Licato v Park at the Vils. at Mt. Sinai
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Licato v Park at the Vils. at Mt. Sinai 2012 NY Slip Op 30653(U) February 10, 2012 Supreme Court, 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. SIlORT FORM OII.DER 07-487 11-005100T SUPREME COURT - STATE OF NEW YORK IAS. PART 34 - SUFFOLK COUNTY PRESENT: Hon. JOSEPH C. PASTORESSA Justice of tile Supreme Court Mot. Seq. # 006 - MG #007 - MG # 008 - MG # 009 - MolD #OIO-MD ----------------------------------------------------------------X JOAN ANN LICATO, Plaintiff, - against THE PARK AT THE VILLAGES AT MT. SINAI, PUL TE HOMES OF NEW YORK, INC., THE TOWN OF BROOKHA VEN, MONTE CALVO ASPHALT CORP., HENDERSON AND BODWELL ENGINEERS and DAVID W. GRJFFITH, ARCHITECT, Defendants. ERJC SACHS, ESQ. Attorney for Plaintiff 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 I I 732 BONNER KIERNAN TREBACH, LLP Attorney for Defendant Pulte Homes of New York Empire State Building, 59th Floor NcwYork,NewYork 10118 ----------------------------------------------------------------X Upon the following papers numbered 1 to..12... read on these motions ; Notice of Motion! Order to Show Cause and supporting papers (006) 1 - 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 ; Other oppo!ed It>tl,e lMliclIl) 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 __ ; (fllld aRe, hellliltb e"'tltl~eI in !app"'ll and ORDERED that motion (006) by the defendant, Tov,rnof Brookhaven, for summary judgment dismissing the complaint and all cross claims asserted against it is !!Tanted;and it is further ORDERED that motion (007) by the defendant, Henderson and Bod\.vell Engineers, for summary judgment dismissing the complaint as asserted against it is Q.ranted;and it is further ORDERED that motion (008) by the defendant, Timber Ridge Park at Me Sinai slh/a The 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 further ORDERED that motion (009) by the defendant, Montecalvo Paving Corp., for summary judgment dismissing plaintiffs complaint and all cross claims asserted against iLis 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 \.vhich sought in the alternative an order granting Montecalvo Paving Corp. leave to serve ajury demand nunc pro tunc has been rendered academic and is denicd 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 the Villages at Mt. Sinai. pursuant to CPLR 4102 (c) granting Timber Ridge Park at Mt. Sinai leave to serve a JUry 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 premiscd upon the alleged negligence of the defendants, the pluintiil Joan Ann Licato, seeks damages for personal injuries she sustained on January 22, 2006 at approximately 6:00 p.111., hilc she was a pedestrian on the roadway in front afher home at 44 Louden Loop, In Me SinaL w New York. She was standing on or near a raised drainage grate, taking bags out orthe trunk of her vehicle. when she fell on the grate. It is undisputed that Louden Loop is located in a privately owned community, and is not dedicated to the Tmvn 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 pennits storm water to flow away from the homeowners' property and into the storm drain in the street, where it finally drains into a sump. The site was designed by the engineers, Ilenderson 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 bcen applied as there was ongoing construction. The development had a homeovmer'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 andlor indemnification on the basis of apportionment ofliability. Henderson & Bodwell Engineers, LLP asserted a cross elaim against all the co-defendants for judgment over on the basis of apportionment ofliability. 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 Me Sinai. Montecalvo Asphalt Corp. asserted a cross claim against all co-defendants for contribution and/or indemnification_ Pulte Ilomes asserted cross claims against the co-defendants for contribution and/or common law indemnification. The action pending under Index No. 08-44] against Montecalvo Paving Corp. was consolidated with the instant action by stipulation orthe parties dated .July 17,2008. and the claim asserted against Montecalvo Asphalt Corp. in this action was discontinucd with prejudice. The moving defendants seek summary judgment dismissing the complaint and all cross claims asserted against each of them. The proponent of a sunUllaJ)' 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 fact from the case. To grant summary judgment it must clearly appear that no matcnal and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation. 3 NY2d 395 119571). The movant has the initial burden of proving entitlement to summm)' judgment (Wil1egrad v N. Y.U. Medical Center. 64 NY2d 851 l1985]). Failure to make such a showing requires denial of the motion. regardless of the sufJiciency of the opposing papers (Winegrad v N. Y.U. Mer/iclli Center, SII/}/'{I). Once such proof has been ollercd, 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 32] 2[b]; Zuckerman v City of New York. 49 NY2d 557 1"1980]). The opposing party must assemble, lay bare and reveal his proof in order to [* 3] Licata v The Park at the Villages al Mt. Sinai Index No. 07-487 Page No.3 establish thatthc matters set forth in his pleadings are real and capable of being established (Castro v LibertyBmCo., 79i\U2d 1014 [1981]). JOAN ANN LICATa Joan Ann Licata testified at her examination before trial on April 10, 2008, to the extent that she sustained an injury on January 22, 2006 in front of her home at 44 Louden Loop locatcd in Timber Ridge Park, when she tripped on a drain 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 of their home, as the dcvelopment 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 Pultc. She also testified that she complained to the Town of Brookhaven Highway Department in November or December of2005 about the location of the grate, but was advised that it was not a Town of Brookhaven road. She did not submit a '-witten complaint to the Town of Brookhaven about the condition. Prior to her accident, she also spoke to someone with the I Iomeowncr's Association about the sewer drain and was advised that it could not be removed. Licata testified that the incident occurred about 5:30-6:00 p.m. She could not remember ifit was light or 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 wcre any street lamps. She had becn 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 saw it every day. She testified that she never previously fell as a result of walking 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 that she did not say that her heel got stuck. Prior to this incident, her lwei got caught in the gratc once, and about three limes she slipped on the grate whether it was wet or dry. She then testified that those three timcs she tripped on the edge of the grate becausc it was raised. At her subsequent deposition, she testified that on the date of the accident, she tripped on the edge orthe grate which was on the driver's side orthe car. on the corner of the grate furthest from her vehiclc. 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 ovcr it. Shc did not know the height differential between the drain cover and the roadway_ and did not know if it was morc than one inch when the accident occurred. She could not recall irthe roadway was paved prior to her fall and staled that it was dirt and unfinished at the time of the m:cidcnt She believed thcre was ongoing construction and that the roadway was paved afterwards. She described her driveway as being wide enough for two cars, however. she could not estimate the length of the dnveway. They had a two-car garage which she could enter her house from, howevcr. she did not use the garage entry instead of walking on the grate on the date of the accident because she had boxes in the garage blocking her pathway. [* 4] Licata v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No.4 WILI.lAM CARMAN William Cannan testified on behaIfofPultc Homes of New York, Inc. He is employed by Timber Ridgc 1lames, LLC as vice president ofland development. He had been previously employed by Pulte Homes of New York since April 2004 as land devclopmentmanager, and was the contact pcrson ror 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 l:'lmiliar with Louden Loop in the Villages at Mt. Sinai, whieh is divided into two parts, the Homes, and the Park which is for ages 55 and older. Constmction had already begun at the site when he started working for Pulte, and the subcomractors. architects and engineers were already on the job. He hired no one. lie reviewed contracts to see what the responsibilities were for each subcontractor. Defendant I lenderson & 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 early on to handle rainfall. Prior to placement of the stann drains, the Town of Brookhaven Planning Board and its engineer approved the site plans. He f()llowed their directions. He testified that Pulte does not dictate the number of storm drains or sewers to be installed. Cardo 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 stoml sewers, sanitary sewers, and curbs, the utility companies installed the electricity, gas, telephone and cablevision. Thereafter, stated Cannan, a layer of base pavement was installed on the roadway while homes were bemg built. Surveying was done by the engineers, Henderson and Bodwell, who advised where each house \vas 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, Carnlan oversaw the contractors making sure that the contractors followed 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 or rain water in the grass areas. Carman testified that he dealt v.,rith John Berchtold and Russell Lewis of llenderson and Bodwell, who engineered the additional drains. The inspector from the Town of Brookhaven was present during the installation of the storm drains. curbing and paving of the roadway. Carman 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 I.ouden Loop. lot 91. after the Licatos moved in. as they were very unhappy \vith its location in front of their house and repeatedly warned that they were probably gomg to trip over it. lie explained to the Licatos that the structure \Vas a catch basin. not a sewer. He lcstilied that the storm drain, located in the roadway in front of the Licata house to the right side of their drive\'vay. would have been staked out after the infrastructure was complcted, including the Belgian block curbing with the curb cul. To his knowledge, no one noticed that there was a storm grate in front of the curb cut. He knew of at least one other home vvhich has a storm drain located in front oCthe curb cut. lie had been to Louden Loop on many occasions during the construction phase. but the lirs! time the storm drain was brought to his attention was by Mrs. Licato. after the base coat orpaving had already been installed and the storm grate was in place. Cannan described the storm grate as being raised at its proper final elevation. and testified that there was a ramp to the drain cover. [* 5] Licata v The Park allhe Villages al Mt. Sinai Index No. 07~487 Page No.5 Camlan further testitied that he told the Licatos he would attcmpt to have the drain rcengineered. fie spoke to Henderson and Bodwell who sent an engineer to the site. The result was that it was determined 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 \vas way beyond their capabilities to move that low point where the catch basin was located. Carman 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 site. This elevation was to allow for the fi.nal coat of asphalt paving. Carman further testified that when he went to the Licata's home and inspected the drain cover, he determined that there was nothing wrong with the drain cover or the catch basin. Carman testified that he knew of no witnesses to Mrs. Licato's fall, and had reason to believe that she did not fall in front of her house based on the many conversations wherein she and her husband w·arned him that she was going to fall. Carman further testified that he advised Henderson and Bodwell that they could not use a normal stoml grate at 44 Louden Loop because it was situated by a driveway. A normal storm grate has a curb elevation on it and is set in the curb. So a stone grate cover without a curb elevation was installed instead. The tinal coating of pavement in front of the Licata house was not in place when the Licata's moved in because ongoing construction which would have destroyed the final paving due to thc trucks and heavy equipment rUlming over it. When Pulte received a final CO for a house and property, it pemlitted people to move 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. Carman testified that even though Louden Loop is not a road dedicated to the Town of Brookhaven, it still had to have the approval required by the Town. 80b Claus, from Montecalvo, was present during the inspection by the Town. The inspection determined that the proper thickness of asphalt was installed, that it was put down at the proper temperatures and elevations, and that it was not applied too quickly to cause it to be stretched. Thc Town also inspected the drain covers installed by Cardo. During the inspection, Cannan stated that he and the Town Inspector, Mike Mcsiano, agreed upon the type of grate necessary on the drain due to the curb cut. LIABILITY In order (0 establish a prima facie case of negligence, a plaintiJfhas to demonstrate 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 (Dimll v Breslin Rell!ty, IIIC., 240 AD2d 359 r2d Oept 1997J). While, to prove a prima facie case of negligence in a slip and fall case. a plaintilTis required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (see, Bradish v Tllllk Tech Corp., 2] 6 AD2d 505 l2d Dcpt 1995]), the defendant on a motion for summary judgment dismissing the complaint. is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law (see. Kucera v Waldbllllms Supermarkets, 304 AD2d 53] [2d Oept 2003]; Dwoskill v Burger King Corp., 249 AU2d 358 [2d Depl 19981). Liability can be predicated only upon failure 01" defendant to remedy the the danger after actual or constructive notice of the condition (Piacqlladio v Recine Realty Corp. 84 NY2d 967 [1994]). To constitute constructive notice, a defect must be visible and apparent and it must exist lar a sullicicnt length of time prior to the accident to permit the defendant's employees to discover and remedy it (seC? Stllmacl,er v Waldhallm,lllc .. 274 AD2d 572 r2d Oept 20001; Moons v Wade Llipe Construction Company, fllc. 24 I\03d 1005 [Jd Oept 2005"1). [* 6] Licata v The Park at the Villages at Mt. Sinai Index No. 07-487 Page NO.6 In Trincere v County of Suffolk, the COUl1 of Appeals held that there is no "minimal dimension test" or pcr se rule that a defect must be of a certain minimum height or depth in order to be actionable (90 NY2d 976 [1997 J). The Court quoted the Appellate Division stating, "There is no rule that municipal liability. in a case involving minor defects in the pavement, 'turns upon whether the hole or depression, causing the pedestrian to fall, is four inches--or any other number of inches--in depth' (Loughran )' City of New York, 298 NY 320 l1948]; Wi/.501l Jaybro Realty & Dev. Co., 298 NY 41 a v [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 offact lor the juri (Guerrieri v Summa, 193 AD2d 647 [2d Dept 1993J. Of coursc, in some instances, the trivial nature of the defect may loom larger than another clement. Not every iqjury allegedly caused by an elevated brick or slab necd be submitted to ajury (see, e.g Hect v City of New York, 60 NY2d 57 [claim involving trivial gap between t\\'"Oflagstones of the sidewalk was properly dismissed]). Accordingly, a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable. In opposing these motions, the plaintiff has submitted an attorney's affirmation, a copy ofa 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 plaintiff, who is not (l 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 the 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 storm 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 plaintiff established that she was aware i()r months prior to the incident that the drain was in the roadway. Mere speculation and unsubstantiated allegations are not sufficjent to raise a factual issue to defeat a motion lor summary judgment (Krich v Willi Industries, 118 AD2d 627 [2d Dcpt 1986]; Campbell v Tiberi et 01,23 Misc3d 1107/\ [Sup. Ct, Richmond County 2009]). TOWN OF [JROOKH/\ VEN In motion (006). the Town of Brookhaven seeks summary judgment dismissing pbintilT's complaint and all cross claims asserted against it on the basis that it did not own or maintain the area where the plaintiffs accident occurred. Assuming arguendo, that it did own the roadway where the incident occurred. the Town of Brookhaven further asserts that it did not have prior written notice of the claimed defecl. Lastly. the Town asserts that the plaintiff has failed to demonstrate that a defect existed. In support of its application. the Town of Brookhaven has submitted. inter alia, an attorney's affirmation: copies of the summons and complaints for both actions which have been consolidated: defendants' answers; plaintiffs verified bill of particulars; various discovery demands served by the defendants; the unsigned but certilied transcripts of the examinations bcfore trial oUoan Ann Licata dated AprillO. 2008 and October 27,2008, Herbert Schutte dated January 5, 20]0, William Carmen dated May 13. 2010, Michael Mcsiano dated July 1,2010, James R. Deland, Jr. dated July 1,20 I0, and John [* 7] Licato v The Park al Ihe Villages at Mt. Sinai Index No. 07-487 Page No.7 Montecalvo dated November 8, 20lO; two photographs of the subject drain; and the swam affidavit of Su:t..anncMauro dated June 20. 2010. Where. as here, a municipality has enacted a prior written notice statute pursuant to TO\\/11 Law section 65-a. ill11ay not be subjected to liability for personal injuries caused by an improperly maintained roadway unless either it has received prior written notice oCthe defect or an exception to the prior written notice requirement applies (Wilkie v TOWIlO/HUlltingtoll, 29 AD3d 898l2d Dept 2006], citing to Amahile v City oj Buffalo, 93 NY2d 471 [19991; Lopez v G&J Rudolph, 20 AD3d 511 [2d llept 2005]; Gazell11luller v Illcorpomted Vi/. 0/ Port Jefferson, 18 AD3d 703, 704 l2d 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 Tovm must have been provided with prior written notice (Brody v Towll 0/ Brookhaven, 207 AD2d 425 [2d Dept 1994]). Actual or constructive notice of a defect does not satisfy this requirement (Wilkie v TOWIlof Hll1ltington, supra). An exception to the prior written notice rule exists when the municipality has caused or created a defect or dangerous condition (Brody v TOWIl0/ Brookhaven, supra). Here. the Town of Brookhaven has demonstrated that it neither created or caused the claimed defect, that it 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 01" 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 plaintiff. 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 for the Town of Brookhaven since 2004. He was involved with the inspections at the Park at the Villages at Mount Sinai as it was being developed, and was familiar with Louden Loop. Three or four engineering inspectors from the Tovm of Brookhaven were assigned to inspect the locations to determine compliance with site plans. Mesiano testilicd that with regard to drainage structures and water runoff, he docs 110t approve the design or determine where they are to be placed or installed. He reviewed the site plan tor the property aftcr the plan had already been approved by the Town of Brookhaven and signed ofTby the chairperson of the Planning Board. The plan showed where drainage structures would be locatcd. At the mspection, he detennines that the structures are placed approximately in accordance with the plan approved by the Town. Mesiano further testified that at the end of a constmction project. he signs off to release the project. This prqjeci had six di fferem sections, each of which had to be signed off separately. A certi licate 01" occupancy (CO) is only issued for a home or building, and a certificate of completion is issued for completion of phases of development. Prior to the issuance ofa certificate of occupancy for a home. there is no inspection required regarding the drainage structures, hovieveL the Town of Brookhaven requires one lifi or rough asphalt, or three and a half inches of dense binder. or asphalt. on the road. Immediately after that paving, the sanitary sewers are "coned" off. He then stated that prior to the issuance oj"a cel1ificate or occupancy on a house, a visual inspection of the storm drains is made to ensure the pipes have been podged or cemented so they do not collapse during a rain storm or over the course of time. Once this was approved, the applicant, Puite Homes, was given a copy to give to the Building Department which then 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 into the structure, if required_ When inspecting the roads. he determines that they are placed [* 8] Licata 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 certificate of occupancy before the final lift ofpavcmcnt is compliant with the rules and regulations orthe Town of Brooklwven, Mesiano testified that the survey indicates that the driveway for the Licato premises was 19.1 feel. He was not aware or any code violations relative to the location of the road drain where the plaintiff fell. The subject drain has a concrete collection box with pipes which diverted the water to a recharge basin. The top of the concrete collection box had a grate. The application oCthe final lift surface requires that there be a smooth and flush transition from the grate above the drainage box to the abuning and adjacent road surface. Prior to the final road surface, he believed that the transition was in place ti'om the top ol'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 slorm drain in front of a driveway would not prevent the signing off for a certificate of occupancy. Priorto 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 nonnal construction practice to do the lifts in two stages. Residents always like to have a brand new road when everything is donc, 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 elerk with the Town of Brookhaven, Department of lIighway. 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 Tov·lJlof 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 plaintifrs accident for any written complaints regarding the roadway and storm drain and found that there were no prior written complaints about any defective condition. The defendant Town of Brookhaven has demonstrated prima facie entitlement to summary judgment dismissing the complaint on the basis it received no prior notice of the condition complained of herein. it did not cause or create the claimed delcct, and that the TO\,.,nof Brookhaven did not have jurisdiction over 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 delcct complained of. and that it did not have control of or maintain the private roadway. It further demonstrated that there was no prior written notice of any defect concerning the storm drain; that the Town or I3rookhavcn found no deicet in the stor111 drain; that the drain was properly placed at a low point for drainage; that there is nothing prohibiting a storm drain from being placed near a driveway: and that the one and a hair inch thickness of the final lift was achieved in front of the Lieato property around the drain coveL The plainti ff has submitted no evidentiary proof which raises a factual issue to preclude summary judgment from being granted to the Town of Brookhaven. No engineer report has been provided by the plaintiff concerning an inspection oCthe site. No measurements have been provided \.vhich contradict the testimony concerning the amount ofrevcal or lip around the dram, or that there vI/asa violation of any standards or coues coneerlllng the placement orthe drain proximately causing the plaintifftn rail. In [* 9] Licata v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No.9 fact, the plaintiffs testimony is contradictory concerning whether her heel got caught in the grate or whether she tripped on it, or what caused her to 1811. Accordingly, Illotion (006) is granted and the complaint and cross claims asserted against the Town of Brookhaven arc dismissed with prejudice. HENDERSON & BOSWELL ENGINEERS In motion(007). llenderson and Bodwell Engineers (llenderson and Bodwell) seek summary judgment dismissing the complaint on the basis that their work product was limited 10 design services in the nature of drainage and surveying; that at the time of the 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 tlush 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 of their application Henderson & Bodwell has submitted, inte-ralia. a copy of the 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 certified transcript of the examination before trial of James R. Deland, Jr. on behalf of Henderson & Bodwell dated July 1,2010, the unsigned and uncel1ified transcripts of Joan Ann Licato dated April 10,2008, and Herbert Schutte dated January 5, 20 I 0; the site plan for the subject property submitted to the Town of Brookhaven Planning Board, and the affidavit of Jmnes R. Deland, Jr. James Deland, Jr. testified to the extent that he has been v·,'ithHenderson and Bodwel! 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 Pultc IJames. He stated that the site plans were prepared by Russell Bodwell of Henderson and Bodwell. 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 runon~ the natural flow of water, and rainfall arc considered, as regulawd or set by the municipality or other government agencies, in this case, the Town of Brookhaven. Deland continued that lot 91, or 44 Louden Loop, was 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 determined. 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 development. including \-vherestorm drains or grates would be placed. Curb lines and curb cu1s for driveways "vere determined ancr Pulle gave them infonnation concerning the lot number and the information pel1aining to the house selected to be placed on the lot. In 2001, it was determined where the storm drain would be placed in the design process_ Deland testified thaI when the stonn drain was placed by lot 91. no curbs were in place. lie was aware that a stoml grate was III front of lot 91. Deland testified that it did not mattcr whether the storm drain was to the right. middle or left of lot 91 as it was set in the low point in the road. IIe continued thaI it did not matter that the road had not yet been paved. I Ie testified that moving the stann grate three or four fCCL or two or three feet to one side or the other, could have effected the gradients of the roadway all the way up to the next high points in either direction. Deland testiJicd that relocating a storm drain once the drainagc system and houses are built would incur signijicant cost as the drains are located at a low point. He stated there is nothing wrong with placing a storm drain grate in front of a drive\vay at a [* 10] Licato \' The Park at the Villages at MI. Sinai Index No. 07-487 Page No. 10 low poine There are no industry standards that address location of the drains. Prior to January 22.1006, Henderson & Bodwell received no complaints regarding the location ofihe storm drain. By way of his supporting affidavit, .lames Deland, .lr., 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 with plans and specifications. Such reviews were reserved in the contract documents to the Suffolk 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 subdivision along with surface water-run-off drainage systems. Deland continued that the location of the subject drainage inlet in front of the plaintiffs 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 drain is in no way violative of an local or state building code or rule 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 in elevation to cstablish 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 were no design omissions or errors by Henderson and Bodwcll in its design services for this project. Henderson and Bodwell has established its prima facie entitlcment to summary judgment dismissing the complaint by showing that there is no industry standard for placement ofthc storm drains, and that the drain in front of the Licato home was placed at the low point in the road to effectuate drainage of the stom1 water away from homeowner's property. The drain was not located on a walkway, nor was it located in the plaintiff's 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, plaintiffs mere conjecture and speculation fails to raise a factual issue to preclude summary judgment from being granted to Henderson & Bodvvell. Accordingly, motion (007) is grantcd and the complaint and any cross claims asserted against Ilcndcrson & Bodwcll are dismisscd. TIMBER RIDGE In motion (008), Timber Ridge Park at Me Sin~l.I th/a The Park at the Villages at Me Sinai s (hereinafter Timber Ridge) seeks summary judgment dismissing pJaintirrs complaint and all cross claims asserted against it. [n his artirmatioll, eoullsel further seeks summary judgmcl1l on its cross claim for indemnification agall1st the defendants: however, such relicfwas not set forth in the Notice of Motion. Timber Ridge seeks summary judgment on the basis that: the condition complained of was readily observable by the plaintiff who was aware orthe condition; that there was no defcct which caused the plainriffto fall; and the plaintiff has not proffered evidence of the height differential between the storm drain cover and the roadway; that the allcged height difference is trivial and did not constitutc a trap or a snare causing the plaintiff to fall; that the stOffildrain was properly placed at the low spot of the road: that there is no Town ordinance which prohibits a storm drain from being placcd in front of a [* 11] Licata v The Park at the Villages at Mt. Sinai Index No. 07-487 Page No. II driveway; that it did not determine the placement of the drain; and that Timber Ridge receivcd no complaints about the placement of the drain. In support of its application. Timber Ridge has submittcd. inter alia. an attorney's affimlation: copies of the summons and complaints and defendants' answers; and incorporates the following exhibits submitted by the Town of Rrookhaven: photographs "K" and ··L··. the deposition transcripts of Licato "J", Shutte "M", Carman "N", Mesiano '''0'', Deland "P". Montccalvo "Q". Herbert Schutte testitied on behalf of Timber Ridge that he is a resident of, and was a board member in 2005 at Timber Ridge, a community of private homes. The Park at the Villagcs of Mount Sin<:li s a homeow·ner's association registered with Attorney General of New York State as Timber i Ridge Park at Mount Sinai I lomcowners 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 Pultc at that timc. In Janual)' 2005, Pulte was in control oflhe board 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 conceming the homes. The homeowners association did not handle those complaints. He 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. If a complaint was received by the homeowners association, the complaint was directed to Greenview who kept a record of the complaints. Pulte was responsible 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 Pulte to address and gave that list to Pulle 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 he did not tell Ms. Licuto that the grate was n01 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 rail, and eventually did fall. Schutte further testified that the last phase of construction of the project was completed in 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. I-Iewas fa.miliar 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 linal paving, about two years after the installation of the rough paving. the drain at 44 Louden Loop had black lOp beveling down from the cover so as not to have a drop-off, as the cover wa"i raised above the road surlacc_ At the timc. Pulte owned and maintained the roadways in the community and was rcsponsible for the final paving of Louden Loop. The final paving H'as not to be completed until construction was completed. Pulte hired the paving company for the roads. lie was not aware of any delays in the roadv·iays. Oill Carman, the land development manager and Pulte employee, was in charge of management of the roadways. Cam1an is now employed by Timber Ridge Park which took over after the Pulte developmcnt was completed_ Shuttc testified that Timber Ridge Park is thc original company that sold the land and the development rights to Pultc, who, upon completion ol'the project, sold it back to Timber Ridge Parh:. 1n 2005 and 2006, Pulte diJ all the hiring for all the vendors until it turned over responsibility to the homcowners assoc18.tion. Cin::envicw kept all the minutes and the books. I1e !1.111her added that [* 12] Licata v The Park at the Villages at Me Sinai Index No. 07-487 Page No. 12 Henderson and Bodwell 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 Homeowners Association demonstrated its prima facie entitlement to summary judgment dismissing the complaint by establishing that it did not o\\'n or control the premises, that it did not creute the condition which caused the accident, and that it did not have actual or constructive notice of the condition or fail to act within its duties and rcsponsibilities. Timber Ridge Ilomeowners Association did not control the association board which was controlled by Pulte Homes_ Thus. Timber Ridge Park at Mt. Sinai Homeowners Associated owed no duty to the plaintiff and breached no duty for which liability can be imposed against them. The plaintiff has submitted no evidentiary proof which raises a factual issue to preclude summary judgment from being granted to Timber Ridge Park at Mt. Sinai Homeowl1ers Association. Thus, that part of the application with regard to the issue of indemnification has been rendered academic, and thc issue of trivial defect is not detemllned as the applicant is not the owner of the premises and bears no responsibility with regard to the storm drain covers. Accordingly, motion (008) is granted and the complaint and any cross clairm; asserted against Timber Ridge Park at M1. Sinai Homeowners Association are dismissed. MONTECALVO ASPHALT CORP. In 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 Pulte Homes and that it bears no liability for the occurrence of the plaintiffs fall. John Montecalvo testified to the extent that he is the presidcnt of Monteelavo Paving Corp. and is the only officer of the corporation. In 2005-2006, he had approximately 25 employees. Montecalvo Paving Corp. entered into a contract with Pulte Ilomes on about June 14,2004 to provide paving at thc Villages at Mt. Sinai. When paving in the Town of Brookhaven, Montecalvo stated that it is required that the area is first fine-gradcd, next the first course or a binder is applied, and then a top mix is applied as a final course. In 2005, Montecalvo had applied the binder at the project. He testitied that the builder determined when the binder and the top coal went down. When he paved at the Park at the Villages of Mt. Sinai, his contact person in thc field was Bill Carman, the general superintendent for Pulte Homes. Ill' received no complaints about the paving. Montecalvo testified that an invoice dated July 15,2005 was for partial billing of base material at the-Slle. which base was 100% complete in that the entire first course had been applied. lie believed the linnl paving was completed in 2006/2007, hut he had no documents to support his belief. The j-inal course consisted or a thickness of one and a hall' inches of asphalt. When shown photographs identi lied as G, I-I.and J. nil area In front 01'44 Louden Loop, he testified that by the elevations oCthe asph<.l1t, e h assumed it \vas the top course, but by the texture of the material, he assumed it was the binder course, Ill' Slated 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 with the material, and the photographs demonstrated that the material looked like it was meeting the basins. Irajob is going to sit over the winter and the builder requests. the binder 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, or gradually increasing the thickness to meet the level orthe basin. [* 13] l.icatDv The Park at the Villages at ML 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. He 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. I r 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 vvas not on site \vhen the roadway was being paved, but he did a visual inspection of the job after completion. In his supporting affidavit, Montecalvo avers that Montecalvo was not responsible for the installation of drainage grates at this project, and that, pursuant to the direction of Pulte Homes-Long 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 facie entitlement to summary judgment dismissing the complaint and any cross claims asserted against him Montecalvo did not have to return for repair work after the job was completed. The job was inspected by the Town of Brookhaven which gave final approval and issued a certificate of completion lor the project phase. Montecalvo testified that Pulte docs 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 proccdure to get a vcrbal sign-off, as pcr 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 or Brookhaven, or that it caused or created a defect, or performed in a manner other than that which was required pursuant to the contract with Pulte Homes. Accordingly, that part or motion (009) by Montecalvo Paving Corp. for summary j uJgment dismissing the complaint and all cross claims asserted against it is granted with prejudice. Dated' February 10. 2012 _. /y~r= ~ ~~ 110)( JOSEPH c. PASTORESSA, .I.S.c. FINAL DISPOSITION X NON-FINAL DISPOSITION [* 14] Licuto v The Park at the Villagcs at Me Sinai Index No. 07-487 Page No, 14 TO: LEWIS JOHS AVALLONE AVILES, LLP Attorney for Defendant Town of Brookhaven 425 Broad Hollow Road Melvillc_ New York 11747 AHMUTV, DEMERS & MCMANUS, ESQS. Attorney for Defendant Montecalvo Asphalt 2IJIJHi. Willets Road Albertson, New York 11507 FlED ELMAN & MCGAW Attorney for Defendant Montecalvo Paving Two Jericho Plaza Jericho, New York] 1753 KRIEG ASSOCIATES, P.c. Attorney for Defendant Henderson and Bodwell 5 Heather Court Dix Hills, New York 11746
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