Rigas v Serpico

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Rigas v Serpico 2017 NY Slip Op 32115(U) October 3, 2017 Supreme Court, Suffolk County Docket Number: 12174-15 Judge: Daniel Martin 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] SUPREME COURT OF THE STATE OF NEW YORK l.A.S. PART 9 SUFFOLK COUNTY INDEX NO.: 12174-15 PRESENT: HON. DANIEL MARTIN Motion Dates: 2/1 9/ l 6. 4/ 1611 6. 5/1 7116. 6/28/l 6 Submitted: 9/6/l 6 Motion Sequence Nos.: 01 - MD 02. 03. 04. 05 , 06 - MG JOANNA RIGAS, as Executor of the Estate of ANDREW lliGAS, Deceased, and MARIA WYNNYCKYJ, PLAINTLFFS' ATTY: Plaintiffs, Petrocelli & Christy 170 Old Country Road, Ste. 611 Mineola, NY 11501 DEFENDANTS' ATTY: forRalplt &Rose Serpico Dodge & Monroy 175 Pinelawn Road, Ste. 105 Melville, NY 11747 -against- RALPH SERPICO, ROSE SERPICO, THE SOCIETY OF SAINT PARASKEVI GREEK ORTHODOX SHRINE CHURCH, ARCHDIOCESE OF AMERICA AND CANADA OF THE AUTONOMOUS GREEK ORTHODOX CHURCH a/k/a AND d/b/a THE GREEK ORTHODOX ARCHDIOCESE OF AMERICA, DENNIS LICHAS, EAST COAST MID\VAYS, LLC, FARON .JOSEPH YOUNG & BILLY Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C. for St. Paraskevi & Dennis Liclws 6851 Jericho Turnpike,# 250 Syossct, NY 11791 O'Connor, O'Connor, Hintz & Deveney, LLP for Arcltdiocese ofAmerica & Canada O ne Huntington Quadrangle, Ste. 3C01 Melville, NY 11747 Fiden & Norris, LLP for East Coast Midways, Faron Joseph Young, Billy Swafford III and Brewsters Amusements 845 Lexington Avenue, 11th Floor SWAFFORD Ill/BREWSTERS New York, NY 10022 AMUSEMENTS, LLC, FEDERAL REALTY INVESTMENT TRUST, TOWN OF HUNTINGTON, COUNTY OF SUFFOLK and COUNTY OF SUFFOLK POLICE DEPARTMENT, Nicoletti Gonson Spinner & Owen LLP for Federal Reality Investment Trust 555 Fifth Avenue, 8111 Floor New York, NY 10017 Defendants. Margaret Pezzino, Esq. Assistant Town Attorney for Town ofHuuti11gto11 100 Main Street Huntington, NY 117~3 Dennis M. Brown, Esq. S uffolk County Attorney for Cowz~v & S1~/folk Police Dept. ff.Lee Dennison Building 100 Veterans Memoriol Highway P.O. Box 6100 Hauppauge, NY 11788-0099 [* 2] The following named papers ha\'e been read on this motion: Notice o f Motion/Order to Show Cause 6X x x A nswerin u Affidavits Replying Affidavits This invol\'CS s ix motions by eleven different defendants which the Court ,,·ill treat seriatim . These motions arc hereby consolidated for purposes of this determination. This action involves a motor \·ehick accident in which three pedestrians \\·ere struck by a vehicle driven by defendant RALPII SERPICO on Pulaski Road, Greenlawn, New York on September 20, 20 14 at approximately 10 :30 P. M .. ANDREW RIGAS (8 l) was killed and his wife JOANNA RIGAS (81) and his daughter MARJA WYNNYCKYJ were injured. T hey had attended the Greek Festival at St. Paraskevi's Church and were returning to their car parked in the Green lawn Plaza across Pulaski Road. Federal Realty Investment Trust ( hereinafter referred to as FRlT) owns the Shopping Center. St. Paraschevi (and a volunteer parishioner Dennis Lichas) have organized and run the fundraiser event for many years. The Greek Archdiocese's Chief Operating Officer and Executive Director Jerome Demetriou swears in his affidavit that the Archdiocese has absolutely no financiaL ownership, or business connection with St. Paraskevi's Church and is completely unconnected with this accident. East Coast Midways, LLC, Faron Joseph Young & Billy Swafford III/Brewster's Amusements. LLC provided the rides and amusements at the festiva l. Since the accident took place in the County of Suffolk on a roadway allegedly designed and owned by Suffolk County and in the jurisdiction of the Suffolk County Police Department, those two entities are also named as defendants. Since the festival is located within the Town of Huntington which required town permits and inspections, the Town of I Iuntington was named as a defendant as well. In motion sequence# l. FRIT moved to dismiss the complaint pursuant to CPLR §3211 (a) (7) , arguing as to it that plaintiff fails to state a cause of action and, secondly. requests summary judgment pursuant to CPLR §3212. In this motion to dismiss based upon §3211 (a)(7), defendant must establish that plaintiffs' complaint does not allege facts which fit into some cognizable legal theo ry as derived from the fou r corners of plaintiffs' complaint. Leon v. Martinez. 84 NY2d 83 (1994); Monroe v. Monroe. 50NY2d 481: Rebello v. Orofino Realtv Co., 40 )J'Y2d 635.A §32 l l(a)(7) requires that plaintiff be given e\·ery possible inference and without reviewing the credibility witnesses. It is not that plaintiff has proved a case but rather that the complaint contain facts from which a cause of action could be made out. Dinerman \'.Jewish Board ofFamilv & Children's Services. Tnc. 55 A.O. 3d 530. 530-31 pn<l Dept. 2008). Herc, since the compla int makes out a cause of action with allegations. if true, could s ustain liability against defendant. then defendants motion to dismiss must be denied. of Contrary to defendant FRIT's argument that it can move for summary judgment pursuant to §3211. the Court finds that issue has not been joined and. therefore, a summary judgment motion by defendant is premature. Rochester v. Chiarella. 65 "NY 2"<l 92. 10 l. 4 79 A D 82"d 810. 490 ·ys 2"J 174 (l 985 ). Gaskin v. I TatTis. 90 8A. D. 3rJ 941. 942 (app div 2"J Dept 2012). Union Turnpike Page -2 - [* 3] Associates. LLC \'.Getty Realty Corp .. 27 A. D. y J 725. T27 (app di\· 2n Dept 2006): Wexelman J \'. Irteza. 22 ~liss. 3'd 1103 (A) (Supreme Court 2009). Under the facts of this case. defendant FRIT argues that issue is joined by the making ofa 321 I (a) (7) motion and the filing ofan RJ I. 1\e\\. York law says otherwise. This court is pO\Yerless to grant defendant· s motion for summary judgment under 3212 since issue has not been joined. Consequently. the motion by defendant fRIT is denied. Motion sequence #2 is termed a cross-motion by St. Paraskevi Church and Dennis Lichas pursuant tO CPLR §32 12 fo r summary judgment to dismiss plaintiffs' complaint as to them. Sequence #2 is post answer. Plaintiffs must demonstrate a breach of a duty owed to them in order for there to be tort liability. Pulka v. Edelman. 40 NY2d 781, 358 NE 2nd 1019, 390 NYS 2nd 393 (1976); Palsgraf. v. LlRR, 248 NY 339, 162 ANY 99 ( 1928). J\ property owner owes a duty to those com ing on his land to keep it in a reasonably safe condition: however, when a plaintiff is not on defendant 's land and defendant has not taken action to modify or change public or another's land, then defendant has no duty of care owed to that plaintiff or plaintiffs. Basso v. Miller, 40 NY 2"d 233. 352 NE2d 868, 386 NYS 2nu 56-t (1976): Smith v. Taylor, 279 A. D. 2nd 566, 179 NYS 211d 686 (2"J Dept 2001). Defendants St. Paraskevi Church and Dennis Lichas support their motion to dismiss with the Lichas affidavit (paragraph 8) which clearly states a saw horse and a sign to the event and several cones were placed across Shrine Place to prevent vehicles from turning onto that street used for festival purposes. and therefore precluding vehicular traffic. Plaintiffs support their opposition with plaintiff Joanna Rigas· affidavit which, with careful reading. does not contradict the Lichas affidavit or the various photographs submitted by both sides. All lead to the conclusion that the saw horse and cones were across the south end of Shrine and did not funnel pedestrian traffic in any way; moreover. there were no obstructions, barriers, cones on the road surface of Pulaski Road on which the accident took place. Summary judgment is a drastic remedy and should be granted only in the absence of any triable issues of fact (see Rotuba Extruders. Inc. v. Ceppos, 46 NY 2 11J 223. 413 NYS 2nd 141 (1978); Andre v. Pomeroy, 35 NY 2nd 361 , 362 NYS 2nu 13 1 (1974). It is well-settled that the proponent of a summary judgment motion must make a prima facic showing of entitlement to judgment as a matter of law. tendering sufficient proof to demonstrate the absence of any material issues of fact. (Alvarez v. Prospect Hosp .. 68 N Y 2nd 320. 324, 508 NYS 2nJ 923. 925 (1986). Failure can such a showing requires a denial of the motion. regardless of the suffic iency of the opposing papers. Winearad v. ew YorkUniv. Med. Ctr. 64 NY 211d 851. 853, 487 NYS 2 11J 316, 318 (1985). Further. the credibility of the parties is not an appropriate consideration for the Court (S.J. Capelin Assocs .. Inc .. Globe fFG. Corp .. 34 NY 2nd 338. 357 NYS 2nd 478 ( 1974). and all competent evidence must be viewed in the light most fa\·orable to the party opposing summary judgment (Benincasa \'. Garrubbo. 1-t I AD 2n.i 636. 3 637. 519 IYS 2nu 797. 799 (2"J Dept 1988). Once a prima facie showing has been made. the burden shifts to the party opposing the summary judgment motion to product! e\·idence sufficient to establish the existence of the material issue of fact (see J\h·arez v. Prospect I Iosp .. supra. I Tcre, si nee there is not an issue of fact and, since the defendants in this sequence owes no Page -3- [* 4] duty to these plaintiffs who were not on church property. but on a public roadway unencumbered by anything De1rnis Lichas placed thereon. Pulka ' " Edelman. supra \\'Ould control. In fact. the fact patterns in Pulka and this case are q uite similar and ha\'e recently been confirmed in~ Andre,,· \'.O'Brien . ..J.5 AD2d I 02-t 8-J.5 I\YS2d 18..J. (1007). Therefore. the cross mo tion seeking summary judgment and a dismissal of all claims aml cross claims asserted against the Church and Lichas is granted. In motion sequence #3. the Archdiocese of the Greek Orthodox Church of America moves to dismiss plaintiffs· complaint pursuant to CPLR §3212. The Archdiocese supports its motion with the affidavit of the CEO and Executive Director Jerome Dimitriou. \\·ith oftices at 8-1 0 E. 791h t.. New York, NY 10075. Mr. Demetriou swears as follows: ··the archdiocese does not and never has owned, leased. managed . maintained. co ntro lled or supervised the physical property on which St. Paraskev i is situated nor does it oversee or control its local. lay employees and members. The archdiocese has no rol e whatsoever in connection with the aforementioned carnival/festival.'" As was contained in the Court' s analysis of the motions for summary judgment by FR1T and Church and Mr. Lichas, here the plaintiffs must present an issue of fact, together with a duty of the defendant owed to the plaintiffs in order to establish a breach of that duty to establish tort liability. Lopez v. McKenzie Electrical Contractors, 203 AD. 2 11d 262, 610 NYS 2nd 55(2"dDept1994); Pulka v. Edelman, 40 NY 2 11d 781. 350 8N. D. 2nd 10 19. 390 NYS 2"d 393 (Court of Appeals 1976). As is contained in the Demetriou affidavit. the Archdiocese had no nexus to the Greek food festival and it's only connection was on "eccles iastical"' issues. St. Peraskevi "s church is a wholly not-for-profit religious Corporation, which solely owns, operates, maintains and s upervises its pari sh, its property and indeed the annual food fest ival; the fundraiser is in no way a benefit to the Archdiocese and. therefore. there is no com1ection between these plaintiffs and the Archdiocese. Therefore, the Archdiocese's motion to grant summary judgment in its favor and its request to di smiss all cross-claims made against it is granted. Motion sequence #4 involves a motion by the vendors at the Greek Festival who prov ide the amusements and rides. (Midway's. Young. Swafford III and Brewsters). They present their motion fo r summary judgment to dismiss plaintiffs" action and cross-claims as to them. Supporting the motion is a copy of their contract bet\Yeen the vendors and the church. the affidavit of Bi lly Swafford III. and the litigation documents. As regards the vendors. there is the same requirement already covered above that, in order for defendant to be liable on a tort theory. a threshold question is whether defendant owes a duty of care to the plaintiffs. Hamilton\'. Beretta USA Corp .. 96 Y 2"d 222. 7'27 YS 2"J 7 (200 l ): Palsiuaf v Long Island Railroad Companv. 248 . Y. 339 ( 1928). Here. the agreement used for the vendors for rides and games was specific that the vendors were not to provide '"security services, .c ross-guards, police assistance, parking facilities, parking attendants. and/or traffic control devices." Likewise the affidavit of Billy Swafford III confirmed the Page -4- [* 5] vendor had no responsibility for entrance areas. and/or barricades. o r pedestrian traffic. Consequently. applying all the same concepts and theories in sequences :2 and 3. the co urt grants the ,·enders· motion for sununary judgment and to dismiss any cross-claims against them. Once again as \Yas true in sequences 2 through -L in order to hold Suffolk County liable for tore liabil ity in Motion sequence #5. plainti ff must first establish the existence of a duty owed by the county to the plaintiffs. As regards the Suffolk County Police Department s pecifically. defendant documents that is not a separate entity and it carmot sue or be sued independently. Young v. Suffolk Countv 920 2 F. Supp. 2"u 368 (EDNY 2013); Guinta v. Countv of Suffolk, at a l. , Index number 64564/ 13 (Supreme Court, Suffolk County 2014 (Pitts, J); Carthew v. County of S uffolk, 709 F. Sup. 2nc1 188 (EDNY 20 lO); Ceparano v. Suffolk Countv, 20 IO WL543 7212 (EDNY 2010): see also David v. Lvnbrook Police Dept, 224 F. Supp. 2"d 463, 277 (EDNY 2002). Therefore. as a preliminary issue as regards the Suffolk County Police Dept, the department is a subdivision of Suffolk County and the cause of action against it individually must be dismissed. The second part of sequence # 5 - tort liability invo lving the provision of artificial street lights - plainti ff here again must demonstrate a municipal duty. As a general proposition the case law for liability due to hazardous condition denies liability against the municipality and its police force unless there exists a special relationship between the injured party and a municipal defendant. Balsam v. Delva Engineering Corp., 90 Y 2n<l 966. 688 N. E. 2nd 487. 665 N YS 2nd 613 (1997); Kovit v. Hallums and Lazan v. Countv of Suffolk. 4 NY 3rd 499 829 N. E. 2nd 1188, 797 NYS 2nd 20 (2005) (cases joined for joint argument and decision). Here. plaintiffs contend that they County should be held liable due to poor lighting conditions at the site of the accident on Pulaski Road in Greenlawn ; however the necessary elements required in Kovit are not present and, therefore, an affirmative duty to the injured plaintiffs' did not exist. Consequently. liability without a special duty and liability against the municipality must be denied . See Kovit. Santoro v. City of New York. 17 AD 2"J 563. 795 NYS 2"0 60 (211<1 Dept 2005); Eckert v. State. 3A. D. 3rJ 470 771 NYS 2"J 132 (2 u Dept 2004). 11 Therefore, based upon the voluminous amount of case lavv favoring the municipality, the Court grants Suffolk County's motion for summary judgment s ince there is no authority to sue the Suffolk County Police Department and, as to Suffolk County. there is no specific duty owed by defendant to plaintiffs and. consequently. no liability owed by defendant to plaintiffs. The last motion sequence #6 is a motion by defendant Town of I luntington for summary judgment to dismiss plaintiffs· complaint on the same basis as the earliest sequences. stating the town has no duty of care to the plaintiffs. Going to the threshold question whether the town O\\"eS a duty of care to these plaintiffs. this Court finds that the Town of Huntington has no such duty and, us ing the prior five (5) sequences as Page -5- [* 6] examples. without a special duty or some notice to the municipality of an existing dangerous condition which requires repair. there is no duty of care created \\·hi ch in mm creates liability to the Town of Huntington. Schulman Y. City ofNew York. 190 A. D. 2"J 63. 593 1\YS 2"J 289; Hamilton v. Beretta USA Corp .. 96 N. Y. 2"'1 222. 7'27 YS 2nu 7 (2001 ). The Town of' Huntington does not O\\'n or control Pulaski Road and supports its motion with an anidavit of Michael Kaplan. employee of the Town of Huntington Highway Department. Regarding the alleged obligation to illuminate the subject roadway. the case la\Y confinns that artificial street lights are a municipal benefit. not a municipal duty. Mastro v. Maiorino . 170 4A. D. 2nd 654, 571NYS2nd 515 (2 11d Dept 1991); Cracas v. Zisko. 204 A. D. 382. 6 12 NYS 2nd 55 (2"d Dept 1994). §327 NYS Highway Law provides that a Town Board may either provide lighting or discontinue lighting of any roadway at their choosing. Thompson v.Citv of New York. 78 NY. 2"d 682. 684 ( 1991 ): see Rios v. Citv of New York 33 A. D. 3rd 780 (2006): Abbott v. Countv of Nassau. 223 A. D. 2nd 662 ( 1996). Therefore, as against the Town. there is an absence of duty to provide lighting which eliminates a duty of care by the municipality and. therefore. liability. Even installed lighting which fails is considered ··withholding of benefits"' if burned-out bulbs are not replaced. Moch Co v. Rensslaer Border Company, 247 Y 160, 168, 159 N.E 96; Mastro v. Maiorino. 174 A. D. 2"d 654 571 NYS 2"<l 5 15 (2"d Dept 1991). As regards the traffic control devices, there was no notification to the Town that they were not functioning properly and indeed two independent witnesses (Jonathan Casilli and Carlos DiGrazia) indicated the traffic lights were functioning properly immediately after the accident. Stephen McGloin. Director of Traffic and Safety for the Town, also provided an affidavit that he did not find in the town records any notices of complaints, repairs or malfunctions involving the traffic control devices on Pulaski Road in Green lawn in the vicinity of the accident. As regards a carnival permit to St. Paraskevi's Church which was issued by the Town o[ Huntington. the Town is protected by municipal immunity for actions requiring the exercise of discretion. The Town's exercise of discretion ca1mot result in liability unless the plaintiffs plead and prove a ··special relationship'' between plaintiff's and the Town Matter of Freed v. Fox, 40 9A. D. 2nd 877, 373 NYS 2"J 197 (2"J Dept 1975): Pera7.zo v. Lindsav, 30 A. D. 2"d 179. 290 NYS 211:1 971 (!51 Dept 1968): Garrett v. Holiday Inns. 44 7 And. E. 2"d 717. 58 NY 2nd 253. 460 NYS 2•1t.1 774: Cuffv v. Citv of New York, 69 N.Y . 2nd 255. 513 NYS 2nd 372 ( 1987). The Court finds that the Town of llun tington has established through credible admissible evidence that it owed no s pecial duty (as required if liability is to be found)) to the plaintiffs who were injured on September 20, 2014 on County Road 1 1 (Polaski Road). When issuing the carnival permit. the Town was performing a governmental function which is protected by governmental immunity. Furthermore. there is nothing to indicate that the traffic control de\'ices were not functioning properly or that the Town had received prior notice of malfunction which might begin to create a ·'special duty:·. Page -6- [* 7] Therefore. based on the above. defendant FRlT"S motion pursuant to CPLR §32 11(a)(7) and section 3212 are denied (mot.seq .. # l ). The Court grants the other defendants' motions and dismisses all cross motions against those parties in motion sequence #2 tlu·ough #6. Consequently. this action vvill continue against FEDERAL REAL TY INVESTMENT TRUST and the alleged tortfeasors RALPH SERPICO and ROSE SERPICO. The Clerk is directed to remove the dismissed named defendants fro m the caption. So Ordered Dated: October 3, 2017 Riverhead, NY Page -7-

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