Grossman v Bridgeview Holdings, LLC

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Grossman v Bridgeview Holdings, LLC 2021 NY Slip Op 33546(U) June 21, 2021 Supreme Court, Suffolk County Docket Number: Index No. 617323/2017 Judge: Joseph A. Santorelli 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. 617323/2017 FILED: SUFFOLK COUNTY CLERK 06/21/2021 11:34 AM NYSCEF DOC. NO. 97 1·•NA····1··.~ _,_, -G. RI ORI GI .. .. -·.,;. . .. SHORT FORMO FORM SHORT ' ' ' ' . . ' . t, ;~ RECEIVED NYSCEF: 06/21/2021 / ..& INDEX INDEX No. 617323/2017 617323/2017 ' CAL. No. 202000608OT 2020006080T NEW YORK YORK SUPREME SUPREME COURT COURT - STATE STATE OF NEW I.A.S. PART PART 10 - SUFFOLK LA.S. SUFFOLK COUNTY COUNTY. PRESENT: PRESENT: Hon. MOTION DATE 1/28/21 MOTION DATE ADJ. 2/25/21 ADJ. DATE DATE 2/25/21 Mot. Seq.# Seq. # 001 MG MG Mot. Seq.# 002 ,MG; MG; CASEDISP Seq. # 002 CASEDISP JOSEPH JOSEPH A. SANTORELLI SANTORELLI Justice Justice of of the Supreme Supreme Court Court ---------------------------------------------------------------X --------------------~--~-------------------~----------------~--X ' JORDAN JORDAN & LEVERRIER, LEVERRlER, P.C. Attorney Plaintiff' Attorney for Plaintiff 257 Pantigo Pantigo Road Road East Hampton, New New York York 1193 East Hampton, 119377 ,ALAN GROSSMAN, ALAN GROSSMAN, HOFFMAN HOFFMAN ROTH ROTH & MATLIN, MATLIN, P.C. P.C . .· Attorney Defendant/Third~Party Plaintiff Attorney for Defendant/Third-Party Plaintiff Bridgeview Bridgeview Holdings Holdings A venue, Suite Suite 1704 505 8th Avenue, New York, York, New New York York 10018 New Plaintiff, Plaintiff, - against against- - SMITH SMITH SOVIK SOVIK KENDRICK KENDRICK & SUGNOT SUGNOT Attorney Attorney for Third:..Party Defendant Defendant W.C.J.L., W.C.J.L., Inc. ., 50 Charles Lindbergh Blvd, Charles Lindbergh Blvd, Suite Suite 200 Uniondale, New Uniondale, New York York 11553 BRIDGEVIEW BRIDGEVIEW HOLDINGS, HOLDINGS, LLC , Defendant. Defendant. ----------------------------------------------·---------------X ,-------------------:.------- ------~--.~ --------'---~-----------X' BRIDGEVIEW HOLDINGS, HOLDINGS,LLC BRIDGEVIEW LLC Third-Party Plaintiff, Plaintiff, Third-Party against- againstW:C.J.L., INC., w:c.J.L., Third-Party Defendant. Defendant. Third-Party !! ---------·--------------------------------------------------X ----------~-------------------~~----~------------------------X [* 1] 1 of 4 FILED: SUFFOLK COUNTY CLERK 06/21/2021 11:34 AM NYSCEF DOC. NO. 97 INDEX NO. 617323/2017 RECEIVED NYSCEF: 06/21/2021 Grossman v Bridgview Bridgview Holdings Holdings Grossman Index No. 617323/2017 617323/2017 Index Page 2 Page2 Cause Order to Show Motion/ Order of Motion/ Notice of Upon summary judgment: Show Cause judgment : Notice motions for summary these motions read on these papers read following papers the following Upon the third-party by and 001) seq. 2020(mot. 2, supporting papers papers by defendant defendant Bridgeview Bridgeview Holdings Holdings LLC dated dated November November 2020(mot. seq. 001) and third-party and supporting Notice of defendant W.C.J.L. W.C.J.L. Inc. Inc. dated dated November November 6, 2020 2020 (mot. seq. seq. 002); 002) ; Notice of Cross Cross Motion Motion and and supporting supporting papers_; papers_; defendant 2021 (mot. seq. Answering Affidavits Affidavits and and supporting supporting papers dated February February 15, 2021( 202l( mot. mot. seq. 001) 001) and and January January 18. 18,2021 seq. 002); 002); papers dated Answering is it Other_; ; 002). and 001 seq. (mot. 2021 24. February Replying Affidavits and supporting papers dated February 24,2021 (mot. and 002). Other _; dated papers supporting and Affidavits Replying ORDERED that that these these motions consolidated for purposes purposes of of this this determination; determination; and and it is motions are consolidated ORDERED judgment ORDERED that that the the motion motion by defendant defendant Bridgeview Bridgeview Holdings Holdings for summary summary judgment ORDERED dismissing the complaint complaint against against it is granted; granted; and and it is further further dismissing judgment ORDERED that that the motion motion by third-party third-party defendant defendant W.C.J.L., W,C.J.L., Inc. for summary summary judgment ORDERED granted. is complaint third-party dismissing the third-party complaint granted. dismissing the Alan Grossman plaintiff Alan This action to recover damages for injuries injuries allegedly allegedly sustained sustained by plaintiff Grossman recover damages This is an action February 2, 2,2015, approximately 8:00 8:00 a.m., a.m., when when he slipped slipped and fell on ice while while walking walking from a 2015, at approximately on February New York. venue, Bohemia, parking office building building known known as 1650 Sycamore Sycamore A Avenue, Bohemia, New York. The The parking lot into an office property owned by defendant defendant Bridgeview Bridgeview Holdings, Holdings, LLC (Bridgeview). (Bridgeview). Prior Prior to the the accident, accident, property is owned removal at the Inc., for snow W.C.J.L., Inc., Bridgeview allegedly contracted contracted with defendant W.C.J.L., snow removal third-party defendant with third-party Bridgeview allegedly failing to properly premises. Plaintiff Plaintiff alleges alleges that that Bridgeview Bridgeview was negligent negligent in failing properly maintain, maintain, manage manage and premises. control the subject subject premises, premises, which which created created the alleged alleged hazardous hazardous condition condition on the the surface surface of of the the parking parking control plaintiff to slip that caused caused plaintiff slip and and fall. lot that that a storm grounds that the grounds Bridgeview summary judgment dismissing the complaint complaint on on the storm judgment dismissing moves for summary Bridgeview moves progress at the the time time of of the accident. accident. In support, support, Bridgeview Bridgeview submits submits the pleadings, pleadings, the plaintiffs plaintiff s was in progress deposition testimony, testimony, the the deposition deposition testimony testimony of of two two ofplaintifrs of plaintiffs employees, employees, and and the the deposition deposition deposition the day records from weather records testimony ofW.C.J.L.. .. Bridgeview Bridgeview also submits submits the certified weather from the day of of the the certified testimony ofW.C.J.L summary for moves also W.C.J.L. Bria. accident and the expert affidavit of a meteorologist, James Bria. W.C.J.L. also moves summary James expert affidavit of meteorologist, accident and dismissing the third-party third-party complaint complaint on the ground ground that that there there was was a storm storm in progress progress at the judgment dismissing · judgment submits W.C.J.L Bridgeview, by provided as time of the accident. In addition to the same submissions provided Bridgeview, W.C.J.L. submits submissions same the addition accident. time of expert affidavit affidavit of of a meteorologist, meteorologist, Wayne Wayne Mahar. Mahar. the expert used his ifhe recall if not recall did not 2015 he did February 2, 2015 Plaintiff he used work on February drove to work when he drove that when testified that Plaintiff testified noticed He precipitation. ongoing was there if windshield wipers. When he arrived, did recall if there ongoing precipitation. noticed recall not did he windshield wipers. When arrived, there was ice all over over the the parking exited his car and and walked walked slowly, slowly, looking looking at the the ground ground due due to parking lot. He exited there fall he his of cause the about details further any for the presence of He slipped and When asked further details about the cause of his asked When fell. and slipped He ice. of presence been ice. have been must have stated that awfully cold cold so it must was awfully that it was stated Plaintiff s employee, employee, Maria Maria Davanzo, Davanzo, testified testified that that she worked worked for plaintiff plaintiff and and that that plaintiff plaintiff Plaintiffs .. She called and and texted texted her her following following his fall at approximately approximately 8:00 a.m a.moo She left left the the house house to go to the office office called it lot parking the at When she arrived fresh snow snow on on the ground and and it was still snowing. snowing. When arrived the parking was still the ground was fresh there was and there Lisa Plaintiffss employee, occurred. Plaintiff had occurred. snowing and and she could could see that snow plowing plowing had employee, Lisa that snow was still snowing Purchaki, also testified testified that that it was was snowing snowing at the time time of of the the accident. accident. Purchaki, [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 06/21/2021 11:34 AM NYSCEF DOC. NO. 97 INDEX NO. 617323/2017 RECEIVED NYSCEF: 06/21/2021 Grossman v Bridgview Bridgview Holdings Holdings Grossman Index No. 617323/2017 617323/2017 Index Page 3 Patrick Caroleo Caroleo testified testified on behalf behalf of of Bridgeview. Bridgeview. He was the property manager for Bridgeview Bridgeview Patrick property manager on the date in question question and stated stated that that Bridgeview Bridgeview had a contract contract with with W.C.J.L. W.C.J.L. for snow snow removal removal on that that learned from plaintiff's employee that that plaintiff fallen. He recalled recalled that that there there was was an date. He learned plaintiff's employee plaintiff had fallen. ongoing storm storm at the time time of of the the accident. accident. He contacted contacted the owner owner of ofW.C.J.L., Wayne Cafariella, Cafariella, who W.C.J.L., Wayne ongoing advised that he was was present removing snow snow and ice but accident. advised present removing but did not see the accident. Bridgeview also submits submits admissible admissible weather weather data data and the affidavit affidavit of of its meteorological meteorological expert, expert, Bridgeview James Bria. Mr. Bria Bria opined, opined, to a reasonable reasonable degree degree of of meteorological meteorological certainty, certainty, that that at the time time of of James plaintiff's there was was an ongoing ongoing winter winter storm storm that that had had been since the start start of of the day and plaintiff's fall there been in progress progress since that the ice and snow snow plaintiff slipped on is consistent consistent with with the ongoing ongoing precipitation event that that day that plaintiff slipped precipitation event considering the snow, snow, sleet, sleet, freezing freezing rain, rain rain and drizzle. drizzle. considering Wayne Cafariella Cafariella of ofW.C.J.L. testified that, that, based invoice he kept kept from from the day of of the W.C.J.L. testified based on an invoice Wayne accident, he began snow removal removal at the premises continued snow snow removal removal until until 9:15 accident, began snow premises at 6:00 a.m. and continued While there, there, the precipitation changed from snow snow to rain rain but never ceased. ceased. There There were were 3 inches inches or a.m. While precipitation changed but never when he arrived. arrived. He returned returned at 11 11:45 2:00 p.m. address the ongoing ongoing conditions conditions and less when :45 a.m. and 2:00 p.m. to address additional 2 inches inches of of snowfall. snowfall. additional W.C.J.L. has also also submitted submitted the affidavit affidavit of of a meteorological meteorological expert, expert, Wayne Wayne Mahar, Mahar, who who opines, opines, W.C.J.L. within a reasonable reasonable degree degree of of medical medical certainty, certainty, that that the ice that that plaintiff slipped on was was the result result of of the plaintiff slipped within ongoing precipitation of snow snow and rain rain that that began night before ongoing precipitation of began the night before plaintiff's plaintiff's fall. cases involving involving snow snow and ice, a property owner is not liable unless In slip and fall cases property owner not liable unless he or she created the defect, defect, or had actual or constructive constructive notice of it (see Denardo AD3d 929, 929,943 created had actual notice of Denardo v Ziatyk, Ziatyk, 95 AD3d 943 NYS2d Dept 2012]; 2012]; Medina Corp., 69 AD3d AD3d 686, 686,895 Dept Medina v La La Fiura Fiura Dev. Corp., 895 NYS2d NYS2d 98 [2d Dept NYS2d 591 [2d Dept 2010]). Liability Liability can can be predicated only upon failure of of the defendant defendant to remedy remedy the the danger danger after after 2010]). predicated only upon the failure having actual actual or constructive constructive notice notice of of the condition condition (see Piacquadio Corp., 84 NY2d having Piacquadio v Recine Recine Realty Realty Corp., NY2d 967, 622 NYS2d NYS2d 493 [[1994]). 1994]). settled that that a landowner's landowner's duty to remedy remedy a dangerous dangerous condition condition caused caused by a storm storm is It is well settled suspended while while the storm storm is in progress reasonable time time after after it has has ceased ceased (see Popovits suspended progress and for a reasonable Popovits v New York City Hous. AD3d 657,981 657, 981 NYS2d Dept. 2014]; 2014]; Alers New York Hous. Auth., Auth., 115 AD3d NYS2d 562 [2d Dept. Alers v La La Bonne Bonne Vie AD3d 698, 698,863 Dept. 2008]. 2008]. Generally, Generally, there there is no duty duty to warn warn of of icy Org., 54 AD3d 863 NYS2d NYS2d 750 [[2d 2d Dept. conditions during during a storm storm in progress Wheeler v Grande'Vie Grande'Vie Senior Community, 31 AD3d AD3d conditions progress (see Wheeler Senior Living Living Community, Dept 2006]). 2006]). A defendant defendant employing employing the storm storm in progress defense on 992, 819 NYS2d NYS2d 188 [3d Dept progress defense summary judgment must show show a prima entitlement to judgment that defense, defense, and, if if that that summary judgment must prima facie entitlement judgment based based on that burden opponent of of the motion motion must must come come forward forward with with competent, competent, admissible admissible evidence evidence burden is met, the opponent establishing the existence existence of of a triable triable issue issue of of fact as to whether whether the precipitation storm in establishing precipitation from the storm progress cause of of the the accident accident (see Baker Christopher's Inn, AD3d 652, 29 progress was not the cause Baker v St. Christopher's Inn, Inc., Inc., 138 AD3d NYS3d Dept. 2016]; 2016]; Meyers Six Towers, Towers, Inc. AD3d 877,925 877, 925 NYS2d Dept Meyers v Big Big Six Inc. 85 AD3d NYS2d 607 [2d Dept NYS3d 439 [2d Dept. 2011]). 2011]). Bridgeview and and W.C.J.L. W.C.J.L. have have each each made made a prima showing of of entitlement entitlement to Here, Bridgeview prima facie showing matter of of law law by demonstrating demonstrating that that the storm storm was in progress time of of plaintiff's · judgment judgment as a matter progress at the time plaintiff's [* 3] 3 of 4 INDEX NO. 617323/2017 FILED: SUFFOLK COUNTY CLERK 06/21/2021 11:34 AM NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 06/21/2021 Grossman Grossman v Bridgview Bridgview Holdings Holdings Index No. 617323/2017 617323/2017 . Index Page4 Page 4 Testimony from from Patrick Patrick Caroleo, Caroleo, Wayne Wayne Cafariella, Cafariella, Maria Maria Davanzo, Davanzo, Lisa Lisa Purchacki Purchacki and and the the expert expert fall. Testimony affidavits affidavits of Of James James Bria Bria and and Wayne Wayne Mahar Mahar indicate indicate that that the storm storm was was in progress progress when when plaintiff plaintiff fell. sufficient to shift shift the the burden burden plaintiff timing of the storm CPLR32l2[b]; proof is sufficient to plaintiff as to the timing of the storm (see CPLR3212[b]; The proof . . Baker Christopher's Inn, supra). . Baker v St. Christopher's Inn, Inc., Inc.,supra). ' . opposition, plaintiff plaintiff contends contends that that there there is a question question of of fact as to whether whether he slipped slipped and and fell In opposition, .. In support, support, plaintiff submits certified certified weather weather reports reports and and the the affidavit affidavit of of its expert expert . plaintiff submits on old ice .. meteorologist, Harvey Harvey Sands. Sands. Mr; Sands Sands opines opines that thatthe upon which which plaintiff plaintiff fell formed formed as a result· result the ice upon meteorologist, of the substantial substantial snowfall snowfall on January January 27; and that that the the ice "likely" "likely" formed formed because the snow snow was was . of 27, and because the incompletely removed, removed, "or" "or" rettirried returriedwith drifting on the 28thth,• "or'~ "or,i the the large large snow snow piles piles rrielted melted and and then then with drifting incompletely refroze refroze into ice. as Plaintiff Plaintiff has failed failed to raise raise a triable triable issue issue of of fact as to whether whether precipitation: precipitation from from a storm storm other other than Alers vLaBonne supra} The than the storm storm in progress progress .was was the the cause cause of of his fall (see Alers v LaBonne Vie Org., supra). The Court Court . · notes notes that that the opinion opinion of of the the plaintiff's plaintiff's expert expert is speculative. speculative. No No testimony testimony supports supports the the contention contention that that prior to the the storm storm in question. plaintiff plaintiff slipped slipped on on ice that that existed existed prior question. Plaintiff Plaintiff and and his employee, employee, Maria. Maria. Davanzo, both both testified testified that that they they were were last in the parking parking lot lot the the Saturday Saturday before before this this Monday Monday morning morning Davanzo, accident accident and and neither neither recalled recalled any pre'."existing pm-existing ice. Furthermore, Furthermore, plaintiff plaintiff has has not not provided provided the Court Court with with further affidavit affidavit to indicate indicate the the presence presence ofpre-existing of pre-existing ice to to support support his his opposition. opposition. Accordingly, Accordingly, the a further judgment dismissing th~ complaints motions by Bridgeview Bridgeview and and W.C.J.L W.C.J.L for for summary summary judgment dismissing the complaints against against them them are motions ~~. grant~d. . . Dated: . JUH JUH 2 2.1J 2 2021 0 Z J H O HO~LLI~ L L I J.S.C. J.S.C. X FINAL FINAL DISPOSITION DISPOSITION NON-FINAL NON-FINAL. DISPOSITION DISPOSITION I [* 4] 4 of 4

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