Aguilar v. Boyd
| Decision Date | 01 October 2020 |
| Docket Number | Index 2018-52821 |
| Citation | 2020 NY Slip Op 34932 (U) |
| Parties | ANGELICA AGUILAR, Plaintiff, v. STOWE C. BOYD, SARAH H. BOYD, and LAUREN B. WEGEL, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Basch & Keegan, LLP Attorneys for Plaintiff
Marc A. Rousseau, Esq. Robert A. Peirce & Associates Attorneys for Defendants Stowe C. Boyd And Sarah H. Boyd
Cook Netter, Cloonan, Kurtz & Murphy, P.C. Attorneys for Defendant Lauren B. Wegel
Present: Hon. HAL B. GREENWALD Justice.
DECISION AND ORDER
The Court has reviewed the following documents in reaching the within Decision and Order.
On January 18, 2018 it is alleged that Plaintiff ANGELICA AGUILAR (AGUILAR) slipped and fell at the property known as 26 South Brett Street Beacon, New York (the Premises). It is further alleged that Defendants STOWE C. BOYD and SARAH H. BOYD (collectively BOYD) owned, operated and maintained the said Premises and that Defendant LAUREN B. WEGEL (WEGEL) leased and occupied said Premises.
The action was commenced by the filing of a Summons and Complaint on September 6, 2018. On October 4, 2018 WGEL interposed her Answer with denials, affirmative defenses and cross claim. The BOYD Defendants interposed their Verified Answer containing denials, affirmative defenses and cross claims on October 8, 2018. Discovery commenced and the Note of issue was filed on December 4, 2019. BOYD moved for Summary Judgment and dismissal of the complaint by Notice of Motion filed January 29, 2020; opposition was filed on February 14, 2020; said motion was adjourned to July 30, 2020 and BOYD's Reply was filed on July 29, 2020.
As set forth in Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957), summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of triable issues of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 [1978]; Di Menna & Sons v. City of New York, 301 N.Y.118 [1950]; Greenberg v. Bar Steel Constr. Corp., 22 N.Y.2d 210 [1968]; Barrett v. Jacobs, 255 N.Y.520 [1931]).
When a court decides a motion for summary judgment: (Esteve v. Abad, 271 A.D. 725 [1st Dept, 1947]).
Generally, the basis for determining summary judgment is that: "[T]he proponent of a summary judgment motion must make a prima facie case showing entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material fact." (Pullman v. Silverman, 28 N.Y.3d 1060 [2016], quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Further as stated in Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985), "Bare conclusory assertions..." are insufficient to cause the court to grant summary judgment.
For a summary judgment motion to be denied, the one opposing the motion must demonstrate the existence of facts that have a probative value that indicates there is an unresolved material issue. (See e.g. Piedmont Hotel Co. v. A.E. Nettleton Co., 263 N.Y. 25 [1933]). If the opposition can show there are questionable issues of fact that require a trial of the action, then summary judgment must be denied. In determining a motion for summary judgement, the court must look at the proof being offered in the light most favorable to the nonmoving party and then deny the motion when there is:….even arguably any doubt as to the existence of a triable issue'. (Baker v. Briarcliff School Dist., 205 A.D.2d 652 [2d Dept., 1994]).
Defendant BOYD's Motion for Summary Judgment is based upon their attorney's affirmation (NYSCEF Doc. No. 18) which is being used as a device to introduce deposition testimony of several parties to the litigation. Plaintiff AGUILAR's deposition was taken April 26, 2019 and her deposition testimony is unsigned. Defendant SARAH BOYD appeared for her deposition on the same day and her deposition is signed. Defendant WEGEL's deposition was taken also on the same day, and her deposition is also not signed. All three depositions were annexed to the affirmation of Marc A. Rousseau Esq., in support of BOYD's instant motion.
CPLR 3116 speaks to the signing of depositions and provides that the witness is to sign the deposition, but if the witness fails to do so and return the signed deposition within sixty days, "…it may be used as fully as though signed." It appears that neither Plaintiff, nor a Defendant signed their respective deposition transcripts, but that the unsigned transcripts may properly be utilized as attached to counsel's affirmation.
Typically, a motion for summary judgment is supported by an individual with personal knowledge of the alleged facts. However, as stated in Burgdorf v. Kasper, 83 A.D.3d 1553 (4thDep't, 2011), and the case at hand, the attorney affirmation is proper "as the vehicle for the submission of acceptable attachments [that] provide 'evidentiary proof in admissible form, '" such as the parties' depositions (Zuckerman, 49 N.Y.2d 557 [1980]; see, Matter of Perceptron, Inc. [Vogelsong], 34 A.D.3d 1215 [4th Dep't, 2006]; Grossberg Tudanger Adv. v. Weinreb, 177 A.D.2d 377 [1st Dep't, 1991]).
This would also be true for a party opposing a motion for summary judgment where the attorney affirmation annexes deposition testimony and other evidence instead of relying on affidavits of fact based upon personal knowledge (see, Olan v. Farrell Lines, 64 N.Y.2d 1092, [1982]; City of New York v. First Natl. Ins. Co. of Am., 79 A.D.3d 789 [2nd Dep't, 2010]; Enriquez v. B & D Dev., Inc., 63 A.D.3d 780 [2nd Dep't, 2009]). Similar holding was made in Roos v. King Constr., 179 A.D.3d 857 (Sup. Ct. Nassau, 2020). Accordingly, the instant motion for summary judgment is properly supported by an attorney affirmation with attached deposition testimony, as well as additional attached documentation.
The BOYD Co-defendants seek not only a dismissal of the Complaint filed by AGUILAR, but also a dismissal of the Cross Claims asserted by Defendant WEGEL. The BOYD defendants' position is that they are an out of possession landlord and do not owe a duty of care to the Plaintiff AGUILAR. BOYD avers that it is not disputed that BOYD does not reside at the premises; there is no claim that BOYD violated any statute by reason of their ownership of the premises; there is no claim that the lease between BOYD and WGEL caused BOYD to assume any duty towards AGUILAR and lastly BOYD's course of conduct as owner did not amount to an assumption of any duty to AGUILAR.
BOYD cites Alnashmi v. Certified Analytical Group, Inc. 89 A.D.3d 10 (2nd Dep't, 2011) where the appellate court reversed the lower court's denial of defendant landlord's motion for summary judgment. The Appellate Division concluded that Defendant CAGI established it was an out of possession landlord where the, . Plaintiff failed to raise a triable issue of fact and the Appellate Division granted summary judgment to the defendant and dismissed the complaint.
Alnashmi discussed the issues concerning premises liability that there must be a duty of care for there to be liability as to negligence. (See Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579[1994]). The existence and extent of a duty is a question of law (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 [2002]). The property owner may have liability based upon common law, statute, regulation or by a course of conduct or the terms of a lease. (Guzman v. Haven Plaza Hous. Dec. Fund, 69 N.Y.2d 559 [1987]).
Plaintiff claims she slipped and fell on ice on the front steps of the premises., and there is no other claim. Defendant WEGEL as tenant, occupies the subject premises pursuant to a written Lease Agreement (Lease) (NYSCEF Doc. No. 30) with SARAH BOYD, as landlord. The Lease is for an "Apartment", although there is no indication anywhere in any filed court papers that the lease was for anything other than the entire house. Paragraph 34 of the Addendum to the lease spells out the relative responsibility concerning "snow removal" as follows:
34. Yard maintenance will be landlord's responsibility and snow removal is tenant's responsibility including driveway and sidewalks, Landlord will be responsible for snow removal from porch roof as necessary.
BOYD contends that WEGEL is responsible for snow removal and that BOYD had no obligation or duty of care towards the Plaintiff. Plaintiff testified during her deposition (NYSCEF Doc. No. 26) that she saw ice on the third step from the bottom (pages 20/21); but did not remember if there was snow on the porch roof (page 26) or any water dripping from the porch roof (page 26). If there was any snow or ice on the steps, WEGEL had the obligation to clear it and had a duty of care towards the Plaintiff.
SARAH BOYD also gave deposition testimony (NYSCEF Doc. No. 28). She testified she purchased the premises as rental property in 2014 and in the intervening years (4) had removed snow from the porch roof only once (page 26) and had not received any complaints of snow or ice on the property or front steps (page 29). Further, as landlord, BOYD did not enter the premises for any inspections,...
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