Opinion
127095/2002.
Decided January 17, 2008.
Louis A. Carotenuto, Esq., Cartafalsa, Slattery, Turpin Lenoff, One Liberty Plaza, New York, The attorney representing movant, third third-party defendant Tully Construction, is.
Ross Weaver, Esq. Molod Spitz DeSantis, P.C., New York, The attorney representing defendant and third third-party plaintiff Division Nine Holdings, is.
Third third-party defendant Tully Construction Corp. moves by order to show cause for permission to file a late motion for summary judgment and, if granted permission, seeks summary judgment and dismissal of the third-party complaint. Only Division Nine Holdings submits papers in opposition. For the reasons which follow, the motion is granted in part and denied in part.
This motion brought by order to show cause was originally calendared for October 10, 2007. When no opposition or reply papers were received to the court's deadline of October 5, 2007, the court signed an order granting the motion on default. See, Order dated October 9, 2007. Apparently, without seeking court approval, the parties had extended the time for filing of papers and adjourned the return of the order to show cause. By stipulation, the parties agreed to vacatur of the court's October 9th order and restoration of the order to show cause to the October 17, 2007 calendar for consideration on its merits.
Plaintiff was allegedly injured on July 16, 2002, when he tripped and fell over "an area of uneven and elevated concrete which covered a metal cap on the sidewalk" in front of property known as 9 Division Street (OSC, Ex. A, Summons and Ver. Compl. ¶ 16). He commenced an action against the premises owner, Division Nine Holding Corp., on December 16, 2002, by filing a summons and verified complaint. Issue was joined in May 2003 (OSC, Ex. B, Ver. Ans.). Subsequently, Division Nine Holding commenced a third-party action in August 2003 against Smart Tone, Inc. and the City of New York, and a second third-party action against Consolidated Edison in June 2004 (OSC, Ex. C).
In August 2005, plaintiff filed a Note of Issue and Certificate of Readiness for Trial. On November 14, 2005, Division Nine Holding commenced a third third-party action against Tully Construction Corp. (OSC, Ex. D). The action against Tully is for indemnification and/or contribution should Division Nine Holding be found liable to plaintiff Velez. Tully served its answer and an amended answer in April 2006 (OSC, Ex. E, F).
Tully moved for and was granted severance of the third third-party action from the main action on May 3, 2006 (OSC, Ex. G). The severed case was randomly reassigned to another justice of the Supreme Court under the caption, Division Nine Holding Corp. v Tully Construction Co., Inc., Index No. 727095/2002. Following the completion of discovery in that matter in January 2007, Division Nine Holding filed a Note of Issue. It also filed a motion in this Part, seeking to re-join Division Nine v Tully to the main action for trial purposes.
On March 3, 2007, this court granted Division Holding's motion and ordered that the two matters be jointly tried (OSC, Ex. H).
In the meantime, on February 12, 2007, shortly after Division Nine served its motion seeking joinder, Tully interposed a timely motion for summary judgment and dismissal of the complaint in Division Nine v Tully Construction. This motion was denied without prejudice on July 11, 2007, and the matter was stayed until the main action was settled or otherwise disposed, so as to avoid an inconsistent or duplicative result (OSC, Ex. I [Dec. Order of July 11, 2007, Division Nine Holding Corp. v Tully Constr. Co., Inc., 727095/2002] [Goodman, J.]). The parties were then granted leave to reargue the decision after the joinder of the two matters, and on October 10, 2007, the stay was vacated (Dec. Order of Oct. 10, 2007, Division Nine Holding Corp. v Tully Constr. Co., Inc.).
Tully's current motion brought by order to show cause seeks leave to serve its summary judgment motion. It notes that the earlier denial of summary judgment was not based on the merits, and that the earlier objections to deciding its motion, namely that plaintiff was not a party to the second action and would not be heard, are no longer at issue as the matters are joined for trial. Tully argues that it would be patently unfair to be forced to participate in a trial when by circumstances beyond its control, it was brought into the action too late to be able to move for and be granted summary judgment at the appropriate time.
Pursuant to CPLR 3212 (a), a motion for summary judgment may not be made later than 120 days after the filing of the notice issue, except with leave of court on good cause shown. In Brill v City of New York,2 NY3d 648 (2004), the Court of Appeals held that in order to preserve the ameliorative nature of that section of the statute, where a motion for summary judgment is not filed within 120 days and there is no good cause offered for the delay, the parties forfeit their opportunity to have their motion considered by the court and must proceed to trial ( Brill at 653). See also, Miceli v State Farm Mut. Auto. Ins. Co.,3 NY3d 725 (2004).
Division Nine Holding opposes Tully's motion. Division Nine unpersuasively argues that Tully's motion "is merely a second application for the same relief . . . that was denied by Judge Goodman" (Weaver Aff. in Opp. 2). Tully's motion had been denied without prejudice to renew, and the stay against doing so has been vacated. Division Nine also argues that there remains a danger of inconsistent or contradictory verdicts, were the motion for summary judgment granted.
Tully originally brought its motion to show cause within 45 days of the filing of the Note of Issue by Division Holding (OSC, Carotenuto Aff. ¶ 11). Given the alacrity with which it brought its original summary judgment motion, and the circumstance of being brought into the litigation only after the Note of Issue was filed, Tully establishes good cause for the unavoidable lateness in bringing this motion, and therefore the branch of its motion which seeks to file a summary judgment motion to dismiss the third party complaint is granted.
Turning to the merits of its motion, Tully includes copies of the complaint and answer and third-party complaints and answers, and the deposition testimony of plaintiff (OSC Ex. L [hereinafter Velez EBT]), Helena Chu, vice president of Division Nine Holding (OSC Ex. N [hereinafter Chu EBT], 6), and Edward Berg, an estimator for Tully Construction (OSC Ex. P [hereinafter Berg EBT], 5), as well as copies of certain documents and photographs.
Plaintiff, a police officer in the service of the New York City Police Department in July 2002, testified that on the afternoon of July 16, 2002, while on duty, he twisted his ankle and heard a pop as he walked on the sidewalk in front of 9 Division Street (Velez EBT 23). He stated that he tripped on "some kind of metal, square metal object with cement over it sticking up in the street on the sidewalk." (Velez EBT 29: 10-12). Within a month of his accident, plaintiff returned to the site with someone from his attorney's office, in order to identify the site and take pictures (Velez EBT 66-67).
The witness for Division Nine Holdings was Helena Chu who testified that she has owned the building at 9 Division Street for more than 50 years and is in the real estate business (Chu EBT 7). She takes care of the accounting and taxes for the building (Chu EBT 13). She has been with the company for about 15 years (Chu EBT 15). She testified that in 2002, the commercial tenant renting the first floor was Smart Tone Inc., who leased from about 2001-2003, after having sublet from the former tenant from about 1999-2001 (Chu EBT 9, 10). In 2003, Smart Tone transferred its tenancy to another company (Chu EBT 10).
Chu lived in the top floor of the three-story building at 9 Division Street for about 15 years beginning in about 1970 (Chu EBT 17, 18, 19-20). She still regularly passes by the building (Chu EBT 15-16). She has at times taken photographs of the building's sidewalks when there were changes (Chu EBT 25-26), and she produced two photographs that she took between 1990-1995 which did not show any obstruction in the sidewalk (Chu EBT 23, 25). In the years between her taking the photographs and the year 2000, the condition of the sidewalk did not change (Chu EBT 28). The City replaced the sidewalk in 2000 (Chu EBT 25). No further replacement was done after the City's work, although Division Holding replaced a part of the sidewalk in 2006 when the sewer needed repair (Chu EBT 45-46).
Chu took photographs again in about 2003, after plaintiff's accident (Chu EBT 29-30). She thought she first noticed the object in the sidewalk "around beginning of 2001" (Chu EBT 33: 6-8). She had "no idea" whether it was put in the sidewalk at the time the City replaced the sidewalk, or sometime later (Chu EBT 36: 9-16). She did not know the purpose of the "metal frame" and did not know who put it in the sidewalk (Chu EBT 34). She did not think there was ever a sign or a freestanding payphone embedded in the sidewalk (Chu EBT 37, 41). There came a time when she noticed the plate was no longer there, and she spoke about it to the foreman of the company replacing part of the sidewalk in 2006 (Chu EBT 46, 51). He told her not to worry as it had no function (Chu EBT 51).
The witness produced on behalf of Tully Construction was Edward Berg. Tully Construction does some work for the City of New York (Berg EBT 11). As an estimator, Berg worked on bids and sometimes also served as superintendent or a project manager for the jobs (Berg EBT 11). He was familiar with the contract between Tully and the City to reconstruct the Chatham Square area of Manhattan which includes Division Street (Berg EBT 12, 23). In June 1999, Tully was awarded the contract entailing the installation of new water mains, drainage system, curbs, and sidewalks and roadways (Berg EBT 20, 23). Berg supervised or managed this particular project (Berg EBT 22). At Division Street, the work involved removing the old curb and installing a new curb in the same location as the original, cutting the sidewalk approximately four feet wide from the curb line toward the building and replacing four feet of sidewalk going parallel along the curb on Division (Berg EBT 24). The old sidewalk was broken up and removed, to a depth of ten inches and replaced with six inches of granular fill and four inches of concrete (Berg EBT 25). Tully poured the concrete (Berg EBT 25). The sidewalk work on Division Street was done on April 7, 10, 12, 14, and June 17, 2000 (Berg EBT 29, 31).
Berg was asked about the object in the sidewalk. He could not tell what the object was from the photograph (Berg EBT 36). He stated that based on the photographs and his knowledge of Division Street, the object was located in the area of sidewalk that was redone by Tully (Berg EBT 35-36). His job book contained instructions or information on what to do about utility hardware found in the street, which was to make the surface of the roadway or sidewalk even (Berg EBT 38). When workers encountered a utility installation in a sidewalk, Tully was required either to move or alter the installation so that the surface could be made smooth (Berg EBT 38). Berg would make a note of the utility installation because there was a different charge for relocating these installations (Berg EBT 40). In the Chatham Square job, Tully dealt with two utilities: Con Ed and Verizon, with the City responsible for water mains and such (Berg EBT 40). Tully would consult with the appropriate inspector for the utility at issue, who would determine if the installation was functional (Berg EBT 39). A functioning utility box would be brought up to the "new grade" and an abandoned box would be removed (Berg EBT 39).
Berg's daily log did not reflect the presence of any utility installations on the sidewalk at 9 Division Street (Berg EBT 41). Privately owned installations, such as for fuel oil or electrical service, were found, and they were treated in the same manner as the public installations, by upgrading or removing, after contacting the proper person concerning their existence (Berg EBT 42).
Berg described the process that Tully workers used to make sure there was an even grade between the installation and the surrounding concrete after it was poured, and noted that an inspector for New York City would inspect the work to make sure the grade was maintained (Berg EBT 43). The inspector for the City in this contract was a consulting firm called Urbitran Consultants (Berg EBT 43). According to Berg, only Tully performed work on the sidewalk in the vicinity of 9 Division during this contract, however Berg saw both Con Ed and Verizon doing work in the area after the project was completed (Berg EBT 45-46). He was also aware that the Traffic Department had done work in the area although not necessarily precisely at the site (Berg EBT 51) Although he did not know who did more work, he explained that the 2003 photos showed that additional work was done after Tully's work (Berg EBT 47). Proof of additional work was embodied in the object at issue which, Berg stated, would never have been left in the sidewalk by Tully under the terms of the contract, nor approved by the City (Berg EBT 48). There were also score lines in the sidewalk done in a manner that Tully would not have used in making the sidewalk (Berg EBT 48, 50). He concluded that Tully would not have left the object in the sidewalk in that position, and therefore it must have been installed at a later date (Berg EBT 51).
A motion for summary judgment is a drastic measure and to be used sparingly ( Wanger v Zeh, 45 Misc 2d 93 [Sup. Ct., Albany County], aff'd 26 AD2d 729 [3rd Dept 1965]). Summary judgment is proper when there are no issues of triable fact ( Alvarez v Prospect Hospital, 68 NY2d 320, 324). Issue finding rather than issue determination is its function ( Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395). The evidence will be construed in the light most favorable to the one moved against ( Weiss v Garfield, 21 AD2d 156 [3rd Dept 1964]).
To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor ( GTF Mtkg, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial ( Kosson v Algaze, 84 NY2d 1019). Bare conclusory allegations are insufficient to defeat a motion for summary judgment. ( See, Thanasoulis v National Assn. for the Specialty Foods Trade, Inc., 226 AD2d 227 [1st Dept 1996]; Lee v Weinstein, 116 AD2d 700 [2nd Dept], lv denied 68 NY2d 601).
To establish a prima facie case of negligence, a plaintiff must demonstrate (1) that the defendant owed him or her a duty of reasonable care, (2) there was a breach of that duty, and (3) a resulting injury proximately caused by the breach ( see, Boltax v Joy Day Camp, 67 NY2d 617). The threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party ( Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138). It is the court's responsibility to determine whether there is a duty, and "involves a very delicate balancing of such considerations as logic, common sense, science, and public policy" ( Blye v Manhattan Bronx Surface Transit Oper. Auth., 124 AD2d 106, 108 [1st Dept. 1987], aff'd 72 NY2d 888, citing Bovsun v Sanperi, 61 NY2d 219, 228; De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055). The scope of any such duty of care varies with the foreseeability of the possible harm ( Tagle v Jakob, 97 NY2d 165, 168).
At the time of plaintiff's accident, the law held that an abutting landowner was not responsible for maintaining the adjacent sidewalk absent some statute or other regulation, and in order to hold the owner liable for a pedestrian's injuries incurred on a public sidewalk, it must be shown that it created the dangerous condition or exercised a special use of the sidewalk ( see, D'Ambrosio v City of NY, 55 NY2d 454; Morgan v Department of Sanit. of the City of NY, 250 AD2d 525, 525 [1st Dept. 1998]; Nuesi v City of NY, 205 AD2d 370 [1st Dept. 1994]). An owner of abutting property owed no duty of care to warn others of a defective of dangerous condition, unless there was a finding of special use or control ( Mendoza v City of NY, 205 AD2d 741, 742 [2nd Dept. 1994] [fall on sidewalk outside defendant's storefront]).
Tully argues that summary judgment and dismissal of the third-party complaint is appropriate because the totality of the testimony and documentary evidence fails to establish that Division Nine owed a duty of care to plaintiff Velez, and therefore Division Nine cannot be found liable and there will be no issue of indemnification by Tully.
Division Nine Holding argues in opposition that the testimony by Tully's agent is contradictory to some of the testimony by Division's witness. For instance, Tully's agent stated that work was done on the sidewalk after Tully finished the City project because the then-current condition of the sidewealk with the protruding object was not reflective of Tully's work. This conflicts with Cho's testimony that no work was done on the sidewalk after the City's work in 2000. Although Division Nine Holding is correct that there are certain inconsistencies and contradictions in the testimony, the issue remains that plaintiff must establish that defendant, an abutting landowner, owed him a duty of care.
Curiously, the plaintiff and the other third-party defendants (Smart Tone, Inc., The City of New York, and Consolidated Edison Co.) have not taken a position on this motion. This case must be decided on the law as it existed prior to recent amendments to the sidewalk law. There is nothing offered in any of the materials before the court to show that Division Nine created the dangerous condition such as, for instance, by installing the object or repairing the sidewalk ( see, Mendoza v City, 205 AD2d at 742). Chu did not know when the object was installed or removed. Nor is there a scintilla of evidence that Division Nine enjoyed a special use of the sidewalk abutting the building ( see, Poirier v City of Schenectady, 85 NY2d 310, 315 [special use of sidewalk is a use by the abutting owner in a manner unrelated to the public use]). Chu did not know what the object was. Therefore, plaintiff does not establish any duty of care owed to him by Division Nine Holding, and his claim against the defendant must seemingly fail as a matter of law.
That said, Divison Nine and the other third-party defendants never moved for summary judgment and at no point on this motion did they ask the court to search the record. Any summary judgment at this late juncture would require a showing of good cause for its being made over two years after the filing of the note of issue. Although Tully suggests that the court should search the record in its entirety, pursuant to CPLR 3212 (b), and then based on the reasoning set forth above, dismiss the case in its entirety, such an action would be imprudent and unauthorized ( see, Chun v North Am. Mortg. Co., 285 AD2d 42, 46 [1st Dept. 2001] [ sua sponte dismissal should be exercised only "under extreme conditions"]; Ressis v Mactye, 98 AD2d 836 [3rd Dept. 1983] [motion required before court dismisses an action]). Plaintiff should have an opportunity to actively oppose summary dismissal of his claim vis-a-vis non-moving parties. However, it would appear that at the end of the plaintiff's case a trial order of dismissal may well have to be granted to Division Nine Holding Corp. and the parties would do well to settle this action rather than litigate to that point. Such is the price for failing to heed the warnings of Brill, Miceli and other cases.
Inasmuch as Tully is the party who worked on the sidewalk where the accident occurred, and poured the concrete, should a jury conclude that Division Nine did owe plaintiff a duty, and should the trial court determine that sufficient evidence did exist to support that finding, then a jury might also determine that Tully as the party who poured the concrete had a duty of common law indemnification or contribution to Division Nine. While this seems unlikely on this record, the court cannot allow Tully's motion to serve as an end run around Brill by the other defendants and third-party defendants. Had Tully been named as a defendant by plaintiff, surely it would not be entitled to summary judgment. As long as Division Nine remains a defendant it should be permitted to pursue its cause of action against the party who poured the concrete, Tully. Thus, the branch of the motion which seeks summary judgment is denied. Nothing stated here, however, would preclude a trial judge from granting Tully a trial order of dismissal in the event that the plaintiff's case shows, as anticipated, that Division Nine owed him no duty of care.
ORDERED that third third-party defendant Tully Construction Co. Inc.'s motion seeking permission to file a late summary judgment motion is granted, and upon consideration of the motion, it is
ORDERED that the motion for summary judgment and dismissal of the third third-party complaint is denied for the reasons stated.
ORDERED that the parties are directed to appear as previously scheduled on January 28, 2008, in Supreme Court, Part 27 for jury selection.
This constitutes the decision and order of the court.