Cuillo v Fairfield Prop. Servs., L.P.

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Cuillo v Fairfield Prop. Servs., L.P. 2011 NY Slip Op 33457(U) December 21, 2011 Sup Ct, Suffolk County Docket Number: 09-41964 Judge: Thomas F. Whelan 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. [* 1] INDEX No. CAL. No. SHORT FnR~j ORDER 09-41964 Il-008110T copy SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE ADJ. DATE 6-2-J I 9-12-11 Mot. Scq. # 002 - MG CDISP ---------------------------------------------------------------X ANDREW CUILLO, Plaintiff, BUTTAFUOCO & ASSOCIATES, PLLC Attorney for Plaintiff 144 Woodbury Road Woodbury, New York 11797 - against FAIRFIELD PROPERTY SERVICES, L.P. and STRA THMORE TERRACE HOMEOWNERS ASSOCIATION,INC., VINCENT D. MCNAMARA Attorney for Defendants 1045 Oyster Bay Road, Tower Square E. Norwich, New York 11732 Defendants. ---------------------------------------------------------------X Upon the following papers numbered I to..lQ... read on this motion for summarv judgment; Notice of Motion! Order to Show Cause and supporting papers-l...:....:!...; otice of Cross Motion and supporting papers _; N Answering Affidavits and supporting papers ..J....::...2.; Replying Affidavits and supporting papers --!L:J.Q.; Other _; (/Iud aftel I,eal illg toW 1St I ill SUPPOI I Mildopposed tu tile ltiotioti) it is, ORDERED that the motion by defendants for summary judgment in their favor dismissing the complaint and all cross claims asserted against them is granted. Plaintiff commenced this action to recover damages for personal injuries sustained when he slipped and fell on ice on a sidewalk in the Stratlunore Terrace complex where he resides. Strathmore Terrace is a community for residents 55 and over, with a clubhouse and recreation area which includes a pool, tennis court, bOCCIball court, miniature golf course and other amenities. The incident occurred on Sunday, January 28, 2007 at approximately 9:00 a.m. while plaintiff was walking his dog on a sidewalk in the recreation area. Plaintiff testified that it was a sunny day, with the temperature between 33 and 34 degrees. He described the conditions as follows: "[tJhe streets were wet, but it was a beautiful morning, the sun was shining, that's why it caught me off guard, you know." In response to questioning, he acknowledged that no snow, rain or sleet was falling. He did not see any snow or ice on any pathway on the property as he walked his dog and the walhvays were not slippery. He did notice that the roadways were wet, but not [* 2] Cuillo v Fairfield Property Index No. 09-41964 Page No.2 Services slippery. The grass and driveways were not wet, except his driveway. There was no snow or icc on the parked vehicles. He did not know when precipitation had last fallen. He had never noticed, in the ten years he lived at the complex, "black ice" on the walkway where he fell and had never complained about the conditions of the pathway to anyone prior to his accident. He never slipped at that location or seen that conditlon before. He only noticed the "black ice" after he fell and did not know the source of the water that fanned the "black ice." To him, "it just looked like sidevv"alk" and he could not see ice on the pathway and it did not look wet. The property is managed by defendant Fairtield Property Services, LP ("Fairfield") undcr the direction and control of defendant Strathmore Terrace Homeowners Association, Inc. (the "HOA "). The record renects that the J-10A is the owner of the portion of the premises where the plaintiff's accident occurred. The plaintilTpays a monthly fee to the BOA for maintenance of the grounds, including snow and ice removal. The HOA hired an outside entity to perform snow removal and salt/sand activities. According to the EST testimony of Vinnie Kilcommons, the maintenance superintendent for fairfield, the snow removal contract does not cover the sidewalks in the recreation area_ He also testified that he knew of no other falls on the pathways in the recreation area due to snow or ice during the two years prior to plaintiffs lall. Mr. Kilcommons and Joyce Seman, president of the J-lOA and a long-time resident at the property, each testified that the recreation area is closed In the winter and that the sidewalks therein are not maintained or inspected for snow and ice conditions. Nevertheless, Kilcommons and Seman acknowledge that although the amenities are not in use, there are no barriers erected to cordon off the recreation area to pedestrians, there are no signs posted to indicate the sidewalk is closed, and the residents arc not otherwise advised to stay out of the area. Fut1hermore, Kilcommons and Seman are aware that residents traverse the sidcwalks in the recreation area year round to get from one side of Strathmore Terrace to the other. Ms. Seaman also testified that she knew of no other falls on the pathways in the recreation area due to snow or ice during the two years prior to plaintiff's fall. Both have submitted affidavits which attest to the fact that they were not aware of ponding or puddling conditions in the area of the accident and that they never received complaints about ponding or puddling at the site. PlaintiiT testified that the sidewalk in the recreation area sloped down. As he was walking he suddenly slipped, slid down the sidewalk and landed in a puddle of water. He did not ootice the ice on the sidewalk before he slipped, but after he fell, he saw "invisible ice, like ... glass, on top of the cement." Plaintif'j" claims that a neighbor witnessed him slip and fall, but neither the witness nor plaintiiTrcported the accident to Fairfield or the HOA. In the complaint, as amplified by the bill of"particulars, plainti1T alleges that defendants crcated the dangerous condition by negligently designing and grading thc area surrounding the sidewalk which allowed water to drain across it thereby causing a recurring dangerous condition. PlaintdT also alleges that defendants' employees or agents wefC at the property on a daily basis and observed, or should h,lVC observed, the icy sidewalks and thus had actual notice ofthe dangerous condition which caused his accident. Moreover, plaintilTalleges that the dangerous icy and slippery condition existed for a sutlicient amount of time to charge defendants with constructive notice. [* 3] Cuillo v Fairfield ProperlY Services lnde;.; No. 09-41964 Page No.3 Issue has been joined, discovery completed. and the note ofissue filed. Defendants now move Cor summary judgment dismissing the complaint on the grounds that they neither created nor had actual or constructive notice of the icy condition which caused plaintiffs accident. Defendants seeking summary judgment in a slip and fall case have the initial burden of making a prima facie showing that they did not create or have either actual or constructive notice of the dangerous condition for a sufticicntlength of time to remedy it (see Villano vStratlrmore Terrace Homeowners Ass"., IlIc . ¢ 76 AD3d 1061. 908 NYS2d 124 [2d Dept 20 101, ValdezvAramark Serv.. 23 AD3d 639, 804 NYS2d 811 [2d Ocpt 2005.1). This burden cannot be satisfied by merely pointing out gaps in the plaintiff's case (see Valdez v Aramark Serv .. 23 AD3d 639, supra). A defendant has constructive notice of a hazardous condition on properly when the condition is visible and apparent, and has existed for a length of time sufficient to afford thc defcndant a reasonable opportunity to discover and remedy it (see Gordon v Americall Museum of Natural History, 67 NY2d 836, 837, 50 1NYS2d 646[19861; Perez v New York City llow;. Auth., 75 AD3d 629, 906 NYS2d 299 [2d Ocpt 20ID]; Robinson v Lupo, 261 AD2d 525, 690 NYS2d 640 [2d Dept 1999'1). The defendants established their entitlement to judgment as a matter oflaw by submitting evidence suflicicnt to demonstrate that they did not create or havc actual or constructive notice of the «black ice" that allegedly caused the plaintiff to fall (see Cantwell v Fox Hill Community Assn., fIlC., 87 AD3d 1106, 930 NYS2d 459 [2d Ocpt 2011J; Crosthwaite v Acadia Realty Trust, 62 AD3d 823, 879 NYS2d 554[2d Oept 2009J; Abbattista v King's Gram Master AS.m., fIlC., 39 AD3d 439, 833 NYS2d 592 [2d Oept 20071; Robinson v Trade Link Am., 39 A03d 616, 833 NYS2d 243 [2e1Oept 2007J; Zabbia v Westwood, [LC. 18 1\03J 542. 795 NYS2d 319l2d Dept 2005]) and that they did not have actual notice ofa recurring dangerous "back ice" condition in the area where the plaintifffell (see AlUlerson v Centml Va/. Rea/~v Co.. 300 AD2d 422, 751 NYS2d 586 r2d Dept 20021J. The Court is cognizant of the caselaw that holds that '"[oJn a motion for summary judgment to dismiss the complaint based upon lack of notice, the defendant is required to make a prima facic showing affirmatively establishing the absence of notice as a maHer oflaw" (Goldman v WaldbauHl, fn,'" 248 AD2d 436,437,669 NYS2d 669 [2d Oept 1998]). In cases involving hazardous conditions which are visible, in order "[tJo meet its burden on the issue of ... constructive notice, the defendant must offer somc evidencc as to when the area in question was last cleaned or inspected relative to the time when the plainti ITfell-(Birnbaum!' New York Racing A.f.5It.,fllc" 57 AD3d 598, 598-599, 869 NYS2d 222 [2d Dept 20081: Sl'(! a/so Amendola v City of New York, 89 AD 3d 775, 932 NYS2d 172 [2d Dcpt 2011.1 [grease on steps I; farrell v Waldbaum's, file .. 73 A03d 846, 900 NYS2d 453 l2d Dept 2010-1[grapes]; McPaul v Mutual of Am. Life IllS. Co., 81 AD3d 609, 915 NYS2d 870 [2d Ocpt 2011] [water condition]; Goodyear v PU/lUmriNorthem Westchester Bt!. of Coop. Et!uc. Servs., 86 AD3d 551, 927 NYS2d 373 [2dDept 20 I I] [urine 011 the £loorJ), Under certain circumstances, where ice or snow is visible and apparent, the time when a defendant last inspected for a dangerous condition is relevant (see Joe v Upper Room Millis/riel', fllC., 88 AD3d 936, 931 NYS2d 65812d Dept 2011] [ice]; Bailles v G&D Vell/llres,/lIc., 64 AD3d 528, 8S3 NYS2d 256 [2d Dept 2009] [ice]; Mllr/illez v Khailllov, 74 AD3d 1031, 906 NYS2d 274 [2d Dcpt 2010] [snow mound]; Tottell v Cumberlaml Farms,fnc., 57 i\D3d 653, 871 NYS2d 179 [.2d Dept2008] [icel Mazzio II HiglJland llomeowner.\· Assn. amI Comlos, 63 AD3d 1015,883 NYS2d 59 l2cl Oept 2009] [patches oj' icoJ) [* 4] Cuillo v Fairlield Property Services Index No. 09-41964 Page No.4 In the instant case, as to the issue of constructive notice, there were no weather conditions existing on the morning plaintiff fell to give rise to any concern to the defendants with regard to naturally forming ice conditions. Neither delendant was aware of the "black ice" alleged by plaintiff. In fact, plaintilf's own tcstimony indicates that prior to his fa.llhc did not see the ice, that is, it was not visible and apparent. Where an injured plaintiff states that the ice was clear and not visible. courts have lound that the defendant has satisfied the prima facie burden on the issue of constructive notice (see e.g. Gersh/eM v Marine Park FUllerlll Home, IIlC., 62 AD3d 833, 879 NYS2d 549 ["2dDcpt 20091: Aurilia v Empire Realty Assocs., 58 AD3d 773, 873 NYS2d 103l2d Dcpt 2009J; Christal v Ramapo Cirque HomeowllersAssll., 51 AD3d 846, 857 NYS2d 729[2d Dep! 2008]; Kaplan v DePetro, 51 AD3d 730, 858 NYS2d 304[2d Dep' 2008]; Simon v Maimollides Med. Ctr., 52 AD3d 683, 859 NYS2d 373 f2d Dept 20081; Goodwill v Knoll ¢ ¢(ItStony Brook lIomeowners AsslI .. 25 I AD2d 451, 674 NYS2d 411 [2d Dept 19981). This Coun disagrees with the conclusion of the First Dcpartment, as set forth in Spector v Cushman & Wllkejieltl, 11Ic., 87 AD3d 422, 928 NYS2d 9 (IS! Dept 2011), that in a ·'black ice" case, the Second Department similarly requires a defendant to submit testimony as to when the premises was last inspected. In the case relied upon to support that position, Mignognil v 7-Elevell, fnc., 76 AD3d 1054,908 NYS2d 258 (2d Dcp! 2010), the facts reveal that employees of the defendant werc present in the parking lot shoveling and salting the area where the plaintitf allegedly felL Such facts support a claim of actual or constructive notice. Based on the particular facts set forth herein, defendants need not establish that the specific location had becn inspected at any time prior to the plaintiff's accident so as to dcmonstrate the absence of constructive noticc. Thus, defendants have satisfied their prima j~lcieburden by showing that they neither creatcd nor had actual or constructive notice of the '·black ice" condition which caused plaintiffs accident. "On the evidence prcsented, the [black ice] that [allegedly"] caused plaintiff's rail could have been deposited there only minutes ... before the accident and any other conclusion would be pure speculation" (Gordon )' American Museum oINatuml History, 67 NY2d at H3H, sUfJra). Moreover. plaintiffs counsel has conceded the issue as to notice of this particular "black ice" condition by advanclllg a claim of a recurring dangerous condition (see afC of Ellen Buchholz, Esq., '13, August 22, 2011). In order to do so, plaintitlre1ies upon the expert affidavits of an undisclosed engineer and a mctcorologist. It is their belief that it was the manner in which the sidewalk was constructed that caused the recurring condition of pooling ofwaler at the particular location. However, defendants oppose the submission of the previously undisclosed expelts in opposition to the summary judgment motion, in light of plaintiffs failure to respond to the CPLR31 0 I-d expert witness demand and the disclosure after the liling of the note ofissuc. Defendants' find particularly egregious the fact that the engineer visited the site and was apparently retained by plaintiff months before the service orthe summons and complaint. The Court will not consider the affidavits of the purported expclts since plaintiff failed to identi I)' the experts in pretrial disclosure and served the affidavits after the note of issuc and the certificate of readiness attesting to the completion of discovery were filed. Additionally, plaintiff did not provide any excuse for failing to identify the experts in response to the discovery demands even though the record discloses that one of the experts was retained prior to commencement of the action (see Kopelo/f v Arctic Cat, Inc., 84 A03d 890, 923 NYS2d 168 [2d Dept 2011]; Stolarski v DeSimone, 83 AD3d 1042, 922 NYS2d 151 f2d Dept 2011]; Santiago v C&S Wholesale Grocers, IIlC., 83 AD3d 814, 920 NYS2d 695l2d Dept 20 II J; Pellechia v Partner A via/ion Enters., Inc., 80 AD3d 740, 916 NYS2d 130 [2d Dept 2011 J; Gerardi v VeriZlm New York, fIlC., 66 AD3d 960, 888 NYS2d 136 12d Dept 2009J; Wartski v C. W. Post [* 5] CuilJo v Fairfield Property Services Index No. 09-41964 Pagc No.5 Campus ofLoug Is. l!l1iv., 63 AD3d 916, 8~QNYS2d 19212d Dept 2009']; Yax v Development Team, Inc., 67 AD3d 1003,893 NYS2d 554 [2d Dept 2009]; Killg v Gregruss Mgt. Corp., 57 AD3d 85],870 NYS2d 103 [2d Dept 2008] [inspection prior to commencement ofactionj; Construction by Singlelree, Inc. v Lowe, 55 AD3d 86] , 866 NYS2d 702 [2d Oept 2008]; Gerry v Commack Union Free L"'cllOol ist., 52 AD3d 467, D 860 NYS2d ] 33 [2d Dept 20081; Soldano v Bayport-Blue Point Union Free School ])ist., 29 AD3d 891, 8 J 5 NYS2d 712 [2d Dopt 2006]; DeLeoll v State of New York, 22 AD3d 786, 803 NYS2d 692 [2d Dopt 2005.!; S(~fin v DST Russiall & Turkish Bath, Inc., 16 AD3d 656, 79] NYS2d 443[2d Dept 2005]). In any event, even irthe aflidavits were considered, they otfer conclusory and speculative opinions and do not raise an issue of fact. The engineer did not base his conclUSIons on accepted industry standards and failed to otTer his measurements from his site visits. The meteorologist speculates upon either a ram fall three weeks before the accident as a possible source of the dangerous condition or trace precipitation in the early morning hours, when the temperature was at 36°F or 3JOF. The speculation by both experts as to a recurring condition runs counter to plaintiff's testimony of not noticing such a condition in the ten years he resided at the complex. Absent consideration of these atlictavits, the plaintiff failed to raise a trmble Issue orfact as to notice of a recurrent condition (see Perez v New York City Bous. Auth., 75 AD3d 629, .'wpm). A defendant who has actual knowledge of a recurring, dangerous condition may be charged v,,'ith constructive notice of each specific re-occurrence of such condition (see Sewitch 1-' LaFrese, 4] AD3d 695, 839 NYS2d 114[2d Dept. 2007]; Browll v Linden Plaza Bous. Co. Inc., 36 A03d 742, 829 NYS2d 57] [2d Dept. 2007]; Fielding v Racldill Mgt. Corp., 309 AD2d 894, 766 NYS2d 381 [2d Oept. 2003]; Fruend v Ross-Rodney HOllS. Corp., 292 AD2d 341, 738 NYS2d 6]2 [2d Dept. 2002]; Osorio v Weill/ell Terrace Owners Corp., 276 AD2d 540, 714 NYS2d 116 [2d Dept. 2000]). Liability 111 such cases will, however, attach only where the plaintiff demonstrates by specific factual references that the defendant had actual knowledge or the allegedly recurring condition (see Per/ongo v Park City 3 & 4 Apts., IIIC., 3] AD3d 409, 8 J 8 NYS2d 158 [2d Dcpt. 20061; Green v Citv of New York, 34 AD3d 528, 825 NYS2d 227 [2d Dcp!. 2006J). 1-lere, in light of defendants' submissions, it \\'as incumbent upon plalDtiffto establish, by proof in admissible form, that genuine questions offact exist. Revlew of plaint iff's submissions reveal that no such questions offact were raised. The opposing papers failed to include due proof tending to establish that the icing condition was caused or exacerbated by the moving defendants' negligent design or construction of the walkway (see Regan v Hartsdale Tel1aJ1lsCorp., 27 AD3d 716, 813 NYS2d 153 [2d Depe 2006.1; Richardsoll v Call1pel1elli, 297 AD2d 794, 748 NYS2d 31 [2d Dept. 2002]). Nor dId thc submiSSions include proorthat the defendants had actual or constructive notice of the icing condition \vhich allegedly caused the plaintiff's fall (see Christal v Ramapo Cirque Homeowners Assoc., 5] AD3d 846, supra; Murphy v 136 Nortltern Blvd., Assoc., 304 AD2d 540, 757 NYS2d 582 [2d Dept. 2003]). Although plaintill contends that the moving defendants are chargeable with constructive notice or the "ongoing" and -'recurring" icing condition in the area where the plaintiff fell due to the defendants' possession of actual knowledge of said condition, these contentions arc not supported by the evidence adduced on the instant motion. Thc deposition testimony before the Court t~,ils to establish that the defendants had actual notice or said condition. The plaintiffalso testified that he never notified the defendants about the allegedly recurring [* 6] Cuillo v fairfield Property Services Index No. 09-41964 Page No.6 condition. Since there was no evidence that the defendants otherwise acquired actual notice ofthe recurring condition, the plaintiff failed to raise a question of fact regarding whether the moving defendants had actual knowledge of such condition (.\·eeGreen v City of New York, 341\D3d 528, supra; see also Armfat v City New York, 45 AD3d 710.846 NYS2d 296 [2d Dcrt. 200TI; cf Sewitch v LaFrese. 41 AD3d 695, supra; Brown v Lint/en Plaza /lOllS. Co. fnc., 36 AD3d 742, supra; Osorio v Wendell Terrace Ownen Corp .. 276 AD2d 540, supra). Under the circumstances, plaintiff could not make a prima facie showing that the dcfendanls either created the alleged defective condition or that they had actual or constructive notice of the condition. PlaintifT presented no evidence concerning the length ohime the ice was on the ground before his raIl or that it existed for a sufficient length of time for defendants to discover and remedy it (see Murphy v /36 Northern Blvd. AS.mn., 3041\D2d 540. supra; Mankowski v Two Park Co., 225 AD2d 673. 639 NYS2d 847 [2d Dept 1(961) or that they had actual notice of a recurring dangerous condition on the premises (see Connelly v Shop Rite Supermarkets, fIlC., 381\D3d 588, 830 NYS2d 670 [2d Dept 2007]; Alldersoll v Central VlIlley Realty Co.. 300 AD2d 422, supra; Ortega v New York City Tr. Auth., 262 AD2d 470, 692 NYS2d 131 r2d Dcp! 1999]; Romall v Met-Poco II Assocs., LP, 85 AD3d 509, 925 NYS2d 447[1" Dcp! 2011 J). In any event. Fairfield has established that it owed no duty of care to ptaintift~ and thus cannot be held liable for his injuries. Premises liability for an injury caused by a dangerous condition is predicated upon ownership, occupancy, control, or special use (see Ellers v Horwitz Family Ltd. Partllership, 36 i\D3d 849,831 NYS2d 4 I7 [.2dDept 2007]). Unless a comprehensi ve and exclusive management agreement exists between the agent and the ovmer which displaces the owner's duty to safely maintain the premises, a management company cannot be held liable for injuries sustained in a slip and j~L!1accident (see E~pi1UtI v Melville Contrs" 9~ NY2d 136,746 NYS2d 120 [2002]; Roveccio v Ry Mgt. Co. fnc., 29 AD3d 562, 8 I6 NYS2d 114 ["2dDept 2006j). The relevant management agreement between Fairfield and the HOA has been prol'fered by defendants. The agreement clearly does not create a comprehensive and exclusive maintenance obligation in Fairfield as the HOA retained substantial control over the management and operation of the property (see Rm!eccio v Ry Mgt. Co., Illc .. 29 AD3d 562, supra). Sped lically, the agreement provides that the common elements of the property arc 10 be "maintained in such condition as determined by the Board of Directors, including exterior cleaning ..." The agreement also provides that --Io[rdinary repairs shall be made only with the prior approval of the P IOAj.. Thcreforc, Fairfield has established its prima facie entitlcment to summary judgment (see Lennon v Oakhlll·..,t Gardens Corp., 229 AD2d 897, 645 NYS2d 65213d Dept 1996 J; see al.m Fung v Japan Airlines Co., Ltd .. 51 AD3d 861. 858 NYS2d 738 [2d Dept 2008]; Hagen v Gilnum Mgt. Corp., 4 AD3d 330, 770 NYS2d 890 ['2d Dept 2004]). In opposition, defendants have railed to raise a triable issue of fact as to Fairfield's liability. Accordmgly .summary Judgment is granted and the action is dismissed. 'Uns constitutes the deCISIOn and order orthe Court r ( Dated '-) ?jIIr,!.. \ . tf~Lfj __ft_1{_.:,_1~t_· THOMAS F. WHELAN, J.S.c. _

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