Opinion
Index No. 153799/2020 MOTION SEQ. No. 002
07-28-2023
NOBUHO NAGASAWA, Plaintiff, v. FORD FOUNDATION CENTER FOR SOCIAL JUSTICE, HENEGAN CONSTRUCTION CO., INC., THE CITY OF NEW YORK Defendants.
Unpublished Opinion
MOTION DATE 12/02/2022
PRESENT: HON. J. MACHELLE SWEETING, Justice
DECISION + ORDER ON MOTION
J. MACHELS SWEETING, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77 were read on this motion to/for JUDGMENT - SUMMARY.
In the underlying action, plaintiff claims to have tripped and fallen on June 4, 2019 at about 2:50 p.m. on the premises of 320 E. 43rd Street, between 2nd Avenue and Tudor Place in the County, City and State of New York, due to an allegedly defective metal grate in a tree well on the premises. It is undisputed that this premises is owned by defendant FORD FOUNDATION CENTER FOR SOCIAL JUSTICE ("Ford").
Pending now before the court is a motion filed by defendant HENEGAN CONSTRUCTION CO, INC. ("Henegan") seeking an order, pursuant to Civil Practice Law and Rules ("CPLR") 3212, granting Henegan summary judgment and dismissing plaintiff's Complaint and all other claims and cross-claims as against Henegan.
Also pending under this motion sequence is a cross-motion filed by plaintiff seeking an order: (i) pursuant to CPLR 3212, granting partial summary judgment against Ford, and (ii) pursuant to CPLR 3211(b), striking Ford's First, Third, Fourth, Fifth, Eighth, Ninth, Tenth,
Thirteenth, Fourteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, and Twenty-Fourth Affirmative Defenses alleging culpable conduct, lack of notice, no proximate cause, barred by the Statute of Limitations, no duty to warn, assumption of risk, failure to state a cause of action, open and obvious condition, that plaintiff caused or created said condition, misuse of instrumentality, and de minimus condition.
Standard for Summary Judgment
The function of the court when presented with a motion for summary judgment is one of issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]; Weiner v. Ga-Ro Die Cutting, Inc., 104 A.D.2d 331 [Sup. Ct. App. Div. 1st Dept. 1985]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [NY Ct. of Appeals 1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [NY Ct. of Appeals 1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [Sup. Ct. App. Div. 1st Dept. 1989]). Summary judgment will only be granted if there are no material, triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]).
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, and failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment 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 Hosp., 68 N.Y.2d 320 [N.Y. Ct. of Appeals 1986]).
Further, pursuant to the New York Court of Appeals, "We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 N.Y.2d 557 [N.Y. Ct. of Appeals 1980]).
Motion filed by Henegan
In its motion, Henegan argues that it performed work at the site where plaintiff fell, but had finished the external portion of the work nearly a year in advance of plaintiff's alleged incident, and the area of plaintiff's fall was explicitly outside their scope of work. Henegan also argues that co-defendant Ford was responsible for the maintenance and inspection of the tree grates at the site of plaintiff's fall and, as such, all claims made against Henegan should be dismissed. In support of its arguments, Henegan submits, inter alia, the deposition transcript of Henegan's witness, Ray Nami, (NYSCEF Doc. 63) and the deposition transcript of Ford's witness, Richard Sayers, (NYSCEF Doc. 60).
Here, it is undisputed on this record, (which is not opposed by Ford), that Henegan had finished the external portion of its work on the premises nearly a year in advance of plaintiff's alleged accident; that the area of plaintiff's fall was explicitly outside Henegan's scope of work; and that Ford was responsible for the maintenance and inspection of the tree grates at the site of plaintiff's fall. Indeed, Mr. Sayers, who was a witness for Ford, testified that Ford was aware, prior to plaintiff's accident, that the metal grate in the tree well was "damaged" (transcript p. 30); that such grates "can't be repaired" but "have to be replaced" (transcript p. 30), and that "it was the Ford Foundation's responsibility to replace them" (transcript p. 30).
Accordingly, this court finds that Henegan has established, prima facie, a case for summary judgment, and the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial of the action.
The only substantive opposition was filed by plaintiff, on January 10, 2023, which was filed after the January 5, 2023 deadline set forth in the Stipulation to Adjourn Motion (NYSEF Doc. 69). Henegan is correct in arguing that plaintiff's opposition is untimely as plaintiff did not seek an extension, set forth any reason for late nature of the filing, or address the lateness in any way. In any event, in the interest of deciding motions on the merits, this court has considered plaintiff's papers filed in opposition and finds them to be unavailing.
The City filed an Affirmation in which it opposed Henegan's motion solely to the extent Henegan asserts and/or implies the City may have had had any involvement in causing or creating the subject defect. The City otherwise supported Henegan's motion on all other grounds.
Plaintiff contends that the testimony of Mr. Sayers, (who was a witness produced by Ford), is sufficient to defeat the motion for summary judgement, as Henegan's testimony establishes that the tree well "became damaged during the time when the building protection [construction barricades] was in place" (transcript p. 33). Plaintiff's argument is belied by the record.
Mr. Sayers testified as follows: p. 32-34
Q. Do you recognize the location shown in this photograph?
A. 43rd Street side of the building, East 43rd.
Q. Okay. So, that's one of the tree wells in front of the Ford Foundation at 320 East 43rd Street, correct?
A. Correct.
Q. And does that fairly and accurately depict the condition of that tree well and tree grate as it existed on June 24, 2019?
A. Yes.
Q. And you and the Ford Foundation were aware - MR. DePAOLA: Strike that.
Q. If you we look at the bottom middle of the photograph, there is a corner of that tree well or that tree grade that's broken, correct?
A. Yes.
Q. How did that damage get caused to the tree well or the tree grade?
A. I can only assume. I do not know exactly how that was damaged.
Q. Okay, nobody wants you to assume, but if you learned of some information that has led you to a conclusion as to how that happened, you can tell us that.
A. Correct.
MR. FREIRE: Go ahead, Mr. Sayers. Do you have any knowledge or any information that would inform you regarding how that grate came to be damage?
THE WITNESS: I can only tell you what I was told as to how it became damaged.
MR. FREIRE: Okay.
A. That it became damaged during the time when the building protection was in place. The barricades were in place on 43rd Street during the construction work that was going on in the building.
Q. Okay, and who placed those barricades for the building protection A. That would have been done under the supervision of Henegan Construction. [emphasis added]
It is clear from the testimony above that Mr. Sayers did not have any personal knowledge as to how the tree well became damaged, and that he was merely repeating what he had been told by someone else. once the movant has established a prima facie case for summary judgment, 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. Here, plaintiff's sole basis for opposing the motion is based on a hearsay portion of Mr. Sayer's testimony, which does not constitute evidentiary proof in admissible form.
Further, as noted above, Mr. Sayers testified that Ford was aware, prior to plaintiff's accident, that the metal grate in the tree well was damaged; that such grates had to be replaced; and that it was the Ford Foundation's responsibility to replace them. Finally, as was also noted above, Ford does not oppose Henegan's motion for summary judgment. Given the totality of all of these factors, this court finds that plaintiff's allegation that Henegan damaged the tree well falls under the "mere conclusions, expressions of hope or unsubstantiated allegations or assertions" that the Court of Appeals found were insufficient to defeat a prima facie case for summary judgment.
Cross-motion by plaintiff
In this cross-motion, plaintiff seeks partial summary judgment against Ford, and seeks dismissal of certain Affirmative Defenses alleged by Ford.
As a preliminary matter, plaintiff's cross-motion is actually a motion for summary judgment. As such, it is untimely under CPLR 3212 (a), which prohibits the filing of summary judgment motions more than 120 days after the note of issue has been filed. Here, the Note of Issue was filed on August 9, 2022 (NYSCEF Doc. 46), and as such, the deadline was December 7, 2022. Plaintiff's motion was not filed until January 10, 2023, which is more than one month after the deadline. In Brill v City of New York, 2 N.Y.3d 648 (2004), the New York Court of Appeals made clear that trial courts were not to consider the merits of a summary judgment motion that is filed late, unless the movant sets forth good cause. Here, plaintiff sets forth no excuse whatsoever for the delay. See also Kershaw v Hosp. for Special Surgery, 114 A.D.3d 75 (1st Dept 2013):
Brill v. City of New York addressed the "recurring scenario" of litigants filing late summary judgment motions, in effect "ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice." Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed [citations omitted]Group IX, Inc. v Next Print. &Design Inc., 77 A.D.3d 530 (1st Dept 2010) ("Defendants failed to file their motion within the 120 days specified by CPLR 3212(a) and offered no reason for the delay. Thus, in its prior order, the court correctly denied the motion as untimely").
Second, plaintiff does not deny that the cross-motion is untimely, but argues that "the court may consider the entirety of plaintiff's cross-motion, since it addresses the same issues and causes of action as Henegan's timely motion for summary judgment." The court finds this argument to be unavailing. Plaintiff is correct that a court may consider an untimely cross-motion, but the court may only do so when the issues raised in such cross-motion are limited to the issues that are the subject of the timely motion [emphasis added] (Filannino v Triborough Bridge and Tunnel Auth., 34 A.D.3d 280 (1st Dept 2006) (emphasis added). See also Maggio v 24 W. 57 APF, LLC, 134 A.D.3d 621 (1st Dept 2015) ("[...] this Court may even disregard the tardiness of a cross-motion and grant the cross-movant summary judgment, on the theory that the cross-motion was not necessary in the first place. However, this power is not without limitation. As plaintiff recognizes, the issue or cause of action on which the nonmovant is awarded summary judgment must be 'nearly identical' to that on which the movant sought relief").
Here, plaintiff's alleged cross-motion seeks relief against Ford, but Ford had not sought any relief against plaintiff. See Crawford v 14 E. 11th St., LLC, 191 A.D.3d 461 (1st Dept 2021) ("Everest's cross-motion for summary judgment [...] was not a true cross motion, since plaintiff [who filed the initial motion] did not move against Everest"). Further, plaintiff's motion does not raise issues "nearly identical" to those raised in the initial (timely) motion filed by Henegan, as the Henegan motion addressed only the questions of fact (or lack thereof) with respect to Henegan; it did not address whether there existed any questions of fact with respect to Ford. Further, and importantly, the Henegan motion put Ford on notice to gather evidence with respect to Henegan's potential liability, but it did not put Ford on notice with respect to its own potential liability. See Kershaw, supra:
[...] HSS's motion [...] is not a true cross motion [...] To the extent HSS's motion was directed at the complaint, as opposed to any cross claims by HJD [which filed the initial motion . ], it was not a cross motion as defined in CPLR 2215 [.] The HSS "cross motion," which runs from page 842 to page 1002 of the record on appeal, is comprised of many items not contained in the HJD motion papers [.] Nor is this court's recent holding in Levinson v. Mollah, 105 A.D.3d 644, 963 N.Y.S.2d 653 [1st Dept. 2013] on point. In Levinson we held that there was no reason to address whether one of the "cross motions" was untimely because the moving defendants' timely motion had put plaintiff on notice that he needed to rebut the prima facie showing that he had not met the serious injury threshold; when the plaintiff in Levinson failed to do this, the complaint was correctly dismissed as to all codefendants. Here [.] HJD's timely motion did not clearly put plaintiff on notice of the need to gather evidence in opposition to the arguments ultimately proffered by the HSS defendants.See also Crawford, supra ("Everest's cross-motion for summary judgment was correctly denied as untimely, and without consideration of the merits, since it was filed after the applicable deadline and Everest failed to show good cause for the delay"); Rubino v 330 Madison Co., LLC, 150 A.D.3d 603 (1st Dept 2017) ("The court should have denied as untimely Waldorf's cross-motion for summary judgment dismissing appellants' contractual indemnification claim against it without considering the merits, since the motion was filed after the applicable deadline and Waldorf failed to show good cause for the delay").
Conclusion
For the reasons stated above, it is hereby: ORDERED that Henegan's motion is GRANTED; and it is further ORDERED that plaintiff's cross-motion is DENIED.