Fehl v Peskin

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Fehl v Peskin 2021 NY Slip Op 33192(U) November 18, 2021 Supreme Court, Suffolk County Docket Number: Index No. 606687/2018 Judge: Joseph Farneti 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] SUFFOLK COUNTY CLERK 11/26/2021 11:59 AM INDEX NO. 606687/2018 NYSCEF DOC. NO. 267 RECEIVED NYSCEF: 11/26/2021 S~!ORT FORM ORDER INDEXNo, 606687/2018 CAL.No. 202100251OT SUPREME COURT - STATE OF NEW YORK lA.S. PART 37 - SUFFOLKCOUNTY. PRESENT: Hon. JOSEPH FARNETI Acting Justice of the Supreme Court MOTION DATE 7/14/21 (006-007) MOTION DATE 9/2/21 (008) ADJ. DATE 9/16/21 -~ ~~--Mot. Seq. # 006 MG Mot. Seq. # 007 MG Mot. Seq. # 008 MG; CASEDISP ·- ·------ . -. -------. ---- .----- .------------------------ .----X LAW OFFICE OF JEFFREY B. HULSE Attorney for Plaintiffs 900 Route 111, Suite 265 Hauppauge, NY 11788 ANN MARIE FEHL & ROBERT FEHL, Plaintiffs, JOSHUAGOLDBLATT Attorney for Defendant Eric Peskin 16 Center Drive Syosst!t, NY 11791 - against- HICKEY SMITH LLP Attorney for Deft!rtdant Leisure Living Realty 1040 Avenue of the Americas New York, NY 10018 ERIC PESKIN, LEISURE LIVING REALTY, INC., F&G REALTY GROUP, INC. d/b/a WEICHERT REALTORS-FERRERIGROMUS, and MICHAEL P. DOCTOROW; HURWlTZ & FINE _ Attorney for Defendants F &G Realty Group and Michael Doctorow · 575 Broad Hollow Road Melville, NY 11747 Defendants . .------. ------------------. . - .---. - .----------------------. --X Upon the .following papers read on this motion for summary judgment : Notice of Motion/Order to Show Cause and supporting papers by defendant Leisure Living Realty dated. May 3. 2021; by defendant. Eric· Peskin dated. July 6. 2021 ; by defendant F&G Weicherl Realtors d/b//a Weicherl: Realtors and Michael Doctorow dated. July 91 2021 ; Notice ofCross. Motion.· and. supporting papers _ ; Answering Affidavits arid supporting papers by plaintiffs dated. July 7•. 2021 and August 25. 2021 ; Replying Affidavits and supporting papers by defendant Leisure Living Realty dated,Julyl4,202.I; by defendant F &G Weichert. Realtors d/b/a: Weichert. and Michael Doctorow dated. September I S. 2021 .; Other.-·_; it is 1 of 6 [*FILED: 2] SUFFOLK COUNTY CLERK 11/26/2021 11:59 AM NYSCEF DOC. NO. 267 INDEX NO. 606687/2018 RECEIVED NYSCEF: 11/26/2021 Fehl v P~skin b1de_x No. -Ci06687i2018 Page2 ORDEReD that the inotioti. (006) by defendant Leisure Living Realty for summary judgment, the motion (00.7) by defendant Eric Peskin for summary j,,t_dgmentand, the.motion (008) by defendants F &G Realty dt:oup and Michael Poctorow-fotsummary jµd_grrient are consiJlid~ted for putposes of this· d~tetmination; and it is further ORDERED.-that -th~ motion (006) by-defendant.Leisut.c.Living.E..ealty.for summary judgment . dismissing the complaint and all cross claitris againstit is granted; and·it further is ORDERED thatthe motion (0.07) b,y,cidendant·Eric Pe~ld.n for $um111;_ary-judgm.ep.t dismis$ing tbe complaint and all cross claims against hi111 is granted; and it is further · ORDERED. that the motion {0.08) by defendants F &G R~alty Group and . Micha_el D. Doctorow-for summary judgment dismissing the complaintagainst thc:m is granted. This- is an action to recover damages for personal injuries allegedly sustained by-plaintiff. Ann Marie Fehl; on February 25, 2018, when she tripped and fell while touring a home owned by defendant Pesl<iri. .md listed fo1: sale through Peskiri's listing ag~nt, defendant Leisure Living'. The. home is located at 129A Exmore Court in Ridge, New York. -Plaintiff alleges ·thatthe -defendants were ·negligent failing to properly maintain, manage and control the premises; and ih creating a hazardous condition consisting qf a choo.ge of elevation between the floor in the entry ;area and a bonus:room that had 'l:Jeen converted by Peskin into residential space. Plaintiff further alleges that defendants- F&G Realty, d/bta· Weichert RealtyFeneri-Gomus ("F&G Realty''} and Michael Doctorownegligerttly failed to illuminate the premises and to warn of.the height differential. Doctorow was. areal estate agent with F&G Realty an,4 was _showing the premises to non.;party·Bemice Stephens at thetime·ofplaintiff's accident. Plaintiff'·s·husbandl Robe.rt · Fehl, brings -a derivative daim for loss of services. in Leisure Living now moves for summary judgment dismissing ·the complaint arid all cross claims against it on the grounds that it did not own or control the premises, and that the height-differential was open, obvious and.not ipherently dap.gerous. In suppoi;t, Leisure Livirig submits the pleadings,:the deposition transcripts of the- parties·and of the· non-party wi mess Maria Peskin, ··the listing broker for the premises. Peskin moves for summary judgment dismissing the complajilt and all cross claims agiiinst hi111 on U,e grounds tbl;lt t4e height differential complained ofwas open, obvious and not"inhere_ntly dangerous·. In suppottofhis. motion,""P~skirt submits the pleadings and transcripts of the parties' . deposition testjmony, F &G Realty and Doctorow move for summary judgment dismissing plaintiff's compl~int on the grounds· that they ciwed '.no duty to plaintifr, that they had- no control over the prerp_i~~-s and that the height diffe.rential was open, obvious and not inherently <lMg~ous. In support, F&G Realty and Dqctorow ~ubmit tl:ie pleadings.anq. the depositiontranscripts of the parties. In oppositi6n to the · rilotioris, plaintiffsubmits her own affidavitand-the expert affidavitofAlfre_d Sutton, anaichitect licensed inthe State of New York. At her examination before trial, pliaintiff testified thatshe wentto tht;: condominiuni unit where the accidentoccµrred with her friend, Bernice Stephens, on February 25,201:8. Plaintiff testified thatshe had not been to the. condominium complex prior to that day,· and that she· did nor .remember the name of the 2 of 6 [*FILED: 3] SUFFOLK COUNTY CLERK 11/26/2021 11:59 AM NYSCEF DOC. NO. 267 INDEX NO. 606687/2018 RECEIVED NYSCEF: 11/26/2021 Fehl vPeskin Index No. 606687/2018 Page3 broker who showed them the units. Plaintifftestified that she never saw a light fixture while she was in the Peskin unit and that the lights were not on. She did not say anything aboutthe lights to anyone and never looked for a light switch. She testified that she was not concerned and that "you could see a little bit, you know walk." Plaintiff testified that were no lights near the entrance to the room where she fell and that it was dark; she never looked for a light to turn on or asked the agentto do so. Plaintiff testified that the floor of the roorn she fell into was the same color as the floor she was walking on and that she saw no white stripe on the floor as she entered the room~ Plaintiff testified that as she walked· into the room there was no floor·under her foot andshefell. ·. At his examination before trial, Michael Doctorow testified that he was at 129A Exmore Court on February 25; 2018, in his capacity as a real estate agent on behalf of F&G Realty, He obtained a key to the premises from the lockbox after he had arranged an appointment with Leisure Living to show the unit to Bernice: Stephens. It was his first time atthe pre:mises. Doctorow testified that when he arrived at the subject property he opened the door and entered into the kitchen. Doctorow testified no one was in the house and the lights were off. He testified that he did not know the floor plan and that) upon entering, he turned on the kitchen, brtthroom and hall. lights. He testified that those are the only three lights he can remember. Doctorow testified that plaintiff fell to the right of the front door at the entry to a side room as he was closingthe front door. The .floor in the room was at a lower elevation than the floor in the entryway and the floors were the same material and color, Doctorow testified that it was his practice to tum lights on and that he did so that day. He furthertestified that he did not know if there was a light switch in the roo:m where plaintiff fell, that he did not believe there was a white line· on the floor at the entrance to the room where plain.tiff fell, and th athe did not recall if there was a light fixture in the room 011 the day of the accident. At his examination before trhll, Eric Peskin testified that he is a real estate investor and that he owned the property in whichplairttiff felL The property is focatedwithirt the Leisure Village condominium complex and he had bought and sold other properties in the complex. He used Leisure Living brokers to sell the properties arid his wife; Maria Peskin, was an agent there at the tinic. Peskin testified that he made alterations to the unit after obtaining a permit from Leisure Village to do so. Peskin testified that he removed a wall irt the unit to convert certain storage space irtto livirigspace. Additionally, he changed the flooring in the converted space to match the rest ofthe unit. Peskin testified that·attercompleting the work,LeisureVillrtge jnspectedand approved the alterations. Peskin testified that there was a step.,down of about three and a half inches to get into the new room. Peskin testified that he added awhite sJripe of wood molding along tµ.epassagewayintothe.new room.qnd arou,nd the entire room. Ail the work was completed prior tC> plaintiffs accident. Peskin testified that there was a light switch immediateiy to the kft of the entty foto the new room which controlled the ceiling light he installe.d. Peskin testifie9. that selling the property was completely up to Leisure Living and he. did not direct any aspect of.showing the linit or seiling it. He was. told about the accident by someone from Leisure Living, Upon learning o:fthe accident,he and his wife we11t tc> the prpperty and eIJ,tered th,rough the back door off of the kitchen. .Peskin testified the lights were off when he .arrived. Laura Rhunke testi tied for Leisure Living. She ~tated that she is the. sole owner ofthe company a:nd a licensed real estate broker. Maria Peskin worked as an independent contractor for Leisure Living. 3 of 6 [*FILED: 4] SUFFOLK COUNTY CLERK 11/26/2021 11:59 AM NYSCEF DOC. NO. 267 INDEX NO. 606687/2018 RECEIVED NYSCEF: 11/26/2021 Fehl v Peskin .Index No, 606687/2018 Page4 Rhunke testified that when Peskin bought the subject property he used Leisure Living with his· Wife as his agent to purchase it. She testified that her company didnotputup any signs to warn visitors ofa change in elevation or that lights should be on before someone could look at it. She testified that ''Ede made something on the flcior that defined where the entry hall ended and the storage space began. It was a good thing that he did. It was· obvious that there was another room beginning." Maria Peskin testified that she is a licensed tea! estate broker and thatshe worked at Leisure Living on the date of the subject accident. Her husband owned and renova,ted the unit in which plaintiff fell. She testified that the only instructions Leisure Living gave to brokers for showing property was where to find the key. She testified that she found out about the accident when someone from Leisure Living called het and that she and her husband went to the unit. She testified that she asked Doctorow why the lights were not on. She further testified that she did nofknow if there were lights on anywhere else in the unit butslie began turning on lights. Her husband was with her and he had a verbal exchange with Doctorow. Ms. Peskin testified that there was a height differential from the foyer to the room. where plaintiff fell. She alstJ testified that there was a window in the room that looked into the sunroom which was. "all windows." ·She testified that the white line between the foyer and the room where plaintiff fell was presenton day ofaccident and that her husband put it there during the renovation. Plaintiff submitted an affidavit in which she avers that Doctorow was .inside the unit when she arrived and the lights were off. She avers that it was dark but they could see a little bit and began to walk through the home. According to the affidavit, the same flooring material was used in the entry and. the room where she fell, and plaintiff did not see the step. Because ofthat and the darkness she could not see the step down. Plainti ff avers that she was carefully looking forward and stepped forward expecting to step on flooring, but there was no floor underfoot and she fell. Plaintiff avers that on the day ofher fall the white stripe of molding was not there. To impose liability on a defendant for a trip and fall on an allegedly dangerous condition on its premises, there must be evidence that the dangerous condition existed, and that. the defendant either created the condition.or had.actual or.constructive notice.of it and failed tc>remedyit within a reasonable time (see Waclwvsky v City of New York, 122 AD3d 724, 997 NYS2d 145 [2d Dept 2014]; Farren v Board of Edu. of City o/NewYork, 119 AD3d 518, 988NYS2d 684 [2d Dept 2014]). Further, while a landowner has a duty to maintain his or her premises in a reasonably safe condition {see Basso v Miller, 40 NY2d233, 386 NYS2d 564 (1976];.Gutman v TodtHill Plaza, 81 AD3d 892,917 NYS2d886 [2d Dept 2011]; Gradwolll v Stop & Shop Supermarket Co~, 70 AD3d 634, 896 NYS2d 8:5 [2d Dept20lO]), there is no duty to prqtect or warn against an open and obvious condition that.as a matter oflaw, is hot . inherently dangerous (see·. Tyz v. First St. iloiding .Co.; 78. Ab3d 819, 910 NYS2d 179 [2d Dept 2010]; Weiss vHalf H<Jllow Hills Cen,t. SchoQ/ Dist., 70 AD3d. 932, .893 NYS2d 877 [2d Dept201 OJ; Rotos v Oliva, 54 AD3d 39l 863 NYS2d 465 [2dDept2008]; Pitiev Krasinski, l8AD3d 848, 796 NYS2d 671 [2d Dept2005]). '~A court may determine whether a c.ondition is hazardous and ope1uind obvious as a matter of law wheri the established. facts compel that conclusion; and may do s9. on the basis of cleat and undisputed.evidence'' (Fishelsoli v Kramer Props., LLC, 133 AD3d 706, 707 1 19 NYS3d 580 [2d Dept 2015], quoting t agle v Jakob, 97 :NY2d l 6S, 1(i9, 73 7 NYS2d 3 31 [200 l]). A defendant. seeking to dismiss a Gompiaint on the basis of the trivial defect doctrine ''must make a prima facie showing that.(1) 4 of 6 [*FILED: 5] SUFFOLK COUNTY CLERK 11/26/2021 11:59 AM NYSCEF DOC. NO. 267 INDEX NO. 606687/2018 RECEIVED NYSCEF: 11/26/2021 F~hl v Peskin Index No._ 60.6687/2018 Page 5 the defect is, under the circumstances, physie;ally insignificant; and (2) that the characteristics of the defect or the sutroum;ling circumstances do not increase the rfslcs. itpcises'' {Kozik vSl,erland & . Farringt~11, lnc.• 173. ADJd, 994, 996, 103 NYS3cl 1_28 ".[2d Dept :2019]). '"Liability for- an injury ·caused by a dangerqus or defectiv¢ condition on property is generally predicated upon ovm.ership, occupancy, c9Iittol or special use of the property and where none. is present,· a party <;:annot be held liable." (Racicowsici.v Realty .USA. 82 AD3<,l .1475, 920 NYS2d435 [3d Depf2011]~ Giidani v·Dormitory Aut/1. ofState tif~.Y., 64 AD3d 1098, l102,884NYS2d 489 [3dDept 2009],quoting Seymour v David W. A.lape,Inc~, _22 AD3d 1012,1013, 803 NYS2d 250 [3d Dept:2005]). . . The standards for summaryjudgmen t are well-settled. A court may grant summary judgment where there is Ii.o genuine issue of material fact and the moving party is; therefore, entitled to jµdgment a~ a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 50.8 NYS2~ 923 [1986]). If this initial burden has not been met, the inotiori must be denied. without regard to the sufficiency ofopposing papers (iq.).. However, on:ce the burden has been met by the movan.t, the burden shifts to the party opposing th~ motion to:submit evidentiary proof in admissible form sufficient to create material issu~s of fact requiring· .a trial. Mere. conclusions and unsubstantiated allegations or assertions are insilfficieht (see Zuckerman v City.of New .York,._4_9 NYZd 557,427 NYS2d 595 [1980]). The property where plaintiff fell was listed for sale with Leisure Living and sho-wn by teal. estate . a.gent Doctorow, an employee ofF&G. Realty. The connection between Leisuri;; Living. F&G R~:;ilty and Doctorow to the pr.operty is insufficient to sµppoit a-finding that these.-defendants occupied, controlled or made. special use of the premises (see Rackowski v Realty USA,_supra;. James v Stark, 183 AD2d 873, 584 .NYSZ4 137 [2d Dept 1992]} Absent control, a :teal estate broker :docs not owe a 4uty to,a prospective buyednjured on the premises being shown (see Schwalb v Kulaski,29 AD3d: 563, 814 NYS2d 696 [2d Dept 2006]). Additionally,. all defendants have established their entitlement to summary judgment by submitting evidence demonstrating that the height differential was r~adily observa,ble by tht;:. reasonable use of the injured, plaintiffs senses ·and was not inherently dangerous. (see Errett v Great Neck: Park District, 40 AD3d .1029, ·83 7 NYS2d 70 I [2d Dept 2007]). According to plaintiff's deposi don was: looking ·ahe~d into it (see,-Pirie v Krasinski, testimony; plaintiff knew she was entering the room and 18 AD3d 84.8; 796 AYS2d 671 [2d Dept2005]). Furthermore~ Peskin showed thahhere was a'visual cue alerting the public to the heightdifferential . Having established aprimafacie cuse of eritit1emertt to sum.mazy judgment,. defenq.ants shifted the burden to plaintiffs to submit ·evidence in admissible form raising a triable issue of fact (see Zuckerma;, v City ·ofNew York, supra). Plaintiff'.s statement in her- affidavit that.there was ·no white ~Wpe on the :floor betwee11 the hallway and the room where.she fell contradicts herprior testirnohy that she did not see the white stripe (wl11;:n she was asked whether she. i;lid rtot $ee the white stripe or whether it was-not there) and .creates a. feigned issue of fact irtsurficientto defeat defendants' properly supported ll).otion for surnmar.y judgment (see L(lniox v City o/New YCJrk, 170 AD3d519, 96 NYS3d 202 [ist Dept 2019]). Furtherm.ote, although plaj11fiff has·tenoered the affidavit ofan architect who opines that the sirtglestep isa dangerous-condition, the "generalized, conclus·ory and speculative assertjqn is insufficient to defeat a motion for summary· judgment"(Plrie v Krasins;ki, 18AD3d 848, 796"NYS2d 671 [2d Dept2005]) where these defendzmts 5 of 6 [*FILED: 6] SUFFOLK COUNTY CLERK 11/26/2021 11:59 AM NYSCEF DOC. NO. 267 INDEX NO. 606687/2018 RECEIVED NYSCEF: 11/26/2021 Fehl v Peskin Index No. 606687/2018 Page6 have established that the height differential was open and obvious and not inherently dangerous (see Behar v All Seasons Motor Lodge, 6AD3d 639, 775 NYS2d 183 [2d Dept 2004]). Accordingly, the tnotioh by Leisure Living and the motion by F&G Realty and Doctorow for summary judgment dismissing plaintiffs' complaint and all cross. claims against them and the motion by Peskin for summafy judgment dismissing plaintiffs' complaint are grartted. Dated: November 18, 2021 X FINAL DISPOSITION 6 of 6 NON-FINAL DISPOSITION

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