Pindar Vineyards, LLC v Vitti

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Pindar Vineyards, LLC v Vitti 2012 NY Slip Op 32511(U) September 24, 2012 Sup Ct, Suffolk County Docket Number: 08-14370 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] SIlORll;ORM INDEX No. CAL. No ORIlIOJ< 08-14370 11-024650T SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Courl MOT[ON DATE 4-20- [2 (#003) MOTION DATE 6-11-12(#004) MOTION DATE 7-6-12 (#005) ADJ. DATE 7-16-12 Mot. Scq. # 003 - MG #004-MD if 005 - XMotD ---------------------------------------------------------------X PINDAR VINEYARDS, LLC and HERODOTUS DAMIANOS, M.D., Plaintiffs, JASPAN SCHLESINGER LLP Attorney for Plaintiffs 300 Garden City Plaza Garden City. New York 11530 DESENA & SWEENEY, ESQS. Attorney for Defendant Vitti 1383 Veterans Memorial Highway, Suite 32 Hauppauge, New York 11788 - against - IRENE C. VITTI, BRIARCLIFF SOD, INC., BRIARCLIFF LANDSCAPE, INC., BRENDA CICHANOWlCZ, individually and as Executrix 01'1110 ESTATE OF FRANK J. C[CHANOWICZ lll, THE ESTATE OF FRANK J. CICHANOW[CZ lll, DONALD J. W[LCENSKI, NATALIE WILCENSKI, NEAL J CICHANOWICZ and CINDY CICHANOW[CZ, Defendants. GARCIA & STALLONE Attorney for Defendants Briarcliff, Wilcenski, and Neal Cichanowicz and Cindy Cichanowicz 2076 Deer Park Avenue Deer Park, New York 11729 TWOMEY, LATHAM, SHEA, KELLEY, DUB[N & QUARTARARO, LLP Attorney for Defendants Brenda Cichanowicz and The Estate of Frank J. Cichanowicz 33 West Second Street, P.O. Box 9898 Riverhead, New York 11901 ---------------------------------------------------------------X Upon the following papers numbered 1 to --..6..L read on tllese motions for summary judgment and cross motion for summarv judg11lellt~ Notice of Motion/ Order to Show Cause and supporting papers 1 - 15.21 - 36 , Notice of Cross Motion and supporting papers 59 - 53 , Answering Affidavits and supporting papers 16 - 1Il, 56 - 59 ; Replying Affidavits and supporting papers 19 - 20, 60 - 61 ,Other 3. 37 - 38, 54 - 55 ,(mid Ilfkl he.ll illoo> edllll:5e1 ill ~Uppi5l"l1'lllddpposed td IIIe II lotiOII) it is, [* 2] Pindar Vineyards LI ,C v Vitti Index No. 08-14370 Page 2 ORDERED that these motions arc hereby consolidated (or purposes of this detenmnation; ancl it is further ORDERED that this motion by the defendant Irene C. Vitti for an order pursuant to CPLR 3212 granting sUlllmary judgment dismissing the complaint against her is granted: and it is further ORDERED that this motion by plaintills for an order pursuant to CPLR 3111 granting partial summary judgment as to the liability of the defendants Briarcliff Sad. Inc., BriarclilT Landscape, Inc., Brenda Cichanowicz.lndividually and as Executrix of the Estate of Frank J. Cichanowicz Ill, the Estate ofTrank J. Cichanowicz III. Donald J. Wilcenski, Natalie Wilcenski. Neal J. Cichanowicz and Cindy Cichanowicz (Briarcliff Defendants), and for an immediate trial as to damages. is denied; and it is further ORDERED that this cross motion by the Briarcliff Defendants for an order pursuam to CPLR 3212 gnlllting summary judgment dismissing the complaint is granted 10 Ihe extent that the complamt is dismissed as 10 the delcndants Briarcliff Landscape, Inc .. Brenda Cichanowicz. Individually and as Executrix of the Estale of Frank J. Cichanowiez III. the Estate of Frank J. Ciehanowiez III. Donald J. Wi!ccnski. Natalie Wilcenski, Neal J. Cichanowicz and Cindy Cichanowicz, and is othervvisc denied. This is an action to recover damages based on the negligent spraying of herbicides, which allegedly caused the destruction of approximately 30 rows of grape vines in the plaintiffs' vineyard. In their complaint the plaintiffs allege that the defendant frene C. Vitti (Vitti). knew or should have known that the tenants leasing her property would use a chemical herbicide that was pm1icularly harmful to grapevines. The plaintiffs further allege that the remnining detendants (Briarcliff) operated a sod farm on property leased (0 them by Vitti, and that they improperly sprayed a herbicide on that property which drifted into th(~plaintiff's vineyard caus111g the destruction of their grapevines. The complaint sets forth six alternating causes of action sounding in negligence. trespass and nuisance against Briarcliff and Vitti, respectively. V itti now moves for summary judgment dismissing the causes of action asserted against her on the ground lhal she is an out of possession landlord. The proponent of a summary judgment motion must make a prima 1"~lcie showing of entitlement to judgment as a matter of law. tendering suJlicient evidence to eliminate any mJtcrial issue of fact (see Alvarez v Prospec:t I/o.\jlital. 68 NY2d 320, 508 NYS2d 923 I 19861; Winegrad \I New York Univ. Met!. Or., 64 NY2d 851. 487 NYS2d 316 [1985]). Thc burden then shins to the party opposing the motion which must produce t:videntiary proof in admissible form sufficient to require a trial orthe material issues of fact (Roth v Barreto, 289 AD2d 557.735 NYS2d 197 ]2d De-pt 20011: Rehecchi II Whitmore. 172 AD2d 600, 568 NYS2d 423 12d Dept 19911; O'Neill II Fishkill. 134 AD2d 487. 52 I NYS2d 272 [2d Dept 1987]). Furthermore. the parties' competing interest must be viewed "in a light most favorable to the party opposing the motion·· (jl1arille Midlaml Balik, NA. II Dino & Artie's Automatic Transmission Co., 168 AD2d 610. 563 NYS2d 449 [2d Dept 1990]). [n support of her motion, VittI submits the pleadings, her affidavit. copies orthe subject leao:;e with Briarcliff and letters extending the lease, and the deposition transcripts of the parties to the action. In order {o more clearly frame the issues mvolved in this motion. lhe COUl1 will only summarize relevant [* 3] Pindar Vineyurds LLC v Vitti Index No. 08-14370 Page 3 portions ofIhe transcripts of the parties' deposition testimony. and will expand upon those summaries is dccmed necessary in deciding the additional applications lor relief. as At her deposition. Vitti testified that she purchased the subject properlY (Vitti property) adjacent to the plaintiffs' vineyard in 1998, that the defendant Donald J. Wilcenski (Wilcenski) approached her shortly thereafter requesting that she lease the properly to the defendant Briarcli ff Sod, / nc. for use as a sod farm. and that she had no knowledge of the alleged damage to the plaintiJrs property until she received a copy of the plaintiffs' complaint. She indicated that she has no education 111 agriculture. and that she was not aware of the herbicide 2,4-0 until this action was commenced against her. Vitti further tesllficd that the only control that she ever exel"Clsed over the Vitti property was to include a requirement in the lease that Briarcliff plant certain cover crops, which replace the nutrienls in the soil aner sod is harvested. In her affidavit dated March 12,2012, Vitti swears that she has not used, maintained, operated or controlled the Vitti property since 1998. and that she had no control over the operations of Briarcliff. She slates that there have been no cross claims asserted against her III this action. Wilcenski was deposed on April 13. 2010. and he testified that he and the defendant Neal J. Cichanowicz arc co-owners of Ihe defendants Briarcliff Sad. Inc. and Briarcli Landscape. Inc_ He stated that BriarcliITSod.lnc. leased the Vitti property from an "I. Vitti." and he described the processes used in sod farming. I-Ie acknowledged that the records maintamed by Briarcliff show that it sprayed a broadleaCweed herbicide. 2.4-0, at the Vitti properry on April 11, 2005. and April 15.2005. Wilcenski further testilied that he and two other employees of Briarcliff were the only individuals who determined whether 2,4-0 needed to be applied in BriarcliJrs sad fanning operations. cr Pindar Damianos was deposed on Apn121, 2010. He testiried that he is the vineyard manager employed by the plaintifr Pindur Vineyards, LLC. He described lhe damage to the vineyard, and his dlorts to ascertain the cause arthat damage. He did not give any teslimony regarding Vitti. Al his deposition. the plaintiJfJ-!eroctotLls Damianos, M.D. (Dr. Damianos). testified that hc is the owner of the Pindar vineyard. He indicated that Vitti approached an employee of the vineyard in 1999. shortly after she purchased the Vitti property. indicating an interest in opening her own vineyard. 1Ie did not know ifanyone from Pindar spoke with Vitti about the damage caused by 2.4-D after it OCCUlTed. Dr. J)umianos further testified that he never saw Villi at the sod farm located on the Vitti property. Gencra!ly., an out-of-possession o\.vner or lessor is not liable for injuries that occur on the premisl:s unless the owner or lessor has retained control over the premises or is contractually obligated to repair unsalc conditions (Liudquist I' C &: C Laudscape C011lrs_ 38 1\03d 6/6. 831 NYS2d 523 [2d Dept 20071: Gibsoll \I Bally To/al Fitness Corp., / AD3d 477. 767 NYS2d 135 [2d Dcpt 2003 J. Control ortlle premises may he established by proof of a promise by the owner or lessor to keep the premises in repair or by a course of conduct demonstrating that the owner or lessor has assumed responsibility to mall1tain a particular portion of the prcmiscs (Ever Will, file. v 1-/0 ludus. Assoc., LLC, 33 AD3d 845. 827 NYS2d 63 pd Dcr! 20061; Gelarda "ASTHMA Realty COlI'" 137 AD2d 787, 525 NYS2d 334 [2d Dcr! 1988)). They may be held liable for injuries arising from a dangerous condition on their property irthey created [* 4] Pindar Vineyards LI.C v Vitti Index No, ()~-]437(J Page 4 the condition or had actual or constructive notice of it and a reasonable time within which to remedy it. (see Sowa I'SJNH Realty Corp .. 21 AD3d 893, 800 NYS2d 749 [2nd Dept 20051; Curiale v SIUlrrotts Woods, Inc. 9 AD3d 473. 781 NYS2d 4712d Dept 20041; Patrick v Bally's Total Fitness, 292 AD2d 433, 739 NYS2d 18612d Dept 2002]). In order to constitute ''(;onstructivc notice" a deket "must be visible and appan:nt and it must exist for a suf'llcJent length ol"time prior to the accident" to dIscover and remedy il (see Cliianese v Meier, 98 NY2d 270, 746 NYS2d 657 [20021, citing Gordon v Americall Museum of Natural History. 67 NY2d 836. 501 NYS2d 646 fl986]; Negri v Stop & Shop: 65 NY2d 625.491 NYS2d 151 [19851). A review of the submissions. including the subject lease and the le.tter agreements extending the lease terms, reveals that Vitti did not promise to repair the premises, or undertake to mamtain the premises. In addition. Villi has established her prima I~\eieentitlement to summary judgmcnt indicating that she diu noLhave notice or constructive notice of the herbicide spraying conducted by Briarcliff To prove a prima facie case of negligence, a plaintilfmust demonstrate the existence ora duty, a breach ol'that duty, and that the breach of such duty was a proximate cause of his or her injuries (see, Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393 [-1976J;Engelhart v Coun~JIofOrOf'ge, 16 AD3d 369.790 NYS1d 704!2d DeptJ, Lv denied 5 NY3d 704, 801 NYS2d I l2005]). ProVlllg that an accident occurred. or that the conditions existed for such an accident, is insufficient to establish negligence. "'Proof of negligence in the air, so to speak. will not do .,. (Martill v Herzog, 228 NY 164. 170. 126 NE S14 119201. quoting Pollock. Torts [10th Ed.j, p. 472). And while proximate cause generally is a matter for the.iury, a plailltifTwho brings a negligence action must cstnblish prima l~lCiethat the defendant's negligence was a substantial cause of the event which produced his or her injury (Derdiarian v Fe/h' Coutr. Corp.. 5 I NY2d 308. 315,434 NYS2d 166 P 980]: see Maheslnvari v City of New Yorl.:.2 NY3d 288, 778 NYS2d 442 [2004"1;Forman v City of White Plains. 5 AD3d 434. 773 NYS2d 102 r2d Dcpt 2004 j). Further. while proximate cause may be inferred from the facts and circumstances surrounding the injw)': there must be sufficient proof in the record to permit a finding ofproximClte cause bascd. not upon speculation, but upon the logicnl inferences to be drawn li'OIl1 the evidence (see Schneider v Kings Highway J-1osp.Ctr.. 67 NY2d 743, 500 NYS2d 9511986.1; Harlmall v Mountain Val. Brew Pub. 301 AD2d 570, 754 NYS2d 31 [2d Dcpt 2003·1: Babino v City of New Yorl.:,n4 AD2d 241.650 NYS2d 778 pd Dert 1996]). Here. Vitti has established her prima l~lcieentitlement to summary judgment indicating that shc did not breach a duty owed to the plaintiff.<;_ Trespass is an intentional entry onto the land of another withoutjustillcation or p~rmission (Car/soil vZifl/I1lerman. 63 AD3d 772. 882 NYS2d 139 !2d Ocpt 2009·1; Woodhul/v Town of Riverhead. 46 AD3d 802. 849 NYS2d 79 [2d Dcpt 2007]; Long 1s. Gynecological Servs. v Murphy, 298 AD2d 504. 748 NYS2d 776 [2d Dcpt 20021). To recover damages based on the tol1 ofprivatc nuisancC'. a plaintiff must establish an interference with his or her right 10 use and enjoy land. substantial in nature. intentional or negligent in origin. unreasonable in character. and caused by thc defendant's conduct (see Copart Indus. II COI1,'iolidtltedEdison Co. olN. Y., 41 NY2d 564, 394 NYS2d 16(119771). I-kre. Vllti has established her lack of intent or knowledge regarding the alleged entry onto the plaintiffs' land. and the lack or any conduct. intentional or negligent. which interfered with the use and enjoyment of the plaintiffs' land. [* 5] Pinuar Vineyards LLC v Viui Index No. 08-14370 Page 5 I laving established her entitlement to summary judgment dismissing the complaint against her. it is incumbent upon the plaintiffsl to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Reheeehi v Whitmore. supra; O'Neill v Fishkill. supra). In opposition to the motion, the plaintiffs submit the affidavit ofPindar Damianos dated May 18. 2012. in which he docs not make any factual allegations against Vitti. The affirmation submitted by the attorney for the plaintiffs contends that Vitti knew or should have known that 2,4-D was being used on the Vitti property. However. mere conclusions and unsubstantiated allegations arc insufficient to raise any triable issues of 1~1ct (see, Zuckermau v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980 I; Perez v Grace EpiJcopa{ Church, 6 AD3d 596, 774 NYS2d 785 1:2dDept 2004]; RebeccM II Wlli/more, SlI/JI"a). Ac(;Ordingly, Vitti's Illation to dismiss the complaint ngainst her is grantc(e Thc plainti ITsnow move for summary judgment against the Briarcliff Defendants (#004). and the Braircli ITDefendants cross-move for summary judgment dismissmg the complaint against them (#005). In their opposition to the cross motion. the plaintiffs contend that said cross motion must be dcnied as procedurally defective in thai it was not made in a timely manner. The Court's computerized records show that the note of issue was filed in this action on December 6. 2011. Although the 120-day statutory period for making a summary judgment motion cxpired on April 5,2012, the plaintiffs motion made on May 2 J. 2012. was timely pursuant to a stipulation dated March 28, 2012, and so ordered by the undersigned on April 2. 2012. The cross motion by the Briarcliff Defendants was not made until June 20. 2012. the date on which it was served (see CPLR 2211). Absent a showing of good cause for the delay in Iiling a summary judgment motion. a court lacks the authority to consider even a meritorious, non-prcjudicial application for such relief (see Miceli v State Farm Milt. Auto. Imj. Co., 3 NY3d 725. 786 NYS2d 379l20041; Brill v City ofNe ¢ ¢ York. 2 NY3d 648, 781 NYS2d 261 [2004]). However, a eourt may entertain a belated cross motion for summmy judgment if a timely motion for such relief has been made on "nearly identical"' grounds (Grande v Petero)'. 39 AD3d 590, 592, 833 NYS2d 615, 617 r2d Dept 2007J; Bressiugl1am v Joma;co Hosp. Med. Ctr., 17 AD3d 496, 497, 793 NYS2d 17612d Dcpl 2005]). Here, the issues raised in the subject cross motion are nearly idcntical to those raised in the plaintilrs motion. and both will be considered herein. [n support or their motion, the plaintiffs submit, among other things. the alTidavit or Pindar Damianos dated May 1&.2012, prcviously submitted in opposition to Vitti's motion for summary judgmcnt. the previously mcntioned deposition transcripts of Vitti and Wilcenski, and threc reports regarding inspcctions ofthc Vineyard by various experts. In his affidavit, Pindar Damianos (Damianos), swears that the plailltiffs own and operate a vineyard located at 43295 Country Road, Southold. New York (Vineyard). which is surrounded by sod farms operated by Briarcliff. He states that, on June 5. 1005, he received a call from one of the plaintiffs' employees that they had observed 1hat some orthe grapevines in the Vineyard were damaged and/or dead. lIe went to the Vineyard where he observed ''<It least thirty rows of vines" \vhich looked "unhealthy" and, based on his educational degrees. he was able I In its cross motion. Briarcl iff submits an affirmation in support of Vitti' s Illotion, acknowledging that she had no control over its operations. 21n dismissing the cOl11plainl.lhe Court finds that the cross claims asserted agaillst I3riarcliffarc now a..:adcll1ic. [* 6] Pindar Vineyards LLC v Vitti Index No. 08-14370 Page 6 to recognize the symptoms orthe vines as evidence 01'2.4-0 exposure. Tic called Peter Gnstina. a colleague who is a local vineyard manager. to get a second opinion about his observations. When Mr. Gristina agreed \vith him. Damianos ealled Alice Wise (Wise). a viticuhure specialist from the Cornell Cooperative Extension (Cornell), who mspected the damaged grapevines on June 9. 2005 with Andrew Senesac (Senesac). a weed specialist employed by Cornell. He indicates thm Wise and Senesac issued a report dated June 24. ::W05, in which they indicated that the grapevines were damaged by exposure to ··drift from the 2.4-1) herbicide.'· I Ie states that Hans L. Helmprecht. rhO. (Ilclmprecht) of Chemical Consulting of Babylon, inspected the damaged grapevines on June 11.2005, and reported that they showed scvere damage typical1y caused by an herbicide. Dal11ianos ltll1her swears that Barry H. Gump, PhD. (Ciump), a professor orChemistry and Enology at California State University at Presno, inspected the Vineyard on June 24, :W05, and observed signs of"curJcd leaves and wilted growing tips." Thereafter. the plainti IT.., took steps to try 1'0 save the damaged grapevines based on the experts' recommendations. Ilowcvcr. those efforts were unsuccessltJ!. Oamianos ltll"thcr states that Briarcliff breached an agreement made between sod farmers and owners of vineyards at a meeting arranged by Cornell, that sod farmers would not spray 2A-D "after approximately the first wcek of April." At his deposition. Wilcenski testified that the defendant Briarcliff Sod. Inc. (BS!) leased the Vitti property. that it maintained ··spray records" regarding ·'applications:' and that an entry in the spray records m his handwriting indicates that BSI sprayed 2,4-0 at the Vitti property on April 15.2005. llc stated that the spray records note a "wind speed/direction/temperaturc·· of"Southwcst 10,45 degrees:' on that date. He indicated that he attended a meeting called by Cornell prior to 2005, at which Senesac appeared for CornelL which was attended by vineyard growers. and other sod farmers. The purpose of the mceting \-vas10 discuss the application 01'2,4-0 before "grape bud break,.· because ..the grape plant was very susceptible to 2.4-0 and ... we needed to come to an agreement or a date to try to abide by." Wilcenski lt1l1hertcstitied that the participants at the meeting discussed that "cvery year IS different and we. no one has control over temperatures and time, but as a rule of thumb April 15th was a give-or-take date that was agreed on." lie acknowledged two instances prior to 2005 in which other vineyards had complained about 2,4-0 spraying by BSI. [-Iestated that wind speed is import'ant because of "the possibility of the product to drin:' and that TIS! used "hooded sprayers" in 2005 to prevent problems with drift. At her deposition. Vitti testified as set forth above. Iler testimony does not assist in determining the plaintiffs' motion against Briarcliff. The Court turns next to the three reports submit1ed in support of said motion. Initially. the Court notes that the expert ··report" submitted by Hehnprechl is unsigned. More imponantly. the "rcpoI1'" docs not indicate the writer's background or education regarding the effects of chemicals on horticulture. and it does not indicate the type of herbicide involved in the alleged damage to the Vineyard. The report by Wise and Senesac dated June 24. 2005. clearly sets forth the an;as orthc Vineyard which show damage, and the variation in the degree of damage in different '"blocks" within the vineyard. The writers then state that "On June 9, 2005. we observed symptoms on the grapevines that occurred as a result of exposure to drift f·i·om2A-D herbicide." They do not set forth the facts upon which they base their conclusions. More importantly, they do not indicate the source of the alleged drift which caused the damage. An exper(s opinion can have no greater probative value than the facts or data upon which [* 7] Pindar Vineyards LLC v Vitti Index No. 08-14370 Page 7 it is based (Romano \I Stanley. 90 NY2d 444, 661 NYS2d 589 [1997]; GlIltly AD2d 815. 634 NYS2d n8 [3d Dcpt 1995]). \I Pyramid Corp.. 222 In his report dated July 5, 2005, Gump states "On June 24, 2005. I visited your vineyard that has suOcrcd damage from drift 01'2.4-0 herbicide from the adjacent property'-· Again, this report does not set forth the facts upon which he bases these conclusions. Under a heading entitled '·Symptoms of2.4-1) Injul)'.'" Gump sets fOl1hthc following: InitiaI2,4-D symptoms are twisLing and leaf curling, which may occur within hours of exposure. Leaves that arc not fully expandcd. at the time treatment (sic) may be stunted and distorted. Within a week alter exposure general chlorosis may develop at high exposure levels. Leaves will drop and shoots may die, followed by stem diehack. The plaintiffs have failed to establish their entitlement to summary judgment herein. Because summary judgment deprives the litigant of his or her day in court, it is considered a ""drastic remedy" which should be invoked only when there IS no doubt as to the absence of triable issues (Andre l' Pomeroy. 35 NY2d 361. 364 [1974]; Elzer v Nassau County, 111 AD2d 212 [2d Dcrt 1985]). Indeed, where there is any doubt as to the existence of triable issues. or \.vhere the issue is even arguable, the COUl1 must deny the motion (ClIilberg v Chi/berg. 13 AD3d 1089,788 NYS2d 533 f4th Dept 2004], rearg denied 16 AD3d 1181,792 NYS2d 368 [4th Dept 20051; Barclay v Dellckla. 182 AD2d 658, 582 NYS2d 252 [2d Dept 1992"1;Collell v Herbal COllcepts,fllc .. 100 AD2d 175.473 NYS2d 426 [1st Dept 19841, "lid 63 NY2d 379, 482 NYS2d 457 [1984]). There are issues of t~lcL requiring a trial in this action including, but not limited to, the terms or the ag.reement between sod farmers and owners of villeyards at the Cornell meeting, whether Briarcliff was negl igent in spraying when it did, whether I3riarcli!T was negligent in the manner in which it sprayed on April 15,2005, and whether said spraying was the proximate cause of the damage to the Vineyard. Here. it is undisputed that Hriarcliff last sprayed on April 15, 2005, and that the plaintitfs' employees discovered the inJuries 10 the grapevines on June 5. 2005, more than seven weeks later. A review or the record docs no! resolve the questions surrounding this apparent delay in cause and effect raised by the reports submitted by the plaintiff'). Accordingly. the plaintiffs' motion for sum mal)' judgment is denied. Briarcliff cross-moves lor summary Judgment. among other things, on the ground that the pia inti ITshave failed to submit evidence that any of the defendants except I3sr had any connection to the leasing of the Vitti property. or that they were owners. or otherwise involved in the control or operations of tile sod farm_ A review ol'the record reveals that the plaintiffs have not submitted any such evidence. and that in opposing the cross motion, the plaintiffs do not address the issues raised in this branch orthe cross motion. New York Courts have held that the failure to address arguments proffered by a movant or appellant is equivalent to a concession of the issue (see Welden v Rivera. 301 AD2d 934, 754 NYS2d 698 13d Dcpt 20031; Hajderlli v Wiljal1l1 59 Lie. 24 Mise 3d I242[AJ, 2009 NY Slip Op 51849[U I [Sup Ct, Bronx County 20091). Moreover, to the extcnt thaLthe record establishes that the defendants Donald J. Wilcenski and Neal J. Ciehanowicz are co-owners of 13SI,there are no allegations which [* 8] Pindar Vineyards LLC v Vitti Ind~x No. 08-14370 Page 8 would indicate any mdividualliability on their part (see Matter of Morris v New York State Dept. of Taxatioll tlml Fin., 82 NY2d 135. 603 NYS2d 807 119931;Seuter v Liebermtlil. 229 I\D2d 386. 644 NYS2d 566 r2d Dert 19961). Accordingly. that branch of the cross motion which seeks to dismiss the complaint against [he defendants Rriarc1Jff Landscape, Inc.. Brenda Cichanowicz, Individually and as Executrix of th~ Estate Frank J. Cichanowicz IIL the Estate of Frank J. Cichanowicz III, Donald J. Wilccnski. Natalie Wi!ccnski. Neal J Cichanowicz and Cindy Cichanowicz. is granted. or In addition, BSI. nnw standing as the lone I3riarelitTdefcndant, cross moves for summary judgment dismissing the complaint on the grounds that the agreement between the sod farmers and vineyard owners at the Cornell meeting (Cornell Agreement) proves that it was not negligent III spmying as latc as April 15,2005, scrves as permission to entcr the plaintiffs' property which forecloses a finding oj" trespass. and serves as an invitation to conduct spraying activities on or bcrore that date. which forecloses a finding of i:l private nuisancc. As discusscd herein. therc arc multi pic issue of faCIrequiring a trial in this action which are not eliminated by the instant cross motion. Among these are, the tcrms and conditions oCthe Cornell Agreement, as well as the intention of the parties in entering into said agreement, and whether BSI negligently applied the herbicide 2,4-D on April 15.2005, allowing it to drift onto the plaintitfs' property. Accordingly. that branch of the croSS motion which seeks to dismiss the complaint against BSI is denied. Datcd:_CfiJ, vi I~ iOIDJ_' THOMAS F. WHI\,I.AN . .I.S.c.

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