Dunham v. Watson
| Decision Date | 24 December 2018 |
| Docket Number | Index No. 15-606863,CAL. No. 17-01319OT,Mot. Seq. No. 001-MD,002-MD |
| Citation | 2018 NY Slip Op 34417 (U) |
| Parties | GREGORY M. DUNHAM, Plaintiff, v. CHRISTOPHER WATSON, KAREN WATSON and SUMMERHILL LANDSCAPING, INC., Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 12-11-17
ADJ. DATE 04-06-18
ROSENBURG & GLUCK, LLP
Attorney for Plaintiff
WADE CLARK MULCAHY LLP
Attorney for Defendants Watson
MAZZARA & SMALL, P.C.
David T. Reilly Judge:
Upon the following papers read on these motions for summary judgment: Notice of Motion and supporting papers by defendant Summerhill Landscapes. Inc., dated November 6, 2017; Notice of Motion and supporting papers by defendants Christopher Watson and Karen Watson, dated November 9, 2017; Answering Affidavits and supporting papers by plaintiff, dated March 23,2018; Answering Affidavits and supporting papers by defendants Christopher Watson and Karen Watson, dated January 12, 2018; Answering Affidavits and supporting papers by defendant Summerhill Landscapes. Inc., dated January 12, 2018; Replying Affidavits and supporting papers by defendant Summerhill Landscapes. of Law by defendants Christopher Watson and Karen Watson, dated April 5, 2018; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant Summerhill Landscapes, Inc., and the motion by defendants Christopher Watson and Karen Watson are consolidated for purposes of this determination; and it is ORDERED that the motion for summary judgment by defendant Summerhill Landscapes, Inc. dismissing the complaint and all cross claims against it, pursuant to CPLR 3212, is denied; and it is further
ORDERED that the motion for summary judgment by defendants Christopher Watson and Karen Watson dismissing the complaint and all cross claims against them, pursuant to CPLR 3212, is denied.
Plaintiff commenced this action to recover damages for injuries allegedly sustained when he was cutting and removing bamboo and fell into a well on residential property owned by defendants Christopher Watson and Karen Watson. The complaint alleges that defendants were negligent in causing an unsafe and hazardous condition to exist on the premises in that the well was covered by a dilapidating piece of wood. By his bill of particulars, plaintiff alleges, in relevant part, that the defendants were negligent in permitting an approximately 8 to 12 foot deep, hidden, artificially-created well in a state of disrepair to exist on the premises, in failing to inspect the complained of area, and in failing to warn plaintiff of the existence of such dangerous condition on the premises.
Defendant Summerhill Landscapes, Inc. now moves for summary judgment dismissing the complaint and all cross claims against it on the grounds that it did not have any duty to repair or maintain the well or the structure within which the well was located, that it did not have any actual or constructive notice of the condition, that it owed no duty of care to plaintiff, and that there is no basis for contractual indemnity between it and defendants Christopher Watson and Karen Watson. In support of its motion, defendant Summerhill Landscapes submits copies of the pleadings, the bill of particulars, transcripts of the parties' deposition testimony, maintenance proposals, an invoice relative to maintenance of the subject premises, and photographs.
Defendants Christopher Watson and Karen Watson also move for summary judgment dismissing the complaint and all cross complaints against them on the grounds that they did not create or have actual or constructive notice of the allegedly dangerous condition that caused the plaintiff s accident; that they barricaded the well; that they warned defendant Summerhill Landscapes of its existence and cautioned that no work was to be conducted at or near it; that plaintiffs conduct was the proximate cause of the accident; and that there was no contractual indemnification agreement between them and defendant Summerhill Landscapes, Inc. In support of their motion, the Watson defendants submit copies of the pleadings, bills of particulars, transcripts of the parties' deposition testimony, a contract between the defendants, email exchanges between the defendants, their own affidavits, and photographs.
Plaintiff opposes both motions, contending that defendants had constructive notice of the alleged dangerous condition and failed to warn that such condition existed on the property. Additionally, plaintiff argues that there are triable issues of fact as to whether he was required to conduct bamboo removal in the subject area.
Plaintiff testified that he was employed by Eduardo's Lawn Care Services. He testified that his duties included maintenance, lawn-mowing, hedge-cutting, planting trees, and landscaping. Plaintiff testified that on July 18, 2014, he and two other workers met with Eduardo, the owner of Eduardo's Lawn Care Services. He testified that at that meeting he and his fellow workers were told to go to the property at 182 Old Montauk Highway, in Montauk, New York to do a certain number of hours of general maintenance. Plaintiff testified that no other instructions were given as to what to do at the property.
Plaintiff testified that there is a walkway leading down to the beach at the property in Montauk that is surrounded by an area of bamboo approximately one thousand feet wide. Plaintiff testified that employees from Eduardo's Lawn Care Services regularly cut the bamboo at the property to enable the owners to see down to the ocean from the back deck. He testified that although he was not one of those employees, he had previously trimmed the bamboo on the property. Plaintiff testified that he had not been given specific instructions to trim the bamboo on the day of the accident, but arrived at the property knowing that this would be part of the maintenance work that he was to perform that day. Plaintiff testified that there was a visible open structure consisting of a roof with four posts within the bamboo area that was visible from the path leading to the beach. He testified that he proceeded to trim bamboo near this structure by cutting the tops and laying the cut stalks in piles. He testified that, as a result, the floor of the structure was covered in bamboo leaves. Plaintiff testified that he had made a dozen or so trips in and out of the structure before he stepped in a hole that he had not seen within the structure, and fell in. He testified that he caught himself before falling to the bottom, and hit his right knee on the side of the well. Plaintiff testified that subsequent to the accident he knocked on the back door to the house on the premises and told the woman who responded to his knock that he had fallen in a hole that was not marked and unsafe, injuring his arm. Plaintiff testified that, after the accident, he observed wood that seemed to have rotted within the well.
Defendant Karen Watson testified that she and her husband, defendant Christopher Watson, have owned 182 Old Montauk Highway in Montauk for approximately fifteen years. She testified that, at the time that she and her husband purchased the property, the prior owner told them about the well. Defendant Karen Watson testified that the well had a wood cover and was surrounded by a wooden structure like a gazebo, which had been placed there by the previous owner. Defendant Karen Watson testified that the property was inspected prior to the Watsons purchasing it. She testified that the well was used to supply water to the house until 2013, when the Watsons connected to the town's water line. She testified that she never visited the wooden structure prior to July 2014. She testified that when the bamboo was to be trimmed, she and her husband would stand on the patio and tell defendant Summerhill Landscapes where to cut, which was only on a line between the home and the beach. Defendant Karen Watson testified that she told Summerhill that there was a well, and not to go in that area. Defendant Karen Watson testified that, on July 18, 2014, she and plaintiff discussed the work planned for the day, and she did not recall discussing bamboo trimming in that conversation. She testified that, as she was headed down on the day of the accident to see if plaintiff wanted water, plaintiff approached her and said that he had fallen down the well. She testified that when she asked plaintiff what he was doing down there, he said that he was "just looking around." Further, in an affidavit dated November 10, 2017, defendant Karen Watson averred that on July 18, 2014, no cutting of bamboo was to be done.
Defendant Christopher Watson testified that prior to the purchase of the subject property in Montauk, he met with the owner and walked around the property and along the path to the beach but not into the bamboo forest because it was too thick and full of ticks. Defendant Christopher Watson testified that he did see the well prior to purchasing the property, and saw that it had a wood box surrounding it, with a wooden cap on top. He testified that the well was six feet from the edge of the path, and that the bamboo was too thick to go in and put barricades around the well area. Defendant Christopher Watson testified that he contracted with defendant Summerhill Landscapes to conduct spring and summer maintenance at the Montauk property, which was ongoing over the course of the season, and to perform winter and fall cleanups which were "one-off jobs." He testified that he was not aware...
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