Nucci v Bozo's Army & Navy, Inc.

[*1] Nucci v Bozo's Army & Navy, Inc. 2007 NY Slip Op 52103(U) [17 Misc 3d 1121(A)] Decided on October 30, 2007 Supreme Court, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 30, 2007
Supreme Court, Richmond County

Attilio Edward Nucci, Plaintiffs,

against

Bozo's Army & Navy, Inc. and PARK TYSEN ASSOCIATES, LLC, Defendant(s).



100811/05

Robert Gigante, J.

Upon the foregoing, papers the motion and the cross motion are denied.

Plaintiff Attillio Edward Nucci moves by notice of motion for an order granting him partial summary judgment on the issue of liability as against defendant Bozo's Army & Navy, Inc. (hereafter "BAN"). Co-defendant Park Tysen Associates, LLC (hereafter "Park") cross-moves pursuant to CPLR 3212 for dismissal of the complaint against it. Plaintiff opposes both motions; defendant BAN opposes the cross motion.

This action arises from an accident which occurred on February 5, 2005, wherein plaintiff allegedly tripped and fell over a snow-covered defect in the area of the sidewalk in front of a store operated by BAN at 2742 Hylan Boulevard on Staten Island. The premises in question are owned by Park. Plaintiff commenced this action by the filing and service of a summons and complaint on or about March 17, 2005. Issue was joined by the service of answers with crossclaims by BAN on or about April 15, 2005, and by Park on or about June 29, 2005.

As is relevant, defendant Park is the owner of the Tyson's Park Shopping Center and BAN's landlord. Plaintiff alleges that he was caused to trip and fall as the result of a "cracked, broken, pitted, and/or uneven sidewalk in front of the store". In support of his motion for summary judgment, plaintiff relies on the (1) deposition testimony of Paul Bergman, the owner and sole shareholder of TBO Management Group, Inc., the company that oversaw the operation of the Shopping Center, (2) the deposition testimony of Laura Parenti-Norden, the President and 50% owner of BAN , and (3) a copy of the lease between Park and BAN. A review of the deposition testimony supports Park's position that BAN was contractually obligated to maintain the sidewalk area. According to Park, it had never been notified by BAN of any defects in the sidewalk. BAN admits that it had actual notice of the alleged defect, but contrary to the position advocated by Park, it claims that the landlord was advised of the need to repair the area prior to plaintiff's fall. A review of the copy of the lease between BAN and Park reveals a rider requiring BAN to repair and maintain the sidewalk in front of the store in good order .

In its cross motion, Park relies upon the same deposition testimony and lease term to argue that there is no triable issue of fact as to BAN's responsibility to repair and maintain the area in question.

In opposition, BAN alleges that, notwithstanding the lease provisions, Park's exercise of dominion and control over the area in question in the years preceding plaintiff's accident established a pattern of behavior pursuant to which Park assumed sole responsibility for making repairs to the curb and sidewalk. In addition, BAN alleges that summary judgment is premature, as discovery is not yet complete, and all of the contractors hired by Park to perform work at the site of plaintiff's fall have yet to be joined. In particular, it is alleged that the cross movant (Park) has failed to respond to a Notice for Discovery and Inspection dated January 8, 2007 in which the names of such contractors were sought. Finally, BAN alleges that an issue of comparative [*2]negligence exists based on plaintiff's own deposition testimony, wherein he admits that he did not see the trough of snow onto which he stepped before falling (Plaintiff's E/B/T pp 74-75).

In opposition to Park's cross motion, plaintiff alleges that triable issues of fact regarding, e.g., Parks' right of re-entry and its exercise of control over the sidewalk in question, preclude dismissal of the complaint as against it.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v. Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). To prevail on the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320, 324), and upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562). In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue (id. at 562). Thus, summary judgment, which operates to deprive a party of his or her day in court, is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (Persaud v. Darbeau, 13 AD3d 347).

With this criteria in mind, both the motion and cross motion must be denied.

With respect to plaintiff's motion against BAN, it is undisputed that this defendant admitted actual notice of the sidewalk defect in front of the store, and that it was contractually obligated to maintain and repair same. Nevertheless, a party which enters into a contract to render services may be said to have a duty of care to third persons only in limited circumstances (see Espinal v. Melville Snow Contrs. (98 NY2d 136), and it has not been demonstrated as a matter of law that any of these circumstances exist. Moreover, BAN has raised a triable issue of fact as to whether or not contractors hired by Park to repair the curb and sidewalk area may have caused or created the alleged defect which caused plaintiff's accident. Thus, summary judgment on the issue of liability may not be granted against BAN.

As to the cross motion, Park has likewise failed to demonstrate as a matter of law that it may not be held liable for plaintiff's injuries. In addition, since Park does not deny that it has failed to respond fully to plaintiff's discovery demands, it is not entitled to summary judgment at this stage of the litigation (see DiGiullio v. Kirch, 5 AD3d 625; Finnegan v. Urlich, 288 AD2d 342; cf. Miranda v. New York City Hous. Auth. 18 AD3d 519).

Accordingly it is

ORDERED that motion and cross motion are denied.

ENTER,

___S/______________________

Robert J. Gigante, J.S.C.

DATED: October 30, 2007

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