Torres v Washington

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Torres v Washington 2020 NY Slip Op 35113(U) January 28, 2020 Supreme Court, Suffolk County Docket Number: Index No. 601137/2018 Judge: Martha L. Luft 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. INDEX NO. 601137/2018 FILED: SUFFOLK COUNTY CLERK 01/29/2020 11:47 AM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/29/2020 Index No. 60113712018 Short Form Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 50 - COUNTY OF SUFFOLK PRESENT: DECISION AND ORDER Hon. Martha L. Luft Acting Justice Supreme Court X JUANA TORRES, Mot. Seq. No.: Orig. Retum Date: Mot. Submit Date: 002 - MG 0U2912019 03t26/2019 Mot. Seq. No.: Orig. Retum Date: Mot. Submit Date: 003 - Mot.D 02t26t2019 03126/2019 Plaintiff, -against- RODNEY WASHINGTON and TOWN OF BABYLON, PLAINTIFF'S ATTORNEY Cannon & Acosta LLP Attomeys for Plaintiff Juana Torres 23 New York Avenue Huntington Station. NY I I 746 Defendants. x RODNEY WASHINGTON, Third-Party Plaintiff, Devitt Spellman Barret LLP Attomeys for PlaintifflThird Pany -against- Defendant Rodney Washington 50 Route 111, Suite 314 Smithtown, NY 1 1787 PARAMOUNT OAKS CORPORATION, DEFENDANTS , ATTORNEYS Joseph Wilson Babylon Town AttomeY Babylon Town Attomey's Office 200 East Sunrise Highway Third-Party Defendant. x Lindenhurst. NY 11757 Law Offrce of Mark E. Goidell Attomeys for Third-Party Defendant Paramount Oaks Corporation 666 Old Country Road, Suite 700 Garden City, NY 1 1530 [* 1] 1 of 5 INDEX NO. 601137/2018 FILED: SUFFOLK COUNTY CLERK 01/29/2020 11:47 AM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/29/2020 LUFT, Torres v. Washington, et al. Index No. 60113712018 J. Page 2 Upon the e-filed documents numbered 34 through 68, it is ORDERED that the motion by the third-party defendant Paramount Oaks Corporation for, inter alia, an order dismissing the third-party complaint, or in the alternative, compelling arbitration of the third-party claim, is granted, the third-parly complaint is dismissed, and Rodney Washingon and Paramount Oaks Corporation are hereby compelled to arbitrate the claims raised in the third-party complaint; it is further ORDERED tltat the cross motion by the plaintiff Juana Torres for, inter alia, an order granting summary judgment in her favor on the issue of liability, and severing the third-parry action, is granted to the extent described herein, but is otherwise denied; it is further ORDERED that the portion of the cross motion seeking an order granting partial summary judgment in favor of the plaintiffand against Mr. Washinglon on the issue of liability is granted; it is further ORDERED that the portion of the cross motion seeking an order granting pa(ial summary judgment in favor of the plaintiffand against the Town of Babylon on the issue of liability is denied; it is further ORDERED that, upon a search of the record, pursuant to CPLR 3212 (b), summary judgment is granted to the Town of Babylon, and the complaint and all cross claims as asserted against it are dismissed; and it is further ORDERED thatthe po(ion of the cross motion seeking an order severing the third-party action is denied, as moot. This is an action to recover damages for personal injuries atlegedly sustained by the plaintiff Juana Torres as the result ofan accident that occurred on luly 12,2017. The accident allegedly happened when the plaintifftripped and fell on a sidewalk abutting the premises located at 2 Dr. Reed Boulevard, near the intersection with Albany Avenue, in North Amityvilte, New York. By her verified complaint, the plaintiff alleges, among other things, that this sidewalk was owned and controlled by the defendant Rodney Washington and/or the defendant the Town of Babylon (,,the Town"). As a result of the instant action, Mr. washington served a third-party summons and complaint upon Paramount oaks corporation ("Paramount"), alleging. among other things, that it was bound by contract to perform exterior repairs at the subject premises prior to the plaintiff s accident, including on the sidewalk and adjacent area. Paramount now moves for an order dismissing the third-party action, or in the altemative, compelling arbitration of Mr. Washinglon's claims set forth therein, arguing, inter alio, that lhe contract ofsale for the subject premises expressly provides that Paramount is not liable for consequential, incidental, or special damages arising therefrom, that Mr. Washington waives any [* 2] 2 of 5 INDEX NO. 601137/2018 FILED: SUFFOLK COUNTY CLERK 01/29/2020 11:47 AM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/29/2020 LUFT, Torres v. Washington, et al. Index No. 60113712018 Page J 3 such claims, and that the parties agreed to arbitrate any claims that arise under same. Further, Paramount argues that the subject sidewalk was repaired in November 2017, and that it paid for same in December 2017, about five months after the subject accident. In support, Paramount submits, among other things, a copy ofa contract ofsale, dated October 20, 2014; a deed conveying the subject premises from Paramount to Mr. Washington, dated December 4, 2014; and an affidavit of Desiree Criscuolo, its president. No papers have been submitted in response to the motion. plaintiff cross-moves for an order granting summary judgment in her favor on the issue of liability, arguing that Mr. Washington had actual notice ofthe dangerous condition on the sidewalk, and that he is liable for her injuries under town and village code provisions. In support, the plaintiff submits, among other things, an affirmation ofher attomey, and transcripts of her testimony at a General Municipal Law (GML) $ 50-h hearing. The Town opposes the cross motion, arguing, inler alia, that same is premature, as only limited discovery has taken place, and that further discovery is necessary to establish the plaintifls comparative fault, ifany, in the happening ofthe accident. In addition, the Town argues that, as Babylon Town Code $ 191-16 (A) imposes tort liability on an abutting landowner to keep sidewalks in a safe condition, further discovery is necessary to ascertain Mr. Washington's acts or omissions as to the maintenance of the sidewalk. In opposition, the Town submits, among other things, an affirmation of its attomey and a certified copy ofa portion ofthe Babylon Town Code. The Where there is no substantial question whether a valid agreement was made or complied with, the court shall direct the parties to arbitrate (see CPLR 7503 [a]; Degraw Consl Group, Inc. v McGowan Buitders, Inc.,l52 AD3d 567, 569, 58 NYS3d 152 [2d Dept 20171; Sutphin Retail One, LLC v Sutphin Airtrain Realty, LLC, 143 AD3d 972,973, 40 NYS3d 457 l2dDept 2016]). Accordingly, on a motion to compel or stay arbitration, a court must determine, in the first instance, whether the parties have agreed to submit their disputes to arbitration and, if so, whether the disputes generally come within the scope of their arbitration agreement (see Sisters of St. John the Baptist, Providence Rest Convent v Geraghty Constructor,6T NY2d 997,998, 502 NYS2d 997 |9861; Degraw Const. Group, Inc. v McGowan Builden, Inc., supra). The agreemenl to arbitrate must be clear, explicit, and unequivocal, and it must not depend upon implication or subtlety (see llaldron v Goddess,6l NY2d 181, 183-184,473 NYS2d 136 [1984]; Gotl's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP' 6NY3d371' 374, 812 NYS2d 43s 120061). A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff, and that the defendant's negligence was a proximate cause ofthe alleged injuries (see Rodriguez v City of New York,31 NY3d 312,319,76 NYS3d 898 [2018]; Poon v Nisanov, 162 AD3d 804' 79 NYS3d 227 [2d Dept 2018]). To be entitled to partial summary judgment, a plaintiffdoes not bear the burden ofestablishing the absence ofhis or her own comparative fault (.tee Rodriguezv City of New York, supra, ai324-325; Lopez v Dobbins,164 AD3d 776, 79 NYS3d 566 [2d Dept [* 3] 3 of 5 INDEX NO. 601137/2018 FILED: SUFFOLK COUNTY CLERK 01/29/2020 11:47 AM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/29/2020 LUFT, Torres v. Washington, et al. Index No. 60113712018 J. Page 4 2018]; Poon v Nisanov, supra) Generally, liability for injuries sustained as a result ofa dangerous condition on a public sidewalk is placed on the municipality, and not on an owner ofthe abutting land (see Hausser v Giunta,88NY2d449,452-453,646NYS2d 490,491-492119961;MetzkervCityof NewYork, 139 AD3d 828, 3 1 NYS3d 175 [2d Dept 20161;' Gyokchyan v City of New York, 106 AD3d 780, 965 NYS2d 521 l2dDept2}l3l; Crawford v Ciry of New York,98 AD3d 935, 950 NYS2d 743 [2d Dept 2012]). However, if a town has enacted a statute or ordinance imposing a duty upon on an abutting landowner to repair and maintain the sidewalk, such a landowner who violates the statute may be held liable for injuries caused by a dangerous or defective condition thereon (see Metzker v Cily of New York, supra; Gyokchyan v City of New York, supra; Crawford v City ol New York, supra). To impose tort liability on an abutting landowner, the language of such a statute or ordinance must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty, he or she will be liable to those who are injured (see Kilfoyle v Town of N. Hempstead,138 AD3d 1069, 30 NYS3d 292 [2dDept20l6]; Bachvarov v Lawrence (Jnion Free Sch. Dist.,13l AD3d 1 182, 17 NYS3d 168 [2d Dept 2015]; Morelli v Starbacks Corp.,l07 AD3d 963, 968 NYS2d 542 [2d Dept 2013]). At the outset, Paramount's submissions, namely the October 2014 contract ofsale and Ms. Criscuolo's affidavit, establish that Paramount and Mr. Washington's agreement to arbitrate is clear, explicit, and unequivocal (see llaldron v Goddess, supra; God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, supra). In relevant part, paragraph 17 of this contract ofsale states, "The parties hereby agree that any litigation arising of, lrom or in any way relating to this contract, its underlying property and/or the Babylon subdivision, shall be resolved by binding arbitration, and that trial byjudge orjury is hereby expressly waived." Further, these submissions demonstrate that Mr. Washington's claims as set forth in the third-party complaint are within the scope ofthe binding arbitration clause, precluding him from seeking relieffrom the Court (see Sis ters of SL John the Baplist, Providence Rest Convenl v Geraghty Constructor, supra; Degraw Const, Group, Inc. v McGowan Builders, Inc., supra). Paragraph 27 ofthe contract states, "Purchasers shall, at or prior to the closing, provide the Seller with a list of items which need to be corrected or finished. Selter shall provide Purchaser with a signed statement at closing indicating that the items to be corrected or finished will be done within sixty days after closing, unless a longer period is required." By her affidavit, Ms. Criscuolo avers that Mr. Washington provided a signed statement at closing indicating the items to be corrected or finished, including repairs to the sidewalk. As there is no substantial question as to whether this binding arbitration clause is a valid agreement, the Court must direct the parties to arbitrate, and the third-party complaint must be dismissed (see GPLR 7503 fa); Degraw consl Group, Inc. v McGowan Builders, Inc., supra; Sutphin Retait One, LLC v Sutphin Airtrain Realty, LLC, supra). As to the plaintifls cross motion, the parties' submissions, namely the December 2014 deed, the plaintiff s $ 50-h hearing testimony, and a certifred copy ofthe Babylon Town code [* 4] 4 of 5 INDEX NO. 601137/2018 FILED: SUFFOLK COUNTY CLERK 01/29/2020 11:47 AM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/29/2020 LUFT, Torres v. Washington, et al. Index No. 60113712018 Page J. 5 establish, prima facie, that Mr. Washington breached a duty owed to her, and that this breach was ofher alleged injrries (see Rodriguez v Cily of New York, supra; Lopezv Poon v Nisanov, supra). The plaintifPs $ 50-h hearing testimony establishes Dobbins, supra; that, as she was walking on a sidewalk on Albany Avenue, near the intersection with Dr. Reed Boulevard, she was caused to fall to the ground by a piece ofbroken concrete, sustaining injuries. In addition, Babylon Town Code $ 191-16 (A) states, "Each owner, lessor, lessee, tenant, occupant or other person in charge ofany property within the Town shall keep the sidewalk in front ofor abutting the lot, house, or building in good and safe repair and shall maintain and repair the sidewalk adjoining his properly. Such owner, lessor, lessee, tenant or occupant, and each of them, shall be liable for any injury or damage to person or property by reason ofthe omission, failure or neglect to repair or maintain such sidewalk in a safe condition." As the December 2014 deed establishes that Mr. Washington owned the property abutting the sidewalk where the plaintiffls accident occurred, and the language ofthe Town's statute specifically states that tort liabiliry will be imposed for breaching the duty to maintain the sidewalk (see Kilfoyle v Town of N. Hempsteail, supra; Bachvarov v Lawrence Union Free Sch. DisL, supra; Morelli v Starbucks Corp,, supra), the record before the Court establishes that the plaintiff is entitled to summaryiudgment as to Mr. Washington's liability, and the plaintiff was not required to establish her freedom from comparative fault (see Rodriguez v City of New York, supra, at 324-325; Lopez v Dobbins, supra; Poon v Nisanov, supra). a proximate cause However, as to the portion of the plaintiffs motion seeking partial summary judgment against the Town, the record before the Court demonstrates that the Town cannot, as a matter of law, be held liable to the plaintiff for her injuries (see Babylon Town Code $ 191-16 [A]; Kilfoyle v Town of N. Hempstead, supra; Metx,ker v City of New York, supra). As a court may search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion (see CPLR 3212 [bl; Dunham v Hilco Const. Co., Inc.,89 NY2d 425, 430, 654 NYS2d 335 [1996]; Fair Chase Holdings II, LLC v County of Dutchess, 165 AD3d 1237, 87 NYS3d 602l2dDept2018l), this portion of the plaintifPs cross motion is denied, the Court awards summary judgment in favor of the Town, and the complaint and all cross claims asserted against it are dismissed. Accordingly, Paramount's motion is granted, and the plaintiff s cross motion is granted in part, and denied in part. ENTER Date: JanuaryA( 2o2o HON. Riverhead, New York V FINAL DISPOSITION [* 5] 5 of 5 L. LUFT, A.J.S.C. NON.FINALDISPOSITION

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