De Stefano v Piccolomini

[*1] De Stefano v Piccolomini 2010 NY Slip Op 52091(U) [29 Misc 3d 1229(A)] Decided on December 1, 2010 Supreme Court, Richmond County Joseph J. Maltese, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2010
Supreme Court, Richmond County

Carmine De Stefano and Laura De Stefano, Plaintiffs

against

Joseph Piccolomini and Angelina C. Piccolomini, Defendants



104181/2008



Plaintiffs are represented by Thomas S. Kyle, Esq. Defendants are represented by the law firm of Kelly Rode & Kelly, LLP.

Robert M. Mandelbaum, J.

Plaintiffs' motion for partial summary judgment on liability and to strike the defendants' answer is denied. Defendants' cross motion for summary judgment dismissing the plaintiffs' complaint is denied.

Facts

This is an action based upon negligence in causing subsidence or sinking and erosion of a portion of the plaintiffs' real property. The plaintiffs and the defendants own adjoining lots that meet at the rear of each property, with the plaintiffs' lot at a higher elevation. In 2006, the defendants perceived that the concrete retaining wall at the rear of their lot had cracks and was bulging and decided to replace the wall. The defendants hired the Cambridge Construction Company (Cambridge) in August of 2006 to take down an existing solid concrete retaining wall and specified it be replaced with a retaining wall made of interlocking concrete blocks.

The initial work replacing the concrete retaining wall with interlocking blocks was begun in November 2006 and the work was completed on December 6, 2006. On December 20, 2006 the retaining wall collapsed. In July of 2007, Cambridge returned to erect a new block wall, which was never completed.

The defendants acknowledged that Cambridge's work on the retaining block wall was inadequate. The defendant, Angelina Piccolomini, spoke to Cambridge saying she was a little disturbed with Cambridge's work. Defendant Joseph Piccolomini specified that Cambridge failed to fill in the back of the wall with crushed stone and failed to put in stabilizing pins. The defendant states he attempted to speak with the workers but was foiled by lack of a mutual language. Following Cambridge's failures, a new wall was completed with a different contractor. A default judgment against Cambridge has been awarded to the defendants in the third party action. The plaintiffs state that defendant spoke with individuals from Cambridge at the work site, and that defendant has stated he was aware that construction was of deficient quality.

Prior to the work done by Cambridge, the plaintiffs' property had suffered no visible erosion. The plaintiffs had installed an in-ground swimming pool for which a permit was obtained on October 1, 1985. Following the failure of the retaining wall on December 20, 2006, obvious erosion could be seen on the hillside belonging to the plaintiffs. Violations were filed by the Department of Buildings against the defendants after the block wall failed.

Discussion

Strict liability does not apply

The plaintiff has argued there is an absolute, non-delegable common law duty to provide [*2]lateral support to adjacent land.[FN1] The New York Court of Appeals has previously held that a duty to provide lateral support was an obligation rooted in common law.[FN2] It is a venerable opinion that the right to lateral support "is a right incident to the ownership of the respective lands."[FN3] "Lateral support is an obligation which arises as an incident to the ownership of real property and its deprivation results in absolute liability, irrespective of negligence."[FN4] The Appellate Division, Second Department has held that providing lateral support to adjacent lands remained a positive duty, owed to an adjacent owner of property, in order to prevent damage and prevent erosion.[FN5] Liability accrues as soon as removal of lateral support causes damage, but not until then.[FN6]

The application of strict liability to land subsidence from removal of lateral support is in conflict with modern principles of law that apply to this field. Recently, the Appellate Division, First Department has made a persuasive interpretation of the duties pertaining to lateral support has been substantially explicated.[FN7] The Appellate Division ruled that findings of fact must be made by to determine causation and the amount of liability when lateral support is modified by only one party.[FN8] Violation of the New York City Administrative Code is not negligence per se

The plaintiff invokes standards of the New York City Administrative Code to assess liability upon the defendants. The plaintiffs argue that the defendants breach of codes is negligence per se. Although the sections of the Administrative Code have changed, the requirements of the sections have not. The Administrative Code currently defines a retaining wall as a "wall designed to prevent the lateral displacement of soil or other materials."[FN9] Retaining walls must be properly constructed to comply with specific criteria.[FN10] The maintenance of a retaining wall [*3]located upon a common lot line is the joint responsibility of the owners of both properties.[FN11] When the retaining wall is solely on one property, the property owner is responsible for maintenance.[FN12] Here, it is not explicit whether the retaining wall is on the common lot line. If the wall is not on the common lot line, there is no joint responsibility. When one property owner alone elects to remove a retaining wall necessary to support a grade differential between two properties, that owner must protect the adjacent property, must not impair safe use of the adjoining property, and is responsible for the cost of replacing the retaining wall.[FN13] Here, the defendants unilaterally elected to repair the wall.

Interval assessments of the condition of retaining walls are required.[FN14] Failure to examine a retaining wall and to file a report at intervals to the Department of Buildings is a class 2 violation of the Rules of the City of New York (Rules).[FN15] Unsafe conditions must be immediately reported.[FN16] Failure to report an unsafe condition to the Department of Buildings is a class 1 violation of the Rules.[FN17] These reports must be made to the Commissioner of Buildings of the City of New York or to a representative of the Commissioner.[FN18] Upon need, repairs must be immediately undertaken.[FN19] Following repair, the retaining wall must be inspected and correction of unsafe conditions must be certified.[FN20] Here, neither party fully complied with the Administrative Code.

When evaluating the effect a violation of a law or regulation may have upon a finding of liability one looks to see if the law regulates unlawful activity or lawful activity.[FN21] A statute may [*4]impose negligence per se in the event of a violation of the statute.[FN22] The Administrative Code of the City of New York may be modified by action of the City and is therefore a local enactment.[FN23] It has been long held that "[b]reach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is a logical connection between the proven neglect of statutory duty and the alleged negligence."[FN24] In particular, the New York Court of Appeals has firmly rejected applying the negligence per se standard to violations of the New York City Administration Code.[FN25] The violation of a local code must be regarded as only "some evidence of negligence which the jury could take into consideration with all other evidence on the subject."[FN26] In the State of New York, local administrative codes do not impose strict liability in torts. Therefore, that part of the plaintiffs' argument seeking to be granted summary judgment fails, because it incorrectly assumes that violations of the administrative code result in negligence, per se.

In this action, there is unopposed testimony that the defendants' original concrete wall was cracked and appeared to be at imminent risk of collapse. Certainly there was destabilization of the hillside after the replacement of the original concrete wall with a building block wall. Prior to that, other than filings and permits from the years 1985 and 1987, there is no evidence that inspections were made of the pertinent area until the obvious collapse occurred. However, it would be presumptive to suppose that unobvious erosion of the hillside was impossible, especially because the original concrete wall appeared to be under strain. It would further be presumptive to conclude as a matter of law that collapse of the hillside would not have occurred but for the replacement of the old wall with the new. Therefore, a trier of fact should determine whether the defendants' actions were the proximate cause of the hillside collapse, or whether the hillside would have collapsed without the defendants' actions.

Hiring a construction company does not immunize property owners from liability

The plaintiffs assert that the defendants were responsible for the work of their contractor, Cambridge. The defendants state that Cambridge was an independent contractor that immunized the defendant from liability. The plaintiffs particularize their position by asserting that Cambridge was not a true independent contractor. The plaintiffs also specify that the inherent risk of collapse of a wall is an exception to the typical immunity resulting from hiring an independent contractor. [*5]

Ordinarily, the interposition of an independent contractor between a plaintiff and a defendant may deflect liability from the defendant to the independent contractor.[FN27] The status of an employment relationship, as employee as opposed to independent contractor, is generally an issue of fact.[FN28] In 1915, the Appellate Division, Third Department stated that the evaluation to determine whether an agent is an independent contractor requires an in-depth review.[FN29] The distinction between an independent contractor and an employee is partly made on the basis of the level of control exercised by the principal.[FN30] Control over the means of construction, in addition to controlling the method, imposes vicarious liability on the employer of an independent contractor.[FN31] When improper plans were developed for constructing retaining walls, the interposition of an independent contractor did not defeat vicarious liability.[FN32] Here, the defendants directed the means of building the replacement retaining wall by selecting the use of interlocking concrete blocks. There is also an issue of whether the defendants chose a less expensive method of not using sufficient crushed rock back-fill and no supporting rods to sure-up the retaining wall that failed. Therefore, a degree of control over Cambridge may be imputed to the defendants. Furthermore, by directing the specific materials to be used, there was no assurance that the materials complied with building standards for constructing this type of retaining wall.

Moreover, the defendants had the opportunity to supervise and observe the work on the retaining wall since the construction was on or near the boundary line between the defendants' and the plaintiffs' homes. When the replacement block wall failed the first time, defendants had the opportunity to address the collapse of the wall with Cambridge when they required Cambridge to repair the earlier block wall. The defendant admits he attempted to speak with the individuals performing the construction and recognized the absence of stone fill or reinforcing rods in Cambridge's construction of the retaining wall. The presence of a supervisor may impose vicarious liability even when it is claimed an independent contractor performed the work.[FN33] The New York Court of Appeals stated that declaring a principal to be not liable for the acts of an [*6]independent contractor is "a mere preamble" to an extensive catalogue of exceptions to that general rule.[FN34] Defendant had opportunity to supervise construction, to attempt discussing ongoing construction with the workers, and specified and directed that a specific type of concrete block be used to build the wall, which required certain types of back-fill and supporting rods that apparently were not present. Whether that was a decision made by the defendants or the contractor is an issue of fact to be determined.

The preceding factors may be material in deciding whether Cambridge was an independent contractor.[FN35] Even when the State retained inspection privileges over the work of its independent contractor, the State was not liable for damage to a retaining wall because the right to inspect did not exercise actual control over the independent contractor's means of work.[FN36] Here, the defendants' level of control over Cambridge, as a contractor should be determined by a trier of fact.

The presence of an inherent risk to an activity is dependent upon the facts presented regarding the risks of that activity.[FN37] The presence of inherent danger may impose a non-delegable duty upon a principal.[FN38] A retaining wall's lack of integrity may be so important a risk that it represents an explicit exception to immunity from liability provided by the use of an independent contractor. Inherently dangerous work on a retaining wall places the burden of vicarious liability on the principal, even when the principal's agent is an independent contractor.[FN39] Here, the inherent danger of a collapse was clearly evident because the cracked, bulging concrete retaining wall was perceived by the defendants to be in imminent danger of collapse. The defendants have not demonstrated the absence of inherent risk, nor have the plaintiffs shown unequivocal inherent risk.

The defendants have not shown they employed an "independent contractor." Even if Cambridge might have been an independent contractor, the defendants have not demonstrated the absence of inherent risk in rebuilding the wall. Thus, in requesting summary judgment based upon Cambridge as an independent contractor, defendants have not met their burden on the cross motion and the motion must be denied. [*7]

Procedural History

The plaintiffs have argued that the defendants' cross-motion is untimely and should not be considered by this court. A summons and complaint was filed on October 9, 2008, and was served on the defendants on October 14, 2008. A default judgment in favor of the defendants against Cambridge was granted on October 13, 2009. The note of issue was filed on May 12, 2010. The plaintiffs' motion for partial summary judgment and to strike the defendants' answer was dated July 1, 2010, with a return date of July 30, 2010. The local court date after which no motion for summary judgment may be made is sixty days after filing the note of issue. Therefore, the last day for submission to file a motion for summary judgment was on July 11, 2010. The defendants affirmation in opposition to the plaintiffs motion for summary judgment and a cross motion for summary judgment against the plaintiffs were dated July 27, 2010.

The defendants' cross motion for summary judgment is timely

"[S]ummary judgment is a drastic remedy and should not be granted when there is any doubt as the to the existence of a triable issue."[FN40] Plaintiffs have moved for partial summary judgment and defendants have cross moved for summary judgment. A motion for summary judgment requires that "the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."[FN41] Notwithstanding facts presented by any party, "the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."[FN42] In evaluating a motion for summary judgment, all evidence must be examined in the light most favorable to the non-moving party;[FN43] and the non-movant must be given the benefit of every favorable inference.[FN44]

The proponent of a motion for summary judgment has the burden of tendering sufficient evidence to show the absence of competing material issues of fact.[FN45] Once a moving party has made a showing of sufficient evidence, the burden shifts to the opposing party to put forth [*8]evidence in admissible form to establish a triable issue for the fact finder.[FN46] The opposing party must then submit proof in opposing papers.[FN47] Summary judgment should be denied even when the existence of a factual issue is arguable.[FN48]

Although the local court rule for filing summary judgment motions in this judicial district is sixty days from the filing of the note of issue, the defendants' cross motion for summary judgment is not untimely. The maximum time limit for filing motions for summary judgment is ordinarily one-hundred and twenty days, but a trial court may set any time limit between thirty days and a maximum of 120 days.[FN49] Exceptions to a time limit may be made for good cause.[FN50] However, an exception should not be made merely because the underlying action is meritorious.[FN51] As one example of an exception, when a local court rule was uncertain, the maximum time limit of one-hundred and twenty days was applied rather than any shorter time limit.[FN52]

However, the Appellate Division, Second Department has forged another exception. Cross motions for summary judgment addressing "nearly identical" issues to an earlier, timely made motion for summary judgment "may" be reviewed even if the cross motion is untimely.[FN53] The origin of this principle is ultimately based upon Acosta v. 888 The Ave. Assoc., an Appellate Division, First Department decision where a filing for summary judgment was delayed as a result of pretrial conferences regarding concessions.[FN54] Currently, in the Appellate Division, Second Department a late motion for summary judgment is permitted when it relates back to a timely motion for summary judgment.[FN55] The reason for the rule is said to be that the court is empowered to search the record and award judgment to an opposing party when a moving party moves for [*9]summary judgment.[FN56] The decision to consider the late cross motion for summary judgment is discretionary.[FN57] Here, the cross motion for summary judgment relates back to a timely motion for summary judgment. Therefore, this court has considered the arguments presented in both the motion and the cross motion.

Conclusion

The issue of whether Cambridge is an independent contractor is present in both the plaintiff's motion and the defendants' cross motion. Although otherwise untimely, the defendants' cross motion for summary judgment falls within an exception. If Cambridge were an independent contractor, the defendants would not be liable for the actions of Cambridge. Cambridge would be an independent contractor if the defendants did not direct Cambridge's activities. It is not known whether there was joint responsibility for maintenance of the wall. It is arguable whether the failure of the block retaining wall was solely due to improper installation of the building materials, or to the defendants' choice of construction materials. Whether the defendants' choice of building materials was in compliance with the Administrative Code is a factual issue, and may impose some evidence of negligence. It is an issue of fact whether the defendant supervised construction and chose the building materials to determine Cambridge's status as an independent contractor. Furthermore, inherent and imminent danger of collapse may have been present even without the construction of the new retaining wall. Hence, presence of factual issues mean that neither the plaintiffs nor the defendants have met their respective burdens for summary judgment.

Accordingly, it is hereby:

ORDERED, that plaintiffs' motion for partial summary judgment against the defendants is denied in the entirety; and it is further

ORDERED, that the defendants' cross-motion for summary judgment against the plaintiffs is denied in the entirety; and it is further

ORDERED, that the parties shall return to DCM Part 3 for a pretrial conference on Monday,

December 20, 2010, at 9:30 AM.

ENTER,

DATED: December 1, 2010

Joseph J. Maltese

Justice of the Supreme Court Footnotes

Footnote 1:Bergen v Morton Amusement Co., Inc., 178 AD 400, 407 [4th Dept 1917].

Footnote 2:Kim v City of New York, 90 NY2d 1, 9 [1997].

Footnote 3:Village of Haverstraw v Eckerson, 192 NY 54, 59 [1908]; and Bergen v Morton Amusement Co., 178 AD 400, 407 [4th Dept 1917].

Footnote 4:Levine v New York, 249 AD 625 [2nd Dept 1936].

Footnote 5:Suffolk County Water Auth. v J. D. Posillico, 191 AD2d 422 [2nd Dept 1993].

Footnote 6:Bergen v Morton Amusement Co., 178 AD at 407.

Footnote 7:Yenem Corp. v 281 Broadway Holdings, 76 AD3d 225, 226-230 [1st Dept 2010].

Footnote 8:Id at 231; relying upon Coronet Properties Co. v L/M Second Ave., Inc., 166 AD2d 242, 243 [1st Dept 1990].

Footnote 9:New York City Administrative Code (Admin Code) § 27-232.

Footnote 10:Admin Code § 27-670 (a); and Admin Code Section BC 1806.1 and 1806.2.

Footnote 11:Admin Code § 28-305.1.1.

Footnote 12:Admin Code § 28-305.1.2

Footnote 13:Admin Code § 28-305.1.1.

Footnote 14:Admin Code § 28-305.4.3.

Footnote 15:1 Rules of the City of New York (RCNY) § 102-01 (28-305.4.4).

Footnote 16:Admin Code § 28-305.4.6.

Footnote 17:1 RCNY § 102-01 (28-305.4.6).

Footnote 18:Admin Code § 27-232.

Footnote 19:Admin Code § 28-305.4.7.

Footnote 20:Admin Code § 28-305.4.7.3.

Footnote 21:Barker v Kallash, 63 NY2d 19, 24 [1984].

Footnote 22:Bauer v Female Academy of the Sacred Heart, 97 NY2d 445, 453 [2002].

Footnote 23:Elliott v City of New York, 95 NY2d 730, 736 [2001].

Footnote 24: Corbett v Scott, 243 NY 66, 68-69 [1926]; quoting Brown v Styne, 242 NY 176, 182 [1926].

Footnote 25:Elliott v City of New York, 95 NY2d 730, 734-735 [2001].

Footnote 26: Major v Waverly & Ogden, Inc., 7 NY2d 332, 336 [1960]; adopted by Elliott v City of New York, 95 NY2d at 733.

Footnote 27:Chainani by Chainani v Board of Ed., 87 NY2d 370, 380-381 [1995]; Gilbert Properties, Inc. v New York, 33 AD2d 175, 178 [1st Dept, 1969].

Footnote 28:In re McMeekin, 89 NY2d 1045, 1046 [1997].

Footnote 29:In re Rheinwald, 168 AD 425, 435-438 [3d Dept 1915].

Footnote 30:Commissioners of State Ins. Fund v Lindenhurst Green & White Corp.,101 AD2d 730, 731 [1st Dept 1984].

Footnote 31:Matter of O'Brien v Spitzer, 7 NY3d 239, 242 [2006].

Footnote 32:Miller v State, 199 Misc. 237, 241 [Court of Claims 1950]; and Wolcott v State, 199 Misc. 229, 234 [Court of Claims 1950].

Footnote 33:Hanley v Central Sav. Bank, 255 AD 542, 543 [1 st Dept 1938].

Footnote 34:Brothers v New York State Elec. & Gas Corp., 11 NY3d 251, 258 [2008]; borrowing from Pacific Fire Ins. Co. v Kenny Boiler & Mfg. Co., 201 Minn. 500, 503 [1937].

Footnote 35:Lemont v Schindelar, 181 NYS 765, 766 [1st Dept 1920].

Footnote 36:Ramos v State, 34 AD2d 1056 [3d Dept 1970].

Footnote 37:Turcotte v Fell, 68 NY2d 432, 440 [1986].

Footnote 38:Rosenberg v Equitable Life Assurance Soc., 79 NY2d 663, 668 [1992].

Footnote 39:Gilbert Properties, Inc. v New York, 33 AD2d at 182.

Footnote 40:Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978], quoting Moskowitz v. Garlock, 23 AD2d 943, 944 [1965]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]; and American Home Assurance Co. v. Amerford International Corp., 200 AD2d 472 [1st Dept 1994].

Footnote 41:CPLR § 3212 (b).

Footnote 42:Id.

Footnote 43:Nicklas v. Tedlen Realty Corp., 305 AD2d 385, 386 [2d Dept 2003].

Footnote 44:Gray v. NY City Transit Auth., 12 AD3d 638, 639 [2d Dept 2004]; Perez v. Exel Logistics, Inc., 278 AD2d 213, 214 [2d Dept 2000]

Footnote 45:Wasserman v. Carella, 307 AD2d 225, 226 [1st Dept 2003].

Footnote 46:Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].

Footnote 47:Fileccia v. Massapequa, 63 NY2d 639 [1984].

Footnote 48:Sillman v. Twentieth Century-Fox Film Corp., 2 NY 395, 404 [1957]; and American Home Assurance Co. v. Amerford International Corp. 200 AD2d at 472.

Footnote 49:CPLR § 3212 (a).

Footnote 50:Id.

Footnote 51:Brill v City of New York, 2 NY3d 648, 652 [2004].

Footnote 52:Crawford v Liz Claiborne, Inc., 11 NY3d 810, 813 [2008].

Footnote 53:Lennard v Khan, 69 AD3d 812, 814 [2d Dept 2010]; and Grande v Peteroy, 39 AD3d 590, 591-592 [2d Dept 2007].

Footnote 54:Acosta v 888 7th Ave. Assoc.,248 AD2d 284 [1st Department 1998].

Footnote 55:Miranda v Devlin, 260 AD2d 451, 452 [2nd Dept 1999].

Footnote 56:CPLR § 3212 (b); and Lennard v Khan, 69 AD3d at 814.

Footnote 57:Lennard v Khan, 69 AD3d at 814.