Opinion
2004-2038.
Decided April 6, 2007.
John B. Casey, Esq., Dreyer Boyajian LLP, Albany, New York, for Plaintiff.
Noreen DeWire Grimmick, Esq., Hodgson Russ LLP, Albany, New York, for Defendants Bigsbee Village Homeowners Association and Diamond Realty Enterprises Corp.
Mark J. McCarthy, Esq., Harris Beach PLLC, Albany, New York, for Defendants Timothy Trier, Inc. and Suburban Turf, LLC.
This matter comes before the Court on two motions for summary judgment. Defendants Bigsbee Village Homeowners Association and Diamond Realty Enterprises Corp. (the "Management" defendants) move for summary judgment pursuant to CPLR 3212 on the ground that there is no evidence to show that (a) Management had actual or constructive notice the icy condition complained of by Plaintiff or (b) that Management caused that icy condition. Defendants Timothy Trier, Inc. d/b/a Suburban Turf and Suburban Turf, LLC (the "Suburban" defendants) move for summary judgment under CPLR 3212 on the ground that their contract with Management does not give rise to a duty owed by the Suburban defendants to Plaintiff.
As with all summary judgment motions, the initial burden is on the moving parties to make a prima facie showing of their entitlement to judgement as a matter of law by submitting sufficient evidence to show that no material issues of fact exist. If such a showing is made, the burden of proof then shifts to the non-moving party to produce evidence that is sufficient to establish the existence of material fact issues requiring trial ( Alvarez v. Prospect Hosp., 68 NY2d 320). Issue finding, not issue determination, is the focus of a court addressing a summary judgment motion ( See, e.g., Macri v. Smith , 12 AD3d 896). Summary judgment is denied if there is any significant doubt as to the existence of a triable issue of fact, and when examining the record, the evidence is viewed in the light most favorable to the non-moving party ( See, e.g., Tufano v. Morris, 286 AD2d 531; Hourigan v. McGarry, 106 AD2d 845).
The Management Motion. As owner and operator of the premises at issue, the Management defendants must establish, as a matter of law, that the premises were maintained in a reasonably safe condition and that Management neither (a) created the allegedly dangerous condition nor (b) had actual or constructive notice of its existence ( Dickerson v. Troy Housing Auth. , 34 AD3d 1003 ). The Management defendants point to Plaintiff's deposition testimony, where she states that she noticed no "ice or slippery condition" when she exited her vehicle after parking in the subject parking lot, but that she slipped and fell on black ice when she returned to her vehicle approximately four hours later. Management submits the affidavit of a meteorologist, William Sherman, who states that the day of Plaintiff's injury had been clear and sunny, with no precipitation and temperatures above freezing for most of the day, including the time of Plaintiff's fall. They also point to deposition testimony by their own employees to the effect that neither Management defendant had any record of a slip and fall prior to Plaintiff's accident.
The weather report, Plaintiff's testimony as to seeing no ice when she arrived, the lack of other complaints of ice and the relatively short period of time which passed between Plaintiff's arrival and her fall as she was departing are sufficient facts to make out Management's prima facie showing of entitlement to judgment on the issue of notice ( See, e.g., Boucher v. Watervliet Shores Assocs. , 24 AD3d 855 ). Management also argues that Plaintiff has failed to offer any evidence as to how or when the ice she complains of might have formed during the period between her arrival and her accident, thus reducing Plaintiff's argument that Management created the icy condition to mere speculation and precluding any recovery, citing Zabbia v. Westwood, LLC ( 18 AD3d 542 ).
In response, Plaintiff offers the affidavit of her own meteorologist, Howard Altschule, who reviews weather data for the time period surrounding Plaintiff's fall. Mr. Altschule opines that thawing and re-freezing occurred during the seven days prior to the day of Plaintiff's fall. He also reviews photographs of the scene and opines that snow which was plowed onto an island in the parking lot, and which spilled over into the lot adjacent to the spot where Plaintiff parked, produced the water which re-froze into black ice in the area where Plaintiff fell. Finally, he opines that the black ice on which Plaintiff slipped was created approximately twenty-four hours prior to her fall.
On its face, when construed in the light most favorable to Plaintiff, the Altschule Affidavit establishes an issue of fact as to whether sufficient time passed between the formation of the ice and Plaintiff's fall to constitute constructive notice ( See, Dickerson v. Troy Housing Auth., supra). Also, when read in conjunction with the deposition testimony by David Disco, a principal with defendant Diamond Realty Enterprises Corp., the Altschule Affidavit constitutes evidence of Management's creation of the icy condition, in that Management inspected the lot after each snow removal operation and also made the determination as to when the snow pile should be removed. This blunts the Management argument that Plaintiff has failed to provide such evidence ( Cf., Zabbia v. Westwood, LLC, supra).
In reply, the Management defendants contend that the Court should disregard the Altschule Affidavit, because Mr. Altschule was not disclosed as Plaintiff's expert witness until his affidavit was offered on this motion, some three months after the date set for the disclosure of expert witnesses by Plaintiff in the Court's scheduling order of May 30, 2006. Management cites no authority in support of their request, however, and the Court's own research has not disclosed any authority that is directly applicable to a pretrial motion. There is case authority from the Appellate Division, Third Department, under CPLR § 3101 providing that failure to disclose an expert witness, if it is both willful and prejudicial, can result in the preclusion of that expert from testifying at trial ( See, e.g., Bauernfeind v. Albany Med. Ctr. Hosp., 195 AD2d 819). The Third Department has also noted, however, that courts are to exercise discretion in addressing issues of expert disclosure and has encouraged courts to "look to less than draconian measures" when doing so ( Mead v. Dr. Rajadhyax' Dental Group , 34 AD3d 1139).
While Plaintiff missed the deadline for expert disclosure by some three months, the scheduling order which contained the October 2006 deadline for disclosure of Plaintiff's experts was drafted, in consultation with counsel for all parties, to allow for flexibility. For example, the report from an additional independent medical examination was to be distributed after the filing of the Note of Issue and further discovery based upon that report was specifically provided for, if necessary. Plaintiff's expert disclosure deadline was also set to allow for consideration of the IME report. Perhaps most importantly, the various deadlines in the scheduling order were set to accommodate a trial date of February 26, 2007. Because if the instant motion practice, that date has been adjourned, so that trial is now scheduled to commence on August 6, 2007. Therefore, Plaintiff's meteorologist is not being disclosed on "eve of trial" so as to take Management by surprise. Also, it is not particularly surprising that Plaintiff should offer a meteorologist's affidavit in opposition to the defense motion. The record does not disclose when Mr. Altschule was retained by Plaintiff, which could go to the "willfulness" element of Bauernfeind v. Albany Med. Ctr. Hosp. ( supra), but there does not appear to be sufficient prejudice to Management to justify precluding the Altschule Affidavit.
The Management defendants also take issue with the content of the Altschule Affidavit, disputing several of his observations and characterizing his conclusions as speculative. They submit a reply affidavit from their meteorologist which states his disagreement with Mr. Altschule's opinions. Both meteorologists draw conclusions from weather data for the time period in question, with Mr. Altschule also utilizing photographs of the scene. Mr. Sherman argues that additional factors should have been considered by Altschule in rendering his opinion. Management thus disputes Mr. Altschule's credibility. Questions of credibility between conflicting affidavits should not be determined on a motion for summary judgment unless one contains patently false or incredible statements ( Ferrante v. American Lung Assn., 90 NY2d 623; Home Mutual Ins. Co. v. Lapi, 192 AD2d 927). The Court cannot say that either affidavit contains patently false or incredible statements. Given the existence of factual issues as to both the creation of the icy condition at issue and Management's notice of same, this motion must be denied.
The Suburban Motion. The Suburban defendants base their motion on the argument that it is legally impossible for them to be found negligent. They rely on Espinal v. Melville Snow Contractors, Inc. ( 98 NY2d 136) to argue that they owed no duty to Plaintiff by virtue of their snow removal contract with Management, so that a finding of negligence is precluded.
The rule enunciated in Espinal indeed states that a contractual obligation, by itself, is insufficient to give rise to tort liability in favor of a third party. However, three situations are identified in that opinion where liability could be imposed. The first is where either the contract obligor's actions have "launched a force or instrument of harm" or his inaction is "at most a refusal to become an instrument of good" ( Id., at 139, citing H.R. Moch Co. v. Rensselaer Water Co., 247 NY 160). The second is where the obligor's past performance has induced detrimental reliance on continued performance and his failure to perform results in injury ( Id., at 140, citing Eaves Brooks Costume Co. v. Y.B.H. Realty Co., 76 NY2d 220). The third situation is where the scope of the contract is so comprehensive that the obligor can be found to owe a duty to "noncontracting individuals reasonably within the zone" of his intended duties under the contract ( Id., citing Palka v. Servicemaster Mgt. Services Corp., 83 NY2d 579).
The Suburban defendants argue that Plaintiff cannot meet any of these three tests. They note that their duty under the contract was not comprehensive, because Suburban was not obligated to remove snow until there was a sufficient accumulation and, more importantly, Management was to be notified after snow removal was completed for inspection and approval. They also argue that there is no evidence of detrimental reliance on past performance that would alter their contractual duty. Therefore, according to the Suburban defendants, the only viable avenue for imposition of liability on them is for Plaintiff to prove that they "launched a force or instrument of harm" by piling snow on the island in the parking lot. They argue, however, that the deposition testimony by representatives of both Management defendants shows that Suburban had no duty or control over the removal of snow from the island. The decision to remove snow was made by Management and performed by another contractor.
Plaintiff responds that two of the three situations outlined in Espinal are, in fact, applicable here. First, Plaintiff contends that the hazard at issue resulted from the manner in which the snow was piled on the island, not its removal. Second, Plaintiff points out that the contract imposes a duty on Suburban to salt and sand the parking lot without any limitation as to snowfall amounts or inspection by Management. Management also makes this second argument in opposing the Suburban motion.
The photographs submitted by Plaintiff, taken the day after Plaintiff's fall, include shots of the snow pile on the island. Those photos show what appears to be a portion of the snow pile covering parts of at least two parking spaces one in which Plaintiff's car is parked and another adjacent to it. The photos also show what is described in the depositions as either water or black ice, depending upon the witness, which appears to emanate from the snow pile in the parking spaces. What is not clear from either the photographs, affidavits or deposition testimony, is whether the intrusion of snow onto the parking area resulted from plowing operations or from the removal of snow from the island.
Timothy Trier testified that the snow pile on the island became so large that he was unable to clear all of the parking spaces next to it. As pointed out on the Management motion, another contractor appears to have been on the property to remove snow from the island on or about February 5, 2004. While Trier was unable to testify as to specific dates, Suburban records indicate that the last time prior to Plaintiff's fall that Suburban had plowed the lot was on February 6, 2004. Was sufficient snow removed from the island to allow for complete clearing of the lot? Should reasonable inspection by Management have disclosed the problem of obstructed parking spaces? If such inspection did take place, did Suburban simply fail to correct the problem? Again, viewing the facts in the light most favorable to Plaintiff as the non-moving party, there is a factual question as to whether the Suburban defendants "launched a force or instrument of harm" by failing to clear the parking spaces of snow, which later melted and re-froze into black ice on which Plaintiff slipped and fell. Therefore, the Suburban defendants' motion must be denied.
Accordingly, for the foregoing reasons, it is
ORDERED that the motion by defendants Bigsbee Village Homeowners Association and Diamond Realty Enterprises Corp. seeking summary judgment dismissing the Complaint herein is DENIED; and it is further
ORDERED, that the motion by defendants Timothy Trier, Inc. d/b/a Suburban Turf and Suburban Turf, LLC, seeking summary judgment dismissing the Complaint herein is DENIED.
THIS DECISION SHALL CONSTITUTE THE ORDER OF THE COURT.
THE ATTORNEY FOR PLAINTIFF SHALL ENTER THIS ORIGINAL DECISION/ORDER AND PROVIDE A COPY WITH PROOF OF ITS ENTRY ON THE OPPOSING ATTORNEY(S) OR THE PRO SE LITIGANT(S), AS THE CASE MAY BE.