Montefusco v Main St. L. I., LLC
Annotate this Case
Download PDF
Montefusco v Main St. L. I., LLC 2017 NY Slip Op 32799(U) December 26, 2017 Supreme Court, Suffolk County Docket Number: 7267/2014 Judge: Martha L. Luft Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order Index No. 7267/2014 SUPREME COURT - STATE OF NEW YORK l.A.S PART 50 - COUNTY OF SUFFOLK PRESENT: Hon. Martha L. Luft Acting Justice Supreme Court -----------------------------x SUSAN MONTEFUSCO and ANTHONY MONTEFUSCO, DECISION AND FINDINGS OFFACT AFTER TRIAL Pl_,AINTIFFS' ATTORNEY Tinari, O' Connell & Osborn, LLP 320 Carleton A venue, Suite 6800 Central Islip, NY 11722 Plaintiffs, DEFENDANT'S ATTORNEY -againstMAIN STREET L. I., LLC, Farrell Fritz, PC 400 RXR Plaza Uniondale, NY 11556-1320 Defendants. Plaintiff, Susan Montefusco, commenced this action for personal injury against defendant, Main Street LI, LLC, the owner of the apartment complex where she lived at the time of the incident giving rise to this case. Plaintiffs husband, Anthony Montefusco has asserted a claim for loss of services resulting from the injury to his wife. A bench trial was conducted before the undersigned, and proposed findings of fact and conclusions of law were subsequently submitted by both parties for the court' s consideration. By consent of both parties, both liability and damages were considered together, rather than the trial being bifurcated. At trial, plaintiff presented her own testimony, as well as that from her husband, and from two former employees of the defendant, Dawn Rice and Lisa Lemp. Ms. Lemp' s testimony was presented through reading portions of her deposition transcript because she had relocated to Florida since the time of the incident. On the issue of damages, plaintiff presented testimony from her treating physician, Dr. Itchak Schwarzbard, an orthopedic surgeon. Defendant presented testimony from Elizabeth Joy, a retired employee of the [* 2] Montefusco v Main Street L.I., LLC Index No. 7267/2017 J. LUFT Page2 defcndant. 1 Evelyn Gillespie. employed currently by defendant as a field manager and Robert J. Prisco. employed by delcndant as a maintenance technician. On the issue of damages. defendant presented expert testimony from Dr. Isaac Cohen, an orthopedic surgeon. Based upon careful consideration of the evidence presented at trial, the court makes the following lindings of fact, established by a fair preponderance of the evidence. and renders the following determination in this matter. Plaintiff and her husband resided at the apartment complex located at 75 Ryder A venue in Patchogue. New York ("Ryder A venue Apartments") at the time of the incident that is the subject this action, May 14. 2013, having moved in about three years earlier. The facts as to how the incident occurred arc essentially not in dispute. Plaintiff and her husband were planning to meet friends for breakfast. Plaintiff's husband had brought the car around from the other side of the apartment building and parked it closer to where their unit was located. I le was standing in proximity to the car, and was chatting with the son or one of the neighboring tenants. Plaintiff exited her apartment and walked onto a sidewalk toward the car. There was a grassy strip. narrower that the sidewalk, between the sidewalk and the curb that formed the edge of the parking lot. The sidewalk itself led to a curb that abutted a driveway or driving lane that provided egress from the parking lot to the street. or Plaintiff observed that a mother and her three children, one of whom was in a stroller, were on the sidewalk. awaiting the school bus. Plaintiff walked around them, cutting across the grassy area toward where her husband had parked the car, in the last spot or the parking spaces abutting the curb on the edge of the grassy area. She did not want to walk around the car by going into the driving lane since cars frequently drove fast on their way toward the street. As she walked toward the passenger side of the car, her foot went into a hole that was mostly obscured by grass. She fell down onto her buttocks, with her foot still in the hole. It was established at trial that the hole was about sixteen and a half inches deep and four by four inches wide. The police and an ambulance arrived and plaintiff was taken to Brookhaven Hospital. The facts that were hotly contested pertained to the issue of whether dcicndant had notice of the hole. Plaintiff stated that the hole can1e about approx imately two years before the incident. when someone removed a handicapped parking sign that had been posted there. She testified that she had repeatedly registered complaints about the hole to the employees designated by the defendant as the appropriate people to take such complaints. Dawn Rice and Lisa I,emp. A photograph of a portion of the painted line forming one side of the spot plainti frs husband parked in ref1ects remnants of a blue line beneath the yellow paint, indicating it had been a handicapped spot at some point. 1 Ms. Joy testified that she worked for Darjan Corporation, which has the same owner as defendant. Both arc real cs1a1c management companies. Although she testified that Barjan was not responsible for managing the Ryder Avenue Apartments. she evidently was involved in handling complaints that came in from that location. [* 3] Montefusco v Main Street L.I., LLC Index No. 7267/2017 J. LUFT Page 3 Mr. Montefusco also testified to the existence of the hole and to the fact that his wi fc registered verbal complaints about the hole at the local office when they went to pay the rent. Ms. Rice corroborated plaintilrs testimony. /\s a leasing agent, and later a leasing coordinator, she was responsible for receiving complaints from tenants, who were instructed in writing where to direct complaints. She recalled receiving between five and ten complaints from plaintiff or her husband either by phone or when they would come in to pay their rent. The procedure Ms. Rice then followed was to email the main office of the defendant with information about the complaint. The next step in the procedure would be for a work order to be generated in the oflice and then sent to a property maintenance worker. Ms. Rice's responsibilities did not extend to following up on whether the work order was completed. Ms. Lemp 's testimony supported that of the plaintiff also. As a leasing agent. she also received complaints about the hole, including between three and five from the plaintiff. She passed these complaints along to defondant on numerous occasions. She also testified that she personally observed the hole.:! Defendant ' s witnesses testi lied, in essence, that there had been no complaints made about this hole and that there had never been a handicapped parking sign in that location. E lizabeth Joy. a retired office manager and assistant to the owner of defendant, confirmed that tenants were instructed on their rent bills to contact the local offices, such as the locations where Ms. Rice and Ms. I ,cmp worked, to register complaints by phone. At the time of the incident in this case. Ms. Joy was the main contact person with whom local agents registered the tenants ' complaints. Most complaints came in by fax, but some came through emails or handwritten notes. Ms. Joy would then type up a work order reflecting what needed to be addressed and send it to the appropriate local o llicc where the property manager would receive ii. No file was maintained of the faxed or handwritten cornplaints3, nor of the work orders at the main office. Ms. Joy performed no follow up regarding whether the work orders were completed. Ms. Joy' s testimony was contradictory with regard to whether complaints about problems inside and outside were treated differently. On direct examination, she stated that complaints from tenants at the Ryder A venue Apartments pertaining to either inside or outside would not be treated difforcntly. I Iowcver. on cross-examination, she said that she never got complaints about problems outside, such as a hole. She testified that those type of complaints would be handled at the level of the local offices, and that she knew nothing about outside repairs. 1 Although defendant argues that Ms. Lemp lacked credibility as a disgruntled former employee, the court found no reason to do so since her testimony was consistent. with that of other witnesses on the major issues. 3 She also testified that any written complaints submitted to the local offices by a tenant would be maintamed in the tenant's file. However. all of plaintiff's complaints were oral, in accordance with the instructions on the rent bills. [* 4] Montefusco v Main Street L.I., LLC Index o. 7267/2017 J. LUFT Page 4 Evelyn Gillespie, who worked as a bookkeeper for defondant at the time of the incident, confirmed that the process for tenants to register a complaint was to ca ll the local oflice. She noted that a situation involving a dangerous condition would be phoned in to the main oflice and help would be sent. She then stated that she was not aware of any complaints about a hole at the Ryder A venue Apartments during the time frame of the incident in this case. Although she stated that this type of complaint would be phoned in, she performed a search of her emails and her computer and found no reference to such a complaint. She also looked at the plaintirrs tenant's li le and found no written complaints. despite the fact that plaintiff never stated that she registered a complaint in writing. She confirmed that any complaint faxed in from a leasing agent would be discarded once the work was done. Ms. Gillespie testified that there was no handicapped parking sign at the location of the hole into which plaintiff stepped. She personally had been at the site in the summer of2011. when plaintiff said the sign was removed, but not in the area near plain ti ff' s apartment. The final witness on behalf of the defendant was Robert J. Prisco, a maintenance technician. He stated that his duties included cutting the grass at the Ryder A venue Apartments. and that he did so during 2011 through 2013, but he never noticed any holes. I le slated there never was a handicapped parking sign in the location or the hole that caused the plaintilfs injury. and that he knew of no report about a missing sign. I le testified that he never received written work orders for jobs he was to perform from the main office, but rather he would receive a phone call from Ms. Joy or Ms. Gillespie telling him what to do. I le was not involved with the leasing agents in this regard. >Jo written documentation was made when a job was completed. The defendant requests that the coun draw a negative inference against the plaintiffs based upon their failure to call as a witness either the tenant's son with whom Mr. Montefusco was chatting at the time of the incident or the mother who was standing on the sidewalk with her children. It has long been established that a party need not call a witness "who is in a legal sense a stranger to him and is equally available to the other side.,. llayde11 v New York Rys. Co., 233 NY34, 35 (1922); see also Follett v T'10111pso11, 171A02d777, 567NYS2d 497 (2d Dept. 1991) (must show evidence of friend ship or loyalty sufficient to demonstrate witness is under party"s control to support missing witness charge); Ho11/i'1a11 Parnes Realtors v. Gazivoda, I 06 AD2d 550. 483 NYS2d 69 (2d Dept. 1984) (missing witness charge improper where witness is equally avai lable to other party). Tn the present matter, there is nothing in the record to suppon a finding that either the neighbor's son or the mother had any sort of speciaJ or close re lationship with the plaintifls such that one could consider either as being under the control of the plaintiffs. They were as availabJc to the delCndant, as they were to the plaintiffs. Thus, the court will not draw the nt!gativc inference requested. 4 4 1t also appears that the request for a negative inference was untimely. having been made in closing argument!>. Fol/e/11• 1'/wmpso11, 171 /\02d at 778. [* 5] Montefusco v Main Street L.1. , LLC Index No. 7267/2017 J. LUFT Page 5 The owner of real property, such as the defendant in this matter, has a duty to maintain the property in a reasonably safe condition, so as to prevent the occwTcnce of foreseeable injuries. Peralta v Henriquez, 100 NY2d 139, 760 NYS2d 741 (2003); Torre v Alpe11 K110//s Estates Home Owners Ass'n, Inc., 150 AD3d 789, 54 NYS3d 84 (2d Dept. 2017). To establish liability on the landowner's part to a plaintiff"who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence (citations omitted)." Lezama v 34-15 Parsons Blvd, LLC, 792 NYS2d 123, 124 (2d Dept. 2005). A landowner has constructive notice when the --condition is visibfo and apparent and has existed for a sufficient length of time to afford defendant a reasonable opportunity to discover and remedy it (citation omitted)." Torre v Aspen Knolls Estates Home Owners Ass'11, file., 150 A03d at 790. There is no question that the plainti.f f was injured due to a sizable hole in the ground at the Ryder A venue Apartments. The photographs make clear that the most natural way for someone to enter his/her car parked in that area from the building is to cut across the grass. It is, thus, foreseeable that an injury could occur from a hole in the grassy area. The credible evidence shows that the defendant had actual notice of the hole's existence by means of the plaintiffs repeated complaints about it. Plaintiff fo1Jowed the process that all witnesses agreed was the proper one by informing the local agents of the situation. There were key discrepancies in the explanations of the defendants' witnesses as to how complaints and work orders were handled that militated against a findi11g of lack of actual notice. The credible evidence also shows that the defendant had constructive notice of the condition. Defondant 's own witness testified to cutting the grass in that area regularly. By its very size. the hole would have been apparent and visible to someone tending to the entire grassy area. l laving found the defendant to be liable for the dangerous condition, the court must address whether there is any culpability on the part of the plaintiff, as asserted by the defendant. Defendant relies upon the principle that relieves landowners ofliability if a condition is readily observable by use of one's senses or if the condition is inherent or incidental to the natw-e oflhc property and could be reasonably anticipated. Sta11to1t v Town of Oyster Bay, 2 !\D3d 835. 769 NYS2d 383 (2d Dept. 2003 ). The facts. however, do not support the application of this principle to the present matter. Certainly a hole the size of the one into which the plaintiff stepped is not "inherent or incidental'· to a strip of lawn hctween a sidewalk and a parking lot in an apartment complex. As to the second arm or the principle, it is firmly established that the issue of whether a dangerous condition is open and obvious is fact-specific and must be assessed in light of surrounding circumstances. Shall v Mercy Medical Center, 71 AD3d 1120, 898 NYS2d 589 (2d Dept. 2010): Frank v JS Hempstead Realty, LLC, 136 AD3d 742, 24 NYS3d 714 (2d Dept. 2016). The facts show that the hole had become obscured by grass overgrowth, and cannot be said to be [* 6] Montefusco v Main Street L.L LLC Index No. 7267/2017 J. L UFT Page 6 ··open and obvious" or readily observable. Having found the defendant liable for the dangerous condition, and having found that the condition was neither inherent to the site. nor open and obvious, the court need not reach the issue of whether plaintiff bore some culpability for her injuries. The fact that plaintiff had reported this hole repeatedly during the two years prior to the incident docs not absolve defendant of its responsibility. It was in no sense unreasonable for a tenant to cut across the grass to get to her car. r:or most cars along the curb in question, that was the most direct route. Even a condition that might be '·ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary when the condition is obscured or the plaintiff is distracted. (c.:itations omifled).'" S ltalt v Mercy Medical Center, 71 AD3d at 1120, 898 NYS2d at 590. Plaintiff was distracted by the family blocking the sidewalk in this case, and she merely forgot about the hole on that occasion. Thus, she bears no culpability under these circumstances. Based upon the foregoing. the court finds the defendant bears 100 % liability for the injuries sustained by the plaintirt: ln regard to the facts pertaining to the damages sustained by the plaintiff, the parties were in agreement to a large extent. There is no dispute that plaintiff suffered a trimalleolar fracture of her left ankle. When taken to the hospital on the day of the accident, two closed reductions were performed on her ankle. A week later on May 20, 2013, plaintiff underwent surgery consisting of an open reduction and internal fixation of the left ankle through the insertion of plates and screws. 13y all accoums the surgery was a success. Following ten days in recovery at the hospital, plaintiff was transferred to an in-patient rehabilitation center to allow her to become weight-bearing on her injured ankle. She was there for approximately three weeks. When discharged home on June 12, 2013, plaintiff was still not weight-bearing, and continued with her physical therapy on an out-patient basis, three times a week. For several weeks aficr her discharge home, plaintiff required a wheelchair and, thercafler, had to use a walker for about two months thereafter. She completed her outpatient rehabilitation at the end of September, 2013. She was discharged from care by her orthopedic surgeon in March. 2014. There is no doubt that plaintiff made a good recovery from her serious injury. and the evidence shows she is not a complainer. However, those facts do not negate the fact that she experienced pain and suffering from the time of the injury to the time of trial, nor does it negate the fact that she will continue to suffer in the future. Oefondant's reliance upon case law involving wrongful death actions in which there was a question as to whether the decedent was even conscious between the time of the injury and the time of death, [l'ltiri v Joseph , 32 A03d 922. 822 NYS2d 573 (2d Dept. 2006); Espi11al v Vargas, 10 l AD3d I 072. 956 NYS2d 504 (2d Dept. 2012)]. is misplaced. Plaintiff was conscious, despite the fact that she did not have a clear recollection of certain periods of time fol lowing the accident. Indeed, the fact that she was in [* 7] Montefusco v Main Street L.I., LLC Index No. 7267/2017 J. LUFT Page 7 such a debilitated state that she did not recogni:te who was visiting her on a number of occasions only demonstrates the severity of her situation. Moreover, her husband testified to observing her in pain. Based upon the foregoing. the plaintiff is awarded $200,000.00 for pain and suffering from May 14, 2013 until the date of this decision, and $85,000.00 for pain and suffe1ing from this date through the period of years plaintiff is expected to live, according to the Lifo Expectancy Tables for a fomalc of her age which is 16.2 years. She is also awarded $8.600.00 for unreimburscd medical expenses, as well as the $1,400.00 Medicare lien. Thus, her total award is $295.000.00 The evidence does not support an award for loss of consortium to Mr. Montefusco. While he clearly cared for her and tended to her attentively and fovingly during her surgery and rehabilitation. he did not testi1y to the type of effect upon his relationship with his wife that would amount to a loss of consortium. Consortium "represents the marital partners ' interest in the continuance of the marital relationship as it existed at its inception. (citation om ii.led)" Buckley v Natioual Freiglzt, foe.. 90 NY2d 210, 214, 659 NYS2d 841 , 843 (1997). The only d ifference alluded to was some extra help with the housework. 1fowevcr, according to Mr. Montefusco· s description, their relationship continues to be the very close one it was before the m.1ury. Submit judgment. ENTER Date: ' "(\ 1 ~~\ti, ' -~ I If._ December 26, 2017 Riverhead, New York ~NAL DISPOSITION ,,---MJ\RTHA L. LlffT. A.J.S.C. /JI _ ,. NON-FINAL DISPOSITION
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
