Opinion
Index No. 603037/2017 Mot. Seq. No. 009 - MG 010-MG
08-12-2021
BLANCHE POPE, Plaintiff, v. ALFONSO TROTTA, ROSE ANN TROTTA, AL'S RKPAIR CENTER, PNC, 212 BANGOR STREET CORP., LEO LASSITER and GLKNDA LASSITER, Defendants.
PLAINTIFF'S ATTORNEY LAW OFFICE OF MARK E. WEINBERGER, PC DEFENDANTS' ATTORNEY SCAHILL LAW GROUP, PC Attorneys for Alfonso Trotta and Rose Ann Trotta BARBIERO BISCH & O'CONNOR, LLP, Attorneys for Leo Lassiter and Glenda Lassiter VIGORITO BARKER PATTERSON NICHOLS & PORTER, LLP Attorneys for Al's Repair Center, Inc. and 212 Bangor Street Corp.
Unpublished Opinion
Orig. Return Date: 01/15/2021
Mot. Submit Date: 06/10/2021
PLAINTIFF'S ATTORNEY LAW OFFICE OF MARK E. WEINBERGER, PC
DEFENDANTS' ATTORNEY SCAHILL LAW GROUP, PC Attorneys for Alfonso Trotta and Rose Ann Trotta
BARBIERO BISCH & O'CONNOR, LLP, Attorneys for Leo Lassiter and Glenda Lassiter
VIGORITO BARKER PATTERSON NICHOLS & PORTER, LLP Attorneys for Al's Repair Center, Inc. and 212 Bangor Street Corp.
HON. GEORGE NOLAN, J.S.C
Upon the e-filed documents numbered 137 through 152, 154 through 167 and upon due deliberation and consideration by the Court of the foregoing papers, it is hereby
ORDERED that the following motions are consolidated solely for purposes of this decision and order and, as so consolidated, are determined as set forth hereinafter; and it is further
ORDERED that the motion (motion sequence no. 009) of the defendants Leo Lassiter and Glenda Lassiter for summary judgment dismissing the complaint as against them is granted; and it is further
ORDERED that the motion (motion sequence no. 010) of the defendants APs Repair Center, Inc., and 212 Bangor Street Corp. for summary judgment dismissing the complaint as against them is granted.
Plaintiff Blanche Pope claims she was injured on January 29, 2015 when she was struck by a motor vehicle owned and operated by defendant Alfonso Trotta ('Trotta"). According to the submissions, plaintiff was walking on New Highway at or near its intersection with 41st Street in Copiague, New York when she was struck by a snow blade attached to the front of Trotta's vehicle. The defendants Leo Lassiter and Glenda Lassiter ("Lassiter") own and reside at 491 41s' Street, Copiague, New York, premises located on the corner of New Highway and 4T Street. According to plaintiff, she was walking in the shoulder of the roadway because the sidewalk in front of the Lassiter residence was covered in snow.
Plaintiff commenced this action to recover damages for personal injuries against the Lassitcrs by filing a summons and complaint on February 16, 2017. Prior to this action, on November 18, 2015, plaintiff commenced an action in Queens County claiming personal injuries against defendants Alfonso Trotta and Rose Ann Totta and for a declaratory judgment to determine that Utica National Assurance Company owed insurance coverage to the Trottas, 212 Bangor Street Corp., and Al's Repair Center, Inc. for the within underlying personal injury action. By prior court Order (BUGGS, J.), the second and third causes of action seeking the declaratory judgment were severed from the personal injury claims. Thereafter, by So-Ordered stipulation filed on October 17, 2017, the matters pending in Queens County were transferred to Supreme Court Suffolk County and the two personal injury actions were consolidated. Plaintiff alleges that defendant Trotta was negligent in the operation of his motor vehicle and that defendants APs Repair Center Inc., and 212 Bangor Street Corp. are vicariously liable for Trotta's actions. Plaintiff claims the defendant Lassiters were negligent in failing to clear the sidewalk of snow and ice which forced her to walk in the roadway.
Defendants Lassiter now move for summary judgment dismissing the complaint as asserted against them arguing, inter alia, that the Town of Babylon Town Code docs not impose liability upon an abutting landowner for a failure to remove snow and ice. The motion is unopposed.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
A plaintiff seeking damages for personal injuries in a premises liability action must first establish, as a matter of law, that the defendant or defendants owed him or her a duty of reasonable care in maintaining the property (see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422,424 [2006]; Tagle v. Jakob, 97 N.Y.2d 165, 168, 737 N.Y.S.2d 331, 333 [2001], Alnashmi v, Certified Analytical Group, Inc. 89 A.D.3d 10, 13, 929 N.Y.S.2d 620,623 [2d Dept 2011]). Without this duty of reasonable care on the part of a defendant, there can be no breach of such duty and, therefore, no proximate cause of plaintiffs injuries as a result of the breach (see Conneally v. Diocese of Rockville Ctr„ 116 A.D.3d 905, 984 N.Y.S.2d 127 [2d Dept 2014]; Ortega v. Liberty Holdings, LLC, 111 A.D.3d 904,976 N.Y.S.2d 147 [2d Dept 2013]; Nappi v. Incorporated Vil. of Lynbrook, 19 A.D.3d 565, 796 N.Y.S.2d 537 [2d Dept 2005]). As a general rule, liability for a dangerous condition on property must be predicated upon ownership, occupancy, control, or special use of the property (see Reynolds v. Avon Grove Props., 129 A.D.3d932, 12N.Y.S.3d 199 [2d Dept 2015]; Chernoguz v. Mirrer Yeshiva Cent. Inst, 121 A.D.3d 737, 994 N.Y.S.2d 362 [2d Dept 2014J; Grover v. Mastic Beach Prop. Owners Assn., 57 A.D.3d 729, 869 N.Y.S.2d 593 [2d Dept 2008 J). The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Peralta v. Henriquez, 100 N Y2d 139,760 N.Y.S.2d 741 [2003]; Frank v. JS Hempstead Realty, LLC, 136 A.D.3d 742, 24 N.Y.S.3d 714 [2d Dept 2016]; Guzman v State of New York, 129 A.D.3d 775, 10 N.Y.S.3d 598 [2d Dept 2015]).
Here, defendants Lassiter's submissions establish, prima facie, that the Town of Babylon Town Code does not impose liability on single family adjacent landowners for a failure to remove snow and ice. Unless a statute or ordinance "clearly imposes liability upon'"' an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk (Roark v. Hunting, 24 N.Y.2d 470,475, 301 N.Y.S.2d 59,[1969]; Jacobs v. Pasquale, 281 A.D.2d 891, 892, 721 N.Y.S.2d 887 [4th Dept 2001]). "An owner of property abutting a public sidewalk is under no duty to pedestrians to remove snow and ice that naturally accumulates on the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so" (Bi Chan Lin v. Po Ying Yam, 62 A.D.3d 740, 741, 879 N.Y.S.2d 172 [2d Dept 2009; Smalley v. Bemben, 12 N.Y.3d 751, 880 N.Y.S.2d 878 [2009]; Hevia v. Smithtown Auto Body of Long Island, Ltd., 91 A.D.3d 822, 937N.Y.S.2d284 [2d Dept 2012]).
Defendants Al's Repair Center, Inc., and 212 Bangor Street also move for summary judgment alleging that the facts of the case demonstrate that defendant Trotta was not acting within the scope of his employment at the time of the accident and thus defendants Al's Repair Center, Inc., and 212 Bangor Street cannot be held vicariously liable for Trotta's actions. According to the submissions, Alfonso Trotta was the president of Al's Repair Center, Inc, an auto repair shop located at 212 Bangor Street in Lindenhurst, New York. Defendant Rose Ann Trotta was the company's sole shareholder. Defendant 212 Bangor Street owned the premises where Al's Repair Center, Inc., is located. It is undisputed that Trotta was operating a 1989 GMC pickup truck which was registered in his name and not the name of his business. By prior Order (MOLIA, J.), this court determined in the related declaratory judgment action that at the time of the accident, Trotta was using the truck for his own personal use and purpose and not in furtherance of the of business of Al's Repair Center, Inc., or 212 Bangor Street Corp. ''An issue must be actually litigated for the law of the case doctrine ... to apply" (People v. Grasso, 54 A.D.3d 180, 210, 861 N.Y.S.2d 627, 651 [1st Dept 2008]), and the doctrine applies only when "the parties had a full and fair opportunity to litigate the initial determination" (PHH Mtge. Corp. v. Burt, 176 A.D.3d 1242, 1243, 112N.Y.S.3d231,233 [2d Dept 2019].
Defendants having met their initial burden on the motion, the burden shifted to plaintiff to submit evidentiary proof, in admissible form, of issues requiring a trial for resolution (see Alvarez v .Prospect Hasp., supra; Zuckerman v. City of New York, supra). Plaintiff does not oppose either motion and the defendant's limited opposition fails to raise any triable issues of fact.
Accordingly, the motions for summary judgment dismissing the complaint as to defendants Leo Lassiter and Glenda Lassiter and defendants Al's Repair Center, Inc., and 212 Bangor Street Corp., are granted.
The foregoing constitutes the decision and Order of the Court..