Justiniano v Town of Islip

Annotate this Case

Download PDF

Justiniano v Town of Islip 2018 NY Slip Op 30358(U) February 28, 2018 Supreme Court, Suffolk County Docket Number: 13-8356 Judge: Arthur G. Pitts 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. [* 1] COPY. SI IO RT FORl\l O RDER INDEX No. 13-8356 CAL. No. 17-004370T SUPREME COURT- STATE OF NEW YORK l.A.S. PART 43 - SUFFOLK COUNTY PRESENT: Hon. ARTHUR G. PITTS Justice of the Supreme Court M OTI 0 N DATE ---"6--'"""9--0-1'" l...;...7_ ADJ. DATE 10-19-17 Mot. Seq.# 003 - MG:CASEDISP ---------------------------------------------------------------)( IRVING JUSTINIANO. Plaint iff~ - against TOWN Of ISLIP. Defendant. SULLIVAN. PAPAIN, BLOCK, McGRATH & CANNAVO, P.C. Attorney for Plaintiff 1140 Franklin A venue. Suite 200 Garden City, New York 11530 WILLIAM D. WEXLER. ESQ. Attorney for Defendant Town of Islip 816 Deer Park A venue North Babylon, New York 11703 ---------------------------------------------------------------)( Upon the following papers numbered I to 17 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers I - 9 : Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers I 0 - 15 : Replying Affidavits and supporting papers 26 - 27 : Other __: (11ud :tfter he11r iug eottn~c:I i11 !Htppoit zittd oppo~c:d to tl1e 111otiou) it is, ORDERED that the motion by the defendant Town of Islip for an order pursuant to CPLR 32 12 granting summary judgment dismissing the complaint against it is granted. This is an action to recover damages for personal iajury resulting from a gas explosion that destroyed a single-fa1nily dwelling located at 12 Prospect Dri ve, Brentwood, New York (the premises) on August 14, 2012. It is undisputed that the defendants Marcel Richard, Monisc Richard, and Dames Luma were owners of the premises, that the defendant Star Lite Propane Gas Corp. provided two propane tanks and delivered propane gas to the premises. that the defendants Your Town Cesspool Plumbing & Heating Inc. and Michael Ray worked at the premises prior to the date of this incident and were present when this accident occutTed. and that the defendant AMS Restoration Services LLC completed ce11ain work at the premises prior to this accident. It is further undisputed that stipulations of discontinuance as to all of the aforesaid the defendants have been exec uted on behalf of the plaintiff and that the defendant Town of Islip (Town) is the sole remaining defendant in this action. Moreover, it is undisputed that there were two l 00-pound propane gas tanks at the premises \\"hich provided propan~ gas to certain appliances in the dwelling. that the owners of the premises were cited for violations of the Town Code, including use as an illegal multi -family dwelling, and that none of those [* 2] Justiniano v Star Lite Propane Gas Corp. Index No. 13-08356 Page~ alleged violations involved the presence of the propane tanks or the propane gas lines at the premises. The owners of the premises pied guilty to certain of the alleged violations and were given a conditional discharge permitting them to correct the violations before a date which tell after the date this incident. or In his complaint. the plaintitTalleges that the Town, its agents, servants, and/or employees. operated, maintained. managed. controlled, inspected. pcrfonncd \vork at. issued permits for. and accepted filings for the premises. ln add ition, the p laintiff alleges that the Town owned, operated, maintained, managed. controlled. supervised. inspected, installed. pcrfonned work upon. issued permits for. and accepted filings for the propane tanks and appurtenances at the premises. The plainti ff further a lleges that the Town had knowledge, or was aware, that the propane tanks existed at the premises. that the Town was responsible for enforcing all applicable laws, rules, regulations. and ordinances, and to ensure that the owners of the premises complied with same. that the Town had a duty to enforce said legal requirements and ensure the owners complied with same, and that the Town fa iled to carry out its duty. The plaintiff further alleges that the propane tanks constituted a dangerous, defective and hazardous condition. and that the Town created the condition or had actual or constructive notice of the condition. Finally, the plaintiff alleges that the Town had actual knowledge of the presence of the propane tanks. and that his injuries were caused by the Town ··negligently, carelessly and recklessly enforcing all relevant laws, rules. and regulations concerning the premises ... and the aforesaid propane tanks and appurtenances.'· In its answer, the Town sets forth affim1ative defenses asserting that the plaintiff has failed to state a cause of action. that the plaintiffs injuries were caused by third-parties. that the plaintiff lacks standing, and that it did not owe a special duty to the plaintiff The Town now moves for summary judgment dismissing the complaint against it. In support of its motion, the Town submits the pleadings, the transcripts of the deposition testimony of the remaining patties, and documents regarding the code violations issued to the owners of the premises. The proponent or a summary judgment motion must make a prima facie showing of entitlement to .i udgment as a matter of law. tendering sufficient evidence to eliminate any material issue of fact (see A lvarez v Prospect H osp .. 68 NY2d 320. 508 NYS2d 923 (1986]: Winegradv New York U11iv. 1 l1ed. Ctr.. 64 NY2d 851, 487 NYS2d 316 [ 1985]). T he burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trail of the material issues of fact (Roth v Barreto, 289 AD2d 557. 735 NYS2d 197 (2d Dept 200 I]; Rebecclli v Whitm ore, 172 AD2d 600. 568 NYS2d 423 [2d Dept 1991]: O'Neill v Town of Fishkill. 134 AD2d 487. 521NYS2d272 f2d Dept 1987]). Furthermore. the parties· competi ng interest must be viewed ··in a light most favorable to the party opposing the motion.. (Afarine Midland Bank, N.A. 11 Dino & Artie's Automatic Tra11smissio11 Co., 168 AD2d 610, 563 NYS2d 449 j2d Dept l 990)). However, mere conclusions and unsubstantiated allegations arc insufficient to raise any triable issue of fact (see Z uckerman v City ofNew York. 49 NY2d 557, 427 NYS2d 595 [1980]; Perez v Grace Episcopal C/i11rcli. 6 AD3d 596, 774 NYS2d 785 [2d Dept 20041; Rebecchi v Whitmore. supra). As a general rule. an agency of government is not liable for the negligent performance of a governmental fun~tion unkss there existed a special duty to the injured person (1YlcLea11 v City ofNew Yo rk. 12 NY3d 194. 878 NYS2d 238 [2009]: T'1ompso11 v Town of Brookhaven. 34 AD3d 448. 825 NYS2d 83 I2d Dept 2006] ). The four elements that are required to establish a special relationship are (I) an assumption [* 3] Justiniano \' Star Lite Propane Gas Corp. Index No. 13-08356 Page 3 by the municipality. through promises or actions. of an affirmative duty to act on behalf of a party who was injured: (2) kno\:vledgc on the part of the municipality's agents that inaction could lead to harm: (3) some form of direct contact b~tween the municipality's agents and the injured party: and (4} that party's justifiable reliance on the municipality's affirmative undertaking (see Nlclea11 v City of New York, supra: Kovit i· Estate of Hallums. 4 NY3d 499, 797 NYS2cl 20 [2005]). To sustain liability. the duty breached must be more than that owed to the public generally (Lauer v City ofNew York, 95 NY2d 95, I 00, 711 NYS2d 112 [2000]). The burden of proof of establishing a special relationship is on the plaintiff (Valdez v City of New York. 18 NY3d 69, 936 NYS2d 587 [2011 J: Lauer v City of New York. suprn). A special duty does not arise when a municipality fails to properly enforce its codes and regulations. or does not monitor a party·s compliance in co1Tecting code violations (see Ferreira v Cellco Part11ership. 111 AD3d 777. 976 NYS2d 488 [2d Dept 2013); Gibbs v Paine. 280 AD2d 517, 720 NYS2d 184 [2d Dept 200 1] ). In order to invoke the special duty rule, plaintiff must establish that. through affirmative acts. the municipality has lulled him or her of foregoing other avenues of protection or that it has voluntarily assumed a duty separate from that owed to the public at large (Bis/top v Bostick, 141 AD2~ 487, 529 NYS2d 116 (2d Dept 1988]). It is the plaintiffs burden to show that the defendants conduct actually lulled him into a false sense of security. induced him to relax his own vigilance or forego other avenues of protection and thereby placed him in a worse position than if the defendants never assumed the duty (Davis v Village of Spring Valley. 50 AD3d 943, 856 NYS2d 243 (2d Dept 2008]; see also Dinardo v City ofNew York, 13 NY3d 872, 893 NYS2d 818 [2009): Brown v City of New York. 73 AD3d 1113, 902 NYS2d 594 [2d Dept 2010]). Moreover. it is well settled that a plaintiff must allege a special duty owed to him or her to state a cause ofaction in negligence against a municipality or governmental agency (see Meri11 v Ci(y ofNew York , 15-t AD3d 928. 63 NYS3d 84 [2d Dept 20171: Kirchner v Co1111~J' ofNiagara. 107 AD3d 1620. 969 NYS2d 'J.77 [4th Dept 2013): see also La11er v City of New York. 95 NY2d 95. 711NYS2d112 [2000]). Here. the plaintiff does not allege an affirmative duty on the part of the Town to act on his behalt~ any direct contact with the Town·s agents. servants. or employees, or that he relied upon the Town's undertaking to inspect or otherwise act regarding the propane tanks or gas piping at the premises. Thus. the Town has established its prima facic entitlement to summary judgment dismissing the complaint on the grounds that the plaintiff has failed to state a cause of action. · To the extent that the complaint asserts additional causes of action. the Town has also established its prima facie entitlement to summary judgment dismissing the complaint. At his deposition. the plaintiff testified that he was at thl.! premises on the day of this incident as a favor to the defendant Monisc Richard (Mrs. Richard). that Mrs. Richard gave him the keys to the premises. and that he met the defendant Michael Ray (Ray). a plumber. and an insurance adjuster to allow them to inspect the boiler located in the basement ol'thc premises. He stated that, approximately ten days before that date, the basement had flooded and the three v.-ere there regarJing the owners· insurance claim, that they went down to the basement, and that Ray asked them if they detected an odor. He indicated that he did smell ..something out of the ordinary." that he went upstairs to check on the kitchen appliances, and that, on his return, he told Ray that .. the odor is here, down here, not nothing upstairs.·· The plaintiff further testified that Ray said "'okay," that he saw Ray push the --staner button·· for the boiler, and that inunediately thereafter ..everything went up·· in an explosion. He stated that he had previously seen a ..disabled.. clothes dryer in the basement not connected to electric or gas service, that he had seen a stove outside of the dwelling which had been removed by the defendant [* 4] Justiniano v Star Lite Propane Gas Corp. Index No. 13-08356 Page 4 AMS Restoration Services LLC when cleaning the Hooded basement. and that he had seen two propane tanks at the s ide of the dwelling which were blocked by a bush and flowers but were visible ··to some degree." Daniel Eckert (Eckert) testified that he is employed as an investigator by the Town. that his duties include responding to complaints about properties by the public or Town departments. and that he was assigned to investigate a complaint made by a tenant at the premises. He stated that the tenant granted him limited access to the premises on September 26. 2011, including the first and second 11oor, although some rooms had padlocks which prevented access. and the basement which had been ··converted to habitable living space ... it was vacant and was being used for storage.'' He indicated that he issued a number of violations to the owner of the property, including a lack of smoke and carbon monoxide detectors. mold issues. and use as an illegal multi-family dwelling. Eckert further testified that a senior investigator with the Town served the owners with tickets to appear at the Fifth District Court regarding these violations in November 2011. that he reinspected the premises at the request of one of the owners on December 16, 20 I I, and that he determined that the violations were "partially corrected." Ecke11 further testified that he did not see, and he was never told. that there were propane tanks on the property. that he did not observe any gas pipes in the basement. and that he did not know if he inspected the backyard of the premises. He stated that a prior violation for use of the premises as an illegal multi-family dwelling and basement habitation in 2003 was dismissed as ··unfounded ... and that a violation for use of the premises as an illegal multi-family dwelling in 2005 was marked "closed'' on March 13, 2006. He testified that he received information on June 28. 20 12 indicating that as a result of their court appearances, the owners of the premises were issued a conditional discharge by the Fifth District Court in which the owners were given until October 13, 2012 to address the violations. that he took steps to prepare for a reinspection of the premises before that date. and that he received a call from a senior investigator on August 14. 2012 that there had been a gas explosion at the premises. It is axiomatic that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff (see Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393 ll976]: Engel/tart v County ofOrange. 16 AD3d 369, 790 NYS2d 704 [2d Dept 2005]). As a general rule. liability for a dangerous condition on property must be predicated upon ownership. occupancy. control or special use of the property (see Leihovici v Imperial Parking Mgt. Corp .. 139 AD3d 909. 33 NYS3d 312 [2d Dept 2016): Ruffi110 v New York City Tlte respo11de11t. A utlt .. 55 AD3d 817. 865 NYS2d 667 [2d Dept 2008]) . Where these clements are not present, a party cannot be held liable for injuries caused by the dangerous o r defective condition of the property (Ruffino v New York City Tr. Autlt., id: Noia v Maselli. 45 AD3d 746. 846 NYS2d 326 l2d Dept 2007]). Here. It is undisputed that the Town does not have ownership, occupancy. control. or special use of the premises. To the extent the plaintiff's complaint alleges a cause of action for premises liabi Ii ty. the Town has established its prim a facie entitlement to summary judgment dismissing the complaint. Finally. the Town has established its prima facic entitlement to summary judgment on the ground that it did not have knowledge. or any awareness. that the propane tanks existed at the premises, or that the tanks presented a hazard to the occupants of the premises or members of the community. Thus. the Town has established its prima facie entitlement to summary judgment dismissing the complaint in its entirety. [* 5] Justiniano v Star Lile Propane Gas Corp. Index No. 13-08356 Page 5 The Town having established its prima facie entitlement to summary judgment dismissing the complaint, it is incumbent upon the plaintiff lo produce C\ idence in admissible form sufficient to require a trial of the material issues of fact (RotIt v Barreto. supra: Rebecclti v Wltitmore. supra: 0 'Neill v Fishkill. supra). In opposition to the motion, the plaintiff submits, among other things. the affirmation of his attorney. the transcripts of the deposition testimony of the parties summarized herein and the other named defendants. the investigation report of the Suffolk County Police Department regarding this incident, printouts from certain media web s ites, and the affidavit of an expert witness. In his affirmation. counsel for the plaintiff contends that there is an issue of fact whether the Town is liable herein based on its .. neg I igence in failing to carry out its governmental functions of inspection and protection," and that '"various newspaper articles directly quote Town officials as accepting liabi I ity for the explosion." However. counsel for the plaintiff does not address \vhether the plaintiff is owed a special duty by the Town regarding this incident. New York Courts have held that the fai I ure to address arguments proffered by a movant or appellant is equivalent to a concession of the issue (see McNamee Co11str. Corp. v City of New Roelle/le. 29 AD3d 544. 817 NYS2d 295 [2d Dept 2006]: Welde11 v Rivem. 301AD2d934. 754 NYS2d 698 (3d Dept 2003]: Hajderlli v Wiljolm 59 LLC, 24 Misc 3d 12-t2[A], 2009 NY Slip Op 51849[U] [Sup Ct. Bronx County 2009] ). Thus. it is determined that the plaintiff cannot maintain a cause of action for negligence against the Town for its alleged failure to perform its governmental functions based on a special relationship with the Town or a special duty owed to him. The unauthenticated copies of newspaper and internet articles downloaded from the internet, submitted by the plaintiff, are not in admissible form (Pu v Brnni, 24 Misc 3d l 245[A] , 899 NYS2d 62 [Sup Ct. , ew York County 2009]; Morgan, lewis & Bockius v IB11yDigital. com, Inc.. 14 Misc 3d l 224[A], 836 NYS2d 486 [Sup Ct. New York County 2007]. and they have not been considered by the Court in making this determination (Young v Fleary, 226 AD2d 454, 640 NYS2d 593 [2nd Dept 1996) [newspaper articles submitted on summary judgment motion constitute inadmissiblehearsayl: see also P&N Tiffany Props. Inc. v Maron, l 6 AD3d 395, 790 NYS2d 396 [2d Dept 2005]). In any event, the contention that unnamed Town officials or a spokesperson for the Town admitted that the Town was liable for the injuries which resulted from this accident is without merit. The transcripts of the deposition testimony of the parties submitted by the plaintiff do not raise an issue of fact regarding the liability of the Town. and they need not be summarized herein. Finally. the affidavit of the plaintiffs expert witness does not raise issues of fact requiring a trial of this action. In his affidavit, Steven Pietropaolo (Pietropaolo) swears that he is Iicensed as a professional engineer in New York State, that he is designated a certified fire and explosion investigator and certified fire investigation instructor by the National Association of Fire Investigators. and that he has reviewed the depositions and relevant documents herein. He states that based on his review. it is his opinion with a reasonable degree of engineering certainty that the Town was ··on notice of the installation of improper and non-approved gas appliances in the illegal basement apartment by virtue of its numerous inspections of the property:· that the Town ·'should have observed these inherently dangerous conditions" at its inspections. and that the Town ..should have caused the property to be immediately vacated and guarded prior to the explosion:· [* 6] Justiniano v Star Lite Propane Gas Corp. Index No. 13-08356 Page 6 An expert .. may not reach a conclusion by assuming material facts not supported by the evidence. and may not guess or speculate in drawing a conclusion·· (see Slti Pei Fang v Heng Sang Realty Corp., 38 AIJ3d 520. 835 NYS2d 194 (2d Dept 2007]). ..Speculation. grounded in theory rather than fact. is insuf'ticient to defeat a motion for summary judgment'" (see Zuckerman v City of New York supra; Leggis v Gearhart, 29-t AD2d 543, 743 NYS2d 135 [2d Dept 2002]; Levitt v County ofSuffolk, 145 AD2d 414, 535 NYS2d 618 [2nd Dept 1988]). II ere, to the extent that Pietropaolo· s affidavit anempts to render an expert opinion. it primarily consists of theoretical allegations with no independent factual basis and it is therefore speculative, unsubstantiated. and conclusory (see Me!ilric v Nlarti11ez Cleaning Co., 306 A02d -t..+9, 761 YS2d 504 j'2d Dept 2003 j). More importantly, Pietropaolo·s afiidavit does not address the issue of the plaintiffs special relationship to the Town, and the plaintiffs submission fails to ofier any admissible evidence on this critical issue. The plaintiff only addresses this issue in the affirmation in opposition to the Town's motion wherein counsel for the plaintiff contends that the Town can be held liable based upon its knowledge of the danger herein and its failure to take reasonable steps to abate the danger. However, mere conclusions and unsubstantiated al legations are insufficient to raise any triable issue of fact (see Zuckerman v City of New York, supra; Perez v Grace Episcopal Cfturclt, supra; Rehecc/1i v Whitmore, supra). In addition, the afiirmation of an attorney who has no personal knowledge of the facts herein, is insufficient to defeat a motion for summary judgment (Sanbria v Paduch, 61 AD3d 839, 876 NYS2d 874 (2d Dept 2009]: Warrington v Ryder Truck Rental, Inc. , 35 AD3d 455, 826 NYS2d 152 [2d Dept 2006]). Thus, the plaintiff has failed to raise an issues of fact regarding the absence of a special duty owed to the plaintiff by the Town or the negligence of the Town herein. 1 Accordingly, the Town's motion for summary judgment dismissing the complaint is granted. II Dated: Riverhead, New York February 28, 2018 X 1 FINAL DISPOSITION Le 1 <&o . ' '--- ARTHUR G. PITTS, J.S.C. NON-FINAL DISPOSITION The Town·s reply papers have not been considered as they were filed with the Court on October 30, ::w 17, after the return date of its motion(::!::! NYCRR § ::!0::!.8[a]).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.