Baulieu v. Ardsley Associates

• Decision Date: 16 June 2011
• Citation: 925 N.Y.S.2d 466,85 A.D.3d 554,2011 N.Y. Slip Op. 05196
• Parties: Rene BAULIEU, et al., Plaintiffs–Respondents,v.ARDSLEY ASSOCIATES, L.P., et al., Defendants–Appellants,Ardsley Realty Associates, LLC, et al., Defendants,Powerhouse Maintenance Inc., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 554

925 N.Y.S.2d 466

2011 N.Y. Slip Op. 05196

Rene BAULIEU, et al., Plaintiffs–Respondents,

v.ARDSLEY ASSOCIATES, L.P., et al., Defendants–Appellants,Ardsley Realty Associates, LLC, et al., Defendants,Powerhouse Maintenance Inc., Defendant–Respondent.

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

June 16, 2011.

Torino & Bernstein, P.C., Mineola (Vincent J. Battista of counsel), for appellants.Gorton & Gorton LLP, Mineola (John T. Gorton of counsel), for Baulieu respondents.Harris, King & Fodera, New York (Kevin J. McGinnis of counsel), for Powerhouse Maintenance Inc., respondent.ANDRIAS, J.P., FRIEDMAN, SWEENY, RENWICK, ROMÁN, JJ.

Order, Supreme Court, New York County (Doris Ling–Cohan, J.), entered October 13, 2010, which, in this trip and fall personal injury action, denied that branch of defendants ISJ Management Corp. (ISJ) and Ardsley Associates L.P.'s (Ardsley LP) motion for summary judgment dismissing the complaint and all cross claims as against ISJ; denied, with leave to renew, that branch of ISJ/Ardsley's motion seeking a change of venue from New York County to Westchester County; and granted defendant Powerhouse Maintenance Inc.'s (Powerhouse) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, Powerhouse's motion denied, and the complaint and cross claims reinstated as against it, and ISJ/Ardsley LP's motion for summary judgment as to ISJ and for a change of venue as to Ardsley LP, granted. The Clerk is directed to enter judgment dismissing the complaint and all cross claims as against ISJ.

Powerhouse contracted with Ardsley LP to perform “as-needed” repair work on Ardsley LP's strip mall parking lot. Plaintiff Rene Baulieu allegedly lost her balance as she stepped down from the mall sidewalk, into the parking lot, and her right foot came into contact with a “build-up” of asphalt, which abutted the curb and sloped sharply downward to the level of the parking area. Plaintiff was allegedly “pitched-forward” and inadvertently stepped into a pothole, which caused her injury.

We find that Powerhouse did not establish prima facie entitlement to summary judgment dismissing plaintiffs' claim, which was predicated upon the first exception in Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ( see generally Martorel v. Tower Gardens, Inc., 74 A.D.3d 651, 903 N.Y.S.2d 397 [2010] ); Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 781 N.Y.S.2d 110 [2004] ). Powerhouse never addressed the issue of the steep slope/macadam raised in plaintiffs' bill of particulars and deposition testimony, and Powerhouse's principals could not state with certainty whether Powerhouse had performed asphalt repair work in the area where plaintiff was injured.

In any event, even assuming, arguendo, Powerhouse had met such prima facie burden, the evidence proffered by ISJ/Ardsley LP and plaintiffs raised triable issues of fact whether the asphalt work performed by Powerhouse created an unreasonable risk of harm, or exacerbated a pre-existing hazardous condition ( see Church v. Callanan Indus., 99 N.Y.2d 104, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ). The affidavit of plaintiffs' expert engineer, which was submitted in opposition to Powerhouse's motion, opined that the macadam had a dangerous slope and violated certain specified local codes and regulations. The expert affidavit should have been considered on the motion, notwithstanding that plaintiffs failed to timely disclose information about the expert before filing their note of issue. On this record, we find no evidence that plaintiffs' belated disclosure of the expert information was willful, or that it prejudiced Powerhouse, inasmuch as the specifics of the alleged macadam defect, and the codes and regulations claimed...