AD3d 759 [2nd Dept 2008] ; Sheehan v. J.J. Stevens & Co., Inc., 39 AD3d 622 [2nd Dept 2007] ; Loiacono v. Stuyvesant Bagels, Inc., 29 AD3d 537 [2nd Dept 2006] ; Levinstim v. Parker, 27 AD3d 698 [2nd Dept 2006] ).
Since defendant has made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ), plaintiff must show that genuine triable issues of material fact exist in order to defeat the motion (id. ).
In opposition, plaintiff submits the expert affidavit of Carl J. Abraham, Director of Scientific Advisory Service, Ltd. Mr. Abraham details the difference between annealed glass and tempered glass, i.e. "safety glass". He states that "[w]hen renting a home the landlord should confirm that all of the glass windows contain safety glass", however he denotes that safety glass is not required. Mr. Abraham then proceeds by labeling annealed glass a latent or hidden defect. In his conclusion, Mr. Abraham states that "[b]ased upon the defective and unsafe glass in the window, it was foreseeable that the glass panel could easily fracture producing sharp shards of glass that could easily cut right through the epidermis of a person." Plaintiff also submits an addendum to the affidavit of Mr. Abraham in which he denotes that the window at issue served no functional purpose. Here, the expert while acknowledging there exists no code or statute requiring the landlord defendant to install safety glass within the apartment, ignores the lack of duty imposed by law and chooses to impose his self-created duty upon a landlord to warn of the latent defects allegedly implicit in the mere possession of annealed glass. The Court finds the expert's conclusory statements concerning the inherent latent or hidden defect contained within annealed glass and the foreseeability of the plaintiff's actions are speculative in nature (see generally Khemraj v. City of New York, 37 AD3d 419 [2nd Dept 2007] ). Accordingly, plaintiff has failed to show that a triable issue of fact exists as to whether the property owners had created the allegedly dangerous condition, or that they knew or should have known that the offending glass suffered from some defect (see Benjamin v. Rogers, 242 A.D.2d 516 [2nd Dept 1997] ).
Based upon the foregoing, defendant's motion for summary judgment is granted and plaintiff's complaint is dismissed in its entirety.
This constitutes the decision and order of this court.