Camelio v. Shady Glen Owners' Corp.

• Decision Date: 22 October 2020
• Docket Number: Index 60248/2018E
• Citation: Camelio v. Shady Glen Owners' Corp., 2020 NY Slip Op 34813(U), Index 60248/2018E (N.Y. Sup. Ct. Oct 22, 2020)
• Parties: KATHLEEN CAMELIO and JULIUS CAMELIO, Plaintiffs, v. SHADY GLEN OWNERS' CORP., LIBRETT ESTATE GROUP INC., and DEBARTOLO LANDSCAPING, INC., Defendants. DEBARTOLO LANDSCAPING, INC., Third-Party Plaintiff, v. CITY of NEW ROCHELLE, Third-Party Defendant.
• Court: New York Supreme Court

2020 NY Slip Op 34813(U)

KATHLEEN CAMELIO and JULIUS CAMELIO, Plaintiffs, v. SHADY GLEN OWNERS' CORP., LIBRETT ESTATE GROUP INC., and DEBARTOLO LANDSCAPING, INC., Defendants.

DEBARTOLO LANDSCAPING, INC., Third-Party Plaintiff, v. CITY of NEW ROCHELLE, Third-Party Defendant.

Index No. 60248/2018E

Supreme Court, Westchester County

October 22, 2020

Unpublished Opinion

DECISION & ORDER

James W. Hubert Judge

Before the Court is the action commenced by the Plaintiffs, Kathleen Camelio and Julius Camelio (Camelios), to recover damages for personal injuries alleged to have been sustained on June 12 2018 when Ms. Camelio's foot was caught by a raised lip (the alleged defect) causing her to trip and fall in a crosswalk adjoining a private roadway identified as Shady Glen Court located in the City of New Rochelle (CNR). Co-plaintiff Julius Camelio, Ms. Camelio's husband, seeks recovery for loss of his wife's care, comfort, consortium and services.

It is alleged in the complaint that the roadway and crosswalk where the accident occurred was leased or privately owned by the Defendants Shady Glen Owners' Corp. (Shady Glen) and Librett Estate Group Inc. (Librett). It is alleged that they were responsible for the upkeep of both roadway and crosswalk.

Prior to the accident, on or about November of 2015, the Defendant/Third Party DeBartolo Landscaping, Inc. (DeBartolo) was contractually retained by Shady Glen and Librett to repair/resurface the roadway in question. In addition DeBartolo was tasked with removing snow and ice in the winter months leading up to the year of the alleged accident.

Starting May of 2020, a series of motions and cross-motions for summary judgment, pursuant to CPLR §3212, were filed by the various litigants. Motion Seq. No. 1 was filed by the Defendant and Third-Party Plaintiff DeBartolo Landscaping Inc. (DeBartolo) seeking an order and judgment dismissing Plaintiffs' complaint and unspecified cross-claims. Motion Seq. No. 2 was filed by the Shady Glen/Librett Defendants seeking an order and judgment dismissing Plaintiffs' complaint as well as unspecified cross-claims and counterclaims. Motion Seq. No. 3 was interposed by Third-Party Defendant City of New Rochelle (CNR) seeking dismissal of Third-Party Plaintiff DeBartolo's motion and complaint as well as unspecified counter claims against CNR. Motion Seq. No. 4 is a cross-motion by Plaintiffs Kathleen Camelio and Julius Camelio (Camelios) seeking, inter alia, an order and judgment granting summary judgment against DeBartolo. Motion Seq. No. 5 is a cross-motion by the Plaintiffs seeking an order and judgment against the Shady Glen/Librett Defendants as well as costs and sanctions. Motion Seq. No. 6 is a cross-motion filed by Defendant and Third-Party Plaintiff DeBartolo seeking an order and judgment granting summary judgment against the Plaintiffs and dismissal of unspecified cross-claims.

The standard for granting summary judgment is well established. The moving party must make a prima facie showing of entitlement to judgment as a matter of law. To do so, sufficient admissible evidence, demonstrating the absence of any material issues of fact, must be tendered. Alvarez v. Prospect Hosp, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986). Competing contentions of the parties must be viewed in a light most favorable to the non-moving party. De Lourdes Torres v. Jones, 26 A.D.3d 742, 763, 27 N.Y.S.2d 468 (2016). If the moving party meets its burden, the burden shifts to the non-moving party to establish, by admissible evidence, that there are disputed issues of material fact for trial. CPLR §3212(b); Zuckerman v. New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595 (1980). The non-moving party must produce evidence in the record and may not rely on conclusory statements or mere contentions. Nevertheless, if the moving party fails to sustain its burden, the Court need not address the adequacy or sufficiency of the opposing party's proof. Grant v. 132 W. 125 Co., LLC, 180 A.D.3d 1005, 120 N.Y.S.3D 345 (2d Dep't 2020). Furthermore, to the extent that the moving party relies upon weight of evidence considerations, it is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact. Rather it is the task of the Court to identify material triable issues of fact, or point to the lack thereof. Vega v. Restani Const. Corp, 18 N.Y.3d 499, 505, 942 N.Y.S.2d 13 (2012).

In a trip and fall case, whether a defendant had notice of a dangerous condition, actual or constructive, or had created the dangerous condition, the issue must be resolved by the tender of admissible proofs. See, Coelho v. S&A Neocronon, .Inc., 178 A.D.3d 662, 115 N.Y.S.3d 91 (2d Dep't 2019); Pryzywalney v. New York Tr. Autk, 69 A.D.3d 598, 892 N.Y.S.2d 181 (2d Dep't 2010); Shehata v. City of New York, 128 A.D.3d 944, 946, 10 N.Y.S.3d 265 (2d Dep't 2015). In a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence. Gani v. Ave. R Sephardic Congregation, 159 A.D.3d 873, 72 N.Y.S.3d 561 (2d Dep't 2018). A defendant has constructive notice of a dangerous condition when it is visible and apparent, and has existed for a sufficient length of time prior to the accident to permit the defendant (or its employees) the opportunity to discover and correct it. "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." Pryzywalney, supra at 598. Mere reference to general practices, without any evidence about specific cleaning or inspection of the area in question is insufficient to establish lack of constructive notice. See, Butts v. SJF, LLC, 171 A.D.3d 688, 68997 N.Y.S.3d 219 (2d Dep't 2019).

On the question of causation in a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the injured party cannot identify the cause of his or her fall. However, should the moving defendant fail to adequately establish, prima facie, that the plaintiff could not identify the cause of his or her fall, the right to summary judgment against the plaintiff is not established. Butts, supra.

CNR's Motion for Summary Judgment (Seq. No. 3)

The Defendant City of New Rochelle was brought into the case on or about July 24, 2019, by DeBartolo's interpleader complaint under CPLR §3011. In its complaint, DeBartolo alleges that some time prior to June 12, 2018, CNR performed paving work at or near the crosswalk at issue. The complaint does not specifically assign liability to CNR, but nevertheless seeks common law indemnity from CNR in the event liability is proven against DeBartolo.

CNR's answer to DeBartolo's third-party complaint denies DeBartolo's allegations, and asserts affirmative defenses under New Rochelle City Charter Article XII, section 127A, which section prevents CNR from being held liable for the Plaintiffs alleged injuries due to DeBartolo's failure to provide proof or existence of prior written notice.

On May 20, 2020, CNR moved for summary judgment against the Third-Party Plaintiff DeBartolo (Seq. No. 3). CNR seeks dismissal of DeBartolo's third-party complaint pursuant to CNR Charter Article XII, section 127A.

Scott Pickup, the Commissioner of Public Works for CNR, was deposed on January 13, 2020. He testified that he held that position since 2015. He further stated that he first learned about the June 12, 2018 accident when a FOIL request was made to CNR. In response, he personally made a search for street opening permits, utility cuts, excavations, construction, pothole repair permits and temporary patch permits within the location of the accident. No permits were found (deposition at pp. 54-56). Mr. Pickup also personally searched for any prior Article XII written notices and found none.

During questioning, he was shown a marked photograph of the Shady Glen roadway area at issue, and could see what appeared to be paving work done there. However, it was not the kind of work performed by CNR, and did not comport with CNR standards (deposition at p. 58). It "meandered" and was not a "milling pave" which would have had a "sharp delineated line." It was not "sealed" along the edge of the pavement and "elevation change" could be seen along the edge (deposition at pp. 54-56). Moreover, Mr. Pickup's search revealed no records of permits for the paving shown in the photograph. In all, he concluded that the work shown did not comport, and would not have comported, with CNR contract standards, and was not performed by CNR.

The New Rochelle City Charter Article XII. section 127A, in relevant terms, clearly states that: "No civil action shall be maintained against the city for damages or injuries to a person .. . sustained in consequence of any street sidewalk or crosswalk ... being defective, out of repair, unsafe, dangerous or obstructed ... unless written notice thereof, specifying the particular place, had actually been given to the Commissioner of Public Works prior to the happening of the event.. . and there was a failure or neglect by the city to repair or remove the defect, danger or obstruction . .. within a reasonable time after receipt of notice relating to it." Id. See, also, Caramanica v. City of New Rochelle, 268 A.D.2d 496, 702 N.Y.S.2d 351 (2d Dep't 2000); McCarthy v. City of White Plains, 54 A.D.3d 828, 830, 863 N.Y.S.2d 500 (2d...