Grunderson v Papadopoulos

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Grunderson v Papadopoulos 2012 NY Slip Op 32458(U) September 20, 2012 Supreme Court, Suffolk County Docket Number: 09-21796 Judge: Thomas F. Whelan 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. - 09-2 1796 CAL NO. - 12-00249 OT SUPREME COURT - STATE OF NEW YORK I.A.S. PAR? 33 - SUFFOLKCOUNTY PRESENT: ¬-Ion. THOMAS F. WHELAN Justice of the Supreme Court MOTION DrlTE 3-27-12 (#003) MOTION DATE 4-30-12 (#004) MOTION DATE 7-9-12 (#005) ADJ. DATE 7-16-12 Mot. Seq. # 003 - MotD # 004 - MG # 005 - MD ............................................................... X JOSEPHINE GRUNDERSON, Plaintiff, - LAURENCE A. SILVERMAN, ESQ. Attorney for Plaintiff 1772 E. Jericho Turnpike, Suite 2 Huntington, New York 1 1743 against - GREGORY PAPADOPOULOS, JAY NATHAN, : M.D., ORTHOPAEDIC ASSOCIATES OF GREAT: NECK, LLP, DELICATO CHIROPRACTIC, P.C. : AND DR. R4YMOND BARTOLI, BAXTER Sh4ITH & SHAPIRO, P.C. Attorney for Gregory Papadopoulos 99 North Brcadway Hicksville, New York 11801 JASON S . PERGOLIZZI, ESQ. Attorney for Jay Nathan M.D. 8208 18 hAvenue, Suite #1, P.O. Box 140504 Brooklyn, New York 1 12 14 Third-party Plaintiff, - against - HUENKE & RODRIGUEZ Attorney for Orthopaedic Associates One Hunting ton Quadrangle, Suite 2,502 Melville, New York 1 1747 DELICAT0 CHIROPRACTIC, P.C., AND DR. RAYMOND BARTOLI, ZWIRN & SAULINO, P.C. Attorney for Delicato Chiropractic & Dr. Raymond Bartoli Third-Party Defendants. : 2606 East 15 Street, Suite 205 ________________________________________----------------------- York 11235 X Brooklyn, New ( Upon thc following papers numbered 1 to 82 read on these motions for sunimary judgment ; Noticc of Motion/ Order to Show Cause and supporting papers 1 - 14; 15 - 4 1 ; 42 - 57 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 58 - 63; 64 - 67 ; Replying Affidavits and supporting papers 68 - 70; 71 - 76; 77 - 82 ; Other. ( b ) it is, 1 [* 2] Grundstrom v Papadopoulos Index No. 09-21 796 Page No. 2 ORDERED that the motion (# 003) by defendants Delicato Chiropractic, P.C. and Dr. Raymond Bartoli, the motion (# 004) by defendant Dr. Jay Nathan, and the motion (# 005) by defendant Gregory Papadopoulos are consolidated for purposes of this determination; and it is further ORDERED that the motion (# 003) by defendants Delicato Chiropractic, P.C. and Dr. Raymond Bartoli in the main action for an order pursuant to CPLR 32 12 granting summary judgment dismissing the complaint in the main action and all other claims against them is decided as follows; and it is further ORDERED that the motion (# 004) by defendant Dr. Jay Nathan in the main action for an order pursuant to CPLR 321 1 (a)( 1) and (7) and CPLR 3212 granting summary judgment dismissing the complaint in the main action and all cross claims against him is granted; and it is further ORDERED that the motion (# 005) by defendant Gregory Papadopoulos in the main action for an order pursuant to CPLR 321 1 (a)(7) and CPLR 3212 granting summary judgment dismissing the complain1 in the main action against him is denied. This is an action to recover damages for personal injuries allegedly sustained by plaintiff in the main action, Josephine Grundstrom, on December 15, 2008 when she tripped and fell on the premises at 294 Burr Road in Commack, New York, which is allegedly owned by defendadthird-party plaintiff Gregory Papadopoulos ( defendant Papadopoulos ) and occupied by the defendants herein in the main action. The gravamen of the complaint in the main action is that defendants were neg,ligent in failing to properly maintain, manage and control the premises, creating a hazardous condition. Prior to the accident, defendantkhird-party defendant Delicato Chiropractic, P.C. ( Delicato Chiropractic ) entered into a verbal agreement with defendant Papadopoiilos to rent space at the subject premises. It was allegedly agreed that Delicato Chiropractic would rent one or two examination rooms on a per-use basis every Monday only between 12:OO p.m. and 5:OO p.m. Delicato Chiropractic would be allowed to use the reception area as well as the fax machine, telephone, photocopy machine, and office supplies, as needed. It was also agreed that defendant Papadopoulos would maintain sole responsibility for any maintenance or repairs of the premises, both to the interior and exterior. Defendants Delicato Chiropractic and Dr. Raymond Bartoli now move for summary judgment dismissing the complaint in the main action against them on the ground that they are not liable for the plaintiff s accident. Delicato Chiropractic and Dr. Bartoli contend that they are not responsible for maintaining the area of the accident, and that they neither created the alleged dangerous condition nor had actual or constructive notice of the condition. Delicato Chiropractic and Dr. Bartoli also seek summary judgment dismissing all claims against Dr. Bartoli as an individual on the ground that he did not purport to bind himself individually under the contract with defendant Papadopoulos. In support, they submit, inter ciliu, the pleadings. a bill ofparticulars, plaintiffs deposition testimony dated October 19, 2010, defendant Papadopoulos deposition testimony dated October 19,20 10 and October 1I . 20 1 1, the deposition lestimony dated October 14, 201 1 given by Susan DeLorenzo, a representative of Delicato Chiropractic, and the affidavit dated March 1, 2012 of Dr. Raymond Bartoli. At her examination before trial on October 19, 20 10, plaintiff teszified to the effect that, on the day of the accident. she arrived at the subject premises between 4:00p.m. and 4:30 p.m. for a medical [* 3] Grundstrom v Papadopoulos Index No. 09-2 1796 Page No. 3 examination. After parking her vehicle, she went to the front door of the building and observed a piece of paper stating doctor s office in the rear. There was no walkway from the front door to the rear of the building. Rather, there was a gravel area from the front entrance all the way around to the back, and at the end of the gravel area, there was a brick patio. She walked from the front door to the rear of the property o n the gravel, and tripped and fell as she attempted to step onto the patio because of the approximately oneinch height difference. Prior to the accident, she did not observe that the patio was raised. At his deposition on October 19, 201 0, Mr. Papadopoulos testified to the effect that he is a chiropractor and the sole owner of the subject property, consisting of a split level ranch with an extension offthe back that is [his] office. He stated that he has allowed other docr.ors who are not associated with his practice to use his office. At the time of the accident, he entered into a verbal agreement with Delicato Chiropractic to rent space at the subject premises one day a week, and that as a result of the agreement, Drs. Jay Nathan and Robert Michaels were allowed to come on site to conduct independent medical exams. Defendant Papadopoulos stated that he did not enter any agreement with Dr. Nathan or Dr. Michaels, and that neither Delicato Chiropractic nor Dr. Nathan has a key to an examination room. Defendant Papadopoulos added that the parking lot on the subject property is made of asphalt, and that Dr. Nathan was not responsible for maintaining the parking lot. At his deposition on October 1 1, 201 1, Mr. Papadopoulos testified to the effect that, pursuant to the rental agreement, Delicato Chiropractic used the office in the sub-ject premises one day a week, including phones, bathroom, table and waiting room. Defendant Papadopoulos stated that he was responsible for maintaining the grounds at the premises including pathways and parking facilities. He further stated that he had no agreement with Delicato Chiropractic as far as its responsibilities for maintaining the premises or for indemnification. He stated that, after the subject accident, he observed the plaintiff sitting up on the patio by the handicapped ramp. He continued that Delicato Chiropractic was not using the patio area when it rented the space. At her deposition on October 14,2011, Susan DeLorenzo testified to the effect that she is employed by Delicato Chiropractic, whose business is handling the scheduling of independent medical exams. She stated that neither Delicato Chiropractic nor Dr. Nathan was responsible to maintain the subject property. In his affidavit, Dr. Raymond Bartoli states that he is the founder and sole proprietor of Delicato Chiropractic. He states that no one representing Delicato Chiropractic had an opportunity to discover and/or repair any alleged defect in the subject property, and that Delicatcl Chiropractic was not even authorized to inspect and/or repair the area of the subject accident. Liability for a dangerous or defective condition on property is ge ierally predicated upon ownership, occupancy, control or special use of the property. Where none is present, a party cannot be held liable for illjuries caused by the dangerous or defective condition of the property (Jee Breland v Bayridge Air Rights, Itzc., 65 AD3d 559. 884 NYS2d 143 [2d Dept 20091; Ruffino v New York Ct Tr. Autfi., 55 AD3d 819, iy 865 NYS2d 674 [2d Dept 20081; Noia v Maselli, 45 AD3d 746, 846 NYS2d 326 [2d Dept 20071). A defendant moving for summary judgment in a personal injury action has the burden of establishing that he or she did not create the defective condition (see Noia v Maselli, supra; Franks v G & H Real Estate Holding Corp., 16 AD3d 619, 793 NYS2d 61 [2d Dept 20051). [* 4] Grundstrom v Papadopoulos Index No. 09-21 796 Page No. 4 Here, defendants Delicato Chiropractic and Dr. Bartoli have established their prima facie cntitlement to judgment as a matter of law by demonstrating that they did not own, occupy, possess, or put 1 to a special use the parking lot where the plaintiff fell, and that they had 1 0 right or obligation to maintain this area (see Casale v Brookdale Med. Assoc., 43 AD3d 418, 841 NYS:!d 126 [2d Dept 20071; Franks v G & H R e d Estate Holding Corp., supra). Moreover. there is no evidence that Delicato Chiropractic and Dr. Bartoli created the alleged dangerous condition that caused the plaintiff :; accident or had actual or constructive notice of the alleged defect (see Italia DePompo v Waldbaums Supermarket, Inc., 291 AD2d 528,737 NYS2d 646 [2d Dept 20021). In opposition, plaintiff contends that defendants Delicato Chiropractic and Dr. Bartoli made special use of the walkway leading to the subject patio where the plaintiff fell because the walkway is the only way to get into and out of the building, resulting in a special benefit to Delicato Chiropractic and Dr. Bartoli. The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others (see Breland v Bayridge Air Rights, Inc., supra; Noia v Muselli, supra). The special use is a use different from the normal intended use of the public way, and thus. the special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use (see Poirier v City ofSchewectady, 85 NY2d 3 10, 624 NYS2d 555 [ 19951; Zarnoclz v Wif/iums,83 AD3d 1373, 919 NYS2d 694 [4th Dept 201 11). Plaintiff failed to present evidence that would support a finding of special use. Accordingly, Delicato Chiropractic and Dr. Bartoli are entitled to summary judgment dismissing the complaint in the main action against them; in light of the dismissal, their remaining request for summary judgment dismissing all claims against Dr. Bartoli as an individual is denied as academic (see Manning v Browrt, 91 NY2d 116,667 NYS2d 336 119971). Defendant Dr. Jay Nathan moves for an order pursuant to CPLR 321 1 (a)( 1) and (7) and CPLR 3212 granting summary judgment dismissing the complaint and all cross claims against him on the ground that he is not liable for the plaintiffs accident. In support, Dr. Nathan submits, inter d i u , the pleadings, the bill of particulars, the affidavit of Dr. Raymond Bartoli, plaintiffs deposition testimony dated October 19, 20 10, defendant Papadopoulos deposition testimony dated October 19, 20 10 and October 1 1, 201 1. defendant Dr. Nathan s deposition testimony dated December 15, 20 10. and the deposition testimony dated October 14, 201 1 given by Susan DeLorenzo, a representative of Delicato Chiropractic. A review of the moving papers and the opposing papers submitted on this motion reveals that the parties have clearly charted a summary judgment course. Defendant Dr. Nathan s notice of motion specifically demands such relief, and both sides submit extensive documentary evidence and affirmations in support of their respective positions (see Hnrris v Hallberg, 36 AD3d 857, 828 NYS2d 579 [2d Dept 20071). Under these circumstances, the Court, in determining this motion, is free to apply the standard applicable to summary judgment motions without affording the parties notice of its intention to do so (see Mililovan v Grozavu, 72 NY2d 506, 534 NYS2d 656 119881; Doukas v Doukns, 47 AD3d 753, 849 NYS2d 656 [2d Dept 20081; Fuentes v Aluskewicz, 25 AD3d 727,808 NYS2d 739 [2d Dept 20061). [* 5] Grundstrom v Papadopoulos Index No. 09-2 1796 PageNo. 5 At his deposition on December 15,2010, defendant Dr. Nathan testified to the effect that he is an orthopedic surgeon and a partner of defendant Orthopaedic Associates of Great Neck, LLP. He stated. that he is employed by Delicato Chiropractic, for whom he performs orthopedic independent medical examinations, and that there is no business relationship between Delicato Chiropractic and Orthopaedic Associates of Great Neck, LLP. On the day of the accident, after he had heard that someone was injured, he went outside to the parking lot, and observed the plaintiff sitting in the patio area. He asked her if she could get up, and told her that there was an ambulance called. He did not offer her any medical attention or assistance. Several months later, he was informed that [the plaintiff] had an appointment to meet with him that day for independent medical exams. At the time of the accident, he went to the subject premises twice a month, and spent five hours per day performing independent medical e:caminations. Prior to the subject accident, he has never received nor made complaints regarding any dangerous condition at the subjecl: property. Here, defendant Dr. Nathan has established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not own, occupy, possess, or put to a special use the parking lot where the plaintiff fell, and that he had no right or obligation to maintain this area (see Casale v Brookdale Mecl. Assoc., supra; Franks v G & HReal Estate Holding Corp., supra). Moreover, there is no evidence that Dr. Nathan created the alleged dangerous condition that caused the plainiiff s accident or had actual olr constructive notice of the alleged defect (see Italia DePompo v Waldbaums Supermarket, Inc., supria). Defendant Papadopoulos moves for an order pursuant to CPLR 3 2 1 1 (a)(7) and CPLR 32 12 granting summary judgment dismissing the complaint against him on the ground that the alleged defect is trivial and is not actionable as a matter of law. In support, defendant Papladopoulos submits, inter alilg,the pleadings, a bill ofparticulars, plaintiffs deposition testimony dated October 19, 2010, and defendant Papadopoulos deposition testimony dated October 19, 20 10 and October 1 1, 20 1 1. A review of the moving papers and the opposing papers submitted on this motion reveals that the parties have clearly charted a summary judgment course. Gregory Papaclopoulos notice of motion specifically demands such relief, and both sides submit extensive docummtary evidence and affirmations in support of their respective positions (see Harris v Hallberg, supra). Under these circumstances, the Court, in determining this motion, is free to apply the standard applicable to summary judgment motions wii.hout affording the parties notice of its intention to do so (see Mildovan v Gro;:avu,supra; Doukns v Doukas, sirpru; Fuentes v Aluskewicz, supra). In general, whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the peculiar facts and circumstances of each case and is generally a question of fact for thejury (see Clark v AMFBowling Ctrs., Inc., 83 AD3d 761. 921 NYS2d 273 [2d Dept 201 11; Moom v Wade Lupe Constr. Co., 24 AD3d 1005,805 NYS2d 204 [3d Dept 20051; Fasano v Green-Wood Cemetery, 21 AD3d 446, 799 NYS2d 827 [2d Dept 20051). A property owner may not be held liable in damages for trivial defects on a sidewalk, not constituting a trap or a nuisance, over which a pedestrian might merely stumble. stub a toe, or trip (see Znfkin v City oflvew York. 36 AD3d 801, 828 NYS2d 485 (2d Dept 20071;Hargrove v Baltic Estates, 278 AD2d 278, 71 7 NYS2d 320 [2d Dept 20001; Marinaccio v LeClznnrbord Rest.. 246 AD2d 514, 667 NYS2d 395 [2d Dept 19981). I11 determining whether a defect is trivial, a court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstance of the injury (see Bolloli v [* 6] Grundstrom v Papadopoulos Index No. 09-2 I796 Page No. 6 Wnldbaum, Inc., 71 AD3d 618. 896 NYS2d 400 [2d Dept 20101; Madero v Pizzagalli Const. Co., 62 AD3d 670,878 NYS2d 434 [2d Dept 20091; Mmson v Brentwood Union Free Sch. Dist., 31 AD3d 506, 818 NYS2d 567 [2d Dept 20061; Farichild v J. Crew Group, 21 AD3d 523,800 NYS2d 735 [2d Dept 20051). There is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable (see Trincere v County o Suffolk, 90 NY2d 976,665 NYS2d 615 f [1997]; Schenpanski v Promise Deli, lnc., 88 AD3d 982,931 NYS2d 650 [2d Dept 201 I]; Grover v S t a t e o New Yurk, 294 AD2d 690,742 NYS2d 413 [3d Dept 20021). f Here, defendant Papadopoulos failed to establish his entitlement to judgment as a matter of law. There are questions of fact as to whether a dangerous condition existed cm the subject patio area SO as to create liability on the part of defendant Papadopoulos; whether the subject parking lot was made of gravel or *asphalt ;whether he exercised reasonable care under the circumstances (see McCummings v New York City Tr. Autli., 81 NY2d 923, 597 NYS2d 653 119931; Basso v Miller, 40 NY2d 233,386 NYS2d 564 [ 19761); whether defendant Papadopoulos alleged negligence was a proximate cause of the subject accident; and whether plaintiff was comparatively negligent (see Yi Min Feng v Jin Wun Oh, 71 AD3d 879, 895 NYS2d 856 [2d Dept 20101; Bruker v Fisclzbein, 2 AD3d 254,769 NYS2d 34 [2d Dept 20031). Moreover, defendant Papadopoulos has offered no evidence as to the objective measurements of the site of the accident, except for three copies of the photos and the deposition testimony given by himself and plaintiff. The burden of establishing that the defect is trivial and, therefore, not actionable, rests in the first instance with the defendant moving for summary judgment (see Blagrove v Metropolitan Transp. Auth., 89 AD3d 880,933 NYS2d 84 [2d Dept 201 11). Here, defendant Papadopoulos has not demonstrated that the alleged defect was trivial by submitting proof of the approximate height and dimensions of the alleged defect. Thus. a question of fact exists as to whether the alleged defect constituted a de minimis or a dangerous condition (see Trincere v Suffolk, 90 NY2d 976 supra) and, if so, whether defendant Papadopoulos was negligent in failing to adequately inspect the subject walkway and detect the alleged defect. Accordingly, defendant Papadopoulos motion for summary judgment is denied.

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