Habib v Baldini

[*1] Habib v Baldini 2007 NY Slip Op 52623(U) [24 Misc 3d 1237(A)] Decided on July 23, 2007 Supreme Court, Tompkins County Garry, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2007
Supreme Court, Tompkins County

Dayana D. Habib, Plaintiff,

against

Caren Baldini and Certified Properties of Tompkins County, Inc., Defendants.



2005-1040



David F. McCarthy, Esq.

Levene, Gouldin & Thompson, LLP

450 Plaza Drive

P.O. Box F-1706

Vestal, New York 13850

Benjamin Rabin, Esq.

Alexander & Catalano, LLC

115 East Jefferson Street

Suite 403

Syracuse, New York 13202

Elizabeth A Garry, J.

Defendant in this premises liability action seeks summary judgment dismissing the complaint on the ground that there was no notice of the defective condition of the window that allegedly caused Plaintiff's injury. Plaintiff opposes by the Reply Affirmation of Counsel attaching deposition transcripts, and Defendants thereafter filed an Affidavit of Counsel in reply. The matter was submitted for consideration at a motion term conducted on May 18, 2007, without oral argument.

Factual and Procedural History

Plaintiff, a graduate student at the time of the accident that gave rise to this action, was one of a group of 10 tenants who rented 116 Cook Street in Ithaca, a residential property owned by Defendant Carin Baldini (Baldini) and managed by Defendant Certified Properties of Tompkins County, Inc. (Certified), under a one-year lease beginning in June, 2003. At about mid-morning on November 22, 2003, Plaintiff was in her second-floor bedroom at 116 Cook Street. A window in her bedroom, which Plaintiff describes as a "very heavy, wooden framed window" (Plaintiff's Deposition, page 26), had been opened the night before, remained open through the night, and was still open. No screen was in the window. Plaintiff alleges that when another tenant commented on the day's fine weather, she looked out the window and it suddenly fell shut, striking her head and allegedly causing serious injuries.

Although the lease for 116 Cook Street had begun in June of that year, Plaintiff and most of the other tenants did not move in until August. At that time, they allegedly discovered numerous problems with the property's maintenance, furnishings, and cleanliness. The tenants complained about the problems to Certified and specifically to Shane Varricchio, whom Plaintiff identifies as the person responsible for handling problems at 116 Cook Street.

The tenants made at least some of their complaints in the form of an undated hand-written list, identified as Exhibit 6 in Plaintiff's deposition and attached as an exhibit to the reply papers [*2]filed by Defendant in response to Plaintiff's opposition to their Motion. The hand-written list, four pages in length, was allegedly prepared by the tenants shortly after they moved in. Although the first page of the list includes the notation, "Windows falling apart," the four items listed in the section of the list that specifically enumerates problems in Plaintiff's room, which was apparently identified for this purpose as "Room No.4," do not include any reference to the windows.[FN1]

Plaintiff alleges that based on the tenants' initial complaints, the premises were cleaned, furnishings were replaced, and repairs were begun during a three-day period shortly after she and the other tenants moved in. She testified (Plaintiff's Deposition, Page 23):

A.. . . And then we obviously had other, they didn't fix everything and we had other complaints as time went by that we noticed or this broke and that broke or whatever, so what happened was if there was new complaints we'd call Shane and he would supposedly fix them. And things that they didn't fix originally that were not in good condition when we first moved in but weren't fixed in those three days, they said that they would send people periodically to do things.

Plaintiff testified that the problems on the premises included a window in her bedroom. The glass in this window was cracked, and the window would not stay open. Plaintiff testified, "When I opened it, it would fall right down." (Plaintiff's Deposition, page 15). During her deposition, the following colloquy occurred: (Plaintiff's Deposition, page 15):

Q.Did you complain to [Shane Varricchio] about the cracked window pane?

A.Yes.

Q.And the window not staying open?

A.Yes.

Q.How did you complain to him?

A.We actually sent them, we gave them a list . . .

According to a statement given by Plaintiff to an insurance company representative and referenced during her deposition, she was advised at some point that the cracked glass in her window would not be repaired because "[t]hey didn't feel that it was necessary to fix because they didn't think it was affecting the temperature." (Plaintiff's Deposition, Page 23). As for the window's failure to stay open, Plaintiff testified that at some point in October, 2003, she discovered that the window seemed to be working properly. She testified that she assumed that it had been repaired, stating, "They never gave you any notice if something was fixed." (Plaintiff's Deposition, page 26). She allegedly did not use the window or make any complaints about it between that time and the day of her accident. (Plaintiff's Deposition, Page 27).

Shane Varricchio testified in his deposition (Defendant's Motion, Exhibit C) that he and a business partner owned Certified at the time of Plaintiff's accident and that Certified had a [*3]management agreement for 116 Cook Street. He confirmed that 116 Cook Street was in "disarray" when Plaintiff and the other tenants moved in (Varricchio Deposition, Page 11). He testified that the premises were cleaned and repaired based on notes he took from his own observations, lists prepared by the tenants, and walk-throughs with the tenants. Specifically, when asked what he remembered about complaints regarding the premises, he testified (Shane Varricchio's Deposition, page 25),

A.What I remember is first off, that the lists that were previously exhibited, 1 and 3, my handwritten notes, and in turn, without knowing specific dates, stopping by the house on numerous occasions to walk through with the ladies to make sure there was no outstanding maintenance requests on their behalf.

Q.When you say the ladies, you mean the tenants?

A.That's correct.

Later in the deposition, the following colloquy took place (Shane Varricchio's Deposition, pp. 27-28):

Q. . . . Do you remember if anybody ever made any specific complaints about that bedroom that we've called number two [referring to Plaintiff's bedroom]?

A.No.

Q.You don't remember or you know that no one did?

A.I know that nobody did.

He went on to testify that the only complaint ever made to anyone from his company about Plaintiff's bedroom was after the accident, when Plaintiff contacted the office to submit a repair request for her window. Although he acknowledged that complaints could have gone to someone at the company other than himself, he alleged that he had asked everyone on his staff whether they had received any calls regarding Plaintiff's bedroom and, more specifically, a broken window in that bedroom, and had learned that no such calls were received. (Shane Varricchio's Deposition, pp. 28-29). He also testified that no problems with the window were described on the lists or in his own notes taken during his observations, and that nobody from his crew had advised him about problems with the window during any of the work they performed.

Defendants assert that they are entitled to summary judgment because the testimony establishes that no specific complaints were made before Plaintiff's accident about the window in question failing to stay open or remaining open for a period of time and then suddenly coming down. Therefore, they assert, they did not have notice of the claimed dangerous condition. Plaintiff opposes, asserting that Defendants did have notice of the condition because she expressly complained to Certified before the accident that the window would not stay open. Plaintiff also asserts, based on Shane Varricchio's deposition testimony that he does not have personal knowledge of invoices for repairs to the property, that other Certified employees may have knowledge of the defective window or repairs to that window and that further depositions are therefore necessary before the extent of Defendants' knowledge can be established.

Legal Analysis

"In order to prevail on a motion for summary judgment, a defendant landowner is required to establish as a matter of law that it maintained the property in question in a reasonably safe condition and that it neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof." Gerfin v. North Colonie Cent. School Dist., ___ [*4]AD3d ____, 2007 NY Slip Op 5404 (3d Dept. 2007). The movant must establish his cause of action sufficiently to warrant the court as a matter of law in directing judgment in his favor by tender of evidentiary proof in admissible form. To defeat such a motion, the opposing party must show facts sufficient to require a trial of any issue of fact. Zuckerman v. New York, 49 NY2d 557, 562 (1980).

Defendants claim that the deposition testimony establishes that they had no notice of the alleged defect in Plaintiff's window based on Plaintiff's testimony that she notified Defendants of the problems with her window by giving them a list. As the hand-written list prepared by the tenants shortly after they moved in includes no reference to Plaintiff's window, Defendants assert that this testimony establishes that they were not given any notice of any problem with the window. However, Plaintiff's deposition testimony, read fairly as a whole, does not require the conclusion that, if no complaint about the window was made through the hand-written list, no such complaint was ever made at all. Instead, Plaintiff testified explicitly that she complained to Certified that the window would not stay open. She also testified that after the hand-written list was completed, she and the other tenants had other complaints about problems that they noticed as time went by or that developed after the list was completed, and that when they had such complaints, they called Certified to report them. Shane Varricchio confirmed that tenants had, at least, the opportunity to make additional complaints about the property by making calls to Certified or during his walk-throughs of 116 Cook Street. Further, Plaintiff's testimony that she was told that a determination was made not to repair the cracked glass in her window and that she believed that the window's problem in staying open had been repaired when she found it working properly in October lends at least implied support to her contention that she had complained to Certified about the window.

Plaintiff's testimony that she complained to Certified that her window would not stay up directly refutes Shane Varricchio's testimony that no complaints at all about Plaintiff's bedroom were made to anyone at Certified at any time before the accident. This contradictory testimony creates a genuine issue of material fact on the question of notice which cannot be resolved without credibility determinations, which are improper on summary judgment. Mounsey v. Mounsey, 40 AD3d 1293 (3d Dept. 2007). Defendants' motion must therefore be denied.

Conclusion

Defendant met the burden of presenting a prima facie case for summary judgment. However, Plaintiff thereafter met her burden of raising an issue of fact in regard to Defendants' notice of the defect in her window. Defendant's motion for summary judgment is therefore denied.

This constitutes the Decision and Order of the Court.

ENTER

Dated:

Norwich, New York

____________________________________

Hon. Elizabeth A. Garry [*5]

To:

David F. McCarthy, Esq.

Levene, Gouldin & Thompson, LLP

450 Plaza Drive

P.O. Box F-1706

Vestal, New York 13850

Benjamin Rabin, Esq.

Alexander & Catalano, LLC

115 East Jefferson Street

Suite 403

Syracuse, New York 13202 Footnotes

Footnote 1:A typed list that the tenants also prepared, identified during Plaintiff's deposition as Exhibit 5, does include a specific reference to the failure of Plaintiff's window to stay open. That list is irrelevant to the notice issue presented by this motion because the parties agree that it was not created until after Plaintiff's accident.