Galeano v Netherland Garden Owners, Inc.
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Galeano v Netherland Garden Owners, Inc. 2016 NY Slip Op 33150(U) September 28, 2016 Supreme Court, Westchester County Docket Number: Index No. 51466/2015 Judge: Lawrence H. Ecker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 09/29/2016 12:01 PM NYSCEF DOC. NO. 33 INDEX NO. 51466/2015 RECEIVED NYSCEF: 09/29/2016 commence the the statutory statutory To commence time for for appeals appeals as of of right right time 5513[a]), you you are (CPLR 5513[a]), advised to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY -----------------------------------------------------------------------X -----------------------------------------------------------------------)( ALBA GALEANO, ALBA GALEANO, Index No. 51466/2015 51466/2015 Index Plaintiff, Plaintiff, DECISION/ORDER DECISION/ORDER -against-againstMotion date: 7/6/16 7/6/16 Motion Motion Seq. Seq. 1 Motion NETHERLAND GARDEN GARDEN OWNERS, OWNERS, INC. NETHERLAND Defendant. Defendant. -----------------------------------------------------------------------X -----------------------------------------------------------------------)( ECKER, J. ECKER, following papers papers numbered numbered 1 through through 9 were motion of Netherlands Netherlands The following were read on the motion Garden Owners, Owners, Inc. ("defendant"), ("defendant"), made made pursuant pursuant to CPLR CPLR 3212, 3212, seeking seeking dismissal dismissal of Garden complaint, as against against Alba Galeano ("plaintiff'): ("plaintiff'): the complaint, Alba Galeano PAPERS PAPERS NUMBERED NUMBERED Notice of Motion, Motion, Affirmation, Exhibits A:-E Notice Affirmation, Exhibits A:-E Affirmation Opposition Affirmation in Opposition Reply Affirmation Reply Affirmation 1-7 8 9 Upon the foregoing foregoing papers, papers, the court court determines determines as follows: follows: Plaintiff alleges alleges she sustained sustained physical physical injuries injuries when she tripped tripped and fell as a result result Plaintiff when she crack along along the walkway leading to the apartment apartment she occupies occupies at the defendant defendant of a crack walkway leading cooperative. The occurrence occurrence took took place place on October October 4, 4,2014, around 9:00 9:00 a.m., a.m., as she 2014, at around cooperative. walking toward toward the building building where where she resides. resides. The weather weather conditions conditions were were clear clear and was walking -11 of 4 [* 2] during her walkway. 1 Plaintiff, The crack crack in issue issue traverses traverses some some distance distance along along the walkway.1 Plaintiff, during dry. The she fell where area E], Ex. [Deft.'s deposition, circled on photographs was shown [Deft.'s the area where she shown was she photographs deposition, circled she fell, where she The area the crack. when heeled shoe caught in a portion portion of the crack. The area where got caught shoe got when her high heeled depiction, determines to be a sufficient asdepicted by the photographs, photographs, which which the court court determines sufficient depiction, asdepicted ") inch in width measured one eighth eighth (1/8") (1/8") inch in depth depth and one (1 (1") width [Deft.'s [Deft.'s Ex. E]. Her Her measured years, has deposition testimony testimony reveals reveals she has resided resided in the apartment apartment for for nineteen nineteen years, deposition condition the condition aware of the cracked cracked walkway walkway for for two to three three years, years, and has reported reported the been aware predicated management company company and the superintendent. superintendent. Her theory theory of liability liability is predicated to the management that trap" in that of a trap" premise that that the condition condition complained complained of had the "characteristics "characteristics of upon the premise these upon these the heel of of her right shoe shoe became became stuck stuck in the crack crack [Aft. [Aff. In Opp., Opp., page page 4]. It is upon jury. the jury. that must fact that facts alleges there issue of fact must be resolved resolved by the there is an issue that she alleges facts that the of the walkway, her Defendant counters counters that extent of crack in walkway, her awareness awareness of of the crack that the extent Defendant whether of whether crack for so long and that that she reported reported the condition condition is not relevant relevant to the issue issue of crack crack constitutes constitutes a "trivial "trivial defect" defect" [Reply [Reply Aff.]. the crack triable issue grant summary summary judgment, must clearly clearly appear appear that that no material material and triable issue judgment, it must To grant key to the of fact fact is presented. presented. Issue Issue finding, finding, rather rather than than issue issue determination, determination, is the key NY2d 178 procedure. Matter Matter of of Suffolk Suffolk Co. Dept. of of Social Social Services Services v James James M., 83 NY2d procedure. making 404 [1957]. [1994]; Sillman Sillman v Twentieth Twentieth Century-Fox Century-Fox Film Corp, 3 NY2d NY2d 395, 395,404 [1957]. In making [1994]; party the party favorable to the the light this determination, determination, the court must must view evidence in the light most most favorable view the evidence the court which can be every inference of every opposing motion, and must must give party the benefit benefit of inference which that party give that the motion, opposing the Port drawn from the evidence. evidence. Negri Negri v Stop and and Shop, Inc., 65 NY2d 625 625 [1985]; [1985]; Nash Nash v Port drawn Pearson v Dix Washington Union Union Free Free School School District, District, 83 AD3d AD 3d 136, 146 [2d Dept Dept 2011]; 2011]; Pearson Washington summary McBride, LLC, 63 AD3d AD3d 895 [2d Dept Dept 2009]. 2009]. The The moving moving party party is entitled entitled to summary McBride, from fact from of judgment only if it tenders tenders evidence evidence sufficient sufficient to eliminate eliminate all material material issues issues of fact judgment only [1985]; Winegrad v New New York University University Medical Medical Center, Center, 64 NY2d 851, 853 [1985]; the case. Winegrad facie prima facie Zuckerman v City City of of New New York, 49 NY2d 557, 562 [1980]. [1980]. If a party party makes makes a prima Zuckerman of burden of the burden showing of its entitlement entitlement to summary summary judgment, opposing party party bears bears the judgment, the opposing showing NY2d Hosp., 68 NY2d Alvarez v Prospect establishing the existence of of a triable issue of fact. Id.; Alvarez Prospect Hasp., triable issue the existence establishing 320 [1986]. [1986]. there is no that there accordance with the standard standard enunciated, enunciated, supra, supra, the court court finds finds that In accordance found be found can issue of fact fact for for the trier trier of fact fact (the jury) relative to whether whether defendant defendant jury) relative issue negligent. The The Court Court of Appeals Appeals in Hutchinson Hutchinson v Sheridan, Sheridan, 26 NY3d 66 [2015], [2015], has negligent. grant a when it is appropriate enunciated in their their analysis analysis of three three distinct distinct cases, cases, when appropriate to grant enunciated order the order defendant summary summary judgment. Hutchinson case case itself, the Court Court affirmed affirmed the judgment. In the Hutchinson defendant 1 1 vertical The Aff. in Opp. describes describes the crack crack as "a "T" liT" shaped shaped crack crack that that runs both vertical The and horizontal horizontal on the walkway. walkway. The The vertical vertical portion portion is appx. 66" long and the horizontal horizontal Opp., page portion is appx. appx. 43" wide; wide; spanning spanning the entire entire width width of the walkway." walkway." [Aff. In Opp., page 3]. portion defendant correctly correctly notes, notes, there there is no proof proof in the record record by anyone anyone with personal personal As defendant Aff.,,I 12] knowledge that that this is so [Reply [Reply Aff.,~ knowledge -2-2- 2 of 4 [* 3] Appellate Division Division reversing reversing the trial court, that that had denied denied the motion. motion. There, There, the of the Appellate facts were were plaintiff plaintiff slipped slipped and fell on what what the record revealed revealed to be a cylindrical cylindrical metal metal facts protrusion extending extending from from the sidewalk sidewalk one quarter quarter inch above above the sidewalk sidewalk and protrusion approximately five eighths eighths of an inch in diameter. diameter. The The court court stated, stated, after after its discussion discussion of approximately Trincere v County County of of Suffolk, Suffolk, 90 NY2d 976 [1976], [1976], that that "(T)aking "(T)aking into account account all the facts facts Trincere circumstances presented, presented, including including but not limited limited to the dimensions dimensions of the metal metal and circumstances object, we conclude conclude that that the defect defect was trivial trivial as a matter matter of law." Hutchinson, Hutchinson, supra, supra, at p. object, 80.2 2 Chee v DiPaolo, DiPaolo, 138 AD3d AD 3d 780, 783 [2d Dept Dept 2016], 2016], the Court Court modified modified In Kam Lin Chee Supreme Court's Court's order order which, which, upon reargument, reargument, had denied denied defendant's defendant's motion motion for for Supreme summary judgment. There plaintiff plaintiff tripped tripped and fell "on a nonlevel, nonlevel, raised raised portion portion of a summary judgment. There sidewalk flag while while walking walking on a sidewalk sidewalk abutting abutting commercial commercial premises premises ... ..."" The The defect defect at sidewalk issue was was "at most, most, a rise of slightly slightly more more than than one inch." inch." Citing Citing Trincere, supra, supra, the issue Appellate Division Division found found that that "neither "neither the alleged alleged defect defect nor the surrounding surrounding circumstances circumstances Appellate increased the risk to her (citing (citing Hutchinson, Hutchinson, supra, at 79)." 79)." 33 Plaintiff Plaintiff testified testified at her increased deposition that that "she had traversed traversed the sidewalk sidewalk on numerous numerous previous previous occasions occasions without without deposition incident before before the the incident, incident, that that it was a sunny sunny day day and there there were were no crowds, crowds, incident construction, or other other obstructions obstructions to block block her view view of the sidewalk sidewalk as she traversed traversed it. construction, The facts facts herein herein are sufficiently sufficiently equivalent equivalent to the facts facts in Kam Lin Chee Chee v DiPaolo, DiPaolo, The that it can be said that that plaintiff plaintiff has failed failed to establish, establish, as a matter matter of law, that that supra, such that case requires requires further further consideration consideration by the jury. The court court finds finds that that defendant defendant has this case jury. The demonstrated that that it is entitled entitled to the granting granting of its application application for for summary summary judgment. demonstrated judgment. Alvarez Prospect Hosp., supra. Accordingly, Accordingly, it is hereby hereby Alvarez v Prospect ORDERED that that the motion motion by defendant defendant Netherlands Netherlands Garden Garden Owners, Owners, lnc.,made Inc.,made ORDERED pursuant to CPLR CPLR 3212, 3212, for summary summary judgment dismissal of the complaint, complaint, as against against pursuant judgment and dismissal plaintiff Alba Alba Galeano, Galeano, is granted, granted, and the complaint complaint is dismissed. dismissed. plaintiff The foregoing foregoing constitutes constitutes the Decision/Order Decision/Order of the court. The White Plains, Plains, ~ew ~ew York York Dated: White September 2016 September J.,Q J.-6 ,,2016 ENT ENT ECKER, J.S.C. J.S.C. . ECKER, 2 2 Having Having made made this determination, determination, the Court Court found found it unnecessary unnecessary to address address the issue of lack of actual actual or constructive constructive notice. notice. issue 3 3 "Hutchinson, "Hutchinson, supra supra at 79" corresponds corresponds to the the analysis analysis in the Hutchinson Hutchinson case case where no liability liability was found found as to the sidewalk sidewalk defect. defect. where -3-3- 3 of 4 [* 4] Appearances Appearances Rosenberg, Rosenberg, Mine, Falkoff Falkoff & Wolff, Wolff, LLP Attorneys for Plaintiff Attorneys Plaintiff Via NYSCEF NYSCEF Lynch Schwab Schwab & Gasparini, Gasparini, PLLC PLLC Attorneys for Attorneys Defendant for Defendant Via NYSCEF NYSCEF -4-4- 4 of 4
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