DiMetteo v County of Nassau
Annotate this CaseDecided on May 9, 2005
Supreme Court, Nassau County
Angelo Dimetteo and CHRISTINA DiMETTEO, Plaintiffs,
against
County of Nassau, INCORPORATED VILLAGE OF VALLEY STREAM, THE SOUTHLAND CORPORATION EMPLOYEES' SAVINGS AND PROFIT, 7-11 STORE # 22413 SHARING PLAN TITLE HOLDING CORPORATION, Defendants.
Bondy & Schloss, New York City, for Dorothy Schunk. Brosnan & Hegler, Garden City, for Linda Schunk.
12089/02
Anthony L. Parga, J.
Upon the foregoing papers, the motion by defendant Incorporated Village of Valley Stream ("Village"), the motion by defendants The Southland Corporation Employees' Savings and Profit Sharing Plan Title Holding Corp. and 7-11 Store #
22413 ("7-11") and the cross-motion by defendant County of Nassau ("County"), for an order granting summary judgment dismissing the Complaint in their favor, are consolidated for disposition and decided as follows:
The motion by defendant Village for an order granting summary judgment dismissing the Complaint and all cross-claims against it is granted.
The cross-motion by defendant County for an order dismissing the Complaint and all cross-claims against it is granted.
The motion by defendants 7-11 for an order granting summary judgment [*2]dismissing the Complaint and all cross-claims asserted against them is denied.
This is an action to recover damages for the personal injuries sustained by the plaintiffs (a driver and passenger) when their vehicle struck a raised manhole as they were pulling into the parking lot of a 7-11 store. Plaintiff claims that the manhole, which states on its cover "NC Sewer", was in the parking lot and was exposed due to broken concrete. The plaintiffs contend that their 1995 Cadillac DeVille came to a complete stop after it struck the manhole and as a result plaintiffs were thrown against the windshield. The plaintiffs further claim that the Cadillac had to be pushed into a parking spot and was "totaled". Defendants 7-11 owns and operates the parking lot and invites patrons to use their lot. Defendant County's witness testified at an examination before trial that his inspection of the manhole revealed that the manhole and its cover were not raised but that the elevation difference of, at most, three-quarters of an inch, was a result of the settlement and deterioration of broken concrete surrounding the manhole cover.
As a preliminary matter, the Court will first address the timeliness of the defendants' summary judgment motions against the plaintiff and against each other. The Village's motion, served on December 17, 2004, and 7-11's motion served on January 12, 2005, were both timely served within 60 days after the filing of the Note of Issue on November 15, 2004, in accordance with the Certification Order. However, the cross-motion by the County was 16 days late on January 31, 2005. The County has not proferred any excuse for the late filing, and there does not appear to have been any reason for the County to have delayed the filing of its motion or to utilize the procedural device of a cross-motion.
There are currently two lines of Appellate decisions applying the seminal Court of Appeals case Brill v. City of New York, 2 NY3d 648 - to late cross-motions. The issue of cross-motions was not before the Court of Appeals in that case, and was not even addressed by the Court in a footnote or in dicta. In Brill, the Court of Appeals held that CPLR 3212(a) permitted only one basis upon which making a late summary judgment motion could be excused for "good cause" - which "requires . . . a satisfactory explanation for the untimeliness - rather than simply permitting meritorious, nonprejudicial filings, however tardy . . . No excuse at all, or a perfunctory excuse, cannot be 'good cause' " (Gonzalez v. Zam Apartment Corp., 11 AD3d 675, 658, quoting Brill v. City of New York, 2 NY3d 648, 652; see also, Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726, 727). One line of recent appellate cases have adopted this strict view - "[i]n the absence of such a 'good cause' showing, the court has no discretion to entertain even a meritorious, non-prejudicial [cross] motion for summary judgment [*3][emphasis added]" (Thompson v. Leben Home for Adults, __ AD3d __, __ NYS2d __, 2005 NY App. Div. LEXIS 3541 [2nd Dept., April 4, 2005]; Colon v. City of New York, __ AD3d __, 788 NYS2d 606 [1st Dept., Feb. 3, 2005]. However, the Appellate Division, Second Department continues to also adhere to a principle it established in a line of cases prior to Brill that appears to contradict Brill's core holding - that the Court has no discretion to excuse the late service of any motion for summary judgment unless there is a satisfactory explanation for the untimely motion (see, Bressingham v. Jamaica Hosp. Med. Center, __ AD3d __, __ NYS2d __, 2005 NY App. Div. LEXIS 4083 [2nd Dept., April 18, 2005]). These cases stand for the proposition that even if there is no explanation for the late cross-motion, "good cause" can nevertheless be found by the Court to exist as a basis to entertain a belated motion or cross-motion "in the interests of judicial economy . . . where another defendant has served a timely but nearly identical, and as yet undecided, motion for summary judgment" (Boehme v. A.P.P.L.E. A Program Planned for Life Enrichment, 298 AD2d 540, 541-542; Miranda v. Devlin, 260 AD2d 451, 452). The County's late cross-motion falls squarely into this category since it seeks dismissal of the plaintiffs' Complaint on the same ground as the timely motion by the Village which will be decided herein, i.e., that the municipality did not have prior written notice of a defective manhole or manhole cover. Furthermore, the timely motion by the Village sought relief against the County, i.e., the dismissal of the County's cross-claims (cf. Gonzalez v. Zam Apt. Corp., supra ). Accordingly, this Court in this instance will follow the Second Department's narrow exception to Brill and consider the County's cross-motion on its merits.
Both the Village and the County made prima facie showings of entitlement to judgment as a matter of law by establishing that they did not have prior written notice of the allegedly defective manhole cover and that they did not create the allegedly defective condition by an affirmative act of negligence (see, DeSilva v. City of New York, __ AD3d __, 790 NYS2d 87 [1st Dept. Feb. 15, 2005]; ITT Hartford Ins.Co. v.Village of Ossining, 257 AD2d 606). The plaintiffs, however, in opposition to these motions, failed in their burden of raising a triable issue of fact (Shaw v. Auburn, 91 AD2s 817, aff'd 59 NY2d 780). The plaintiffs also failed to submit sufficient proof which would raise a question of fact as to whether the subject manhole fell within the special use exception of the prior written notice requirement (see, Poirer v. City of Schenectady, 85 NY2d 310, 315; Patterson v. City of New York, 1 AD3d 139, 140; ITT Hartford Ins. Co. v. Village of Ossining, supra , at 606-607). [*4]
Turning to the motion by defendants 7-11, they contend that they are entitled to summary judgment as a matter of law on the grounds that (1) the exposed manhole cover was must be considered a trivial defect in the context of a heavy automobile striking a cover which was allegedly elevated only three-quarters of an inch and; (2) the plaintiffs' testimony cannot be considered by the Court as credible; and (3) the plaintiffs' version of the purported accident is incredible as a matter of law (Welch v. DeCicco, 9 AD3d 725, 726). However, defendants 7-11 did not meet their burden of first establishing via, e.g., a store manager who has personal knowledge of the facts, that 7-11 maintained its parking lot in a reasonably safe condition, that it conducted regular inspections of the lot to determine its condition, that it did not create the allegedly dangerous or defective condition in the lot and that it did not have actual or constructive notice of the crumbling cement around the manhole cover (see, Jones-Barnes v. Congregation Agudat Achim, 12 AD3d 875 876; Peterson v. Treeco Plainview, Ltd., 9 AD3d 402; DeGruccio v. 863 Jericho Tpke. Corp., 1 AD3d 472, 473; compare, Welch v. DeCicco, supra ). "As a general rule, a party does not carry its burden for summary judgment by pointing to gaps in plaintiff's proof, but must affirmatively demonstrate the merits of its claim or defense" (Calderone v. Town of Cortlandt, __ AD3d __, 790 NYS2d 687 [2nd Dept., Feb. 28, 2005], quoting Mennerich v. Esposito, 4 AD3d 399, 400, and Larkin Trucking Co. v. Lisbon Tire Mart, 185 AD2d 614, 615). The failure by defendants 7-11 to make a prima facie showing of their entitlement to summary judgment as a matter of law requires the denial of the motion, regardless of the sufficiency of plaintiffs' opposing papers (see, Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). In addition, the question as to whether an owner or possessor of real property can be held liable for a dangerous condition which exists on that property depends on the peculiar facts and circumstances of each case and usually presents a question of fact for the jury to determine (Corrado v. City of New York, 6 AD3d 380; see, Basso v. Miller, 40 NY2d 233, 241-242). Here there remain triable issues of fact as to (1) whether defendant 7-11 was negligent in not keeping the premises in a reasonably safe condition, (2) whether such negligence was a substantial factor in bringing about the accident, and (3) whether the allegedly defective manhole cover existed for a sufficient period of time for it to have been discovered and remedied by the defendant (see, DeGruccio v. 863 Jericho Tpk. Corp., supra ).
Dated: May 9, 2005.
[*5]
Anthony L. Parga, J.S.C.
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