Licato v Park at the Vil. at Mt. Sinai
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Licato v Park at the Vil. at Mt. Sinai 2012 NY Slip Op 30637(U) February 10, 2012 Sup Ct, Suffolk County Docket Number: 07-487 Judge: Joseph C. Pastoressa 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 FORM ORDl;R 07-487 11-005100T SUPREME COURT - STATE OF NEW YORK IAS. PART 34 - SUFFOLK COUNTY PRES ENT: Hon. 'f JOSEPH C. PASTORESSA Justice ofthe Supreme Court Mot. Seq. # 006 - Me.; # 007 - MG # 008 - MG # 009 - MotD #OIO-MD ----------------------------------------------------------------X JOAN ANN LlCATO, Plaintiff~ - against THE PARK AT THE VILLAGES AT MT. SINAI, PUL TE HOMES OF NEW YORK, INC., THE TOWN OF BROOKHAVEN, MONTE CAL VO ASPHALT CORP., HENDERSON AND BODWELL ENGINEERS and DAVID W. GRIFFITH, ARCHITECT, Defendants. ERIC SACHS, ESQ. Attorney for Plaintitl 254 Pettit Avenue Bellmore, New York 11710 VINCENT D. MCNAMARA Attorney for Defendant The Park at the Villages 1045 Oyster Bay Road, Tower Square E. Norwich, New York 11732 BONNER KIERNAN TREBACH, LLP Attorney for Defendant Pulte Homes of New York Empire State Building, 59th Floor New York, New York 10118 ----------------------------------------------------------------X Upon the following papers numbcred I to -.1!L read on these motions ,Notice of Motion! Order to Show Cause and supporting papers (006) ] - 22 (007) 23-35; (008) 36-53; (009) 55-59; (010) 60-63; Answering Affidavits Affidavits and supporting papers 72-73; 74-75: 76-77: 78-79: 80-81 ; Othcr opposed to llie lIlC'lliM) it is, for summary judgment and to file a jury demand ; Notice of Cross Motion and supporting papers and supporting papers 64-68; 69-71 ,Replying __ ; (and (1fteJ healing eOtilise1 tll StlPP(Jlt illid ORDERED that motion (006) by the defendant, Town of Brookhaven, for summary judgment dismissing the complaint and all cross claims asserted against it is granted; and it is further ORDERED that motion (007) by the defendant, Henderson and Bodwell Engineers, for summary judgment dismissing the complaint as asserted against it is granted; and it is further ORDERED that motion (008) by the defendant, Timber Ridge Park at Mt. Sinai s/11laThe Park at the Villages at Mt. Sinai, for summary judgment dismissing the complaint and all cross claims asserted against it is granted; and it is fmiher ORDERED that motion (009) by the defendant, Montecalvo Paving Corp., for summary judgment dismissing plaintifrs complaint and all cross claims asserted against it is granted; and that [* 2] Licato v The Park at the Villages at Mt Sinai Index No. 07-487 Page NO.2 branch of the motion which sought in the alternative an order granting Montecalvo Paving Corp. leave to serve ajury demand nunc pro tunc has been rendered academic and is denied as moot and it is further ORDERED that motion (010) by the defendant, Timber Ridge Park at Mt. Sinai s/h/a The Park at thc Villages at Mt. Sinai, pursuant to CPLR 4102 (e) granting Timber Ridge Park at Ml. Sinai leave to Serve aJury demand nunc pro tunc has been rendered academic by dismissal of the complaint and cross claims asserted against is and IS denied as moot. In this action premised upon the alleged negligence of the defendants, the plaintill Joan Ann Licata. seeks damages li)f personal injuries she sustained on January 22, 2006 at approX1111ately :00 6 p.m .. while she was a pedestrian on the roadway in front of her home at 44 Louden Loop, in Mt. Sinai. New York. She was standing on or near a raised drainage grate, taking bags out of the trunk of her vehicle, \vhen she fell on the grate. rt is undisputed that Louden Loop is located in a privately owned communlty, and is not dedicated to the Town of Brookhaven where the community is located. The adduced testimonies establish that the subject grate was a storm drain located at the lowest point on the roadway. The grate permits storm \vater to flow away from the homeowners' property and into the storm drain 1nthe street, where it finally drains into a sump. The site was designed by the engineers, Henderson and Bodwell. Pulte Homes was the owner of the development at the time of the incident. Montecalvo Asphalt Corp. applied the base layer of asphalt to the roadway, around the storm drain grate. which was in place on the date of the accident. The final top coat of asphalt had not been applied as there was ongoing construction. The development had a homeowner's association, Timber Ridge Park at Mt. Sinai Home Owners Association. The Town of Brookhaven asserted a cross claim against all the co-defendants wherein it seeks contribution and/or indemnification on the basis of apportionment of liability. Henderson & Bodwell Engineers, LLP asserted a cross claim against all the co-defendants for judgment over on the basis of apportionment of liability. Timber Ridge Park at Mt. Sinai Home Owners Association (Timber Ridge Park) by way of its answer asserts it was incorrectly sued herein as The Park at the Villages at Mt. Sinai. Montecalvo Asphalt Corp. asserted a cross claim against all co-defendants for contribution and/or indemnification_ Pulte Homes asserted cross claims against the co-defendants for contribution and/or common law indl:mnilication. The action pending under Index No. 08-44] against Montecalvo Paving Corp. \NaSconsohdated with the instant action by stipulation of the pal1ies dated July 17,2008, and the claim asserted ugainst Montecalvo Asphalt Corp. in this action was discontinued with pre.iudice. The moving defendants seek summary judgment dismissing the complaint and all cross claims asserted against euch or them. The proponent of a summary Judgment motion must make a prima l~lCie showing of entitlement to judgment as a mailer of law, tendering suf!icient evidence to eliminate any matena! issues or fact from the case. To grant summary judgment it must clearly appear that no matcnal ane! triahle issue 01'fact is presented (Sillman v Twentietlt Century-Fox Film Corporation, 3 NY2d 395 t 1(57)). The movant has the initial burden of proving entitlement to summary judgment (Winegmtl II N. Y. U. 114edical Center, 64 NY2d 851 [1985 J). railure to make such a showing requires denial of the 1l10tlOl1, regan.lless of the sufficiency of the opposing papers (Winegrad II i\: Y. U. 114edical Center, sl/pm). 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 suflicient to require a trial of any issue of fact" (CPLR 3212[b 1; Zuckerman v City (~lNelVYork, 49 NY2d 557 I] 9~WI). The opposing party must assemble, lay bare and reveal his proof in order to [* 3] LIcata v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No.3 establish that the matters set forth in his pleadings are real and capable of being established (Ct1.\·tro v Liberty EllS Co., 79 AD2d 1014 [1981]) . .rOAN ANN LlCATO Joan Ann Licato testified at her examination before trial on April 10,2008, to the extent that she sustamed an injury on January 22, 2006 in front of her home at 44 Louden Loop located in Timber Ridge Park, when she tripped on a dram located on her walkway or driveway. She and her husband purchased the home in November 2005. They did not visit the lot, even during the construction ot"their home, as the development was under construction. Just before they were ready to sign the contract, they went to the house and saw the "sewer in the walkway." She stated that they complained to the builder, Pulte Homes, who sent someone to the house to look at it, but told them that there was nothing that could be done about it. She did not put a complaint in writing to Pulte. She also testified that she complained to the Town of Brookhaven Highway Department in November or December 01'2005 about the location of the grate, but was advised that it was not a Town of Brookhaven road. She did not submit a written complaint to the Town of Brookhaven about the condition. Prior to her accident, she also spoke to someone with the Homeowner's Association about the sewer drain and was advised that it could not be removed. Licata testined that the incident occurred about 5:30-6:00 p.m. She could not remember ifit was 1Jghtor dark out or if there was artificial lighting. At her subsequent deposition, she testified that it was dark out and that she could not recall if there \vere any street lamps. She had been shopping with her husband, returned home, parked the car in her driveway, opened the trunk, and began handing bags to her husband so he could take the items into the house. As she was handing him the bags, she fell on the "sewer" grating, which she then testified was located near her driveway, rather than in her driveway. She was aware that the grate was there, as she sa'vvit every day. She testified that she never previously fell as a result of \valking on or over the grate, although she had difficulty walking over it. When asked how the accident occurred, she testified that either she tripped or her heel got caught, and that she did not know if she stubbed her toe or if par! of her heel got stuck in the grate. She also stated lhat she did not say that her heel got stuck. Prior to this incident, her heel got caught in the grate once, and about three times she slipped on the grate whether it was wet or dl)'. She then lestined that those three times she tripped on the edge of the grate because it was raised. At her subsequent deposition, she testified that on the date orthe accident, she tripped on the edge orthe grate which was on the driver's side orthe car, on the corner of the grate furthest 1'1'0111 her vehicle. She then added that she thought she tripped over the grate, that she didn't step on it, her heel didn't get caught, but she tripped. She later stated that her shoe got caught, either her shoe, her heel, her toe. when she tripped over It. She did not know the height differential bet\veen the drain cover and the roadway. and did not kno\-vifit 'vvasmore than one inch when the accident occurred. She could not recall it"the roadway \vas paved prior to her Calland stated that it was dIrt and unfinished at the time of" the accident She belil:vecl there vI/asongoing construction and that the roadway was paved afterwards. She dcscnbed her drivew'ay as being wide enough for t'vvocars, however, she could not estimate the length of the driveway. They had a two-car garage \vhich she could enter her house from, however. she did not use the garage entry instead of'vvalking on the grate on the date of the accidellt because she had boxes in the garage blocking her pathway. [* 4] Licato v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No.4 WILLIAM CARMAN William Carman testified on behalfofPulte Homes of New York, Inc. He is employed by Timber Ridge Homes, LtC as vice president of land development. He had been previously employed by Pulte Homes of New York since April 2004 as l<,U1d development manager, and was the contact person ttH all the subcontractors and work involving water, sewer, storm drains, LIPA, National Grid, earth moving projects, road paving, curbing and the infrastructure of the job. He was familiar with Louden Loop in the Villages at Mt. Sinai, which is divided into two parts, the Homes, and the Park which is for ages 55 and older. Construction had already begun at the site when he started working tor Pulte, and the subcontractors, architects and engineers were already on the job. He hired no one. He reviewed contracts to see what the responsibilities \vere for each subcontractor. Defendant Henderson & Bodwell prepared the site plans and determined the infrastructure on the site, but did not actually design the physical premises. Clearing and grading of the land was being done. Most of the storm drains were in place, as it is necessary to have them installed carlyon to handle rainfall. Prior to placement of the storm drains, the Town of Brookhaven Plmming Board and its engineer approved the site plans. He followed their directions. He testified that Pulte does not dictate the number of storm drains or se'vversto be installed. Carda installed the underground piping for the storm drains, the concrete box, and metal storm grates located on top of the concrete box. After the heavy utilities were installed, including storm sewers, sanitary sewers, and curbs, the utility companies installed the electricity, gas, telephone and cablevision. Thereafter, stated Carman, a layer of base pavement was installed on the roadway while homes 'vverebeing built. Surveying was done by the engineers, Henderson and Bodwell, who advised where each house was to be built by staking out the properties and determined the placement of storm drains and staked out the placement of the drains. Henderson and Bodwell had a representative, Brian Danielson, on site to determine that the drains were placed in their proper locations pursuant to surveys and the site plan. At this phase, Carman oversaw the contractors making sure that the contractors fol1cl\:ved Henderson and Bodwell's instructions as they, were the experts. Relative to the site plan, Pulte had no input except there did come a time that Pulte Homes asked to have additional drainage structures and pipes added after determining that the existing drainage system was not handling the volume of rain water in the grass areas. Cannan testified that he dealt with John Berchtold and Russell Lewis of Henderson and Bodwell, who engineered the additional drams. The inspector from the Town of Brookhaven was present during the installation of the storm drains, curbing and paving of the roadway. Cannan testified that he had a conversation with both Berchtold and Lewis with regard to relocating the drainage structure in front of the Licata house at 44 Louden Loop, lot 91, after the Licatos moved in, as they \vcre very unhappy with its location in tl·ont of their house and repeatedly warned that they 'vvercprobubly going to trip over it. I·Ie explained to the Llcatos that the structure was a catch busin. not a sewer. He testified that the storm drain, located in the roudway in II·ont oCthe Licato housc to the right side ol'their driveway, would have been staked out aftcr the infrastructure was completed, including the Belgian block curbing with thc curb cut. To his knowledge, no one noticed thaI there was a storm grate Il1 front ufthe curb cut. He knew orat least one other home 'vvhichhas u slorm dram located in front or the curb cut. He had been to Louden Loop on many occasions during the construction phase. but the first time the storm drain was brought to his attention \-vasby Mrs. !.xato, alter the base coat of paving had ulready been installed and the storm grate \vas in pluce. Carman described the storm grali: as being r31sed at its proper final elevation, and testified that there was a ramp to the drain cover. [* 5] Licata v The Park at the Villages at Mt. Sillai Index No. 07-487 Page NO.5 Camlan further testilied that he told the Licatos he would anempt to have the drain reengineered. He spoke to Henderson and Bodwell who sent an engineer to the site. The result was that it was dctemlined that there were too many parts of the infrastructure and/or foundations in place to move the low points necessary for drainage. He explained that a catch basin or a leeching pool is always at the low point, and that it was way beyond their capabilities to move that low point where the catch basin was localed. Cannan testified that there were about 200 to 300 manholes and catch basins ··sticking up about an inch and a half lip ramp," as that was standard at the job sile. This elevation was to allow for the final coal of asphalt paving. Carman further testified that when he went to the Licata's home and inspected Ihe drain cover, he determined that there \,vasnothing wrong with the drain cover or the catch basin. Carman testificd that he knew or no witnesses to Mrs. Licata's fall, and had reason to believe thai she did not fall in front oCher house based on the many convcrsations wherein she and her husband warned him that she was going to raIl. Carman further testi lied that he advised Henderson and Bodwell that they could not use a normal storm grate at 44 Louden Loop because it was situated by a driveway. A normal storm grate has a curb elevation on it and ISset in the curb. So a stone grate cover without a curb elevation was installed instead. The final coating of pavement in front of the Licato house was not in place when the Licato's movcd in because ongoing construction which would havc destroyed the final paving due to the trucks and heavy eqUIpment running over it. When Pulte received a final CO for a housc and property, it permitted people to movc into their homes. Pulte was aware of the raised drain grates as it was standard construction practice. Town specifications determined how much base, subgrade and top coat was to be installed on the road. He believed the Town of Brookhaven required three and a half inches of base coat and a half inch of top coat. Cannan testified that even though Louden Loop ISnot a road dedicated to the Town of Brookhaven, it still had to have the approval required by the Town. Hob Claus, from Momecalvo, was prescnt during the inspection by the Town. The inspection detcrmined that the proper thickness of asphalt was installcd, that it was put down at the proper temperaturcs and elevations, and that it was not applied too quickly to cause it to be stretched. The Town also inspccted the drain covers installed by Cardo. During the inspection, Carman stated that he and the ]'own Inspector, Mike Mcsiuno. agreed upon the type of grate necessary on the drain due to the curb cut. L1AI3lLITY In order to establish a prima facie case of negligence. a plaintiff has to dcmonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they have actual or constructive notice of the condition (Dima v Breslin Relllty,lnc .. 240 AD2d 359 [2d Dcpt 1997]). While. to prove a prima facie case of negligence in a slip and fall casco a plaimiffis required to show that the defendant created the condition which caused the accident or thai the defendant had actual or constructive notice of the condition (see. Bradifil, v Tank Tech Corp., 216 AD2d 505 [2d Dcrt 19951). the defendant on a motion for summary judgmel11 dismissmg the complaint. is required to make a prima facie showing affirmatively establishing the absence of notice as a maHer of law (see. Kucera 11 JValdblllllllS Supermarliets. 304 AD2d 531 [2d Dept 2003.1; Dwoskill ~'Burger Killg Corp .. 249 AD2d 358 r2d Dcpt 1998]). LiabililY can be predicated only upon failure of the defendant to remedy the danger alter Jctual or constructive notice of the condition (Piacquadio v Recine Realty Corp. 84 NY2d 967 [19941). To constitute constructive notice, a delcct muSl be visible and apparent and it must exist /(}r a sufticient length of time prior to the accident to permit the defendant's employees to discover and remc,dy it (see, StuJIlllcher v Waldhaum, fIlC., 274 AD2d 572 [2e1Dept 2000.1, MOOIl!i11 Wade Lupe COII.\·truetiollCompany, fne. 24 AD3d 1005 [3d Dept 2005]). [* 6] Licato v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No.6 In Trillcere v Coullty of Suffolk, the Court of Appeals held that there is no "minimal dimension test"' or per sc rule that a defect must be of a certain minimum height or depth in order to be actionable (90 NY2d 976 119971). The Court quoted the Appellate Division stating, -There is no rule that municipal liability. in a case involving minor deCects in the pavement, 'turns upon whether the holl: or depression. Causing the pedestrian to faiL is four inches--Ol"any other number of inches--in depth' (Lougliran v Ci~)I New York, 298 NY 320 [1948]; Wilsoll v Jllybro Realty & Dev. Co., 298 NY 410 of (1943]). Instead. whether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury' (Guerrieri v Summa, 193 AD2d 647 [2d Depl 1993]. Of course, in some instances, the tnvial nature of the defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury (see, e.g. Heel v City of New York, 60 NY2d 57 lclaim involving trivial gap between two flagstones of the sidewalk was properly dismissed]). Accordingly. a mechanistic disposition ofa case bac;edexclusively on the dimension of the sidewalk defect is unacceptable. In opposing these motions, the plainti Ffhas submitted an attorney's affirmation, a copy of a photograph, and notice of approval of the subdivision at Timber Ridge Park at the Villages, Section 3, Mount Sinai, setting forth requirements for permits and construction. In the absence of any evidentiary submissions to raise a factual issue, and only the assertions by counsel for the plainlin~ who is not a party with knowledge, it is determined that plaintiff failed to raise a factual issue to preclude summary judgment being granted to the moving defendants. The plaintiff has offered no evidence as to the objective measurements of the elevation of the drain cover at the site of the accident, except for her deposition testimony. Rather, the adduced testimonies establish that there was a tapering of the underneath layer of blacktop to the top of the drain cover applied prior to the accident date and prior to rhe final asphalt application. Additionally, the plaintiff has not submitted an engineer's report to establish that the defendants deviated from industry standards, were negligent in the design, installation, and/or placement of the stann drain site, or that there was a violation of any codes, rules or regulations concerning the placement of the storm drain. By her own testimony, the plaintifr established that she was aware ror months prior to the incident that the drain was in the roadway. Mere speculation and unsubstantiated allegations arc not suftic.ient to raise a factual issue to defeat a motion for summary judgment (Krid, v Wall llldu . ¢ ¢ trie~i,118 AD2d 627 [2d Dept 19861; Campbell v Tiberi et ai, 23 Misc3d 1107A fSup. Ct., Richmond County 2009]). TOWN OF BROOKHA VEl' In motion (006). the Town of Brookhaven seeks summary judgment dismissing plaintilrs complamt and all cross claims asserted against it on the basis that it did not own or maintam the area where the plaintifrs accident occurred. Assuming arguendo, that it did own the roadway where the incident occurred. the Tovvn of Brookhaven further asserts that it did not have prior written notice of the claimed defect Lastly. the Town asserts thi:ltthe plaintiff has failed to demonstn-He that a defect existed. [n support of its application. the Town of Brookhaven has submitted, inter alia, an attorney' s anirl1lation~ copies or the summons and complaints for both actions which have been consolidated: defendants' answers: plaintifr s venlied bill of particulars; various discovery demands served by the defendants: the unsigned bul certified transcripts of the examinations before trial of Joan Ann Licato dated April 10. 2008 and October 27. 2008, Ilerbert Schutte dated January 5. 20 I 0, William Cannen dated May 13. 2010. Michael Mesiano dated July 1,2010, James R. Deland, Jr. dated July 1,2010, and John [* 7] Licato v The Park at the Villages at M1. Sinai Index No. 07~487 Page No.7 Montecalvo dated November 8, 2010; two photographs of the subject drain; and the sworn affidavit of Suzanne Mauro dated June 20. 2010. Where. as here, a municipality has enacted a prior \vritten notice statute pun;uant to Town Law section 65~a, it may not be subjected to liability for personal injuries caused by an improperly maintoincd roadway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (Wilkie v Towll Ojlllllltillgtoll, 29 J\D3d 898 r2d Dept2006J, citing to Amabile v City of Buffalo, 93 NY2d 471 [19991; Lopez v G&J Rudolph, 20 AD3d 511 [2d Dcpt 2005 J: G"zelltllllller v Illcorpomted Vi!. of Port Jeffersoll, 18 AD3d 703, 704 [2d Dept 2005]). Town of Brookhaven Town Code §84-1 provides that as a prerequisite to the maintenance of a lawsuit against the Town. based upon a claim of a defective roadway, the Town must have been provided with prior written notice (Brody v TOWIlof Brookhaven, 207 AD2d 425 [2d Oept 1994]). Actual or constructive notice of a defect does not satisfy this requirement (Wilkie v Town of Huntington, supra). An exception to the prior written notice rule exists when the municipality has caused or created a defect or dangerous condition (Brody v Town of Brookhaven, supra). Here, the Town of Brookhaven has demonstrated that it neither created or caused the claimcd defect, that il did not have prior written notice of the claimed defect, that it did not own or control the subject road, that it did not have jurisdiction over the subject private roadway which was not dedicated to the Town of Brookhaven, that the storm drain and its attendant structures were installed pursuant to the Code and requirements of the Town of Brookhaven, and that it owed no duty to the plaintifr. Thus, they have established prima facie entitlement to summary judgment dismissing the complaint. Michael Mesiano testified to the extent that he has been the principal engineering inspector [or the Town of Brookhaven since 2004. Ill' was involved with the inspections at the Park at the Villages at Mount Sinai as il was being developed, and was familiar with Louden Loop. Three or four enginecnng inspectors from the Town ofl3rookhaven were assigned to inspect the locations 10 determine compliance with site plans. Mesiano testil"ied that with regard to drainage structures and water runore he does not approve the design or determine where they are to be placed or installed. I-Iereviewed the site plan for the property after the plan had already been approved by the Town of Brookhaven and signed offby the chairperson oCthe Planning Hoard. The plan showed where drainage structures would be located. At the inspection, he determines that the stmctures are placed approximately in accordance with the plan approved by lhe TmVl1. Me-siano further tcstified that at the end of a construction projcct. he signs olTto release the project. This projecl had six different sections, each of which had to be signed off separately. A certificate of occupancy (CO) is only issued for a home or building, and a certificate of completion is issued r(ll" completion of phases of development. Prior to the issuance of a certificate of occupancy ror a home, there is no inspection required regarding the drainage structures, ho\vever. the Town or Brookhaven requircs one lin or rough asphalt, or three and a hall' inches of dense binder. or asphalt. on the road. Immediately aner that paving. the sanitary sewers are "coned" ol'C He then stated that prior to the issuance ora certificate of occupancy on a house, a visual inspection orthe storm drums is made to ensure the pipes have been podged or cemented so they do not collapse during a rain storm or oyer tbe course of time Once this was approved, the applicant, Puhe Homes, was given a copy to give to the BuilJmg Department which Ihen issued the certificate of occupancy. With respect to drainage inspection. he ascertained that the proper size pipe had been installed. and that things were properly cemented inlo the structure. if required. When inspecting the roads, he detemlines that they are placed [* 8] Licato v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No.8 between the curbs. and that the road and curbs are in the correct locations. The issuance of a certilicate of occupancy before the final lift of pavement is compliant with the rules and regulations of the Town of Brookhaven. Mesiano testi lied that the survey indicates that the driveway for the Licata premIses was 19.1 feet. lie was not <1'"varef any code violations relative to the location orthe road drain where the o plaintiff fell. The subject drain has a concrete collection box with pipes which diverted the \vater to a recharge basin. The top orthe concrete collection box had a grale. The applicalion orthe final hit surface requires that there be a smooth and flush transition from the grate above the drainage box 10 the abutting and adjacent road surface. Prior to the final road surface. he believed that the transition was in place from the top of the drainage box grate to the rough asphalt lifted surface. Although he did not do cores or thickness checks, he did walk alongside the paver while the paving was being done. He stated that the location of the storm drain was in a proper location based upon his experience and the siting on the plan. as the drain appeared to be on the low spot on the road. The location of a storm drain in fi'ont of a driveway would not prevent the signing off for a certificate of occupancy. Prior to issuing the certificate of occupancy, it is required that there be an asphalt apron around the grate if it does not have its final pave. It is normal construction practice 10do the lifts in two stages. Residents always like to have a brand new road when evcl)'thing is done, with as few seams as possible. He thought there was about an eighteen month lapse between the two stages. Suzanne Mauro has set forth in her supporting affidavit that she is employed as a principal clerk with the Town of Brookhaven, Department of Ilighway. She states that the plaintiff asserts that the site of her incident was at 44 Louden Loop, Mount Sinai, on January 22, 2006. Mauro avers that the incident location occurred at a pending subdivision which was not dedicated to the Tovo'llof Brookhaven and thus the Town of Brookhaven had no jurisdiction for the roadway and was not responsible for maintaining the roadway. She further conducted a search of the records for three years prior to plaintiffs accident for any written complaints regarding the roadway and storm drain and found that there were no prior written complalllts about any defective condition. The delCndant Town of Brookhaven has demonstrated prima facie entitlemcnt to summary judgment dismissing the complaint on the basis it received no prior notice of the condition complained of herem. it did not cause or create the claimed delect. and that the Town of Brookhaven did not have jurisdiction ovcr the roadway as the roadway was not dedicated to the Town of Brookhaven as it was part of a private development. The Town of Brookhaven has demonstrated that it did not cause or create the defect complained of and that it did not have control of or maintain the private roadway. It further demonstrated that there was no prior \"lrittell notice or any defect concerning the storm drain: that thc Town or Brookhaven found no defect in the storm drain; that the drain was properly pli.lcedat a low point for drainage: that there is nothing prohibiting a stann drain from being placed near a driveway: and that the one and a half inch thickness of the final lift was achieved in hont of the Licato propcrty around lhc drain cover. The plaintirrhas subnllttcd no evidentiary proof\vhich raises a factual issue to preclude summary judgment from being granted to the Town of Brookhavcn_ No engineer report has been provided by the plaintiff concerning an inspection of the site. No measurements have been provided which contradict the testimony conccrning the amount of reveal or lip around the drain. OT that there was a violation of any standards or codes concerning the placement of the drain proximately causing the plaintiff to fall. In [* 9] Licata v The Park at the Villages at Me Sinai Index No. 07-487 Page NO.9 fact, the plaintiff's testimony is contradictory concerning whether her heel got caught in the grate or whether she tripped on it, or what caused her to fall. Accordingly, motion (006) is granted and the complaint and cross claims asserted agamst the Town of Brookhaven arc dismissed with prejudice. HENDERSON & BOSWELL ENGINEERS In l1lotion(007), !lenderson and Bodwell Engineers (Henderson and Bodwell) seek summary judgment dismissing the complaint on the basis that their work product was limited to design services ill the nature of drainage and surveying; that at the time oCthe incident the roadway where the drain was located was a work in progress. The final topcoat had not yet been applied to make the pavement l1ush with the cover, and there was a bevel transition from the top of the manhole cover to the top of the rough coating. In support ortheir application Henderson & Bodwell has submitted, inter alia, a copy orthe summons and complaint and their answer; a copy of the proposal for construction engineering and surveying dated July 17, 2002 to Donald Eversol; copies of the unsigned but certitied transcript of the examination before trial of James R. Deland, Jr. on behalf of Henderson & Bodwell dated July 1, 20 I0, the unsigned and uncertified transcripts of Joan Ann I,icato dated April 10, 2008, and I IeTbert Schutte dated January 5, 2010; the site plan for the subject property submitted to the Town of Brookhaven Planning Board, and the affidavit of James R. Deland, Jr. James Deland, Jr. testified to the extent that he has been with Henderson and Bodwell since 1978 and is the managing partner. Deland testified that the original client on the project was Klein and Eversol, the entity which preceded Pulte Homes in the ownership of the property and project, and that it changed hands in about 2005. Once Pulte took over, John Berchtold was the project manager in dealing with Pulte Homes. He stated that the site plans were prepared by Russell Bodwell of Ilenderson and 130dwcll. who has since retired. With regard to the planning of drainage in a development that is yet to be cleared and developed, factors such as runoff: the natural tlow of water, and rainfall are considered, as rc:::gulated set hy the l11unicip.alityor other government agencies, in this case, the Town of Brookhaven. or Deland continued that lot 91, or 44 Louden Loop, \vas depicted on the plans as lot number 154. The plan denotes a storm drain inlet in the roadway in front of 154. The surveyor from Henderson and Bodwell detemlined. to scale. where the actual lot would begin and where it would end. Henderson and Bodwell detennined the horizontal and vertical alignment of the roads and the drainage for the developmcnt. including where stann drains or grates would be placed. Curb lines and curb cuts for driveways were determined aileI' Pulte gave them information concerning the lot number and the information pertaining to the house selected to be placed on the lot. In 2001. it was detemlined where the storm drain would be placed in the design process. Deland testified that when the st01111 rain was placed by lot 91. no curbs were in place. lie was d awarc that a storm grate was in front of lot 91. Deland testified that it did not matter whether the storm drain \vas to the right. middle or left of lot 91 as il was set in the lo\v point in the road. lie continued that Jt did not matter that the road had not yet been paved. ITetestified that moving the storm grate three or n,Hlrfeet. or two or three feet to one side or the other, could have etTectcd the gradients orthe roadway nIl the way up to the next high points Jll either direction. Deland testified that relocating a storm drain once the drainage system and houses are built would incur signillcant cost as the drains are located at a low point. He stated there is nothing wrong with placing a storm drain gralc in front of a driveway at a [* 10] Licato v The Park at the Villages Index No. 07-487 Page No. 10 at Mt. Sinai low point. There arc no industry standards that address location of the drains. Prior to January 22, 2006, Henderson & Bodwell received no complaints regarding the location of the storm drain. By \vay of his supporting affidavit, James Deland, Jr., P.E. avers that the agreement entered into by Henderson and Bodwell provided for no administration responsibility, such as inspecting or observing construction team compliance with codes, rules or regulations, or v.,.'ith plans and specifications. Such reviev,,.'swere reserved in the contract documents to the Sutrolk County Department of Health, The Town of Brookhaven, and to the contractors and subcontractors. He states the design services provided included topographic surveys depicting locations of roads and related structures in the subject suhdivision along with surface water-run-off drainage systems. Deland continued that the location of the subject dramage inlet in front of the plaintiff's driveway on Louden Loop was dictated by the topography of that road at that location, constituting a low point for collecting surface water. The location of the dram is in no way violative of an local or state building code or mle or regulation. Deland avers that it is uncontroverted that final road construction on the Louden roadway had yet to be achieved in January 2006. He continues that according to Mr. Shutte, there was a bevel or transition Jl1 elevation to establish a taper going from the top of the inlet of the manhole to the top of the road surface in the rough surface of the road, and that the design intent of the road surface construction had not yet to be achieved. Deland avers that Henderson and Bodwell had no input or control over when the residents would be permitted to occupy the subdivision prior to final completion of the roads, and that there wcre no design omissions or CJTorsby Henderson and Bodwell in its design services for this project. Henderson and Bodwell has established its prima facie entitlement to summar)' judgment dismissing the complaint by showing that there is no mdustry standard for placement of the storm drains, and that the drain in front of the Licato home was placed at the low point in thc road to effectuate drainage of the storm water away from homeowner's property. The drain was not located on a \",alkway, nor was it located in the plaintifrs driveway. The storm drain complied with the requirements Imposed by the Town of Brookhaven. In opposing this motion, the plaintiff has not provided evidence sufficient to raise a factual issue demonstrating that the storm drain was improperly located, that it was unsafe, or that it was not installed according to either the plans or the Code of the Town of Brookhaven. Without an engineering expert's opinion, plaintiff's mere conjecture and speculation fails to raise a factual issue to preclude summary judgment from being granted to Henderson & Bodw·cll. Accordingly, motion (007) is granted and the complaint and any cross claims asserted against Henderson & Bodwell arc dismissed. TIMllER R[f)GE In motion (008), ·1 imber Ridge Park at Mt Sinai sill/a The Park at the Villages at Mt. Sinai (herell1arter Timber Ridge) seeks summary Judgment dismissing plaintill's complaint and all cross claims asserted agall1st it. In his affirmation, counsel further seeks summary judgment on its cross claIm for indemnification against the defendants; however, such relief was not set forth in the Notice of Motion_ Timber Ridge seeks summary judgment on the basis that the condition complained of "vas readily observable by the plaintiff who was aware of"the condition; that there was no defect which caused the plaintiff to fall; and the plainti ff has not profTered evidence of the height differential between the storm drain cover and the roadway; that the alleged height difference is trivial and did not constitute a trap or a snare causing the plaintitTto fall; that the storm drain was properly placed at the low spot of the road; that there is no Town ordinance which prohibits a storm drain from being placed in front of a [* 11] Licato v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No. II driveway: that it did not determine complaints about the placement of inter alia. an attorney's aflimlation; incorporates the following exhibits the deposition transcripts of Licata Montecalvo "Q". the placement of the drain; and that Timber Ridge received no the drain. In support of its application. Timber Ridge has submitted, copies of the summons and complaints and defendants' answers: and submitted by the Town of Brookhaven: photographs "K" and "L", ,or, Shut1e "M", Carman "N", Mcsiano ·'0", Deland "P", Herbert Schutte testilied on behalf of Timber Ridge that he is a resident oj: and was a board member in 2005 at Timber Ridge, a community of private homes. The Park at the Villages of Mount Sinai is a homeowner's association registered with Attorney General of New York State as Timber Ridge Park at Mount Sinai Homeowners Association. In the prospectus and bylaws for the community, it was required that there be two representatives of the homes after a certain number of homes were built. Five members were appointed to the board by Pulte at that time. In January 2005, Pulte was in control of the hoard and hired vendors, listened to complaints, addressed issues that arose, set the dues for the members. and took care of security, snow removal, and sanitation. Pulte also had a customer service department to handle any repairs or problems concerning the homes. The homeowners association did not handle those complainls. J Ie continued that Pulte hired Greenview Management Company as the management company for the community. If there were problems, Greenview did not make the repairs but contacted Pulte to make repairs. lfa complaint was received by the homeowners association, the complaint was directed to Greenview who kept a record of the complaints. Pulte \-vasresponsible for setting up the monthly board meetings, but was sometimes lax in doing so. The board meetings were open just to the board members. The board members kept a list of problems they wanted Pu1te to address and gave that list to Pulte and Greenview Management. He did not recall any complaints about the placement of the sewer grates. He did not recall ever having a conversation with either Mr. or Mrs. Licata about the storm drains, and hc did not tel! Ms. Licato that the grate was not in the correct location. He believed the street lighting was in place from the beginning. Peter Brindley from Pulte advised him that the plaintiff complained all the time about the storm drain in front of her home and said she was going to fall, and eventually did fall. Schutte further testified that the last phase of construction of the project was completed 1ll October 2008. When he moved into his home in 2005 at 101 Louden Loop, there was a rough coat of black top on the street. He was familiar with the sewer drains on Louden Loop and stated that one was located down the street from his home. He noted that there was also a drain at 44 Louden Loop. Prior to the final paving. about t,vo years after the mstallation of the rough paving. the drain at 44 Louden Loop had black top beveling down from the cover so as not to have a drop-off, as the cover was raised above the road surface. At the time, Pulte owned and maintained the roadways in the community and was responsible for the l1nal paving of Louden Loop. The final paving was not to be completed until construction was completed. Pulte hired the paving company for the roads. lie was not aware of allY delays in the roadways. Bill Carman, the land development manager and Pulte employee, was in charge of management of the roadways. Call113n is nm\' employed by Timber Ridge Park which took over after the Puhe development \vas completed. Shutte testified that Timber Ridge Park is the original company that sold the land and the development rights to Pultc, who, upon completion of the project. sold it back to Timber Ridge Park. In 200S and 2006, Pulte Jid all the hiring 10r all the vendors until it turned over responsibility to the homeowners association. Greenview kept all the minutes and the books. He further added that [* 12] Licata v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No. 12 Henderson and Rodwell were the architect/engineers for the community who set up the entire community. including the byways within the community and the board had no dealings with them. Timber Ridge Park at Mt. Sinai IIomeowners Association demonstrated its prima facie entitlement to swmnary judgment dismissing the complaint by establishing that it did not own or control the premises, that it did not crcale the condition which caused the accident, and that it did not have actual or constructive notice orthe condition or fail to act within its duties and responsibilities. Timber Ridge llomcowncrs Association did not control the association board which was controlled by Pulte Ilomes. Thus, Timber Ridge Park at Mt. Sinai llomeowners Associated owed no duty to the plaintiff and breached no duty for which liability can be imposed against them. The plaintifr has submitted no evidentiary proof which raises a factual issue to preclude summary judgment from being granted to Timber Ridge Park at ML.Sinai Homeowners Association. Thus, that part of the application with regard to the issuc ofindemnification has been rendered academic, and the issue of trivial defect is not determined as the applicant is not the owner of the premises and bears no responsibility with regard to the stoml drain covers. Accordingly, motion (008) is granted and the complaint and any cross claims asserted against Timber Ridge Park at Mt. Sinai Homeowners Association arc dismissed. MONTECi\L VO i\SPI-li\LT CORP_ (n motion (009), Montecalvo Paving Corp. seeks summary judgment dismissing the complaint and any cross claims asserted against it on the bases that it performed the paving required pursuant to the contract with Pultc I Jomes and that it bears no liability for the occurrence of the plaintiffs fall. John Montecalvo testified to the extent that he is the president of Monteclavo Paving Corp. and is the only officer ortbe corporation. In 2005-2006, he had approximately 25 employees. Montecalvo Paving Corp. entered into a contract with Pulte IJomcs on about June 14,2004 to provide paving at the Villages at Mt. Sinai. When paving in the Town or Brookhaven, Montecalvo stated that it is required that the area is first fine-graded. next the fi.rst course or a binder is applied, and then a top mix is applied as a Jinal course. In 2005, Montecalvo had applied the binder at the project. He testified that the builder determined when the binder and the lOp coat went down. When he paved at the Park at the Villages of Mt. Sinai, his contact person in the field was Bill Carman, the general superintendent for Pulte Homes. He received no complaints about the paving. Montecalvo testi fled that an inVOicedated July 15. 2005 was for partial billing of base material at the site. which base was 100% complete in that the entire first course had been applied. He believed the linal paving was complctcd in 100612007, but he had no documents to support his belief. The final course consisted of a thickness of one and a half inches of asphalt. When shown photographs identified as G. H. and I. an area in front of 44 Louden Loop, he testified that by the elevations of the asphalt. he assumed it was the top course, but by the te:\lure of the material, he assumed it was the binder course. He stated that binder is initially put around the drain, and a top course IS also applied. In applying the final course. the existing basins arc met \-viththe material, and the photographs demonstrated that the material looked IJkc it was meeting the basins. If a job is going to sit over the winter and the builder requests. the bll1der course is brought up higher to allow for snow plowing and clearing of the road. The binder course is brought up by ramping up to the basins, Of gradually lI1creasing the thickness to mcet the level ol"the basin. [* 13] Licato v The Park at the Villages at Mr. Sinai Index No. 07·487 Page No. 13 Montecalvo testified that, with reference to photographs D, E, and F, that he did not see a reveal, or an area where the edge part of the basin was showing, on either the basin or the drain. A ramp of the binder eliminates any reveal on the drain basin. 1-Ic continued that it is standard paving procedure to leave a reveal with the binder so that there is a place for the top course to adhere when it is applied. If a ramp were applied prior to the top course, the ramp would have to be cut and removed to apply the top course. He did not recall whether Pulte requested that the binder be ramped to the basins at this particular project. Generally, any request to do so would have been verbal. He was not on site vlI·hen the roadway was being paved. but he did a visual inspection of the job after completion. In his supporting affidavit, Montecalvo avers that Monlecalvo was not responsible for the installation of drainage grates at this project, and that, pursuant to the direction of Pulte Homes-I.ong Island. Montecalvo did not apply the final asphalt top coat at the project until after January 22. 2006, including that which was applied to Louden Loop. Based upon the foregoing, it is determined that Montecalvo Paving Corp. has demonstrated prima faeie entitlement to summary judgment dismissing the complaint and any cross claims asserted against him. Montecalvo did not have to return lor repair work after the job was completed. The job was inspected by the Town oj"Brookhaven which gave final approval and issued a certificate of completion for the project phase. Montecalvo testified that Pulte does not pay unless the Town inspects and signs off on the work, and that he was paid in full for the job. He received nothing in writing, but stated that it is standard procedure to get a verbal sign-oft~ as per the builder. He received no complaints from the Town of Brookhaven or any other entity concerning the paving performed at the site. In opposing this motion, the plaintiff failed to raise a factual issue to preclude summary judgment from being granted to Montecalvo. There have been no evidentiary submissions by the plaintiff demonstrating that Montecalvo failed to perform pursuant to his agreement with Pulte Homes; otherwise departed from that which was required pursuant to the agreement with Pulte Homes or the requirements by the Town of' Brookhaven, or that it caused or created a defect, or perfonued in a manner other than that which was required pursuant to the contract with Pulte Homes. Accordingly, that part of motion (009) by Montecalvo Paving Corp. for summary judgment dismissing the complaint and all cross claims asserted against it is uranted with prejudice. ~0Yr-----~ /l~~·· Dated' February J O. 2012 HO~.I0SEPH FINAL DISPOSITION X c. PASTORESSA,.I.S.C. NON-FINAL DISPOSITION [* 14] Licato v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No. 14 TO: LEWIS JOHS A VALLONE AVILES, LLI' Attorney for Defendant Town of Brookhaven 425 Broad Hollow Road tvlclville, New York 11747 DEMERS & MCMANUS, ESQS. Attorney CorDefendant Montecalvo Asphalt 200 I.U. Willets Road i\lbeI1son, New York 11507 AHMUTY, FIEDELMAN & MCGAW Attorney for Defendant Montecalvo Paving Two Jericho Plaza Jericho, New York 11753 KRIEG ASSOCIATES, I'.C. Attorney for Defendant Henderson and Bodwell 5 Heather Court Dix llills, New York 11746
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