Fatato v Reagan
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Fatato v Reagan 2011 NY Slip Op 33398(U) December 8, 2011 Sup Ct, Nassau County Docket Number: 19024/09 Judge: Michele M. Woodard 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] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU JAMES FATATO MICHELE M. WOODARD Plaintiff TRIAL/IAS Par -against- Index No. : BILL REAGAN DECISION AND ORDER 19024/09 Motion Seq. No. : 01 Defendant. Papers Read on this Motion: Defendant's Notice of Motion Plaintiff's Affirmation in Opposition Defendant' s Reply Affirmation Defendant Bil Regan moves for an order pursuant to CPLR 3212 granting him sumar judgment dismissing the plaintiff's complaint against him. The plaintiff in this action seeks to recover damages for personal injuries he sustaned on November 15 2009 while playing basketball at the home of the defendant who was his brother- in- law at the time. He alleges that he fell and got hurt when he stepped on a loose paving stone that was inlaid in the driveway in the area of the basketball hoop. The plaintiff alleges that the defendant failed to keep his drveway in a safe condition , failed to war of the dangerous condition and actually created the dangerous condition through a third pary which created the condition when it renovated the drveway. The defendant seeks dismissal of the complaint on four grounds: (1) that the improperly laid brick in the driveway constituted an open and obvious condition; (2) that the plaintiff assumed the risk; (3) that he canot be held liable for a condition created by a third-par contractor; and (4) that he did not have actual or constructive notice of the defect. At his e)(amination- before- trial , the plaintiff testified that he had played basketball on outdoor [* 2] cours for many years. He described the defendant' s driveway as having a two-stone wide row of decorative stones around the perimeter. He had never e)(perienced any problems with the driveway before his accident nor was he aware of anyone else having done so. He testified that just before he fell , he proceeded towards the hoop with the ball along the decorative stone path. He then stepped on that line of stones underneath the hoop, jumped up attempting a lay-up and landed on one of the decorative stones inlaid in the driveway underneath the hoop. He attests in support of his motion that: (a)s I landed, I landed on my foot almost seesawed , like pivoted off the decorative paying stone. As I came down , my leg pivoted , a seesaw action. . . I landed and then it was loose and it was almost like a seesaw and that's when I went down. " He testified that afer his accident , his sister told him that she has been aware of a loose stone in the area where he fell before his accident. The defendant testified at his e)(amination- before-trial that he believed that the driveway was installed in 2008. He described it as lined with raised Belgium blocks around the perimeter with paving stones inlaid in the blacktop. He testified that no repairs were done afer the drveway was installed and that he was not aware of any loose bricks or pavers in the area where the plaintiff fell. Tiffany Reagan , the plaintiffs sister and the defendant's e)(- wife , testified at her e)(amination- before-trial that she was aware of a " defect" with the pavers underneath the basketball hoop. She testified that she observed a " little bump " in the area when she put away her children s sleighs and that one of the paving stones was a little raised and wobbly. She testified however that she never told the defendant about this nor could she recall when she herself became aware of the defect so as to establish how long it e)(isted before the plaintiffs accident. On a motion for summar judgment pursuant toCPLR ~3212 , the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to [* 3] Sheppard-Mobley demonstrate the absence of any material issues of fact." aff' d. as mod. Dept 2004), citing Alvarez Prospect Hasp. 10 AD3d 70 , 74 (2d 68 NY2d 320 324 prima New York Univ. Med. Ctr. 64 NY2d 851 853 (1985). " Failure to make such (1986); Winegrad facie 4 NY3d 627 (2005), King, showing requires a denial of the motion , regardless of the sufficiency of the opposing papers. Sheppard-Mobley Med. Ctr. , supra. King, supra at p. 74; Alvarez Prospect Hasp. , supra; Winegrad New York Univ. Once the movant's burden is met , the burden shifts to the opposing par to establish Alvarez the e)(istence of a material issue of fact. Prospect Hosp. , supra at p. 324. The evidence presented by the opponents of summar judgment must be accepted as true and they must be given the benefit of every reasonable inference. AD3d 518 521 (2d Dept 2006), citing See, Demishick Community Housing Management Corp. , 34 Secofv Greens Condominium 158 AD2d 591 (2d Dept 1990). Despite the lack of executions , the defe'ndant has established that the transcripts of the various e)(aminations- before- trial are in admissible form. Tanger Factory Outlet Centers Inc. Franzese AD3d 763 (2d Dept 2011). (A)thetic and recreative activities possess enormous social value , even while they involve significantly heightened risks. . . these risks may be voluntarly assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. Trupia ex reI. Lake George Cent. School Dist. 14 NY3d 392 , 395 (2010). " The doctrine of assumption of the risk is a form of measurement of a defendant's duty to a voluntar paricipant in a sporting activity. City of New York 29 AD3d 649 (2d Dept 2006 , citing Benitez Manoly New York City Bd. of Educ. 73 NY2d 650 , 659 (1989). " A plaintiff is bared from recovery for injuries which occur durng voluntar sporting or recreational activities if it is determined that he or she assumed the risk as a matter oflaw (citations omitted). Leslie Splish Splash at Adventureland 1 AD3d 320 , 321 (2d Dept 2003); see also, Morgan " ,,, [* 4] State rearg den. 90 NY2d 471 (1997), 90 NY2d 936 (1997). " A voluntar participant in a (sporting or) recreational activity consents to those commonly-appreciated risks which are inherent in and arise out of the natue of such activity generally, and which flow from the paricipation. AD3d 892 (2d Dept 2011), citing Adventureland, supra State, supra Morgan at p. 321; assumption 2007), Iv den. quoting 10 NY3d 717 (2008); at p. 484; Miskanic State, supra; Morales New York City Bd. of Educ. , supra at p. 659 see also, Benitez Beacon City School Dist. 293 AD2d 724 (2d Dept 2002); Roller Jam USA , Inc. supra La Salle Inst. 45 AD3d 556 , 557 (2d Dept Ribuado Board of Educ. 16 AD2d 99 (1 st Dept 1962), McGee School Dist. State, supra Morgan Splish Splash at of the risk , however, wil not serve as a bar to liability if the risk is unassumed , concealed , or uneasonably increased. at p. 1103 , citing Leslie Roller Jam USA , Inc. 71 AD3d 1101 (2d Dept see also Miskanic 2010). " The doctrine of primar at p. 484; Raman , 85 Reidy Iv den. 44 AD3d 724 (2d Dept 2007); Morgan 13 NY2d (1963); Muniz Warwick Jericho Union Free School Dist. 244 AD2d 330 Stryker (2d Dept 1997). To prevail on the doctrine of assumption of the risk, the defendants must establish that the infant-plaintiff was aware of, appreciated the nature of and voluntaily assumed all of the risks. Morgan State, supra at p. 484. " The plaintiffs awareness of the risk must be assessed against the background of his skil and e)(perience. North Collns Cent. School Dist. 83 AD3d 1557 , (4 State, supra at p. 486. Furhermore '" (i)n assessing whether a defendant Morgan Dept 2011), citing Hyde has violated a duty of care in the context of an injur sustained durng a sport or game , (it) must (be) determine(d) whether the defendant created a unique condition " over and above the usual dangers inherent in the sport. 2008), quoting Convey Gerry Cammack Union Free School Dist. 52 AD3d 467 , 469 (2d Dept City of Rye School Dist. 271 AD2d 154 , 158 (2d Dept 2000), quoting Morgan [* 5] State, supra at p. 485. While fallng on the court is a known risk inherent in the sport of basketball , a player will not be Ruiz deemed to have assumed unreasonably increased risks. New York Young Men s Christian Ass n of Greater State , 90 Morgan 26 Misc 3d 1222(A) (Supreme Cour New York County 2010), citing NY2d 471 (1997). The defendant has not established his entitlement to summar judgment based on the doctrne of primar assumption of the risk. There are issues of fact as to whether the defective condition of the driveway was apparent , whether plaintiff s fall was a reasonably foreseeable consequence of paricipating in the sport and whether the plaintiff was in fact e)(posed to unassumed , concealed and See, Ruiz increased risk. Young Men s Christian Ass ' n of Greater New York, supra (defendant failed to prove plaintiff assumed risk of playing basketball on an indoor surace , which may have been littered with round beads or that condition is apparent or a reasonably foreseeable consequence of paricipating in sport); Greenburg Peeksvile City School Dist. 255 AD2d 487 (2d Dept 1998) (out of bounds area at basketball cour end line less than recommended distance from end line); Clark State of New York 245 AD2d 413 (2d Dept 2997) (steep drop-off several inches from asphalt basketball cour area); Warren Town of Hempstead 246 AD2d 536 (2d Dept 1998) (issue of fact as to whether defendant's use of sealant rendered the depth and e)(tent of cracks in basketball cour Nevertheless obvious). case of negligence , a plaintiff must establish the prima facie to establish a not open and existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was Nappi a proximate cause of injury to the plaintiff.' " (2d Dept 2005), quoting Alvino Lin Incorporated Vilage of Lynbrook 19 AD3d 565 300 AD2d 421 (2d Dept 2002), citing Gordon Muchnick, 180 AD2d 715 (2d Dept 1992). " Imposition ofliability for a dangerous condition on propert must be "' [* 6] predicated upon occupancy, ownership, control or special use ofthe premises. Marina 74 AD3d 1191 , 1192 (2d Dept 2010), citing AD3d 583 584- 585 (2d Dept 2008); Valez Captain Luna Costco Wholesale Membership, Inc. , 49 Canaan City of New York 51 AD3d 984 (2d Dept 2008); Logatto Kulaski 29 AD3d 563 , 564 (2d Dept 2006). This duty however only lies when a propert Schwalb owner either created the condition or had actual or constrctive notice of the dangerous condition that precipitated the injur. Gordon 67 NY2d 836 (1986). Accordingly, a Museum of Natural History, defendant moving for summary judgment in a case like this facie has the initial burden of making a prima showing that it neither created the hazardous condition nor had actual or constrctive notice of its e)(istence for a sufficient length oftime to discover and remedy it.' " AD3d 1144 , 1146 (2d Dept 2011), quoting Melnikov v 249 Walden Terrace, Inc. 85 Reimold Brighten Corp. 72 AD3d 760 (2d Dept 2010). There is no evidence that the defendant created the defective condition or that he had actual or constructive notice of it. Tiffany Reagan s knowledge of a loose paver in the area does not suffice as that certainly does not establish the defendant's knowledge. Furtermore , there is no evidence that the condition e)(isted long enough to impar constrctive notice to the defendant. Assuming, arguendo that the contractor who installed the driveway created the defective condition , standing alone , that is not a sufficient basis to attbute liability to the defendant and there is no evidence that the work was inherently dangerous or that the defendant interfered with and assumed control over the work. Kleeman Rheingold 81 NY2d 270 (1993); Posa Copiague Publ. School Dist. 84 AD3d 770 (2d Dept 2011). The defendant has accordingly established his entitlement to sumar judgment thereby shifting the burden to the plaintiff to establish the existence of a material issue of fact. [* 7] The plaintiff has not met his burden. The plaintiffs sister and the defendant's e)(- wife , Tiffany Reagan s present attestation to having noticed the loose brick during the winter before the plaintiffs accident is suspiciously at odds with her e)(amination- before-trial testimony rendering the issue arguably feigned. In any event , the plaintiff's accident happened in March , also during the winter. Accordingly, Ms. Reagan s recent statement hardly suffces to raise an issue of fact with respect to the defendant's constructive notice ofthe defect as the length oftime the defect existed prior to the plaintiffs accident has not been adequately established. The defendant's motion for sumar judgment is granted. The complaint is dismissed. action is concluded. This constitutes the Decision and Order of the Court. DATED: December 8 , 2011 Mineola , N. Y. 11501 ENTER: . MICHELE M. WOODAR XXX F:\Fatato v Reagan MLP. wpd ENTERED DEC 16 2011 NASSAU COUNTY COUITY CLI." O'''CE This
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