Fernandez v Landau

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Fernandez v Landau 2021 NY Slip Op 32926(U) February 24, 2021 Supreme Court, Rockland County Docket Number: Index No. 035033/2018 Judge: Sherri L. Eisenpress 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. [*FILED: 1] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------x FRANK FERNANDEZ and SHERRY FERNANDEZ, DECISION AND ORDER (Motions # 1, 2 & 3) Plaintiffs, -against- Index No.: 035033/2018 MOSHE LANDAU, JOEL SALAMON and SALAMON'S HOME IMPROVEMENTS, INC. Defendants. ------------------------------------------------------------X JOEL SALAMON and SALAMON'S HOME IMPROVEMENTS, INC. Third-Party Plaintiffs, -againstD'AGOSTINO LANDSCAPE & IRRIGATION and D'AGOSTINO LANDSCAPE, INC., Third-Party Defendants. -------------------------------------------------------------x Sherri L. Eisenpress, A.J .S.C. The following papers, numbered 1 to 14, were considered in connection with (i) Defendant-Third-Party Plaintiff Joel Salamon and Salamon's Home Improvement Inc.'s (hereinafter collectively "Salamon") Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, for summary judgment dismissing all cross-claims asserted against them 1 (Motion #1}; (ii) Plaintiff's Notice of Cross-Motion for an Order, pursuant to Civil Practice Law and Rules§ 3212, for summary judgment as to liability against Defendant Moshe Landau 2 (Motion #2); and (iii) Defendant Moshe Landau's Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, for summary judgment dismissing Plaintiff's Moving Defendants initially sought to dismiss Plaintiff's complaint on summary judgment. However, as this action has been settled as and between Plaintiff and Salamon/Salamon's Home Improvements, that portion of the 1 motion is now moot and has been withdrawn. 2 Plaintiff originally sought summary judgment against Defendants Joel Salamon and Salamon's Home Improvements but given the settlement between Plaintiff and the Salamon Defendants, that portion of the motion is now moot and has been withdrawn 1 1 of 9 [*FILED: 2] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 Complaint, or alternatively, granting leave to amend the Answer to assert cross-claims against co-defendants Joel Salamon and Salmon's Home Improvements, Inc. and Third-Party defendant D'Agostino Landscape & Irrigation and D'Agostino Landscape Inc. (collectively "D'Agostino"), for common law indemnification and contribution(Motion #3): PAPERS NUMBERED NOTICE OF MOTION (#1)/AFFIRMATION AND MEMORANDUM OF LAW IN SUPPORT/EXHIBITS A-U 1-2 NOTICE OF CROSS-MOTION {#2)/AFFIRMATION IN OPPOSITION TO MOTION #1 AND IN SUPPORT OF CROSS-MOTION/EXHIBITS 1-14 3-4 NOTICE OF MOTION (#3)/AFFIRMATION IN SUPPORT/EXHIBITS A-U 5-6 AFFIRMATION IN OPPOSITION TO CROSS-MOTION (#2) AND IN FURTHER SUPPORT OF MOTION # 1 BY SALAMON DEFENDANTS 7 PLAINTIFF'S AFFIRMATION IN OPPOSITION TO MOTION #3/EXHIBITS 1-14 8 AFFIRMATION IN OPPOSITION TO CROSS-MOTION (#2) BY D'AGOSTINO 9 AFFIRMATION IN OPPOSITION TO CROSS-MOTION (#2) BY LANDAU AND IN FURTHER SUPPORT OF MOTION (#3)/AFFIDAVIT OF MOSHE LANDAU 10-11 AFFIRMATION IN REPLY BY PLAINTIFF (#2) 12 AFFIRMATION IN REPLY (#3) TO OPPOSITION OF D'AGOSTINO 13 AFFIRMATION IN REPLY TO PLAINTIFF'S OPPOSITION (#3) 14 Upon the foregoing papers, the Court now rules as follows: Plaintiff Frank Fernandez and his wife Sherry Fernandez owned and resided in a home located at 3 Ellish Parkway, Spring Valley, New York, which was sold to Defendant, Moshe Landau ("Landau"), in May 2015. Defendant Landau owned property directly behind the Eillish Parkway house, at 71 Herrick Avenue, such that the properties abutted each other. Defendant Landau purchased the Ellish Parkway property in order to prevent another buyer from erecting a tall building that would obscure the view from the home at 71 Herrick Avenue. Because Plaintiff and his family were not yet ready to complete a move to their new home in Virginia at the time of closing, an agreement was made that plaintiffs would continue to rent 2 2 of 9 [*FILED: 3] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 August 2015. Mr. Landau the home at 3 Ellish Parkwa y from Mr. Landau until the end of agreem ent from Plaintiffs concedes in his affidav it that he never received an execut ed lease and is unawa re of the existen ce of a signed agreem ent. n to act as In Septem ber 2014, Landau entered into a contrac t with Salamo Avenue. Salamo n testifie d genera l contra ctor for the buildin g of a new home at 71 Herrick ction on an almost daily that Mr. Landau would go to the proper ty during the course of constru ntracto rs. Salamon hired basis, and that Salamo n needed Moshe's permis sion to hire sub-co , includin g third-p arty subcon tractor s to perform constru ction work at 71 Herrick Avenue , seeding and plantin g defend ant D'Agos tino, who was hired April 2015 to perform grading D'Agos tino went over the work. Because some of the landscaping services perform ed by n the proper ties was proper ty line of 3 Ellish Parkway, the fence that was located betwee partiall y taken down. moved , and on the day before Frank Fernan dez' acciden t, was e work was perform ed by Additio nally, both Landau and D'Agos tino testifie d that drainag D'Agos tino on both proper ties. g leaders On August 21, 2015, D'Agos tino was doing drainag e work and installin connec tion with this work, and catch basins, includin g at the Ellish Parkway proper ty. In 3 Ellish Parkway house, D'Agos tino installe d two leaders on the back left and right of the the proper ty line to 71 which were then connec ted to pipes in the ground that ran across pipes needed to be sawed. Herrick . An excava tor was used to do the work and some of the that had not been used At the end of the day, D'Agos tino claims that it collected all piping approx imately 5 or 6 p.m. and piled it directly behind the house at 71 Herrick Avenue , at Landau that there were D'Agos tino's princip al, August ine Iodice, was made aware by Mr. the area clean. Mr. Landau renters living in the Ellish Parkwa y house and he was told to keep if he had, it would have does not recall if he had been at the site that day but claims that e for the Sabbat h. been his practic e to work until 1 or 2 p.m. and then go home to prepar around Plaintif f Frank Fernan dez testifie d that on August 22, 2015, he awoke let his dog out into the 3:30 a.m. to leave to Virginia . He testifie d that at that time, he 3 3 of 9 [*FILED: 4] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 backya rd, momen tarily forgett ing that part of the fence was down. As Plaintif f exited the that let into the yard, he house to retriev e the dog, and while descen ding the five steps step up from the bottom . testifie d that he tripped over constru ction debris located on the third were from the drainag e Mr. Fernandez believe d that the debris consisted of PVC pipes that produc ed from the day system that had been disman tled the day before. Photog raphs were e being stored in the of the accide nt which showed pieces used in connec tion with drainag vicinity of the Ellish proper ty. agains t each Plaintif fs and Defend ant Landau move for summa ry judgm ent t proper ty, is liable to other. Plaintif f alleges that defend ant Landau, as owner of the subjec Landau's contra ctor/su bthem for failure to keep their proper ty in a safe conditi on, in that the nature of constru ction contra ctor were responsible for creatin g the defecti ve conditi on in that he had no duty debris on the stairwa y of the Ellish proper ty. Defend ant Landau asserts that the seller was to to mainta in the premis es based upon the Contra ct of Sale that stated sion. He also asserts mainta in the premis es "in the presen t conditi on" until transfe r of posses sibility for the conditi on that he was an out-of- posses sion owner and therefo re had no respon the claimed conditi on; had of the premis es. Landau additio nally argues that he did not create contrac tor. Mr. Landau no notice of it; and is not responsible for the actions of an indepe ndent Mr. Landau breached the conten ds that Plaintif f's claim under RPL Sec. 235-b allegin g that d as part of a personal warran ty of habitab ility must be dismiss ed because it cannot be pursue injury claim. r to assert In the alterna tive, Defend ant Landau seeks to amend his answe d to the moving papers as cross-c laims agains t Salamon and D'Agos tino, in the form annexe such amend ment should NYSCEF doc. #6, Third-p arty Defend ant D'Agos tino conten ds that an action comme nced by not be grante d on the ground Landau is a third-p arty defend ant in cial, though no specific Salamo n, and such an amend ment would be untime ly and prejudi reasoning is provide d. Lastly, the Salamo n defend ants move to dismiss all cross-c laims tino agains t Salamo n, agains t it. The only cross-c laim at presen t appear s to be made by D'Agos 4 4 of 9 [*FILED: 5] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 ding the basis for this aspec t of the howe ver, the movin g paper s conta in no discussion regar summ ary judgm ent motio n. estab lish his or her claim The propo nent of a summ ary judgm ent motio n must ent in its favor as a matte r of law, or defense suffic ient to warra nt a court direct ing judgm of mater ial issues of fact. Giuffr ida v. tende ring suffic ient evide nce to demo nstra te the lack 397 (2003 ), citing Alvare z v. Prospect Citiba nk Corp,, et al., 100 N.Y.2d 72, 760 N.Y.S.2d failure to do so requir es a denia l of the Hosp,, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986 ). The ing papers. Lacagnino v. Gonzalez, 306 motio n witho ut regar d to the suffic iency of the oppos A.D.2 d 250, 760 N.Y.S.2d 533 (2d Dept. 2003) . Howe ver, once such a showing has been motio n to produ ce evide ntiary proof in made , the burde n shi~s to the party opposing the fact requir ing trial. Gonzalez v. 98 Mag admis sible form demo nstra ting mater ial quest ions of ), citing Alvarez, supra , and Winegrad Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131 (2000 N.Y.S .2d 923 (1985 ). On a motio n for v. New York Univ. Med. Cente r, 64 N.Y.2d 851, 508 most favora ble to the non-m oving summ ary judgm ent, facts must be viewe d in the light tals Corp .. 22 N.Y.3d 824, 833, 988 party. Jacobsen v. New York City Healt h and Hospi N.Y.S.2d 86 (2014 ), the alleged tortfe asor "It is funda menta l that, in order to be held liable in tort, s v. Aaron , 81 A.D.3 d 876, 877, 918 must have owed the injure d party a duty of care." Forbe liabili ty for a dange rous or defec tive N.Y.S.2d 188 (2d Dept. 2011) . "As a gener al rule, occup ancy, contro l, or special use of the condi tion on prope rty is predic ated upon owne rship, d 1233, 1235, 97 N.Y.S.2d 278 (2d prope rty." Tilford v. Green burgh Haus. Auth. 170 A.D.3 eleme nts is suffic ient to give rise to a Dept. 2019) . "The existe nce of one or more of these Our Savio r, 139 A.D.3 d 830, 831, 31 duty of care." Micek v. Greek Ortho dox Church of N.Y.S.3d 189 (2d Dept. 2016) . s a Liabil ity can also be imposed upon a party that create dange rous condi tion on the prope rty. Id. indep enden t contra ctor is The gener al rule is that an emplo yer who hires an acts, thoug h there are excep tions. not liable for the indep enden t contra ctor's neglig ent 5 5 of 9 [*FILED: 6] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 Rosenberg v. Equitable Life Assur. Soc. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765 (1992). a The exception s generally recognized involve situation s where the employe r ( 1) is under statutory duty to perform or control the work, (2) has assumed a specific duty by contract, ent (3) is under a duty to keep premises safe, or (4) has assigned work to an independ contracto r which the employe r knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipate d by the employe r." Id. Where an exception applies, the party "is vicarious ly liable for the fault of the d.'' independ ent contracto r because a legal duty is imposed on it which cannot be delegate Dept. Horowitz v .• 763 Eastern Associates. LLC, 125 A.D.3d 808, 810, 5 N.Y.S.3d 118 (2d 2015)(bu ilding owner responsible for negligenc e of contracto r when infant plaintiff was injured when he fell through glass of a fixed panel adjacent to the interior of the front entrance door.); Olivieri v. GM Realty Co .• LLC, 37 A.D.3d 569, 37 A.D.3d 569 (2d Dept. 2007)(bu ilding owner responsib le for actions of snow removal contracto r due to non-dele gable duty to keep property 118 in safe condition .); Monroy v. Lexington Operatin g Partners. LLC, 179 A.D.3d 1053, not N.Y.S.3d 132 (2d Dept. 2020)(ow ner failed to establish , as a matter of law, that it could keep be responsib le for its contracto rs alleged negligenc e pursuant to its nondeleg able duty to the premises safe.); Pesante v. Vertical Industria l Developm ent, 142 A.D.3d 656, 36 N.Y.S.3d 716 (2d dept. 2016). "A landowne r must act as a reasonable man in maintain ing his property in a to reasonab ly safe condition in view of all the circumsta nces, including the likelihood of injury 40 others, the seriousness of the injury, and the burden of avoiding the risk." Basso v. Miller, ly N.Y.2d 233, 241, 386 N.Y.S.2d 564 (1976). The duty to maintain property in a reasonab safe condition exists regardless of whether the property is open to the public or not. Peralta v. Henrigue z, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741 (2003). In the instant matter, Defendan t Landau owes Plaintiff a duty of care and may be responsib le for the alleged to negligen t acts of the employee s of D'Agostin o and/or Salamon based upon his duty ent maintain his property in a safe condition , which is one of the exception s to the independ 6 6 of 9 [*FILED: 7] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 duty is not depend ent on contra ctor rule. Contra ry to Defend ant Landau's conten tion, this whethe r or not the proper ty was open to the public. posses sion Additio nally, althoug h Defend ant Landau claims he was an out-ofcase. Landau's contrac tual owner at the time of the inciden t, the Court finds this not to be the ve proper ty mainte nance undert aking with Salamon was not a compre hensiv e and exclusi in the proper ty. See obligat ion intende d to displace the landow ner's duty to safely mainta 2010). Moreov er, the Spitzer v. Tranese, 72 A.D.3d 674, 675, 898 N.Y.S.2d 618 (2d Dept. basis, certain ly belying eviden ce is that Mr. Landau was presen t at the site on a near daily any claim of being out-of- posses sion. f Sherry Nor does the sale contra ct dated March 24, 2015, betwee n Plaintif ty in a safe conditi on. Fernandez and Landau, relieve Landau of his duty to keep the proper of land are merged in the Genera lly, the obligat ions and provisi ons of a contra ct for the sale Davis v. Weg, 104 A.D.2d deed and, as a result, are extingu ished upon the closing of title. not apply where there 617, 619, 479 N.Y.S.2d 553 (2d Dept. 1984). Howev er, this rule does on shall survive deliver y of is a clear intent eviden ced by the parties that a particu lar provisi instant matter , the Court the deed, or where there exists a collate ral undert aking. Id. In the the sale contac t that the finds that there was not a clear intentio n betwee n the parties to tors with respec t to work Fernan dez' would be responsible for the actions of Landau's contrac Landau contrac ted to have perform ed on his proper ty. a duty to Notwith standin g that the Court has determ ined that Landau owed for any neglige nt actions Plaintif fs to keep the proper ty in safe repair, and that he can be liable entitled to the grant of of his contrac tors/su b-contr actors, neither Plaintif f nor Landau are triable issues of fact exist. summa ry judgm ent as to the neglige nce cause of action because D'Agos tino's employ ees, While Plaintif f asserts that the defecti ve conditi on was created by the acciden t, all materia l Mr. Iodice testifie d that when he left at 5 or 6 p.m. on the day before testimo ny require s denial was stacke d behind the Herrick Avenue proper ty. This conflict ing of both motion s. 7 7 of 9 [*FILED: 8] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 Defendant Landau, however, is entitled to dismissal of the claim premised upon violation of Real Property Law Sec. 235-b, which permits a tenant to recover limited economic loss in the form of rent abatement where the premises are not fit for human habitation. The implied warranty of habitability provision of Real Property Law Sec. 235-b was not intended to create an alternative remedy to recover damages for personal injuries that are recoverabl e in a negligence action. Stone v. Gordon, 211 A.D.2d 881, 621 N.Y.S.2d 220 (3d Dept. 1995). As alternative relief, Defendant Landau seeks leave to amend his Answer to assert cross-claim s against Salamon and D'Agostino , in the form annexed to the moving papers as NYSCEF doc #106. D'Agostino opposes the motion as untimely. Leave to amend a pleadings or a Bill of Particulars "is to be freely given in the absence of prejudice or surprise to the opposing party." Ancona v. Waldbaum , Inc., 305 A.D.2d 436; 758 N.Y.S.2d 816 (2d Dept. 2003) citing Scheuerma n v. Health & Hasps. Corp. of City of N.Y., 243 A.D.2d 553, 554, 663 N.Y.S.2d 123 (1997). While a court has broad discretion in deciding whether leave to amend should be granted, it is an improviden t exercise of discretion to deny leave so as to assert an otherwise apparently meritoriou s cause of action or claim absent an inordinate delay and a showing of prejudice ... or where the party opposing the motion to serve an amended pleading cannot demonstra te prejudice resulting directly from the delay. Sclafani v. City of New York, 271 A.D.2d 430, 706 N.Y.S.2d 129 (2d Dept. 2000). In the instant matter, the Court grants that portion of Defendant Landau's motion which seeks leave to amend his Answer to assert various cross-claim s against the Salamon Defendant s and D'Agostino , as the amendmen t does not come as a surprise; the matter was just recently placed on the trial calendar, a trial is not imminent, and such amendmen t will not require additional discovery. Lastly, the Court denies the Salamon Defendant s' motion to dismiss any crossclaims/cou nterclaims asserted against them. Although Defendant s pray for such relief, they in no way affirmative ly address D'Agostino 's cross-claim in their moving paper. As such, they failed to meet their prima facie burden upon summary judgment. Accordingl y, it is hereby 8 8 of 9 [*FILED: 9] ROCKLAND COUNTY CLERK 02/25/2021 11:34 AM NYSCEF DOC. NO. 139 INDEX NO. 035033/2018 RECEIVED NYSCEF: 02/25/2021 ORDERED the Notice of Motion (#1) filed by Defendants Joel Salamon and Salamon's Home Improvements, Inc. for summary judgment dismissing all counter or crossclaims against them is DENIED; and it is further ORDERED that the Notice of Cross-Motion ( #2) filed by Plaintiff for summary judgment as to liability against Defendant Landau is DENIED; and it is further ORDERED that the Notice of Motion ( #3) filed by Defendant Landau is DENIED with respect to that portion of the motion for summary judgment and dismissal of Plaintiff's negligence action, but is GRANTED to the extent that Plaintiff's Real Property Law Sec. 235-b cause of action is dismissed; and it is further ORDERED that the Notice of Motion ( # 3) filed by Defendant Landau is GRANTED to the extent that the Proposed Amended Answer is deemed filed and served and Defendants are directed to file an Answer to the counterclaims within twenty (20) days of this Order; and it is further ORDERED that all parties are to appear for a settlement conference on APRIL 7. 2021 at 10;30 a.m. via Microsoft Teams. Counsel participating in the settlement conference must have knowledge of the matter, as well as authority, and must arrange to be able to speak to their clients with respect to settlement offers, if necessary. The foregoing constitutes the Decision and Order of this Court on Motions # 1- 3. Dated: New City, New York February 24, 2021 Acting Justice of the Supreme Court TO: {All parties via NYSCEF) 9 9 of 9

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