Hangan v Edgewater Park Owners Coop. Inc.
Annotate this CaseDecided on May 13, 2021
Supreme Court, Bronx County
Jennifer Hangan, Plaintiff,
against
Edgewater Park Owners Cooperative Inc., et al., Defendants.
31819/2019E
Adrian Armstrong, J.
In this personal injury action, plaintiff Jennifer Hangan was allegedly injured when she tripped and fell at approximately 8:30 p.m. on August 31, 2019 within a field at a location known as the Edgewater Park Community entranceway to the community abutting the Throgs Neck Expressway in the County of Bronx, City and State of New York. Plaintiff claims she was caused to trip and fall in some type of drain, ditch, hole, and/or depression, that the lighting in the area was poor, and that as a result, she sustained personal injuries.
Plaintiff brought the instant action against the Edgewater Park Owners Cooperative (EPOC), its Board of Directors (BDEPOC), Athletic Association (EPAA), and Edgewater Park Volunteer Hose Co. No. 1 Inc. (EPVH). Plaintiff also named the EPOC Beach Association and Social and Welfare Association, neither of which has appeared in this matter.
In motion sequence 001, defendant, EPVH, moves for summary judgment, pursuant to CPLR §3212, dismissing all claims and cross-claims as a matter of law; dismissing plaintiff's claim against EPVH for plaintiff's failure to file a notice of claim pursuant to General Municipal Law §§50e, 50h, and 50i; for plaintiff's failure to meet a condition precedent to the commencement of a lawsuit based upon her failure to appear for a hearing pursuant to General Municipal Law §50-h; and granting defendant, EPVH Inc's, cross-claims for contribution and common law indemnification against the answering co-defendants; and assessing costs and/or sanctions against plaintiff and co-defendants for maintaining a frivolous lawsuit against defendant, EPVH.
Plaintiff cross-moves, requesting an order pursuant to CPLR 3025 that this Court permits plaintiff to file and serve an amended verified complaint, solely to correct the date of the accident, which was August 30, 2019, and not August 31, 2019 as mistakenly set forth in the verified complaint. Plaintiff also opposes movant's motion on the ground that the motion is premature as there has been no discovery.
The movant, EPVH, asserts that it is a volunteer fire department and since plaintiff failed to properly serve EPVH with a Notice of Claim, it never had the opportunity to demand and thereafter, conduct plaintiff's hearing pursuant to GML section 50(h). EPVH further asserts in an affidavit through its Chief, Brian Kelly, that it had no involvement with the location of plaintiff's alleged accident or the event that was taking place on the day of said accident. EPVH submits in support of its motion the various pleadings and communications between EPVH and the other parties. EPVH argues that there is no evidence that it owned, leased, operated, maintained, caused, created, or was otherwise responsible for the property where plaintiff claims she fell. Additionally, EPVH also submits plaintiff's Expert Witness Disclosure, which includes a six-page report from Douglas W. Peden R.A, an architect. Plaintiff's disclosure informed the parties that Mr. Peden would testify as to, inter alia, the cause of the accident and render his opinion regarding negligence. Peden's report, dated May 19, 2020, which was based upon his site investigation, concluded that defendant EPOC failed to maintain the lawn, creating a dangerous condition that "caused [plaintiff] to fall and be injured." Nowhere in plaintiff's own expert's report is any liability placed on defendant, EPVH.
While the other opposing defendants only oppose EPVH's motion to the extent that EPVH asks for common law indemnification, contribution and sanctions, all maintain that the summary judgment motion is premature.
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 in admissible form to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). Once this showing has been made, however, 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 (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In opposition, plaintiff argues that EPVH has no official capacity, is not a fire district and therefore no Notice of Claim is required. The bulk of plaintiff's opposition to EPVH's motion is spent on the Notice of Claim argument and that by virtue of EPVH's limited, non-responsive discovery response, the plaintiff doesn't know what EPVH's duties and responsibilities are. Arguing that such knowledge and information are essential and solely within this defendant's possession, plaintiff asserts that it is very likely that EPVH, as a private corporation, agreed to accept, orally or in writing, a duty to inspect the subject premises, to ensure safety before and during events, to maintain proper lighting protocols, or to close the event at dusk since no lighting was provided to the invited guests in a field laden with culverts, holes and gullies of which all defendants herein were very well aware. Plaintiff argues that there aren't enough fires and car accidents within Edgewater Park to justify EPVH'S existence, if that is their only responsibility. Plaintiff contends that it stands to reason that this private entity, operating on private land, would have some duties and responsibilities to the private citizens and their formally invited guests from which they derive their income, akin to a private security firm. Plaintiff also contends that through further discovery she will establish who was present, and [*2]how and whether they are liable for negligence.
This Court agrees with plaintiff that it was not required to file a notice of claim against EPVH pursuant to General Obligations Law 50-I (1), because EPVH is not a city, a county, a town, a village, a fire district, nor a school district. There is no requirement that a notice of claim be served upon EPVH which is a private non-profit volunteer fire company and not a public agency, a public benefit corporation, a municipal corporation a fire district nor public entity of any kind. WPVH does not refute its status as a private non-profit, all volunteer fire department.
However, by virtue of plaintiff's own submission, defendant EPVH has demonstrated an entitlement to judgment as a matter of law. Most notable is the report of plaintiff's own expert witness whose report informed the parties with a reasonable degree of certainty that EPOC was the party negligent in maintaining the lawn.
The opposing parties also failed to demonstrate that the motion was premature. Pursuant to CPLR 3212 (f), the court may deny a motion for summary judgment if "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." The contention that further discovery may yield some evidence of fault on the movant's part is speculative and therefore insufficient to rebut the presumption. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment (see Costaneda v DO & CO New York Catering, Inc., 144 AD3d 407 [1st Dept 2016]). A litigant seeking to avoid summary judgment on the ground that discovery has not been conducted must provide an evidentiary basis demonstrating that discovery may lead to relevant evidence or that the facts essential to opposing the motion are in the movant's exclusive knowledge and control (see CPLR 3212 [f]; Medina v Rodriguez, 92 AD3d 850, 851 [2012]; Hill v Ackall, 71 AD3d 829, 830 [2010]). The plaintiff and opposing defendants made no such showing. Given plaintiff's own expert report, it is unlikely that there will be any evidence uncovered that will uncover relevant evidence about EPVH, even if such matters are exclusively in EPVH's control.
EPVH also seeks costs and sanctions against plaintiff and co-defendants for allegedly maintaining a frivolous lawsuit. A court may, in its discretion, award to any party costs in the form of reimbursement for expenses reasonably incurred and reasonable attorneys' fees resulting from "frivolous conduct," which includes: (1) conduct completely without merit in law, which cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) conduct undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; and (3) the assertion of material factual statements that are false (22 NYCRR 130-1.1[a], [c] [3]). The court may also award financial sanctions on the same grounds (22 NYCRR 130-1.1[b]).
In determining whether conduct is frivolous, the court shall consider "the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel" (22 NYCRR 130-1.1 [c]). Here, this court doesn't find any party engaged in frivolous conduct. Accordingly, since no frivolous conduct occurred, there is no basis for the imposition of a monetary sanction upon the plaintiff's and co-defendants' counsel (see 22 NYCRR 130-1.1).
Plaintiff's cross motion, pursuant to CPLR 3025(b), seeks leave to file and serve an amended verified complaint to correct a mistake as to the date of this accident. The actual accident date was August 30, 2019, not August 31, 2019 as was set forth in the original verified complaint. Since no prejudice will occur to correct the date of the accident and there is no opposition thereto, plaintiff's motion to amend her verified complaint, shall be granted.
In motion sequence 002, plaintiff seeks a default judgment against the defaulting defendants Edgewater Park Beach Association Inc., and Edgewater Park Social and Welfare Association. Neither defendant has appeared, answered, moved or in any way responded to the summons and verified complaint. Additionally, these two defendants have not responded to the motion for a default judgment. As such, plaintiff's motion for a default judgment against Edgewater Park Beach Association Inc. and Edgewater Park Social and Welfare Association is granted on default pursuant to CPLR 3215.
Accordingly, it is
ORDERED that defendant Edgewater Park Volunteer Hose Co. No. 1 Inc.'s motion for summary judgment is granted and the complaint and crossclaims are hereby severed and dismissed as against it, and the clerk is directed to enter judgment accordingly; and it is further
ORDERED that defendant Edgewater Park Volunteer Hose Co. No. 1 Inc.'s motion for costs and sanctions is denied; and it is further
ORDERED that plaintiff's cross-motion to file and serve an amended verified complaint to correct the date of the accident is granted; and it is further
ORDERED that plaintiff shall, within 20 days from service of a copy of this order with notice of entry, serve the verified complaint so amended upon defendants and file same with the Court with proof of service; and it is further
ORDERED that the plaintiff's motion for a default judgment against Edgewater Park Beach Association Inc. and Edgewater Park Social and Welfare Association, is granted. The action against the remaining defendants is severed and an assessment of damages against the defaulting defendants will be determined at the time of trial.
This is the Decision and Order of the Court.
Dated: May 13, 2021
Adrian Armstrong, A.J.S.C.
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