Brett v AJ 1086 Assoc., LLC
Annotate this CaseDecided on June 26, 2019
Supreme Court, Kings County
Sharon Brett, Plaintiff,
against
AJ 1086 Associates, LLC and IDEAL FOOD BASKET, LLC, Defendants.
508577/201
Attorney for Plaintiff
Michael Silbowitz, Esq.
Silbowitz, Garafola, Silbowitz,
Schatz & Frederick, LLP
25 West 43rd Street, Suite 711
New York, NY 10036
(212) 354-6800
Attorney for Defendants
Dawn C. Faillace-Dillon, Esq.
O'Connor, O'Connor, Hintz & Deveney, LLP
One Huntington Quadrangle, Suite 1C10
Melville, NY 11747
(631) 777-2330
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Sharon Brett (hereinafter Brett) filed on June 18, 2019, under motion sequence number [*2]five, for an order pursuant to CPLR 2221 granting leave to reargue and renew her opposition to defendants' AJ 1086 Associates, LLC and Ideal Food Basket, LLC prior motion for summary judgment dismissing the complaint. By order dated March 15, 2019, the Court granted the defendants' prior motion and dismissed the complaint.
- Notice of Motion
- Affirmation in support
- Exhibit A-E
- Affirmation in opposition
- Affirmation in reply
BACKGROUND
On May 3, 2017, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer with cross-claims filed on June 27, 2019, defendant Ideal Food Basket joined issue. By verified amended answer filed on November 1, 2017, defendants AJ 1086 Associates, LLC and Ideal Food Basket joined issue. The amended answer contained no cross-claims. On September 24, 2018, plaintiff filed a note of issue.
Plaintiff's complaint alleges twenty six allegations of fact in support of a single cause of action for damages for personal injury allegedly caused by the defendants' negligence. Plaintiff's complaint and bill of particulars allege the following salient facts. On Sunday, October 2, 2016, at around 2:30 pm, plaintiff parked her vehicle and upon exiting, tripped and fell on a defective and dangerous wheel stop (hereinafter the subject wheel stop). The subject wheel stop was in a parking lot in front of a supermarket located at 1086 Brooklyn, New York that was owned, managed and controlled by the defendants. The wheel stop was misaligned in such a way that rendered it dangerous. The defendants either caused or were on notice of the dangerous condition.
By notice of motion filed on February 25, 2019 under motion sequence number four, the defendants previously moved for summary judgment dismissing the complaint (hereinafter the prior motion). Plaintiff opposed the prior motion.
By order dated March 15, 2019, the Court granted the defendants' prior motion.
LAW AND APPLICATION
CPLR 2221(d) (e) (f) sets forth the procedure for making a motion affecting a prior order and states the following:
(d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.(e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior [*3]determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts, or the law, or for some other reason mistakenly arrived at its earlier decision (Bueno v Allam, 170 AD3d 939 [2nd Dept 2019], citing 801 Barnett v Smith, 64 AD3d 669, 670-671 [2nd Dept 2009]).
A motion for leave to renew shall be based on new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion.(CPLR 2221 (e) (2), (3); Bukhtiyarova v Cohen.,—- NYS3d —&mdash, 2019 NY Slip Op. 03945 [2nd Dept 2019]). A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (Id.).
Although the plaintiff stated that it seeks leave to reargue and renew, the instant motion does not allege any new facts not offered in the prior motion and is, therefore, solely one for reargument. In support of the motion, plaintiff submitted, inter alia, the defendants' prior motion, plaintiff's prior opposition papers and defendants' prior reply papers.
For the reasons set forth herein, plaintiff's motion for leave to reargue its prior opposition to defendants' prior motion is granted. Furthermore, the Court finds that it overlooked and misapprehended certain facts and hereby vacates the prior order dated March 15, 2019, to the extent that it granted the defendants' prior motion for summary judgment on the issue of liability and dismissed the complaint.
Defendants' prior motion papers included, among other things, the deposition transcripts of the plaintiff and Wesner Elis (hereinafter Elis), an employee of the supermarket located in front of the subject parking lot that was owned, managed and controlled by the defendants.
The plaintiff's deposition transcript averred that she did not see the wheel stop before she tripped over it but did see it after she tripped. At that point she noticed that the subject wheel stop was out of place with all other wheel stops and was misaligned at an angle which placed part of it outside of its designated parking space and extended part of it into the walkway area in front of the supermarket. Plaintiff took several pictures of the subject wheel stop after the accident.
Elis' deposition transcript revealed that the subject wheel stop was movable and indeed had been moved on multiple occasions by other employees of the defendants to facilitate the transporting of goods from the parking lot to a storage site on defendants' premises.
Although there are multiple Second Department Appellate Division decisions that have found that a wheel stop is an open, obvious and not inherently dangerous condition (see Bogaty v Bluestone Realty NY, Inc., 145 AD.3d 752 [2nd Dept 2016]; Lacerra v CVS Pharmacy, 143 AD3d 674 [2nd Dept 2016]; Miller v Costco Wholesale Corp., 125 AD3d 828 [2nd Dept 2015]; LiPuma v J.P. Morgan Chase N.A., 119 AD3d 532 [2nd Dept 2014]), the Court finds that case at bar is distinguishable from the above line of cases.
The circumstances of the case at bar are similar to the fact pattern addressed in the case of Rivera v Queens Ballpark Co., LLC (134 AD3d 796 [2nd Dept 2016]). In the Rivera case, the Appellate Division reversed the Supreme Court's decision granting summary judgment to the defendants. The defendants in Rivera had submitted the expert affidavit of a forensic engineer who determined that the subject parking lot was a safe walking surface and adequately illuminated at night, and that the wheel stop on which the injured plaintiff tripped was an open and obvious condition located within a designated parking space and not a pedestrian walkway. However, the photographs upon which the defendants' expert partially relied depicted the wheel stop as extending directly in front of, and thus partially obstructing, a designated pedestrian walkway. The Appellate Division implicitly found that a wheel stop that partially obstructs a pedestrian walkway is not a safe condition and that, therefore, the defendants failed to satisfy their initial burden of showing that they neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.
In the case at bar, the wheel stop that caused the plaintiff to trip and fall was misaligned at an angle different from all other wheel stops in the defendants' parking lot such that it was obscured and presented a tripping hazard. Furthermore, the subject wheel stop extended out of the marked parking spot such that it extended into the walkway. Although the plaintiff had frequented the subject supermarket and subject parking lot in the past, she never saw the subject wheel stop misaligned in the condition that it was on the date of her accident.
A defendant moving for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (Rivera v Queens Ballpark Co., LLC, 134 AD3d 796 [2nd Dept 2016]). Here, the defendants had contended that the subject wheel stop was not dangerous or defective and that they had no notice of any dangerous or defective condition. However, the subject wheel stop was misaligned and the deposition transcript of Elis, its employee, raises a material issue of fact as to whether the defendants created the dangerous condition by moving the wheel stop to move certain goods and not returning it back to its prior position in alignment with all the other wheel stops. For all the foregoing reasons, the defendants have not met their prima facie burden of showing entitlement to summary judgment in their favor on the issue of liability.
CONCLUSION
The motion of Sharon Brett for an order granting leave to reargue her opposition to defendants' prior motion is granted.
The prior motion of the defendants' AJ 1086 Associates, LLC and Ideal Food Basket, LLC for summary judgment on the issue of liability and dismissing the complaint is denied.
The prior order of the Court dated March 15, 2019 which granted the defendants' prior [*4]motion dismissing the complaint is hereby vacated.
The foregoing constitutes the decision and order of this Court.
Enter:
June 26, 2019
J.S.C.
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.
