Femoyer v. Cnty. of Suffolk

• Citation: 2020 NY Slip Op 35253 (U)
• Decision Date: 11 March 2020
• Docket Number: Index No. 618027/2016,Motion Seq. Nos. 002MG,003MG,004MG,CASEDISP,005XMotD,006MD
• Parties: CAMELLA FEMOYER, Plaintiff, v. COUNTY OF SUFFOLK, ST. JOHN'S UNIVERSITY, CATHERINE GRANDJEAN and BRIGHTVIEW LANDSCAPES, LLC, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 35253(U)

CAMELLA FEMOYER, Plaintiff,
v.
COUNTY OF SUFFOLK, ST. JOHN'S UNIVERSITY, CATHERINE GRANDJEAN and BRIGHTVIEW LANDSCAPES, LLC, Defendants.

Index No. 618027/2016, Motion Seq. Nos. 002MG, 003MG, 004MG, CASEDISP, 005XMotD, 006MD

Supreme Court, Suffolk County

March 11, 2020

Unpublished Opinion

MOTION DATE: 8/1/19

DEFENDANTS' ATTORNEYS RUSSO & TAMBASCO, ESQS. ATTORNEYS FOR GRANDJEAN, DENNIS M. BROWN, SUFFOLK COUNTY ATTORNEY ATTORNEY FOR COUNTY OF SUFFOLK, HARRINGTON, OCKO & MONK, LLP ATTORNEY FOR ST. JOHN'S UNIVERSITY, CHESNEY & NICHOLAS, LLP ATTORNEYS FOR BRIGHTVIEW

PLAINTIFF'S ATTORNEYS ALAN C. GLASSMAN, ESQ.

HON. PAUL J. BAISLEY, JR., J.S.C.

Upon the following papers read on these e-filed motions and cross motion for summary judgment, etc.: Notice of Motions/Order to Show Cause and supporting papers dated Mar. 11, 2019. Mar. 15,2019, May 2,2019. and June 17. 2019; Notice of Cross-Motion and supporting papers dated May 23, 2019; Answering Affidavits and supporting papers dated July 8. 2019 and July 12, 2019: Replying Affidavits and supporting papers dated July 31. 2019: Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that these motions and cross motion are hereby consolidated for purposes of this determination; and it is further

ORDERED that the motion by defendant St. John's University (motion sequence no. 002) for summary judgment dismissing the complaint and all cross claims against it is granted; and it is further

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ORDERED that the motion by defendant Brightview Landscapes, LLC (motion sequence no. 003) for summary judgment dismissing the complaint and all cross claims against it is granted; and it is further

ORDERED that the motion (incorrectly denominated as a cross motion) by defendant County of Suffolk (motion sequence no. 004) for summary judgment dismissing the complaint and all cross claims against it is granted; and it is further

ORDERED that the cross motion by plaintiff (motion sequence no. 005) for an order pursuant to CPLR 3025 (b) granting leave to amend the bill of particulars and for an order granting summary judgment in her favor on the first and fourth causes of action is decided as follows; and it is further

ORDERED that the motion by plaintiff (motion sequence no. 006) for leave to reargue a prior motion by defendant Catherine Grandjean for summary judgment, which was decided by order dated May 21, 2019, is denied.

This matter arises out of a two-car motor vehicle accident that occurred on November 10, 2015, at the intersection of Montauk Highway and Berard Boulevard, in the Town of Islip, New York. At the time of the accident, plaintiffs vehicle was attempting to make a left-hand turn when it came into contact with a vehicle owned and operated by defendant Catherine Grandjean. Plaintiff alleges that defendants St. John's University (St. John's) and Brightview Landscapes, LLC (Brightview) which, respectively, own and maintain the property on the southwest corner of the subject intersection, were negligent in maintaining trees and shrubs on the property which obstructed the view of oncoming traffic at the intersection. Plaintiff also alleges that defendant County of Suffolk (County) was negligent in creating a dangerous condition on Montauk Highway near the exit of St. John's by the placement of the fence, shrubs, or vegetation. St. John's, the County, and Brightview each assert cross claims for indemnification, contribution, and apportionment.

Plaintiff now seeks leave to amend the bill of particulars to add violation of Islip Town Code §68-404, entitled. "Obstructions to motorist's sight," and §68-406, entitled, "Fences and walls,'' against St. John's and Brightview. She also seeks summary judgment in her favor on the issue of liability against St. John's and Brightview. In support, plaintiff submits, inter alia, a photo and her affidavit.

Generally, leave to amend a pleading "shall be freely given" (CPLR 3025 [b]) unless the proposed amendment is palpably insufficient as a matter of law, devoid of merit, or would prejudice or surprise the opposing party (see Maidonado v Newport Gardens, Inc., 91 A.D.3d 731,937 N.Y.S.2d 260 [2d Dept 2012]; Lariviere v New York City Tr. Auth.,%2 A.D.3d 1165,920N.Y.S.2d 231 [2d Dept 2011 ]; Gitlin v ChirinMn, 60 A.D.3d 901, 875 N.Y.S.2d 585 [2d Dept 2009]). "The legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or

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Femoyer v County of Suffolk, et al. Index No. 618027/2016 lack of merit is clear and free from doubt" (Sample v Levada, 8 A.D.3d 465, 467-468, 779 N.Y.S.2d 96 [2d Dept 2004]).

Here, the proposed amendment to add violation of Islip Town Code §68-404 cannot be characterized as palpably devoid of merit or insufficient as a matter of law, and there is no evidence St. John's and Brightview are surprised or prejudiced since the amendment does not raise any new factual allegations or theories of liability (see Hughes v Concourse Residence Corp., 62 A.D.3d 463, 878 N.Y.S.2d 333 [1st Dept 2009]). However, St. John's and Brightview would be prejudiced if plaintiff is allowed to add violation of Islip Town Code §68-406 since plaintiff alleges that her vision was obstructed by trees and shrubs, not fences or walls. The Court finds that plaintiffs claim of violation of Islip Town Code §68-406 appears to be plainly without merit at this juncture in the litigation (see Sihly v New York City Tr. Auth, 282 A.D.2d 337, 723 N.Y.S.2d 189 [1st Dept 2001]). Accordingly, the branch of plaintiffs cross motion for leave to amend the bill of particulars is granted to the extent of granting leave to amend the bill of particulars by adding violation of Islip Town Code §68-404 against St. John's and Brightview and is otherwise...