Opinion
Nos. 606210/2018 Mot. Seq. Nos. 001-MG 002-MG
04-19-2019
GERARD SHEEHAN, Plaintiff, v. COUNTY OF SUFFOLK, TOWN OF BABYLON, and LYDEL ASPHALT CORP., Defendants.
PLAINTIFF'S ATTORNEY Gruenberg, Kelly, Delia. DEFENDANTS' ATTORNEYS Anthony S. Calvacca, Esq. Law Offices of Andea G. Sawyers Attorney for Lydel Asphalt Corp., Joseph Wilson, Babylon Town Attorney, Dennis M. Brown Suffolk County Attorney.
Unpublished Opinion
Return Date: 11/13/2018.
Mot. Submit Date: 12/18/2018.
Orig. Return Date: 11/13/2018.
Mot. Submit Date: 12/18/2018
PLAINTIFF'S ATTORNEY Gruenberg, Kelly, Delia.
DEFENDANTS' ATTORNEYS Anthony S. Calvacca, Esq. Law Offices of Andea G. Sawyers Attorney for Lydel Asphalt Corp., Joseph Wilson, Babylon Town Attorney, Dennis M. Brown Suffolk County Attorney.
PRESENT: Hon. Martha L. Luft, Judge.
AMENDED DECISION AND ORDER
MARTHA L. LUFT, A.J.S.C.
Upon the e-filed documents numbered 29 through 43, it is
ORDERED, that defendant Lydel Asphalt Corp.'s ("Lydel") motion for summary judgment (mot seq 001) is granted and the complaint is dismissed insofar as it alleges claims against Lydel; and it is further
ORDERED, that plaintiffs unopposed motion to amend the summons and complaint to add Rosemar Contracting, Inc. ("Rosemar") as a defendant is granted; and it is further
ORDERED, that the caption hereby is amended as follows:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK,x GERARD W. SHEEHAN, Plaintiff, -against- COUNTY OF SUFFOLK, TOWN OF BABYLON and ROSEMAR CONTRACTING, INC. Defendants.
and it is further
ORDERED, that plaintiff is to file and serve a supplemental summons and amended verified complaint and such filing and service shall be effected within thirty (30) days of the date of service of this order with notice of entry; and it is further
ORDERED, that counsel for the plaintiff shall serve a copy of this order upon the County Clerk within thirty (30) days of the date of this order.
This is an action by plaintiff alleging personal injuries resulting from a "trip and fall" on a raised sewer drain on Cheltenham Road in West Babylon which had been milled in preparation for resurfacing. The complaint alleges that defendant Lydel had performed road work in the area which left the sewer drain raised from the surrounding road causing a tripping hazard.
Lydel has moved for summary judgment asserting that it is not a properly named as a defendant because its business is the retail sale of asphalt, that it merely sold asphalt to the road construction companies and did not perform any type of heavy construction work in the area. Lydel supports its motion with evidence in admissible form, including the affidavit of Lydel's president.
The plaintiff opposes the motion with an attorney's affirmation and documents obtained via a Freedom of Information Law ("FOIL") request to the Town of Babylon. The documents show correspondence between the Town of Babylon and Rosemar including a work order from the Town to Rosemar for road paving. Two of the documents are blurry receipts from Lydel to its customer, Rosemar. The receipts indicate a number of tons of a product "01 Type 6F Top" and the "job" as the "Town of Babylon."
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 eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,165 N.Y.S.2d 498 [1957]. The movant has the initial burden of proving entitlement to summary judgment. Winegrad v New York Univ. Med Or., 64 N.Y.2d 851,487 N.Y.S.2d 316 [1985]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Id. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form., .and must "show facts sufficient to require a trial of any issue of fact" CPLR 3212 [b]; Zuckerman v City of New York, 49 N.Y.2d 557,427 N.Y.S.2d 595 [1980]. The court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true. Roth v Barreto, 289 A.D.2d 557,735 N.Y.S.2d 197 [2d Dept 2001]; O'Neill v Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987].
Here, Lydel established its prima facie entitlement to summary judgment. The burden then shifted to the plaintiff to come forward with evidence in admissible form that Lydel had some duty of care to the plaintiff. An affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable issue of fact. Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]; Service v McCoy, 131 A.D.3d 1038,16 N.Y.S.3d 283 [2d Dept 2015]. The contention in the plaintiffs attorney's affirmation that discovery may reveal additional information is insufficient to defeat the motion. Singh v. Avis Rent A Car System, Inc., 119 A.D.3d 768, 989 N.Y.S.2d 302 [2d Dept. 2014]. Further, the FOIL documents from the Town of Babylon are not in admissible form and do not show facts sufficient for a trial. Nevertheless, the FOIL documents, if they were admissible, tend to support Lydel's summary judgment motion by bolstering the contention that Lydel was merely a supplier of asphalt.
The plaintiff has moved for leave to amend the complaint to name Rosemar as a defendant. That unopposed motion is granted in accordance with the decretal paragraphs herein.