Barber v. Cornell Univ. Coop. Extension of Orange Cnty.
| Citation | 961 N.Y.S.2d 356,37 Misc.3d 1217,2012 N.Y. Slip Op. 52067 |
| Decision Date | 27 September 2012 |
| Docket Number | No. 4504/2011.,4504/2011. |
| Parties | Tami–Anne BARBER, Plaintiff, v. CORNELL UNIVERSITY COOPERATIVE EXTENSION OF ORANGE COUNTY, Orange County Agricultural Society and Orange County Fair, Inc., Defendants. |
| Court | United States State Supreme Court (New York) |
This is an action in personal injury stemming from an alleged trip and fall accident which occurred on July 26, 2010 in a barn/stall located on the Orange County Fairgrounds in Middletown, New York. Defendant Orange County Agricultural Society (“OCAS”) owns the property. Said defendant entered into a 99 year lease with the predecessor of defendant Cornell University Cooperative Extension of Orange County (“Cornell”) where Cornell was leased 1 acre of the 90 acre parcel. The lease encompassed two buildings, Buildings 1 and 2, and it was in Building 2 in which plaintiff allegedly tripped and fell. It is uncontroverted that the public was allowed in Building 2 to view the animals in the stalls contained in that building. The stalls contained pieces of wood on the floor extending 2–4 inches above the floor surface to contain hay placed in the stalls. While chasing after one of her children who entered one of the stalls to view the animals, the plaintiff tripped and fell over the wood containment boards extending up from the floor. Plaintiff testified that the lighting was poor at the time and in fac that there were only two lights that she recalled being on in Building 2. Plaintiff further stated that she did not see the board over which she tripped prior to the accident. Plaintiff stated that after the accident, she noticed the board and it was an ordinary wood color.
Cornell's witness testified that the board over which plaintiff allegedly tripped and fell was painted white to alert pedestrians of its existence, that the lighting was more than adequate and that there was nothing wrong with the board itself. Cornell takes that position that it was plaintiff who failed to watch where she was going, focused on retrieving her child, which caused her to trip and fall. In support of its motion, Cornell submits the affidavit of an expert engineer who opines that there were no code violations in Building 2, the lighting itself was more than adequate based upon light measurements he took almost 2 years after the accident, and essentially that plaintiff was the proximate cause of her own accident by not looking where she was going at the time.
OCAS cross-moves for summary judgment as against plaintiff and further moves for summary judgment as against Cornell on the cross-claims. With respect to OCAS's cross-motion as against plaintiff, that portion of the motion itself must be denied. CPLR § 3212(b) states in pertinent part that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.” The pleadings are a required part of the proof submitted in support of a motion for summary judgment. S.J. Capelin Assoc., Inc. v. Globe Manufacturing Corp., 34 N.Y.2d 338, 341 (1974). Failure to include pleadings in support of a motion for summary judgment requires that said motion be denied, regardless of the merits of the motion. Niles v. County of Chautauqua, 285 A.D.2d 988 (4th Dept.2001); Deer Park Assoc. v. Robbins Store, Inc., 243 A.D.2d 443 (2nd Dept.1997); Lawlor v. County of Nassau, 166 A.D.2d 692 (2nd Dept.1990); Somers Realty Corp., v. Big “V” Properties, Inc., 149 A.D.2d 581 (2nd Dept.1989); Freeman v. Easy Glider Roller Rink, Inc., 114 A.D.2d 436, 436–437 (2nd Dept.1985).
In Williams v. County of Genesee, 289 A.D.2d 1026 (4th Dept.2001), the Court held that the failure of a party to include a copy of the pleadings filed in the action in support of its cross-motion requires that summary judgment be denied regardless of the merits of the cross-motion. In DiSano v. KBH Construction Co., Inc., 280 A.D.2d 951 (4th Dept.2001), the Court explicitly held that defendant's failure to include a copy of its answer in its papers in support of its cross-motion was fatally defective and required denial of the cross-motion as a matter of law. Id. at 952;See, Nationwide Mutual Insurance Co. v. Piper, 286 A.D.2d 903 (4th Dept.2001); Gallagher v. TDS Telecom, 280 A.D.2d 991 (4th Dept.2001).
OCAS's cross-motion, if for no other reason, must be denied in its entirety for failure to comply with the CPLR's specific requirement that a such a motion for summary judgment be supported by the pleadings. Whether a cross-motion or a motion in chief, the requirement that pleadings be included in support thereof exists, and failure to do so is fatal.
Moreover, OCAS improperly cross-moved for summary judgment against plaintiff. The plaintiff was not the original moving party (Cornell was the original moving party). A cross-motion is deficient if it seeks affirmative relief, i.e. summary judgment, as against a nonmoving party. CPLR 2215 states in pertinent part that “At least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion demanding relief ...” (emphasis supplied). In Mango v. Long Island Jewish–Hillside Medical Center, 123 A.D.2d 843 (2nd Dept.1986), the Court held “A cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party ...” Id. at 844. Thus, OCAS's cross-motion as against plaintiff is procedurally defective and is denied.
OCAS's cross-motion for summary judgment seeking dismissal of the cross-claims of its co-defendants is granted without opposition. Cornell submitted no opposition whatsoever to OCAS's cross-motion on the cross-claims, and therefore OCAS's cross-motion is granted only as to the co-defendant's cross-claims.
The Court next turns its attention to Cornell's motion for summary judgment as against plaintiff. As a preliminary matter with respect to Cornell's expert, the Court will not consider his affidavit. The expert affidavit is replete with conclusory allegations and speculative opinions of an expert based upon an examination of the premises approximately two-years post-accident and photographs which themselves have not been authenticated. Therefore, there is no evidentiary predicate to demonstrate that the photographs are a fair and accurate representation of the premises as they existed on the date the accident occurred. As such, the photographs are without evidentiary value ( see generally, Pirie v. Krasinski, 18 AD3d 848, 850 (2nd Dept.2005); Fitzgerald v. Sears, Roebuck & Co., 17 AD3d 522 (2nd Dept.2005)).
Moreover, plaintiff's expert failed to indicate whether the lighting conditions he observed were the same as they were at the time of plaintiff's accident. Plaintiff testified that only two lights were working at the time. Plaintiff's expert's conclusions are based upon all of the lights working. There is no indication that the expert's inspection mirrored the conditions at the time of plaintiff's accident and therefore the affidavit lacks any evidentiary value.
Summary judgment is a drastic remedy that “should not be granted where there is any doubt as to the existence of a triable issue” (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted). Russell v. A. Barton Hepburn Hosp., 154 A.D.2d 796, 797 (3rd Dept.1989); See also, Mascots v. Oarlock, 23 A.D.2d 943, 944 (3rd Dept., 1965).
While summary judgment is an available remedy in some cases, its dire effects preclude its use except in “unusually clear” instances. Stone v. Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup.Ct., New York County,1941). “A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.' “ Danger v. Zea, 45 Misc.2d 93, 94, (Sup.Ct., Albany County, 1965), aff'd26 A.D.2d 729 (3rd Dept.1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or “fairly debatable,” summary judgment must be denied. Bayesian v. HF Horn, 21 A.D.2d 714 (1st Dept.1964); Jones v. County of Herkimer, 51 Misc.2d 130, 135 (Sup.Ct., Herkimer County, 1966); Town of Preble v. Song Mountain, Inc., 62 Misc.2d 353, 355 (Sup.Ct., Courtland County, 1970); See also, Sillman v. Twentieth Century–Fox Film Corporation, 3 N.Y.2d 395, 404 (1957). The drastic remedy of summary judgment is rarely granted in negligence cases since the very question of whether the defendant's conduct was indeed negligent is a jury question except in the most glaring cases. See, Johannsdottir v. Kohn, 90 A.D.2d 842 (2nd Dept .1982).
Courts are not authorized to try issues in a case, but rather to determine whether there is an issue to be tried. Esteve v. Abad, 271 A.D.2d 725, 727 (1st Dept.1947). Id.; Sillman, 3 N.Y.2d at 404.
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