Motorino Williamsburg, Inc. v Rivera

[*1] Motorino Williamsburg, Inc. v Rivera 2013 NY Slip Op 50495(U) Decided on March 15, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013
Supreme Court, Kings County

Motorino Williamsburg, Inc., Plaintiff,

against

Rosa Rivera, Defendant.



24444/11



Plaintiff Attorney: Adam Leitman Bailey, P.C., 120 Broadway, 17th Floor, New York, NY 10271

Defendant Attorney: Michael D. Leopold, Esq., 405 East 54th Street, 15H, New York, NY 10022

David I. Schmidt, J.

The following papers numbered 1 to 11 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 - 5

Opposing Affidavits (Affirmations)6 - 8

Reply Affidavits (Affirmations)9

Defendant Sur-Reply Affidavit10

Other Papers: Plaintiff Affirmation in Opposition to Sur-Reply11

Upon the foregoing papers, plaintiff, Motorino Williamsburg, Inc. (Motorino), moves for an order, pursuant to CPLR 3212, granting it summary judgment against defendant, Rosa Rivera (Rivera), and, among other things, directing Rivera to reconstruct the subject premises and place Motorino back in possession for the remainder of its lease term or, in the alternative, set this matter down for a trial on damages.

Background

The underlying action results from an alleged breach of a commercial lease due to the demolition of the subject building by the City of New York pursuant to an emergency declaration and full vacate order issued by the New York City Department of Buildings [*2](DOB).

Motorino, as lessee, and Rivera, as lessor, entered into a commercial lease on October 2, 2007 for the first floor commercial space (leased premises) of 319 Graham Avenue, Brooklyn, New York (subject building). The subject building was a four story frame structure with a commercial store on the first floor and two residential apartments on each of floors two, three and four for a total of six residential apartments. According to the lease, Motorino took the first floor "as is" and was to renovate same for the purpose of opening an Italian restaurant. As part of the renovations, Motorino alleges it performed "non-structural" renovations to the first floor of the leased premises for the purpose of ensuring that the floor could support a brick pizza oven.

Prior to beginning renovations, Motorino alleges that all parties discussed that the subject building was leaning a few inches out of plumb.[FN1] The fact that the building was leaning prior to the commencement of the plaintiff's lease is supported by three DOB violations, dated July 26, 1994, November 3, 1994 and January 26, 1995, documenting that the building was out of plumb approximately three to four inches to the right toward Devoe Street. After assurances from defendant's expert, Harold Weinberg (Weinberg), the DOB and Motorino were satisfied that the building was safe and renovations began.[FN2] It appears that, from some point after January 25, 1995 through August, 2011, the subject building's right-ward lean continued increasing until the DOB issued a full vacate order on August 4, 2011. The DOB stated that the building was now leaning ten inches out of plumb and, as a result, the DOB deemed the entire structure unsafe, ordering its demolition. Two months later, in October, 2011, the subject building was razed.

Defendant contends that Motorino's renovations increased the right-ward lean of her building to an unsafe amount, ultimately resulting in the building's demolition. Plaintiff contends that it was years of improper maintenance and inaction by Rivera that caused both, the building's unsafe lean and the resulting breach to plaintiff's right of quiet enjoyment. In support of the instant motion, Motorino submits an affidavit from its expert, Elie Geiger (Geiger) as well as the defendant's expert, Weinberg, wherein both opined that reinforcing the first floor for the installation of the pizza oven would act as a stabilizing factor for the building. Motorino provides evidence that applications were filed with the DOB to cover the necessary work. The moving papers, however, contain no exhibits or other evidence detailing the actual work performed to the structure of the [*3]building to accommodate the oven's weight. Further, there is no explanation as to how the pizza oven support, presumably designed to help the first floor sustain the vertical load of the brick oven, was going to ameliorate the horizontal leaning of the remaining three stories above the oven.

In opposition to the instant motion, Rivera alleges that her building was safe until the plaintiff performed its renovations. The defendant submits that the scope of Motorino's work exceeded what was originally planned, encompassing substantial structural modifications that weakened the building causing the lean to worsen. Rivera cites to the proposition that the building stood for over one hundred years prior to the renovations, however, only a few years after they were completed, the DOB declared the building unsafe, ordering it be razed.

Rivera attempts to further support her opposition by submitting a supplemental affidavit from Weinberg during oral argument on the instant motion. Motorino opposes this submission on procedural grounds, requesting the court not consider the alleged improper sur-reply [FN3] as this affidavit is the most recent in a series of late submissions by defendant since commencement of the instant matter.

Discussion

Plaintiff's motion for Summary Judgment

The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Once such a showing is made, the burden shifts and the party opposing the motion must tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial or tender an acceptable excuse for his or her failure to do so (see Zuckerman, 49 NY2d at 557; Provident Bank v Giannasca, 55 AD3d 812, 812 [2008]; Verela v Citrus Lake Dev., Inc., 53 AD3d 574, 575 [2008]; Greenberg v Coronet Prop. Co., 167 AD2d 291 [1990]). In a motion for summary judgment, the moving party has the burden of setting forth evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law; anything less requires a denial of the motion. . . [C]onclusory assertions may not serve as a predicate for summary judgment (Coley v Michelin Tire Corp., 99 AD2d 795, 796 [1984]). Further, the party opposing a motion for summary judgment is entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions of the parties (see Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2003]). If the existence of an issue of fact is even arguable, summary judgment must be denied (see Museums at Stony Brook v Vil. [*4]of Patchogue Fire Dept., 146 AD2d 572 [1989]).

In negligence cases, such as the instant action, summary judgment is rarely appropriate (see Rivers v Atomic Exterminating Corp., 210 AD2d 134 [1994]; Smith v Key Bank of Western New York, 206 AD2d 848, 849 [1994]). Even when "the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law" (see Smith, 206 AD2d at 849, quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

The thrust of plaintiff's instant motion is that the defendant's negligent maintenance of the building, and not plaintiff's renovation of the first floor, was the direct cause of the City's demolition order. In support of its position, plaintiff offers the affidavit of its expert, Geiger and defendant's expert, Weinberg.

In his expert affidavit, Geiger lists his qualifications to offer an expert's opinion by proffering that he is the founder of Geiger Engineering and that he is an engineer licensed in the State of New York. Geiger alleges that, when visiting the building before renovations began, he personally observed that it was leaning to the right. Further, Geiger offers that his design for the pizza oven support was independent from building itself and did not weaken the building's structural stability. Geiger concludes his affidavit with the following paragraph:

"As of the day of this affidavit, I am leaving the country for approximately two weeks. As a result, I must keep this affidavit brief as I currently do not have time prior to my departure to go through my old files to get the exact details. If more in depth information regarding the pizza oven design, installation, and support systems is needed, I am happy to provide it upon my return."

No further affidavits from Geiger are submitted in support of the instant motion.

"An expert must possess sufficient skill, training, education, knowledge, or

experience from which it may reasonably be inferred that the information the expert imparts and any opinion that the expert states is reliable" (Matott v Ward, 48 NY2d 455 [1979]; see Applewhite v Accuhealth, Inc., 81 AD3d 94 [2010]; LaMarque v North Shore University Hosp., 227 AD2d 594 [1996]). Geiger makes bare contentions offering no evidence of his qualifications to offer an expert opinion on the issues herein presented nor evidence of prior practical experience in the field upon which to base his opinion (see Price ex rel. Price v New York City Housing Auth., 92 NY2d 553 [1998]; Caprara v Chrysler Corp., 52 NY2d 114 [1981]). Indeed, Geiger failed to lay any other "foundation . . . tending to support the reliability of" his opinion (see Applewhite, supra).

A review of plaintiff's moving papers yields no evidence documenting the scope of the "minor non-load bearing partition re-configuration" or the "structural work filed under alt. type II application No.310105908" detailed on the November 20, 2007 DOB filing. A review of application number 310105908, dated April 14, 2008, shows that the "Work Type" for this filing is "OT-Structural" [emphasis added] and lists the installation [*5]of the pizza oven's support as the work being provided. It has been long held that an expert may not merely rely on his or her status as an expert to offer an opinion. He must divulge the protocols and methods he used to arrive at the conclusions he reached (see generally Torres v West Street Realty, Inc., 21 AD3d 718 [2005]). An expert may not guess or speculate in drawing a conclusion (see Quinn v Artcraft Const., Inc., 203 AD2d 444 [1994]).

As Geiger's affidavit provides no evidence to support his opinion, the affidavit is, therefore, speculative, conclusory, and lacking in probative value, thus, it can not support Motorino's motion for summary judgment (see Paladino v Time Warner Cable of NYC, 16 AD3d 646 [2005]; Youthkins v Cascio, 298 AD2d 386, 387 [2002], affd 99 NY2d 638 [2003]).

Although plaintiff also submits Weinberg's affidavit to support the plaintiff's instant motion, Weinberg's affidavit contains no evidence of the renovations performed, thus, it too offers no support for the plaintiff's contention that the renovations had no effect on the increasing lean of the subject building. Accordingly, for the reasons enumerated above, Weinberg's affidavit too lacks probative value and does not support the plaintiff's instant motion (Id.).

Plaintiff has provided no evidence that conclusively establishes, as a matter of law, that the renovations to the leased premises did not contribute to the increased lean of the defendant's building. Thus, an issue of fact exists sufficient to preclude summary judgment in Motorino's favor. Accordingly, as the plaintiff has failed to meet its initial burden of demonstrating entitlement to judgment as a matter of law (see Alvarez, 68 NY2d at 324), that burden never shifted to defendant to establish the existence of a material fact which would require a trial (see Greenberg, 167 AD2d at 291). As a result, the plaintiff's motion is denied without regard to the sufficiency of Rivera's opposition papers (see Winegrad, 64 NY2d at 853; Hughes v Cai, 31 AD3d at 385-386; Hanna v Alverado,16 AD3d 624 [2005]).

Plaintiff's Opposition to Defendant's Allegedly Improper Sur-Reply

Having failed to make its prima facie burden, plaintiff's opposition to the defendant's allegedly improper sur-reply has been rendered moot. However if, for the sake of argument, plaintiff had made its initial burden, defendant's sur-reply, in the form of an additional affidavit from its expert Weinberg, would not be considered by the court because the affidavit was submitted after the return date of the motion (during oral argument of same) and the defendant offered no excuse for failing to submit this affidavit with her original opposition papers (see Long Is. Jr. Soccer League v Back of the Net, Ltd., 85 AD3d 737 [2011]; Courtney v Port Auth. of NY & NJ, 34 AD3d 716, 718 [2006]; Mosheyeva v Distefano, 288 AD2d 448, 449 [2001]; Romeo v Ben-Soph Food Corp., 146 AD2d 688, 690 [1989]). In any event, defendant's untimely submission holds no probative value herein as same is conclusory, and speculative (Paladino at 646; Youthkins at 387) relying solely on Weinberg's role as an "expert" to support his [*6]allegations without divulging the protocols or methods used to arrive thereto (Torres at 718).As a final note, a review of the record in this matter shows a pattern of delayed submissions and overall disregard for the court's deadlines that, absent any explanation, borders on willful and contumacious conduct. For this reason, the parties are forewarned that the court will no longer countenance such flagrant disregard for its deadlines and shall utilize all efforts at its disposal, including but not limited to the imposition of costs and/ or sanctions, to that end.

Conclusion

To recapitulate, Motorino's motion for summary judgment is denied in all respects.The court, having considered the parties' remaining contentions, finds them to be without merit. All relief not expressly granted herein is denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:"Plumb", is a term defined as having a vertical axis perpendicular to a horizontal axis (see Dictionary.com, available at www.dictionary.reference.com/browse/plumb ?s=t & path=/[last accessed March 12, 2013]). Therefore, when the parties allege that the subject

building was "out of plumb," they are alleging that the building is leaning toward one side and the vertical axis (its walls) are no longer perpendicular to the horizontal axis (its foundation).

Footnote 2:Motorino alleges its renovations were complete in March, 2009.

Footnote 3:There is no evidence in the record that defendant was granted leave to submit a sur-reply.