Roberts v Einsidler Mgt., Inc.
2012 NY Slip Op 30995(U)
April 4, 2012
Supreme Court, Suffolk County
Docket Number: 08-45713
Judge: Denise F. Molia
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Woo SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
IAS. PART 39 - SUFFOLK COUNTY
DENISE F. MOLIA
Justice of the Supreme Court
MOTION DATE 2-17-11
Mot. Seq. #001 - MD
CHARLES ROBERTS, IV, an infant under the
age of 14 years by his parent and natural
guardian, CHARLES ROBERTS, Ill, and
CHARLES ROBERTS Ill, individually,
- against -
BUTTAFUOCO & ASSOCIATES, PLLC
Attorney for Plaintiffs
144 Woodbury Road
Woodbury, New York 11797
MARGARET G. KLEIN & ASSOC.
Attorney for Defendant
200 Madison A venue
New York, New York 10016
EINSIDLER MANAGEMENT, INC.,
Upon the following papers numbered 1 to ~
read on this motion for summary judgment ; Notice of Motion! Order
to Show Cause and supporting papers (00 I) 1-10 ; Notice of Cross Motion and supporting papers _;
and supporting papers
; Replying Affidavits and supporting papers 15-16 ; Other _;
(1l11d IlttCI healiltg eotmsel
ill $UPpOIt and <"Jpp<"Jscd the lIloti<"Jn) it is,
ORDERED that motion (001) by the defendant, Einsidler Management Inc., pursuant to CPLR
3212 for an order bTfantingsummary judgment dismissing the complaint in the action is denied.
The plaintiffs seek damages personally and derivatively for injuries sustained by the infant
plaintiff on August 8, 2008, when he was riding his bicycle on the premises, including the sidewalk area,
at the defendants' property located at North Isle Village, Coram, New York. It is claimed that the
defendant caused and permitted an allegedly dangerous and defective condition of the sidewalk to exist,
in that the sidewalk was raised and uneven, causing the infant plaintiff to fall from his bicycle and
Einsidler Management Inc. (Einsidler) seeks summary judgment dismissing the complaint on the
bases that the action cannot be maintained pursuant to General Obligations Law §9-103; the plaintiff
assumed the risk; the condition of the sidewalk was open and obvious and was not inherently dangerous;
and the defendant did not create the condition or have exclusive control over the operation of the
premises, and therefore cannot be held liable for nonfeasance.
Robc11Sv Einsidler Management Inc.
Index No. 08-45713
The proponent of a summary judgment motion must make a prima facie showing of entitlement
to Judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact
fj-om the cusc. To grant summary judgment it must clearly appear that no material and triable issue of
fact ISpresented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498
). The movant has the initial burden of proving entit1cment to summary judgment (Willegradll
N. Y.U. Medical Ceuter, 64 NY2d 851, 487 NYS2d 3 [6 ). Failure to make such a showing
requires denial of the motion, regardless of the sufficiency of the opposing papers (Willegrad v N. y. U.
Metiic((l Center, supra). Once such proof has been offered, the burden then shifts to the opposing party,
who, in order to defeat the motion for summary judgment, must proffer evidence in admissible
foml .. and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b];
Zuckerman )' City of New York, 49 NY2d 557, 427 NYS2d 595 ). The opposing party must
assemble, lay bare and reveal his proof in order to establIsh that the matters set forth in his pleadings are
real and t:apabJe of being established (Ca~-rrov Liberty Bus Co., 79 AD2d 10l4, 435 NYS2d 340
In SUPPOIt of this application, Einsidler has submitted, inler alia, an attorney's affinnation; copies
ufthe summons and complaint, answer, and the plaintiffs' verified bill of particulars and supplemental
bill of particulars; unsigned copies of the transcripts of the examinations before trial of Charles Roberts,
IV and Charles Roberts, m, each dated Apri126, 2010; a signed copy of the transcript of the examination
before trial of Richard Shyman on behalf of Einsidler Management, dated April 26, 20 IO. The unsigned
copies of the deposition transcripts are not in admissible fonn as required by CPLR 3212 (see, Martinez
v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 850 NYS2d 201 [2"" Dept 2008J; McDonald v
Mall.', 38 AD3d 727, 832 NYS2d 291 [2"" Dept 2007]; Pilla v Flik Iml. Corp., 25 AD3d 772, 808
NYS2d 752 [2nd Dept 2006]), however, they arc accompanied by proof of mailing to the plaintiffs
pursuant to CPLR 3116, and the plaintiffs have not denied having received the transcripts nor do they
assert that changes were madc. Therefore, they are considered on this motion. In opposing this motion,
the plaintiffs have submitted an attorney's affi.rmation; the affidavit of Charles Robert, IV; and
The adduced testimony of Charles Roberts, IV cstablishes that at the time oCthe accident, he
lived at North Isle Village, Coram, New York, which he described as an apartment complex. He was
ridmg his bicycle to VIsit four friends who also lived al the complex about two to three minutes from
him. Upon meeting up with his friends, they hung outside for a little while. It hud been drizzling, but
stopped. and the ground was wet. He was still on his bicyele, when he decided to ride around the
courtyard slowly and make a U-turn. He described the sidewalk area where he fell as having one "plate"
or flag that was slanted upward. He had seen that raised area before. As he went to make the U-tum. he
forgot thc raised flag was there. His bike hit the raised flag and his rear tire slipped on the wet sidewalk.
There was no dirt or loose stones on the Sidewalk. The mother of two of the boys WDS outSIde with them
\vhen the (Jccident occurred, but he did not think she saw the accident.
Charles Roberts m testified that he leamed of his son's accident when his wife called him. He
thereafter spoke to his son who told him that he was riding his bicycle, making a U-tum, not very fast,
and rode onto an uneven pal1 of the sidewalk. He described the sidewalk as having two flags there were
angled up from each other, located next to the Boulder complex, which is where his son said he fell. He
Robel1s v Einsidler Management Inc.
Index No. 08-45713
further testified that the bicycle was purchased new for his son's pnor birthday. The tires had good
treads on them, the brakes were located on the handles, and the bike was in good working condition.
IZichard Shyman testified to the effect that he is the property manager for Einsldlcr Management
and prevIously managed residential properties which he owned. North Isle Village was an Einsidlcr
property which he managed since June 1, 2008 He described North Isle Village as having been
constructed approximately forty years ago, and consists of769 co-op garden apartments on 70 acres. He
oversees runnmg of the complex, negotiating contracts, performing safety inspections, and holds weekly
staff meetings to ascertain any situation that is not noticed during an inspection. He supervises
which is pcrfonned by vendors brought to the complex to perform services, and statcd that
North Isles employs two full-time maintenance men whom hc also supervises. Shyman stated that when
he first started his job, he walked the sidewalks and grounds. He walks and drives around the property
on a golf cart and mamtains a log m which he makes entries concerning any findings upon inspection.
He did not notice any raised side\.valk flags on the several driveways located by the Boulder buildmg in
the vicinity of the accident. Ifhe had noticed a problem, he would have contacted the board of directors
for the co-op. He was una\.vare of any complaints about any of the sidewalks by the driveways by the
Boulder building. If there were complaints, they would be maintained on site at the management office.
He reviewed the complaints and did not find any complaints about uneven sidewalk Hags on either the
second of third driveway located by the Boulder building. Shyman testified that sidewalks are the
responsibility of the co-op. He did not know if the sidewalks were replaced after they were initially
constructed. He stated that bicycle riding was pennitted at North Isle Village by the residents, although
other sporting activities are restricted pursuant to the applicable homeowner rules. He stated he did not
know where the accident happened.
General Obligations Law OOL §9-1 03
The defendant management company asserts that this aetion is barred by GOL §9-1 03 and that it
cannot be held liable for the alleged condition of the sidewalk.
GOL §9-1 03 provides that there is "[no] duty to keep premises safe for certain uses;
responSibility for acts of such users." GaL §9-103 (l) (a) provides, "an owner, lessee or occupant of
premises, whether or not posted as provided in section 11-2111 of the envlfonmenta! conservation law,
owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning
as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trappll1g,
hikmg, cross-county skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle
riding, hand gliding, motorized vehicle operation for recreational purposes, snowmobile operation, ..., to
glve warning of any hazardous condition or use of or structure or actiVIty on such premises to persons
entering for such purposes
GOl ~9-1 (l) (b) provides that an owner, Jessee, or occupant of the premises who gives
permission to another to pursue any such actl vities upon such premises does not thereby (1) extend any
assurance that the premises arc saf"cf(x such purpose, or (2) constitute the person to whom pen11ission 1S
granted an lllvitec to whom of duty of care is owed, or (3) assume responsibility for or incur liability for
any ll1jury to perSall or property caused by allY act ofpersolls to whom the pennission is granted. Gal
Roberts v Einsidler Management Inc.
[ndex No. 08-45713
§9- 103 (2) does not limit the liability which \vould otherwise exist (a) for willful or mahcious
failure to guard, or to warn against, a dangerous condition, use, structure or activ1ty; ... (c) for injury
caused, by acts of persons to whom penmssion to purse any of the activities enumerated in this sectIOI1
was granted, to other persons to whom the person granting pennission, or the owner, lessee or occupant
of the premises, owed a duty to keep the premises safe or to wam of danger. Section 3 of GOL §9-l 03
further provides that "Nothing In this section creates a duty of care or ground ofIiablhty for injury to
person or propeI1y."
GOL §9-103, also known as the "recreational use statute," provides landowners with immunity
from liability for ordinary negligence, if a person is injured while engaged in the listed recreation activity
on the landowner's property. The statute seems counter-intUltive, as it abrogates the traditional
obligatlOn of property owners to keep propeliy reasonably safe for persons whose presence is
foreseeable. The overall purpose of GOL §9-103 recogmzes the value and imp011ancc to New Yorkers
ofpursll1g recreational activities, so that a statute immunizing landowners from liability arising from
recreational activities wdl result in more properties being made available for such uses (Morales v
Coram Materials CO/p., 51 AD3d 86, 853 NYS2d 611 [2d Dept 2008]). To meet its burden, a party
asserting a defense under GOL §9-1 03 is required to establish the two expressed components of GOL
§9-103, namely, its ownership of the property and the plaintiffs engagement in a specified recreational
activity. A party seeking summary judgment must also establish in its moving papers the "suitability" of
the property for recreational use, even though suitability is not specifically identified as an clement in the
language ofthc statute (activities will result in more properties bcmg made available for such uses)
(Morales v Coram Materials Corp., supra).
In the instant action, it is determined that bicycling is a recreational activity enumerated in GOL
§9-103. It 15further detennined that bicycling is permitted at North Isle Village in eomplJance with the
rules of the co-or. Thus, the property is appropriate or SUitable for the purpose of bicycling as a
rccreational usc. However, it has not been detem1ined that the infvasinherently
dangerous (se(', .Moore v City of New York, 29 AD3d 751, 816 NYS2d 131 [2d Dcpt 2006]). There arc
fUl1her factual issues concerning whether the condition of the sidewalk increased the chance ofmjury to
a bicyclist and whether the defendant exercised reasonable care in maintaining the sidewalk (sec, Vestal
Suffolk, 7 AD3d 613, 776 NYS2d 491 l2d Dcpt 2004]). Here, it e