Bierce v Shoreham-Wading River High Sch.

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Bierce v Shoreham-Wading River High Sch. 2013 NY Slip Op 30042(U) January 3, 2013 Supreme Court, Suffolk County Docket Number: 24153/2010 Judge: William B. Rebolini 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] O~· C Short hllm Order SUPREME IAS. COURT - STATE OF NEW YORK PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Jehannc Bierce, Index No.: 24153/2010 Plaintiff, -against- Shoreham-Wading River High School, Shorcham- Wading River School District and North Shore Public Library, Defendants. Attorneys [See Rider Annexed] Motion Sequence No.; 001; MD /' Motion Date: 2/29/12 Submitted: 9/28/12 Motion Sequence No.: 002; MG ,/ Motion Date: 5/30/12 Submitted: 9/28/12 Motion Sequence No.: 003; XMOTD""'/ Motion Date: 6!20!l2 Submitted: 9/28/12 Motion Sequence No : 004; MD V Motion Date: 8/17/12 Submitted: 9/28/12 Upon the ti..)]]owing papers numbered I to 69 read upon these motions for sU11lmary judgment, to amend the bill ofparticlllars and to strike the note of issue: Notice of Motion and supporting papers, I - 11; 29 - 43; 51 - 63; Notice of Cross Motion and SUPPOItingpapers, 49 - 50; Answering Affidavits and supporting papers, 12 - 26; 44 - 45; 67 - 84; Replying Affidavits and sLlpporting papers, 27 - 28; 46 - 48; 67 - 69; Other, 64 - 66; it is ORDERED that these motions are consolidated for purposes of this detenmnation; and it is further ORDERED that the motion by defendant North Shore Puhlic Lihrary for an order pursuant to CPLR 3212 granting summary judgment dismissing the complamt and all cross claims agal11stit IS denied; and it is fluther [* 2] Bierce v. Shoreham-Wading Index No.: 14153/2010 Page No.1 River H.S., et al. ORDERED that the motion by the plaintiff for Icave to serve an amcnded bill of particulars is granted; and it is further ORDERED that the cross motion by defendant Shoreham-Wading River Central School District slh/a Shoreham-Wading River High School and Shoreham-Wading River CentT<llSchool District loran order pursuant to Unifon11Rules for Trial Courts (22 NYCRR) § 202.21 (e) vacating the note of issue and certi flcatc of readiness and compelling additional discovery with respect to the new allegations set !orth 1Il the plamtin~s amended bill of particulars, or, in the alternative, compelling discovery and extending its time to make a motion for summary judgment, is granted 10 the extentthctt the plainti ff is directed to appear for a continued deposition within 90 days of the date of this order at a time and place mutually agreeable to the parties, and is otherwise denied; and it is further ORDERED that the motion by defendant Shoreham-Wading River Central School District for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint against it is denied. This is an action to recover damages for personal mjunes allegedly sustained by the plaintiff on Dccember 7, 2009 at approximately 9:30 a.m., when she slipped and fell on ice on the stairs located in fronl of the Shoreham-Wading River High SchooVPublic Library located at 250B Route 251\, Shoreham, New York. In her complaint and the bill of particulars, Theplainliff alleged that the defcndants wcre negligent in, inter alia, failing to maintain the premises in a safe and suitable condition for patrons and by pennitting a dangerous condition to exist and persist on the premises. [n its answer, defendant Shoreham-Wading River Central School District ("the School District") asserts cross claims agaInst defendant North Shore Public Library("Public Library") for contribution and indemnillcation. The Public Library docs not assert any cross claims against the School District. The School District and the Public Library now separately move for summary judgmcnt dismiSSIng thc complaint, the plainti !Tmoves to amend her bill of particulars, and the School DIstrict crOSS-lllOVCS vacate the note of issue and certificate of readmcss and to compel additional to disc-overy wIth respect to the new allegations set forth in plaintiff's amcnded bill of particulars. Summary Judgment is a drastic remedy and should only be granted in the absence of any triable issues or fact (see Rotuba Extruders,/Ilc. v Ceppos, 46 NY2d 223, 413 NYS2d 141 []978]; Andre I' Pomeroy, 35 NY2d 361, 362 NYS2d 13] [1974]). It is wcll settled that the proponent of a sUlllmary Judgmcnt motion must make a prill/ll filcie showing of entil1cmem to judgment as a Illatter of law, tendcring sufficient proof to demonstrate the absence or any material issues of fact (Ail'arez l' Prospect Hosp .. 68 NY2d 320, 324. 508 NYS2d 923, 925 [19861). Failure to make such a showing requires a denial of the motion, regardless or the sufficiency of the opposing papers (Winegmdl' New York Ullil'. Med. 0,..,64 NY2d 851,853,487 NYS2d 316, 318 [1985 D. Further, the credIbility of thc pal1ics is not an appropriate consideration for the Court (5../. Cape/ill Assoc., Illc. l' Globe Mfg. Cot1)" 34 NY2d 338, 357 NYS2d 478 [1974]), and al1 competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Be/lillCllSa l' [* 3] Bierer v. Shorrham-Wading Index No.: 24153/2010 Page No.3 River H.S .. et al. G(IJ'rllhho, 141 /\D2d 636, 637, 529 NYS2d 797,799 [2d Dept 1988"]). Once aprilllafacie showing has been made, the burden shifts to the party opposing the sUlllmary judgment motion to produce evidence sufficient to establish Lhe existence of a material issue of fact (see Alvilrez v Prospect HO!lp., supra) . ../\ property owner will be held liable for a slip and fall involving snow and ice on its property only when it created the dangerous condition that caused the accident ... or had actual or constructIve notice thereof' (Medilla v La Fiura Dev. Corp., 69 AD3d 686, 686, 8951\TYS2d 98, 99 [2d Dept 20 10D. To constiiute constructive notice, the "condition must be visible and apparent, and must exist for a sufficient length of time before the accident to permit the defendant to discovcr and rcmedy it" (Bolloli v WalilbllulIJ, lIlC., 71 AD3d 618, 619, 896 NYS2d 400, 402 [2d Dept 20 I0] [internal quotation marks omitted]). On a motion for summary jlldb'Illent dismissing a complaint, the defendant bears the burden of proving the absence of notice as a matter of law (see A/stOll )' Stllrrett Citv Assoc .. 72 AD3d 711, 898 NYS2d 859 [2d Depl 201 OJ). Here, both the School District and the Public Library failed to establish prilllalacie that they did not have constructive notice of the ice on the top step of the staircase located outside of the library, since they did not offer any evidence as to when the staircase was last inspected, shoveled or salted (see Spector I' Cushmllll & Wakefieltl, IIIC., 87 AD3d 422, 928 NYS2d 9 [1st Dept 20 II]; MigllOglllll1 7-Elevell, IlIc., 76 AD3d 1054,908 NYS2d 258 [2d Dcpt 20 10]; Tottell v Cumber/mul Fllrms, Inc., 57 AD3d 653, 908 NYS2d 258 [2d Dept 2008]). Therefore, both motions for summary judgment dismissing the complaint are denied. Tumillg to the plaintiffs mohon to amend her bIll ofpartieuJars, generally leave to amend a bill ofparticlliars should bc freely granted in the absence ofprejlldice or surprise resulting from the delay in seeking leave, unless the amendment is sought on the eve of trial or it is palpably insufficient or devoid of mcrit (see Roman 1/ 233 Broadway Owners, LLC, 99 AD3d 882, _ NYS2d _ [2d Dept 2012]; All/arado v Beth Israel Jled. Ctr., 78 AD3d 873, 911 NYS2d 174l2d Dept 20 1OJ; Grallde l' Peteroy. 39 AD3d 590, 833 NYS2d 615 [2d Dept 2007]). Here, the plainti ff's motion was made only two and one-hal f months after the note of issue was filed. Thus, contrary to the defendants' contentions, the plaintiff did not need to asscrt a reasonable excuse for her delay. The plaintiff seeks to amend her bill of particulars to specify more particulars with respect to both defendants' negligence. to wit, that the defendants were negligent in that the steps upon which the plalntl ff Cellwere uneven ami did nOl have a handraIl. The proposed amendments are not palpably IJ1surficll~nt r devoid of merit, and the defendants would not be prejudiced or surprised by them. o The notice of claim served upon the defendants specifically stated that "[t]he stairs were not reasonably sufe (existcncc of ice and/or snow) (no handrails)" and Robert Woolsey. the plant l~lCiliticsadllllI1istrator for the high school, testifIed at his clepositlOll that the stairs did nOl have a handrail and were not level. Accordingly, the plaintIff's molion is granted. As to the separate motion by the School District which seeks, infer alia. to strike the note or issue and compel additional discovery, the Illation is granted to the extent that the plaintiff is directed to appear for a continued deposition limited 10 the amendment to the bil1 of particulars within 90 [* 4] Bierce v, Shoreham~'Vading Index No,: 2415312010 Ilage No.4 Rivl'r B.S" et al. days oCthe date of this order at a time and place mutually agreeable to the parties, and such motion is otherwise denied. Dated: ___ FINAL DISPOSITION x NON-FINAL D181'OSlTlON [* 5] RIDER Attorney for Plaintiff: Celli no & Barnes. P.c. GOO Old Country Road, Suite 500 Garden City, NY 11530 Attornev for Defendants Shoreham-Wading River High School: Shoreham- Wading River School District: Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis and Fishlinger 333 Earle Ovington Boulevard, Suite 502 Uniondale, Y 11553-3625 Attornev for Defendant North Shore Public Library: Hammill, O'Bnen, Croutier, Dempsey, Pender & Koehler, P.C. 6851 Jericho Turnpike, Suite 1306 PO. Box 1306 Syosset, NY 11791 Clerk of the COLIrt

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