De Cicco v. Longendyke

• Decision Date: 08 February 2007
• Docket Number: 501158.
• Citation: 37 A.D.3d 934,829 N.Y.S.2d 284,2007 NY Slip Op 01042
• Parties: VINCENT DE CICCO, Respondent, v. JOHN P. LONGENDYKE, Appellant.
• Court: New York Supreme Court — Appellate Division

37 A.D.3d 934

829 N.Y.S.2d 284

2007 NY Slip Op 01042

VINCENT DE CICCO, Respondent, v. JOHN P. LONGENDYKE, Appellant.

501158.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided February 8, 2007.

Appeal from an order of the Supreme Court (Bradley, J.), entered January 6, 2006 in Ulster County, which, upon renewal, denied defendant's motion for summary judgment dismissing the complaint.

Cardona, P.J.

In July 2003, while an invited guest to a party at defendant's residence in the Town of Kingston, Ulster County, plaintiff allegedly sustained injuries to his leg after falling in a hole or depression in defendant's yard. According to plaintiff, the unlit area at the side of the house where he fell was "really dark" and, as he stepped, "[t]here was some sort of like extra step, indentation, hole, ledge, or something like that." Plaintiff stated that after his foot unexpectedly went down "four to six inches," he tumbled forward, landing on his knees. He described the area where he fell as "grassy dirt."

Plaintiff commenced this negligence action in January 2004, asserting that his injuries were caused by defendant's failure to, among other things, adequately light the premises in the area where the accident allegedly occurred or warn visitors of irregularities on his property. Following joinder of issue, Supreme Court granted defendant's motion for summary judgment, concluding that plaintiff had offered no proof of a dangerous condition on defendant's land. Upon the submission by plaintiff of an affidavit from a nonparty witness, Megan O'Halloran, Supreme Court granted plaintiff's motion to renew and reversed its award of summary judgment to defendant, finding that questions of fact necessitated a trial.

Initially, we are unpersuaded by defendant's contention that Supreme Court improperly granted plaintiff's motion to renew. Regardless of the merit of defendant's claim that the evidence contained in O'Halloran's affidavit was available prior to plaintiff's initial factual presentation, Supreme Court specifically acknowledged that plaintiff had exercised due diligence in attempting to obtain a sworn affidavit from his witness prior to the court's original decision. However, there was evidence that O'Halloran's relocation presented difficulties in securing the affidavit. Given the affidavits submitted by plaintiff, plaintiff's attorney and O'Halloran regarding the validity of those efforts as well as the witness's move to another part of the state, we cannot say that Supreme Court abused its discretion in concluding that plaintiff was reasonably justified in failing to originally present such evidence and granting his motion to renew (see CPLR 2221 [e] [3]; compare Cippitelli v County of Schenectady, 307 AD2d 658, 658 [2003]).

Turning to the merits, we conclude that Supreme Court did not err in denying defendant's summary judgment motion. O'Halloran indicated in her affidavit that she was a guest at defendant's July...