Phillips v Strathmore Terrace Clubhouse

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Phillips v Strathmore Terrace Clubhouse 2016 NY Slip Op 31837(U) August 2, 2016 Supreme Court, Suffolk County Docket Number: 11-24345 Judge: Arthur G. Pitts Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX ~o. Ct\L. No. SI l(!RT F< >R\1 OJ Wl·R I I-~4345 15-0JOl IOT SU PREME COURT - STA TE or EW YORK l.A.S. PART -n - SUFFOLK COU1 TY PRESENT : I Ion. _ _....:..A.:..:. ~1:....:. U R..o...: · l-..:....:I~R'-"---""G:..:....·.:. . Pl:.T'.:--"T-'S' - - . =' J usticc of the Supreme Court \tf OT IO DATE 6- 17- 15 (003) MOTION DATE 6-30- 15 (004) MOTTO DATE 7-30- 15 (005) MOTION DATE 8-27- 15 (006) ADJ. DATE 10-8 -1 5 Mot. Seq. #003 - MD #005 - XMG #004 - MG #006 - XMG:CASEDISP ------------------------------------------------------------------------x .JOA VESSA .& WILENSKY, P.C. PHILLIPS and EA RL PHILLIPS, Plaintiffs, Attorney foi· Plaintiffs 626 RexCorp Plaza - 61h Floor Uniondale, New York I I 556 - agai nst V INCE TD. Mc AMARA, ESQ. STRATHMORE TE RRACE CLU BHOUSE a/k/a STRATHMORE TERRACE HOMEOWNERS ASSOCIATIO '.I C. and ELIZABETH McBRIDE, Defendants. -----------------------------------------------------------------------x STRATHMORE TE RRACE CLUB HOUSE a/k/a STRATHMORE TE RR/\CE HOMEOWNERS ASSOCIAT ION. INC. and ELIZABETH McBRIDE, Third-Party Plaintiffs, - against - Attorney for Strathmo re Terrace Clubhouse I 045 Oyster Bay Road, Suite I East orwich, ew Yark I I 73 2 DEVITT SPELLMA BARRETT, LLP Attorney for Elizabeth McBride 50 Route 111, Suite 314 Smithtown. New York 11787 BAXTER, SM ITH & SHAPIRO, P.C. Attorney fo r Is land Landscaping Corp. 99 orlh Broadway Hicksvi lle, New York 1180 1 ISLAND LANDSCA PING. INC .. Third-Party Defendant. ------------------------------------------------------------------------x ELIZABET! I McBRIDE, Second Third-Party Plaintiff, - aga inst ISLA DLA ' D CAP! G. I C .. Second Third-Party Defendant. ------------------------------------------------------------------------x l Iron the fo llowing papers numbered I to _ 6 _1_ read on these motions and cross motions fo r trial pre fe rence and summarv judgmcm ; Notice of Motion/ Order to Show C ause and supporting papers I - IO· 11 - :rn; Notice of Cross Motion and s upporting papers 29 - 3-1 ; 36 - 42 : Answering Affidavits and supporting papers 43 - 55: Rep lying Affidavits and suppo1ting papers 56 §l_; Other _; ( ttm!-i1fte1 Iie,11 ing tou11se I i11 support and opposed to tlte 111otio11 ) it is, [* 2] -, Phillips" trathmorc Terrace Clubhouse Index 'o. I J-2-t 3-t5 Page o. 2 ORDERED that rhesc 1T1otions and cross 1 T1otions are consolidated for purposes of this determinati on: an<l it is further ORDERED that the motion ( # 003) by plaintiffs for a trial preference pursuant to CPLR 3-l03 (a)( 4) by reason of the ad\'anccd age or plaintiff Joan Phillips is denied as moot: and it is furthe r ORDERED that the motion (# 00-t) by third-party defendant Island Landscaping. [nc. for summary judgment dism iss ing the third-party comp laint and the second third-party comp laint against it is granted; and it is l'urther ORDERED that the cross motion (# 005) by defendant/third-party plaintiff Strathmore Terrace Homeowners Association. Inc .. for summary judgment dismissing the complaint and all cross claims against it is granted: and it is further ORDERED that the cross motion(# 006) by defendant/third-party plaintiff Robert McBride. temporary admin istrator of the estate of Elizabeth McBride. for summmy judgment dismissing the complaint and all cross claims agai nst him is granted. Thi s is an action to recover damages, personally and deri vatively. fo r injuries al legedly sustained by plaintiff Joan Phillips on January 17. 201 1, at approximately 2:30 p.m., when she sl ipped and fell on ice on the step in front of the prem ises owned by Elizabeth McBride. located within a condominium development called Strathmore Terrace Community operated by defendant/third-party plaintiff Strathmore Terrace Homeowners Association. Inc. ("Strathmore Ten-ace..). Prior to the accident. Strathmore Terrace entered into a snow remova l contract with third-party defendant Island Landscaping. Inc. C-Island"). Elizabeth McBride died on June 29. 2013. and upon the order of the Court. dated October 8. 2014, her son. Robert McBride. who was appointed as temporary administrator of Elizabeth McBride, substituted as defendant/third-party plaintiff in her stead. The gravamen of the compl ai nt is that defendants were negli gent in fai ling to properly maintain, manage and contro l the premises. creating a hazardous condition. Island moves for summary judgment dismi ssing the thi rd-party complaint and the second third-party complaint against it on the grounds that it was not negligent. and that there is no triable issue of fact as to its liability for the accident. In support. Island submits. inter alia. the pleadings. the bill of particulars, and the transcripts of the deposition testimony of plaintiff .Joan Phillips. Anthony Defabriti s. a representative ofl sland. and Joyce Seman, the president of Strathrnore Terrace. Al her deposition, Joan Ph illips testified that she lives in the subject condominium development. that Elizabeth McBride was her neighbor, and that they shared a driveway. On the afternoon of the accident. Phi lli ps crossed the dri veway and visited McBride without incident. When Philli ps ten her house, she did not observe any snow on the driveway or the walkway leading to McBride's house. Before entering McBride's residence. Phillips saw the step in front of the residence was wet. but did not see any ice or water accumulati on on it. Phillips testified that \\'hen she went to McBride's residence. the outdoor temperanire \\'as warm. not freezing. When Phillips exited McBride·s house approximately one or one and a half hours later. she slipped on the step and fe ll. She described the appearance ol'the step when she fell as .. shiny'" and ..clear... When she got up. she obser\'ed ice on the step. Phillips testi fied that the step was not shiny when she walked into McBride's house, and that the wet step must have frozen while she was inside McBride's house. She did not [* 3] Phillips v Strnthmore Ter-ra<.:c Clubhouse Index No. I l-2-D-1- 5 Page No. 3 make any complaints about the condition of the step to \1cBride or Strarhmorc Terrace prior to the accident. In addition. she had no recolkction as to \\'hen it had sno\\'ed last time prior to the subject accident. At his deposition. Anthony Defabritis testified to the effect that he is the vice president orlsland, a snow removal rnntrnctor, and that Island was hired by Strathmore Terrace to provide snow plowing services. IC there \\'as a minor sno\\'fall of less than two inches. he would have to cal l the president of the condominium board before performing snow remo,al services. IC there was a big snowfoII. fsland automatically vvould go to the subject property. The scope of work provided by Island included all of the roadways and driveways at the Strathman.: Terrace community. Defabritis testified that approx imately 16 inches of snow accumul ated during a snowstorm that occurred between January 11 . 20 l l and Jan uary 12, 20 11, and Island's two crew chiefs and several other people performed snow removal work at the property, including shoveling the wa lkways up to the doorway of each unit. One of the crew chiefs inspected the area upon completion of the work. Island did not receive any complaints regarding the snow shoveling performed on January 11 and January 12. According to his business note;:. he contacted the president of the condominium board. and she refused to approve the appl ication of' ice melt on the walkways of the community. Thereafter, Island performed no other snow removal work at the Strathm ore Terrace communi ty unti I the day of the subject accident. At her deposition. Joyce Seman testified to the effect that she is the president and a board member of Strathmore Terrace. and that Fairfield Properties is the managing company for the condominium community. She testified that homeowners in the community do not customarily perform ice and snow removal. She furt her testified that prior to the subject accident. Strathmore Tenace entered into a contract with Island to remove snow from the roads, walkways and driveways in the community. She testified that in January 20 11 , she did not make any complaints to Island regarding its snow removal services, and that she did not learn of the accident until 2013. Seman also testified that Island is not responsible for applying ice melt to the walkways. As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort fo r the personal injuries of third parties (see Diaz v Port A uth. ofNY & NJ, 120 AD3d 6 11, 990 NYS2d 882 l2d Dept 2014]: Rudlo.ff v Woodland Pond Condominium Assn. , 109 AD3d 810, 971 NYS2d I 70 [2d Dept 201 ::q; Lubell v Stonegate at A rdsley Home Owners Assn., Inc.. 79 AD3d 1102. 1103, 915 YS~d I 03 l2d Dept 20 I 0 j). However. in Espinal v Melville Snow Contrs.. (98 NY2d 136, 746 NYS2d 120 l20021). the Court of Appeals recognized that exceptions to this rule apply ( 1) where the contracting party. in fail ing to exercise reasonable care in the performance of his or her duties. launches a force or instrument of harm. (2) where the plaintiff detrimentally relies on the continued performance of the contracting party' s duties, or (3) where the contracting party has entirely displaced another party's duty to maintain the subj ect premises safely (id). When a party. including a snow removal contractor. by its affinnative acts of negligence has created or exacerbated a dangerous condition which is the proximate cause of plaintiffs injuries. it may be held liable in tort (see Espinal v 1 l'lelville S11ow Contrs.. s11prn: Figueroa v Lazarus B urman Assoc., 269 AD2d 215, 703 YS2d 1 13 rI st Dept 2000]). In order to make a prirna fac ie showing of entitlement to j udgment as a matter of Jaw. Island is required to establish that it did not perform any snow removal operations related to the condition which caused the plaintiffs accident or. alternatively. that if it did perform such operations. those operations did not create or exacerbate a dangerous condition (see Diaz v City of New York. 93 AD3d 755. 940 YS2d 65-+ I 2d Dept 20 l 2]; Scl11villf v B"11k St. Commons, LlC. 7-+ AD3d 1312. 904 NYS2d 2:!0 (2d Dept 2010): Keese v Tmperial Gardens Assoc., LLC. 36 AD3d 666, 828 NYS2d 204 [2d Dept 2007]). [* 4] Phillips v Strathmore Terrace Clubhouse Index No. 11-2-1-3-1-5 Page No. -+ Herc. Island establishc<.J its entitlement to judgment as a matter oflaw by demonstrating that its limited contractual undertaking to provide sno\\· rem<.)\'al serYices is not a comprehensive and exclusi \ 'e property maintenance obi igatio n which en tirely displaced the property owner's duty to mainta in the premises safely (see li11arello v Colin Serv. Sys.. 3 1 AD3d 396, 8 17 NYS2d 660 f2d Dept 1006.1: Katz v Pat/1111arA S tores . 19 AD3d 37 1. 796 NYS2d 176 f2d Dept 2005]). Island also made a prima fae ie showing that it did not launch a force or instrument of hann by showing that it did not perform snow removal work in the Strathmore Terrace community during the 5-day period between the last snow storm in the area and the subject accident (see Roach v A VR R ea/~1· Co.. LLC. -+ I AD3d 811 . 839 YS1d 173 [1d Dept 20071: lilwrello v Colin Serv. .S:rs.. supra). In opposition. plaintiffs contend th at there is an issue of foc t as to whether Island' s snow removal operation created or exacerbated a dangerous cond ition in the area of the subj ect accident. Piaintiffs have not submitted any contrary expert proof or affidavit. Plaintiffs submit only an affi rmation of their attorney. \Vhich lacked probative value and is insufficient to raise a triable issue of fact (see J375 Equities Corp. v 811ildgree11 Solutio11s, LLC. 120 AD3d 783 . 992 YS2d 288 [2d Dept 1014]: S it ickier v CmJ'. 59 A0 3d 700. 87-+ NYS2d 233 [2d Dept 2009]: Blumeufeld v Deluca, 1-1- AD3d 405. 807 NYS2d 99 [2d Dept 2005]). Accordingly. Island' s motion is granted , and the third-party co mplaint and the seco nd third-party complaint are di smi ssed. Strathmore Terrace cross-moves for summary j udgment dismissing the complaint and all cross claims against ir on the grounds that it did not create the alleged dangerous condition. and that it had no actual or constructive notice of the condition. Defendant/third-party plaintiff Robert McBride also cross-moves fo r summary judgment dismissing the complaint and all cross claims against him on the grounds that Elizabeth McBride did not create the all eged dangerous condition, and that she lacked notice of such condition. A real property owner or a party in possession or control of real property wil l be he ld liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only if it created the dangerous condition or had actual or constructive notice of the condition (see Devli11 v Selimaj, 116 AD3d 730, 986 NYS2d 149 [2d Dept 201 4 1 Morreale v Esposito. 109 A0 3d 800, 80 1, 97 1 N YS2d 209 [2d Dept 201 3]; ; G11slti11 v Wltisperiug Hills Co11do111i11ium 1. 96 AD3d 721, 72 1. 946 N YS2d 202 l2cl Dept 201 2]). Thus. a defendant who moves fo r summ::iry judgm ent in a slip-and-fall c::isc has the ini tia l burden of m a king a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Dlt11 v N ew York City Hous. A utlt . . 119 A0 3d 728. 989 NYS2d 341 [2d Dept 20 14]: Crnz v Rampersad, 110 AD3d 669. 972 N YS2d 302 f'.2d Dept 2013] : Sa11toliquido v Ro111a11 Catltolic Clt11rclt of Holy N ame of J esus. 37 AD3d 815. 830 NYS2d 778 [2d Dept 2007]). To meet its burden on the issue or lack of constructi ve notice. the de Cendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see D/111 ,. New York Ci~)' llous. A.utlt.. supra: Oliveri'' Vassar Bros. Hosp. , 95 AD3d 973. 9-\.3 1YS2d 604 [2d Dept 2011]: Bimbaum v Ne w York Raciug Assn., In c.. 57 AD3d 598. 869 ·ys2d 222 [1d Dept 2008]). Here. Seman testi fi ed that Island was hired to provide snow removal services at the premises, incl uding the walkway or each unit. Defabritis testified that Island did not perfonn snow removal work in the premises since January 12. 2011 until the day of the accident. Joan Phillips testified that when she entered McBride's house about an hour or hour and a half p1ior to her accident. she did not see any ice or water accumulation on the step. Through the submission of such deposition testimony. ' trathmore Terrace and McBride established [* 5] Phillips v Strathmore Terrace Clubhouse Index o. l l-2-.J.3-l5 Page o. 5 a priina facie case that they did not create the alleged ly dangerous co ndit ion which caused Joan Phil lips· fo ll. Mon:over. Strathm on:~ Terrace and McBride established that they lacked actual or constructive notice of the alleged dangerous condi tion bnsed on Joan Phi lli ps' deposition testimony that the alleged icy condit io n on the lf111/a11ey ,, Roya/~1· Properties, LLC, 81 AD3d 1312. 916 _ YS2d 545 step \\·as not visible and apparent (see 1 1-hh Dept '.2011 ): Lewis 1 Bama Hotel Corp.. 297 AD'.2d -l2'.2. 745 YS2d 627 f3d Dept 20021). 1 In opposition. plainti !Ts submit. inter alia. the affidavit of .loan Phil lips. stating that hertestimony at the depos ition that ..she did not see any ice on the step" does not mean that ice was not present. Joan Phi lli ps contends that she meant that she ..did not remember see ing·· ice when she entered McBride· s house. Joan Phill ips' affidav it. which contradicted her depositi on testimony. created only a reigned issue of fac t, and was insufficient to defeat Strathmo re Terrace's motion (see Merm elstein v East Winds Co.. 136 AD3d 505, 24 NYS3d 6-+3 [1st Dept '.20 16): Telfeya11 v City of Ne w York. 40 AD3d 372. 373, 836 NYS2d 71 list Dept '.2007]). Plaintiffs have failed to raise a triable issue of fact as to whether a defect. in tact ex isted which wou ld constitute a dangerous or defet.:tiw condition and further as to whether Strathmorc Te1Tace or McBride created the allegedly dangerous condition or had actual or constructive notice of the condition. Thus. the cross motions by Strathmore Terrace and McBride are granted. and plaintiffs' complaint against them is dismissed. According ly. plaintiffs' moti on for a trial preference pursuant to CPLR 3403 (a)(4) by reason of the advanced age of plaintiff Joan Philli ps is denied. as moot. / Dated: Riverhead, New Yo r k August 2, 2016 X FINAL D ISPOS ITION /1 ARTHUR G. PITTS, J.S.C. NON-FI NAL D ISPOSIT I ON ---

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