Gutman v Todt Hill Plaza, LLC

[*1] Gutman v Todt Hill Plaza, LLC 2009 NY Slip Op 52399(U) [25 Misc 3d 1233(A)] Decided on November 25, 2009 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2009
Supreme Court, Richmond County

Faina Gutman and Dmitry Gutman, Plaintiffs,

against

Todt Hill Plaza, LLC and Cucina Fresca, Defendants.



104349/07

Philip G. Minardo, J.

Upon the foregoing papers, the motion and cross motion for summary judgment are granted.

Defendants Steel Street Enterprises, LLC, d/b/a Cucina Fresca, i/s/h/a Cucina Fresca (hereinafter "Fresca"), and Todt Hill Plaza, L.L.C. (hereinafter "Plaza"), move and cross-move, respectively, for summary judgment dismissing the complaint and any cross claims, against them. Plaintiffs Faina and Dmitry Gutman oppose the applications.

This action arises from an accident which is alleged to have occurred on April 9, 2007, in which Faina Gutman suffered personal injuries as a result of a trip and fall in a parking lot owned by defendant Plaza in front of premises leased by defendant Fresca. The gravamen of plaintiff's complaint is that the defendants were negligent in the maintenance, management, operation and control of the parking lot in placing or allowing the arrangement of parking bumpers, a gazebo like structure, flower pots, tables and chairs in the parking area. Dmitry Gutman has asserted a derivative cause of action for loss of service. Plaintiff commenced this action by the filing and service of a summons with complaint on or about November 6, 2007. Issue was joined by the service of an answer with cross claims by Fresca on or about February 15, 2008, and by Plaza on or about February 22, 2008. A note of issue was filed on or about March 9, 2009.

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 upon 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). 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 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).

In support of its application, defendant Fresca has submitted an attorney's affirmation, copies of the pleadings, photos of the site where the accident occurred, and copies of the deposition testimony by the following persons, Farina Gutman, Dmitry Gutman, Salvatore Scandia (a Trustee of Plaza) and Jill Marie Uicker-Martro and Charles Marto (managing [*2]members of Fresca). Based upon these submissions, Fresca contends that plaintiff Farina Gutman (hereafter, plaintiff), by her own admission, tripped over an open and obvious parking bumper in the parking lot. Fresca further contends that the Gazebo and items contained therein, including the flower pots, tables and chairs were not a substantial contributing factor in the happening of plaintiff's accident, nor was there any notice, either actual or constructive, that said items created a dangerous condition. Thus, Fresca contends that no triable issue of fact exists upon which liability may be predicated against it, and the complaint and any cross claims must be dismissed.

In support of its cross motion for summary judgment, defendant Plaza has submitted an attorney's affirmation and otherwise relies on the exhibits attached to Fresca's motion. Based upon these submissions, Plaza contends that there is no proof that the concrete bumper over which Mrs. Gutman tripped and fell was defective, but rather an open and obvious condition that plaintiff should have and could have easily avoided by the natural use of her senses. Plaza further contends that there is no proof that it had notice, actual or constructive, that a dangerous condition existed. Thus, defendant Plaza also contends that no triable issue of fact exist upon which liability may be predicated against it, and that the complaint and any cross claims must be dismissed.

In opposition, to both the motion and cross motion, plaintiffs have submitted an attorney's affirmation, an affidavit by plaintiff herself, photographic exhibits of the site where the accident occurred and an expert affidavit. Based on these submissions, plaintiffs contend that triable issues of fact exist which preclude the granting of either defendants motion.

In her affidavit, Mrs. Gutman states that "the flower pots were located in front of the parking curbs, blocking [her] vision of the parking curbs", and that "as [she] attempted to walk around one of the flower pots, [her] foot came into contact with the blocked parking bumper and [she] tripped". Additional reliance is placed upon an affidavit by Nicholas Bellizzi, a professional engineer. Based upon a review of the pleadings, bill of particulars, photographs of the subject accident location [FN1], exhibits, motion papers and the deposition testimony annexed thereto, he opines that "the planters blocked and impeded her [plaintiff's] vision of the wheel stops", and that "by extending the gazebo seating area out over the wheel stops, the restaurant incorporated the wheel stops into the restaurant...[which] caused and created a known and well recognized tripping hazard in a foreseeable pedestrian path"[FN2]. Mr. Bellizzi further opined that such an arrangement violated the New York City Building Code, the rules of its Department of Transportation and those of the American Society for Testing Materials. As a result, plaintiff's expert opined that the location of parking curb within the perimeter of the gazebo was a substantial defect and a significant cause of the accident, thereby creating a triable issue of fact.

In reply, both defendants contend that the Court should not consider the expert affidavit or the allegations contained therein because plaintiffs never disclosed this expert prior to filing their note of issue, despite defendants' discovery requests, and failed to specify the standards contained therein. In addition, it is alleged that plaintiff departed from her original deposition testimony in her affidavit in opposition dated September 10, 2009. Accordingly, it is claimed that said affidavit was authorized solely to raise feigned factual issues and should not be considered. [*3]

In the absence of any proffer by plaintiffs of a valid excuse for the delay in identifying their expert until after the note of issue and certificate of readiness had been filed, his affidavit may not be considered by the Court in deciding their motion (see Wartski v. C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917; Construction by Singletree, Inc. v. Lowe, 55 AD3d 861, 863). Moreover, even if admissible into evidence the affidavit of plaintiff's expert is replete with conclusory allegations based upon violations not alleged in plaintiffs' pleadings or bill of particulars which have not been supplemented or amended to support such allegations. The speculative opinions of an expert based upon an examination of the premises more than two-years post-accident and photographs which concededly are not a fair and accurate representations of the premises as they existed on the date the accident occurred are without evidentiary value (see generally, Pirie v. Krasinski, 18 AD3d 848, 850; Fitzgerald v. Sears, Roebuck & Co., 17 AD3d 522). Next, the Court will consider whether the parking bumper (wheel stop) constituted a dangerous condition.

It is well established that a parking bumper is not inherently dangerous, and presents no reasonable risk of harm when plainly visible (see Albano v. Pete Milano's Discount Wines & Liquors, 43 AD3d 966; Cardia v. Willchester Holdings LLC, 35 AD3d 336). In addition, it is beyond cavil that no duty exists upon an owner or occupier of premises to protect or warn against an open and obvious condition which is not inherently dangerous (see Gagliardi v. Walmart Stores, Inc., 52 AD3d 777; Sclafani v. Washington Mut., 36 AD3d 682).

Here, the papers before this Court clearly demonstrate that plaintiff simply tripped over an open and obvious condition in the form of a parking bumper, that was neither inherently dangerous as a matter of law, nor unrecognizable by the reasonable use of her senses (see Rivas-Chirino v. Wildlife Conservation Socy., 64 AD3d 556, 557-558). It is also clear that the bumper did not present any undue risk of harm, since it was not obstructed from her vision as she saw the gazebo, tables, chairs and flower pots and had frequented that location many times before (Faina Gutman E/B/T pp 16-68, 115, 118-128 and 130-135). In direct contrast, her affidavit to the effect that she did not see the parking curb bears all the indicia of is a feigned factual issue designed to thwart summary judgment (see American Express Centurion Bank v. Williams, 24 AD3d 577, 578; Darrow v. American Natl. Red Cross, 295 AD2d 393, 394).

Based upon the foregoing, this Court concludes that both defendants have established prima facie their entitlement to judgment as a matter of law (see ZimKind v. Costco Wholesale Corp., 12 AD3d 593, 594), and plaintiffs have failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320; Giambruno v. Wilbur F. Breslin Dev. Corp., 56 AD3d 520, 521).

Accordingly, it is

ORDERED that both the motion and cross motion for summary judgment are granted; and it is further

ORDERED that the complaint is dismissed; and it is further

ORDERED that the cross claims as withdrawn as academic; and it is further

ORDERED that the Clerk enter judgment accordingly.

ENTER,

s/ Philip G. Minardo

J.S.C.

DATED: November 25, 2009 Footnotes

Footnote 1:It is uncontroverted that the photographs relied upon by the expert and attached as exhibits are not a fair and accurate representation of the location where the accident occurred, as plaintiff states that the flower pots werre in a different location, i.e., away from the restaurant and on the other side of the parking wheel curbs as marked on the photograph introduced at her deposition with the Nos. 1 and 2 (plaintiff's exhibit No. 1).

Footnote 2:The Court notes that the expert acknowledges that when he inspected the premises on July 3, 2009, it had changed since the date of the accident in that the flower pots were not located where plaintiff said they were on the date of the accident and the parking curb was located outside of the gazebo. It does not appear that any attempt was made to relocate the flower pots to the location specified by plaintiff.