Nukic v Roman Catholic Diocese of Brooklyn
Annotate this CaseDecided on September 28, 2012
Supreme Court, Kings County
Munib Nukic, Plaintiff
against
Roman Catholic Diocese of Brooklyn, Defendant.
21928/10
Attorneys for Plaintiff
Rudolf B. Radna, Esq.
The Perecman Firm, P.L.L.C.
250 West 57th Street, Suite 401
New York, New York 10107
Attorneys for Defendant
Frederick Soller, Esq.
Ahmuty, Demers & McManus
200 I.U. Willets Road
Albertson, New York 11507
Francois A. Rivera, J.
By notice of motion filed April 20, 2012, under motion sequence one, defendant Roman Catholic Diocese of Brooklyn (hereinafter Diocese) has moved pursuant to CPLR 3212 for summary judgment in its favor on the issue of liability and dismissal of plaintiff Munib Nukic's (hereinafter Nukic) complaint. Nukic has opposed the motion.
BACKGROUND
On September 1, 2010, Nukic commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the King's County Clerk's office. The complaint alleges sixty six allegations of fact in support of four causes of action. The first cause of action is for common law negligence, the second, third and fourth causes of action allege violations of Labor Law Sections 200, 241(6) and 240 respectively.
Nukic alleges that on February 25, 2009, while performing construction work for [*2]Miller Construction Co. at St. John's Cemetery (hereinafter the Subject Property) he sustained personal injuries. Diocese is a religious corporation with a principal place of business at 310 Prospect Park West in Brooklyn, New York and the subject property is located at 80-01 Metropolitan Avenue, Middle Village, Queens County, New York. Diocese has joined issue by verified answer dated October 13, 2010. The parties have not conducted any pre-trial discovery and a note of issue has not been filed.
MOTION PAPERS
Diocese's motion papers consist of an affidavit of Michael J. Reid, its treasurer; an affirmation of Frederick Soller, its current counsel, and six annexed exhibits labeled A through F. Exhibit A is the instant summons and complaint. Exhibit B is Diocese's verified answer. Exhibit C is a notice of substitution and change of Diocese's attorney. Exhibit D is a letter dated February 22, 2011, from Diocese's prior counsel, to plaintiff's counsel. Exhibit E is a copy of a summons and verified complaint bearing index number 3919/12 for a related action in Queens County Supreme Court (hereinafter the Queens County action), in which Nukic is the plaintiff and St. John's Cemetery Corporation, St. John's Cemetery Inc. and St. John's Cemetery are the defendants (hereinafter the St. John defendants). Exhibit F is the joint verified answer of the St. John defendants in the Queens County action.
Nukic has opposed the motion with an affirmation of counsel and five annexed exhibits labeled 1 through 5. Exhibit 1 is the instant summons and verified complaint. Exhibit 2 is Diocese's verified answer. Exhibit 3 are Nukic's combined discovery demands dated October 12, 2011. Exhibit 4 and 5 are pages from two internet web sites containing information related to St. John's Cemetery in Queens, New York.
Diocese replied with an affirmation of its counsel.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). Once a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324).
"The prima facie showing which a defendant must make on a motion for summary [*3]judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Miller v Village of E. Hampton, - N.Y.S.2d , 2012 WL 4094847, 2012 NY Slip Op 06195 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]).
Nukic's complaint alleges that Diocese owned, operated, controlled, supervised, inspected, managed, maintained, repaired, was the lessor of, and/or was the lessee of St. John's Cemetery and the premises located 80-01 Metropolitan Avenue, Middle Village, New York. The allegations are stated in separately numbered paragraphs pursuant to CPLR 3014, and are at times inconsistent. CPLR 3014, however, permits claims and defenses to be stated "regardless of consistency." This recognizes the unpredictability of litigation and permits parties to set forth everything they think they have, leaving it to the trier of fact to make the final determination for them (see Connors, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR 3014:6).
In support of its motion, Diocese has submitted an affirmation of its counsel, an affidavit of its treasurer and the pleadings of the St. John defendants in the Queens County action. The affirmation of Frederick Soller, Diocese's counsel, demonstrated no personal knowledge of any of the facts or transactions alleged in the complaint and therefore has no probative value (Winter v Black, 95 AD.3d 1208 [2nd Dept 2012]).
"The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as a vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form', e.g. documents, transcripts" (Worldwide Asset Purchasing, LLC v Karafotias, 9 Misc 3d 390 [N.Y.City Civ.Ct.,2005] citing Zuckerman v. City of New York, 49 NY2d 557, 563 [1980]).
Frederick Soller has proffered the joint verified answer of the St. John defendants in the Queens County action to show that Diocese did not own the subject property at the time of plaintiff's accident. Interestingly, he did not provide the registered deed of the subject property, the best available evidence of ownership or lack of ownership of real property.
The Queens County action pertains to the same accident that is the subject of the instant action. Mr. Soller represents the St. John defendants in the Queens County action and, in fact, verified their answer pursuant to CPLR 3020(d)(3). The St. John defendants admitted in their verified answer that they own the subject property. It is this admission that Diocese seek to admit in the instant motion to prove its lack of ownership of the subject property.
A verified pleading is the statutory equivalent of a responsive affidavit for purposes of a motion for summary judgment (CPLR 105(u); see Talansky v Schulman, 2 AD3d 355, 361 n 6 [1st Dept 2003]; Travis v Allstate Ins. Co., 280 AD2d 394, 394-395 [1st Dept. 2001]). Nevertheless, Diocese may not use the answer of the St. John defendants in the Queens County action in the instant proceeding. The St. John defendants are not a party in the instant action and as such, their answer is hearsay and [*4]not admissible against Nukic. Furthermore, their answer is verified by their counsel pursuant to CPLR 3020(d)(3) and therefore may not serve as an affidavit of the St. John defendants under any circumstances.
The affidavit of Michael J. Reid, Diocese's treasurer, is the only remaining document containing sworn allegations of fact. Michael J. Reid avers that he has personal knowledge that Diocese and St. John's Cemetery are two separate entities. He also avers that Diocese did not possess an ownership interest in the subject property, and did not operate, maintain, control, or manage it on the date of the loss or for more that two years prior. Mr. Reid's carefully crafted affidavit does not state whether there was any relationship between Diocese and the subject property on February 25, 2009, the date of Nukic's accident.
However, the instant complaint alleges that Diocese supervised, inspected, and/or repaired the subject property. It also alleges that Diocese was the lessor and/or the lessee of the subject property. These specific allegations may potentially provide a separate basis for imposing liability on Diocese. By not addressing any one of these allegations of fact, Diocese cannot meet its prima facie burden of demonstrating the absence of any material facts. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Miller v Village of E. Hampton, - N.Y.S.2d , 2012 WL 4094847, 2012 NY Slip Op 06195 [2nd Dept 2012] citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, Diocese motion for summary judgment in its favor on the issue of liability and dismissal of the complaint is denied.
This foregoing constitutes the decision and order of the court.
Enter:
J.S.C.
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