Opinion
INDEX NO. 255443 and 255016
02-14-2020
Kathleen A. TIMMANY, Plaintiff, v. Richard BENKO, Michael Bishop, Lori Bishop and George Galib, Defendants. Virginia Verhoff, Plaintiff, v. Richard Benko, Michael Bishop, Lori Bishop and George Galib.
MARK R. SONDERS, ESQ., For the Plaintiff Kathleen A. Timmany BRIAN W. DEVANE, ESQ. For the Plaintiff Virginia Verhoff JOHN H. BEAUMONT, ESQ., For the Defendants Michael and Lori Bishop KEVIN A. LUIBRAND, ESQ., For the Defendant Richard Benko STEPHEN D. ROSEMARINO, ESQ., For the Defendant George Galib
MARK R. SONDERS, ESQ., For the Plaintiff Kathleen A. Timmany
BRIAN W. DEVANE, ESQ. For the Plaintiff Virginia Verhoff
JOHN H. BEAUMONT, ESQ., For the Defendants Michael and Lori Bishop
KEVIN A. LUIBRAND, ESQ., For the Defendant Richard Benko
STEPHEN D. ROSEMARINO, ESQ., For the Defendant George Galib
Patrick J. McGrath, J.
The Bishop defendants move for summary judgment pursuant to CLR 3212 and seek the dismissal of the complaints and all cross-claims. The plaintiffs oppose the motion and cross-move for partial summary judgment against the Bishop defendants alleging they are entitled to summary judgment as a matter of law. Defendants Benko and Bishop oppose plaintiffs' motions. Defendant Benko also moves for summary judgment and seeks the dismissal of plaintiffs' complaints along with all cross-claims of the co-defendants. Defendant Galib moves for summary judgment pursuant to CPLR 3212 and seeks the dismissal of the plaintiffs' complaints and the cross-claims of the co-defendants. Defendant Benko opposes the motion to dismiss his cross-claims.
Plaintiffs commenced their personal injury actions against the defendants in relation to injuries they sustained when a deck collapsed on May 15, 2016 at 2 Faith Lane Rensselaer, New York. At the time of the accident, the home was owned by the Bishops. On that day, the Bishops invited family and friends to their home to celebrate the first communion of their son. The plaintiffs allege the Bishops failed to maintain their premises in a reasonable manner and negligently allowed a dangerous condition to exist. The plaintiffs also named the two prior owners, Galib and Benko as defendants.
Defendant Benko purchased the subject property in December 1979. In the spring of 1980, Benko hired a contractor to build a two story deck. The contractor installed a sliding glass door to the second floor kitchen to allow access to the deck. Thereafter, the deck was extended. In 1994, Benko hired a different contractor to build an addition to the home. Benko owned the property for approximately 23 years until he sold it to co-defendant Galib in September 2002. The purchase agreement was an "as is" contract. Galib had the property inspected. The inspector issued an Executive Summary which evaluated the home and made recommendations for improvements. The report listed categories in relation to the condition of the property. The report listed categories as Major Items, Safety Items, Maintenance Items and Monitor Items. The report addressed the deck and listed it under Maintenance Items. The report stated "consider adding joist hangers to the rear portion of the deck joists as discussed and bolting the ledger board to the home under the slider." Galib claims he was told by the inspector "the deck was fine but it didn't meet new code." Galib inspected the deck and found it to be fine. Galib purchased the property and lived in the home for four years. Galib alleges the deck was extended before he purchased the home. Galib claims he hired a contractor to add stairs and a vinyl fence to the deck so he could access the rear yard. Galib alleges he played no part in the construction of the stairs and fencing.
In 2006, Galib sold the property to the Bishops. The purchase agreement was an "as is" contract. Prior to the closing, the Bishops had the property inspected. The closing was held in January 2006. Galib claims he gave Mrs. Bishop an envelope which contained documents relating to his possession of the home. Galib contends the Executive Summary home inspection report was in the envelope he gave to Mrs. Bishop. Galib maintains he had no knowledge of any defective condition relating to the deck when he sold the home in 2006.
"Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." ( McDay v. State , 130 AD3d 1359 [3rd Dept. 2016] ). In deciding whether summary judgment is warranted, the Court's main function is issue identification, not issue determination. ( Barr v. County of Albany , 50 NY2d 247 [1980] ). The party seeking summary judgment has the burden of establishing its entitlement thereto as a matter of law. ( Winegard v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ). The evidence must be construed in a light most favorable to the party opposing the motion. ( Davis v. Klein , 88 NY2d 1008 [1996] ). In order to defeat a motion for summary judgment, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action. ( Alvarez v. Prospect Hospital , 68 NY2d 320 [1986] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ). Failure to make such showing requires denial of the motion regardless of the sufficiency of the opposing papers. ( Voss v, Netherlands Ins. Co., 22 NY3d 728 [2014] ).
To establish a prima facie case of negligence, the plaintiff must demonstrate (1) that the defendant owed the plaintiff a duty of reasonable care, (2) a breach of the duty, and (3) a resulting injury proximately caused by the breach. ( Solomon v. City of New York , 66 NY2d 1026 [1985] ). An owner of realty owes a duty to maintain the property in a reasonably safe condition. ( Basso v. Miller, 40 NY2d 233 [1976] ) and one who has been injured must prove that the property owner had either actual or constructive notice of the defect in order to recover. ( Soma v. Soma , 92 AD3d 862 [2nd Dept. 2012] ). Plaintiff must demonstrate that defendant either created the condition by its own affirmative act, was aware of a specific condition yet failed to correct it, or was aware of an ongoing and recurring unsafe condition which regularly went unaddressed. ( Mazerbo v. Murphy, 52 AD3d 1064 [3rd Dept. 2008], appeal dismissed 11 NY3d 770 [2008] ).
In moving for summary judgment, the defendants bear the initial burden of establishing that it maintained its premises in a reasonably safe condition, had no actual or constructive knowledge of the condition and did not create the allegedly dangerous condition. ( Gordon v. American Museum of National History , 67 NY2d 836 [1986] ).
Benko purchased the property in 1979 and sold the home to Galib in 2002. Galib sold the property to the Bishops in 2006. When the accident occurred on May 15, 2016, Benko was out of possession of the home for over 14 years and Galib for 10 years. Plaintiffs now claim, as former owners, Benko and Galib were negligent by failing to maintain the deck which allowed a dangerous condition to continue to exist.
Defendants Benko and Galib maintain the Bishops had over ten years to discover and remedy the condition of the deck. Galib contends he gave the Bishops a copy of the Executive Summary in 2006. The defendants deny they created the dangerous condition as Benko claims he hired a contractor to erect the deck and Galib claims he hired a contractor to install stairs and a vinyl fence.
Liability for failing to maintain premises in a safe condition must be based on occupancy, ownership, control, special use, statutory obligation, or contractual obligation. ( Jackson v. Board of Educ. of City of NY , 30 AD3d 57 [1st Dept. 2006] ). As a general rule, liability for a dangerous condition may not be extended to a former owner of real property. ( Bittrolff v. Ho's Dev. Corp. , 77 NY2d 896 [1991] ). Narrow exceptions to this rule exist "where a dangerous condition existed at the time of the conveyance and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known." ( Bittrolff v. Ho's Dev. Corp. 77 NY2d at 898 ) or if the former owner "affirmatively created the dangerous condition." ( Marrero v. Marsico , 218 AD2d 226 [3rd Dept. 1996] ).
After a review of the record, the Court finds the Bishops had over ten years to discover the deteriorating condition of the deck. The Court finds ten years is a reasonable amount of time for the new owners to discover and remedy any defects in relation to the deck. ( Privette v. Precision El., 143 AD3d 639 [1st Dept. 2016) ]. The plaintiffs have not demonstrated the prior owners, Benko and Galib, are liable for the collapse of the deck on May 15, 2016. The plaintiffs have not presented evidence that the prior owners retrained any control over the property or that they created or concealed the defective condition. ( Bertolino v. Town of No. Elba , 16 AD3d 805 [3rd Dept. 2005] ; Morris v. Freudenheim , 273 AD2d 885 [4th Dept. 2000] ). As a result, plaintiffs' complaints against defendants Benko and Galib are dismissed. In addition, all cross-claims seeking contribution and indemnification from Benko and Galib are also dismissed.
As owners of the property, the Bishops move for summary judgment and maintain they did not have actual or constructive notice of the defective condition of the deck. The Bishops contend they used the deck often and never saw or heard any indications that the deck was unstable or posed a safety concern. Mrs. Bishop admits she received an envelope from Galib when she purchased the property but she has no recollection of seeing the Executive Summary report obtained by Galib when he purchased the property. The Executive Summary did not state that the deck was unstable or in disrepair. The report listed an observation under a "Maintenance Item" category. Mr. Bishop acknowledged that he maintained the deck over the years. Mr. Bishop alleges he did not observe any instability of the deck and if he had, he would not have allowed his family or friends to use the deck to celebrate his son's first communion.
The Bishops retained John Flynn, an engineer, to evaluate the deck after it collapsed. Mr. Flynn was of the opinion that the partial deck collapse was caused by "the development of dry rot in the rim joist to which the collapsed portion of the deck had originally been attached." Mr. Flynn claims once the deck was erected, the rim joist would not be visible to the homeowner. Mr. Flynn also found the dry rot in the rim joist and ledger board "resulted from the failure to install flashing when the deck was originally constructed, which would have prevented water from seeping into the rim joist and ultimately causing dry rot." Mr. Flynn alleged this condition would not be visible as it had been covered up by the deck attached to the house. Mr. Flynn concluded the collapse of the deck was sudden and immediate as a result of extensive nail failure.
The plaintiffs oppose the Bishops' motion for summary judgment and cross-move for summary judgment alleging the owners had notice of the dangerous condition of the deck. The plaintiffs contend the owners had actual notice of the condition of the deck when they received the Executive Summary from Galib which recommended joint hangers be added to the rear portion of the deck. The plaintiffs also allege the Bishops had constructive notice of the defective conditions of the deck. The plaintiffs allege since Mr. Bishop maintained the deck over the years, he had an opportunity to inspect the deck for defects.
The plaintiffs retained Ernest Gailor, an engineer, to evaluate the deck after it collapsed. Mr. Gailor was of the opinion that the cause of the deck collapse "was the failure to affix the deck to the building structure with bolts rather than the common nails used ... and to properly prevent and address extensive wood rot in the rim joist where the deck ledger board met the building to which it was attached." Mr. Gailor claims the age of the deck, the rotting wood and the failure to use bolts to affix the deck to the house all contributed to the collapse of the deck. Mr. Gailor alleges Mr. Flynn did not address the failure to bolt the deck to the house as the cause of the failure of the deck. Mr. Gailor claims an inspection would reveal the lack of bolt heads on the ledger board. Mr. Gailor also claims the extensive rotting of wood would cause the rot to bleed from under the ledger board and would be readily observable by Mr. Bishop.
The plaintiffs allege questions of fact exist as to whether the defendants had notice of the dry rot that accumulated behind the ledger board attached to the deck. The Bishops allege they did not cause or conceal the deck defects nor did they have actual or constructive notice. The Court is mindful of the holding in a similar deck collapse case, McMahon v. Gold , 78 AD3d 908 [2nd Dept. 2010], lv denied 16 NY3d 706 [2011] ) where the Court granted defendant's motion for summary judgment and dismissed the complaint.
After a review of the record, the Court finds questions fact exist that precludes summary judgment. The engineers agreed that the cause of the deck collapse was the development of rot to the rim joist. Bishops' engineer, Mr. Flynn, claims the deterioration was not noticeable as it was obscured by the deck. Plaintiffs' engineer, Mr. Gailor, stated that the rot would be noticeable as the oozing rotted wood would be visible upon a reasonable inspection. Conflicting testimony of witnesses and parties presents credibility issues that cannot be resolved on a motion for summary judgment ( Andrews v. County of Cayuga , 142 AD3d 1347 [4th Dept. 2016] ; Ocampo v. Boiler , 33 AD3d 332 [1st Dept. 2006] ). It appears questions of fact exist as to whether the defendants had notice of the deck defects prior to the collapse. Viewing the evidence presented in a light most favorable to the plaintiffs, the Court finds the plaintiffs raised questions of fact which requires the denial of summary judgment. ( Cerniglia v. Loza Rest. Corp. , 98 AD3d 933 [2nd Dept. 2012] ). "Whether a dangerous or defective condition exists on the property of another to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury". ( Trincere v. County of Suffolk , 90 NY2d 976 [1997] ).
Accordingly, defendants Benko and Galib's motions for summary judgment are granted. The summary judgment motions of the plaintiffs and the Bishops are denied.
This constitutes the Decision and Order of the Court. This Decision and Order is being returned to the attorneys for the Timmany plaintiff. All original supporting documentation is being returned to the Supreme Court Clerk's Office. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Plaintiff is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.
Papers Considered:
1. Notice of Motion dated November 7, 2019; Affidavit of John H. Beaumont, Esq. dated November 7, 2019 with annexed Exhibits A-L; Affidavit of Michael Bishop dated November 5, 2019; Affidavit of Lori Bishop dated November 5, 2019; Affidavit of Edward Verhoff dated November 5, 2019; Memorandum of Law dated November 6, 2019; Affidavit of John P. Flynn dated November 7, 2019;
2. Notice of Cross-motion dated December 5, 2019; Affirmation of Mark R. Sonders, Esq. dated December 5, 2019 with annexed Exhibits A-K; Affidavit of Raymond Diaz dated December 4, 2019 with Exhibits A-C annexed; Affidavit of Ernest J. Gailor dated December 4, 2019 with annexed Exhibit A; Memorandum of Law dated December 5, 2019; Affirmation of Kevin A. Luibrand, Esq. dated December 11, 2019;
3. Notice of Cross Motion dated December 5, 2019; Affidavit of Brian W. Devane, Esq. dated December 5, 2019; Affidavit of John H. Beaumont, Esq. dated December 18, 2019; Correspondence of Brian W. Devane, Esq. dated December 20, 2019;
4. Notice of Motion dated November 13, 2019; Affirmation of Kevin A. Luibrand, Esq. dated July 29, 2019 with annexed Exhibits A-CC; Memorandum of Law dated November 7, 2019;
5. Notice of Motion dated November 15, 2019; Affirmation of Stephen D. Rosemarino, Esq. dated November 15, 2019 with annexed Exhibits A-EE; Affidavit of George Galib dated November 14, 2019 with annexed Exhibits A-E; Memorandum of Law dated November 15, 2019; Affirmation of Kevin A. Luibrand, Esq. dated December 11, 2019.