D'Anna v Incorporated Vil. of Hempstead

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D'Anna v Incorporated Vil. of Hempstead 2012 NY Slip Op 30830(U) March 23, 2012 Supreme Court, Nassau County Docket Number: 025366/09 Judge: Randy Sue Marber 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] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARDER JUSTICE TRIAL/IAS PART 14 SALVATORE D' ANNA, Index No. 025366/09 Motion Sequence.. .10 , 11 , 13 , 14 , 15 Motion Date... 01l18112 Plaintiff -against- THE INCORPORATED VILLAGE OF HEMPSTEAD THE TOWN OF HEMPSTEAD, THE COUNTY OF NASSAU , JACKSON PRIME REALTY , LLC MILLENNIUM TOYOTA , RED ROCK INDUSTRIES INC. , J. S. HEMPSTEAD REALTY , LLC, GALLI ENGINEERIG. P. , MILLENNIUM SUPER STORE LTD. , NEW YORK AUTOMOTIVE GIANT , LLC., VIGILANT CESSPOOL & SEWER SERVICE , INC. DOBLER CHEVROLET , INC. , GLEN BROCK JOHN STALUPPI and JOHN F. CAPOBIANCO Defendants. J.S. HEMPSTEAD REALTY , LLC, Third- Part Plaintiff -against- MAO PLUMING & HEATING CORP. Third- Part Defendant. ....... ..... ............... .... [* 2] Papers Submitted: Notice of Motion (Mot. Seq. lO)................. Notice of Motion (Mot. Seq. 11)................. Notice of Cross- Motion (Mot. Seq. 12)....... Notice of Cross- Motion (Mot. Seq. 13)....... Notice of Motion (Mot. Seq. 14)................. Notice of Cross- Motion (Mot. Seq. 15)....... Affirmation in Opposition........................... Reply Affirmation........................................ Affirmation in Partial Opposition................ Affirmation in Partial Opposition................ Affirmation in Opposition........................... Reply Affirmation........................................ Reply Affirmation........................................ Reply Affirmation..... ..... ........... Affirmation in Opposition........................... Affirmation in Opposition........................... Affirmation in Partial Opposition................ Reply Affirmation........................................ Affirmation in Opposition........................... Affirmation in Partial Opposition................ Affirmation in Opposition........................... Affirmation in Partial Opposition................ Reply Affirmation... ............ ............. Upon the foregoing papers , the motion (Mot. Seq. 10) by the Defendant Vigilant Cesspool & Sewer Service , Inc. (hereafter Vigilant) and the Defendant, Glen Brock 3212 granting the (hereafter Brock), individually, seeking an order pursuant to CPLR Defendants , Vigilant and Brock summary judgment dismissing all claims and cross- claims against them; the motion (Mot. Seq. 11) by the Third- Part Defendant , Mazo Plumbing & 603 and CPLR Heating Corp. (hereafter Mazo) seeking an order pursuant to CPLR severing the third- part striking the action from the main action , or pursuant to 22 NYCRR 1010 206. 12 (d) Plaintiffs Note ofIssue and Certificate of Readiness; the motion (Mot. Seq. 12) [* 3] by the Defendant/Third- Part Plaintiff, JS Hempstead Realty LLC (hereafter JS) seeking an order pursuant to CPLR ~ 3212 granting the Defendant , JS , summary judgment dismissing the Plaintiff s complaint and all cross- claims , or in the alternative , granting the Defendant , summary judgment on its cross- claims for indemnification against the Defendants , Red Rock Industries and Vigilant; the motion (Mot. Seq. 13) by the Defendant , Red Rock Industries , Inc. (hereafter Red Rock) seeking an order pursuant to CPLR ~ 3212 granting the Defendant , Red Rock, summary judgment dismissing the complaint and any cross- claims against it and denying the Defendant , Vigilant summary judgment; the motion (Mot. Seq. 14) by the Defendant , Mazo Plumbing & Heating Corp. (Mazo) seeking an order pursuant to CPLR ~ 3212 granting summary judgment to the Defendant , Mazo , dismissing the Plaintiff s complaint and all cross- claims against it; and the motion (Mot. Seq. 15) by the Defendants, MILLENNIUM TOYOTA, MILLENNIUM SUPER STORE, LTD. and NEW YORK AUTOMOTIVE GIANT , LLC. (hereafter the MILLENNIUM Defendants) seeking an order pursuant to CPLR ~ 3212 granting the Milennium Defendants summary judgment dismissing the complaint and all cross- claims against them , or in the alternative , granting the Milennium Defendants summary judgment on its cross- claims for indemnification against the Defendants JS , Red Rock and Vigilant are determined as hereinafter set forth. This is an action for personal injuries allegedly sustained by the Plaintiff on December 5 , 2008. The Plaintiff alleges he slipped and fell on the west side of North Franklin Street , Hempstead , New York approximately 50 feet south of the southwest comer [* 4] of Smith Street and N. Franklin Street. The area is adjacent to 286 N. Franklin Street Hempstead , New York, which is also known as 257 N. Franklin Street, Hempstead , New York and referred to hereinafter as the " subject premises. " The Plaintiff is a retired union iron worker now employed by a union to protest at "non-union construction sites. " Since October , 2008, the Plaintiff was in charge of bringing a large inflatable rat to the subject construction site. He had set up the inflatable rat at the same location and place on the sidewalk at the subject construction site prior to the alleged accident. Vigilant Cesspool Sewer Service. Inc. and Glen Brock The prime plumbing contractor at the project was Mazo Plumbing & Heating Corp. (Mazo) who retained the services ofthe Defendant , Vigilant , for the specific purpose of disconnecting and cutting off the water main supply to the building that was to be demolished and a new building constructed. Glen Brock was the owner of Vigilant. Vigilant priced the job on September 7 , 2007. The water main was located underneath the sidewalk in what is called a " curb box . Vigilant' s job was to open the sidewalk at the cub box , which was a 4x4 foot square opening around the circular curb box and dig down approximately 4 feet to the water line and disconnect the services. This was done in one day on October 2007. After completing the disconnect , Vigilant backfilled the hole , tamped down the dirt and applied 3 inches of cold patch black-asphalt type of material so that it was even with the surrounding sidewalk. According to the contract with Mazo , Vigilant was not hired or required to apply any type of permanent patch , i.e. , concrete. Vigilant contends that when [* 5] the new building was constructed the plan was to reconnect the water service. Therefore the general contractor " had to be able to access the curb box again, and as such , did not want a permanent patch of concrete. Vigilant further asserts that no one from Mazo or the General Contractor " Red Rock , or anyone else made any complaints from the date the work was performed (October 5, 2007) up to and including the date of the Plaintiffs (December 5 , accident 2008), one year and two months prior to the date of the accident. Heatinll Corp. Mazo Plumbinll Mazo was the "prime plumbing contractor" for the project. After Mazo was brought into this action as a third- part defendant, the Plaintiff amended the complaint to add Mazo as a direct defendant. In support of its motion for summary judgment, Mazo argues that Vigilant had complete control over the work to be done at the site. Mazo asserts it had no supervision or control over the subject work , and should be considered contractor. " Mazo contractor International Corp. argues that a general contractor is not liable for the s negligent acts. v. See Kleeman Dennelisse Corp. v. Rheingold 81 N. 2d 270 (1993); a " general independent Flagship 38 A. D.3d 307 (1 st Dept. 2007). Moreover , Mazo asserts it did not create the alleged condition. Nor did it have actual or constructive notice of the alleged condition. JS Hempstead Realty. LLC The Defendant , JS Hempstead (JS), was the owner ofthe premises adjacent to [* 6] the sidewalk. JS claims to have been an absentee owner, a real estate holding company with no employees. JS argues it did not create the alleged condition that caused the incident. JS asserts that the " independent contractors " were not retained by JS but rather retained by the Defendant , Milennium Toyota. Further , JS alleges the work at the premises was done exclusively for the benefit of Milennium Toyota. JS argues that it neither created the condition complained of nor had notice of the condition, or negligently failed to rectify the condition. Red Rock Industries. Inc The Defendant , Red Rock Industries, Inc. (Red Rock) was the " concrete excavation contractor. " Red Rock erected the orange safety fence that it alleged was inspected twice per day by Red Rock employees. Dominic DelMonaco , the principal of Red Rock , testified that he walked by the asphalt patch each day and never saw any type of depression until December 6 , 2008, the date of the Plaintiffs accident. Mr. DelMonaco asserts he had his workers inspect the safety fencing twice daily to make sure the fence was tight and secure. Since it was next to a bus stop, he wanted to make it was secure at all times. Mr. DelMonaco testified that prior to December 6 2008 , no one ever told him that a portion of the asphalt patch collapsed and needed to be refilled nor did he observe that the patch collapsed. The Milennium Defendants In or about 2007, the Milennium Defendants decided to relocate their Toyota [* 7] dealership from 220 N. Franklin Street , Hempstead , New York to 257 N. Franklin Street Hempstead , New York. Atlantic Automotive Group, Inc. is the owner of the Defendants Milennium Toyota , Milennium Super Store Ltd. , and New York Automotive Giant , LLC (Milennium Defendants). John Pickett , an employee of Atlantic , appeared at a deposition on behalf of the Milennium Defendants. JS purchased 257 N. Franklin Street , Hempstead New York on May 14 , 2007. Milennium states that on June 25, 2008 , non- part 257 N. Franlin Development LLC as " contractor " entered into a written construction contract with Red Rock as " subcontractor " for the project designated as "new Facilty for Milennium Toyota. " The Defendant , Milennium Super Store Ltd. as tenant and JS as landlord entered into a written lease agreement for the subject premises on October 1 2008. According to paragraph 36 of the Rider to the Lease , Milennium had no duty or obligation to maintain inspect or repair the premises until the Defendant , JS , obtained a Certificate of Occupancy for the premises. At the time of the accident , JS had not yet obtained a Certificate of Occupancy. Mr. Pickett testified there was no " general contractor" for the job. Mr. Rodolitz helped Mr. Pickett with the bids for the contractors. If there were any issues that any of the contractors had with respect to scheduling or with respect to work they were doing, they would go to Mr. Rodolitz as a go- between with Atlantic. Mr. Rodolitz would review payments to contractors and " sign off' on them " to make sure the scope of work was performed. " Mr. Pickett testified that Red Rock was the " concrete contractor. " Mr. Pickett visited the site once or twice a week. Mr. Pickett testified that he believed Atlantic had [* 8] contracts " with the Defendants Red Rock and Mazo. On a motion for summary judgment , the Court' s function is to decide whether there is a material factual issue to be tried , not to resolve it. 3 N. Films Corp. 2d 395 Silman required before summary judgment can be granted to a movant. 68 N. v. Alvarez v. Prospect Hospital Winegradv. New York University Medical Center 64 N. 2d 320 (1986); (1985); Fox Twentieth Century Fox showing of a right to judgment is Aprimafacie 404 (1957). v. Wyeth Laboratories, Gas Co. 122 A. D.2d 132 (2 Inc. 129 A. Royal 2d 611 (1987); v. 2d 851 Brooklyn Union Dept. 1986). right to summary judgment , the burden primafacie Once a movant has shown a shifts to the opposing part to show that a factual dispute exists requiring a trial , and such facts presented by the opposing part form. v. Friends of Animals, Inc. must be presented Associated Fur Mfgrs. , Sofsky Conclusory statements are insufficient. 1990), aff' Indig v. 76 N. Finkelstein 23 N. AD2d 868 (3 app dism. Dept. 1993), Assuming prima facie v. 53 N. Werner Iv app den. arguendo 46 N. 163 A. Rosenberg, v. Nelkin Lowel!, P. e. , Berman 2d 1028; Inc. City of New York 49 N. 2d 728 (1968); 1994); Fink, Weinberger, Fredman Dept. 1981), v. Zuckerman 2d 927; by evidentiary proof in admissible Jim- Mar Corp. 82 N. v. v. 206 A. 2d 1065 (1979). 2d 240 (1 st Dept. see 2d 557 (1980); 2d 422 (2 Petrides 80 A. Dept. 2d 781 (1 Aquatic Construction, Ltd. , 195 2d 660. that each of the moving defendants made an adequate showing of entitlement to summary judgment , when considering all the ," [* 9] arguments together, and with the opposition submitted by the Plaintiff, there are questions of fact that preclude the granting of summary judgment on behalf of any of the moving defendants except for Glen Brock , individually, against whom no opposition has been interposed. The Plaintiff testified that his left foot got entangled with something where the netting extended out over the hole. He further testified that when he fell both his feet ended up in the hole , right next to the orange net fence. Frank Furino , an eyewitness , alleged in an affidavit that the hole and the orange netting extended out from the fence and had been there for at least several days prior to Sal's accident." Another eyewitness , Charlie DeJesus alleged in is affidavit that he actually saw the Plaintiff in motion of tripping and fallng. The Plaintiff s " left foot (went) into the hole where there was a piece of missing sidewalk , right at the point where the orange netting. . . extended out from the fence. See Gaida- eyewitnesses are sufficient to raise triable issues offact. 34 A. D.3d 634 (2 Dept. 2006); see also Bauman v. Homefield Bowl, Inc., Newman Affidavits from v. Holtermann 12 A. D.3d 212 212- 213 (1 st Dept. 2004). Although self-serving, the Plaintiffs affidavit in opposition does not contradict or undercut his prior testimony at the 50-h hearing and deposition. Therefore, its evidentiar value in defeating the summary Shapiro v. Boulevard Hous. Corp., KHR Holding Co. LLC, judgment motion must be given weight. 70 A. D.3d 474 (pt Dept. 2010); see also Enamorado 24 A. D.3d 411 (2 Dept. 2005). The Plaintiff testified there were two factors that contributed to the accident the hole or the fence that was sticking out " but [* 10] he was not sure how much of a role each ofthese factors played in the accident. There may be more than one proximate cause 84 A. DJd 889 of an accident. See Kal!ard v. Hungry Harbor Associates Dept. 2011). While a propert owner ordinarily is not responsible for the negligence of an independent contractor retained to work on its propert, there is a nondelegable duty to see that the maintenance ofthe propert poses no hazard to those lawfully on the sidewalk. The owner may be liable for the negligence of its independent contractor if the work performed for them was inherently dangerous. The Plaintiff argues that anyone undertaking work on a public highway is under a nondelegable duty to avoid creating a condition dangerous to the users of the thoroughfare. Rosenberg v. Equitable Life Assur. Socy. of us. Popular 6 A. DJd 272 (1 st 309 A. 2d 633 Dept. 2004); (1st Dept. 2003); Emmons Kopinska v. 79 N. v. 2d 663 (1992); Millgan v. Banco Metal Bright Maintenance Company, City of New York 283 A. 2d 244 (pt Dept. 2001). There is a question of fact as to whether or not there was a hole for which notice could be imputed. The Defendants argue that should the existence of a hole be established , there is a question of fact as to the proper installation of the asphalt patch and the length oftime it should have lasted. The Defendant, JS , asserts that the " temporary-ness of the patch installed by the Defendant , Vigilant , refers to the material used and the ease by which it would be removed. JS asserts it does not refer to the length of time that it was [* 11] designed to last. The Defendants also argue that Vigilant has not presented any evidence within a reasonable degree of engineering certainty to determine how long the patch was expected to last. Whether the patch , as required by the contract with Mazo, was properly installed by Vigilant is a question of fact. A part does not carr its burden in moving for summary judgment by pointing to gaps in its opponent's proof , but must affirmatively Fromme demonstrate the merits of its claim or defense. Dept. 2002); George Larkin Trucking Co. v. v. Lamour 292 A. Lisbon Tire Mart 185 A. 2d 417 (2 2d 614 (4th Dept. 1992). It is not clear from the submissions before the Court which entity was responsible for the overall job site , i.e. , who was the general contractor. JS, the owner of the propert, contends that because it had no employees and was " a real estate holding company " it has no responsibilty. Without any evidentiary proof, JS contends it " was at best an absentee owner. " Although the Milennium Defendants argue they were merely tenants with no responsibility at the job site , JS contends the testimony of Milennium by John Pickett demonstrates that the independent contractors were not retained by JS Hempstead , but rather by Milennium. JS , John Staluppi , Milennium and Atlantic cannot use putative corporate entities to obscure who may be ultimately responsible for any wrongdoing at the construction site. There is stil no affidavit in evidentiary form either from John Staluppi or a principal of JS stating their relationship to Atlantic and Milennium, if any, and the subject premises. The Plaintiff argues that Vigilant's deposition testimony demonstrates that in conversations with the Defendant Mazo ' s principal , he was told it was not his responsibilty to permanently [* 12] patch the opening and that arrangements had been made to have the Defendant , Red Rock perform the permanent patch since they were retained to perform all ofthe concrete work at the job site. Moreover , there is a question of fact as to whether or not the orange mesh fence was maintained so as not to create an unsafe and hazardous condition. Regardless ofwhether the Milennium Defendants were not yet responsible as tenants in possession under the lease there are triable facts as to whether Milennium should be liable for the conduct of any independent contractors that Milennium and/or its agents may have engaged to work at the subject premises. Ortiz Mazo v. Nunez 32 A. DJd 759 (1 st Dept. s application to strike the Note ofIssue is 2006). DENIED. However , since it is within the Court' s discretion to allow the case to remain on the trial calendar while discovery is ongoing (Nikpour v. City of New York 179 Mise 2d 928 (Sup. Ct. NY 2/19/99), Mazo shall have the right to depose any of the principals in this action , including the Plaintiff, within 45 days of to day s date , in the event the depositions have not already taken place. Accordingly, it is hereby ORDERED the branch ofthe motion (Mot. Seq. 10) by the attorneys for the Defendant , Vigilant Cesspool & Sewer Service , Inc. seeking an order pursuant to CPLR ~ 3212 granting the Defendant , Vigilant , summary judgment dismissing all claims and crossclaims against them is DENIED; and it is further ORDERED the branch of the motion (Mot. Seq. 10) by the attorneys for the Defendant , Glen Brock , seeking an order pursuant to CPLR ~ 3212 granting the Defendant [* 13] Glen Brock summary judgment dismissing all claims and cross- claims against him is GRANTED; and it is further ORDERED that the motion (Mot. Seq. 11) by the attorneys for the ThirdPart Defendant , Mazo Plumbing & Heating Corp. seeking an order pursuant to CPLR ~ 603 and CPLR ~ 1010 severing the third- part action from the main action , or pursuant to 22 NYCRR ~ 206. 12 (d) striking the Plaintiffs Note of Issue and Certificate of Readiness is DENIED except Mazo shall have the right to depose any of the principals in this action including the Plaintiff, within 45 days of to day s date , in the event the depositions have not already taken place; and it is further ORDERED that the motion (Mot. Seq. 12) by the attorneys for the Defendant/Third- Part Plaintiff, JS Hempstead Realty LLC seeking an order pursuant to CPLR ~ 3012 granting it summary judgment dismissing the Plaintiffs complaint and all cross- claims, or in the alternative , granting the Defendant , JS Hempstead Realty LLC summary judgment on its cross- claims for indemnification against the Defendants , Red Rock Industries and Vigilant is DENIED; and it is further ORDERED thatthe motion (Mot. Seq. 13) by the attorneys for the Defendant Red Rock Industries , Inc. seeking an order pursuant to CPLR ~ 3212 granting the Defendant Red Rock , summar judgment dismissing the complaint and any cross- claims against it and denying the Defendant , Vigilant summary judgment is DENIED; and it is further ORDERED that the motion (Mot. Seq. 14) by the attorneys for the Defendant Mazo Plumbing & Heating Corp. seeking an order pursuant to CPLR ~ 3212 granting [* 14] summary judgment to the Defendant , Mazo , dismissing the Plaintiff s complaint and all cross- claims against it is DENIED; and it is further ORDERED that the motion (Mot. Seq. 15) by the Defendants MILLENNIUM TOYOTA , MILLENNIUM SUPER STORE , LTD. and NEW YORK AUTOMOTIVE GIANT, LLC. seeking an order pursuant to CPLR ~ 3212 granting them summary judgment dismissing the complaint and all cross- claims against them, or in the alternative , granting them summary judgment on their cross-claims for indemnification against the Defendants JS , Red Rock and Vigilant is DENIED. This decision constitutes the order of the court. DATED: Mineola, New York March 23 2012 on Randy Sue Marber, J. ENTERED MAR 2 8 2012 NASSAU COUNTY COUNTY CLIR'K' I OfFtCE

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