Linn v Avalon Bay Communities, Inc.

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Linn v Avalon Bay Communities, Inc. 2012 NY Slip Op 32644(U) October 10, 2012 Sup Ct, Suffolk County Docket Number: 07-33293 Judge: Denise F. Molia 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] COPY SI10RT FORM ORl.lER INDEX No. 07-33293 CAL No. 11-024440T SUPREME COURT - STATE OF NEW YORK IAS. PART 39 - SUFFOLK COUNTY PRESENT: Hun DENISE F. MOLIA Justice of the Supreme Court MOTION DATE 4-30-12 AD! DATE 5-25-12 Mot. Seq. # 003 - MG; CASEDISP ---------------------------------------------------------------)( KATHLEEN LINN. Plaintiff - against - KUJA WSKI & KUJA WSKI Attorney for Plaintiff 1637 Deer Park Avenue Deer Park. New York 11729-0661 LESTER SCHWAB KATZ & DWYER. LLP Attorney for Defendant Avalonbay Communities 120 Broadway New York. New York 10271 AVALONI3A Y COMMUNITIES. INC. and SIPALA LANDSCAPE SERVICES, INC.. Defendants. JOSEPH C. TONETTI. r.c. Anorney for Defendant Sipala Landscape 548 W. Jericho Turnpike Smithtown. New York 11787 ---------------------------------------------------------------)( Upon th~ following papers numbered 1 toll. read 011this motion for summary jude:mcllL; Notice of Motion! Order 10 Show Cause and supporting papers (003) ). I I; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers 12·13, 14-15; Replying An"idavits and supporting papers 16-17; Other _: (<11IJdiel helll il16combe! ill ,ltippOIt , ;uld bpJ'o,'1ed to die IllotiOIi) it is, ORDERED that this motion (003) by the defendant., Sipala Landscape Services, Inc.. pursuant to CPLR 3212 for summary judgment dismissing the complaint is granted and the complaint and cross claims asserted against it are dismissed. In this negligence action. the plaintiff Kathleen LIIU1, seeks damages for personal injuries which she alleged to have sustained on June 22. 2007. all\valon Bay Condominiums. when she stepped into a sleeve containing the shut-off valve for a nearby fire hydrant. The plaintiff alleges that the sleeve was uncovered. dangerous. and a trap~like condition. Avalon Bay Condominiums is the owner and managing agent Avalon Bay Communities, Inc. It is alleged that defendant Sipala Landscape Scrviees_ Inc. (Slpala) moved the cover that had been over the sleeve durmg its performance of landscaping operations. It is further alleged that defendant i\ valon Bay Communities, Inc. (/\ valon) had ,H:tual and constructive notice of the alleged defect. Sipala and Avalon have each asserted cross claims wherein they seck judgement over against each other for contribution and/or indemnification_ or [* 2] Linn \' Avalon Bay Communities, Inc. Index NO.07-33293 Page No.2 Dcfcndant Sipala Landscape Services, Inc. now seeks summary judgment dismissing the complaint and cross claims asserted against it on the bases that there is no evidence that it caused the lid to be removed and missing. that it did not observe the shut-off valve without its lid, that It did not do anything that caused or contributed to the plaintiffs accident, and thaI it had no duty to warn the plaintirr of a condition. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. tendering sufficient cvidence to eliminate any material issues of lact from the case. To grant summary judgment it must clearly appear that no material and triable issue or lact is presented (Friends 01Animals v Anociated Fur ll1lrs., 46 NY2d 1065,416 NYS2d 790 lI979]; Sillman v Twentieth Century-Fox Film Corportltioll, 3 NY2d 395, 165 NYS2d 498 f1957J). The movant has the initial burden of proving entitlement 10 summary judgment (Willegrad v N. Y.U. Medical Center. 64 NY2d 851, 487 NYS2d 316 [1985J). Failure to make such a showing requires denial of the motion, regardless of the sutlicicncy of the opposing papers (Winegrad v N. Y. U. Medical 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 form ...and must "show facts sufficient to require a trial OrallY issue offact" (CPLR 3212[bl; Zuckerman v City of New York. 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing paIiy must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Libert)' Hus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 1981 l). In support of this motion. defendant Sipala has submitted, inter alia, an attorney's affirmation; copies of the summons and complaint, defendants' respective answers with cross claims, and plaintiffs verified bill of particulars; and the unsigned and uncertified transcripts of the examinations before trial of Gregory Moreyn on behal f of defendant Avalon dated Septembcr 22, 2009, and Kathleen Linn dated July 29,2009, and the unsigned but certified transcripts of the examinations before trial of non-parties Jesus Morales dated July 16,2010, and Saul Ibarra dated March 5. 2010, all of which have been objectcd to by the opposing parties, and arc not considered as they are not in admissible form (see, CPLR 3116 Martillez v /23-/6 Liberty Ave. Realty Carp., 47 AD3d 901, 850 NYS2d 201 [2d Depl 2008]; McDonald v MallS, 381\D3d 727, 832 NYS2d 291 f2d Dept 2007J; Pilla v Flik llltl. Corp., 25 AD3d 772.808 NYS2d 752 [2d Oept 2006]). Movant also submits the unsigned but eertilied transcnpt or Michael Sipala dated September 22, 2009 which is considered as adopted as accurate (see, Aslrif v Won Ok Lee, 57 AD3d 700. 868 NYS2d 906 [2d Dept 2008]); two photographs; and the eontTact dated October 10, 2003 entered into between Avalon and Sipala. Kathleen Linn was residing at 1702 Avalon Pines Drivc. Coram, New York 011 June 22. 2007. At approx11l1ately8: 15 p.m .. in front or apartmcnt J 417 Avalon Pines Drive, Coram, New York, the plaintifT allegedly sustained injury when she stepped on an alleged trap-like condition on the grassy median. Michael Sipala testified at his deposition thaI he has been the president of Sip ala Landscaping since 1980. lIis business provides landscape maintenance. construction. installation. and all forms of landscaping such as ilTigation systems. He maintained tive Avalon Bay Communities, including Avalon Pines. His landscape supervisor was Kevin Congdon in June 2007. He had four foremen. including [* 3] I,inn v Avalon Bay Communities, Inc. Index No.07-33293 Page No_ 3 Saul Albera and Jesus Morales. He entered into an agreement with Avalon Bay pursuant to a proposal submitted to them. His company, Sipala. subcontracted Prestige Landscaping to do chemical application such as fertilization and \,vecd control in 2007. A workshecl generated for June 18,2007 for Avalon Pines indicted that Saul Albera performed work at the site. A second worksheet indicated that another crew perlarmed maintenance at the site also. He-testified that the lawn area around thc hydrant would be maintained by Sipala. His contract with Avalon Pines did not include any work with regard to hydrant caps, replacing dram covers that might be missing or broken, and he docs not keep an inventory or stock of drain covers. When Michael Sipala received a call ham management at Avalon Pines to inspect the location of the accident aner its occurrence, he went to the site with his digital camera and took some photographs. He observed a fire hydrant shut-off valve without its stecl cap in place. The sleeve was about 4 to 6 inches in diameter and went about two feet into the ground. The valve was located at the bottom. He testified that the grass around the hydrant was properly maintained. In his accompanying affidavit, Michael Sipala avened he and his employees were obligated to cut the various lawns, trim the edges, fertilize, remove leaves, apply insect control, and mulch. In June 2007, Sipala employees would have provided lawn cutting services. He stated that he is generaIly familiar with the sleeves which customarily have a cover, which he presumed is affixed to the sleeve. He never tried to remove a cover and never saw a cover removed intentionalIy or by accident. He continued that his employees were instructed to report to him or to Avalon's representative, any potential problem, including mole trails, grassy areas burning, irrigation problems, and safety hazards, ",'hich would include an open valve sleeve. Neither he nor his employees knew that there was a missing sleeve cover, and Sipala had no obligation, under the contract, to replace the lid, or to warn of its absence in that the hydrant and valve sleeve are not part of the irrigation system on those premises. I-Ieinspected the premises to ascertain that the grounds were well groomed. As a general rule, liability for a dangerous or defective condition on property is predicated upon ownership, occupancy, control or special use of the property (Arev I' Feigenbaum, 201] NY Slip Op 31069U l Sup Ct, Qucens County]). Liability can be predicated only upon failure of the defendant to remedy the danger aileI' actual or constructive notice of the condition (Piacquadio v Recine Realty COIjJ. 84 NY2d 967 [1994]). "A defendant who moves for summary judgment in a slip-and-falI case has the initial burden of making a prima bcie showing that it did not create the hazardous condition that allegedly caused the bll, and did not have actual or constructive notice orthat condItion for a sufficient length of time to discover and remedy it" (Mei Zioo GIiO v QIIOl1g Big Realty Corp., 81 J\D3d 610,916 NYS2d [2d Dept 201 I]). It has been established that Sipala Landscaping was not the owner or the premises where the incident occurred, and did not have control over, or have special use of the premises (.I'CI!, Arelll' Feigenbaum, 2()] 1 NY Slip Op 31069U [Sup. C1. Queens County 20] 1]). As set forth 111 Espinal v Melville Snow COHtrtlctOrs, I11C" 98 NY2d 136, 746 NYS2d r2002], "because a finding or negligence must be based on the breach ora duty, a threshold question in tort cases IS whether the alleged tortfeasor owed a duty of care to the injured party_ As a general rule, a contractual obligation, standing alone, will impose a duty only in favor o1'the promisee and intended third-pmiy beneficiaries. However, tort liability may arise where perFormance of contractual obligations has induced detrimental reliance on continued performance and the defendant's failure to perform those obligations 'positively or actively' works an injury upon the plaintiff" The court contlllued that a party [* 4] Linn v Avalon Bay Communities, Inc. Index NO.07-33293 Page NO.4 '-'vhoenters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort-to third persons: (I) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launches a force or instrument of harm"; (2) where the plaintiff detrimentally relics on the continued performance of the contracting party's duties: and (3) where the contracting party has entirely displaced the other party's duty to safely maintain the premises. These principles are firmly rooted in New York case law. and have been generally recognized by other authorities. In applY1l1g foregoing to the instant action, the evidentiary submissions do not establish that the Slpala Landscaping bears any liability in this action_ It did not own or manage the hydrants or the subject cover, or the premises upon which those items were located. [t has nol been demonstrated that Sipala removed the subject cover. Sipala had no duty to inspect the premises, except to inspect to ascertain that its mowing and landscaping work was properly done. If a hole were noted, or a cover missing, it would have reported it to Avalon. It has been further established prima facic that at no time did Sipala employecs cause the steel cover to dislodge or break, or become missing while fulfilling its contractual obligations, and that it exercised reasonable care in fulfilling its contractual obligations. It has not been demonstrated that Sipala exacerbated, caused, created, or launched the dangerous condition which allegedly caused the plaintiffs injuries. Thus, it has further been established prima facie that Sipala did not breach any duty to the plaintiff as an intended third-party beneficiary oCthe contract entered into between Sipala and Avalon. On October 10,2003, Avalon Bay Communities, as owner, and Sipala Landscape Services, as contractor, entered into a contract which provided in relevant part that Sipala would be liable to Ava[on Bay for costs resulting from improperly work, liability to third-parties and all residents living at the property. It further provlded that the contractor shall save and hold harmless from, and indemnify A valon Bay and its manager against any and all claims, damages, liabilities, losses, causes of action, and costs and expenses arising out of injury or death of any person, resulting in part or in whole, Ii'om any acts, errors or omissions of the contractor. The landscape and snow removal contract provided that the contractor was required to note the location of al1 fire hydrants on a site map to ensure that they arc kept clear. There is no provision for maintenance and care of the hydrants or covers assocIated thereto. 8ascd upon the foregoing, it is further determined that in addition to establishing that it did not cause or create the condition complained of Sipala has established prima facie that it had no contractual obligation to maintain the hydrants and covers over the sleeves, thus, it is not obligutcd to hold Avalon harmless from, or indemmfy Avalon for the plaintiff's loss based upon a breach of duty to maintain the hydrants or cover over the sleeve. [t is dctermined tbat defendant Sipala Landscaping has established prima facic entitlement to summary judgment dismissing the complaint and cross claim asserted against it. In opposing this motion, both the plaintiff and defendant Avalon have submitted an attorney's affirmation, hmvever, tbey have not submitted any evidence to raise a triable issue of fact to preclude summary judgment from bell1g granted to defendant Sipala. Although the opposing parties argue that credibility issues arc not to be determined on a motion for summary judgment, neither the plaintiff nor Avalon have submitted any affidavits or evidentiary proof to raise a credibility issue or tactual issue. Counsels' arguments that Sipala causcd or created the condition complained of is merely speculative and unsupported by any [* 5] Linn v Avalon Bay Communities. Inc. Index NO.07-33293 Page No.5 evidentiary proof and thus. are afforded no probative value (Lupinsky v Windham Construction Corp., 293 AD3d 317. 739 NYS2d 717 f1 st Dcpt 20021). While it is also argued that there is a factual issue concerning whether the cover was plastic or steel and that it could be removed, that argument docs not establish either liability or proximate cause. The opposition papers are wholly condusory and insufficient to create a gClluine factual issue (Gervasio v Di Napoli, 134 AD2d 235. 520 NYS2d 430 l2d Dep! 1987]. Dated: -~~_ /!J.! 0 . I ~_ J.S.c. FINAL DISPOSITION _X_ NON-FINAL DISPOSITION ..

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