Fredette v. Town of Southampton

• Decision Date: 08 May 2012
• Citation: 95 A.D.3d 940,2012 N.Y. Slip Op. 03595,944 N.Y.S.2d 206
• Parties: Lee Adam FREDETTE, appellant-respondent, v. TOWN OF SOUTHAMPTON, defendant-respondent, Honda Motor Co., Ltd., etc., et al., respondents-appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 940

944 N.Y.S.2d 206

2012 N.Y. Slip Op. 03595

Lee Adam FREDETTE, appellant-respondent,

v. TOWN OF SOUTHAMPTON, defendant-respondent,Honda Motor Co., Ltd., etc., et al., respondents-appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

May 8, 2012.

Edward F. Westfield, P.C., New York, N.Y., for appellant-respondent.

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harold Lee Schwab and Harry Steinberg of counsel), for respondents-appellants Honda Motor Co., Ltd., and American Honda Motor Co., Inc.

Peter J. Madison, New York, N.Y., for respondent-appellant Long Island Cycle & Marine, Inc.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for defendant-respondent.

MARK C. DILLON, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief and reply brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated May 25, 2010, as granted the motion of the defendant Town of Southampton for summary judgment dismissing the complaint insofar as asserted against it, the defendants Honda Motor Co., Ltd., and American Honda Motor Co., Inc., cross-appeal from so much of the same order as denied those branches of their motion which were for summary judgment dismissing so much of the first and third causes of action insofar as asserted against them as alleged defective design and manufacturing, negligent entrustment, and failure to warn, and the defendant Long Island Cycle & Marine, Inc., separately cross-appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motions of the defendants Honda Motor Co., Ltd., and American Honda Motor Co., Inc., and the separate motion of the defendant Long Island Cycle & Marine, Inc., which were for summary judgment dismissing so much of the first and third causes of action insofar as asserted against them as alleged defective design and manufacture, negligent entrustment, and failure to warn, and substituting therefor provisions granting those branches of the motions; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The Supreme Court properly granted the motion of the Town of Southampton for judgment as a matter of law dismissing the complaint insofar as asserted against it, as it was immune from liability pursuant to General Obligations Law § 9–103. The Town established its prima facie entitlement to summary judgment by showing that it owned the property at which the underlying accident occurred, that the plaintiff was engaged in a recreational activity specified by the statute, and that the property was suitable for that recreational use ( see Finnocchiaro v. Napolitano, 52 A.D.3d 463, 859 N.Y.S.2d 477;Morales v. Coram Materials Corp., 51 A.D.3d 86, 853 N.Y.S.2d 611). The property was suitable for the activity—off-road motorcycling—as a matter of law, as it was not only physically conducive to that activity, but is also a type of property which would be appropriate for public use in pursuing that activity as recreation ( see Albright v. Metz, 88 N.Y.2d 656, 662, 649 N.Y.S.2d 359, 672 N.E.2d 584;Bragg v. Genesee County Agric. Socy., 84 N.Y.2d 544, 548, 620 N.Y.S.2d 322, 644 N.E.2d 1013;Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 45, 544 N.Y.S.2d 308, 542 N.E.2d 621;Morales v. Coram Materials Corp., 51A.D.3d 86, 853 N.Y.S.2d 611). In opposition, the plaintiff failed to raise a triable issue of fact.

Contrary to the Supreme Court's determination, Honda Motor Co., Ltd., and American Honda Motor Co., Inc. (hereinafter together Honda), and Long Island Cycle & Marine, Inc. (hereinafter LICM), each established their prima facie entitlement to judgment as a matter of law dismissing so much of the first cause of action insofar as asserted against each of them as alleged negligent entrustment. There is no evidence that Honda or LICM had any special knowledge concerning a characteristic or condition peculiar to the plaintiff which rendered his use of a motorcycle unreasonably dangerous, or any special knowledge as to a characteristic or defect peculiar to the motorcycle which rendered it unreasonably dangerous ( see Byrne v. Collins, 77 A.D.3d 782, 910 N.Y.S.2d 449;Cook v. Schapiro, 58 A.D.3d 664, 871 N.Y.S.2d 714;Troncoso v. Home Depot, 258 A.D.2d 644, 685 N.Y.S.2d 797). In opposition, the plaintiff failed to raise a triable issue of fact.

The Supreme Court erred in denying those branches of the motions of Honda and LICM which were for summary judgment dismissing so much of the first and third causes of action insofar as asserted against them as alleged a failure to warn of a particular danger. While the Supreme Court properly determined that the affirmation of Yasuyuke Tsurumi was not notarized and was otherwise inadmissible as evidence ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298) and also properly rejected the affidavit of Honda's expert, John Frackleton, as lacking probative value since it failed to demonstrate that Frackleton was qualified to render an expert opinion ( see Pellechia v. Partner Aviation Enters., Inc., 80 A.D.3d 740, 741, 916 N.Y.S.2d 130;de Hernandez v. Lutheran Med. Ctr., 46 A.D.3d 517, 518, 850 N.Y.S.2d 460;Hofmann v. Toys “R” Us, N.Y. Ltd. Partnership, 272 A.D.2d 296, 707 N.Y.S.2d 641), it improvidently exercised its discretion in excluding from consideration the affidavits of Ken Glaser and Kris Kubly on the ground that the affidavits, while notarized, were not accompanied by a certificate of conformity required by CPLR 2309(c). This Court has previously held that the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect ( see Smith v. Allstate Ins. Co., 38 A.D.3d 522, 523, 832 N.Y.S.2d 587), a view shared by the Appellate Division, First and Third Departments as well ( see Matapos Tech. Ltd. v. Compania Andina de Comercio Ltda, 68 A.D.3d 672, 891 N.Y.S.2d 394 [1st Dept.];Sparaco v. Sparaco, 309 A.D.2d 1029, 1031, 765 N.Y.S.2d 683 [3d Dept.];Nandy v. Albany Med. Ctr. Hosp., 155 A.D.2d 833, 548 N.Y.S.2d 98 [3d Dept.];see also Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C2309:3).

Upon considering the affidavits of Glaser and Kubly and other admissible evidence, we conclude that Honda, as well as LICM, which relied, in large part, upon Honda's submissions, established their prima facie entitlement to judgment as a matter of law dismissing so much of the first and third causes of action insofar as asserted against them as alleged failure to warn. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff conceded in his deposition...