Griffin v Poly Prep Country Day School

[*1] Griffin v Poly Prep Country Day School 2007 NY Slip Op 52072(U) [17 Misc 3d 133(A)] Decided on October 23, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 9, 2007; it will not be published in the printed Official Reports.

Decided on October 23, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-1407 K C.

Edward G. Griffin, Respondent,

against

Poly Prep Country Day School, Defendant,

-and-

Aspen Tree Specialists, Inc., Carl Cahill, Individually and d/b/a Aspen Tree Specialists, Appellants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered August 9, 2005. The order, insofar as appealed from as limited by the brief, denied the cross motion by defendants Aspen Tree Specialists, Inc. and Carl Cahill, Individually and d/b/a Aspen Tree Specialists, for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this personal injury action, plaintiff, who was on duty as a Department of Defense Police Officer, claimed that he tripped on a branch on the grounds of Fort Hamilton in Brooklyn and fell. Defendant Poly Prep Country Day School (Poly Prep), the owner of the property adjoining Fort Hamilton, had hired defendant Aspen Tree Specialists, Inc. (Aspen) to trim its trees and cart away the debris. Poly Prep's motion for summary judgment dismissing the complaint as against it was granted. The court below found that Poly Prep demonstrated that it did not create the alleged condition, that the alleged accident did not occur on its property and that it should not be held liable for any negligence on the part of its independent contractor. [*2]

Defendants Aspen and its principal, Carl Cahill (jointly "Aspen") cross-moved for summary judgment and argued that plaintiff merely speculated that the branch, which caused his fall, had been left by Aspen's workers when they pruned the trees on the adjoining property on the previous day. In his supporting affidavit, Mr. Cahill generally stated, inter alia, that it was Aspen's custom and practice to immediately dispose of any vegetation which it trimmed in the course of a project. Further, he speculated that even if plaintiff were injured by tripping on a branch, the branch may have come from a tree which Aspen did not service. The court denied Aspen's cross motion for summary judgment on the ground that plaintiff's submissions created a triable issue of fact. The instant appeal by Aspen ensued.

We affirm the order, but for reasons other than that set forth by the court below. It is the burden of the proponent of a summary judgment motion to make a prima facie showing of entitlement to judgment as a matter of law. The proponent's failure to tender sufficient evidence to demonstrate the absence of any material issues of fact requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med Center, 64 NY2d 851, 853 [1985]). When a defendant moves for summary judgment in a slip and fall case, it has the initial burden of showing, as a matter of law, that it did not create the condition that caused plaintiff's accident (see Roach v AVR Realty Co. LLC, 41 AD3d 821 [2007]; Rivers v City of New York, 37 AD3d 804 [2007]; Baron v Newman, 300 AD2d 269 [2002]). In the instant case, Aspen's submissions were insufficient to make a prima facie showing that Aspen and Cahill did not cause or create the condition at issue or that there was an absence of any material issue of fact, and, thus, they did not meet their burden of demonstrating entitlement to summary judgment.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: October 23, 2007