Castillo v. Doaba Malwa, Inc.

• Docket Number: Index No. 502778/2021,Motion Seq. No. 1,2
• Decision Date: 25 May 2023
• Parties: ALFONSO DOMINGO NUNEZ CASTILLO, Plaintiff, v. DOABA MALWA, INC., G.P. NORTHERN BLVD. SERVICE KINGS CENTER INC. and EXXON MOBIL CORPORATION, Defendants.
• Court: New York Supreme Court

1

2023 NY Slip Op 31791(U)

ALFONSO DOMINGO NUNEZ CASTILLO, Plaintiff, v. DOABA MALWA, INC., G.P. NORTHERN BLVD. SERVICE KINGS CENTER INC. and EXXON MOBIL CORPORATION, Defendants.

Index No. 502778/2021, Motion Seq. No. 1, 2

Supreme Court, Kings County

May 25, 2023

Unpublished Opinion

Date Submitted: 5/18/23

DECISION/ORDER

Debra Silber Judge

Recitation as required by CPLR 2219(a), of the papers considered in the review of plaintiff's motion for summary judgment on liability and defendants' cross motion for summary judgment

Papers

NYSCEF Doc.

Notice of Motion, Affirmation and Exhibits Annexed..........................

29-40

Notice of Cross Motion and Exhibits Annexed........................................

57-65

Opposition to Motion..................................................................

46-56, 82-84

Opposition to Cross Motion..........................................................

74-77

Reply Affirmation.....................................................................................

69-73; 78

Upon the foregoing cited papers, the Decision/Order on these motions is as follows:

In motion sequence #1, plaintiff moves for summary judgment on the issue of liability in this action which arises from a trip and fall on December 29, 2020, at a gas station located at 1193 Myrtle Avenue in Brooklyn, NY. In motion sequence #2 all of the defendants join in cross-moving for summary judgment dismissing the complaint. Defendants also seek sanctions and attorneys' fees.

Plaintiff's motion

In support of plaintiff's motion, he submits counsel's affirmation, the pleadings, an affidavit with a certified translation, a copy of the deed to defendant Doaba Malwa Inc., a surveillance video of the plaintiff's accident photographs of the area where plaintiff fell, and an affidavit of a licensed professional engineer.

Plaintiff states in his affidavit [Doc 11] that he had never been to this gas station before, and that he got out of the vehicle while his friend pumped gas to go to the convenience store for a snack. He states at Pages 1 -2, "the front of my right foot struck a raised concrete slab which caused me to trip over the raised concrete slab, fall forward and hit the ground. I noticed that the defective concrete slab that caused me to trip was raised above the adjacent concrete block by approximately 2 inches. The tip of my right foot got caught over the raised concrete slab because of the difference in height."

Plaintiff's engineer, Harold Krongelb P.E., provides a lengthy affidavit which reflects that he conducted a site visit on December 16, 2021, and concludes [Doc 40 Page 11] that, inter alia, "it is my professional opinion with a reasonable degree of engineering certainty that a substantial cause of Alfonso Domingo Nunez-Castillo's trip and fall and subsequent injury is the concrete slab that is elevated by approximately 2 inches above the abutting concrete slab." He also states "It is my professional opinion with a reasonable degree of engineering certainty that the concrete slab is elevated by approximately 2 inches above the abutting concrete slab is inherently dangerous because a pedestrian cannot recognize the hazard with sufficient time and space to avoid tripping and falling. Based on the images associated with paragraph 5 on page 6 of this report, it is my professional opinion with a reasonable degree of engineering certainty that the hazardous condition that caused Alfonso Domingo Nunez-Castillo to trip and fall existed for at least six years before the incident" [id.].

Defendants' motion

In support of defendants' cross-motion, they submit counsel's affirmation, the pleadings, the same surveillance video of the plaintiff's accident as was submitted by plaintiff, and an affidavit of a biomechanical engineer. Counsel avers [Doc 58] that plaintiff did not trip and fall, but that his accident was a "self-inflicted act" of "violently precipitating himself to the ground" [id. ¶4], Counsel proceeds to accuse plaintiff of fraud [id. ¶12], and claims that the complaint must be dismissed as the accident was "staged". The defendants' expert, Carl Jewell, PhD, opines that "On December 29, 2020, Mr. Alfonso Domingo Nunez Castillo reportedly underwent a trip and fall event at an Exxon gas station located at 1193-1199 Myrtle Avenue in Brooklyn, New York. Based on a kinematic analysis of the available video of the subject incident, Mr. Castillo did not undergo a fall as a result of a trip initiated due to the seam between the adjacent cement flags. . . [his kinematics] are more consistent with a controlled fall initiated with a forward lean of his torso and upper extremities. Mr. Castillo's final position lying prone on the ground at a distance from the seam is consistent with a controlled fall and a forward push from his lower extremities." Counsel next states "We are willing to accept that Counsel was unaware that Plaintiff's right foot never came into contact with the raised cement slab at the time of commencement of this action," [id. ¶16] and "Unless Plaintiff can present a plausible argument to refute the evidence presented to this Court, we respectfully ask that Counsel discontinue this action or, in the alternative, ask to be recused from representation. If no such plausible argument is forwarded, we will seek sanction up to $10,000 pursuant to CPLR §8303-a(c)[l][ii], along with attorneys' fees incurred pursuant to 22 NYCRR 130-1.5, for the remainder of this litigation" [id. ¶18], He concludes "We have no doubt that Plaintiff's Counsel would not unwittingly want to be participants in a fraud" [id. ¶19].

Standards for Summary Judgment

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 A.D.3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp, v Federal Ins. Co., 70 N.Y.2d 966, 967 [1988]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]) and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986], citing Zuckerman, 49 N.Y.2d at 562).

"[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 demonstrate the absence of any material issues of fact" (Manicone v City of New York, 75 A.D.3d 535, 537 [2d Dept 2010], quoting Alvarez, 68 N.Y.2d at 324; see also Zuckerman, 49 N.Y.2d at 562; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (Di Menna &Sons v City of New York, 301 NY 118 [1950]). If the existence of an issue of fact is even arguable, summary judgment must be denied (Phillips v Kantor &Co., 31 N.Y.2d 307 [1972]; Museums at Stony Brook v Vil. of Patchogue Fire Dept., 146 A.D.2d 572 [2d Dept 1989]). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (Nicklas v Tedlen Realty Corp., 305 A.D.2d 385 [2d Dept 2003]; see also Akseizer v Kramer, 265 A.D.2d 356 [2d Dept 1999]; McLaughlin v Thaima Realty Corp., 161 A.D.2d 383, 384 [1st Dept 1990]; Gibson v American Export Isbrandtsen Lines, 125 A.D.2d 65, 74 [1 st Dept 1987]; Strychalski v Mekus, 54 A.D.2d 1068, 1069 [4th Dept 1976]). Furthermore, in determining the outcome of the motion, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Pierre-Louis v DeLonghi America, Inc., 66 A.D.3d 859, 862 [2d Dept 2009], citing Nicklas v Tedlen Realty Corp., 305 A.D.2d 385 [2d Dept 2003]; Henderson v City of New York, 178 A.D.2d 129, 130 [1st Dept 1991]; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 105-106 [2006]). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (Nationwide Prop. Cas. v Nestor, 6 A.D.3d 409, 410 [2d Dept 2004]; Katz v PRO Form Fitness, 3 A.D.3d 474, 475 [2d Dept 2004]; Kucera v Waldbaums Supermarkets, 304 A.D.2d 531,532 [2d Dept 2003]).

Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2010], quoting Scott v Long Is. Power Auth., 294 A.D.2d 348 [2d Dept 2002]; see also Benetatos v Comerford, 78 A.D.3d 750, 751-752 [2d Dept 2010]; Lopez v Beltre, 59 A.D.3d 683, 685 [2009]; Baker v D.J. Stapleton, Inc., 43 A.D.3d 839 [2d Dept 2007]).

Discussion

Plaintiff contends he tripped and fell due to mis-leveled concrete flags at the defendants' gas station. He claims the defendant Doaba Malwa Inc. owns the property, and that the owner had actual or constructive notice of the defective condition. He provides an engineer's report that the height differential at the location was two inches, which is...