Degaetano v. JP Morgan Chase Bank

• Decision Date: 15 March 2013
• Docket Number: No. 12409/2010.,12409/2010.
• Citation: Degaetano v. JP Morgan Chase Bank, 39 Misc.3d 1211, 971 N.Y.S.2d 70, 2013 N.Y. Slip Op. 50567 (N.Y. Sup. Ct. 2013)
• Parties: Laura DEGAETANO, Plaintiff, v. JP MORGAN CHASE BANK, NA, Village of Warwick, All Phase Construction Group, and Juliano Siding Company, LLC, Defendants.
• Court: New York Supreme Court

39 Misc.3d 1211

971 N.Y.S.2d 70

2013 N.Y. Slip Op. 50567

Laura DEGAETANO, Plaintiff,

v.JP MORGAN CHASE BANK, NA, Village of Warwick, All Phase Construction Group, and Juliano Siding Company, LLC, Defendants.

No. 12409/2010.

Supreme Court, Orange County, New York.

March 15, 2013.

OPINION TEXT STARTS HERECATHERINE M. BARTLETT, J.

The following papers numbered 1 to 47 were read on the various motions and cross-motions for summary judgment made by defendants:

Notice of Motion—Affirmation of Nicholas Pascale, Esq.—Affidavits—Exhibits (Village of Warwick) 1–7

Affirmation in Opposition—Affidavits—Exhibits (Village of Warwick) 8–11

Reply Affirmation—Exhibits (Village of Warwick) 12–13

Notice of Motion—Affirmation of Frank Keenan, Esq.—Exhibits—Memo of Law (Juliano) 14–17

Affirmation in Opposition—Affidavits—Exhibits (Juliano) 18–21

Reply Affirmation—Exhibit (Juliano) 22–23

Notice of Motion—Affirmation of Marcin Kurzatkowski, Esq.—Exhibits (Chase) 24–26

Affirmation in Opposition—Affidavits—Exhibits (Chase) 27–30

Reply Affirmation—Exhibit (Chase) 31–32

Notice of Motion—Affirmation of Mark Steifeld, Esq.—Exhibits (All Phase) 33–35

Affirmation in Opposition—Exhibits (All Phase) 36–37

Notice of Cross–Motion—Affirmation of Nicholas Pascale, Esq.—Exhibits (Village Cross) 38–40

Chase's Partial Opposition to Cross–Motion 41

Cablevision's Opposition to Cross–Motion 42

Notice of Motion—Affirmation of Adrienne Yaron, Esq.—Exhibits 43–45

Reply Affirmation of Nicholas Pascale, Esq.—Exhibit 46–47

Upon the foregoing papers, it is ORDERED that the motions are disposed of as follows:

This is an action in personal injury stemming from an alleged trip and fall accident which occurred on July 22, 2010 while plaintiff was descending a set of stairs of a pedestrian foot bridge attached to third party defendant Cablevision of Warwick LLC's (“Cablevision”) building. At the time of the accident, plaintiff was a Cablevision employee. The bridge itself led from Cablevision's building down to a parking lot, and the lot was owned by defendant JP Morgan Chase Bank, NA (“Chase”) and leased by the Village of Warwick (“Warwick”). The bridge was owned by Cablevision of Warwick LLC (“Cablevision”).

Warwick's Motion for Summary Judgment as against Plaintiff

Warwick now moves for summary judgment asserting that there was no prior written notice, a fact which plaintiff does not dispute, and that plaintiff did not demonstrate any exception to the prior written notice requirement.

In opposition, plaintiff asserts that defendant failed to annex the proper pleadings, failing to include the amended pleadings which are the operative documents in this matter, and instead including only the original pleadings, but fails to assert any prejudice which resulted therefrom. Additionally, plaintiff asserts that prior written notice is not required if a municipality acts as a proprietary landowner, which plaintiff states, occurred here since Warwick operated a parking concession in the lot itself. Moreover, plaintiff asserts that Warwick failed to establish a prima facie case for summary judgment on the substantive issues of the case. Plaintiff's counsel submits the affidavit of an expert who opines that the step height where plaintiff allegedly fell was not compliant with the building code.

On reply, Warwick's counsel does a “mea culpa”, acknowledging the failure to annex the most updated pleadings, but asserts that the error was merely ministerial, that he annexes same on reply, and that the Court is empowered to overlook this error in the absence of prejudice asserted by the opposing party. Substantively, Warwick contends that the proprietary capacity issue upon which plaintiff relies to get around the prior written notice requirement is not a recognized exception to the rule, and even if it was, Warwick did not own the parking lot, Chase did, and did not own the foot bridge, Cablevision did.

Given the absence of any proof of prejudice by plaintiff or proof of any substantial right of plaintiff being impaired by Warwick's error, this Court will exercise its discretion and consider the motion on its merits. See, Avalon Gardens Rehabilitation & Health Care Center, LLC v. Morsello, 97 AD3d 611 (2nd Dept.2012).

CPLR § 3212(b) states in pertinent part that a motion for summary judgment “shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.”

In Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974), the Court of Appeals held that:

[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law ... when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.

According to the Court of Appeals, “the 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 [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted].” 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).

Warwick Village Code § 59–1 requires prior written notice of any defects prior to liability being imposed for injuries sustained as a result of any defects in village property. As previously stated, plaintiff does not dispute the absence of prior written notice. According to Amabile v. City of Buffalo, 93 N.Y.2d 471 (1999), prior written notice laws are a valid exercise of legislative authority when such laws are enacted pursuant to General Municipal Law § 50–e(4). Therefore, absent an exception to the statutory rule of prior written notice, plaintiffs' action will fail.

According to the Court of Appeals, the only two statutory exceptions to the prior written notice requirements are a special use by the municipality or a condition created by the municipality. See, Amabile, 93 N.Y.2d at 474;Oboler v. City of New York, 8 NY3d 888, 889 (2007); Yarborough v. City of New York, 10 NY3d 726, 728 (2008). After proof by the Warwick of an absence of prior written notice, the burden of proof shifts to the plaintiff to demonstrate one of the two exceptions to the prior written notice requirement. See, Yarborough, 10 NY3d at 728. There is no allegation or proof of a condition created by Warwick and no proof of any special use. Plaintiff's only argument is limited to the supposed “proprietary capacity” exception which is not recognized under these circumstances since Warwick did not own either the parking lot or the foot bridge. As expressed in Peters v. City of White Plains, 58 AD3d 824, 825 (2nd Dept.2009), “[a] public parking garage, like a parking lot, falls within the definition of a highway and is one of the areas in which the General Municipal Law permits a local government to require notice of defective conditions ( see Walker v. Town of Hempstead, 84 N.Y.2d at 366, 367, 618 N.Y.S .2d 758, 643 N.E.2d 77;Mendes v. Whitney–Floral Realty Corp., 216 A.D.2d 540, 542, 629 N.Y.S.2d 63).” In the instant case, the parking lot was not owned by Warwick, but even if it was, prior written notice still applies. As such, given the conceded absence of prior written notice, Warwick's motion for summary judgment as against plaintiff must be granted in its entirety. The parties remaining contentions are rendered moot by this determination.

Juliano's Motion for Summary Judgment as against Plaintiff

Juliano Siding, LLC (“Juliano”) moves for summary judgment as against plaintiff. Juliano was the subcontractor hired by co-defendant All Phase Construction Group to build and install the foot bridge where plaintiff allegedly tripped and fell. Juliano asserts that it has no liability in this case due to the absence of any duty owed to plaintiff, since there was no continuing contractual obligation owed by Juliano to plaintiff upon which plaintiff detrimentally relied. Plaintiff opposes Juliano's motion on two bases, namely that Juliano failed to annex copies of any signed deposition transcripts or letters of transmission indicating that they were properly transmitted at least 60 days prior to their use. Additionally, plaintiff asserts on substantive grounds that the Juliano failed to demonstrate an absence of either constructive or actual notice and that it did not create the condition at issue. Juliano replies by annexing copies of the deposition transcript transmittal letters and noting that it had no such obligation to demonstrate an absence of notice or that it did not create the condition since it owed no duty to plaintiff in the first place.

Unlike Warwick's ministerial error in failing to annex the most updated pleadings which can be corrected on reply under the law, Juliano's practice failure cannot be so easily cured. CPLR 3212(b) states in pertinent part that “[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.”

The deposition transcripts submitted by Juliano will not be considered in support of its counsel's application because they are unsigned and there is no proof submitted that it was transmitted 60 days prior to the date of intended use. It is therefore...