Degaetano v JP Morgan Chase Bank, NA

[*1] Degaetano v JP Morgan Chase Bank, NA 2013 NY Slip Op 50567(U) Decided on March 15, 2013 Supreme Court, Orange County Bartlett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, Orange County

Laura Degaetano, Plaintiff,

against

JP Morgan Chase Bank, NA, VILLAGE OF WARWICK, ALL PHASE CONSTRUCTION GROUP, and JULIANO SIDING COMPANY, LLC, Defendants.



12409/2010

Catherine M. Bartlett, J.

The following papers numbered 1 to 47 were read on the various motions and cross-[*2]motions for summary judgment made by defendants:

Notice of Motion-Affirmation of Nicholas Pascale, Esq.-Affidavits-Exhibits (Village of Warwick) 1-7

Affirmation in Opposition-Affidavits-Exhibits (Village of Warwick) 8-11

Reply Affirmation-Exhibits (Village of Warwick) 12-13

Notice of Motion-Affirmation of Frank Keenan, Esq.-Exhibits-Memo of Law (Juliano) 14-17

Affirmation in Opposition-Affidavits-Exhibits (Juliano) 18-21

Reply Affirmation-Exhibit (Juliano) 22-23

Notice of Motion-Affirmation of Marcin Kurzatkowski, Esq.-Exhibits (Chase) 24-26

Affirmation in Opposition-Affidavits-Exhibits (Chase) 27-30

Reply Affirmation-Exhibit (Chase) 31-32

Notice of Motion-Affirmation of Mark Steifeld, Esq.-Exhibits (All Phase) 33-35

Affirmation in Opposition-Exhibits (All Phase) 36-37

Notice of Cross-Motion-Affirmation of Nicholas Pascale, Esq.-Exhibits (Village Cross) 38-40

Chase's Partial Opposition to Cross-Motion 41

Cablevision's Opposition to Cross-Motion 42

Notice of Motion-Affirmation of Adrienne Yaron, Esq.-Exhibits 43-45

Reply Affirmation of Nicholas Pascale, Esq.-Exhibit 46-47

Upon the foregoing papers, it is ORDERED that the motions are disposed of as follows:

This is an action in personal injury stemming from an alleged trip and fall accident which occurred on July 22, 2010 while plaintiff was descending a set of stairs of a pedestrian foot bridge attached to third party defendant Cablevision of Warwick LLC's ("Cablevision") building. At the time of the accident, plaintiff was a Cablevision employee. The bridge itself led from Cablevision's building down to a parking lot, and the lot was owned by defendant JP Morgan Chase Bank, NA ("Chase") and leased by the Village of Warwick ("Warwick"). The bridge was owned by Cablevision of Warwick LLC ("Cablevision").

Warwick's Motion for Summary Judgment as against Plaintiff

Warwick now moves for summary judgment asserting that there was no prior written notice, a fact which plaintiff does not dispute, and that plaintiff did not demonstrate any exception to the prior written notice requirement.

In opposition, plaintiff asserts that defendant failed to annex the proper pleadings, failing to include the amended pleadings which are the operative documents in this matter, and instead including only the original pleadings, but fails to assert any prejudice which resulted therefrom. Additionally, plaintiff asserts that prior written notice is not required if a municipality acts as a proprietary landowner, which plaintiff states, occurred here since Warwick operated a parking concession in the lot itself. Moreover, plaintiff asserts that Warwick failed to establish a prima facie case for summary judgment on the substantive issues of the case. Plaintiff's counsel submits the affidavit of an expert who opines that the step height where plaintiff allegedly fell was not compliant with the building code.

On reply, Warwick's counsel does a "mea culpa", acknowledging the failure to annex the most updated pleadings, but asserts that the error was merely ministerial, that he annexes same on reply, and that the Court is empowered to overlook this error in the absence of prejudice asserted by the opposing party. Substantively, Warwick contends that the proprietary capacity [*3]issue upon which plaintiff relies to get around the prior written notice requirement is not a recognized exception to the rule, and even if it was, Warwick did not own the parking lot, Chase did, and did not own the foot bridge, Cablevision did.

Given the absence of any proof of prejudice by plaintiff or proof of any substantial right of plaintiff being impaired by Warwick's error, this Court will exercise its discretion and consider the motion on its merits. See, Avalon Gardens Rehabilitation & Health Care Center, LLC v Morsello, 97 AD3d 611 (2nd Dept. 2012).

CPLR §3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."

In Andre v Pomeroy, 35 NY2d 361, 364 (1974), the Court of Appeals held that:

[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law . . . when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.

According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).

Warwick Village Code § 59-1requires prior written notice of any defects prior to liability being imposed for injuries sustained as a result of any defects in village property. As previously stated, plaintiff does not dispute the absence of prior written notice. According to Amabile v City of Buffalo, 93 NY2d 471 (1999), prior written notice laws are a valid exercise of legislative authority when such laws are enacted pursuant to General Municipal Law § 50-e(4). Therefore, absent an exception to the statutory rule of prior written notice, plaintiffs' action will fail.

According to the Court of Appeals, the only two statutory exceptions to the prior written notice requirements are a special use by the municipality or a condition created by the municipality. See, Amabile, 93 NY2d at 474; Oboler v City of New York, 8 NY3d 888, 889 (2007); Yarborough v City of New York, 10 NY3d 726, 728 (2008). After proof by the Warwick of an absence of prior written notice, the burden of proof shifts to the plaintiff to demonstrate one of the two exceptions to the prior written notice requirement. See, Yarborough, 10 NY3d at 728. There is no allegation or proof of a condition created by Warwick and no proof of any special use. Plaintiff's only argument is limited to the supposed "proprietary capacity" exception which is not recognized under these circumstances since Warwick did not own either the parking lot or the foot bridge. As expressed in Peters v City of White Plains, 58 AD3d 824, 825 (2nd Dept. 2009), " [a] public parking garage, like a parking lot, falls within the definition of a highway and is one of the areas in which the General Municipal Law permits a local government to require notice of [*4]defective conditions (see Walker v. Town of Hempstead, 84 NY2d at 366, 367, 618 N.Y.S.2d 758, 643 N.E.2d 77; Mendes v. Whitney—Floral Realty Corp., 216 AD2d 540, 542, 629 N.Y.S.2d 63)." In the instant case, the parking lot was not owned by Warwick, but even if it was, prior written notice still applies. As such, given the conceded absence of prior written notice, Warwick's motion for summary judgment as against plaintiff must be granted in its entirety. The parties remaining contentions are rendered moot by this determination.

Juliano's Motion for Summary Judgment as against Plaintiff

Juliano Siding, LLC ("Juliano") moves for summary judgment as against plaintiff. Juliano was the subcontractor hired by co-defendant All Phase Construction Group to build and install the foot bridge where plaintiff allegedly tripped and fell. Juliano asserts that it has no liability in this case due to the absence of any duty owed to plaintiff, since there was no continuing contractual obligation owed by Juliano to plaintiff upon which plaintiff detrimentally relied. Plaintiff opposes Juliano's motion on two bases, namely that Juliano failed to annex copies of any signed deposition transcripts or letters of transmission indicating that they were properly transmitted at least 60 days prior to their use. Additionally, plaintiff asserts on substantive grounds that the Juliano failed to demonstrate an absence of either constructive or actual notice and that it did not create the condition at issue. Juliano replies by annexing copies of the deposition transcript transmittal letters and noting that it had no such obligation to demonstrate an absence of notice or that it did not create the condition since it owed no duty to plaintiff in the first place.

Unlike Warwick's ministerial error in failing to annex the most updated pleadings which can be corrected on reply under the law, Juliano's practice failure cannot be so easily cured. CPLR 3212(b) states in pertinent part that "[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit."

The deposition transcripts submitted by Juliano will not be considered in support of its counsel's application because they are unsigned and there is no proof submitted that it was transmitted 60 days prior to the date of intended use. It is therefore inadmissible evidence which may not be considered on a motion for summary judgment. See, Mc Donald v Mauss, 38 AD3d 727 (2nd Dept. 2007); Pina v Filk International Corp., 25 AD3d 772 (2nd Dept. 2006); Scotto v Marra, 23 AD3d 543 (2nd Dept. 2005)

CPLR §3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."

According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell [*5]University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).

The movant has the burden of submitting evidence, in admissible form, to support its motion. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v M & M Auto & Marine Upholstery, Inc., 256 AD2d 551, 551 (2nd Dept. 1998). It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 NY2d 338, 341, 357 N.Y.S.2d 478, 480 (1974). Finkelstein v. Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v Wal-Mart Stores, Inc., 288 AD2d 902, 902 (4th Dept. 2001); Dodge v City of Hornell Industrial Development Agency, 286 AD2d 902, 903 (4th Dept. 2001); Frank v Price Chopper Operating Co., Inc., 275 AD2d 940 (4th Dept. 2000).

In the instant case, defendant's counsel failed to submit any admissible evidence in support of its motion. There is no affidavit of anyone and the unsigned deposition transcripts do not constitute any admissible evidence.

Therefore, the Court is limited to considering the affirmation of Juliano's counsel who lacks personal knowledge of the facts of the case. An attorney's affirmation in support of a motion for summary judgment is insufficient when the attorney has no personal knowledge of the facts. See, Salas v Town of Lake Luzerne, 265 AD2d 770, 770 (3rd Dept. 1999); See also, Wright v. Rite-Aid of NY, Inc., 249 AD2d 931, 932 (4th Dept. 1998); Hodgson, Russ, Andrews, Woods & Goodyear v. Roth, 186 AD2d 1001, 1002 (4th Dept.1992). Absent any admissible evidence in support of the defendant's motion, the Court must deny the motion in its entirety without regard to the sufficiency of the plaintiff's proof.

Juliano cannot correct this evidentiary failure on reply since evidence cannot be submitted for the first time on reply in order to make out a prima facie case for summary judgment. See, L'Aquila Realty LLC v Jalyng Food Corp., 103 AD3d 692 (2nd Dept. 2013); Rengifo v City of New York, 7 AD3d 773 (2nd Dept. 2004); Adler v Suffolk County Water Authority, 306 AD2d 229 (2nd Dept. 2003). Juliano provides no supporting authority to the contrary. Therefore, Juliano's motion must be denied for its failure to prove its prima facie case.

Chase's Motion for Summary Judgment as against Plaintiff

Chase moves for summary judgment as against plaintiff essentially asserting the fact that in its lease with Warwick, Warwick was to maintain the bridge where plaintiff allegedly tripped and fell. Even though all parties admit that the lease itself expired, both Chase and Warwick continued to operate under the terms thereof. Then, Chase asserts that it was Cablevision which was obligated to maintain the bridge. Furthermore, Chase asserts that plaintiff failed to identify a defect in the first place, and even if she did, that Chase lacked the requisite actual or constructive notice of the condition and that it did not create any such defect. [*6]

Moreover, Chase moves for summary judgment on its claims of common law indemnification and contribution from Warwick. This portion of the Chase's motion will be separately dealt with later in this decision.

In opposition, plaintiff calls to the Court's attention that Chase never answered the amended complaint and therefore lacks standing to even make a motion for summary judgment. Chase served an answer to the amended complaint almost one year after the amended complaint was served and plaintiff rejected same. Moreover, plaintiff asserts that as a property owner, Chase owes a non-delegable duty to plaintiff. Additionally, plaintiff asserts that Chase failed to make out a prima facie case for summary judgment in that it failed to demonstrate that it did not create a defective condition and that it failed to demonstrate an absence of notice.

In the first place, it appears that Chase never answered the amended complaint prior to making its motion for summary judgment and interposed same thereafter. What is also true is that plaintiff, despite having served an amended complaint in April, 2012, failed to move for a default judgment as against Chase in the many months subsequent to Chase's default. Plaintiff provides no authority for her assertion that Chase lacks standing, especially in light of the fact that Chase actively participated in the litigation and did answer the original complaint which did not change as pertaining to Chase in the amended complaint. Therefore, plaintiff's argument on this front is disingenuous. A pox on the houses of both Chase and plaintiff for not fulfilling their respective obligations in either answering timely or moving for a default judgment.

"In moving for summary judgment, the defendant [bears] the initial burden of establishing that it maintained its premises in a reasonably safe condition, had no actual or constructive knowledge of the [condition] and did not create the allegedly dangerous condition." Petrell v Victory Markets, Inc., 283 AD2d 955 (4th Dept. 2001); Grant v Radamar Meat, 294 AD2d 398, 398 (2nd Dept. 2002); Atkinson v Golub Corporation Company, 278 AD2d 905, 906 (4th Dept. 2000).

The moving party's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers", for the burden in that event never shifts to the opponent to demonstrate the existence of a material issue of fact. Winegrad v New York University Medical Center, supra, 64 NY2d at 853. The Second Department has repeatedly affirmed that the movant's failure in the first instance to demonstrate entitlement to the drastic relief of summary judgment mandates denial of the motion regardless of the sufficiency of the opposing papers. See, e.g., Miccoli v Kotz, 278 AD2d 460, 461 (2nd Dept. 2000); Karras v County of Westchester, 272 AD2d 377, 378 (2nd Dept. 2000); Fox v Kamal Corporation, 271 AD2d 485 (2nd Dept. 2000); Gstalder v State of New York, 240 AD2d 541, 542 (2nd Dept. 1997); Lamberta v Long Island Railroad, 51 AD2d 730, 730-731 (2nd Dept. 1976); Greenberg v Manlon Realty, Inc., 43 AD2d 968, 969 (2nd Dept. 1974).

A landowner's responsibility is to assure that the conditions on his property are reasonably safe. Basso v Miller, 40 NY2d 233, 241 (1976); Comeau v Wray, 241 AD2d 602, 603 (3rd Dept. 1997); White v Gabrielli, 272 AD2d 469, 469 (2nd Dept. 2000); Rovegno v Church of the Assumption, 268 AD2d 576, 576 (2nd Dept. 2000); Kurshals v Connetquot Central School District, 227 AD2d 593, 593 (2nd Dept. 1996). Specifically, the Basso Court stated that

[i]ndeed as the duty was so clearly stated in Smith v. Arbaugh's Rest. [152 U.S. App. D.C. 86, 469 F.2d 97, 100 [D.C. Cir. 1972]]: "A landowner must act as a reasonable man in [*7]maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk". Application of the single rule in the instant case exemplifies its good sense, for the duty of keeping the roads of Ice Caves Mountain in repair should not vary with the status of the person who uses them but, rather, with the foreseeability of their use and the possibility of injury resulting therefrom.

Basso, 40 NY2d at 241; Kurshals, 227 AD2d at 593 (2nd Dept. 1996); Rovengno, 268 AD2d at 576 (2nd Dept. 2000).

As expressed in Cupo v Karfunkel, 1 AD3d 48 (2nd Dept. 2003), once a plaintiff presents evidence of a dangerous condition, the burden shifts to the landowner to demonstrate that he acted with reasonable care to make the property safe based upon the likelihood of injury to others and the burden of avoiding the risk. See, Id. at 52.

In Comeau, supra, a deliveryman sued the property owners after falling on stairs leading to a root cellar. Landowners are under a duty to maintain their premises in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others. See, Id. at 603. This duty encompasses warning others of the danger, including obvious ones, or take reasonable steps to protect others from the dangers. See, Id. Moreover, where members of the public frequent a location, a landowner owes a "nondelegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress.' (Thomassen v. J & K Diner, 152 AD2d 421, 424, 549 N.Y.S.2d 416; see, Richardson v. Schwager Assoc., 249 AD2d 531, 531-532, 672 N.Y.S.2d 114).". Arabian v Benenson, 284 AD2d 422, 422 (2nd Dept. 2001); see, Reynolds v Sead Development Group, 257 AD2d 940, 940 (3rd Dept. 1999); June v Bill Zikakis Chevrolet, Inc., 199 AD2d 907, 909 (3rd Dept. 1993). This duty includes a duty to provide adequate lighting for such persons frequenting the locations. See, Tarrazi v 2025 Richmond Avenue Associates, Inc., 296 AD2d 542, 544 (2nd Dept. 2002); Shirman v New York City Transit Authority, 264 AD2d 832, 833 (2nd Dept. 1999); Gallagher v St. Raymond's Roman Catholic Church, 21 NY2d 554, 558 (1968). Plaintiff testified as to inadequate lighting which caused her not to see the board over which she tripped and fell. Defendants proffered no admissible evidence to contradict that assertion.

Where a property owner has a nondelegable duty to keep the premises safe, the duty may not be delegated to agents, employees or independent contractors. See, Backiel v Citibank, N.A., 299 AD2d 504 (2nd Dept. 2002). The property owner is in the best position to assume the risks associated with conditions existing on its property since it is consistent with the general responsibility of owners to maintain their premises in a reasonably safe condition under all circumstances. See Basso, 40 NY2d 233.

Furthermore, Chase claims an absence of any actual or constructive notice of the condition. As the initial proponent of summary judgment, Chase was obligated to demonstrate that it lacked actual or constructive notice of the precipitating condition or that it did not create the condition. See generally, Gordon v American Museum of Natural History, 67 NY2d 836 (1986); Gloria v MGM Emerald Enterprises, Inc., 298 AD2d 355 (2nd Dept.,2002); Van Steenburg v Great Atlantic & Pacific Tea Company Inc., supra, 235 AD2d 1001 (3rd Dept. 1997). See, Curzio v Tancredi, 8 AD3d 608 (2nd Dept. 2004); Petrell v Victory Markets, Inc., [*8]283 AD2d 955 (4th Dept. 2001); Atkinson v Golub Corporation Company, 278 AD2d 905, 906 (4th Dept. 2000); Frank v Price Chopper Operating Co., Inc., supra, 275 AD2d 940 (4th Dept. 2000).

As demonstrated in plaintiff's opposition, her expert's disclosure was made in October, 2012, long before the motions for summary judgment were made here. In that disclosure, plaintiff's expert opines that there was a condition created by an improper and differential step height and that of the hazardous condition of the parking lot due to a hole where plaintiff claims to have fallen which according to testimony, was present for at least 6 months prior to her accident. There is no evidence that Chase created the alleged hole in the parking lot. However, Chase was on notice prior to moving for summary judgment on the theory of constructive notice and submitted no evidence to contradict it. Chase's motion on the issue of condition created is therefore granted.

Chase, as movant for summary judgment, had the initial burden of establishing the lack of actual or constructive notice. See, Lowe v Olympia & York Companies, 238 AD2d 317 (2nd Dept. 1997); Alvarez v Compass Retail, Inc., 237 AD2d 473 (2nd Dept. 1997); see also, Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982 (1993). There is no evidence that Chase received complaints concerning the conditions at issue, and therefore Chase's motion must be granted on the issue of actual notice.

Proof of lack of actual notice alone is insufficient. See, Reinemann v Stewart's Ice Cream Co., Inc., 238 AD2d 845 (3rd Dept. 1997). It was also incumbent on Chase, as movant, to show lack of constructive notice, in that the condition which caused the accident was not visible or apparent for a sufficient length of time to permit defendant, in the exercise of reasonable care, to remedy the defect. See, Reinemann, supra; Cobrin v County of Monroe, 212 AD2d 1011 (4th Dept. 1995).

Chase was obligated to demonstrate that they made reasonable efforts to inspect the subject premises in order to ascertain whether there were hazardous or defective conditions about which it would receive actual or constructive notice. See, Zuckerman v State of New York, 209 AD2d 510, 512 (2nd Dept. 1994).

As the Court stated in Haleemeh M.S. ex rel. Mohammad S.F. v MRMS Realty Corp., 28 Misc 3d 443 (Sup. Kings, 2010):

"Constructive notice" is described both as a legal inference and a duty of inquiry. "Constructive notice is a legal inference from established facts." ( Bierzynski v. New York Central R.R. Co. ., 31 AD2d 294, 297, 297 N.Y.S.2d 457 [4th Dept 1969], aff'd 29 NY2d 804 [1971] [ quoting Birdsall v. Russell, 29 NY 220, 248 (1864) ].) "Constructive notice ordinarily means that a person should be held to have knowledge of certain facts because he knows other facts from which it is concluded that he actually knew, or ought to have known, the fact in question." ( Id. [ quoting 42 NY Jur., Notice and Notices, § 3.)

"Constructive notice also exists whenever it is shown that reasonable diligence would have produced actual notice." ( Id.) "A person is chargeable with constructive notice of any fact which would have been disclosed by a reasonably diligent inquiry if circumstances are such as to indicate to a person of reasonable prudence and caution the necessity of making inquiry to ascertain the true facts and he or she avoids such inquiry." ( Majer v. Schmidt, 169 AD2d 501, [*9]503, 564 N.Y.S.2d 722 [1st Dept 1991].) "One who has reasonable grounds for suspecting or inquiring ought to suspect, ought to inquire, and the law charges him with the knowledge which the proper inquiry would disclose." ( Fidelity & Deposit Co. v. Queens County Trust Co., 226 NY 225, 233 [1919].)

In Wynn v T.R.I.P. Redevelopment Associates, 296 AD3d 176, 181 (3rd Dept. 2002), the Court held that a "landlord is generally chargeable with notice of the dangerous conditions which a reasonable inspection would have discovered — the adequacy of the inspections usually being a question for the jury [cit. om.]."(emphasis supplied). It should also be noted that so long as "a defendant has a duty to conduct reasonable inspections of the premises, the issue of actual or constructive notice is irrelevant." (Emphasis supplied) Weller v Colleges of the Senecas, 217 AD2d 280, 285 (4th Dept. 1995); Watson v City of New York, 184 AD2d 690, 690 (2nd Dept. 1992). Moreover, Chase adduced no evidence whatsoever concerning a specific maintenance protocol for the subject premises. This glaring deficiency in the defendant's proof precludes a finding that the defendants lacked constructive notice as a matter of law and further that defendant even made out a prima face case for summary judgment. See, Mancini v Quality Markets, Inc., 256 AD2d 1177 (4th Dept. 1998); Edwards v Wal-Mart Stores Inc., 243 AD2d 803 (3rd Dept. 1997); Van Steenburg v Great Atlantic & Pacific Tea Company Inc., 235 AD2d 1001 (3rd Dept. 1997). In all of these cases,the defendants proffered testimony on this score and still failed to meet its initial burden of proof on the motion for summary judgment.

In Mancini, supra, the Court wrote:

Although plaintiff will bear the burden at trial of proving that defendant had actual or constructive notice of the dangerous condition, on a motion for summary judgment defendant bears the burden of establishing lack of notice as a matter of law [cit.om.]. The affidavit of the store manager and the deposition testimony of the front end manager are not sufficient to sustain defendant's burden. Neither was able to state when the area had last been inspected, or which employee was responsible for inspection or clean up in the produce area. Plaintiff's accident occurred after 9:30 p.m., and both witnesses indicated that the produce manager, who is responsible for the produce area, left at 5:00 p.m. at the latest. Although both witnesses indicated that the store had a policy of inspection of the entire store every hour, no documentation was provided to establish that the policy was followed on the day of plaintiff's accident, nor could either witness recall having performed such inspections. Consequently, defendant failed to establish that the grapes had not been on the floor for a sufficient length of time to permit an employee to discover and remedy the condition.

Id., 256 AD2d at 1177-78.

In Edwards, supra, where the plaintiff fell in a puddle of dirty water at around 8:30 p.m., the Court wrote:

In support of the motion [for summary judgment], defendant submitted the examination before trial of its comanager who testified that, although there was no set schedule, the "general practice" of the store was to inspect the area around the restrooms every half hour to an hour. However, in response to plaintiff's interrogatories, defendant admitted that it was unknown "what maintenance, inspection or cleaning was done in the area of the ladies' room" on the day of plaintiff's accident. The only pertinent evidence on this point was the testimony from a courtesy [*10]desk employee who stated that the last time she inspected the area that day was prior to 7:00 p.m., at which time she did not notice water on the floor.

In our view, this evidence was insufficient to meet defendant's burden of showing that it did not have constructive notice of the dangerous condition [cit.om.].

Id., 243 AD2d at 803.

Finally, in Van Steenburg, supra, the Court wrote:

[T]he store manager testified that there was no janitorial staff for the store; instead, all department heads and employees were instructed to clean during their idle time. Additionally, the store manager could not recall if a specific sweeping or mapping schedule was in place at the time of plaintiff's fall, nor was he able to state when the floor in the produce area was last cleaned prior to plaintiff's accident. Such proof falls far short of satisfying defendant's burden on its motion for summary judgment (compare, McClarren v. Price Chopper Supermarkets, 226 AD2d 982...[proof establishing that the aisle where the plaintiff fell was inspected 3 to 5 minutes prior to the accident and found to be clean and dry]; Maiorano v. Price Chopper Operating Co., 221 AD2d 698, 699...[record demonstrated that the area in which the plaintiff fell had been swept 5 to 10 minutes prior to accident]). Thus,...the sufficiency of plaintiff's proof in opposition need not detain us, as defendant failed to meet its evidentiary burden in the first instance...

Id., 235 AD2d at 1001.

Conspicuously absent from defendant's moving papers is any admissible evidence to the absence of defendant's constructive notice.

It should also be noted that so long as "a defendant has a duty to conduct reasonable inspections of the premises, the issue of actual or constructive notice is irrelevant." (Emphasis supplied) Weller v. Colleges of the Senecas, 217 AD2d 280, 285, 635 N.Y.S.2d 990, 994 (4th Dept. 1995); Watson v. City of New York, 184 AD2d 690, 690, 585 N.Y.S.2d 100, 101 (2nd Dept. 1992).

Moreover, where members of the public frequent a location, a landowner owes a "nondelegable duty to provide members of the general public with a reasonably safe premises, including a safe means of ingress and egress.' (Thomassen v. J & K Diner, 152 AD2d 421, 424, 549 N.Y.S.2d 416; see, Richardson v. Schwager Assoc., 249 AD2d 531, 531-532, 672 N.Y.S.2d 114).". Arabian v Benenson, 284 AD2d 422, 422 (2nd Dept. 2001); see, Reynolds v Sead Development Group, 257 AD2d 940, 940 (3rd Dept. 1999); June v Bill Zikakis Chevrolet, Inc., 199 AD2d 907, 909 (3rd Dept. 1993). Where a property owner has a nondelegable duty to keep the premises safe, the duty may not be delegated to agents, employees or independent contractors. See, Backiel v Citibank, N.A., 299 AD2d 504 (2nd Dept. 2002). The property owner is in the best position to assume the risks associated with conditions existing on its property since it is consistent with the general responsibility of owners to maintain their premises in a reasonably safe condition under all circumstances. See Basso, 40 NY2d 233. This obligation owed to the general public encompasses all persons who come upon the premises. See, Backeil, 299 AD2d at 507. In the instant case, the accident occurred in a building specifically open to the public. As such, defendants owed a non-delegable duty to people such as plaintiff to properly maintain the [*11]subject premises. Given the submissions, questions of fact remain as to whether the defendant fulfilled such an obligation, and such questions must be resolved by a jury, not the Court. Plaintiff's testimony concerning the hole in the parking lot being present for at least six months only adds to the factual questions which must be resolved for a jury. Therefore, Chase's motion is denied on the issue of constructive notice but granted on the issue of condition created and actual notice.

All Phase's Motion for Summary Judgment as Against Warwick

All Phase moves for summary judgment as against Warwick. The note of issue was filed in this matter on October 23, 2012. All Phase moved for this relief on January 14, 2013 more than sixty days beyond the time permitted for such motions as permitted by this Court. All Phase claims that the note of issue was stricken in this case. That is true, however, it was stricken last May and refiled on October 23, 2012.

CPLR 3212(a) states "Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." Filing a motion for summary judgment beyond the time limit makes that motion untimely as a matter of law, especially when the proponent of said motion has neither sought leave to file late nor proffered an excuse demonstrating good cause for the lateness. Shmulevich v Gabbidon, 253 AD2d 756 (2nd Dept. 1998); Krug v Jones, 252 AD2d 572 (2nd Dept. 1998); Morales v One Times Square Associates, L.P., 254 AD2d 124, 125 (1st Dept. 1998); Haqq v Synergy Gas, 256 AD2d 442, 443 (2nd Dept. 1998); Johnson v Town of Fishkill, 262 AD2d 532, 533 (2nd Dept. 1999); Stransky v Tannenbaum, 262 AD2d 301 (2nd Dept. 1999). See, Wagner v City of New York, 271 AD2d 439 (2nd Dept. 2000); Deinhardt v Vought, 258 AD2d 432, 433 (2nd Dept. 1999); Anzalone v Varis, 254 AD2d 381 (2nd Dept. 1998).

In Brill v City of New York, 2 NY3d 648 (2004), the Court of Appeals clearly weighed in on this issue. Good cause as specified in CPLR 3212(a) requires a showing of good cause for the delay and an explanation for the untimeliness rather than permitting meritorious, nonprejudicial motions. See Id. at 652. The Brill Court made it clear that even despite the meritorious nature of a motion, motions made after the 120 days, absent an affirmative showing of good cause, necessitate denial of the motion or else parties will get into the habit of ignoring statutorily imposed deadlines and a court hasno discretion to grant said motion. See Id. at 653; see also, Breiding v Giladi, 15 AD3d 435 (2nd Dept., 2005); Thompson v New York City Board of Education, 10 AD3d 650 (2nd Dept. 2004).

The courts in the following cases denied motions for summary judgment as untimely because they failed to file their motions within 120 days after the filing of the notes of issue, and failed to establish good cause for the delay: Borelli v Gegaj, 248 AD2d 299 (1st Dept. 1998); Phoenix Garden Restaurant, Inc. v Chu, 245 AD2d 164 (1st Dept. 1997); Rodriguez v New York City Health And Hospitals Corporation, 245 AD2d 174 (1st Dept. 1997); Krug v Jones, 252 AD2d 572 (2nd Dept. 1998); Hilton v City of New Rochelle, 298 AD2d 360 (2nd Dept. 2002); Auger v State of New York, 236 AD2d 177 (3rd Dept. 1997). [*12]

In Parker v New York City Transit Authority, 307 AD2d 285 (2nd Dept. 2003), the Court held, "The plaintiff correctly contends that the Supreme Court improvidently exercised its discretion in granting leave to the defendant New York City Transit Authority (hereinafter the Transit Authority) to file a late motion for summary judgment, since the motion was made nine months after the note of issue had been filed and no good cause was offered for the delay [cits. om.][emphasis added]." Id. at 286.

Similarly, in Scocozza v Tolia, 262 AD2d 548 (2nd Dept. 1999), the Court denied the defendant's motion for summary judgment, and held, "[t]he Supreme Court improvidently exercised its discretion in permitting the defendant to submit a motion for partial summary judgment more than one year after the note of issue was filed... in view of the fact that the defendant did not demonstrate any good cause for the inordinate delay [cits. om.]." Id. at 548. See also, Morhart v City of New York, 267 AD2d 438 (2nd Dept. 1999)(defendants' motions for summary judgment denied as untimely where they were filed 13 months after note of issue filed); Dono v Bar Biz Restaurant & Equipment Corp., 292 AD2d 494 (2nd Dept. 2002)(defendant's motion to file late motion for summary judgment denied where it was filed 14 months after the note of issue was filed, and without good cause shown); Dunham v City of New York, 1 AD3d 312 (2nd Dept. 2003)(defendants' motion to file late motion for summary judgment denied where it was filed 16 months after the note of issue was filed, and without any explanation for the delay).

The meritorious nature of a late motion for summary judgment is no excuse or good cause, and the statutorily imposed deadline of 120 days is to be taken seriously. See, Miceli v State Farm Mutual Automobile Insurance Co., 3 NY3d 725, 726 (2004). The absence of prejudice to the non moving party also does not qualify as good cause. See, Gibbs v McRide Cab Co., 10 AD3d 671 (2nd Dept. 2004).

In Little v City of New York, 183 Misc 2d 739, 740-741 (Sup. Ct. Queens Co. 2000), the court stated "as a general rule, courts should reject summary judgment motions which are untimely under CPLR 3212(a) [citations omitted], and it is plain that undue leniency in excusing late motions will simply encourage more of them and vitiate the purpose of the prohibition." "Good cause" has been defined as "a written expression or explanation by the party or his legal representative evincing a viable, credible reason for delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement." Surace v Lostrappo, 176 Misc 2d 408, 410 (S.Ct. Nassau Cty.1998).

In John v Bastien, 178 Misc 2d 664 (Civ. Ct. Kings Co. 1998), the defendant acknowledged that he made his motion beyond the 120 day time limit after the note of issue was filed, but claimed that the merits of the motion provide an opportunity to conserve judicial resources, which thereby constituted "good cause" under CPLR 3212(a). In denying defendant's motion as untimely, the John court stated that "the legislature's enactment of the 1996 amendment [to CPLR 3212(a)] evinces a clear intent to encourage the prompt filing of summary judgment motions and to discourage the type of delays which occurred under the then-current practice."

The John court further stated: the plain language of the amendment reflects a legislative policy determination that leave' must be sought prior to the filing of a belated motion and thus [*13]necessarily prior to the court's consideration of the merits of the motion . . . this Court finds that a showing that a belated summary judgment motion is meritorious is insufficient alone to constitute a showing of "good cause" under C.P.L.R. § 3212(a). "Good cause," as used in C.P.L.R. § 3212(a), refers not to the alleged strength of the belated motion but to the reason (i.e., the "cause") for filing the motion belatedly. See, e.g., Popular Construction, Inc. v. N.Y.C. School Construction Authority, N.Y.L.J., July 21, 1998, p. 24, col. 3 (Supreme Court Kings Co.) ("defendant has demonstrated good cause' for its delay" in filing the motion for summary judgment) (emphasis added); Surace v. Lostrappo, 176 Misc 2d 408, 410, 673 N.Y.S.2d 543 (Supreme Court Nassau Co.) ("Good cause is a written expression or explanation by the party or his legal representative evincing a viable, credible reason for delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement") (emphasis added). John, supra at 666, 681 N.Y.S.2d at 458

Even when a party advances an argument for "good cause", that argument should be carefully scrutinized, and the exercise of the court's discretion in determining the existence of "good cause" must be based upon a reason that is "substantially related to the party's failure to file the motion within the 120-day period" rather than any excuses pertaining to the underlying merits of the motion itself. John, 178 Misc 2d at 667. The basis for this statement, according to the John court, is that: . . . if courts were permitted to find good cause to extend the statutory deadline based solely upon the perceived strength of a belated motion for summary judgment (rather than the reason for failing to timely file the motion), the legislatively determined deadline would be effectively supplanted or swallowed by the exception to the rule, since virtually every litigant claims that his motion is meritorious. Such an approach would effectively abrogate the 120-day requirement, invite a return to the practice of filing summary judgment motions on the eve of trial, and effectively create a blanket exception for parties filing meritorious, though late, summary judgment motionsa result wholly inconsistent with the legislature's intent. Id.

When a court determines that motions for summary judgment are to be made in a time period less than 120 days post note of issue filing, both motions and cross-motions made outside that time frame are not to be considered by the court. See, First Union Auto Finance v Donat, 16 AD3d 372 (2nd Dept. 2005). Motions for summary judgment submitted even one day beyond any court or statutorily imposed deadline should not be considered absent a showing of good cause, on the basis of the untimeliness of the motion alone. See, Bevilacqua v City of New York, 21 AD3d 340 (2nd Dept. 2005); Milano v George, 17 AD3d 644 (2nd Dept. 2005).

In this case, All Phase's motion is almost one month late. There is no excuse and even an incorrect representation over its timeliness. Therefore, All Phase's motion is denied in its entirety as untimely.

Warwick's Cross-Motion for Summary Judgment as Against Co-Defendants,[*14]

Third-Party Defendants and Cablevision's Motion for Summary Judgment as Against Warwick, and Chase's Motion for Common Law Indemnification by Warwick

Warwick cross-moves for summary judgment as against all co-defendants and as against the third-party defendants Cablevision. Co-defendants and Cablevision all interpose opposition So as not to belabor the point, the parties are respectfully referred to the Court's determination of the All Phase motion for summary judgment as against Warwick. The note of issue was filed in this matter on October 23, 2012. Warwick cross-moved for this relief on February 4, 2013 more than sixty days beyond the time permitted for such motions as permitted by this Court without any excuse or good cause shown. When a court determines that motions for summary judgment are to be made in a time period less than 120 days post note of issue filing, both motions and cross-motions made outside that time frame are not to be considered by the court. See, First Union Auto Finance v Donat, 16 AD3d 372 (2nd Dept. 2005). In this case, Warwick's cross-motion was filed beyond the 60 day limit imposed by the Court. As such, all affirmation relief sought by Warwick on the cross-motion is denied.

Cablevision also moved for summary judgment as against Warwick. In that motion, Cablevision presented evidence that it lacked any duty to plaintiff since the duty is predicated upon ownership, operation or control over the premises where the accident occurred.

It is axiomatic that "before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff * * * In the absence of duty, there is no breach and without a breach there is no liability" (Pulka v. Edelman, 40 NY2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019; see Petito v. Verrazano Contr. Co., 283 AD2d 472, 474, 724 N.Y.S.2d 463). Further, it is well settled that " liability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property * * * Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property' " (Aversano v. City of New York, 265 AD2d 437, 696 N.Y.S.2d 233, quoting Turrisi v. Ponderosa, Inc., 179 AD2d 956, 957, 578 N.Y.S.2d 724).

Dugue v 1818 Newkirk Mgmt. Corp., 301 AD2d 561, 562 (2nd Dept. 2003). As was the case in Millman v Citibank, N.A., 216 AD2d 278 (2nd Dept. 1995), a party which neither owned, operated or controlled a parking lot where an accident occurred cannot be held responsible for an injury to someone which resulted from a defect in that parking lot, especially when the evidence demonstrates that the particular entity did not have an obligation to repair it and there is no evidence that it created the condition. In this case, it is conceded that Cablevision did not own, operate or control the parking lot where the accident allegedly occurred. There is no evidence that it created the condition or that it was responsible for repairing any defects. As a result, Cablevision cannot be held as owing a duty to plaintiff.

Moreover, the evidence demonstrates that Warwick itself issued a certificate of occupancy for the one piece of the puzzle which Cablevision owned, namely the foot bridge. Warwick cannot have its own representative declare the foot bridge properly constructed on the one hand, and then claim it is responsible for those injured in an adjacent parking lot which Warwick leased from Chase. [*15]

Additionally, even if Cablevision could be held to owe a duty, Cablevision and CSC are exempt from liability pursuant to Workers' Compensation Law § 11 in the absence of a grave injury. No party can demonstrate a grave injury to exist as specified in the Workers' Compensation Law.

Workers' Compensation Law § 11 states in pertinent part:

The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, . . .

For purposes of this section "person" means any individual, firm, company, partnership, corporation, joint venture, joint-stock association, association, trust or legal entity.

It is uncontroverted that plaintiff was injured within the course of her employment as she was picking up her paycheck from Cablevision. Plaintiff received Workers' Compensation benefits for the injury which is the subject of this accident. "If a corporation is the alter ego of or the joint venturer with the injured plaintiff's employer, and/or the corporate veil between the employer and the defendant should be pierced, then Workers' Compensation is the plaintiffs' exclusive remedy against the corporation (see Dittert v. Oak Tree Farm Dairy, 249 AD2d 355, 671 N.Y.S.2d 492; Srigley v. Universal Bldrs. Supply, 217 AD2d 694, 630 N.Y.S.2d 254; Kudelski v. 450 Lexington Venture, 198 AD2d 157, 603 N.Y.S.2d 483)." Romano v Curry Auto Group, Inc., 301 AD2d 509, 510 (2nd Dept. 2003). In this case, the evidence demonstrates that Cablevision and CSC are interrelated entities. As such, Workers' Compensation is an exclusive remedy and Warwick is not entitled to seek third-party payments from Cablevision or CSC in the absence of a grave injury. Cablevision's motion for summary judgment is therefore granted in its entirety.

Finally, this Court turns its attention to that portion of Chase's motion for summary judgment on its claims of common law indemnification and contribution from Warwick. The courts have made it abundantly clear that it is premature to make a determination on the issue of common law indemnification at the summary judgment stage of the proceedings since there has been no finding of negligence yet as against any party. See, Spinelli v Vornado Burnside Plaza, LLC, 85 AD3d 897 (2nd Dept. 2011); Pueng Fung v 20 West 37th Street Owners, LLC, 74 AD3d 635 (1st Dept., 2010). Therefore, that branch of Chase's motion for summary judgment on common law indemnification by Warwick is denied. The foregoing constitutes the decision and order of this Court.

Dated: March 15, 2013E N T E R

Goshen, New York

_______________________________

HON. CATHERINE M. BARTLETT,

A.J.S.C.