Pynn v 163rd St., LLC

[*1] Pynn v 163rd St., LLC 2018 NY Slip Op 50795(U) Decided on May 30, 2018 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 30, 2018
Supreme Court, Kings County

Raymond Pynn, Plaintiff,

against

163rd Street, LLC, Defendants.



866/15



Attorney for Plaintiff

Stacy R. Klozow, Esq.

56 West 45th Street, 3rd Floor

New York, New York 10036

(212) 840-3737

Attorney for Defendant

Olympia Rubino, Esq.

Cascone & Kluepfel, LLP

1399 Franklin Avenue, Suite 302

Garden City, New York 11530

(516) 747-1990
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on defendant 163rd Street, LLC's (hereinafter defendant or 163rd Street) notice of motion filed October 16, 2017, under motion sequence six, for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing plaintiff Raymond Pynn's complaint.

Notice of motion

Affirmation in support

Exhibits A to L

Memorandum of law in support

Notice of cross motion [FN1]

Affirmation in opposition to defendant's motion and in support of cross motion

Exhibit A-E

Memorandum of law in opposition to defendant's motion and in support of crossmotion

Reply Memorandum of law in support/opposition to cross motion

Recitation in accordance with CPLR 2219 (a) of the papers considered on plaintiff [*2]Raymond Pynn's (hereinafter plaintiff or Pynn) notice of cross motion filed on January 18, 2018 under motion sequence seven, for an order pursuant to CPLR 3212 granting: (1) summary judgment in his favor on the issue of liability or a declaration that defendant caused and/or created the hazardous condition that caused Pynn's accident and (2) striking the defendant's affirmative defense regarding plaintiff's culpable conduct.

Notice of Cross Motion

Affirmation in opposition to defendant's motion and in support of cross motion

Exhibits A to E

Memorandum of law in support

Reply Affirmation

Reply Memorandum of law in support/opposition to cross motion

Affirmation in reply to defendant's opposition

Memorandum of law in reply to defendant's opposition

MOTION PAPERS

Defendant's motion papers consist of an affirmation of counsel and eleven annexed exhibits labeled A through L. Exhibit A is a copy of plaintiff's summons and complaint. Exhibit B is a copy of plaintiff's Bill of Particulars. Exhibit C is a copy of defendant's answer. Exhibit D is the note of issue filed on September 29, 2017. Exhibit E is a copy of plaintiff's deposition transcript. Exhibit F is described as a copy of a photograph exhibit used during plaintiff's deposition testimony. The photograph depicts black trash bags stacked on a sidewalk. It is labeled defendant's exhibit C, 5/21/15. Exhibit G is a copy of the deposition transcript of Elchonon Benny Sokol, 163rd Street Property Manager. Exhibit H is a copy of the deposition transcript of Luis Roa, 163rd Street Superintendent. Exhibit I is the affidavit of Luis Roa. Exhibit J is defendant's response to plaintiff's notice for discovery and inspection. Exhibit K is a copy of the deposition transcript of Joseph Lyulko, non party. Exhibit L is a copy of the deposition transcript of Leonid Kogan, non party.

Plaintiff's cross motion consists of an affirmation of counsel and five annexed exhibits A through E. Exhibit A is Pynn's affidavit and a copy of a photograph that is purported to be an accurate depiction of the area where the incident occurred. The photograph depicts black trash bags stacked on a sidewalk. It is labeled defendant's exhibit C, 5/21/15. Exhibit B is purported to be a New York City Department of Housing Preservation and Development (hereinafter HPD) notice of violation issued to 163rd Street on April 5, 2012. Exhibit C is a copy of a Certification of Correction of Violation signed by Sandra Blocker, dated April 13, 2012. Exhibit D is a copy of a plaintiff's Notice to Admit dated September 27, 2012. Exhibit E is a copy of defendant's response to the Notice to Admit dated October 6, 2017.

Defendant submitted a reply affirmation and memorandum of law in opposition to plaintiff's cross motion filed on February 16, 2018.

Plaintiff submitted a reply affirmation and memorandum of law to defendant's opposition dated February 27, 2018.

BACKGROUND

On January 21, 2015, Pynn commenced an action to recover damages for personal injuries by filing a summons and complaint with the Kings County Clerk's Office. On February 11, 2015, defendant 163rd Street, LLC (hereinafter defendant or 163rd Street) joined the issue by interposing an answer. The note of issue and certificate of readiness was filed on September 29, 2017.

The complaint, verified bill of particulars and plaintiff's deposition testimony allege the following salient facts. On April 5, 2012, Pynn, a building inspector supervisor with the HPD, sustained injuries on the sidewalk outside of 89-29 163rd Street, Queens, New York (hereinafter subject premises) at approximately 7 P.M. Pynn alleges that his injuries were due to a hazardous condition caused by the negligent acts and omissions of 163rd Street, owner of the subject [*3]premises. Pynn further alleges that he was cut by a piece of glass protruding from a trash bag placed on the sidewalk by 163rd Street or its employees.

The defendant's answer raised five affirmative defenses. The defenses allege that (1) the plaintiff's injuries were caused by his culpable conduct; (2) the complaint fails to state a cause of action; (3) pursuant to CPLR 4545, any verdict should be reduced by the amount indemnified by a collateral source; (4) any judgment shall comply with CPLR 1601; and (5) the defendant had no actual or constructive notice of any dangerous or defective condition.

By notice of motion filed on October 16, 2017, 163rd Street is seeking summary judgment pursuant to CPLR 3212 dismissing plaintiff's complaint.

On January 18, 2018, Pynn filed the instant cross motion pursuant to CPLR 3212 seeking (1) summary judgment in his favor on the issue of liability or a declaration that defendant caused and/or created the hazardous condition; and (2) striking the defendant's afore-mentioned first affirmative defense.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).

163rd Street LLC's CPLR 3212 Motion

"In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (see Gani v Ave. R Sephardic Congregation, 159 AD3d 873, 873 [2nd Dept 2018]). Therefore, a defendant seeking summary judgment must make a prima facie showing "that he neither created the alleged hazardous condition nor had actual or constructive notice of its existence" (see Kabir v Budhu, 143 AD3d 772, 773 [2nd Dept 2016].

"To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it"(Kane v Peter M. Moore Const. Co., Inc., 145 AD3d 864, 868 [2nd Dept 2016]). "When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed" (see Bergin v Golshani, 130 AD3d 767, 768 [2nd Dept 2015] citing Appelgate v Long Is. Power Auth., 53 AD3d 515 [2nd Dept 2008]). Moreover, to satisfy the element of lack of constructive notice, the defendant must present evidence as to when the subject premise was last cleaned or inspected prior to the relative time when plaintiff was injured, or what it looked like prior to the last inspection (see Bergin v Golshani, 130 AD3d 767, 768 [2nd Dept 2015]; see also Mehta v Stop & Shop Supermarket Co, LLC, 129 AD3d 1037, 1038 [2nd Dept 2015]).

163rd Street seeks dismissal of the complaint based upon the following reasoning. Defendant does not dispute their ownership of 89-29 163rd Street, the building adjacent to the sidewalk where the incident occurred. It contends that the property is regularly maintained in a [*4]safe condition. Defendant avers that the glass that caused plaintiff's injury was a latent defect that could not be discovered upon reasonable inspection. Defendant points to plaintiff's inability to identify the dangerous condition prior to his injury. 163rd Street also avers that they are free from liability because they did not place the glass in the garbage bags. Furthermore, defendant argues that there was insufficient time to discover the hazardous condition. Defendant annexes the deposition testimony and affidavit of building superintendent, Luis Roa (hereinafter Roa or superintendent), to support their claims of no actual or constructive notice of the glass prior to plaintiff's injuries.

However, Roa's testimony and affidavit raise a question of fact as to whether it had constructive notice of the hazardous condition. Roa's affidavit establishes that the building porter, Catalino, regularly placed trash on sidewalk on Monday and Thursday evenings between 5 P.M. and 6 P.M. Roa's testimony explains that it was generally the porter's duty to sort and check trash bags for items including glass and other recyclable items. Even where the bags are non transparent the porter is able to distinguish glass and other recyclables by the heft of the bag or the sound the trash makes when moved.

However, "[m]ere reference to general cleaning practices with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish lack of constructive notice" (Id. citing Herman v Lifeplex, LLC, 106 AD3d 1050, 1051 [2nd Dept 2013]). Defendant is unable to claim that the defect was latent because they offer no evidence as to when the sidewalk was last cleaned or inspected relative to Pynn's injury. While Roa's testimony makes references to the porter's duty, 163rd Street did not offer sworn testimony by the porter regarding his cleaning or inspection of the area prior to Pynn's injury. In the absence of evidence as to when the defendant last cleaned or inspected the sidewalk relative to Pynn's injury, the defendant is unable to establish prima facie that they lacked constructive notice of the allegedly hazardous condition in the garbage bags (see Gairy v 3900 Harper Ave LLC., 146 AD3d 938 [2nd Dept 2017]). Therefore, the Court does not reach the sufficiency of plaintiff's opposition papers (see Winegrad v NYU Medical Center, 64 NY2d 851 [1985]).

Pynn's CPLR 3212 Cross Motion

We now turn to Pynn's cross motion for summary judgment. Pynn requests summary judgment on this issue of liability in his favor or a declaration that 163rd Street caused or created the hazardous condition. CPLR 3001 provides that "[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" (see Peters v Smolian, 154 AD3d 980, 983 [2nd Dept 2017] citing CPLR 3001). "The 'justiciable controversy' upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs" (Tomasulo v Vill. of Freeport, 151 AD3d 1100, 1102 [2nd Dept 2017]).

In support of his motion, plaintiff annexes a notice of violation allegedly issued to the defendant by HPD on April 5, 2012, indicating that the defendant violated the Administrative Code § 27-2005 and Multiple Dwelling Law § 309. Pynn points to a "Certification of Correction of Violation" indicating that defendant via its employees corrected the issues on the violation. Pynn submits a notice to admit the aforementioned documents dated September 27, 2017 and the defendant's response to the notice to admit dated October 6, 2017. Plaintiff proffers these exhibits to show that defendant admitted to its culpability through acknowledgment and correction of the violation.

"A proper foundation for the admission of a business record must be provided by [*5]someone with personal knowledge of the maker's business practices and procedures" (see Citibank, N.A. v Cabrera, 130 AD3d 861, 861 [2nd Dept 2015]). Pynn annexes uncertified documents purported to be an HPD notice of violation and a certificate of correction. However, plaintiff only provides counsel's affirmation, which demonstrates that counsel has no personal knowledge of the creation of these documents. On a motion for summary judgment, a "bare affirmation of an attorney, who demonstrates no personal knowledge of the matter, is unavailing and without evidentiary value" (see Winter v Black, 95 AD3d 1208 [2nd Dept 2012]).

Notice to Admit

CPLR Rule 3123 sets forth in pertinent part that:

(a) a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.

"The legislative policy underlying CPLR 3123 (a) is to promote efficiency in the litigation process by eliminating from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial" (Altman v Kelly, 128 AD3d 741, 742—43 [2nd Dept 2015]; see generally 7th Ann. Rep. of Jud. Council [1941] at 307—308).

In the instant matter, plaintiff seeks to prove 163rd Street's negligence by demonstrating that they received a violation on the day of the incident and by allegedly taking corrective action defendant has admitted guilt. Pynn's notice to admit is patently improper and violates the scope and intendment of CPLR 3123 (see Falkowitz v Kings Highway Hosp., 43 AD2d 696 [2nd Dept 1973]). Furthermore, "evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case" (see Soto v CBS Corp., 157 AD3d 740, 741 [2nd Dept 2018]). Therefore, Pynn is unable to make a prima facie showing of his entitlement to summary judgment as a matter of law.

Pynn's Cross Motion to Dismiss Defendant's Affirmative Defense

Plaintiff has also cross moved for summary judgment dismissing the defendant's first affirmative defense asserting the plaintiff's injuries were caused by his culpable conduct. This branch of plaintiff's motion is supported by a memorandum of law and references to plaintiff's deposition transcript. Plaintiff contends that the affirmative defense of culpable conduct is unsubstantiated by the record. Plaintiff's argument merely points to gaps in defendant's proof (see D'Amico v Zingaro, 135 AD3d 805, 807 [2nd Dept 2016]). Plaintiff further contends that he did nothing unreasonable. However, deposition transcripts demonstrate that he walked along side a pile of stacked large garbage bags close enough to be injured by glass that protruded from the bag. Considering the evidence in the light most favorable to the defendant, plaintiff's testimony does not eliminate all material issues of fact regarding plaintiff's comparative fault (see People ex rel. Spitzer, 50 AD3d at 544). Consequently, the Court need not reach the sufficiency of 163rd Street opposition (see Winegrad, 64 NY2d 851).

CONCLUSION

Defendant 163rd Street, LLC's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing plaintiff complaint is denied.

Plaintiff Raymond Pynn's cross motion for an order pursuant to CPLR 3212 granting summary judgment in his favor on the issue of liability is denied.

Plaintiff's cross motion for an order declaring that defendant caused or created the hazardous condition is denied.

Raymond Pynn's cross motion for an order striking the defendant's affirmative defense regarding plaintiff's culpable conduct is denied.

The foregoing constitutes the decision and order of this Court.

Footnotes

Footnote 1: Plaintiff's cross motion also serves as opposition to defendant's motion for summary judgment.