Mitchell v 7 Waterfront Prop., LLC
Annotate this CaseDecided on August 1, 2017
Supreme Court, Kings County
Vaughan Mitchell, Sr., as Administrator of all and singular the personal property, goods, chattels and credits of the Estate of VAUGHAN MITCHELL JR., deceased, and VAUGHAN MITCHELL, SR., Individually, Plaintiffs,
against
7 Waterfront Property, LLC, R.G.T. REALTY, LLC and R.G.T. REALTY CORP., Defendants.
12187/13
Attorneys for Plaintiff
Schmelkin Associates, P.C.
11 Park Place — 10th Floor
New York, NY 10007
(212) 227-8865
Law Offices of Ted Kessler, P.C.
30 Vesey Street, 4th Floor
New York, NY 10007
(212) 477-3200
7 Waterfront Property, LLC
c/o Realty Office
1104 Avenue K
Brooklyn, NY 11230
Attorneys for Defendants
Christina Stylianou
Connors & Connors, P.C.
766 Castleton Avenue
Staten Island, NY 10310
(718) 442-1700
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of the defendants R.G.T. Realty, LLC and R.G.T. Realty Corp., (hereinafter the Realty defendants) filed on April 27, 2017, under motion sequence number three for an order pursuant to CPLR 2221 granting leave to reargue and to renew their prior motion for summary judgment dismissing the complaint.
Notice of motion
Affirmation in support
Exhibits A-N
Affirmation in opposition [FN1]
Reply
Exhibits A-F
BACKGROUND
On July 3, 2013, plaintiff Vaughan Mitchell, Sr., as administrator of the estate of Vaughan Mitchell, Jr. and individually commenced the instant action for damages for personal injuries, wrongful death and for derivative claims by filing a summons and verified complaint with the Kings County Clerk's Office. By verified answer with cross claim the Realty defendants joined issue. Defendant 7 Waterfront Property LLC did not answer the complaint or appear in the action. On June 26, 2017, the plaintiffs filed a note of issue.
The complaint and bill of particulars allege the following salient facts. On June 5, 2012, Vaughan Mitchell, Jr., an infant (hereinafter the decedent), accessed a beach on the Realty defendants property located at the north east corner of Jersey Street and Bank Street in the County of Richmond (hereinafter the premises) through a hole in the fence (the subject fence). [*2]The decedent went swimming and ultimately drowned. The complaint alleges, among other things, that the Realty defendants owned, operated, and maintained the premises and the subject fence. It further alleges that the Realty defendants negligently made repairs to the subject fence.
LAW AND APPLICATION
The Realty defendants seek leave to reargue and to renew a prior motion for summary judgment seeking dismissal of the action. By order dated March 3, 2017, the Court denied the prior motion for failing to make a prima facie showing of entitlement to dismissal.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062[1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324, [1986]).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).
"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).
Leave to Reargue
CPLR 2221 (d) provides: A motion for leave to reargue:
1. shall be identified specifically as such;2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.
"Motions for re-argument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision" (Barnett v Smith, 64 AD3d 669, 670—671 [2nd Dept 2009] citing, E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653 at 654 [2nd Dept 2007]; see also, Beverage Marketing USA, Inc. v South Beach Beverage Co., Inc., 58 AD3d 657 [2nd Dept 2009]).
The Realty defendants did not annex a complete set of the prior motion papers to the instant motion. Exhibit C, which is purported to be the prior notice of motion, contains only the notice of motion and an affirmation in support. The affirmation in support refers to five annexed exhibits labeled A through E, none of which are attached. "The Court does not retain the papers following the disposition of an application and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions" (Lower Main St. v Thomas Re & Partners, 2005 WL 6760926, NYLJ, April 5, 2005, at 19, col 3, [Sup.Ct., Nassau County 2005], citing Sheedy v Pataki, 236 AD2d 92, 97 [3rd Dept 1997]). By not including the complete set of the prior motion papers the movant did not comply with the requirements of CPLR 2214 (c) (see Wells Fargo Home Mortg., Inc. v Mercer, 35 AD3d 728 [2nd Dept 2006] citing Alizio v Perpignano, 225 AD2d 723, 724—725 [2nd Dept 1996]).
The complete set of motion papers are necessary for consideration of both branches of the motion. Without it, the movants cannot demonstrate all the evidence and arguments that were previously offered and cannot show what evidence and arguments are newly proffered. Although the motion may be denied for this procedural defect alone, the interest of judicial economy is better served by addressing the merits.
The Realty defendants contend that the subject fence was not located on their property and accordingly was not their responsibility to maintain. In support of same, the Realty defendants have submitted, among other things, the affidavit of Robin Savin (hereinafter Savin), their Chief Executive Officer. They aver that Savin's affidavit was originally submitted in the prior motion papers as part of their reply to plaintiffs' opposition papers. They contend that the affidavit was disregarded because it was contained in the reply papers.[FN2] They further contend that the disregard of Savin's affidavit provides adequate support for granting leave to reargue because, had it not been overlooked, the motion would have been granted.
Savin's affidavit contains seven paragraphs and states the following facts, among others. Savin is the Chief Executive Officer of the Realty defendants. On June 5, 2012, the date of the accident, the Realty defendants owned a property located at 15 Bank Street, Staten Island, New York. Upon information and belief, exhibit E of the original motion includes photographs depicting the location where the decedent gained entrance to access the site of the incident.[FN3] Savin has stated that the subject fence had been "evidently since been replaced." Savin has further stated that based upon landmarks in the photographs such as the telephone pole, large rock by the water and "natural landscape"; and after reviewing a survey, Savin has concluded that [*3]the subject fence was not located on the Realty defendant's property. Savin's affidavit is drafted in a vague manner and invited the Court to speculate as to several items. It is unclear whether Savin had personally visited the site of the incident and knows the fence to have been moved or simply believes that to be. Also, is it the landmarks in the pictures that she is comparing to conclude that the fence was not on the Realty defendants' property or at the actual site? Furthermore, Savin does not affirmatively state that the Realty defendants did not relocate the fence nor have any contract or obligation to maintain the fence.
Savin did not annex a copy of the survey relied upon, nor offer any foundational facts supporting the ability to read or interpret a land survey. Although Savin did reach a conclusion that the subject fence was not on the premises owned by the Realty defendants Savin did not adequately support, by an evidentiary showing, how that conclusion was reached. Therefore, the conclusion lacks an evidentiary foundation.
The complaint has alleged, among other things, that the Realty defendants owned, operated, maintained and caused the hole in the fence by negligently repairing the fence. Savin's affidavit only addressed the issue of lack of ownership. It failed to address, much less eliminate, all material issues of fact as to its operation or maintenance of the subject premise or as to whether its caused the alleged defect in the subject fence. There was no showing that the Court overlooked or misapprehend a fact or law that would alter the outcome of the prior motion. Accordingly, the Realty defendants motion for leave to reargue its prior motion for summary judgment dismissing the complaint is denied.
Leave to Renew
The Realty defendants have also moved under CPLR 2221 (e) for leave to renew their prior motion for summary judgment motion based upon new evidence. CPLR 2221 (e) provides that a motion for leave to renew:
1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.
A motion for leave to renew must be based upon "new facts not offered on the prior motion that would change the prior determination" (Hodzic v M. Cary, Inc, 151 AD3d 1034 [2nd Dept 2017], citing CPLR 2221 [e] [2]; Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 700—701 [2nd Dept 2011]). The motion must contain a reasonable justification for the failure to present such facts in the prior motion (Empire State Conglomerates v Mahbur, 105 AD3d 898, 898-899 [2nd Dept 2013]). The requirement that a motion for renewal be based upon newly discovered facts is a flexible one, and a court may, in its discretion, grant renewal even upon facts known to the movant at the time of the original motion (Wilder v Mays Dept. Stores Co., 23 AD3d 646, 648 [2nd Dept 2005]).
In support of this branch of the motion the Realty defendants have submitted the deed to the location where the subject fence is located. The Realty defendants assert that they were unable to obtain the deed previously because additional investigation of lot lines was required and they had not obtained the information prior to filing the original motion.
The Realty defendants have also submit the affidavit of William Spiezia (hereinafter Spiezia) who is described as a professional land surveyor. Although the Realty defendants [*4]contend that an affidavit by Spiezia was submitted with the prior motion papers, the earlier affidavit is not included with the annexed prior motion papers. It is, therefore, unclear whether Spiezia's affidavit submitted with the instant motion alleges any facts that are different from those asserted in the prior affidavit. In either case, for the reasons sets forth herein, it is irrelevant.
Spiezia has asserted that he is a partner in Rogers Surveying PLLC and that he is in the business of surveying land and property boundaries. He avers that he sent "employees to establish the exact location of the photographs" as the subject fence had been moved. He does not annex the survey that he relied upon. His conclusion, that the subject fence was not on the Realty defendants' property, restates the conclusions set forth in Savin's affidavit. Similar to Savin's affidavit, Spiezia's conclusions lack foundational evidentiary support. Furthermore, the affidavit clearly relies upon hearsay rather than first hand knowledge as he states that his employees visited the site.
The Realty defendants' excuse for failing to include the deed in the prior motion papers is insufficient to grant renewal. The Realty defendants could have submitted the deed to their property and a survey of their property on the first motion for summary judgment. Even if the deed were to be considered, for the reasons set forth herein, it would not change the outcome. Moreover, it would not eliminate all triable issues of fact as to the defendants' operation or maintenance of the subject premise or as to whether it caused the alleged defect in the subject fence. As discussed above, the complaint alleges various theories of liability including the Realty defendants' ownership of the property where the subject fence was located. Accordingly, the motion for leave to renew the prior motion for summary judgment seeking dismissal of the complaint is denied.
CONCLUSION
The joint motion of R.G.T. Realty LLC and R.G.T. Realty Corp. for an order pursuant to CPLR 2221 granting leave to reargue their prior summary judgment dismissing the complaint is denied
The joint motion of R.G.T. Realty LLC and R.G.T. Realty Corp. for an order pursuant to CPLR 2221 granting leave to renew their prior summary judgment dismissing the complaint is denied
The foregoing constitutes the decision and order of this Court.
FootnotesFootnote 1:Plaintiffs' opposition is contained within its cross-motion filed under motion sequence number four seeking to extend the time to file a note of issue. Plaintiffs' cross motion was granted by order dated June 2, 2017.
Footnote 2:The Realty defendants have not annexed a copy of the transcript of the oral argument and accordingly, the Court lacks the record necessary to determine if this assertion is accurate. However, it is well established that a movant on a summary judgment motion cannot rely in support of their motion on evidence submitted for the first time in their reply papers (GJF Const. Corp. v. Cosmopolitan Decorating Co., 35 AD3d 535 (2006) citing Adler v Suffolk County Water Auth., 306 AD2d 229 [2003]; Constantine v Premier Cab Corp., 295 AD2d 303 [2002]; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470 [2001]).
Footnote 3:As previously indicated, none of the exhibits, including exhibit E, were annexed to the prior notice of motion.
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.
