Gallo v Antonette's of E. Hills, LLC

Annotate this Case

Download PDF

Gallo v Antonette's of E. Hills, LLC 2021 NY Slip Op 33487(U) January 13, 2021 Supreme Court, Nassau County Docket Number: Index No. 605376/2017 Judge: Arthur M. Diamond 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: NASSAU COUNTY CLERK 01/26/2021 09:52 AM NYSCEF DOC. DOC. NO. NO. 171 INDEX INDEX NO. NO. 605376/2017 605376/2017 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 SUPREME COURT - STATE OFNEWYORK Present: HON. ARTHURM. DIAMOND Justice Supreme Court· ----------·--·-•·-----------------------------------------x TRIALPART: 3 ANNA GALLO, NASSAU COUNTY Plaintiff, INDEX NO: 605376/2017 -'against-' MOTION SEQ #: 2, 3, 5, 6 ANTONETTE'S OF EAST HILLS, LLC d/b/a "ANTONETTE'S OF EAST IDLLS'' and 290 GLEN COVE RD. LLC, ________. ; .;___..;. _·-.------------ . SUBMIT DATE: 11/24/20 Defendants. ----x The· following papers having been read on· this motion: Notice of Motion (290 Glen) ••..•.•.•..•.. 1 Opposition (Anto11ette's) .•..• •· .•.•.••.•. 2 Rep~y .... _..... ,.· .. -..... ·,. ............. -..... ,. -.......... ·3 Rep-~y . -. ..•...... .- .- .. -. .............. .--............... 4 Sur-Reply (Plaintiff) ................... 5 Notice of Motion (Antonette's) ........... 6 Opposition (290 Glen) ............•..... 7 Reply • -. ............. ,. .. .: .... ,. ...... -..... ~ .· :• ~ 8 RepJy ....... _ .. _. . _._-..... _~ ....... •·:• ....... " ~ .,. ........... " .... ·9 Notice of Cross:,.Motion (Plaintift) ......... 10 Opposition to Cross-Motion (290 Glen) ... 11 'II! • ,. • ti: .,a.eply ........_.. :a- ., • • • • • • . -. ......... • •. • •· • -~- .. -_ • .- ·• " • 12 Notice ofCross:-Motion and Opposition (Plaintiff) ...•.•................... 13 Opposition (Antonette'"s) ............... 14 ·Reply ........ ~- .. , ...._.......... II!'. • • •_ . • • . • ~ .• _. . . . . . . . 15 Defendant 290. Glen has moved this Court for an order; purstiant to GPLR 3212, seeking to dismiss the complaint and any cross,.claim:s asserted against it in their erttiri:ty, as well as for summ~ judgment oil its own QtOS$-claiin for indemni:ficatiort against Defendant Antonette;s. smnmary judgment, seeking dismissal of the· coillplairit and the cross-claims asserted against it artci has also sough judgment cm• its cross-claim Defendant Aritonette's has al$o moved for sounding in indenmification against Defendant 290 Glen. Plaintiff has filed two separate cross~ motions, seeking to amend its bill·ofp~icµlarsar:i to each Defendant, pursuant.to CPLR.§3025 .and ha.$.als.o ,opposed the. respective summaryjudgment motions. All motions.have been [* 1] 1 of 5 Mly· FILED: NASSAU COUNTY CLERK 01/26/2021 09:52 AM NYSCEF DOC. DOC. NO. NO. 171 INDEX INDEX NO. NO. 605376/2017 605376/2017 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 briefed at the time of submission, and this Court has accepted the sur"'.reply from Plaintiff for Defendant 290 Glen's sU111Illary judgment motion. Based upon the following, the two cross~ motions by Plaintiff are· hereby granted, over opposition; furthennore, in consideration of the respective amended bills ofparticul~, the motion by Defendant 290 Glen for summaryjudgrnent 1s hereby granted and the action and any crossRclaims dismissed against it, wh.ereas the motion by Defendant Antonette's is hereby denied; Pursuantto CPLR §3025(b) leave to amend a pleading should be freely given, aild leave should be given where the amendment is neither palpably insufficient nor patently devoid of merit and the delay in Seeking amendment does not prejudice or surprise the opposing party. Blanco Gomez v. Principe; 186 AD3d 466, 126 NYS3d 393 (Mem) (2 nd Dept., 2020). Mere lateness is not a barrier to the amendment; rather, it must be coupled with significant prejudice to the other sicle. Cioffi v. SM Foods. Inc., 178 AD3d 1015, 116 NYS3d 68 (2 nd Dept. 1 2019). Here, the respective p~pposed amended bill of particulars as to each l)efendant seeks to specify the sections of the building code for which is has asserted the subject stair riser was defective. Plaintiff has not inserted a.new theory ofliability in the case, since her original respective bill of particulars already pled violations of the building code and other applicable regulations without specificity. Neither Defendant 290 Glen not Defendant Antonette's have demonstrated significant prejudice for tlie amendments ~setted beyond the lateness of the request. Therefore, in the absence of any suchprejudice, both cross-motions to amend Plaintiff's bill of particulars is hereby granted; furthermore,in light: ofthis·atnended pleading, the Court has considered same in reviewing the respective motions.for summ1:1.ry jµdgment. On January 29, 2017, Plaintiff was. a client and co-,.host of a party being held at Defendant Ap.tonette·'s restaurant within the building owned by Defendant 290 Glen . Pursuant to a lease agreement dated J~uary 1, 2007, between Defendant 290 Glen and a rton:-party. Defendant Antonette:s operated a restaurant with permissiqn from Defendant 290 Glen as the subieasor of the building commencing sometime in 2014. The restaurant, complete. with a p~ rooin on the second tloor, required the .entirety of the .subject building; Defendant. Antonette' s used the party room to host events, such as that which Plaintiff was attending on the afternoon in question. The event, a bridal shower for her daughter, had commenced .a:t approxiinately 1:00 p;m. in the afterrtoon that day and Plaintiff was able to traverse the staircase without issue upon her arrival. · 2 [* 2] 2 of 5 INDEX 605376/2017 NO. 605376/2017 INDEX NO. FILED: NASSAU COUNTY CLERK 01/26/2021 09:52 AM NO. 171 NYSCEF DOC. DOC. NO. 01/19/2021 RECEIVED NYSCEF: NYSCEF: 01/19/2021 However, at approximately 5•:00 p.m. as the party was ending, Plaintiff again attempted to traverse a one.,step.riser to reachthe landing at the bottom of the same staircase, without success. Plaintiffalleg es that as she approached the one-step riser, but before she actually ascended it, she tripped and fell, resulting in injuries to her left arm and cervical spine. As part pf this allegation, Plaintiff specifies in her bill of particulars that inadequate lighting in the area, improper construction, and improper maintenance were the cause of her fall and the negligence ·she attributes to Defendants. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment· as a matter · of law; tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v~ Ptospectllosp ital. 68 NY2d 320, 508 NYS2d 923 (1986). To make a prima facie showing; the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written adm.issions. Id. Once a prim.a facie showing has been made, the burden shifts to the party opposing the motion for ·summary judgment to produce evidentiary proof in admissible. form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckermanv. City of New York, 49NY2d 557,427 NYS2cl 595 (1980). I tis well settled that a landowner owes a duty of care to maintain his or her property in a reasonably safe condition. Baek v. Red Cap Services, 129 AD3d 752, 10 NYS3d 599 (2nd Dept. 2015). To imposeJiabiHty upon a defendant ina trip-and-fall action, there must be evidence that a dangerous or defective_ condition existed, and that the defendant either -created the condition or had actual or constructive notice of it. Dennehy~Mun:>hY v. Nor-Topia Service Center. Inc., 61 AD3d 629, 876NYS2d_512(2miDept., 2009). Whether a dangerous or defective conditjon exists on the property of another so as to create liability depends oh the peculiar facts and circumstances of each ca:se. Richardson v. JAL Diversified Management, 73 AD3d 1012, 90i NYS2d 676 (2 nd Dept., 2010). _In support of the motion, Defendant 290 Glen has submitted an .expert report from an engineer who conducted a site inspection two _years ·-after the alleged incident. While the engineer's affidavit adequately explains the .area was not defective in any way as far as it was constructed, and the evidence before the Court indicates that Defendant 290 Glen did nof perform any construction on the subject staircase atany time between Plaintiff's injury and the site inspection by this exp·ert; this affidavit is insufficient to explain whether or not this landing area was adequately maintained and properly illuminated at the thne of Plaintiff's trip and fall. 3 [* 3] 33 of 5 .5-----------------------of INDEX INDEX NO. NO. 605376/2017 605376/2017 FILED: NASSAU COUNTY CLERK 01/26/2021 09:52 AM NYSCEF DOC. DOC. NO. NO. 171 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 When evaluating these claims by Plaintiff, the deposition transcripts of Plaintiff, Defendant . . Ailtonette;s pri.ncipal, and its own principal, that have also been submitted with the motion, sufficiently establish that Defendant 290 Glen, as art out of possession landlord, was not . . responsible for the .maintenance of the subject landing, including the necessary lighting in the area. DefendanL290 Glen has also submitted a copy of the subject lease agreement, which cotrlirms that they could not be liable for injuries that occurred silch as that which befell Plaintiff. See Grimaldi v. 221 Arlington Realty. LLC, 107 ADJd 670, 966 NYS2d 489 (2 nd Dept., 2013). Thus, Defendant 290 Glen has satisfied its burden, and the hurd.en is shifted to Plaintiff and Defendant Antonette's to demonstrate a triable issue of fact still exists as to their respective claims and cross-claims; The opposition papers before the. Court provide little, if any, additional evidence outside what has already been provided in Defendant 290 Glen's moving papers, and after a thorough review of all submissions before the Court, no such triable issue can be found. Accordingly, the motion by Defendant's 290 Glen is hereby grantedin full, artd all claims and .cross-claims asserted against them are dismissed forthwith. Turning now to the motion by Defendant Antonette's, this Court finds that.it has not satisfied its burden on the issue of negligent maintenance and inadequateJighting asserted by Plaintiff. In addition to deposition transcripts from each party, Defendant Antonette's has also submitted photographs used during Plaintiffs deposition; however, given the testimony by Plaintiff, this Court finds that the photographs have not been properly authenticated; as they were not taken at or around the time of the incident and Plaintiff clearly indicated such differences between the photographs and the condition of the landing at the time of her incident. See Davis V. County of Nassau, 166 AD2d 498, 560 NYS2d 696 (2nd Dept., 1990). More importantly, the expert affidavit, based upon two site inspections completed a few years after the incident, lacks limited probative valµe as to the lighting and maintenance of the subject landing at the thne of the incident. Gestetner v. Teitelbaum, 52 AD3d 778, 860 NYS2d 208 (2~<1 Dept., 2008). Given that. Defendap.t .Antonette' s h~s failed to satisfy its burden, the Court need not review the papers.in opposition to the motion further. Therefore, the motion .by Defendant Antbhette's is hereby dented in allrespects. See Streit v. DTDt, 302 AD2d 450, 753 NYS2d 749 (Mem) (2 nd Dept., 2003). Defendant· 290 Glen shall.file. and serve· a copy of the. within order with notice of entry .upon Plaintiff and. PefendaAt Antonettejs within. thirty (30) days from the date of this. order. 4 [* 4] 4 of 5 ------····--····-···-··· INDEX INDEX NO. NO. 605376/2017 605376/2017 FILED: NASSAU COUNTY CLERK 01/26/2021 09:52 AM NYSCEF DOC. DOC. NO. NO. 171 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 Thereafter, Plaintiff and Defonda11t A.ntonette's shall appear in the DCM Trial Pmi of Supreme Court, Nassau County, on April 26, 202 t, at 9:30 a.m, Finally, in light of the dismissal against Defendant 290 Glen as stated above, the caption is hereby arnended to read as follo,vs: "'ANNA GALLO, Plaintiff: against ANTONETTE'S OF EAST HILLS~ LLC d.ib/a ANTONETTE'S OF EAST HILLS, Defondant'' This hereby constitutes the decision and order of this Court ENTER ") ·'.::.O"" ) .,,., l· r).h" 'l'[''I) . :~. : .,ammry.1,), 1 · HON. ARTHUll M. IUAMONI) J.S.C. ENTERED Jan 26 2021 NASSAU COUNTY COUNTY CLERK"S OFFICE 5 [* 5] 5 of 5

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.