Beckford v New York City Hous. Auth.

[*1] Beckford v New York City Hous. Auth. 2009 NY Slip Op 52806(U) Decided on September 25, 2009 Supreme Court, Bronx County Brigantti-Hughes, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 25, 2009
Supreme Court, Bronx County

Avonia Beckford, Plaintiff,

against

The New York City Housing Authority, Danco, Inc. and Abatech Industries, Inc., , Defendants.



16466/07

 

Appearances of counsel: Defendants - John G Chaconas, ESQ, Law Offices of Alan I Lamer (Abatech)

Faust, Goetz, Schenker & Blee, LLP (City of New York, NYCHA), Wilson Bave Conboy Cozza Couzens PC (Danco Inc)

Plaintiff - Diane Welch Bando, ESQ (Pena & Kahn, PLLC)

Mary Ann Brigantti-Hughes, J.

The following papers numbered 1 to 8 read on these motions for summary judgment noticed on December 9, 2008 and January 27, 2009, and submitted on the Motion Calendar of April 21, 2009 of Part IA 15

Papers Submitted Numbered

 

NYCHA Motion, Affirmation & Exhibits 1

NYCHA Memo of Law 2

ABATECH Motion, Affirmation & Exhibits 3

Danco Motion, Affirmation & Exhibits 4

Plaintiff Affirmation in Opposition 5

NYCHA Reply Affirmation 6

Danco Reply Affirmation 7 [*2]

ABATECH Reply 8

Upon the foregoing papers, Defendant New York City Housing Authority (NYCHA), seeks an Order pursuant to CPLR §3212 granting summary judgment dismissing Plaintiff's Complaint and all claims and cross-claims against NYCHA and further seek an Order pursuant to CPLR §321 dismissing Plaintiff's Complaint and all claims and cross-claims against NYCHA for failure to state a cause of action.

Defendant Danco, Inc.(Danco), seeks an Order pursuant to CPLR §3212 granting summary judgment dismissing Plaintiff's Complaint and all claims and cross-claims against Danco and further seek an Order pursuant to CPLR §3211 dismissing Plaintiff's Complaint and all claims and cross-claims against Danco for failure to state a cause of action.

Defendant Abatech Industries, Inc. (Abatech) seeks an Order pursuant to CPLR §3212 granting summary judgment dismissing Plaintiff's Complaint and all claims and cross-claims against Abatech and further seek an Order pursuant to CPLR §3211 dismissing Plaintiff's Complaint and all claims and cross-claims against Abatech for failure to stale a cause of action.

The aforementioned motions having arisen out of the same facts and circumstances and based upon the dictates of judicial economy have been consolidated by the Court and are decided as follows:

The above captioned is an action for personal injury which occurred on August 7, 2006 at 340 Alexander Avenue, Apartment numbered 20D, in the County of Bronx, City and State of New York. Plaintiff alleges that she was caused to slip and fall in her bathroom due to the negligent installation or reinstallation of a bathroom handle located on Plaintiff's bathtub. It is alleged by Plaintiff that the subject tub handle had been removed by Defendants and improperly reinstalled. The tub handle was originally installed for Plaintiff's husband by Medicaid.

Prior to the date of the alleged accident, which is the subject matter of this law suit, Plaintiff allowed entry to her apartment to workman who informed her that they would be working in her bathroom looking for asbestos. Plaintiff has testified that she was not present in the apartment at the time the actual work was being performed since she had been instructed that she would have to vacate the premises while the asbestos was being removed. Plaintiff removed herself from the premises either on Thursday or Friday of that week and did not return until Sunday the day of the accident.

The NYCHA had contracted with Danco as the general contractor on a NYCHA project to renovated the bathrooms of the Mott Haven Houses. That renovation project required the removal of asbestos from around pipes located in the walls of the bathrooms in the Mott Haven Houses. Abatech was the entity which physically removed the asbestos from the bathroom in Plaintiff's apartment. Abatech was under contract with Danco to perform the asbestos removal but had no contractual relationship with the NYCHA. [*3]

NYCHA produced a witness at deposition, a Mr. Ajuluchukwn Okele, who testified that he has been an employee of the NYCHA in the position of "construction project manager Level 2" for the past six years. Among his duties, at the time of Plaintiff's accident, was to "... essentially supervise construction work in the field." Further, NYCHA states that the only other NYCHA employees present during the asbestos abatement were NYCHA inspectors. NYCHA also testified that " ... We go in and make sure that no personal objects are left in the bathroom, before the commencement of the asbestos work .."

The Danco asserts in its moving papers that they could not physically be in the building until the asbestos work was completed based upon licensing requirement save to remove a toilet or sink to allow access to a wall which had asbestos covered pipes behind it. Danco further asserts that they did not begin any bathroom renovations in Plaintiff's building until August 30, 2006 and did not enter Plaintiff's apartment until September 20, 2006. Danco also testified that it never gave instruction of any nature to Abatech with respect to how the abatement work should be preformed; except to provide a schedule as to the time frame of which apartments were to be worked on and the location of the pipes to be abated. This testimony was corroborated by Mr. Okele of the NYCHA.

Abatech claims in its moving papers that it did not create the hazardous condition which Plaintiff alleges caused her fall. It asserts that the work preformed by its employees was completed on July 26, 2006, 12 days prior to Plaintiff's accident. Abatech relies on Plaintiff's 50-h transcript to establish that fact. ( See: Transcript 50-h hearing p.7 lines 11-13). Abatech also presents the testimony of all witnesses deposed along with logs, documents and work schedules which reveal that Abatech had completed its work on Plaintiff's floor on August 26, 2006.

It is settled law that on a motion for summary judgment, the moving party has the initial burden of demonstrating, by admissible evidence, their right to judgment. The burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists warranting a trial. CPLR §3112(b); Zuckerman v City of New York, 49 NY2d 557 (1980); Singer v. Friedman, 220 AD2d 574(2d Dept 1995). Further, issue finding rather than issue determination is the function of the court on motions for summary judgment. Esteve v. Abad, 271 A.D. 725 (1st Dept. 1947): Stillman v. Twen[illegible text]eth Century Fox F. Corp., 3 NY2d 395 (1957); Clearwater Realty Co. v. Hernandez, 256 AD2d 100 (1st Dept. 1998). Additionally the role of the court is not to resolve issues of credibility. Knepka v. Tallman, 278 AD2d 811(4th Dept. 2000) Since summary judgment is a drastic remedy it should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). Thus where the existence of an issue of fact is arguable summary judgment should not be granted. Stone v. Goodson, 8 NY2d 8 (1900).

In the instant case each of the Defendants herein named has met their individual burden to establish their right to judgment. In opposition, Plaintiff failed to raise a triable issue of fact Accordingly it is hereby [*4]

ORDERED, that Defendant The New York City Housing Authority's motion for an Order pursuant to CPLR §3212 granting summary judgment dismissing Plaintiff's Complaint and all claims and cross-claims against Defendant NYCHA is granted, and it is further

ORDERED, that Defendant, Danco, Inc.'s motion for an Order pursuant to CPLR §3212 granting summary judgment dismissing Plaintiff's Complaint and all claims and cross-claims against Defendant Danco is granted, and it is further

ORDERED, that Defendant Abatech Industries, Inc.'s motion for an Order pursuant to CPLR §3212 granting summary judgment dismissing Plaintiff's Complaint and all claims and cross-claims against Defendant Abatech is granted. Accordingly, Plaintiff's complaint is hereby dismissed in its entirety. This constitutes the decision and order of this court.

Dated: September 25, 2009