Eberhard v. Incorporated Vill. of Port Jefferson

• Decision Date: 22 November 2019
• Docket Number: Index 622656/17
• Parties: CHRISTINE EBERHARD, Plaintiff, v. THE INCORPORATED VILLAGE OF PORT JEFFERSON, THE INCORPORATED VILLAGE OF BELLE TERRE, THE INCORPORATED VILLAGE OF POQUOTT, THE INCORPORATED VILLAGE OF OLD FIELD, THE TOWN OF BROOKHAVEN, THE PORT JEFFERSON HARBOR COMPLEX, THE PORT JEFFERSON HARBOR COMMISSION, THE SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, THE COUNTY OF SUFFOLK, STONY BROOK UNIVERSITY HOSPITAL, SNOW SHED, DANFORDS PORT JEFFERSON, LLC, and THE CREST GROUP LLC, Defendants.
• Court: New York Supreme Court

2019 NY Slip Op 34246(U)

CHRISTINE EBERHARD, Plaintiff,
v.
THE INCORPORATED VILLAGE OF PORT JEFFERSON, THE INCORPORATED VILLAGE OF BELLE TERRE, THE INCORPORATED VILLAGE OF POQUOTT, THE INCORPORATED VILLAGE OF OLD FIELD, THE TOWN OF BROOKHAVEN, THE PORT JEFFERSON HARBOR COMPLEX, THE PORT JEFFERSON HARBOR COMMISSION, THE SUFFOLK COUNTY DEPARTMENT OF HEALTH SERVICES, THE COUNTY OF SUFFOLK, STONY BROOK UNIVERSITY HOSPITAL, SNOW SHED, DANFORDS PORT JEFFERSON, LLC, and THE CREST GROUP LLC, Defendants.

Index No. 622656/17

Supreme Court, Suffolk County

November 22, 2019

Unpublished Opinion

ORIG. RETURN DATE: 6/1/18 (001 & 002); 7/3/18(003); 9/11/18 (004 & 006); 9/13/18(005); 10/11/18(007); 11/29/18(008); 3/14/19 (009, 010, 011 & 012)

ADJOURNED DATE: 6/27/19

MOTION DECISION

MORRISON MAHONEY LLP

Attorney for Danfords &The Crest Group, LLC

PLTF'S/PET'S ATTY:

WASLK MARKUS McDOUGAL & DeBELLIS, LLP

DEFT'S/RESP'S ATTY:

LAW OFFICES OF THOMAS M. VOLZ, PLLC

Attorney for Incorporated Village of Port Jefferson

ZAKLUKIEWICZ, PUZO & MORRISSEY

Attorney for Incorporated Village of Belle Terre

MARTIN CLEARWATER & BELL LLP

Attorney for Incorporated Village of Poquott & Incorporated Village of Old Field

ANNETTE EADERESTO, Town Attorney

Attorney for The Town of Brookhaven One Independence

THE PORT JEFFERSON HARBOR COMPLEX

THE PORT JEFFERSON HARBOR COMMISSION

DENNIS R. BROWN, Suffolk County Attorney

Attorney for Suffolk County & Suffolk County Health

ERIC T. SCHNEIDERMAN, Attorney General of NYS

Attorney for Stony Brook University Hospital

LAW OFFICE OF MICHAEL C. TROMELLO

Attorney for Snow Shed

VINCENT J. MARTORANA, J.S.C.

1

Upon the following e-filed papers numbered 15-20, 33-45, 52-56, 60-64, 69-78, 80-88, 89-104, 106-227, 229-234, 235-243, 246-261, 263-287, 294-295: it is, ORDERED that the motion by Stony Brook University Hospital seeking dismissal of Plaintiff s complaint (001) is denied as moot; Plaintiffs motion to remove its claims against Stony Brook University Hospital to the Court of Claims (003) is granted; the motion to dismiss by Snow Shed (002) is granted; the summary judgment motions by Town of Brookhaven (005), The Incorporated Village of Old Field (006), The Incorporated Village of Poquott (007), The Incorporated Village of Belle Terre (009), The Incorporated Village of Port Jefferson (010), Danfords Port Jefferson, LLC and The Crest Group (011) and County of Suffolk (012) are granted; the motion to dismiss or compel by Danfords Port Jefferson, LLC and The Crest Group (008) is denied. All claims and cross claims against Snow Shed, Town of Brookhaven, Village of Old Field, Village of Poquott, Village of Belle Terre, Village of Port Jefferson, Danfords Port Jefferson, LLC, The Crest Group, County of Suffolk and The Suffolk County Department of Health Services are dismissed. All cross-claims against Stony Brook University Hospital are dismissed.

The within action was commenced by Plaintiff seeking to recover damages allegedly sustained as a result of ingesting contaminated water in Port Jefferson Harbor when she fell off a rented paddleboard on August 27, 2016. Plaintiffs claims against defendants Snow Shed, Danfords Port Jefferson, LLC ("Danfords") and The Crest Group LLC ("Crest") arise from a paddleboard rental. Snow Shed maintains a kiosk at or near the area of a marina and docks allegedly owned and maintained by Danfords and Crest. Snow Shed rented a paddleboard to Plaintiff. Plaintiff fell off the paddleboard and ingested water that she asserts was contaminated. She subsequently became ill with a bacterial infection and suffered other medical ailments, having surgery and rehabilitative treatment, incurring medical and hospital expenses and lost time from work. Plaintiff claims that Snow Shed, Danfords and Crest were negligent in failing to inspect the area in and around Port Jefferson Harbor ("Harbor"), in failing to monitor levels of contaminants in the Harbor, in failing to warn the public and Plaintiff about contaminants in the water, failing to erect barricades and warning devices with respect to contaminated water areas and failing to supervise employees. Plaintiffs claims against the remaining defendants is that they were negligent in the ownership operation and maintenance of the harbor, that they failed to properly inspect the Harbor, that they failed to prevent dangerous contamination conditions, they failed to warn the public about said contamination conditions, they failed to prevent the public from accessing contaminated areas, and that they allowed, caused and/or permitted dangerous, hazardous and unsafe conditions to exist in the Harbor and that they failed to comply with laws and ordinances and failed to properly train employees.

Issue has been joined with respect to the Incorporated Village of Port Jefferson ("Port Jefferson"), the Incorporated Village of Belle Terre ("Belle Terre"), the Incorporated Village of Poquott ("Poquott"), the Incorporated Village of Old Field ("Old Field"), the Town of Brookhaven ("Town"), the Suffolk County Department of Health Services, the County of Suffolk, Danfords Port Jefferson, LLC ("Danfords"), and the Crest Group LLC ("Crest"). Cross-claims have been interposed by multiple defendants. Pre-answer motions to dismiss have been brought by Snow Shed and Stony Brook University Hospital. Presently before the Court are (001) Stony Brook University Hospital's motion to dismiss, (002) Snow Shed's motion to dismiss, (003) Plaintiffs motion to remove her claims as against Stony Brook University Hospital to the Court of Claims, (005) Town of Brookhaven's summary judgment motion, (006) Village of Old Field's summary judgment motion, (007) Village of Poquott's summary judgment motion, (008) Danfords and Crest's motion to dismiss or compel, (009) Village of Belle Terre's summary judgment motion, (010) Village of Port Jefferson's summary judgment motion, (011) Danford's and Crest's summary judgment motion, (012) County of Suffolk's summary judgment motion.

2

Motions 001 and 003

Defendant Stony Brook University Hospital ("SBUH") seeks dismissal of Plaintiffs complaint (mot seq. 001) based upon lack of subject matter jurisdiction and lack of personal jurisdiction. SBUH asserts that, as a State entity, claims seeking money damages against it must be pursued exclusively in the Court of Claims and service of process must be made upon an assistant attorney general at the Attorney General's office or upon the Attorney General. Here, Plaintiff sued SBUH in Supreme Court. No affidavit of service has been provided to demonstrate the method of service. A search of the record reveals filing of an affidavit of service indicating that process was delivered to a person at 101 Nicholls Road in Stony Brook. Plaintiff cross-moves (003) seeking removal of the claims as against SBUH to the Court of Claims pursuant to CPLR §325.

It is undisputed by Plaintiff that the proper forum for a claim seeking money damages against the State is Court of Claims (Court of Claims Act §9; Liddy v. DeStaso, 2 A.D.3d 792, 793, 769 N.Y.S.2d 406 [2d Dept. 2003]; Gross v. Perales, 72 N.Y.2d 231, 235-37, 527 N.E.2d 1205 [1988]; Baisley v. Town of Kent, Putnam Cty., 111 A.D.2d 299, 300, 489 N.Y.S.2d 539 [2d Dept. 1985]; Cass v. State, 58 N.Y.2d 460, 463, 448 N.E.2d 786 [1983]). Therefore, Plaintiffs motion seeking removal of her claims against SBUH is granted. The question of effectiveness of service is not fully addressed by the parties. No affidavit of service was presented. The Court searched the record and did locate an affidavit of service but no substantive argument for dismissal or propriety of service is made; therefore, the Court will leave the question of personal jurisdiction to be determined by the Court of Claims, should Defendant SBUH choose to raise it there. Defendant SBUH's motion to dismiss Plaintiffs claims on the basis of subject matter jurisdiction is denied as moot. Plaintiffs motion to remove its claims against SBUH to the Court of Claims is granted. All cross claims as against SBUH are dismissed due to lack of subject matter jurisdiction.

Motion 002

Defendant Snow Shed seeks dismissal pursuant to CPLR §3211(a)(1) and (5) asserting that Plaintiff signed a release exculpating Snow Shed from any negligence claims. Such release is offered as a business record attested to by Snow Shed's Secretary Marlene Pollack. Plaintiff argues that the release is void based upon General Obligations Law §5-326, or alternately, that the release did not cover the matters here at issue.

In order for dismissal to be granted based upon documentary evidence pursuant to CPLR §3211(a)(1), a defendant must submit documentary evidence of undisputed and unambiguous authenticity "that resolves all factual issues as a matter of law and conclusively disposes of the plaintiffs claim" (Hohwald v. Farm Family Casualty Insurance Company, 66 N.Y.S.3d 316; 155 A.D.3d 1009 (2d Dept. 2017) quoting Botach Mgt. Group v. Gurash, 138 A.D.3d 771, 772, 31 N.Y.S.3d 80 (2d Dept 2016). Additionally, a valid release is a complete bar to recovery for claims that are the subject of the release (Centro Empresarial Cempresa S.A. v. Am. Movil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 952 N.E.2d 995, 1000 [2011]; Pacheco v. 32-42 55th St. Realty, LLC, 139 A.D.3d 833, 833, 33 N.Y.S.3d 301, 302 [2d Dept 2016]).

The Kayak and Standup Paddleboarding Liability Release signed by Plaintiff when she rented the paddleboard from Defendant Snow Shed reads, in part,

1.1 acknowledge that standup paddle boarding and kayaking (also referred to as "The Activity") is hazardous and involves a great risk of personal injury, I assume all risks associated with the Activity including, but not limited to, change of weather conditions, change of water conditions hidden water obstacles, changing and unpredictable currents, drowning, exposure, riptides,

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