Opinion
Index 611141-2017
03-22-2021
EDWARD G. WHEATON, Plaintiff, v. STEVEN PELTA as Administrator of the ESTATE OF SAMUEL PELTA a/k/a SAM PELTA, Deceased, and CHARLES J. SAVIANO, Defendants.
Law Office of Daniel R. Olivieri, P.C. Attorneys for Plaintiff Law Offices of Karen L. Lawrence Attorneys for Defendant McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP Attorneys for Defendant Charles J. Saviano
Unpublished Opinion
MOTION DATE: 10/21/20
Law Office of Daniel R. Olivieri, P.C. Attorneys for Plaintiff
Law Offices of Karen L. Lawrence Attorneys for Defendant
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP Attorneys for Defendant Charles J. Saviano
PRESENT: HON. DAVID T. REILLY, JSC
DAVID T. REILLY JUSTICE OF THE SUPREME COURT
Upon the following papers read on this motion seeking summary judgment: (1) Notice of Motion and supporting papers by Saviano dated September 10, 2020 (documents 26- 36); (2) Affirmation/Affidavit in Opposition and supporting papers by Pelta dated October 4, 2020 and by Plaintiff dated October 12, 2020 (documents 38, 40-43); and (4) Affidavit/ Affirmation in Reply and supporting papers dated October 9, 2020 (document 44); it is, ORDERED that defendant, Charles J. Saviano's (Saviano), motion seeking summary judgment pursuant to CPLR 3212 is granted. Accordingly, plaintiff's claims against Saviano and defendant Wheaton's cross-claims against Saviano are dismissed in all respects.
The within action seeks to recover damages for personal injuries allegedly sustained by plaintiff in a fall that occurred between 5:30 and 6:00 p.m. on November 17, 2015. Issue has been joined and discovery commenced. Saviano now seeks summary judgment dismissing the claims and cross-claims against him.
The site of the accident was an unoccupied residence owned by the Estate of Samuel Pelta a/k/a Sam Pelta, located at 18 Rachel Avenue, Commack, New York (the premises). The Estate is sued herein as "Steven Pelta as Administrator of the Estate of Samuel Pelta a/k/a Sam Pelta." Saviano had an agreement with Steven Pelta, whereby Saviano would have access to the premises in order to try and sell the late Samuel Pelta's plumbing tools and equipment. Plaintiff was present at the premises to meet Saviano and look at some of the equipment for sale. Plaintiff examined the plumbing equipment and tools located in the basement, then exited the residence by the rear door to view the equipment stored in a garage or shed. He testified at his deposition that the door he exited lead to a backyard patio comprised of pavers, that three steps lead down to the backyard and that he thought there had been a wooden handrail on the right of the stairs. He testified that he was unsure about the composition of the patio and handrail because no lights were activated in the backyard and it was very dark. He later testified, while looking at a photo of the accident scene, that the handrail may not have been there at the time of the accident because he remembers hitting his shoulder on Belgian block, landing on both pavers and grass as he fell. He stated that he did not see the steps ahead of him as he walked and that he fell down on them. Saviano had walked ahead of him into the backyard and had not warned that there were steps.
Saviano testified at his deposition that he had checked in on the property while Samuel Pelta was living with his son in Connecticut and continued to do so after Mr. Pelta's death. He plowed snow, cut grass and checked to see if there were any leaks or burner problems until the house was sold sometime in 2016. He also sold plumbing materials and parts that had belonged to Samuel Pelta at Steven Pelta's request, retaining a percentage of the proceeds. Plaintiff was at the residence to look at the equipment for sale. Saviano averred that, on the date of the accident, there was a motion detector light outside the sliding patio door and that he turned on the light before opening the door, rather than waiting for the motion sensor to activate. He attested that there was also a security motion detector light on the shed which was twelve feet from the patio and that the patio was well-lit by both natural and artificial light, as it had not yet grown dark outside. Upon review of photographs of the patio area, he testified that there was a step down from the patio to the grass. He did not recall handrails by the patio step. In his affidavit accompanying his motion, Saviano attests that over the course of six months in 2015, as per an agreement with Steven Pelta, he showed plumbing items at the house to potential buyers and the proceeds of sales were split on a 50/50 basis. He avers that he never resided at the property, never had an ownership or leasehold interest in the property and never had exclusive use of the property. He was at the house for the sole purpose of showing the items for sale. He never performed any maintenance or repair work to the patio or the step and was not aware of any defects or dangerous conditions.
Defendant Steven Pelta testified that he and his wife checked on the house and the functioning of the lights every week, that the motion detector lights were functioning before and after the accident, that the lights illuminated the entire patio area into the grass, that Saviano cleared the snow and cut the lawn and that Saviano did not maintain anything in the house. He further testified that there was a stone wall on either side of the steps and that there had been an iron railing at one point, but he was not sure if it was there at the time of the accident. Additionally, he testified that some of the decorative Belgian blocks that were depicted in photographs presented at deposition were not present at the time of the accident, nor was the wooden railing.
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). The opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Stonehill Capital Mgmt., LLC v. Bank of the West., 28 N.Y.3d 439, 448, 68 N.Y.S.3d 683, 688 [2016](quoting Alvarez v Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept. 1990]). If the issue claimed to exist is not genuine, but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985], affd , 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282; Barclays Bank of New York, N.A. v. Sokol, 128 A.D.2d 492, 512 N.Y.S.2d 419, 420 [2d Dept. 1987]).
A negligence cause of action requires the existence of a duty and a breach of that duty which proximately caused injury or damages (Muallem v. City of New York, 82 A.D.2d 420, 441 N.Y.S.2d 834 [2d Dept.1981], aff'd, 56 N.Y.2d 866, 438 N.E.2d 1142 [1982]; Pulka v. Edelman, 40 N.Y.2d 781, 358 N.E.2d 1019 [1976]; Mojica v. Gannett Co., 71 A.D.3d 963, 897 N.Y.S.2d 212 [2d Dept. 2010]; Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148, 937 N.Y.S.2d 63 [2d Dept. 2011], aff'd but criticized, 20 N.Y.3d 342, 985 N.E.2d 128 [2013]; Abbott v. Johnson, 152 A.D.3d 730, 61 N.Y.S.3d 34 [2d Dept. 2017]; Guzman v. Jamaica Hosp. Med. Ctr., 190 A.D.3d 705, 135 N.Y.S.3d 886 [2d Dept. 2021]; Jones v. Saint Rita's Roman Catholic Church, 187 A.D.3d 727, 133 N.Y.S.3d 40 [2d Dept. 2020]). The threshold issue in any negligence case is whether or not defendant owed a duty to plaintiff. In the absence of duty, there can be no breach and no liability (Pulka v. Edelman, 40 N.Y.2d 781, 782-83, 358 N.E.2d 1019 [1976]; Muallem v. City of New York, 82 A.D.2d 420, 423-25, 441 N.Y.S.2d 834 [2d Dept.1981], aff'd, 56 N.Y.2d 866, 438 N.E.2d 1142 [1982]; Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148, 159-60, 937 N.Y.S.2d 63, 71-72 [2d Dept. 2011], aff'd but criticized on other grounds, 20 N.Y.3d 342, 985 N.E.2d 128 [2013]).
Saviano argues that summary judgment should be granted dismissing the claims against him because he did not own the premises, had no possessory interest in the premises, he did not cause or create a defective condition and he had no legal duty of care to plaintiff. It is plaintiff's position that Saviano "...controlled the property for a period of at least six (6) months wherein the owner, Mr. Pelta, intermittently appeared at the house," that Saviano was maintaining the property and that Saviano "controlled the outdoor lighting by either flipping on a switch or not flipping on the switch that overrode the motion sensor for the backyard light." Plaintiff's theory of liability against Saviano is predicated upon the notion that Saviano controlled the property or made special use of it. The testimony of the owner of the house, Steven Pelta, indicated that Pelta and his wife checked the house weekly and that Saviano did not perform maintenance on the house. It is not disputed that Saviano did not own or occupy the house.
The imposition of "[L]iability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property ... Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Minott v. City of New York, 230 A.D.2d 719, 645 N.Y.S.2d 879 [2d Dept. 1996] (quoting Turrisi v Ponderosa, Inc., 179 A.D.2d 956); see also Noia v. Maselli, 45 A.D.3d 746, 846 N.Y.S.2d 326 [2d Dept. 2007]; Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 865 N.Y.S.2d 667 [2d Dept. 2008]; Breland v. Bayridge Air Rights, Inc., 65 A.D.3d 559, 884 N.Y.S.2d 143, 144 [2d Dept. 2009]; Leitch-Henry v. Doe Fund, Inc., 179 A.D.3d 655, 113 N.Y.S.3d 569 [2d Dept. 2020]). The special use exception may apply in a case where an abutting landowner uses a portion of a public way for his or her own benefit and exercises control over that portion of the public way such that a duty to maintain the safety of that portion is imposed (Id.; Ruffino, supra; Padarat v. New York City Transit Auth., 175 A.D.3d 700, 107 N.Y.S.3d 389 [2d Dept. 2019]; Kaufman v. Silver, 90 N.Y.2d 204, 208-09, 681 N.E.2d 417 [1997]).
Here, Saviano submitted sufficient evidence that he did not own, occupy, control or make special use of the premises. He was aware of no defective condition on the property. His only connection to the property was to show items for sale, mow the lawn and clear snow. The claims here at issue are unrelated to mowing or snow. Plaintiff alleges that, between 5:30 and 6:00 p.m. on a November evening, that it was very dark outside and that he could not see the patio steps, resulting in a fall. Saviano asserts that he turned on a light, that it was not yet dark outside and the area was well-lit. Plaintiff claims that Saviano was responsible for maintenance of the property, which is unsupported by sufficient evidence, and that he controlled the light switch. Plaintiff further argues that Saviano walked ahead of him into the yard and failed to warn him that there were two steps down to the lawn. The facts and evidence presented are insufficient to establish a duty of care (Schwalb v. Kulaski, 29 A.D.3d 563, 814 N.Y.S.2d 696 [2d Dept. 2006]; Pirie v. Krasinski, 18 A.D.3d 848, 849-50, 796 N.Y.S.2d 671, 673 [2d Dept. 2005]).
Saviano has made a prima facie case of entitlement to summary judgment as a matter of law and plaintiff has failed to raise a triable issue of fact. Defendant Pelta's cross-claim is predicated upon alleged culpable conduct of Saviano, asserting that, if the light was not responsive to motion, Saviano should have turned it on and that Saviano should have warned plaintiff that there were steps. Co-defendant has also failed to raise a triable issue of fact. In light of the foregoing, Saviano's summary judgment motion is granted. Plaintiffs claims against Saviano and Wheaton's cross-claims against Saviano are dismissed in all respects.
The foregoing shall constitute the decision and Order of the Court.