Acca v Clemons Props., Inc.

[*1] Acca v Clemons Props., Inc. 2010 NY Slip Op 52304(U) [30 Misc 3d 1205(A)] Decided on December 27, 2010 Supreme Court, Richmond County Dollard, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2010
Supreme Court, Richmond County

Lisa M. Acca, Plaintiff,

against

Clemons Properties, Inc., Defendant.



102925/08



James Giannakouros

Attorney for Plaintiff

120 Bay Ridge Avenue

Brooklyn, NY 11220

Joseph V. Figliolo, esq

"0f Counsel"

Law offices of Charles J. Siegel

Attorney for Defendant

40 Wall Street, 7th Floor

New York, NY 10005

Kim Dollard, J.

Defendant, Clemons Properties, Inc. ("Clemons") moves for an Order pursuant to CPLR 3212 granting summary judgment in its favor, dismissing plaintiff's complaint. Plaintiff opposes defendant's motion and cross-moves for summary judgment in her favor.

In the underlying action, plaintiff, Lisa Acca ("Acca") sues to recover damages for injuries allegedly sustained as a result of an accident that occurred on April 3, 2007 at defendant's premises, 708 Third Avenue, New York, New York. On that date, at approximately 6:00 P.M., plaintiff arrived at the location to drop off a cell phone earpiece to a friend who worked in the building. She successfully dropped off the earpiece, spent about five minutes with her friend in his office and returned to the lobby of the building with the intent to exit the building onto Third [*2]Avenue, where her vehicle was parked. While attempting to exit the building, plaintiff was caused to be injured when she came into contact with what she stated in her deposition felt like "a brick wall." As a result, she suffered injuries to her head, face and nose.

The thrust of defendant's motion is that Acca has failed to set forth a prima facie case of negligence, and has advanced, for the first time in her opposition, a new theory of

liability, and Clemons is therefore entitled to summary judgment. Plaintiff refutes defendant's claim in that plaintiff claims that the defendant, in its motion, relies upon an incorrect and inaccurate account as to how the accident occurred.

Defendant's motion is based upon reliance on facts that indicate that plaintiff was injured as a result of being struck by a door as she exited the building. Plaintiff, in her opposition, states that she was injured as the result of walking into a fixed transparent glass panel situated between the exits to the building. At the subject building, one may enter or exit through a center revolving glass door, or through a swinging door located to the right or left of the revolving door. Between the revolving glass door and each of the side swinging doors is a glass panel. Plaintiff now claims that she walked into the glass panel to the right of the revolving door.

Plaintiff further alleges, relying upon an expert affidavit, attached to her papers, by Nicholas Bellizzi, a Professional Engineer, that the defendant was negligent, inter alia, in failing to mark the glass panel, creating an illusion of space, and violating various building code and statutory mandates.

It is well settled that in order to hold the defendant liable for negligence in a premises case, the plaintiff must prove that the that the defendant created the dangerous condition that caused the accident, or that the defendant had actual or constructive notice of the dangerous condition which it failed to remedy within a reasonable amount of time. (Gordon v. American Museum of Natural History, 67 NY2d 836). "To constitute constructive notice of a dangerous condition, the defect or condition must be visible and apparent, and ... must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it [internal quotation marks and citation omitted]." (Gibbs v. Port Authority of New York, 17 AD3d 252, 255).

"Where the defendant neither created the condition nor had actual notice, a defendant seeking to dismiss the complaint must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed." (Giuffrida v. Metro North Commuter Railroad Co., 279 AD2d 403, 404; Colt v. Great Atlantic & Pacific Tea Company, Inc., 209 AD2d 294; Simuel v. 165 East 72nd Apartment Corp., 29 Misc 3d 1206(A)).

There is no evidence that a dangerous condition existed at any time prior to April 3, 2007, or that defendant had any notice of any dangerous defective condition. The EBT testimony of Jay Lowenstein, on behalf of defendant Clemons, reveals that no complaints were made about the entrance doors prior to April 3, 2007. Additionally, there were no accidents reported that occurred at that location of the building prior to April 3, 2007. [*3]

In support of her cross-motion for summary judgment and in opposition to defendant's motion plaintiff relies on by Nicholas Belizzi's affidavit. Mr Belizzi refers to section 27-651 of the New York City Building Code, "Panels Subject to Human Impact." He opines that if the subject glass panel did not fall within one of the exceptions, it would have been required to have a push-bar or protective grille. He readily admits that if the glass panel at issue was made of tempered glass, then it would not be subject to the

Building Code. In its reply, defendant definitively establishes that the glass panel was in

fact made of tempered glass. Therefore, the building code is inapplicable herein.

Mr. Belizzi further cites the mandates of Labor Law 241-b and 12NYCRR Part 47. These authorities are also inapplicable herein since they are New York State regulations and pertain to buildings in NYS and NYC that are NYS operated. Plaintiff's expert also opines that notwithstanding any codified rules or regulations, the clear glass panel where plaintiff alleges to have been injured, is deceptive and misleading in that it could be easily mistaken as an open door or doorway.

In addition to arguing that the court should reject plaintiff's expert's affidavit as being legally insufficient, defendant also argues that the affidavit should be rejected by the court as untimely. The affidavit was first served on defendant along with plaintiff's cross-motion despite that fact that a report was generated by Mr. Belizzi in June 2008, after his inspection of the building. Defendant claims that since this affidavit was submitted post Note of Issue, it is untimely pursuant to CPLR 3101(d). Defendant relies on several Second Department decisions wherein the Appellate Division has ruled that it is proper for the Court to reject an expert affidavit not disclosed until the filing of a summary judgment motion, after the Note of Issue and Certificate of Readiness were filed (see Construction by Singletree, Inc. v. Lowe, 55 AD3d 861; Yax v. Development Team, Inc., 67 AD3d 1003; Wartski v. C.W. Post Campus of L.I. Univ., 63 AD3d 3916). Based upon these cited cases, it would appear that this court should preclude plaintiff's expert affidavit from consideration, however, the court follows the reasoning set forth in Browne v. Smith, 65 AD3d 996, wherein the Appellate Division Second Department upheld the Supreme Court's consideration of an expert's opinion submitted in opposition to a motion for summary judgment, post Note. The court reasoned: CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,' unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993]). Here, the Supreme Court did not improvidently exercise its discretion in considering the expert materials submitted by the plaintiffs in opposition to the defendants' summary judgment motion since there was no evidence that the failure to disclose was intentional or willful, [*4]and there was no showing of prejudice to the defendants (see Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d at 710; Simpson v Tenore & Guglielmo, 287 AD2d 613 [2001]). Moreover, the defendants had sufficient time to respond to the plaintiffs' submissions. Browne v. Smith, 65 AD3d 996, 997).

Similarly, there is no evidence in the instant matter that plaintiff's failure to disclose Mr. Belizzi's expert materials was intentional or willful, and the court is satisfied that defendant was not prejudiced. Further, defendant had ample time to respond.

In support of the motion, and in its reply, defendant submits the expert affidavit of David Guido, a Professional Engineer. Mr. Guido opines, inter alia, that the subject glass

panel was properly configured and readily distinguishable. Mr. Guido concludes that "Had plaintiff exercised reasonable care for her own safety by making normal and expected observations ... , the alleged accident of April 3, 2007 would not have occurred." Both experts state that at the time they inspected the premises, the configuration of the entranceway where the accident occurred appeared the same as it did on the date of the accident. Photographs of the location are attached to the parties' moving papers.

The court recognizes, "While under some circumstances a glass door exit may be constructed or maintained in a manner so as to constitute negligence (see Shannon v. Broadway & 41st St. Corp., 272 App. Div. 1029, affd. 298 NY 589), in the instant case there was a complete absence of proof of negligence on the part of defendant. There was no evidence offered to show faulty construction or improper maintenance (Luciano v. Mapart, Inc., 14 A D 2d 843, mot. for lv. to app. den. 11 N Y 2d 642; see also Gardino v. Barney Co., 17 A D 2d 895; cf. Lockwood v. Proctor, 21 A D 2d 686). Accordingly, it was proper to dismiss the complaint, especially in light of the rule that a plaintiff is bound to see what by the proper use of his senses he might have seen (Weigand v. United Traction Co., 221 NY 39, 42; see also Cooper v. Scharf, 11 A D 2d 101;Vella v. Seacoast Towers"A'', Inc. 32 AD2d 813, 814)." The same reasoning is applicable herein.

To reiterate, defendant's motion is based upon reliance on facts that indicate that plaintiff was injured as a result of being struck by a door as she exited the building. Plaintiff, in her opposition, states that she was injured as the result of walking into a fixed transparent glass panel situated between the exits to the building. At all times prior to the opposition submitted to defendant's motion, plaintiff indicated that the accident occurred as she exited the building through the doorway. She further stated that she had put her hand up as she exited. Plaintiff fails to account for the positioning of her hand in relation to the glass panel. The Bill of Particulars specifically refers to the door, as does Acca's EBT testimony.

CPLR § 3212(b) requires that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, 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."

It is well-settled that the moving party has the prima face burden of establishing its cause [*5]of action or defense by offering proof in admissible form, such proof being sufficient to warrant a judgment as a matter of law in its favor. (CPLR 3212[b]; Ciccone v. Bedford Cent. School Dist., 21 AD3d 437; Zuckerman v. City of New York, 49 NY2d 557; Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065).

Defendant herein argues, " [A] plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability . . . for the first time in opposition to the motion' " (Marchetti v East Rochester Cent. School Dist., 26 AD3d 881; see McGrath v Bruce Bldrs., Inc., 38 AD3d 1278, 1279; Mathew v. Mishra 41 AD3d 1230,

1231).

Defendant's argument for the granting of summary judgment in its favor is

analogous to the arguments advanced in Alers v. Verizon New York, Inc., 28 Misc 3d 1222(A), wherein the court stated, "Finally, it should be noted that Mr. Alers' affidavit in opposition to Time Warner's summary judgment motion is materially at variance with his deposition testimony to the extent that he now claims to never have been instructed "by anyone" on the use of a bucket truck for running a cable wire across a street, and never been provided with the use of a bucket truck for that express purpose. Accordingly, these statements in his affidavit must be disregarded as tailored to avoid the consequences of plaintiff's earlier deposition testimony (see Morales v Morales, 55 AD3d 306, 307; Israel v Fairharbor Owners, Inc., 20 AD3d 392, 392).

Our courts have consistently rejected the use of affidavits to create feigned issues of fact in order to defeat summary judgment (see Gomez v Rodriguez, 31 AD3d 497, 498). Plaintiff's affidavit submitted in opposition to the instant motion contradicts her prior sworn testimony, which creates only a feigned issue of fact which is insufficient to defeat the instant summary judgment motion.(see Garcia-Martinez v. City of New York, 68 AD3d 428; Telfeyan v. City of New York, 40 AD3d 372; Harty v. Lenci, 294 AD2d 296; Phillips v. Bronx Lebanon Hospital, 268 AD2d 318; Simuel v. 165 East 72nd Apartment Corp., 29 Misc 3d 1206(A)).

The court concludes that not only has plaintiff failed to make out a prima facie case of negligence, plaintiff has advanced, for the first time, in her opposition to defendant's motion, a new theory of liablity.

Accordingly, defendant's motion for summary judgment is granted. Plaintiff's cross-motion is denied. Plaintiff's complaint is dismissed.

The Clerk is directed to remove this case from the TP 18 trial calendar. This constitutes the decision and order of the Court.

Dated: December 27, 2010

Kim Dollard [*6]

Acting Justice, Supreme Court