Lisbey v Pel Park Realty
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Lisbey v Pel Park Realty 2012 NY Slip Op 33399(U) March 19, 2012 Sup Ct, Bronx County Docket Number: 307047/2008 Judge: Betty Owen Stinson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Mar 28 2012 Bronx County Clerk NEW YORK SUPREME COURT - COUNTY OF BRONX IAS PART 08 ---------------------------------------------------------------X SOILA LISBEY, Plaintiff, INDEX No, 307047/2008 -againstPEL PARK REALTY, 2860 DECATUR CORPORATION and JOHN T. SATRIALE, Defendants. Present: HON. BETTY OWEJ\ STINSON ----------------------------------------------------------------------)( J.S.C. l'hc follo\Ying papers numbered 1 to 5 read on this motion for sun1rnary judgment and cross1notion for discovery, noticed on I 0-14-2010 and sub1nitted as No. 33 on the Calendar of 11-152010 PAPERS NUMBERED Notice of l\1otion -l~xhiblts and Affidavits Annexed ................................... . Order to Shov. Cause ................................... . Answering Af1idavits and Ex hi hit~ .. Reply Affidavits and Exhibits ............................. . Stipulations .............................................................. . Men1orandun1 of Law............. ..................... . I, 2 1 3 4 5 Upon the foregoing papers this 111otion and cross-n1otion arc decided per annexed 1ncn1orandun1 decision. Dated: March ltf. 2012 Bronx, New York [* 2] FILED Mar 28 2012 Bronx County Clerk SUPREME COURT OF lHE STATE OF NEW YORK COUNTY OF BRONX: !AS PART 8 -----------------------------------------------------------------X SOILA LISBEY, Plaintiff, INDEX N" 307047/2008 -against- DECISION/ORDER PEL PARK REALTY, 2860 DECATUR CORPORATION and JOHN T. SATRIALE, Defendants. -----------------------------------------------------------------X I-ION. BETTY OWEN STINSON: This n1otion by defendants for sun1n1ary judg1nent disn1issing the plaintiffs complaint is granted. Cross-motion by plaintiff for an order con1pelling defendants to produce discovery and/or in1posing sanctions is denied. On July 23, 2008 plaintiff was present in her apartn1ent in a building owned and 1nanaged by defendants, \vhen n1ost of her living roon1 ceiling collapsed, allegedly causing her to suffer certain bulging and herniated cervical and lumbar spinal discs. She sued defendants, discovery \Vas conducted, and a note of issue was filed on May 14, 2010. Defendants made the instant n1otion for sun11nary judgn1ent disn1issing the action for plaintiffs failure to show they had actual Or constructive notice of a ceiling defect in the living roo1n of her apartn1en!. Sun1n1ary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record sub111itted \Varrants the court as a 1natter of law in directing judgn1ent (Andre v Pon1eroy, 35 NY2d 361 [1974]). A party movi11g for sun1mary judg1nent has the initial burden of establishing pr;n1a JUcie that it is entitled to judgment as a marier of !av.' by submitting sufficient [* 3] FILED Mar 28 2012 Bronx County Clerk adn1issible evidence to den1onstrate that there are no triable issues of fact (Bush v S"t. Clare's Hospital, 82 NY2d 738 [1993]). Only if that burden is inct does the burden shift to the non- 111oving party to present evidence of an issue of fact for trial (r¥inegard v 1VYU Medical Center, 64 NY2d 851 [ 1985]). A grant of sun1n1ary judgn1ent cannot be avoided by a clai1ned need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence (A11gerhach v Bennett, 47 NY2d 619 [1979]; Ruttura & Sons Construction C'o. v ,!. Petrocelli Construction, 257 AD2d 614 [2"' Dept 1999]). A lando\vner has a d1tty to nlaintain bis property in a reasonably safe condition in view of all the circun1stances (Basso v li4iller, 40 NY2d 233 [1976]). l'o establish n prilna.facie ci:i.se of negligence in a pre1nises liability case, a plaintiff1nust prove the defendant had actual or constructive notice of the dangerous or defective condition and sufficient time, vvitl1in the exercise of reasonable care, to correct or warn about its existence (Gordon v An1erica11 Museun1 o.f Jlctlural Hist01y, 67 NY2d 836 [1986]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246 [l" Dept 1984], q[f'd, 64 NY2d 670 [1986]). Constructive notice can be establisl1ed if the defect is visible and apparent and in that co11dition for a sufficient length of tin1e that the defendant is presumed to have seen it or was neglige11t in failing to see it (Gordon, 67 NY2d 836). The mere happening of an accident, ho\vevcr, does not establish liability (J.ev.1is, 99 AD2d 246). In suppo1i of the mOtion, defendants offered copies of the pleadings, the plaintiff's bill of particulars, the note of issue and the deposition tcstin1ony of plaintiff," of John Cr. Satriale, l~uis Molina and Mark Fothe. The note of issue was accon1panied by a certification that all discovery was complete except for a demand, n1ade on the same day that the note of issue \Vas filed, for additional repair records to a different apart1nent in the building. 2 [* 4] FILED Mar 28 2012 Bronx County Clerk Plnintifftestified that she was on her co1nputer in her living room when she heard son1e cracking sounds \vhich she ignored (deposition of Soila I~isbey, August 20, 2009 at 27-28). About 20 to 30 n1inlites later she heard nlore cracking sounds. She looked up, saw the ceiling opening up 11-om the n1iddle and ra.n, but did not nlake it out of the living room before she v. as struck by 1 the falling ceiling. (Id.). She had never 1nade any prior coin plaints to the building "office" or to the superintendent about the living room ceiling (id. at 75-76). She never saw any spots or ~eaks on the living room ceiling (id.). cfhe bathroon1 ceiling had a leak and had been repaired previously (id. at 34-35, 86). About 2 years before the accident, an area of the ceiling in the living roon1 above the window had been repaired after a water leak fro1n the "heater" above (id. at 8182). After the accident, a tenant on the second floor told plaintiff she had "a part"ofher ceiling conic dov.rn in her apartment (id. at 78-79). Luis Molina, superintendent of the building since 2000, testified that he \Vas responsible for general n1aintenance and repairs in the building (deposition on April 27, 2010 at 5-6). If there were con1plaints fron1 tenants, he would inspect and repair as necessary (i(l. ). Plaintiff never con1p!ained about her living roo1n ceiling except for peeling paint over her heater (id. at 16). It \Vas repaired about a year and a half or two years before the accident. There was no bubbling, cracks or anything else 011 tl1e living roo1n ceiling at that ti1ne. l-Ic al\vays inspects the whole ceiling if he works on any part of it. (Id.). He painted her batl1roon1 because it had peeling paint about two years before the subject incident (i(l. at 14-15). When he inspected the fallen ceiling imn1cdiately after the accident, it was dry (id. at 28). It just detached from the 1niddle of the roo111 (id.). Molina repaired it hin1sclfby adding extra two~by-fours to the ceiling bearns to accon11nodate pre-cut sections of sheet rock and then putting up a sheet rock ceiling (id. at 37-38). 3 [* 5] FILED Mar 28 2012 Bronx County Clerk About a year before the plaintiffs accident, a ceiling in another apartment in the building was cracking and buckling and Molina repaired that by reinforcing the plaster and wire 1nesh with four-inch screv.rs and placing sheet rock underneath it (id. at 16-17). Other than those two incidents, there have been no other issues with ceilings in any of the other apartn1ents in the building (id. at 18)~ There was 11othing else buckling up or falling ·down (id. at 20). John l'. Satriale, ovvner of the corporation that ov.rned the building, testified that Molina had been superintendent for about 7 or 8 years (deposition on November 24. 2009 at 12-13). Satria[e \'isited the building occasionally and \Vas aware of no other co1nplaints by plaintiff other than those set forth above (id. at 46)·and a eo1nplain1 about her floors in February 2008 (id. at 33). Mark l~othe, managing agent, testified that he viewed the apartment the day after the accident (deposition on April 27, 2010 at 48-49). Parts of the ceiling along the windov. \Vall and 1 along the opposite \Vall v.rere still attached (id.). Fothe was previously in the apartment approxin1atcly six n10nths before the accident to check on son1e repUir, perhaps the painting and patching of the bathroo1n ceiling, and there \vas no bulging or cracking i11 the living roo1n ceiling at that tin1e (id. at 67-69). Plaintiff told hi1n after the accident that she had ne_ver heard noises or cracking before the subject incident (id. at 73, 78). Her co111plaint about the floors had been about n1isn1atched floor tiles (ill. at 33). In opposition to the 1notion and in support of her cross-n1otion, plaintiff otl"ered a copy of a citation 1i"om the 'New York City l)cpartrnent of Buildings; a band\vritten statement purportedly by Luis Molina; and color photographs with views of the fallen ceiling and plaintiff, face-down on the floor of her living room v.rith a cell phone in her 11and. Plaintiff argued that the landlord's right to enter to 111ake repairs as stated in the lease provided constructive notice, that plaintiffs 4 [* 6] FILED Mar 28 2012 Bronx County Clerk con1plaint about the bathroom ceiling constituted actual notice and the citation by the Buildings J)epartn1ent together with the lease provision giving the landlord a right to enter supported application of the doctrine of res ipsa loquitur Plaintiff also argued that the 111otion was premature as a demand had been made for repair records for the ceiling of a second apart1nent in the building. The citation fron1 the Buildings Depart111ent was dated the day after the accident and noted the defect to be "ENTIRE LIVING CEILING APPROX 144 SQ FT COLLAPSED TO Tl-IE FLOOR, IMPOSING ADDED WEIGHT TO THE FLOOR BELOW", ]'he handwritten state1nent,_purportcdly by Luis Molina, was dated August 6, 2008. It \Vas not notarized or authenticated in any other way. It stated that Molina was not a\vare of any proble1ns \vith the plaintiffs ceiling before the accident. The subject ceiling was a plaster ceiling on wire 111esh. It split i11 the center. "Son1ething sin1ilar" happened about a year before in a different apartn1ent in the building. ]'hat ceiling was "buckling". It was repaired by reinfOrcing the plaster ceiling \-Vith 3-12" scre\vs and laying sheet rock under it. Defendants have established their entitlen1ent to sumn1ary judgn1e11t which the plaintiff has not refuted with ad1nissible evidence. Defendants nict their burden of proof by showing the defendants had no prior notice of the defective ceiling in the plaintiffs apartn1ent. Plaintiff testified she 111ade no con1plaints about the living roo1n ceiling, that repair of chipped paint to a sn1all portion of the ceiling above the \Vindov·.' had been made previously and she noticed no spots or signs of leaking beiOre the ceiling fell. Thy superintendent testified that he had inspected the living roon1 ceiling when he painted a small area of ceiling above the window and had also painted plainti.ff's bathroom ceiling. He fOund no signs of bubbling or cracking in the living roon1 5 [* 7] FILED Mar 28 2012 Bronx County Clerk at that ti111e. Fothe testified that he was in plaintiffs ilpartment approximately 6 n1onths before the subject incident and saw no signs of problems v..:ith the living roo1n ceiling. Plaintifrs sub111issions in opposition do not raise an issue of fact for trial by sho\ving the defendants had any kind of advance notice of the falling ceiling. The l)epartn1ent of f3uildings citation was issued after the subject incident and related to the fact the fallen ceiling was adding weight to the floor belov..r and needed to be repaired. Crac·king and buckling of another ceiling in the building did not prO\'ide notice of a dangerous condition in every ceiling in the building. There \Vas no finding of a proxi1natc cause for either the buckling ceiling in that aparttnent or for . the falling ceiling in plaintiffs apartment. 1"he building was erected in the l 930's and there could have been any nu111ber of conditions in1pacting those particular plaster ceilings over time, including previous leaks that had been repaired decades ago v..rith plaster, or a weak area of a particular bean1 \Vi th no out\\'ard sign of defect. A jury \Vo1lid be required to speculate as to the cause of the collapse to find negligence by the defendants. In the previous eight years before the accident and in the year follov..1 ing it, the superintendent \Vas unaware of any other ceiling in the building \Vith a similar problem, other than what he testified to. Even if all plaintifrs submissi~ns \Vere considered ad1nissible, they do not add relevant inforination. The supcrinte11dent repaired both ceilings himself and testified as to those repairs. Plaintiff \\'as presumably aware of the repair to the second ceiling as early as the da1e of Luis Molina's purported statement, only two v.,reeks after the subject accident. l'here is no justification for filing a note of issue and, at the san1e tin1e, demandihg discovery ofiten1s plaintiff was aware of at the very beginning of the case. In addition, there is no evidentiary sho\ving such repair records \Vould add any relevant infor1nation to the testin1ony already provided about those repairs 6 [* 8] FILED Mar 28 2012 Bronx County Clerk and, therefore, this demand is not enough to deny su1nn1ary judgment to the defendants (see Augerhach, 47 NY2d 619). The doctrine of res i11sa loquitur is also inapplicable here. There is no evidence this is the type of accident that only occurs because of negligence, or that the defendants had excll1sive control of the instrun1entality of injury, two of the three ele1nents required for the application of res ipsa loquitur (see Dern1atossian v l'l1 CTA, 67 NY2d 219 7 [ 1986] [all three e!en1ents of res ipsa loquilur 1nust be satisfied for application of the doctrine]). Movants are directed to serve a copy of this order on the Clerk of Court who shall enter judgment disn1issing the con1plaint. This constitutes the decision and order of the court. Dated: March I'/ , 2012 Bronx, New York ~~N,J,S,C. 7
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