Capato v 125th & Lenox LLC
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Capato v 125th & Lenox LLC 2008 NY Slip Op 31893(U) July 1, 2008 Supreme Court, New York County Docket Number: 0117265/2006 Judge: Carol R. Edmead Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 71712008 [* 1 ] SUPREME COURIXF THE STATE OF NEW YOR /NE\ ,~ARO~EDMEAD' PRESENT: I .. Index Number : 1 17265/2006 YORK COUNTY PART 4 < ~/ j . ' I INDW NO. CAPATO, DAVID vs. MOTION DA1 125TH & LENOX, LLC MOTION 8EQ SEQUENCE NUMBER : 001 MOTION CAL SUMMARY JUDGMENT I. O rn thir motlon to/fc I - - . -- - -- - - Notico of Motion/ Order to Show Cauro .. z Anrworing Affldavltr 3 Cross-Motion: z 0 8F - - Affidavltr - Exhibits ... - Exhlbtts Replying Aff ldavltr 0 Yes 0 No K - - Upon tho foregoing papsrr, it is ordered that thir motion The instant motion is decided in accordance with the annexed Mcmorandu Decision. It is hereby ORDERED that the motion of defendants 125* & Lenox LLC and Management Corp., for an order pursuant to CPLR 3212 granting s u m m q the complaint of plaintiff David Capato in its entirety; is granted and thls The Clerk of the Court is directed to enter judgment accordingly; and it is j harton Realty udgmcnt dismissing ase is dismissed. ?her ORDERED that counsel for defendants shall serve a copy of this or :r with notice of entry within twenty days of entry on counsel for plaintiff. Dated: / Check one: d F I N A L DISPOSITION Check if approprlate: c] DO NOT POST J.S. C. I mD. DISPOSITION EE -B : 7 REFERENCE [* 2 ] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35 X DAVID CAPATO, Plaint iff -against125 rH LENOX LLC and WHARTON REALTY & MANAGEMENT CORP. I Defendants. . , EDMEAD, J 3 .C. .- . MEMO RANDUM DE(7ISION ~ I plaintiff as to defendant Wharton. This action seeks to recover for personal injuries which plaintiff al1ek;es he sustained on December 29,2005 on the sidewalk in front of the premises known as 25 Ler.ox Avenue andor 100 West 12ShStreet, New York, New York (the subject property ). The complaint alleges that plaintiff was working as a police officer when the alleged incident took place. Plaintiffs first cause of action is for negligence, and the second cause of action is premised -ipon General Municipal Law ( GML ) 5205-e. Plaintiff alleges that the LLC owned the subject property, and that Wtiarton was the managing agent for the property, In support of plaintiffs GML claim, plaintjff alleges that I Plaintiff does not oppose dismissal of defendant Wharton. [* 3 ] li defendants violated NYC Admin. Code ##7-210, 7-21 1 and 7-212 and New ork City Admin. Code ) 1 9- 152. Administrative Code (bbNYC Plaintirk Deposition On December 29,2005, plaintiff was working as a NYPD officer (p. 29). Police Officer Janna Borzell was present at the time of plaintifrs accident (p. 30). The accident took place in the vicinity of the corner of 12Sh Street and Lenox Avenue, 011 the sidewalk in front of the building (pp. 3 1-32). It was twilight, around 5:30p.m. (p. 33). The accident occurred anywhere from 25 to 30 -35 feet from the corner of Lenox Avenue (p. 33). Plaintiff was jogging when the accident occurred (p. 34). Plaintiff was traveling westbound on the sidewalk r.long 125IhStreet (p. 35). Plaintiff was on the south side sidewalk of I 2Sh Street (p. 36) P1ainti:Tdid not trip (p. 36). Plaintiff stepped in some form of a defect that was on the sidewalk. Plaintiff does not know how far from the street the defect was. Plaintiff could not approximate how far in from the street the defect was. As clear an idea as to the approximate location of the defect as plaintiff could give was that noted above (p. 37). When asked: As you sit here today, do you specifically recall seeing the claimed sidewalk defect that you re claiming caused your accident? Plaintiff answered: No. (p. 38) At no time before or after his accident did plaintiff ewer see the defect that caused his accident (p. 38). Plaintiff was focused on the west portion of 12ShStreet where a suspect allegedly had fled, and plaintiff was moving in that direction, attemp ing to make an apprehension. Plaintiff was jogging in that direction, (pp. 39-40). Less than one minute before his accident, plaintiff exited an unmarked police vehicle (p. 40). Plaintiff could not describe the defect in the sidewalk that caused his accident (p. 41). Plaintiff returned to the area of the incident to look for what might have caused his accident a variety of times. :he first time was -2I [* 4 ] I I 1 within 24 hours of his accident (p. 4 1 ). He has been back to the area of his a cident about 20 times, maybe more. He returned to the scene of the accident with the purpos of looking for where he fell once (p. 46). On his visits to the area, he observed numerous d fects in the sidewalk (p. 37). When he fell, the defect felt as if he had stepped in a hole. disappeared out from under him (p. 48). He could not say how deep the corner where the accident occurred was the subject property address (p. ike the sidewalk @. 48). At the the building at the corner where his accident occurred was vacant (p. photographs of the incident location about one month before his October 26,2007 (p. 52). The location had not changed (p. 55). ,I r When plaintiff returned to the scene 24 hours after his accident, he o erved numerous defects. There were pieces of the sidewalk itself missing. broken, damaged i another way. There were portions of the sidewalk made of mislaid bricks, creating gaps. observed was over twelve inches in length, and several inches in width (p. 5 e biggest gap he Plaintiff never saw the specific condition of the sidewalk which caus before the accident occurred (p. 72). There was a pay phone near the area w 124). Plaintiff does not recall if the pay phone was behind or in front of corner, about 25-30 feet from Lenox Avenue (p. 124). Deposi 1ion qf Police Officer Jiinncr Borzell In December 2005, Officer Borzell was assigned to the 28Ih c 8). She knew plaintiff as a Sergeant in the same precinct, she worked under im, and he directly supervised her. (p, 9). She was present when plaintiffs accident occurred. southwest corner of 125"' Street and Lenox Avenue (p. 12). After the -3 - happened on the [* 5 ] officers, including plaintiff, were looking for ballistics evidence. They saw kid running, and they all took off after him (p. 18). At the time of plaintiffs accident, they chasing or going after any perpetrator (p. 18). Officer Borzell was looking right at plaintiff when he fell (p. 18). He was about 5 feet to her left side. The incident occurred on the curb; the east side of 12ShStreet on the south curb. Plaintiff fell into the street (p. 19). At the time of plaintiffs accident, he was standing there and went to step off the curb or lost his footing. She saw him actually fall. She did not see him trip or stuiiible on anything. He just fell (p. 20). She does not know what caused plaintiff to fall (p. 21). Plaintiff fell approximately at the curb line of the sidewalk in the stre :t (p. 22). Plaintiffs fall was about 15 feet from the corner of Lenox Avenue, right by the phone bDoths. She could specifically identify the location of plaintiffs accident. She does not recall if there were any cracks or holes in the sidewalk or the curb in the area where plaintiff fell (pa:!6). Plaintiffs foot was more on the curb at the time he fell; he was on the curb (p. 38). When asced whether any part of plaintiff s foot was on the sidewalk at the time he fell, she responded: It may have been. Because the sidewalk meets the curb, so he may have had one foot on the sidewalk. But I know he was at the edge. That s why he fell directly in the street. (p. 41) Dcposifion qf Eliot Tawil Mr. Tawil is a memberhhareholder of the LLC (p. 14). To his not inspect the sidewalks for defects on a regular basis in 2005 (p. 17). defects in the sidewalks in front of the subject property (p. 18). -4- dge, the LLC did [* 6 ] I D@ndcmts Contentions When the incident occurred, plaintiff denied that he tripped. He clai ed that he was caused to fall when he stepped in some sort of unidentified and unspecified d fect. Plaintiff could not provide even a rough approximation as to where his accident occu ed or where the claimed defect was. Further, plaintiff could not approximate how far from t street line the 4 claimed defect was. In fact, plaintiff never saw the claimed defect which he laims caused his I accident before, during or after the accident. Not surprisingly, since plaintiff never saw the claimed defect, he could not provide any description of the claimed defect in e sidewalk. The eyewitness to plaintiffs accident, Police Officer Janna Borzell, did not see p intiff stumble or trip on anything. Plaintiffs description of his incident is most consistent wit simply 1 misstepping off of a curb. Plninrifr s Oppusifion Both in his deposition and in the affidavit accompanying the opposition to this motion, plaintiff has clearly delineated the location of his accident, and the details of :he defect. Further, in response to defendants argument that plaintiff has not sufficiently described the defect that caused his accident at his deposition, plaintiff visited the accident site on June 12,2008 and visually inspected the sidewalk in the area where he fell to locate the defect that caused his accident. He has now further identified the location and described the defect adjacent to the easternmost of the three phone booths near the curb. Defendants conjecture that the most likely manner in which the ac :ident occurred is that plaintiff stepped or fell off the curb is flatly contradicted by plaintiffs deposition testimony. Further, the witness on whose testimony defendants rely, Officer Borzell, tesified that she could -5- [* 7 ] I e of his accident. not be certain whether plaintiffs feet were on the sidewalk or the curb at t On his re-visit to the accident scene, plaintiff now states in his affi that caused him to fall is approximately five inches in width, six inches in in depth, and is located adjacent to the easternmost of the three phone bo Dcfindants Reply Plaintiffs affidavit submitted in opposition to the instant motion to his deposition testimony. Cases in the first department hold that one c issue of fact in opposition to a motion that is at odds with his deposition plaintiff was afforded every reasonable opportunity to specify the nature he claimed caused his fall, and failed to do so. Now, in opposition to th summary judgment, plaintiff seeks to avoid the consequences of that tes improper. Thus, plaintiffs affidavit should not be considered in opposi To oppose the instant motion, plaintiff returned to the scene o f t June 12,2008, two and one half years after the accident. after the insta makes observations which allegedly form the basis for the affidavit opposition to the instant motion. Rendering plaintiffs affidavit mean plaintiff fails to state in his affidavit that the sidewalk he observed is t time of his accident and does not discount the possibility that the side replaced or changed in the 2 ! years between the time of the accident and hi, 1 recent visit. This 4 I deficiency is exacerbated by the fact that, since the accident, the abutting bui ding that occupied I I the corner where the accident had taken place had been completely removed. Thus, there is no ~ I evidence in the record that the sidewalk observed by the plaintiff on June 12. 2008 represents the -6- [* 8 ] sidewalk as it appeared on the date of plaintiffs accident, rendering the affids.vit inadmissible. It is absurd to think that plaintiff can suddenly identify the claimed sic.ewalk defect 2 ?4 years later which he denied ever having seen, could not describe, and whose specific location he could not describe with any specificity in his deposition. At his deposition, plaintiff testified that he returned to the scene of the accident many times between the time of the accident and the time of his deposition for purposes of determining the cause of his accident, including one trip within 24 hours of his accident, and another trip about one month before his deposition, to look at the area where he had fallen. Plaintiff does not offer any explanation in his affidr.vit of how he could now, years later, identify a claimed sidewalk condition which he had never previously seen despite those earlier visits. Analvsls It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the cause of action . . . has no merit (CPLR 5 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v SI. Claire s Hosp., 82 NY2d 738,739 [ 19931; Winegrad v New Med. Ctr., 64 NY2d 85 1, 853 [ 19851; Wrighr v National Amusemenfs,h c . , 2003 N.Y. Ct New York County, Oct. 2 1, 20031). This standard requires that the summary judgment make aprimir.fucie showing of entitlement to 4 advancing sufficient evidentiary proof in admissible form to demonstrate t e absence of any material issues of fact (Winegrud v New York Univ. M d O r . , 64 NY2d 85 1, 853 [1985]; Zuckermun v City off NewYork. 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230,762 NYS2d 386 [ I Dept 20031; Thurnus v Holzherg, 300 AD2d 10, 11,751 NYS2d 433, -7- I -. . . . . . . . . . .. .~ [* 9 ] 434 [ 1 Dept 20021 [defendant not entitled to summary judgment where he admissible evidence demonstrating that no triable issue of fact exists as to would have been successful in the underlying negligence action]). Thus, supported by affidavit [from a person having knowledge of the facts], and by other available proof, such as depositions (CPLR lj 3212[b]). ,fi/cieentitlement to summary judgment through the affirmation of its documentary evidence (Zuckerman, supru; Prudenlial Securi(ies Inc. [ 1st Dept 19991). Alternatively, to defeat a motion for summary judgment, the facts sufficient to require a trial of any issue of fact (CPLR $3212[b]). proponent of the motion makes aprima.jucie showing of entitlement burden shifts to the party opposing the motion to demonstrate by existence of a factual issue requiring a trial of the action, or to or her failure to do so (Vermcue v Kenworth Truck Co., 68 I Cifyq f N Ymk, supra, 49 NY2d at 560, 562; Forrest v Jewish Guildf o r th Blind, 309 AD2d ~ 546,765 NYS2d 326 [ 1 Dept 20031). Like the proponent of the motion, the party opposing tho motion must set forth evidentiary proof in admissible form in support of his r her claim that material triable issues of fact exist (Zuckerman, supru at 562). Opponent m st assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist be shown to be real, not feigned since a sham or frivolous issue will not relief (Kurtfild v NRX Technologies, lnc., 93 AD2d 772 [ 1st Dept [ 19841). the issue must [* 10 ] uc 'v "It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected'' (.Juarez v Wmecresl Mgt. Team, 88 NY2d 628,646,649 NYS2d 115 [citations omitted]; ,we Lupi v Home Crealors, 265 AD2d 653, 696 NYS2d 291, Iv. denied 94 NY2d 758,705 NYS2d 5 ) . Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances (see Stusiak v Sears, Roebuck & C'o., 281 AD2d 533, 722 NYS2d 25 1; LoSquudro v Romun Catholic Archdiocese qf Brooklyn, 253 AD2d 856,678 NYS2d 347). To constitute constructive notice, a dangerous condition must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy the condition (see Gordon v. Americun Museum o Nulural History, 67 f NY2d 836, supra; see ii1.w Segrelti, 256 AD2d 234, supru; Lemondu v. Sutton, 260 AD2d 383, 702 NYS2d 275 [ 1 Dept. 20001; Gultierez v. Lenox Hill Neighborhood House, Inc., 4 AD3d 138,771 NYS2d 513 [lq'Dept. 20041; Buddv. Gotham House Owners Corp., 17 AD3d 122,793 NYS2d 340 [ 1'I Dept. 20051). A defendant/property owner may also have constructive notice of a dangerous condition if the plaintiff presents evidence that the condition was ongoing and recurring in the area of the accident, and such condition was left unaddressed (see Gordon v. Americiin Museum ofNufura1History, 67 NY2d 036, supra; see ulsv 0 'Connor-Miele v. Barhite d Holzinger, Inc., 234 AD2d 106,650 NYS2d 71 7 [ lR'Dept. 19961;Calf,209 AD2d 294, -9- [* 11 ] I supra). By contrast, a mere general awareness of the presence of same dangerous condition is legally insufficient to establish constructive notice (see Piucyuadio v. Recine Realty Corp., 84 NY2d 967,622 NY S2d 493 [ 19941; see also Gordon v. Americun Museum o Natural History, f 67 NY2d 836, supra; Segrdfi,256 AD2d 234, supra). A relatively recent decision by the First Department provides clear guidance to this court. In Fernundez 1 VLA Really, 45 AD3d 391, 845 NYS2d 304 (1 Dept 2007), the court stated as follows : [Plaintiffs] failure to identify the cause of his fall at his deposition was fatal to his case under the circumstances presented ( see Pena v. Women s Oulreuch Network, Inc., 35 A.D.3d 104, 109, 824 N.Y.S.2d 3 [2006]; D Arnhra v. New York City Tr. Auth., 16 A.D.3d 101, 790 N.Y.S.2d 120 [2005J ). Issues of fact and credibility are not ordinarily determined on a motion for summary judgment. But where self-serving statements are submitted by plaintiff in opposition that clearly contradict plaintiffs own deposition testimony and can only be considered to have been tailored to avoid the consequences of h[is] earlier testimony, they are insuficient to raise a triable issue of fact to defeat defendant s motion for summary judgment ( see Phillips v. Bronx Lebunon Hosp., 268 A.D.2d 3 18,320,701 N.Y.S.2d 403 [ZOOO] ). In the instant case, added to the plaintiffs inability to identify the cause of his accident is the deposition of his fellow of ficer and eyewitness. Police Officer Borzell, which unequivocally attributed plaintiffs accident to a step off of the curb, not a defect on the sidewalk. The incident occurred on the curb; the east side of 12ShStreet on the south curb. Plaintiff fell into the street At the time of plaintiff s accident, he was standing there and went to step off the curb or lost his footing. She saw him actually fall. She did not see him trip or stumble on anything. He just fell This case is not sufficiently like the case of Cherry v. Duyfop Villuge, Inc., 41 A.D.3d 130, 837 N.Y.S.2d 109 (AD 1 Dept.,2007) to overcome summary judgment. In -10- [* 12 ] Cherry, plaintiff was asked during her deposition whether she knew what caused her to fall and she testified that [wlhen I stepped down, my ankle. because the blacktop was uneven where it was cracking, my ankle twisted and I fell forward and to the left. The First Department found that this testimony as well as other statements made by plaintiff during her deposition, if believed, would provide a sufficient nexus between the condition of the roadway and the circumstances of her fall to establish causation ( see Juckson v Fenton, 38 A.D.3d 495, 83 1 N.Y.S.2d260 [2007]; Cuevas v C lfy o,SNew l ork, 32 A.D.3d 372, 373, 821 N.Y.S.2d 37 [2006] ). That nexus is absent in the instant case. And, since plaintiff did not claim at his deposition that he knew what caused him to fall, it would be speculative to assume that these alleged statutory violations of NYC Admin. Code $97-210, 7-21 1 and 7-212 and New York City Administrative Code ( NYC Admin. Code ) $19- 152, proximately caused his fall ( see Guifurrezv Iunnacci, 43 A.D.3d 868, 841 N.Y.S.2d 377 [2d Dept. 20071; Lissuuer v Shaurei Hulucha, Inc., 37 A.D.3d 427, 829 N.Y.S.2d 229; Birman v Birrnnn, 8 A.D.3d 219,777 N.Y.S.2d 310; Biltermun v Grotyohann, 295 A.D.2d 383,743 N.Y.S.2d 167). As to plaintiff s affidavit, this court agrees with defendants that it strains credulity that suddenly on another visit to the location of the accident, after having made many prior visits, after defendants motion for summary judgment is made, and after 2 ! years lapse from the date 4 of the accident, that plaintiff can suddenly, precisely identify the exact location and the exact condition, where he was unable to do so on the many previous visits closer in time to his accident, and where he was unable to do so tllroughout his deposition. It appears that plaintiffs late-day revelation is contrived and tailored to avoid the - 1 1- [* 13 ] consequences of his earlier testimony. This court shall not consider plaintiffs affidavit in deciding this motion. The court is loathe to foreclose any plaintiff his day in court, but in the instant case, the court is constrained to grant defendants' motion for summary judgment. Conclusion Based on the foregoing, it is hereby ORDERED that the motion of defendants 125Ih& Lenox LLC and Wharton Realty Management Corp., for an order pursuant to CPLR 32 12 granting summary judgment dismissing the complaint of plaintiff David Capato in its entirety; is granted and this case is dismissed, The Clerk of the Court is directed to enter judgment accordingly; and it is further ORDERED that counsel for defendants shall serve a copy of this order with notice of entry within twenty days of entry on counsel for plaintiff. Dated: July 1,2008 -12-
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