DiGregorio v Kristal Auto Mall, Corp.
Annotate this CaseDecided on October 1, 2020
Supreme Court, Kings County
Maria DiGregorio, Plaintiff,
against
Kristal Auto Mall, Corp., Defendant.
524999/2017
Attorney for Plaintiff
Arze & Mollica, LLP
35 Avenue U, Lower Level
Brooklyn, NY 11223
Attorney for Defendant
GANNON, ROSENFARB & DROSSMAN
100 William St Fl 7
New York, NY 10038
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Kristal Auto Mall, Corp. (hereinafter Kristal) filed on January 30, 2020 under motion sequence number six, for an order, pursuant to CPLR 3212, granting summary judgment in its favor dismissing the complaint of plaintiff Maria DiGregorio (hereinafter DiGregorio).
Kristal's notice of motion
Affirmation in support of the motion
Memorandum of law in support
Exhibits A to G
DiGregorio's notice of cross motion
Affirmation in support of the cross motion
Exhibits A-K
Kristal's affirmation in opposition to the cross motion and in further support of the motion.
DiGregorio's Affirmation in reply to Kristal's opposition
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion of DiGregorio filed on July 9, 2020 under motion sequence number seven, for an order: (1) extending the time for the plaintiff to file the instant cross-motion pursuant to CPLR 2004; (2) an order pursuant to CPLR 3212 granting plaintiff summary judgment on the issue liability; [*2]or in the alternative, for (3) an order pursuant to CPLR 3212 (g) issuing a finding that the defendant was negligent and that the negligence was a substantial factor in causing the within accident.
DiGregorio's notice of cross motion
Affirmation in support of the cross motion
Exhibits A-K
Kristal's affirmation in opposition to the cross motion and in further support of the motion.
DiGregorio's affirmation in reply to Kristal's opposition
BACKGROUND
On December 28, 2017, Maria DiGregorio, commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. On December 4, 2018, DiGregorio filed a bill of particulars. On January 31, 2018, Kristal joined issue by filing a verified answer. On January 27, 2020, DiGregorio filed a note of issue.
The verified complaint contains twenty-one allegations of fact in support of a single cause of action for damages due to personal injuries. The verified complaint alleges the following salient facts. On October 27, 2016, at approximately 2:30 pm, DiGregorio was lawfully walking on the premises known as and located at 5200 Kings Highway Brooklyn, New York 11234. On that date and time, DiGregorio was caused to trip and fall (hereinafter the accident) due to a dangerous and defective condition. The dangerous and defective condition was caused by the carelessness and negligence of the defendant, their agents, servants, and or employees in the ownership, management, operation, control, and maintenance of the aforesaid premises. The fall caused DiGregorio to suffer serious, permanent, and disabling injuries and loss of earnings.
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. Furthermore, 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]).
Kristal's Motion
DiGregorio seeks damages for personal injuries she allegedly sustained on October 27, 2016, when she tripped and fell on a dangerous and defective condition in Kristal's auto dealership, located at 5200 Kings Highway, Brooklyn, New York.
Kristal has moved for summary judgment dismissing the complaint contending that the condition which caused DiGregorio's fall was open, obvious and not inherently dangerous.
To demonstrate entitlement to summary judgment, an owner of real property must establish that it maintained the premises in a reasonably safe condition, and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it (Reed v 64 JWB, LLC, 171 AD3d 1228, 1228 [2nd Dept 2020]). A property owner has a duty to maintain his or her property in a reasonably safe condition (Mongelli v EMart Dep't Stores, Inc., 174 AD3d 703 [2nd Dept 2019], citing Basso v Miller, 40 NY2d 233, 241 [1976]). However, a property owner has no duty to protect or warn against a condition that is both open and obvious and, as a matter of law, is not inherently dangerous (Mongelli, 174 AD3d 703, citing Katz v Westchester County Healthcare Corp., 82 AD3d 712, 713 [2nd Dept 2011]).
In support of the motion Kristal has submitted, among other things, the deposition transcript of DiGregorio and Anthony Squeo (hereinafter Squeo), Kristal's service manager. The deposition testimony of Degregorio and Squeo established the following facts. On October 27, 2016, DiGregorio and her husband went to Kristal's auto dealership at 2:30 P.M. DiGregorio asked a salesman to see a Cadillac. The salesman led DiGregorio through a door into a garage. It was a large area with concrete floors, garage doors, and areas for cars to be repaired. DiGregorio walked about eight feet from the doorway when she tripped and fell on a raised concrete which was approximately three (3) inches high and extended across the entire area. DiGregorio identified photographs showing the concrete step and surrounding area. The photographs show that the elevated area and the floor below are the same color.
Squeo testified that he has been the Service Manager for Kristal at 5200 Kings Highway from 1997 through the time of DiGregorio's accident. Kristal's salesmen would routinely bring customers through the service area to show new vehicles parked in the garage. Squeo's office was the booth directly next to the concrete step. He would walk over the step fifteen times daily since 1997, and he was unaware of anyone ever tripping on the step before DiGregorio's accident.
Here, the evidence submitted in support of Kristal's motion failed to eliminate all triable issues of fact as to whether the elevated step was open and obvious and not inherently dangerous as a matter of law (Mongelli, 174 AD3d 703, citing Ross v Bretton Woods Home Owners Assn., Inc., 151 AD3d 774, 775 [2nd Dept 2017]). In particular, the deposition testimony of DiGregorio and photographs of the accident site, which Kristal submitted in support of its motion, presented issues of fact as to whether the single raised step provided a sufficient visual cue that there was a change in elevation between the step and the floor below (Mongelli, 174 AD3d 703). There is an issue regarding whether, under the circumstances, a person who was unfamiliar with the premises could reasonably perceive the existence of a change in elevation between the raised step and the floor below (see Roros v Oliva, 54 AD3d 398, 400 [2nd Dept 2008]). In sum, Kristal did not make a prima facie showing that the subject condition was open, obvious and not inherently dangerous. It is ultimately a question of fact for the jury. Kristal's motion is denied regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
DiGregorio's Cross Motion
DiGregorio seeks an order pursuant to CPLR 2004 extending her time to file the instant cross-motion. She then seeks an order pursuant to CPLR 3212 granting her summary judgment in her favor on the issue liability; or in the alternative, an order pursuant to CPLR 3212 (g) finding that the defendant was negligent and that the negligence was a substantial factor in [*3]causing the subject accident.
Extension Of Time To Make A Late Cross Motion
Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, a motion for summary judgment must be made no later than 60 days after the filing of the note of issue, unless leave of the court is obtained on good cause shown (see Goldin v New York and Presbyt. Hosp., 112 AD3d 578, 579 [2nd Dept 2013], citing Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6). In the instant matter, the note of issue was filed on January 27, 2020 and DiGregorio's motion was filed on July 9, 2020, over five months late.
A movant seeking leave to make a late summary judgment motion must demonstrate good cause for the delay (see CPLR 3212 [a]; Ade v City of New York, 164 AD3d 1198, 1200-01 [2nd Dept 2018], citing Courtview Owners Corp. v Courtview Holding B.V., 113 AD3d 722, 723 [2nd Dept 2014]). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (Bargil Assoc., LLC v Crites, 173 AD3d 958, 958 [2nd Dept 2019] quoting Bivona v Bob's Discount Furniture of NY, LLC, 90 AD3d 796 [2nd Dept 2011]).
The plaintiff gave no explanation and therefore offered no good cause for the delay. An untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds (Munoz v Salcedo, 170 AD3d 735 [2nd Dept 2019]). DiGregorio seeks an order granting summary judgment in plaintiff's favor on the issue of liability. Her contention is that the raised concrete was an inherently dangerous condition and that Kristal was negligent for, among other things, allowing the unsafe condition to exist. Kristal contends that the raised concrete was an open, obvious and not inherently dangerous condition and therefore could not be basis for a finding of liability against it. DiGregorio's claim is a mirror image of Kristal's timely summary judgment motion. Therefore, DiGregorio's cross motion may be considered.
Cross Motion for Summary Judgment
A property owner has a duty to maintain his or her property in a reasonably safe condition (Mongelli, 174 AD3d 703, citing Basso, 40 NY2d at 241). Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Hayes v Texas Roadhouse Holdings, LLC, 100 AD3d 1532, 1533 [4th Dept 2012]). The existence of a defect or dangerous condition is generally a question of fact for the jury (Trincere, 90 NY2d at 977; Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77 [2015]). Viewing the evidence in the light most favorable to Kristal, the nonmoving party, DiGregorio failed to meet her prima facie burden on the motion of establishing as a matter of law that Kristal was negligent in permitting a dangerous or defective condition to exist on the premises ((Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]; see generally Winegrad, 64 NY2d at 853; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). As previously indicated, the issue of whether the raised concrete was inherently dangerous is a question for the jury to decide.
Cross Motion Pursuant to 3212 (g)
CPLR 3212 (g) provides as follows:
Limitation of issues of fact for trial. If a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and [*4]they shall be deemed established for all purposes in the action. The court may make any order as may aid in the disposition of the action.DiGregorio seeks an order pursuant to CPLR 3212 (g) finding that the defendant was negligent and that the defendant's negligence was a substantial factor in causing the subject accident. CPLR 3212 (g), however, is designed as a method for finding incontrovertible or undisputed facts, it is not designed for making determinations of liability or proximate causation. Accordingly, the motion is denied.
CONCLUSION
The notice of motion of defendant Kristal Auto Mall, Corp. for an order, pursuant to CPLR 3212, granting summary judgment in its favor dismissing the complaint of plaintiff Maria DiGregorio is denied.
The notice of cross motion of plaintiff Maria DiGregorio for an order pursuant to CPLR 3212 granting plaintiff summary judgment on the issue liability is denied.
The notice of cross motion of plaintiff Maria DiGregorio for an order pursuant to CPLR 3212 (g) issuing a finding that the defendant was negligent and that the negligence was a substantial factor in causing the within accident is denied.
The foregoing constitutes the decision and order of this Court.
Dated: October 1, 2020
Hon. Francois A. Rivera
J.S.C.
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