DePinto v County of Suffolk
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DePinto v County of Suffolk 2011 NY Slip Op 33566(U) December 30, 2011 Sup Ct, Suffolk County Docket Number: 06-23949 Judge: W. Gerard Asher 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] SIIOWT FORMORDER INDEX No. CALNo. 06-23949 10-015370T SUPREME COURT - STATE OF NEW YORK IAS. PART 32 - SUFFOLK COUNTY PKESENT: HOil. W. GERARD ASHER Justice of the Supreme Court -----.-.-------------------------------------------------------X JENINE DEPINTO, Plaintiff, MOTION DATE 6-3-1 I ADJ.IJATE 8-5-11 Mot. Seq. # 007- MG DELL, LITTLE, TROVATO & VECERE, LLP Attorney for Plaintiff Five Orville Drive, Suite 100 Bohemia, New York 11716 CHRISTINE MALAFJ, Attorney for Defendant 100 Veterans Memorial Hauppauge, New York - against ~ COUNTY OF SUFFOLK, TOW'N OF BABYLON, : VILLAGE OF BABYLON, RONALD GIOVELLI, : REALITY RACING, INC., and HURRICANE WATERSPORTS,INC., ESQ., Suffolk Cty Attorney County of Suffolk Highway, P.O. Box 6100 11788 LEWIS .IOHS AVALLONE AVILES, LLP Attorney for Town of Babylon 425 Broad Hollow Road Melville, New York 11747 Defendants. ---------------------------------------------------------------X TOWN OF BABYLON Third-Party Plaintiff, -against- MORRIS DUFFY ALONSO & FALEY Attorney for Village of Babylon 2 Rector Street, 22nd Floor New York, New York 10006 RONALD GIOVELLI, Pro Se 117 Gleeland Street Deer Park, New York 11729 HURRICANE WATERSPORTS, INC., Third~Party Defendant. ---------------------------------------------------------------X HURRICANE WATERSPORTS, 672 West Montauk Highway Lindenhurst, New York 11757 mc. Upon the following papers numbered 1 to--1.±..... ead on this motion to RRRR ,Notice of Motion/ Order to Show r Cause and supporting papers I - R ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 9-12, Replying Affidavits and supporting papers 13-14 ,Other _, (:'Iud tille, he", illg, etl·ttr\~e1 iI, ~ltpp()rt tlltd opposed to the mt'ltion) it is, ORDERED that this motion (007) by the defendant Town of Babylon pursuant to CPLR 2221 (d) and (e) for an order granting renewal and reargument of motion (005), by the defendant Town of Babylon which sought summary judgment dismissing the plaintiffs complaint and all cross claims, and [* 2] DeP iJlLl V COlltlly ofsum)lk IndexNo.06-:!3949 Page Nu. :! et OIl which was denied. is granted as 10 renewal. and upon renewal. summary judgment is granted. and the com: plmnt and any cross claims are dismissed as asserted against Town of Babylon. I'hls is an acLlon sounding in negligence arising out of an accident which occurred on August 6. :?OOS,when the plainti fL Jeninc DePinto. sustained senous and pcnmmcnt injuries ine!udmg truUIl1,1l1C umpul<J.tion oCthe second through tlrth fingers of her left hand while riding as a passenger on a motorcycle. The motorcycle was operated by the defendant Ronald Ciiovelli of Reality Raclllg 631 whJll' they were performing motorcycle stunts at a public event at Tanner Park in Copaigue. New York. It is c1airmd that the delcndants created the defective and/or dangerous condition. an unsafe surface orthe parking 101.that they had actual and constructive notice of it. and that they permitted a hazardous activity without supervision and without compliance with applicable local state laws. A third-pm1y action was commenced by the Town of Babylon (the Town) against the thml-party defendant Ilurricane Watcrspol1s. Inc. (Hurricane) whercin the Town seeks indemnification and/or contribution from Hurricane. It is noted that Stipulations of DisconLinuance of the Action as against the T(l\vnand against the County orSulJolk have been signed only by the plaintiff but not by the codefendants. It is further noted that a default judgment was granted 10 the third-party plaintiif against the tlmd-party defendant Hurricane Watersports, Inc., and that third-party action was severed from the main action by order dated September 2, 2008 (Kerins. J.). In Illation (005). the Town previously moved for summary judgment dismissing the complaint and any and all cross claims asserted against it on the bases that it did not proximately cause the plaintitr s injuries. that it owed no duty to the plaintiff whom they claim was performing unauthorized. spontaneous. and unexpected motorcycle stunts at a town park. and that it did not create the defect which caused the injury to the plainliff. Said motion was denied as the copies of the transcripts ufthe examinations betiJ]"e mal of Jcnine DePmto dated February 12. 2009, Ronald Giovelli dated February 12.2009. and Michael Cuniglio dated February 12.2009 were unsigncd and were not in admissible forlll as required by CPLR 3212. Additionally, the moving defendant did not submiL a copy of the answer served by the County of Suffolk. It \vas determined that the motion failed to comport with CPLR 3212 and was dcemt:d insufficicnt as a matter of law. The Town now seeks to rene\v and rcargue motion (005). Pursuant to CPLR 2221 (e)(2) a motion for leave 10 renew shall be based upon new facts not olTcn:d on the prior motion that would have changed the prior determination or shall demonstrate that there has heen a change in the law that would change the prior determination. Pursuant to CPLR 1221 (e) (3) a motion lor leave to renew shall contain reasonable justification for thc failure to present such !~\cts on the prior motion. "1\ motion for renewal is properly made to the motion court ...to draw its attention to material facts which. although extant at the timc of the original motion. were not then kl111Wn to the party sl:cking renewal and. consequently. were not placed before the cour!. Renevval is granted spanngly. and only in cases where there exists a valid excuse for failing to submit the adrJitional racLs on the origmal application: it is not a second chance freely given to parties who have not exercised dUL' diligence in making their Jirst bctual presel1lation" (ReillY I' Trustees 0lthe Trust Created by Elizabeth N.r: Weinberg, (I." Grall/or, 132 AD2d 190.522 NYS2d 511 [J Sl Dept 1987]). I lere. the Town represents that it did not submit an answer from the County of Suffolk with its prior application. as the [* 3] DePinto v County of Suffolk et al Index No. 06-23949 Page NO.3 County of Suffolk did not interpose an answer. The TOVoinas now provided the sIgnature page for the h depositions transcripts of Michael Cuniglio who testified on behalf of the Town on February 12, 2009 and for Jenme DePinto, also dated February 12,2009. Counsel affirms that these signature pages were inadvertently omitted from motion (005) due to law office failure. The motion is now supported with the deposition transcript ora person with knowledge on behalfofthe Town. Accordingly, the application for renewal is granted. It is noted that the signature page for the deposition transcript of Ronald Giovelli has not been submitted with this motion, and, thus, the transcript is not in admissible form pursuant to CPLR 3212. Further, it is not accompanied by proof of mailing of the transcript for signature pursuant to CPLR 3 I ] 6. Thus, the Gioveili transcript is not considered upon renewal. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of lact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,416 NYS2d 790 [1979J; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395,165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N. Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N. Y. U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are rea] and capable of being established (Castro v Liberty Bus Co. ¢ 79 AD2d 1014,435 NYS2d 340 [1981]). Jenine DePinto testified at her examination before trial to the effect that the accident occurred on August 6,2005 while she was riding as a passenger on a motorcycle operated by Ronald GiovelJi. She was seventeen years of age at the time. She met Giovelli the week before the accident at a 7-Eleven Store. She stated that he told her that he did bike stunts and that he wanted to know if she would work for him at his booth while he performed stunts. About three or four days after she met Gioveili, he picked her up from her home and took her to an empty parking lot for about four hours while she watched him practi.cc stunts on his motorcycle. She also rode as a passenger behind him on his motorcycle that day and performed stunts with him (endos, whee!ies, and others). She stated that Gioveiii taught her to stand on the motorcycle while he did a maneuver, called the rodeo, in which he spun the bike around in a circle on the ground so that the motorcycle was on its side. On that date, he also taught her the stunt 'vvhichthey \vere performing when she was mjured. They practiced it m,'iee. The follow1l1gday they went to the Riverhead Raceway and performed stunts together on the motorcycle. While there, she also ran the booth which was operated under the name Reality Racing 631. She testified that the accident occurred at Tanner Park in Babylon where a skateboard competition was being held. Giovelli took her to Tanner Park where they set up the vendor booth, and [* 4] DePinto v County of Suffolk et al JndexNo.06-23949 Page: No.4 she described the \-veather as sunny. She testified that they had not made definite plans for her to do stuntslhal day, but then decided to do so. Giovdli performed some stunts before they performed together. At the time of the accident, she was wearing gloves, a helmet, and a back brace, She started IrOin a seated position as a passenger on the motorcycle, then got into a position wherein her knees were over th.ehandlebars and she was lying on her back while Giovelli was operating the motorcycle. ller hands were over her head, holding onto the two parallel scraper bars situated on top of each other, located at the rear of the motorcycle. Giovelli was in the straddle position, standing on the left side of the rnotorcycle. Both wheels of the motorcycle were on the ground; the motor cycle was standing still, then it was put into motion. Giovelli put his right leg on the peg, and his left leg on the peg, and straddled on top, facing forward. She stated that Giovelli looked back to see if everything was good, and proceeded to perfOTIlla wheelie. At the 12 o'clock position, when the bike was standing on the scraper bar, Giovelli dropped his legs and held onto the handlebars. I-Iethen jumped back on the bike and brought the bike back down on both tires. When asked during her deposition what went wrong, Jenine DePinto responded that she grabbed the wrong scraper bar with her left hand, as she grabbed the furthest bar that hit the ground instead of grabbmg the scraper bar closest to her which docs not hit the ground. She testified that Giovelli had instructed her to grab the scraper bar that was closest to her, which she did with her right hand at the time of the accident, but not with her left hand. Her left hand and the furthest scraper bar made contact with the pavement when Giovelli went into the whec1ie. She testified that she tried to signal Giovelli as soon as she realized her left hand made contact with the pavement when the bike dropped, but she couldn't say anything and just grabbed onto her left hand with her right hand. She received no payor paperwork, releases, or contracts concerning the event at Tanner Park. Michael Cuniglio testified on behalf of the Town to the extent that in 2008, he retired from the Town as a recreation specialist, a position which he held for twenty years. His immediate supervisor was the commissioner ofparks and recreation from the Town. Tn August 2005, he was responsible for many ~pecial events, such as holiday events and parades, firework shows and things like that. He testified that in 2004, the Town coordinated an event known as the Skate Jam, which v·,ras promote the to new skate facility the Town built for public use in Tanner Park, Copaigue. Tom HapPlch from Hurricane Water Sports contacted the Town about sponsoring the event. The event was a tournament type of competition for kids of various levels and ages, beginners to advanced, in which a\ ¢ ¢.. were to ards be presented. There were professional skate boarders who were compensated, but not by the Town. Cuniglio continued that Hurricane Water Sports, a small surfboard and skateboard shop, promoted and coordinated the event in 2005. The TO'WTI, vta the commissioner of parks and recreation, gave permission to Hurricane Water Sports to have vendors at the event He did not know ifHappich or Hurricane Water Sports charged a fee for the vendors to set up booths at the event. The Town initially placed an ad in the newspaper and placed the event in the summer directory, which had town-wide mailing to each household, inviting vendors to apply to set up booths. Cuniglio believed that Hurricane Water Sport's telephone number was provided in the ad and circular for registration for the event. Cunigho further stated that Tom Happich and Hurricane Water Sports also provided the professional skateboarders. [* 5] DePinto v County of Suffolk ct al Index No. 06-23949 Page No.5 Cuniglio continued that the Town did not approve the vendors, but a permit b·om thc County of Sulfolk was necessary for food to be served at the event. The Town did not require the vendors to have certificates of insurance and did not require proof of insurance from Hurricane Water Sports relative to thc 2005 cvent. Thc Town provided no relcases for participants or professIOnals who per!()[Ined in the event. I-Iestated that he did not know if Hurricane Water Sports required a release from the professionals. CunigJio testified that BMS, motorbikes, motocross or motorcycles were not permitted at the event. Cuniglio created separate files for both the 2004 and 2005 events. No additional events were held aftcr 2005 Cuniglio lcstitlcd that Hurricane Water Sports gave the Town a preliminary list of vendor pm1'icipants which was approved by the commissioner of parks and recreation. He did not have a copy of that list. Prior to the event, the Town was also provided with the agenda for the event. Coniglio 1estif'ied that the agenda did not include a motorcycle exhibition, or mention Reality Racing 631 and Ronald Giovelli. Cuniglio continued that the vendor booth maintained by Ronald Giovelli, or Reality Racing 631, adjacent to the beach pavilion, was there on Hurricane's consent. I-Iedid not see a motorcycle until approximately 5:00 p.m. Cuniglio continued that the motorcycle was not in the skateboard park where motorcycles, bicycles, scooters and motorized vehicles of any kind were not permitted, but rather in a parking lot. ft \vas beginning to perform stunts when he first saw it. He \vas unaware that anyone was going to perform stunts on a motorcycle prior to this. Cuniglio testified that both he and Happich were present at the event and witnessed the incident in which the plaintiff was injured. He stated that he did not tell Happich that he should stop the demonstration when he learned of it, and no public safety officers tried to stop the demonstration either. He \vatched the demonstration for about ten minutes prior to the incident involving the plaintifT. During 90 %) orthat performance, the rider perfonned soja wheclies, spins, and all kinds of motorcycle tricks. When the second rider got onto the motorcycle, there were about several hundred people watching the demonstration. It was not until the motorcyclists brought their motorcycle to a stop, and the young lady stepped off the bike, that it was obvious that she was in some discomfort as she walked briskly trom the bike. A woman helped her and immediately packed her hand in ice. Other people were trying to pack the plaintiffs fingers in ice for transport. The Suffolk County police responded to the scene very quickly and provided reports to the Town public safety officers. Cuniglio stated he also filled out a report for the commissioner that following Monday. In New York, to estab!Jsh a prima facie case of negligence, a plaintiff must prove (1) that the dct-endant owed a duty to plailltiff~ (2) a breach thereof, and (3) injury proximately resulting therefrom (Stukas v Streiter, 83 AD3d 18,918 NYS2d 176 [2d Dept 2011]). In order to establ1sh the third element, proximate cause, plaintitT must show that defendant's negligence was a substantial hlctor ill bringing about the injury. r f defendant's negligence were a substantial factor, it is considered to be a "proximate cause" even though other substantial factors may also have contributed to plamtifT's injury (Spiegel v Fine Paint Co. 2006 NY Misc. LEXIS 2549, 236 NYLJ 51 [Sup Ct Nassau County 2006]). Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (see Espinal v Melville Snow Contractors, Inc., 98 NY2d 136,724 NYS2d 893 [2d Dept 2002]; Darby v Compagnie Natl. Air France, 96 NY2d 343, 717 NYS2d 546 [2001]. Generally, liability for an allegedly defective condition [* 6] DePinto v County of Suffolk et al Index No. 06-23949 Page No.6 on property must be based on occupancy, ownership, control or special use orthe premises (Schwalb ef al v Kltlaski el ai, 29 i\D3d 563, 814 NYS2d 696 [2d Dept 2006\). The defendant Town has demonstrated prima facie entitlement to summary judgment dismissing the complaint based upon the adduced testimonies establishing that there was nothing that the Town did nor did not do which proximately caused the plaintiff to sustain the injury claimed in this action. The Town has demonstrated that it owned the property where the subject accident occurred, and that it had control of the premises at the time of the accident, as Michael Cuniglio and two or three safety officers from the Town were present overseeing the event sponsored by Tom Happich and Hurricane Water Sports. Thus, it is determined that the Town owed a duty to the plaintiff and members of the public present at the event. Although it is argued that the Town failed to ascertain that a motorcycle performance was going to occur at the event, it is determined as a matter of law that such failure by the Town was not the proximate cause of the plaintiff's injury. There was no dangerous condition caused or created by the Town. The motorcycle did not slide on a slippery, uneven surface, and there was no debris or dangerous condition of the Town which caused the plaintiff to sustain injury to her left hand. By her own admission, Jenine DePinto stated that she grabbed the wrong scraper bar with her left hand. She testified that instead of grabbing the scraper bar closest to her, as instructed by GiovetIi, she grabbed the scraper bar furthest from her with her left hand, and that she grabbed the scraper bar closest to her with her right hand. It was when Giovelli performed the wheelie that the furthest scraper bar, which she was holding with her left hand, made contact with the pavement, causing her injury. The plainlift~ although opposing this motion, has failed to raise a factual issue to preclude summary judgment being granted to the Town. The plaintiff argues that the park was not reasonably safe under the circumstances and that the Town failed to properly supervise that event. However, the plaintiff has failed to support that elaim or demonstrate that negligence by the Town, either in maintaining the premises or supervising the event, was a substantial factor in causing the injury to the plaintiff. Because the Town has demonstrated as a matter of law that it did not proximately cause the accident and the injuries claimed by the plaintiff, the plaintiffs allegations asserted against the Town of Babylon must fail. Dated: '0<2-(;. _30' 2oi( --_._---~ FINAL DISPOSITION x NON-FINAL DISPOSITION
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