Gahn v Community Props.

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Gahn v Community Props. 2011 NY Slip Op 32704(U) October 17, 2011 Sup Ct, Nassau County Docket Number: 26746/09 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: RON. DENISE L. SHER Acting Supreme Cour Justice CHRISTOPHER GAHN and DOREEN GARN Plaintiffs TRIAL/IAS PART 32 NASSAU COUNTY Index No. : 26746/09 Motion Seq. No. : 02 Motion Date: 07/28/11 - against - COMMUNITY PROPERTIES , DONALD A. PIUS ALIYIA McREYNOLDS , by her father and natural guardian, MICHAEL McREYNOLDS , and MICHAEL McREYNOLDS , Individually, Defendants. The followine vapers have been read on this motion: Papers Numbered Notice of Motion Affrmation Affidavit and Exhibits Affirmation in O osition and Exhibits Reply Affirmation Upon the foregoing papers , it is ordered that the motion is decided as follows: ) move Defendants Community Properties (" Properties ) and Donald A. Pius (" Pius pursuant to CPLR 9 3212 , for an order granting them summar judgment and dismissing plaintiffs ' Verified Complaint in its entirety, as well as any cross- claims asserted against them. Plaintiffs oppose the motion. This is an action for personal injuries allegedly sustained byplaintiff Christopher C. Gahn" ) on August 11 , 2008 , at the premises, owned by defendant Properties Gah , located at 6 [* 2] East 2 Street , Huntington Station , New York. The incident occured when plaintiff C. Gah, in his capacity as a Suffolk County Police Officer , was responding to and assisting with a missing child call (for infant defendant Aliyia McReynolds). Upon locating missing infant defendant Aliyia McReynolds , plaintiff C. Gah , who was lawfully on the aforementioned premises , was caused to be injured. Plaintiff C. Gah tripped and fell off of the stoop/landing situated directly outside of the front door entrance into said premises when infant defendant Aliyia McReynolds pushed , shoved and flailed in and attempt to escape and elude the police as they attempted to retur her to her father , defendant Michael McReynolds. Plaitiffs commenced this action by . serving a Summons and Verified Complaint on or about Januar 12 , 2010 and Januar 18 , 2010. Issue was joined by defendants Properties and Pius on or about February 23 , 2010. Defendants Properties and Pius state that " (a) review of the plaintiffs ' Verified Complaint , in conjunction with the plaintiffs ' Verified Bil of Pariculars and Supplemental Bil of Pariculars , reveals that the plaintiffs are alleging two separate causes of action against defendants Community Properties and Donald A. Pius: 1) a common- law negligence claim based upon the defective condition ofthe front/stoop landing as authorized by General Obligations Law 9 11- 6; and 2) a claim based upon the General Municipal Law 9 205-e. As it relates to the plaintiffs 9 205-e claim , it is alleged in the plaintiffs Supplemental Bil of Pariculars 156 , 9944- that the defendants violated Verified Complaint and HuntingtonTown Code Chapter , which sets forth general maintenance rules for properties in the Town of Huntington. The plaintiffs have also alleged violations of New York State Building Code 765.4a- l0 and C212- 1(i). According to the Examination Before Trial (" EBT" ) testimony of defendant Pius [* 3] defendant Properties is a limited parnership in which he is a limited parner and Pad Properties Inc. is the general parner. Defendant Pius testified that defendant Properties is the legal owner of the premises located at 6 East 2 Street , Huntington Station , New York , but that on the date ofplaintiffC. Gah' s accident , the subject residence was leased to a person named Christine Seavers. Pursuant to the lease , defendant Properties was responsible for any structural repairs to the stoop/landing, but the tenant was responsible for keeping the stoop/landing clean and free from any debris. See Defendants Properties and Pius s Affirmation in Support Exhibit I 'i 51. In this regard , defendant Pius testified that he never had to make any repairs to the front stoop/landing ofthe subject premises. Defendant Pius furher testified that neither he nor anyone associated with defendant Properties ever received any complaints as to the exterior of the subject premises , in general , or any complaints concerning any debris located on the front/stoop landing, in paricular. With respect to plaintiffs ' General Municipal Law 9 205-e claim , defendants Properties and Pius argue that "this statue creates a right of recovery for police officers where the neglect , omission , wilful or culpable negligence of any person or persons failing to comply with the requirements of any of the statutes , ordinances , niles , orders and requirements of the federal , state , county, village , town or city governents or of any and all their deparents divisions and bureaus.. .' directly or indirectly caused the police officer s injur or death during the discharge of his or her duties... .In order for a plaintiff to establish a prima facie case of liability under the statute , the pleadings must identify the statutes , ordinances , codes , rule and/or regulations with which the defendant failed to comply, describe the maner in which the police officer was injured , and set forth those facts from which it may be inferred that the defendant's [* 4] negligence directly or indirectly caused the har to the police officer... .In this regard , in order to establish a violation of General Municipal Law 9 205-e , the plaintiff must prove that the defendant violated a rule or requirement that is par of a well developed body of law and regulations with positive commands that mandate the performance or non- performance of specific acts. " As previously mentioned , plaintiffs allege in their Verified Complaint , Verified Bil of Pariculars and Supplemental Verified Bil of Pariculars that defendants Properties and Pius violated Huntington Town Code Chapter 156 , 9944- 50 and New York State Building Code 99 765.4a- 1O and C212- 1(i). Defendants Properties and Pius argue that, in reviewing the sections of the Huntington Town Code Chapter cited by plaintiffs it is evident that none of them apply to the facts of the case , with the arguable exception of 9 156- generalized terms of not permitting ' (a , subsection C , which speaks in the most )ny unealthy, unwholesome or unsanitar condition... ' to exist on a parcel of propert situated on the Town of Huntington. This code provision , however is clearly not par of a well- developed body of law with positive commands that mandate the performance or non-performance of specific acts. Stated differently, it is not par of ' a well developed body oflaw containing paricularized mandates imposing a clear legal duty.''' In fuher support of their motion , defendant Properties and Pius submit the Affidavit of licensed engineer , Paul Angelides , to demonstrate that the New York State Building Code 99 765.4a- l0 and C212- 1(i), as cited by plaintiffs , do not apply to the facts of this case as neither provision was in effect when this paricular structure was built. Accordingly, defendants Properties and Pius contend that neither Huntington Town Code Chapter 156 , 9944- 50 nor New York State Building Code 99 765.4a- l0 and C212- 1(i) can serve as the predicate statutory basis for plaintiffs ' General Municipal Law 205-e claim. ," ' ... [* 5] Defendants Properties and Pius additionally contend that , even if it were assumed that plaintiffs did plead a predicate statutory violation , there is stil no evidence that plaintiff C. Gah' s injuries resulted from anything more than the risks generally associated with and (i)n this case , there is absolutely no evidence which inherent to police work. They add that tends to show that the plaintiff s injur was practically or reasonably related to any alleged statutory violation as the plaintiff clearly testified during his examination before trial that ' don t know why I fell. Moreover , the evidence clearly demonstrates that the plaintiffs injur occured while he was in the process of trying to apprehend the defendant McReynolds , and that he fell off of the stoop/landing in the process. As such , it is evident that the plaintiff s injur was not related to anything more than the normal risks associated with police work." Defendants Properties and Pius also argue that they are entitled to sumar judgment with respect to plaintiffs ' General Municipal Law 9 2q5-e claim as there is no evidence that they either created or were aware of any condition which allegedly constituted a predicate violation. With respect to plaintiffs ' common- law negligence claim , defendants Properties and Pius argue that they are " entitled plaintiffs claim to summar judgment as a matter of law with respect to the based upon common- law negligence as 1) the plaintiffs claim is bared since the injury sustained is related to the paricular dangers a police officer is expected to assume as par of his duties , 2) there is no evidence that the defendants either created any alleged defect with respect to the premises , or had actual or constructive notice of a defect , and 3) the defendants ' alleged negligence was not the proximate cause of the plaintiffs injur. Defendants Properties and Pius submit that " it is evident that the plaintiffs injuries occured while he was in the process of trying to apprehend the defendant McReynolds. As such , his injury occurred while he was performing an act taken in fuherance of a specific ," ' ... [* 6] police fuction ' which exposed him to a heightened risk of sustaining paricular injury. differently, being on duty was not the mere occasion for the plaintiffs accident , Stated but, rather , the performance of his hazardous duties as a police officer. Defendants Properties and Pius also argue that there is absolutely no evidence to demonstrate that they created or had any notice of any alleged defect concerning the subject stoop/landing. The evidence reflects that they did not construct the stoop/landing and defendant Pius testified that he never caused any repairs to be made to said stoop/landing. As to any claim that the stoop/landing was covered by debris or sand , this condition was caused and/or allowed to exist by the tenant who occupied the premises. With respect to the issue of notice , defendant Pius testified at his EBT that neither he nor anyone associated with defendant Properties ever received any complaints as to the exterior of the subject premises , in general. or any complaints concerning any debris located on the front stoop/landing, in paricular. They furher submit the fact that they had the right to enter the premises to inspect and/or perform repairs pursuant to the terms of the lease is unavailing. Defendant Pius argues that he is entitled to summar judgment dismissing both plaintiffs ' General Municipal Law 9 205-e claim and General Obligations Law 9 11- 106 common- law negligence claims as asserted against him in his individual capacity as he was not the owner of the subject premises and he cannot be held liable in his capacity as a limited parner. He submits that New York State Parnership Law 9 26(b) provides no parner of a parnership which is a registered limited liability parnership is liable or accountable , directly or indirectly (including by way of indemnification , contribution or otherwise) for any debts obligations or liabilities of, or chargeable to , the registered limited parnership or each other whether arising in tort , contract or otherwise.... [* 7] In opposition to defendants Properties and Pius ' motion , plaintiffs first indicate that the action against defendant Piushas been voluntarily discontinued by plaintiffs and therefore there is no need to address the portions of the summar judgment motion as they relate to him. With respect to the claim as against defendant Properties , plaintiffs states (t)he claim as against the remaining defendant , Community Properties relates as to the defective stoop off of which plaintiff, Christopher Gah fell. It is alleged that the defendant , Community Properties violated the American Society of Testing Material Code F1637- 95 section 6.2.1 for safe walking surfaces , which violation directly or indirectly led to plaintiffs injuries. Plaintiffs submit that (i)n an action based on GML ~ 205-e , traditional standards of negligence and proximate cause do not apply. Rather to make out a valid claim under GML 9 205-e and surive a motion to dismiss , a plaintiff must (l) identify the statute or ordinance with which the defendant failed to comply, (2) describe the maner in which the police officer was injured , and (3) set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused har to the police officer. ' Since the traditional notions of proximate cause are inapplicable , Plaintiff need only show a reasonable or practical connection between defendant's violation(s) and plaintiffs injuries. Plaintiffs argue that , in the case at bar , plaintiffC. Gah' s injures were caused by defendant Properties ' violation of a well established safety code - the American Society of Testing Material Code F1637- 95 section 6.2. 1 which relates to the standard for sale walking surfaces. Plaintiffs contend that the relevant portions of said Code state in general terms that a short flght of stairs (three or fewer) without a handrail or tactile cues shall be avoided where possible. In support ofthis argument , plaintiffs offer the Affdavit of Stanley H. Fein , a civil engineer. Mr. Fein offers his opinion that , within a reasonable degree of engineering certainty, [* 8] the accident and injuries sustained by plaintiff C. Gahn were caused by the negligence of defendant Properties for providing and maintaining a single step platform that was dangerous and hazardous and that the single step creates the optical ilusion as if it does not exist and it comes upon pedestrians as a dangerous and unexpected trap. Plaintiffs further argue that (i)t is apparent from the testimony herein that defendant Community Properties was the owner of said premises , there was a single stoop leading to the front entrance and said stoop had no handrails or tactile cues such as edging and/or painting on said stoop in violation of the American Society of Testing Material Code F1637- 95 section 6.2.1 for standard practice for safe walking suraces. Based on the above , liability begins and originates with defendant Community Properties because had they not violated the above safety code , plaintiffs injuries would not have occured. Plaintiffs add that plaintiffC. Gah' s EBT testimony as to how he was injured is apparent and uncontroverted. " They submit that plaintiff C. Gah testified that he was injured while attempting to apprehend the infant defendant , Aliyia McReynolds and that he fell off the front stoop in an attempt to apprehend her. Plaintiffs argue that " d)efendant canot plaintiffs (sic) injur would not be reasonably argue that as a matter of law the a foreseeable result of defendant , Community Properties negligence in failing to delineate the front stoop. Absent defendant Community Properties failure to abide by the aforementioned safety code , none of the events which led to plaintiffs injuries would have been triggered. Thus , the conduct of defendant is reasonably connected directly or otherwise to the injuries sustained by the plaintiff. The connection between the violation of the American Society of Testing Material Code F163 7 - 95 section 6.2. 1 and plaintiff (sic) injuries is an obvious one. The very purpose of the American Society of Testing Material is [* 9] to avoid falls off an unidentified step. If not for defendant , Community Properties (sic) disregard for the safety code on this issue plaintiff would not have found himself fallng step and would likely have avoided injur. Defendants ' off said negligence need only indirectly cause harm to the police officer plaintiff." In reply to plaintiffs ' opposition , defendants Properties and Pius argue that plaintiffs have failed to submit any proof or evidence sufficient to create a question of fact that would warant a denial of defendants Properties and Pius ' motion. First , said defendants state that counsel for the plaintiffs states at paragraph six (6) of his affirmation that with respect to that part of the motion seeking sumary judgment against defendant Donald A. Pius , because the plaintiff has voluntarily discontinued the action against Mr. Pius individually that par of the defendants ' motion should be denied as moot. A review of the stipulation attached to Mr. Greenberg s affirmation as Exhibit " 1" reveals , however, that the stipulation was never signed by counsel for the co- defendant the cross- claims (sic) Aliyia McReynolds and Michael McReynolds. As a result asserted by co- defendants McReynolds remain and , therefore , this Cour should grant sumar judgment to defendant Donald A. Pius on the basis set forth in the defendants motion. " With respect to plaintiffs ' assertion that plaintiff C. Gah' s injuries were caused by defendant Properties ' violation of a well established safety code , defendants Properties and Pius state counsel relies upon the affdavit of Stanley H. Fein , P . , sworn to the 15 day of August 2011 , wherein Mr. Fein refers to ' American Society of Testing Material Code ' (sic) F1637section 6.2. 1 relating to safe walking surfaces. Contrar to Mr. Fein s mischaracterization however , as properly referred to the American Society for Testing and Materials... is not a code , but a compilation of reference standards. Moreover , the plaintiffs are precluded from ," [* 10] relying upon the cited reference standard because it is not set forth and/or referred anywhere in the plaintiffs ' Complaint , Bil of Pariculars or Supplemental Bil of Pariculars." Defendants Properties and Pius argue that plaintiffs must have realized that they could not demonstrate an question of fact as to the applicability of the codes they had relied onHuntington Town Code Chapter 156 , 9944- 50 and New York State Building Code 99 765. 4a10 and C212- 1 (i)- so they simply abandoned them for puroses of the sumary judgment motion and relied solely upon the American Society for Testing and Materials standard cited they expert , Mr. Fein. Defendants Properties and Pius state (a)s the plaintiffs have failed to plead the (American Society for Testing and Materials) reference standard relied upon by Mr. Fein , and have otherwse failed to move to amend their pleadings , they are now precluded from relying upon it in opposition to the defendants ' motion. Furer , the plaintiffs canot rely upon the (American Society for Testing and Materials) standard cited by Mr. Fein to defeat the defendants ' motion since , as stated previously, the (American Society for Testing and Materials) is not a ' code ' but merely a set of reference standards to be used on conjunction with applicable building codes.... These stadards , in and of themselves , are merely guidelines and are not mandatory, and , as such , are insufficient to raise an issue offact as to the defendants ' alleged negligence. " It is well settled that the proponent of a motion for summar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient See Silman v. Twentieth evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. Y.2d 395 165 N. Y.S.2d Hospital 68 N. Y.2d 320 508 N. Y.S.2d 923 (1986); 557 427 N. S.2d 595 (1980); 498 (1957); Alvarez v. Prospect Zuckerman v. City afNew York, 49 N. Y.2d Bhatti v. Roche 140 A. D.2d 660 528 N. Y.S. 2d 1020 (2d Dept. 10- [* 11] 1988). To obtain summar judgment , the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , sufficient to warant the cour , as a matter oflaw , to direct judgment in the movant' s favor. See Friends of Animals, Inc. Associated Fur Mfrs. , Inc. 46 N. Y.2d 1065 416 N. Y.S. 2d 790 (1979). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney alan v. Farrell Lines Inc. CPLR 93212 (b); If a sufficient 64 N. Y.2d 1092 489 N. s affrmation. See S.2d 884 (1985). showing is demonstrated , the burden then shifts to the prima facie non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summar judgment and necessitates a trial. 2d 595 (1980), v. See Zuckerman supra. City of New York 49 N. Y.2d 557 , 427 When considering a motion for summar judgment, the function of the cour is not to resolve issues but rather to determine if any such material issues of fact exist. (1957), supra. issue. v. See Silman Twentieth Century- Fox Film Corp. 3 N. Y.2d 395 165 N. S.2d 498 Mere conclusions or unsubstantiated allegations are insufficient to raise a triable See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d 966 , 525 N. 2d 793 (1988). Further, to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this type of motion is not to resolve issues offact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N. Y.2d 247 428 N. Y.S.2d 665 (1980); Johnson 147 A.D.2d 312 543 N. Y.S. 2d Daliendo 987 (2d Dept. 1989). As previously mentioned , to make out a valid claim under General Municipal Law 9 205-e where a police officer is injured by another s failure to comply with the requirements of any of the statutes , ordinances , rules or orders , a plaintiff must (1) identify the statute or 11- [* 12] ordinance with which the defendant failed to comply, (2) describe the maner in which the police officer was injured , and (3) set forth those facts from which it may be inferred that the defendant' s negligence directly or indirectly caused har to the police officer. Linkv. City of New York 34 AD.3d City of New York 2 N. Y.3d 352 , 779 N. Y.S.2d 449 (2004); 757 825 N. Y.S.2d 518 (2d Dept. 2008); Casella v. See Willams City of New York 69 A. 3d 549 893 Y.S.2d 556 (2d Dept. 2010). The Cour finds that plaintiffs have failed to satisfy the first prong ofthe requirements listed above. As argued by defendants Properties and Pius , plaintiffs identified Huntington Town Code Chapter 156 , 9944- 50 and New York State Building Code ~9 765. 4a- l0 and C2121 (i) as the applicable " statute or ordinance with which the defendant failed to comply. However , nowhere in plaintiffs opposition papers do they address , or even mention said codes. Instead , plaintiffs rely on the American Society for Testing and Materials standard cited by they expert, Stanley H. Fein. First , the American Society for Testing and Materials standard does not constitute a " statute or ordinance " within the meaning of General Municipal Law 9 205-e. The American Society for Testing and Materials standard a set of reference standards to be used on conjunction with applicable building codes and are merely guidelines and not mandatory. Second , as noted by defendants Properties and Pius , defendants failed to plead the American Society for Testing and Materials standard in either their Verified Complaint , their Verified Bil of Pariculars or their Supplemental Verified Bil of Pariculars , therefore rendering the cause of action legally insuffcient. See Sclafani v. City of New York 271 A. 2d 430 , 706 N. Y.S. 2d 129 (2d Dept. 2000). The Court also finds plaintiffs ' arguments that (i)fnot for defendant , Community Properties disregard for the safety code on this issue plaintiff would not have found himself 12- [* 13] falling off said step and would likely have avoided injur. Defendants ' negligence need only indirectly cause har to the police officer plaintiff, " and " (a)bsent defendant Community Properties failure to abide by the aforementioned safety code , none ofthe events which led to plaintiffs injuries would have been triggered" to be not only conc1usory and speculative , but statements not based in reason nor appreciation for the entire events surounding plaintiff C. Gah' s alleged injuries. By making such statements , plaintiffs seem to be completely disregarding the fact that plaintiff C. Gah was allegedly struggling with defendant Aliyia Reynolds when he was injured. The Cour fails to follow plaintiffs ' logic that , if defendants Properties and Pius had installed a handrail or painted the subject step with yellow caution paint plaintiff C. Gahn would not have fallen off said step. Such an argument defies reason. Additionally, the Cour canot disregard plaintiff C. Gah' s own testimony, " I don t know why I fell." See Defendants Properties and Pius ' Affirmation in Support Exhibit E. With respect to plaintiffs ' cause of action based upon General Obligations Law 9 11106 , plaintiffs have failed to offer any opposition to defendants Properties and Pius ' motion as it relates to this claim. With respect to plaintiffs ' common law negligence cause of action (t)o impose liability upon a defendant in a trip-and- fall action , there must be evidence that a dangerous or defective condition existed , and that the defendant either created the condition or had actual or constructive notice of it." See Leary 920 N. Y.S.2d 193 (2d Dept. 2011); 1034 895 N. v. Leisure Glen Home Owners Ass ' , Inc. 82 AD. 3d 1169 Wiliams v. SNS Realty of Long Island, Inc. 70 AD. 2d 528 (2d Dept. 2010); Dennehy-Murphy D.3d 629 876 N. Y.S. 2d 512 (2d Dept. 2009). v. Nor- Topia Servo Center, Inc. , 61 V. See also Denker LLC 55 AD.3d 527 866 N. Y.S.2d 681 (2d Dept. 2008); Rubin 13- v. Century 21 Dept. Stores, Cryder House 39 AD. [* 14] 840 834 N. Y.S. 2d 316 (2d Dept. 2007). The Court finds that plaintiffs failed to demonstrate that defendants Properties and Pius either created or had actual or constructive notice of the alleged defect. Based upon the arguments presented in the papers before it, and even construing the evidence in a light most favorable to plaintiffs , the Cour finds that plaintiffs failed to submit any proof or evidence sufficient to create a question of fact that would warant a denial of defendants Properties and Pius ' instant motion. Accordingly, defendants Properties and Pius ' motion , pursuant to CPLR 93212 , for an order granting them summar judgment and dismissing plaintiffs ' Verified Complaint in its entirety, as well as any cross- claims asserted against them is hereby GRANTED. The remaining paries shall appear for a Pre- Trial Conference in Nassau County Supreme Court , Differentiated Case Management Par (DCM) at 100 Supreme Cour Drive Mineola , New York, on October 19 2011 , at 9:30 a. This constitutes the Decision and Order of this Cour. ENTER: eNTERED Dated: Mineola, New York October 17 2011 OCT 1 9 2011 NASSAU COUNTY COUNT CLERK' S OFFICE 14-

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