Busweiler v. MCB P'Ship
| Decision Date | 13 September 2012 |
| Docket Number | No. 3060/2011.,3060/2011. |
| Citation | 961 N.Y.S.2d 356,2012 N.Y. Slip Op. 52054,37 Misc.3d 1216 |
| Parties | Dawnmarie BUSWEILER, Plaintiff, v. MCB PARTNERSHIP, James P. Millett, Robert John O'Connor and James D. Bannon, Defendants. |
| Court | New York Supreme Court |
Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows:
This is an action in personal injury stemming from an alleged trip and fall accident which occurred on July 19, 2010 on the sidewalk around the Blockbuster Video store located at 104A Temple Hill Road, New Windsor, New York at approximately 10:15 p.m.
Plaintiff alleged that upon exiting the video store in which she worked, she traversed a sidewalk which she claims contained concrete flagstones, one of which was raised significantly higher than the other which caused her to trip and fall, thereby sustaining injuries. She claims that it was the landlord's responsibility to properly maintain the sidewalk area and due to defendants' failure to do so, she tripped, fell and was caused injuries. Plaintiff alleges a lack of adequate lighting as an additional cause of her fall.
Defendants move for summary judgment claiming that they were out of possession landlords and therefore bore no responsibility for the accident scene, that they were never told of any hazardous condition giving rise to plaintiff's accident prior to the alleged accident date, that they lacked constructive notice of the condition at issue and that they did not create the condition itself.
To that end, defendants submit various deposition transcripts of the parties. Plaintiff testified that she never noticed the condition which allegedly caused her to trip and fall during the more than 300 times she previously traversed the area in question prior to her fall. She said that she never heard any complaints by customers or anyone concerning the condition at issue and she never reported any defective sidewalk condition herself. According to the deposition of one of the defendants, James Bannon, neither he, nor anyone else on defendants' behalf ever inspected the subject premises. He testified that he and his partners constructed the store and the parking area as well.
Plaintiff opposes the motion claiming that defendants constructed the premises and therefore failed to demonstrate that they did not create the condition. Plaintiff does not dispute the absence of any actual notice, but claims that due to the failure of defendants to inspect the subject premises, summary judgment must be denied. Moreover, plaintiff submits the affidavit of an investigator who took photographs which are alleged to represent the accident scene, as well as light meter readings from the location of the accident. Plaintiff further submits the report and CV of a professional engineer concerning the subject premises and its condition.
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.
According to the Court of Appeals, Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985); Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 (1993); Finkelstein v. Cornell University Medical College, 269 A.D.2d 114, 117 (1st Dept.2000).
It is well established that “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985); Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 (1993); Finkelstein v. Cornell University Medical College, 269 A.D.2d 114, 117 (1st Dept.2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by “pointing to gaps in its opponent's proof.” Kajfasz v.. Wal–Mart Stores, Inc., 288 A.D.2d 902, 902 (4th Dept.2001); Dodge v. City of Hornell Industrial Development Agency, 286 A.D.2d 902, 903 (4th Dept.2001); Frank v. Price Chopper Operating Co., Inc., 275 A.D.2d 940 (4th Dept.2000).
A party moving for summary judgment has the burden of submitting evidence, in admissible form, to support his motion. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v. M & M Auto & Marine Upholstery, Inc., 256 A.D.2d 551, 551 (2nd Dept.1998).
“In moving for summary judgment, the defendant [bears] the initial burden of establishing that it maintained its premises in a reasonably safe condition, had no actual or constructive knowledge of the [condition] and did not create the allegedly dangerous condition.” Petrell v. Victory Markets, Inc., 283 A.D.2d 955 (4th Dept.2001); Grant v. Radamar Meat, 294 A.D.2d 398, 398 (2nd Dept.2002); Atkinson v. Golub Corporation Company, 278 A.D.2d 905, 906 (4th Dept.2000).
The moving party's failure to meet this burden of proof “requires denial of the motion, regardless of the sufficiency of the opposing papers”, for the burden in that event never shifts to the opponent to demonstrate the existence of a material issue of fact. Winegrad v. New York University Medical Center, supra, 64 N.Y.2d at 853. The Second Department has repeatedly affirmed that the movant's failure in the first instance to demonstrate entitlement to the drastic relief of summary judgment mandates denial of the motion regardless of the sufficiency of the opposing papers. See, e.g., Miccoli v. Kotz, 278 A.D.2d 460, 461 (2nd Dept.2000); Karras v. County of Westchester, 272 A.D.2d 377, 378 (2nd Dept.2000); Fox v. Kamal Corporation, 271 A.D.2d 485 (2nd Dept.2000); Gstalder v. State of New York, 240 A.D.2d 541, 542 (2nd Dept.1997); Lamberta v.. Long Island Railroad, 51 A.D.2d 730, 730–731 (2nd Dept.1976); Greenberg v. Manlon Realty, Inc., 43 A.D.2d 968, 969 (2nd Dept.1974).
A landowner's responsibility is to assure that the conditions on his property are reasonably safe. Basso v. Miller, 40 N.Y.2d 233, 241 (1976); Comeau v. Wray, 241 A.D.2d 602, 603 (3rd Dept.1997); White v. Gabrielli, 272 A.D.2d 469, 469 (2nd Dept.2000); Rovegno v. Church of the Assumption, 268 A.D.2d 576, 576 (2nd Dept.2000); Kurshals v. Connetquot Central School District, 227 A.D.2d 593, 593 (2nd Dept.1996).
Specifically, the Basso Court stated that
[i]ndeed as the duty was so clearly stated in Smith v. Arbaugh's Rest. [152 U.S.App. D.C. 86, 469 F.2d 97, 100 [D.C.Cir.1972]]: “A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk”. Application of the single rule in the instant case exemplifies its good sense, for the duty of keeping the roads of Ice Caves Mountain in repair should not vary with the status of the person who uses them but, rather, with the foreseeability of their use and the possibility of injury resulting therefrom.
Basso, 40 N.Y.2d at 241, 352 N.E.2d at 872, 386 N.Y.S.2d at 568;Kurshals, 227 A.D.2d at 593, 643 N.Y.S.2d at 623 (2nd Dept.1996); Rovengno, 268 A.D.2d at 576, 703 N.Y.S.2d at 497 (2nd Dept.2000).
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