DeStefano v. Grasso

• Decision Date: 23 October 2012
• Docket Number: No. 91/2012.,91/2012.
• Citation: 961 N.Y.S.2d 357,37 Misc.3d 1216,2012 N.Y. Slip Op. 52056
• Court: New York Supreme Court
• Parties: Michael DeSTEFANO, as Administrator of the Estate of Donald William DeStefano, Kristopher DeStefano, Matthew DeStefano, Joshua DeStefano, and Jeremy DeStefano, Plaintiffs, v. Rosemary A. GRASSO, City of Port Jervis, and Orange & Rockland Utilities, Inc., Defendants.

37 Misc.3d 1216

961 N.Y.S.2d 357

2012 N.Y. Slip Op. 52056

Michael DeSTEFANO, as Administrator of the Estate of Donald William DeStefano, Kristopher DeStefano, Matthew DeStefano, Joshua DeStefano, and Jeremy DeStefano, Plaintiffs,

v.Rosemary A. GRASSO, City of Port Jervis, and Orange & Rockland Utilities, Inc., Defendants.

No. 91/2012.

Supreme Court, Orange County, New York.

Oct. 23, 2012.

OPINION TEXT STARTS HERECATHERINE M. BARTLETT, J.

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

This is an action in personal injury and wrongful death stemming from a motor vehicle accident in which plaintiffs' decedent, a pedestrian, was struck and killed by a motor vehicle driven by defendant Grasso on November 19, 2011. In addition to Grosso, plaintiffs allege O & R bears responsibility for the accident in that certain streetlights were not working at the time thereby making the accident location improperly lit and hazardous for plaintiff's decedent.

Previously, the City of Port Jervis moved for summary judgment which was granted.

O & R now moves for summary judgment claiming that it owed no duty and bore no responsibility for replacing the streetlight bulbs or alternatively that it lacked notice of the condition.

According to O & R, Port Jervis owns and operated 3 vintage street lights and O & R owns 2 additional utility lights, one on Fowler Street north of the intersection where the accident occurred, and one approximately 195 feet from the intersection itself. Port Jervis and O & R entered into an arrangement whereby O & R would replace any streetlight bulb on the two O & R owned fixtures only upon receiving a fax from Port Jervis requesting the bulb. O & R obtained Port Jervis records from September–December, 2011 and the records fail to indicate any request by Port Jervis for bulb replacement for the 2 fixtures in question at any time prior to plaintiff's decedent's accident, and first occurred 12 days after the accident.

As a procedural matter, the statements of the two independent eyewitnesses submitted by O & R will not be considered as they are complete hearsay. In State Farm Mut. Auto. Ins. Co. v. Langan 18 AD3d 860 (2nd Dept.2005), the court determined that a portion of a police report constituted impermissible hearsay since the eyewitness who gave a statement to the police lacked a business duty to report ( id. at 862;see Jupa v. Zaidi, 309 A.D.2d 606, 607 (1st Dept.2003); People v. Roberts, 304 A.D.2d 364, 364 (1st Dept.2003); Pector v. County of Suffolk, 259 A.D.2d 605, 606 (2nd Dept.1999); Hatton v. Gassler, 219 A.D.2d 697, 697 (2nd Dept.1995); Matter of Christopher B., 192 A.D.2d 180, 184 (4th Dept.1993)). In this case, the report was taken two days after the accident. There is no indication that either non-party witness was under a duty to make the statements, and absent any sworn testimony, they will not be considered by this Court.

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.

A party opposing a motion for summary judgment must lay bare his or her proof. Del Giacco v. Noteworthy Company, 175 A.D.2d 516, 517 (3rd Dept., 1991). In order for a party to successfully oppose a motion for summary judgment, he must demonstrate a bona fide defense to the action which defense must be fairly debatable and of a substantial character. See, Kaye v. Keret, 89 A.D.2d 885, 886 (2nd Dept.1982). If the papers show no real defense, or at best a shadowy or perfunctory defense, summary judgment may be granted. See, Sabato v. Soffes, 9 A.D.2d 297, 300 (1st Dept.1959). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient [cit. om.].” Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).

Before determining whether the O & R had notice of any burned out lights it owned and then determining whether the absence of light from any allegedly burned out lights were the proximate cause of the accident at issue, the first question which must be answered is whether

O & R owed a duty to plaintiff's decedent in the first place.

The failure of a public utility to replace allegedly burned out light bulbs in violation of a contract between a municipality and a utility to perform that responsibility is not a basis for liability which can be asserted by a third-party allegedly injured as a result of poor illumination of an area in question. See, Kraye v. Long Island Lighting Co., 42 A.D.2d 972 (2nd Dept.1973). A similar result was reached in Pizzaro v. City of New York, 188 A.D.2d 591 (2nd Dept.1992). In Pizzaro, the contractor responsible for changing burned out light bulbs in streetlights for the City of New York was...