Robinson v Limoncelli

[*1] Robinson v Limoncelli 2013 NY Slip Op 50618(U) Decided on March 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2013
Supreme Court, Kings County

Cynthia Robinson, Plaintiff,

against

Nicholas Limoncelli, ROSEMARIE LIMONCELLI and PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE, Defendants.



11869/10



Plaintiff's Attorney: Burns & Harris, Esqs., 233 Broadway, Suite 900, New York, NY 10007

Third-Party Plaintiff Attorney: Michael F. O'Connell, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 150 East 42nd Street, New York, NY 10017

Defendant Attorney: Law Offices of James J. Toomey, 485 Lexington Avenue, 7th Floor, New York, NY 10017

Defendant/Third-Party Defendant Attorney: Weiner, Millo Morgan & Bonanno, LLC, 220 Fifth Avenue, 10th Floor, New York, NY 10001

David Schmidt, J.

In this action to recover damages for personal injuries, defendants Nicholas Limoncelli and Rosemarie Limoncelli (the Limoncellis) move for an order granting summary judgment, dismissing the complaint as against them.

For the reasons that follow, the motion is denied.

I.Background [*2]

On December 31, 2009, at approximately 10:00 a.m., plaintiff Cynthia Robinson slipped and fell on a "For Sale" sign that had become detached from its post and was lying flat on the ground in front of 150 East Rockaway Road, Hewlett, Long Island (the Premises). Plaintiff cleans houses and was on her way to a client's house when the accident occurred. 150 East Rockaway Road is a house and is separated from the street by a stone wall. The accident occurred in front of the Premises in the area abutting the wall. According to plaintiff, she tripped and sustained injuries when her right foot slid over the sign and her left foot got caught on the sign. It was snowing that day and the sign was covered with an inch of snow. At her deposition, plaintiff testified that she had seen the sign two days prior to her accident lying on the ground.

At the time of the alleged accident, the Limoncellis were the owners of the Premises. The "For Sale" sign had been placed by third-party defendant Everlast Sign and Service Inc. (Everlast) in front of the Premises after the Limoncellis decided to sell their house and hired defendant Prudential Douglas Elliman Real Estate to act as their broker.

On this motion, the Limoncellis move for summary judgement, arguing that: (i) they did not owe a duty to plaintiff because the accident did not occur on their property; and (ii) they did not create or have notice of the hazardous condition that allegedly caused plaintiff's injuries.

II.Discussion

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).

It is well-settled that a landowner owes a duty of reasonable care under the circumstances to prevent injuries to third parties from conditions on their property. Basso v Miller, 40 NY2d 233 (1976). Additionally, in order to establish a prima facie case of negligence in a slip and fall case, the plaintiff must demonstrate that the defendant created the dangerous condition that caused the accident or the defendant had actual or constructive notice of that condition and failed to remedy it within a reasonable time. Gordon v American Museum of Natural History, 67 NY2d 836 (2d Dept 1998).

The Limoncellis argue that they owed no duty to plaintiff because they neither owned nor controlled the area in front of the wall where the accident occurred. However, the Limoncellis base this contention on an unsupported hearsay statement made by a Town of Hempstead official. As such, they have not met their burden of submitting evidentiary proof in admissible form. Specifically, at her deposition, Rosemarie Limoncelli testified that she and her husband were told by (unidentified) buildings department personnel that if they elected to put in a sidewalk they would become responsible for snow and debris removal, but if they did not, it would be the town's responsibility. Limoncelli Tr. at 17-18. Significantly, there is no affidavit from a town official to provide independent support for the Limoncellis' assertion. Moreover, when asked during her deposition whether the area in front of the wall was her property, [*3]Rosemarie Limoncelli was unable to state with certainty that she did not own the property in front of the wall. Id. at 23. Accordingly, there is a question of fact as to whether the Limoncellis owned the property where plaintiff's accident took place.[FN1]

The Limoncellis' second contention, that they did not have, inter alia, constructive notice of the hazardous condition, also does not avail. Significantly, plaintiff testified that she saw the sign off its post and on the ground two days prior to her accident in the same position as on the day of her accident. Robinson Tr. (July 6, 2011) at 79, 84. For her part, Rosemarie Limoncelli testified that, prior to the accident, she observed that the sign was flimsy and would swing even in light wind. Limoncelli Tr. at 28-29. Although she initially testified that she never saw the sign on the ground prior to the date of the accident, she subsequently changed her answer to "I don't remember." Id. at 33. Mrs. Limoncelli testified further, "I don't know if the sign was up or down. I didn't exactly look at the sign and notice if it was up or down every day." Id. at 34. Nevertheless, later in her deposition Ms. Limoncelli remembered noticing the sign being off the post and on the floor at some point. Id. at 37. However, she did not know what year or season it was when she noticed it off the post. Id. At the conclusion of her deposition, and somewhat at odds with her earlier testimony, Ms. Limoncello testified that the sign was down for "maybe a day. It wouldn't be longer than that. I'm pretty meticulous and like to keep the house in order. If something is out or damaged, I will keep up with it. And the sign is something that I would pass every day. I believe the whole sign was down with the post. I believe it was from a storm . . . far after the incident." Id. at 58. Given plaintiff's testimony that she observed the sign on the ground two days earlier and Rosemarie Limoncelli's own uncertainty as to whether she even would have noticed the sign on the ground, there is a question of fact as to whether the Limoncellis had constructive notice of the hazardous condition, precluding summary judgement.

In a footnote, the Limoncellis argue that if the court does not find their prior two arguments legally sufficient, they should, in any event, be excused from liability as a result of the so-called "storm in progress" doctrine — given plaintiff's own admission that it was snowing on the day of her accident. See Solazzo v New York City Transit Auth., 6 NY3d 734, 735 (2005). This argument is misconceived.

Here, plaintiff's testimony is that an unsafe condition existed for two days prior to her accident and that her fall was not caused by the snow but by the sign. In such circumstances, the Limoncellis cannot rely on the storm in progress doctrine. See Larson v City of New York, 145 AD 619, 619 (2d Dept 1911) (later ongoing storm not a basis to relieve defendant of liability for injuries caused by prior existing dangerous condition)..

III.Conclusion

Accordingly, Nicholas Limoncelli and Rosemarie Limoncelli's motion for summary judgment (seq. no. 008) is denied. In addition, for the reasons stated during oral argument on January 25, 2013: (i) plaintiff's motion to amend (seq. no. 006) is granted — the amended summons and complaint is to be served within 21 days; (ii) third-party defendant Everlast Sign and Service Inc.'s motion to dismiss the third-party complaint (seq. no. 007) is denied; (iii) [*4]defendant Prudential Douglas Elliman Real Estate's motion for summary judgment (seq. no. 009) is denied.

The foregoing constitutes the decision and order of the Court.

Dated: March 29, 2013

ENTER:

_______________________

J.S.C. Footnotes

Footnote 1: For this reason, Rosemarie Limoncelli's testimony that she never cleared snow or ice from the area fronting the wall is insufficient to establish the Limoncellis' entitlement to summary judgment.