Cazassus v Bayview Owners Corp.
Annotate this CaseDecided on March 27, 2008
Supreme Court, Kings County
Gail Cazassus, Plaintiff,
against
Bayview Owners Corp., JALEN MANAGEMENT, and JALEN MANAGEMENT and JALEN REAL ESTATE CORP., Defendants. BAYVIEW OWNERS CORP. and JALEN REAL ESTATE CORP. d/b/a JALEN MANAGMENT, Third-Party Plaintiffs, THE CITY OF NEW YORK and CITY DEPARTMENT OF PARKS and RECREATION, Third-Party Defendants.
10000/2005
The plaintiff is represented by Goldstein, Green & Bashner, P.C. by, David Schwarz, Esq. , of counsel, the defendants, Bayview Owners Corp. and Jalen Real Estate Corp. d/b/a Jalen Management Corp. are represented by Margaret G. Klein & Associates, by Jeffrey Fippinger, Esq., of counsel, defendant, The City of New York is represented by, Michael A. Cardozo, Corporation Counsel of The City of New York by, Christopher M. Bletsch, Esq., Assistant Corporation Counsel.
Robert J. Miller, J.
In this action, plaintiff Gail Cazassus seeks to recover for injuries allegedly
sustained by her on November 8, 2004 when she tripped over a tree stump in a grassy area on the
sidewalk in front of the premises located at 1265 Shore Parkway which is owned by defendant
Bayview [*2]Owners Corp. ("Bayview") and managed by
defendants Jalen Real Estate Corp. d/b/a Jalen Management (collectively "Jalen").
The complaint was filed on April 4, 2005 and issue was joined on June 14, 2005. Defendants instituted a third party action against the City of New York (the "City") on August 30, 2005.
The defendants-third-party plaintiffs now move for summary judgment dismissing the complaint on two grounds. First, they claim that they "did not create the tree stump, did not maintain any special use over the tree and did not breach any special ordinance or statute that obligates an owner to maintain the tree." In addition, they argue that the case should be dismissed as "the condition of the tree stump was open and obvious." Alternatively, defendants/third-party plaintiffs seek summary judgment against the City on their common law claims for indemnification.
Plaintiff opposes the motion and also moves for leave to file an amended complaint to assert a direct claim against the City arguing that notwithstanding that the statute of limitations has passed (February 6, 2006) that plaintiff may do so as it previously filed a notice of claim against the City and asserting that their direct claim relates back to the service of the third party complaint i.e. August 4, 2004 which is within the statutory time period.
1
The City takes no position on defendants' motion for summary judgment and opposes the motion by plaintiff to add them as a direct defendant and the motion by defendants for indemnification.
With respect to Bayview and Jalen's motion for summary judgment, their argument that they did not "create the tree stump" and therefore should escape liability is unconvincing. The photographs attached to the opposition papers demonstrate that the tree stump is in a grassy area which is maintained and controlled by the defendant. It is a question of fact as to whether the grassy area was maintained properly or was it negligently maintained so as to cause the tree stump to be less "open and obvious" to use defendants' words.
Seyit Mergin, the superintendent of the premises, testified at his deposition as
follows:
Q.What kind of trees were there in front of 1265 Shore Parkway on the sidewalk?
A.I can't remember. It looks like a maple.
Q.Did Joe and his landscaping service ever work on those trees?
A.No. [*3]
Q.Did they ever cut grass around those trees?
A.They cut grass, but we can't cut trees. The trees don't belong to us.
Q.Can we call that garbage? They pick it up along the streets?
A.Not the street. The sidewalk. They pick up something.
QDebris?
A.Yes, debris . Like papers or if someone throws coffee. This kind of stuff.
Q.They pick it up from the grass area and on the sidewalk as well?
A.Sure if they see it. That's their business.
Q.With regard to that area, the grassy area in front of 1265 Shore Parkway,
other than picking up garbage and other and other than the landscapers mowing the grass, is there
any other work that's done on that area of which you're aware? I'm talking about the grassy area
specifically.
A.I can't remember exactly.
Q.Do you know if the leaves are raked up?
A.I didn't do leaves . The gardener takes care of that.
Q.The landscaper?
A.Yes
Q.Joe?
A.Yeah Joe.
Q.That grassy area that's depicted in 3, that's where Joe and his nursery would mow the lawn?
A.And that's also where people , Jose and Oscar, would pick up garbage from that area.
2
Summary judgement is rarely granted in negligence cases since the very question of whether
a defendants' conduct amounts to negligence is a question for the trier of the fact in most instance
and can rarely be decided as a matter of law. (Johannsdottir v. Kohn, 90Ad 2nd and 842
[2nd dept 1982], Andre v. Pomory, 35 NY 2nd 361 [1974].)
Where, as here, it is acknowledged that defendants maintained the accident site, it is a question for the jury as to whether defendants did so in a negligent manner and the extent, if any, that defendants contributed to the accident.
Bayview-Jalen also argue that they are entitled to summary judgment since the accident site
showed a danger that was open and obvious. Once again, their argument is unconvincing. First,
the pictures submitted on the motion raise issues of fact as to how "open and obvious"
the tree stump was when surrounded by grass and leaves. Moreover, as the court held in Cupo v Karfunkel, 1 AD3d 48
[2003]:
Where the plaintiff presented evidence that a dangerous condition exists on the
property, [*4]the burden shifts to the landowner to demonstrate
that he or she exercised reasonable care under the circumstances to remedy the condition and to
make the property safe, based on such factors as the likelihood of injury to those entering the
property and the burden of avoiding the risk. Evidence that the dangerous condition was open
and obvious cannot relieve the owner of this burden . Indeed, to do so would lead to an absurd
result that landowners would be least likely to be held liable for failing to protect persons using
their property from foreseeable injuries where the hazards were the most
blatant.
Accordingly, defendant's motion for summary judgement
against the plaintiff dismissing the complaint is denied.
We now turn to Bayview and Jalen's motion for summary judgment against the City seeking "common law indemnity." As the Court has found issues of fact as to the cause of the accident, the motion for summary judgment against the City is denied. Moreover, there is no basis at law for "common law indemnification" on the facts of this case and this part of the motion is denied as academic.
3
The Court now turns to plaintiff's motion for an order allowing plaintiff to amend it's complaint to assert a direct claim against the City. The City opposes on the grounds that the statute of limitations has expired for a direct claim against the City.
There is no dispute that a Notice of Claim was timely filed against the City. Plaintiff relies
on Duffy v Horton Memorial Hospital, 66 NY2d 473 [1985] where the Court of Appeals
considered the question of whether a plaintiff's direct claim against a third-party defendant
asserted in an amended complaint relates back to the date of service of the third-party complaint
for purposes of the statute of limitations where both complaints are based on the same accident or
transaction.
The Court of Appeals held as follows:
It is evident that when a third party has been served with the third-party complaint,
and all prior pleadings in the action as required by CPLR 1007, the third -party defendant has
actual notice of the plaintiff's potential claim at that time. The third-party defendant must gather
evidence and vigorously prepare a defense. There is no temporal repose. Consequently, an
amendment of the complaint may be permitted, in the Court's discretion, and a direct claim
asserted against the third-party defendant, which for the purpose of computing the Statute of
Limitations period, relates back to the date of service of the third-party
complaint.
The City opposes claiming that they would be prejudiced by the
amendment and arguing [*5]that there is no reason for plaintiff's
delay in moving to amend. They rely on Rose v Vellerti, 202 AD2d 566 [2d Dept 1994]
and Pelligrino v NYC Transit Authority, 177 AD2d 4 [2d Dept 1991], both cases hold
that delays of two and a half and three years respectively are inordinate and prejudicial to
defendant and therefore refused to allow the amendment of the complaint.
Here, plaintiff argues that the City delayed the taking of its deposition and that
when it finally produced a witness in July, 2007 that the witness, William Frank Thompson,
provided the needed facts to establish the possible liability of the City. Plaintiff than moved in
August, 2007 to add the City as a party.
4
The Court finds that in these circumstances where the City was on notice of the claim during the limitations period and where delays in the discovery process were not caused by plaintiff, the plaintiff will be permitted to amend its complaint to add the City as a direct defendant. The Court in its discretion also finds that the date for computing the limitation period will relate back to the date of filing of the third party complaint in compliance with CPLR§ 306 (c).
In order to avoid any possible prejudice to the City, the Court, sua sponte, vacates the
note of
issue. The parties are to appear for a compliance conference on Tuesday,
April 15, 2008. The date for plaintiff to file a note of issue is August 31, 2008.
Accordingly, defendants-third party plaintiffs Bayview and Jalen's motion for summary judgment against the plaintiff and the defendant City of New York is denied in its entirety, plaintiff's motion to amend it's complaint to add the City as a defendant is granted and plaintiff is to serve its amended complaint within fifteen (15) days of service of notice of entry of this order. The note of issue is vacated.
The foregoing constitutes the decision and Order of the Court.
_______________________
Robert J. Miller
J.S.C.
March 27, 2008
5
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.
