Abrams v. Berelson

CourtNew York Supreme Court — Appellate Division
Writing for the CourtPETER B. SKELOS
Citation2012 N.Y. Slip Op. 02618,94 A.D.3d 782,942 N.Y.S.2d 132
Decision Date10 April 2012
PartiesJay ABRAMS, et al., respondents, v. Suzanne BERELSON, appellant.

2012 N.Y. Slip Op. 02618
94 A.D.3d 782
942 N.Y.S.2d 132

Jay ABRAMS, et al., respondents,
v.
Suzanne BERELSON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 10, 2012.


[942 N.Y.S.2d 133]

Fishman & Tynan, Merrick, N.Y. (John Fishman of counsel), for appellant.

Michael Ian Black, New York, N.Y. (Jeffrey I. Klein of counsel), for respondents.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

[94 A.D.3d 782] In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated August 23, 2010, as granted the plaintiffs' motion, denominated as one pursuant to CPLR 5015(a)(2) to vacate an order of the same court (Ponterio, J.), dated August 30, 2000, granting her motion for summary judgment dismissing the complaint, but which was, in actuality, a motion pursuant to CPLR 2221 for leave to renew the plaintiffs' opposition to her motion for summary judgment dismissing the complaint, and, upon renewal, in effect, vacated the order dated August 30, 2000, and thereupon, denied her motion for summary judgment dismissing the complaint.

ORDERED that the order dated August 23, 2010, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 2221 is denied, and the order dated August 30, 2000, is reinstated.

The defendant hired the plaintiff Jay Abrams (hereinafter the injured plaintiff) and his coworker, Michael Torres, through their employer, to clean the carpets of a house that she owned and that, until her mother's death two months earlier, had been occupied exclusively by her mother. According to the plaintiffs, the defendant instructed the injured plaintiff and Torres that any remaining property in the house could be kept by them, [94 A.D.3d 783] discarded as trash, or donated to charity. The plaintiffs alleged that, in the course of performing the work, Torres discovered a loaded rifle in one of the closets he was cleaning, and accidentally shot the injured plaintiff.

The injured plaintiff and his wife, suing derivatively, commenced the instant action against the defendant. The defendant then moved for summary judgment dismissing the complaint and, in support of her motion, submitted an affidavit in which she averred that she was not aware that there was a rifle in the house. At the time that the defendant's summary judgment motion was made, the plaintiffs were unable to locate Torres and, thus, could not

[942 N.Y.S.2d 134]

obtain an affidavit from him regarding the circumstances surrounding the accident and his discovery of the gun. In an order dated August 30, 2000, the Supreme Court granted the motion, concluding that the defendant had met her prima facie burden and that the plaintiffs failed to raise a triable issue of fact as to actual or constructive notice. This Court affirmed the order ( see Abrams v. Berelson, 283 A.D.2d 597, 725 N.Y.S.2d 81).

More than nine years later, the plaintiffs moved, pursuant to CPLR 5015(a)(2), to vacate the order on the ground of newly-discovered evidence, which motion was properly treated by the Supreme Court as one pursuant to CPLR 2221 for leave to renew the plaintiffs' opposition to the defendant's motion for summary judgment dismissing the complaint. In support of the motion to renew, the plaintiffs submitted, among other things, an affidavit from Torres. Torres averred that, in the course of his work at the defendant's house, he saw a box leaning against the back wall of a closet, labeled “Daisy air rifle b.b. gun,” and that it was “impossible” for a person looking in the closet to fail to see the box. Torres averred that “[i]n the box, and, in plain sight, was a rifle.” Notably, although Torres's affidavit was originally written to indicate that the rifle was found outside the box and leaning against it, Torres inserted handwritten changes to the affidavit to clarify that the gun was inside the box. On the basis, inter alia, of this new evidence, the Supreme Court granted the plaintiffs' motion to renew their opposition to the defendant's summary judgment motion, vacated its prior order, and denied the defendant's motion.

The Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2] ) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]; see [94 A.D.3d 784] Matter of Choy v. Mai Ling Lai, 91 A.D.3d 772, 936 N.Y.S.2d 564; Barnett v. Smith, 64 A.D.3d 669, 670, 883 N.Y.S.2d 573). Under the circumstances of this case, the plaintiffs' submissions were insufficient to demonstrate a reasonable justification for failing to present the new evidence on the prior motion ( see CPLR 2221 [e][3]; Mount Sinai Hosp. v. Country Wide Ins. Co., 85 A.D.3d 1136, 926 N.Y.S.2d 306; Lardo v. Rivlab Transp. Corp., 46 A.D.3d 759, 759–760, 848 N.Y.S.2d 337). Many of the efforts made by the plaintiffs and other individuals to locate Torres, which are relied upon by the dissent, occurred after the defendant's motion for summary judgment was decided, and, therefore, do not constitute reasonable justification for their failure to present Torres' affidavit “on the prior motion” (CPLR 2221[e][3] ). Moreover, the plaintiffs, who did not move to vacate the judgment until six months after locating Torres, failed to meet their “heavy burden” of showing due diligence in presenting the new evidence to the Supreme Court once it was obtained ( Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840; see Cannistra v. Gibbons, 224 A.D.2d 570, 572, 639 N.Y.S.2d 48; Ramsco, Inc. v. Riozzi, 210 A.D.2d 592, 593, 619 N.Y.S.2d 809; Levitt v. County of Suffolk, 166 A.D.2d 421, 422–423, 560 N.Y.S.2d 487 [plaintiff failed to proffer a sufficient explanation for the six-month delay in seeking to vacate the prior judgment] ).

In any event, even if the plaintiffs had demonstrated the requisite reasonable justification, denial of the motion would have been warranted because the allegedly new facts offered would not have

[942 N.Y.S.2d 135]

changed the prior determination ( see CPLR 2221[e][2]; Matter of Choy v. Mai Ling Lai, 91 A.D.3d 772, 936 N.Y.S.2d 564). “A defendant who moves for summary judgment in a premises liability case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” ( Bloomfield v. Jericho Union Free School Dist., 80 A.D.3d 637, 638, 915 N.Y.S.2d 294; see Aguirre v. Paul, 54 A.D.3d 302, 862 N.Y.S.2d 580; Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 792 N.Y.S.2d 123). This Court concluded on the prior appeal that the defendant met her prima facie burden of demonstrating that she did not create the dangerous condition, and did not have actual or constructive notice of the presence of the rifle in the closet ( see Abrams v. Berelson, 283 A.D.2d at 598, 725 N.Y.S.2d 81). Torres' affidavit would not have changed the result of the summary judgment motion because, contrary to the plaintiffs' contention, it did not raise a triable issue of fact as to the defendant's constructive notice of a dangerous condition.

A defendant has constructive notice of a dangerous condition when the condition “is visible and apparent, and has existed for [94 A.D.3d 785] a sufficient length of time before the accident that it could have been discovered and corrected” ( Dennehy–Murphy v. Nor–Topia Serv. Ctr., Inc., 61 A.D.3d 629, 629, 876 N.Y.S.2d 512; see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774; Larsen v. Congregation B'Nai Jeshurun of Staten Is., 29 A.D.3d 643, 815 N.Y.S.2d 187). Although the presence of a loaded gun may constitute a dangerous condition, under the circumstances of this case, the mere presence of a gun in the defendant's house was not sufficient to establish, as a matter of law, the defendant's liability founded on the presence of a dangerous condition, absent proof that the defendant had actual or constructive knowledge that the gun was loaded ( see Yusko v. Remizon, 280 App.Div. 637, 639, 116 N.Y.S.2d 922; Napiearlski v. Pickering, 278 App.Div. 456, 457–458, 106 N.Y.S.2d 28). Thus, to establish the defendant's liability, the plaintiffs ultimately would be required to show not only that the defendant had constructive notice of the presence of the rifle, but constructive notice that the rifle was loaded ( see Yusko v. Remizon, 280 App.Div. at 639, 116 N.Y.S.2d 922; see also Napiearlski v. Pickering, 278 App.Div. at 457–458, 106 N.Y.S.2d 28).

The plaintiff failed to raise a triable issue of fact in that regard. Torres' affidavit merely established that there was a box in the closet labeled “Daisy air rifle B.B. gun,” which contained a .22 caliber rifle, and that one could not look into the closet without noticing the box. Even if Torres's affidavit, along with the defendant's deposition testimony that, when she was a child, her father owned a gun which she knew about, was sufficient to establish a triable issue of fact as to the defendant's constructive notice that the box contained a rifle, there was no evidence that the defendant knew or had any reason to know that the rifle in the box was loaded ( see Yusko v. Remizon, 280 App.Div. at 639, 116 N.Y.S.2d 922; cf. Gill v. Falkowski, 69 A.D.2d 934, 935, 415 N.Y.S.2d 295). Further, under the circumstances of this case, involving the injured plaintiff and Torres, adults who were no less able to assess and appreciate the danger of a weapon than the defendant, and the need to treat a weapon with the utmost...

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  • In re Carey
    • United States
    • United States State Supreme Court (New York)
    • April 24, 2014
    ...166 A.D.2d 421, 423, 560 N.Y.S.2d 487;see Specialized Realty Servs., LLC [ ], 106 A.D.3d at 988, 966 N.Y.S.2d 148;Abrams v. Berelson, 94 A.D.3d 782, 784, 942 N.Y.S.2d 132;Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840)” ( Davi, 116 A.D.3d at ––––, 983 N.Y.S.2d 57......
  • Davi v. Occhino
    • United States
    • New York Supreme Court Appellate Division
    • April 2, 2014
    ...421, 423, 560 N.Y.S.2d 487;see Specialized Realty Servs., LLC v. Town of Tuxedo, 106 A.D.3d at 988, 966 N.Y.S.2d 148;Abrams v. Berelson, 94 A.D.3d 782, 784, 942 N.Y.S.2d 132;Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840). In support of that branch of the plainti......
  • Mortg. Elec. Registration Sys., Inc. v. Congregation Shoneh Halochos, 2019–04735
    • United States
    • New York Supreme Court Appellate Division
    • December 2, 2020
    ...at the time the Congregation's motion was made (see Singh v. Weisberg , 178 A.D.3d 873, 874, 111 N.Y.S.3d 860 ; Abrams v. Berelson , 94 A.D.3d 782, 784, 942 N.Y.S.2d 132 ; Beyl v. Franchini , 37 A.D.3d 505, 506, 829 N.Y.S.2d 699 ). In any event, the additional affidavits of service would no......
  • City of N.Y. v. State Pub. Emp't Relations Bd.
    • United States
    • New York Supreme Court Appellate Division
    • December 27, 2012
    ...sound discretion of the trial court ( see Johnson v. State of New York, 95 A.D.3d 1455, 1456, 944 N.Y.S.2d 348 [2012];Abrams v. Berelson, 94 A.D.3d 782, 787–788, 942 N.Y.S.2d 132 [2012],appeal dismissed19 N.Y.3d 949, 950 N.Y.S.2d 96, 973 N.E.2d 193 [2012] ). Renewal can be based upon, among......
  • Request a trial to view additional results
20 cases
  • In re Carey
    • United States
    • United States State Supreme Court (New York)
    • April 24, 2014
    ...166 A.D.2d 421, 423, 560 N.Y.S.2d 487;see Specialized Realty Servs., LLC [ ], 106 A.D.3d at 988, 966 N.Y.S.2d 148;Abrams v. Berelson, 94 A.D.3d 782, 784, 942 N.Y.S.2d 132;Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840)” ( Davi, 116 A.D.3d at ––––, 983 N.Y.S.2d 57......
  • Davi v. Occhino
    • United States
    • New York Supreme Court Appellate Division
    • April 2, 2014
    ...421, 423, 560 N.Y.S.2d 487;see Specialized Realty Servs., LLC v. Town of Tuxedo, 106 A.D.3d at 988, 966 N.Y.S.2d 148;Abrams v. Berelson, 94 A.D.3d 782, 784, 942 N.Y.S.2d 132;Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840). In support of that branch of the plainti......
  • Mortg. Elec. Registration Sys., Inc. v. Congregation Shoneh Halochos, 2019–04735
    • United States
    • New York Supreme Court Appellate Division
    • December 2, 2020
    ...at the time the Congregation's motion was made (see Singh v. Weisberg , 178 A.D.3d 873, 874, 111 N.Y.S.3d 860 ; Abrams v. Berelson , 94 A.D.3d 782, 784, 942 N.Y.S.2d 132 ; Beyl v. Franchini , 37 A.D.3d 505, 506, 829 N.Y.S.2d 699 ). In any event, the additional affidavits of service would no......
  • City of N.Y. v. State Pub. Emp't Relations Bd.
    • United States
    • New York Supreme Court Appellate Division
    • December 27, 2012
    ...sound discretion of the trial court ( see Johnson v. State of New York, 95 A.D.3d 1455, 1456, 944 N.Y.S.2d 348 [2012];Abrams v. Berelson, 94 A.D.3d 782, 787–788, 942 N.Y.S.2d 132 [2012],appeal dismissed19 N.Y.3d 949, 950 N.Y.S.2d 96, 973 N.E.2d 193 [2012] ). Renewal can be based upon, among......
  • Request a trial to view additional results

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