Canales v Sharbowicz

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Canales v Sharbowicz 2017 NY Slip Op 31826(U) August 23, 2017 Supreme Court, Suffolk County Docket Number: 12-14088 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] SHORT FORM O ROER INDEX No. CAL. No. 16-01 I I JOT SUPREME COURT - STATE OF NEW YORK I.AS. PART 43 - SUFFOLK COU TY PRESENT: Hon. ARTHUR G. PI1TS Justice of the Supreme Court MOTION DATE 11-30-16 (004. 005) ADJ. DA TE ----=-3--=2-=--'-7_ _ _ _ l Mot. Seq. # 004 - MG # 005 - MG ---------------------------------------------------------------X SIBEN & SIBEN Attorney for Plaintiff 90 East Main Street Bay Shore, New York 11 706 PAULA CANALES, Plaintiff, KEEGAN & KEEGAN, ROSS & ROSNER Attorney for Defendant Sean Gordon 315 Westphalia Avenue P. 0. Box 146 Mattituck, New York 11952 - against LINDA LEE SHARBOWICZ, BEST QUALITY PLUMBING AND HEATING CORP., WILLIAM GREMLER dba BEST QUALITY PLUMBING AND HEATING, SEAN GORDON dba NORTH FORK RENOVATIONS and SEAN GORDON dba SEAN GORDON ENTERPRISES, Defendants. BARON LAW FIRM Attorney for Defendant Sharbowicz I66 Laurel Road, Suite 203 East Northport, New York I 1731 CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVlS & FISHLINER, ESQS. 333 Earle Ovington Blvd., Suite 502 Uniondale, New York 11553 -------------------------------------------------~------------)( Upon the following papers numbered I to-12_ read on these motions for summary judgment ; Notices of Motion/Order to Show Cause and supporting papers~; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers _12.:: .li_; Replying Affidavits and supporting papers 16 - 19 ; Other_; (and after healing eo1111sel i11 sttpport :md oppO$Cd to the motion) it is. ORDERED that the pending motions (004 and 005) are combined herein for disposition: and it is ORDERED that the motion (004) by defendant Sean Gordon dlb/a North Fork Renovations and d/b/a Sean Gordon Enterprises seeking summary judgment is granted and the complaint and any cross claims asserted against this defendant are hereby severed and dismissed; and it is further ORDERED that the motion (005) by defendant Linda Lee Sharbowicz seeking summary judgment is granted and the complaint and any cross claims asserted against this defendant are hereby severed and dismissed. [* 2] { 'anak:-. v Slurbm\.il'/ I ndl'X No. i 2 - I..+088 l'a!;!C 2 In thi ~ negligence action. plaintiff seeks to recover <lumages for personal injurie~ sht: sustained on July 17. 20 I l. when thl' ground col lapsed underneath her w!-iile in the back yard ol' 1he prem iscs shl' rcntl'd at I000 Mastic lkach R()Ud i l Mastic. l'\-\ York (the .. Premises··). At the time of the accidc11t. dd~ndam Li nda I.cc Sharhtm iL'.1 (··sharbowic1 ··) ll\\ 11cd the Premises. having purchased it as un investment properly in June or Jul} 20 I 0. Ikkndant S1:a11 Uordo11 d/h/a Sean Ciordon l·:ntcrpriscs and d/b/a Scan Gordon l·.nterpriscs r·<iordon·· ) was hire<l by ~harhowicz It• Jo various johs in the interior of the house. Defendant William Grcmkr d/h/a Hest <)uality Pl um bing (""(ircmll'r.. ) \VHS hired hy Sharbowicz in J\ugusl 20 I() to r~rfornl certain plumbing jobs at tht: Premises which included tht: ahandonml.'!nt of an old underground oil tank. It is not disputl'd that the ground collapst..!d in the art.:a where the oil .a11k was buried. Plaintiff commenced a st:parale action again:-.l each dcfondant and thcrcali.cr stipulated to consolidating the actions l'or all purposes under the instant index number. The allegations against each defendant arc the same. the gravaml.'!n of which arc that the defendants were negligent in the ownership. operation. management and control or the Premises <nd created a dangerous and trap-like condition as a result or excavation in the backyard which was not properly b.ick fi Iled. Pini nti ff further allegcs that upon taking possession or thL Prem isl.'!s. she was not \VarncJ of the dangerous condition. and that the defendants had actual or constructive knowledge or the condition or upon reasonable inspection should have discovered it. ··Liability for u dangerous condition on real property is generally predicated upon ownership. occupam:y. control or special use of the subject premises" (Casson v McComrell. 148 J\D3d 863. 864. 49 NYS3d 7 l I l2d Dept 2017 I; llickm1111 v Medin a. I 14 AD3d 907. 907. 980 NYS2d 834 [2d Dept 2014]). ···Where none is present. a party cannot he held liable for injuries caused by the dangerous or defective condition of the property"' (Hickman v Medina . .rnprcr lll 907. quoting Aversan o v City of New York . 265 AD2d 437. 437. 696 YS2d 233 l2d Dept 1999]). I !ere. )harbowicz testified th<lt she hired Gordon. a carpenter. to perform various jobs at the Premises and that when she needed a plumber to install a water heater. an above ground oil tank and to abandon the old in-ground oil tank. Grem er was hired upon the recommendation of Gordon. Plaintiff lived at the Premises with her fianc~ and three children from October 20 I 0 to December 20 I I. Plaintiff testified that other than meeting Sharbowicz while viewing the Premises with a real estate agent and then signing the rental agreement shortly therealter. she did not sec Sharbowicz at the Premises again. Plaintiff also testified that dt ring the fourteen months she Ii vcd at the Premises. other than the subject accident. the only prohkm she experienced was a lea k in the bathroom for which she called Sharbowicz. and Gordon fixed. Plaintiff lurther testified that she maintained the lawn in the backyard since moving in. and that in the Spring or2011 her liance planted a small vegetable garden. Plaintifftestilicd that she and her family wutcrcd the garden using the spigot and hose attached to the back ol" thc house. J>laintilT a~so testi lied that prior to her accident. she <llld her fiancc used .he spigot several times a week without incident: she never noticed anything unusual with thl.! ground or reported uny problems f() Sharbowicz. On the morning of her acc ident. she walked to the spigot to wash out a cooler lo takl' t•> the beach. J\s she rcacheJ to tum on the water. the ground beneath ht•r feet sudtknly collapsed cn:ating a hole up ln her knees. causing her to foll backwards. (ion.Ion testilil'd that he did not perform any work in the backyard or hdp with thl' i11stalla1ion or ,1bundonm1:nt 0 . either oi I tunk . I k rurthcr testi tied that other than l"C(;Ollllllending Gn~mkr lO Sharhowicz. he \\<lS not involved \\-ith the ''ork. It was alter plaintiffs accident occurred. and ten months afkr (l remlcr completed thL' ''nrk. that C iordon. at the request of Sharbowici'. returned lo the Premises to Jill in the hol .: that had becn created ''hen the g.roun.I co llapsed. [* 3] <mates v :-.narbow1c1. Index No. 12-l-Hl88 <. ( it\'mkr lc<;tilic..'d he is a lic1:nsed plumhcr in ~Uff )lk and hact ,1bandoned underground oil ta11k<; do/c..'11'\ or t:mes duri11g. his more than twcnt:~ years as a plumber. <iremler tL'stilied that he and his son \\c.!I\~ in husiness wg.ethl'r and p:rformed the work Ht the Premises. Jcnying thut (iordon or Sharbowiu. su1 wrvised. assisted or \\Crc any wa) i11' oI' 'l'd \\it Ii thl.! work. (j rem ler tcsti lic..":<l as to ho\.\> he perl<.mncd the abunJonment or the in-g.round tank. hy exc.:<n :ning the soil around il. culling the pipl!s amJ scaling thc..":m. pumping out thi.! wa~tl': oil. deaning the tan!.. and tilling it v1ith 55 gallons of sand. I le then backfilled the cxca"vati.:<l area. c.:ompm:ting the soil anc..J sand and placed a dome of sand on top in the even t of sect ling. raked the area and left it clean. Uremlcr also testi!il'.d that thl' spigot in the ba1.:kyard v..as twll l~et away from where he..": was wo rkin g and that he obtaim;d \'vater from it to Jn hi~ \\Ork. I le did not sec any settling or the ground in the an;a and noted that the soil around the in-ground tank \\<b or very good quality. According to Gremler. after Sharbn'A.icz paid him for thc joh. he never rl.!tLJrned lo the Premise'). received any complai nts regarding the work. or was mmk ctware that the ~ro und had collapsed. Based on the dct'Cndants' testimony. Gordon has established that he had no ov.11crship interest in thc Premises and cid not perform any work in the area of the ground collapse or to the underground oil tank on the day uf: 01 <Ill) 1i111..: p r i ~>r to. plaintilT' s accidenl. Such evidence demo11strates Gor<lon·s cnlitlernc.::n1 to sum mary judgment as u matter ol'law (sel' Oueli v Ci(v of New York. 92 /\03d 840. 938 NYS2d 618 l2d Dept 20 121: Tillem v Cablevision Systems C01p.. 38 AD3d 878. 832 NYS2d 296 f2d Dept 20071: Kleeberg v City of New York. 305 AD2d 549. 75<> YS2d 760 l2<l Dept 2003)). It is wdl settk<l that to defeat the motion. the opponents have to establish the ex istence of '"facts and conditions from which the negligence ofl Gordon I and the causation of the accident by that negligence may be reasonably infr·rrcd"" (Ingersoll v Liberty Bank of Buffalo. 278 Y 1. 7. I~ E2d 828 [ 1938 I). Such proof must pcnnit a find in .~ or proximate cause ""based not upon speculation. but upon the logical inferences to be drawn from the ev idence .. (Sclt11eitler v Kings Highway Hosp. Ctr.. 67 NY2d 743. 744. 500 NYS2d 95 ri 9861). llere. the record contains no evidence that Gordon performed any work in the backyard or related to the oil tank prior to plaintilrs alleged accident. Thus. plaintiff and Gremler have failed to raise an issue of fact. thereby entitling (jordon to summary judgment dismissing the complaint (see Hickman v Medina. supra: Gueli v Ci(I' ofNew York . supra: Tillem •' Cablevision Systems Corp.. supra). Turnin}:, to the motion by Sharbowicz. a landlord has a common-law duty to maintain its premises in a reasonably safe condition ( Basso v Miller. 40 NY2d 233. 386 NYS2d 564f1976 j: Davidson 11 Steel Equities, 1'.'8 /\D3d 91 I. 30 '~YS2<l 175 I2d Dept 2016 I: Afllasltmi v Certified Analytical Group, Inc., 89 /\ D3d I 0. 929 NYS2d 620 l2d Dept 21)J I!): however. an out-of-possession landlord retains no gcnernl responsi bility to do sn (Keum Ok Hau v Kemp, Pin & Ski, llC. 142 /\D3d 686. 36 NYS3d 883 I2d Dept 20 16 j ). An out-of-possession landlord may he held I iahlc for injuries proximately caused by its breach of a duty imposed by statute or regulation. or assumed h) contract or< course or conduct (Keum Ok lla11 ,. Kemp. Pi11 & Ski, LLC. supra: Davidson 1• Steel Equities, rn1wa: Al11as'1111i 1• Certified A11a~i1tical Group, Inc.. supm). 111.n>,.c\ l r. wlwther ur not a landlord i~ considered an out-of-possession landlord. it is \\ell settled that in onkr lu impos1.: liabilit~ lor injuries resulting from an alleged I~ dangl..'rous condition 011 it:-. propl..'rt~. the..: plaintiff must l..'stahlish that tl 1 landowner either created. t)r had act ual or constructive.: notice or the condition (see <iordo11 1• e ·f meri('{lll M11s.-m m <>f Natural History. 6 7 N Y?.d 836. 50 I N YS2d 646 I 1986 j: Dal'idwm i• Steel t:quities. su1m1: Net.Mu 1· C11111'i11glwm As.\·ocs.• L.P., 77 AD3d 638. 908 NYS2d 71J 12d Dept 20101) . ..To establish that a ~lelcndant causc..d or created a hazardous or ddi.:cti\'e condition. the plaintiff must point to some affirmative act of 1 11:gligcncl' 011 the c..klendani·s part"" (Lococo v Mater Cri~t Catholic HiJ(ll Sch .. 14'2 t\IBd 590. 591 . 37 NYS~d 13.+ 12d Ik p1 20 I(> I). ··Actual notice may be delivered to a property owner eilher ornlly ur in \Hiti11g .. (id.). fo [* 4] \ ·anaks \ :-;1iarhnvicz Index i o. l?-l-W88 Page -t co11"ti lllte construct i\'e notice. the dangerous condition must he visihll' and appmcnt and it nn.st exist for a -.ulfo: icnt length of 1ime p for to the accident to permit de fondant LO discover and rcmcd~ it {<iort/011 ,. American ,14useum ofNatural Iii.\'ff I)'. \llJ>ru: Lococo 1• A,l ater Crist Catlwlic lliglt Seit .. 'UJ>ro: l\le/.wm 1• C111111i11glwm A.Hoc.\., LP.. '11/>rll ). rhL' al(H·.:mentioncd deposition testimony of plaintiff and Jdendants establishes that Sharhowict. did not create or hm c actual or constrm:ti' e notice of the allegedly <lanµerou s condition in the backyard. In opposition. plaintiff has foiL:d to raise an issue or foct. There is nothing in the recor<l to in<licate that Sharbowio kncv.. m should have known ol'thc dclcctive condition. In particular. there is no evidence that Sharhowicz was advised ol' an~ defect. that 1he oil tank us abandoned violated any applicable code or that the defoet would haw been visihlt.: and apparent <lu ·ing a visual inspection or the Premises (Riclumlwm ''Simone, 175 AD2d 578. 712 NYS2d 6 7'2 l:ld Dept '.WOOj 1. Moreover, plaintiffs testimony that the ground suddenly collapsed negates her theory that Sharbowic:.i: had constructive notice of th!.! condition. AJJ it ional ly, cuntrary to the contentions in oppusitiu11, Sharbowic.1.. 11 iay 11ut be ltdJ Iiabh: for G rt:m h.:1" s negl igence. if a11y. ··As a general rule. one who hires an independent contractor may not be hdd liabh.: for the independent contractor's negligent acts" (Jackson v Conrad. 117 AD3d 8 I6. 818. 7 1 YS3d 355 f2d Dept 20 151: Sa11c/tez v 1710 Broadway, luc.• 72 AD3d 860. 861, 915 NYS2d 272 l2d Dept 20 l 0 I). There are exceptions to this so-ca lled independent contractor rule (see Rosenberg v Equitable Life Assur. Socy. of U.S.. 79 IY2d 663. 668. 584 NYS2d 765 j 19921: however, plaintiff has not raised an issue of fact as to whether any of them apply herein. Similarly. the tc1ms of the rental agreement do not raise any issue of fact as to Sharbowicz· liability. Sharbowicz· right to inspect t 1c Premises at any time without advance notice as set forth in paragraph 8 of the rentaJ agreement. and to ha'c a set of keys for the house at all times. as stated in paragraph 9, ..does not in itself give rise to a duty to make repairs·· (Keum Ok Han'' Kemp, Pin & Ski, LLC. suprn at 689). Furthermore. both Gremler and plaintiff foiled to cite an .1ppl icahlc statute or demonstrate a course of conduct which would give rise to a duty on the part ol"Sharbowicz. Therefore. Sharbowicz cannot be held liahle for plaintiffs accid~nt and thus is entitled to summary judgment dismi~sing the complaint. Accordi1 ,gly, the motions arc grantc<l. \_ __ Dated: Riverhead, New York August :!3, 2017 ~ ARTHUR G. PITTS, .J.S.C. FINAL DISPOS ITI ON _ A_ ~ON-HNAL OISPOSITION

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