Fazzolari v Tzavelis

[*1] Fazzolari v Tzavelis 2010 NY Slip Op 51815(U) [29 Misc 3d 1213(A)] Decided on October 20, 2010 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2010
Supreme Court, Kings County

Mildred Fazzolari, Plaintiff,

against

Christos E. Tzavelis and PEGEEN T. MULIGAN, Defendants.



23086/08



ATTORNEYS FOR PLAINTIFF

PICCIANO & SCAHILL, P.C.

900 MERCHANTS CONCOURSE - SUITE 310

WESTBURY, NEW YORK 11590

516-294-5200

ATTORNEYS FOR DEFENDANTS

LAW OFFICE OF BRUCE A. LAWRENCE

15 METROTECH CENTER, 19TH FLOOR

BROOKLYN, NEW YORK 11201-3818

718-625-8940

Martin Schneier, J.

The primary issue presented in this personal injury action summary judgment motion is whether the defendants, two-family homeowners, are liable to a pedestrian who on June 5, 2008 was caused to fall by a broken protruding pointed wire fence and a raised brick which were surrounding a tree well on the sidewalk abutting the homeowners' property where the homeowners, in the sixteen years they owned the property, never repaired or maintained the wire fence or [*2]bricks which were present when they purchased the premises.

The defendants, homeowners Christos E. Tzavelis ("Tzavelis") and Pegeen T. Muligan move for summary judgment dismissing the complaint of the plaintiff-pedestrian, Mildred Fazzolari, ("Fazzolari") pursuant to CPLR § 3212.

Background

Defendants own the premises located at 924 84th Street, Brooklyn, NY. There is a tree well in front of defendants premises, located on the sidewalk, adjacent to the curb. The tree well contains a tree, a wire fence surrounding the tree, and grade level brickwork surrounding the fence.

On June 5, 2008, plaintiff Mildred Fazzolari fell in front of defendants premises. Fazzolari alleges that she was caused to fall as the result of a protruding wire from the fence which snagged her pants and a raised brick which contributed to her subsequent stumble and fall.

Fazzolari testified at her deposition as follows: (pages 54, 55, 62, 63 & 64). "Q. At the point where you had your accident, did you slip on something or did you trip on something, or did something hit you? How did your accident occur?A. I was walking, and my pants on my right side got caught on some fencing that was sticking out with a point, and as I got caught on it, the brick was raised. As my next step would be to move forward, I fell flat down with my hands straight to the floor....Q. Do you know what caused you to fall?A. Being caught by the fence which stopped me from taking the next step because I was caught. The next step, I moved forward. The brick was raised. It wasn't a smooth next step. It was like a trip.Q. Can you tell me as you sit here today what caused you to fall?A. Originally it was being caught on the fence.

... Q. Being caught on the fence caused you to fall?A. Yes. It prevented me from taking the next step because I fumbled on the brick."

Tzavelis testified at his deposition with respect to the piece of the fence that was depicted as sticking out in the same photographs submitted by all parties as follows: (page 16) [*3] "Q. I will rephrase it. From the moment you purchased the property up until June 5 of 2008, had you ever seen that fence sticking out the way it is, any portion of the fence?A. Prior to June 5, no.

... Q. Prior to June 5, of 2008 have you ever had to push that fence back to its straight position at any point?A. No. "

Defendant, Tzavelis, also testified that the bricks around the tree were present when he purchased the house 16 years ago and that he had performed no repairs, maintenance or modifications to these bricks prior to June 5, 2008. Referring to the wire fence, he testified that he did not place this small fence around the tree, he has no idea as to whom may have placed this fencing and that it was there when he purchased property and that during the 16 years he has owned the property prior to the accident, he made no repairs or maintenance to the fencing depicted in the photographs. Subsequent to the accident, defendants replaced their sidewalks and also had the fence and bricks replaced.

Discussion

The drastic remedy of summary judgment should be granted only where there are no triable issues of fact (Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009]).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact (CPLR Section 3212(b); Alverez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Megafu v. Tower Ins. Co. of New York, 73 AD3d 713 [2d Dept 2010]). However, once the moving party has satisfied this obligation, the burden then shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, supra) "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD2d 728, 729 [2d Dept 1995]).

With respect to the liability of abutting homeowners, the Court of Appeals has ruled that: [*4] "Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner (City of Rochester v Campbell, 123 NY 405; Roark v Hunting, 24 NY2d 470, 475). There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable. Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner (Clifford v Dam, 81 NY 52), where the abutting owner affirmatively caused the defect ( Colson v Wood Realty Co., 39 AD2d 511, 512), where the abutting landowner negligently constructed or repaired the sidewalk (id.) and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty (Willis v Parker, 225 NY 159)."

(Hausser v. Giunta, 88 NY2d 449, 453 [1996]). These rules also apply to

an abutting tree well (Vucetovic v. Epsom Downs, Inc., 10 NY3d 517 [2008]).

In the instant case, it is undisputed that the defendants did not derive a special benefit, did not affirmatively cause the defect, did not negligently (or otherwise) construct or repair the tree well and are not subject to a statute imposing liability. Furthermore, Tzavelis testified that, other than removing leaves by hand, he performed no maintenance on the tree well. This is sufficient to satisfy the defendants' initial prima facie burden of establishing their entitlement to summary judgment as a matter of law.

Plaintiff in opposition argues in the "Supplemental Affirmation In Opposition" that:

"2. Opposition issues of fact exist as to defendant's maintenance of the subject fence, and tree well which require resolution by the trier of fact.

3. Annexed hereto as Exhibit "A" are two (2) photographs depicting the defective condition which caused the plaintiff to fall. The portion of the fence that is protruding is what caught the plaintiff's pants which prevented her from taking the next step and falling.

6. The annexed photographs speak volumes regarding the defendant's liability in this matter because first, they show the defective protruding fence. Secondly, and more importantly, they create an issue of [*5]fact as to whether it is credible that the defendant never saw or did anything regarding the fence for the 16 years he owned the property before the plaintiff's accident. However, miraculously after plaintiff's accident he becomes concerned with the aesthetics of the fence and replaces it."

The fact that plaintiffs owned the property for 16 years does not support an inference that plaintiffs negligently maintained the tree well. The post-accident reconstruction of the tree well was anything but miraculous, as it occurred as part of defendants' reconstruction of the entire abutting sidewalk.

The plaintiff's assertions in her "Supplemental Affirmation in opposition "are premised solely on surmise and speculation, and are insufficient to defeat the defendants' motion for summary judgment

(Nelson v Cunningham Associates, L.P., 2010 WL3910397 [2d Dept 2010]; Pesantes v Komatsu Forklift USA, Inc., 58 AD3d 823 [2d Dept 2009]; Skouras v New York City Tr. Auth., 48 AD3d 547 [2d Dept. 2008].

Thus, plaintiff has completely failed to raise a triable issue of fact.

Conclusion

Based on the foregoing, the defendants' motion for summary judgment is dismissing the complaint is granted.

This constitutes the Decision and Order of the Court.

October 20, 2010

___________________

J.S.C.