Hill v. Town of Brookhaven

Decision Date09 January 2020
Docket Number2020-34977,Index 16-617791
PartiesANNE HILL, Plaintiff, v. TOWN OF BROOKHAVEN, PETER N. KROMHOUT, DEVENDRA K. INC., 378-382 MAIN STREET, LLC, and 96 ROCKINGHAM INC., d/b/a BUCKLEY'S IRISH PUB, Defendants. CAL. No. 19-00097OT
CourtNew York Supreme Court

ANNE HILL, Plaintiff,
v.
TOWN OF BROOKHAVEN, PETER N. KROMHOUT, DEVENDRA K. INC., 378-382 MAIN STREET, LLC, and 96 ROCKINGHAM INC., d/b/a BUCKLEY'S IRISH PUB, Defendants.

CAL. No. 19-00097OT

No. 2020-34977

Index No. 16-617791

Supreme Court, Suffolk County

January 9, 2020


Unpublished Opinion

MOTION DATE 5-16-19 (003)

MOTION DATE 6-6-19 (004, 005, 006, 007 & 008)

ADJ. DATE 7-11-19

SIBEN & SIBEN, LLP Attorney for Plaintiff

ANNETTE EADERESTO, ESQ. Brookhaven Town Attorney

LIEB AT LAW, P.C. Attorney for Defendant Kromhout

RONALD P. BERMAN, ESQ. Attorney for Defendant Devendra K. Inc.

KELLY, RODE & KELLY, LLP Attorney for Defendant 378-382 Main Street LLC

ABRAMS, GORELICK, FRIEDMAN & JACOBSON Attorney for Defendant 96 Rockingham Inc., d/b/a Buckley's Irish Pub

PRESENT: Hon. VINCENT J. MARTORANA Justice of the Supreme Court

Vincent J. Martorana Judge

Upon the following papers numbered read on these e-filed motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant Town of Brookhaven. dated April 12, 2019: by defendant 378-382 Main Street LLC, dated May 3, 2019. by defendant Peter Kromhout. dated May 14, 2019; by defendant 96 Rockingham Inc., d/b/a Buckley's Irish Pub, dated May 15, 2019: Notice of Cross Motion and supporting papers by defendant Peter Kromhout. dated May 8, 2019: by defendant Devendra K. Inc.. dated May 15, 2019: Answering Affidavits and supporting papers by plaintiff, dated June 12, 2019 Replying Affidavits and supporting papers by defendant Peter Kromhout. dated May 11, 2019: defendant 96 Rockingham Inc., d/b/a Buckley's Irish Pub, dated July 3, 2019: by defendant Devendra K. Inc., dated July 8, 2019: by defendant 378-382 Main Street LLC, dated July 9, 2019. by defendant Town of

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Brookhaven. dated July 10, 2019: Other by defendant Devendra K. Inc.. dated May 20, 2019; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that these motions and cross motions are consolidated for the purposes of this determination; and it is further

ORDERED that the motion (003) by defendant Town of Brookhaven for summary judgment dismissing the complaint and the cross claims against it is denied; and it is further

ORDERED that the motion (004) by defendant 378-382 Main Street LLC for summary judgment dismissing the complaint and the cross claims against it is granted; and it is further

ORDERED that cross motion (005) by defendant Peter Kromhout for summary judgment in his favor as to his cross claims against defendant Town of Brookhaven is denied; and it is further

ORDERED that the cross motion (006) by defendant Devendra K. Inc. for summary judgment dismissing the complaint and the cross claims against it is denied; and it is further;

ORDERED that the motion (seq. 007) by defendant Peter Kromhout for summary judgment dismissing the complaint and the cross claims against him is granted; and it is further

ORDERED that the motion (seq. 008) by defendant 96 Rockingham Inc., d/b/a Buckley's Irish Pub for summary judgment dismissing the complaint and the cross claims against it is denied.

Plaintiff Anne Hill commenced this action to recover for personal injuries she allegedly sustained at approximately 9:00 p.m., on April 8, 2016, at a parking lot located in the rear of the premises known as 386 Montauk Highway and 386D Montauk Highway in Center Moriches, New York (also known as 386 Main Street, in Center Moriches, New York). The accident allegedly occurred when plaintiff tripped and fell on a raised edge of a manhole cover, which was located over a septic tank. By the bill of particulars, plaintiff identifies that the accident occurred "approximately 43' of the south of the rear entrance to Moriches Community Center and Buckley's Irish Pub sharing the building with the address of 386 and 386D Montauk Highway and additionally approximately 218' northeast of the southeast corner of Canal Street on the westerly side entrance to the subject to the subject parking lot as well as 230' southwest of the northwest comer of Union Avenue and the easterly side entrance to said parking lot." Defendant Devendra K. Inc. admits that it owtied the premises known as 386 Main Street in Center Moriches, New York (386 Main Street). The first floor of 386 Main Street was allegedly occupied by defendant 96 Rockingham Inc., d/b/a Buckley's Irish Pub (Buckley's). Defendant 378-382 Main Street LLC admits that it owned the premises known as 378 Main Street in Center Moriches, New York (378 Main Street). Defendant Peter Kromhout admits that he owned the premises known as 390 Main Street in Center Moriches, New York (390 Main Street). By the complaint, as amplified by the bill of particulars, plaintiff alleges that defendants were negligent in, among other things, causing a height differential to exist between the subject manhole cover and the surrounding ground, in creating a hazard, in causing and permitting the edges of the subject manhole cover to be raised and tilted, and in failing to secure the subject manhole cover.

The Town now moves for summary judgment dismissing the complaint and the cross claims against it. The Town argues, in part, that it owed no duty to plaintiff on the grounds that it did not create, design, install, own, manage, control, or maintain the subject manhole cover. In the alternative, the Town contends that the complaint against it must be dismissed, because it had no prior written notice of the subject defect. In support of its motion, the Town submits, inter alia, the transcripts of plaintiff s General Municipal Law § 50-h and deposition testimony, the transcripts of the deposition testimony of Peter Kromhout, Lilita Singh, and George Mistier, and the affidavits of Marie Angelone and Linda Sullivan.

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378-382 Main Street LLC moves for summary judgment dismissing the complaint and the cross claims against it, contending that it did not own, occupy, or control the accident site. In support of its motion, 378-382 Main Street LLC submits, among other things, the transcripts of plaintiff s General Municipal Law § 50-h and deposition testimony, the transcript of Singh's deposition testimony, and the affidavit of Frank Ferrantello.

Kromhout moves for summary judgment dismissing the complaint against him and the cross claims against him. He contends that plaintiff was injured on property which he did not occupy, control, maintain, manage, supervise, or make special use of In support of his motion, Kromhout submits, among other things, the transcript of his deposition testimony, the transcript of plaintiff s deposition testimony, and the affidavit of Matthew Crane.

Kromhout cross-moves for summary judgment in his favor as to his cross claims against the Town. He contends, among other things, that the Town breached its lease agreement by failing to procure insurance, and that he is entitled to indemnification, a defense, and contribution from it. In support of his cross motion, Kromhout submits, among other things, a copy of a lease agreement dated September 18, 1975.

Devendra K. Inc. cross-moves for summary judgment dismissing the complaint and the cross claims against it. Devendra K. Inc. contends that it was an out-of-possession owner with no control over the subject parking lot, and that triable issues of fact remain as to whether the Town created the alleged defect. In support its cross-motion, Devendra K. Inc. submits, among other things, a copy of a lease agreement dated July 27, 2010, and riders and amendments to this lease agreement, and the transcript of James Cantwell's deposition testimony.

Buckley's moves for summary judgment dismissing the complaint and the cross claims against it. Buckley's contends that it did not owe a duty to plaintiff, as it did not own, operate, maintain, supervise, or control the subject parking lot or the subject manhole cover. Buckley's contends that the Town owned the subject parking lot, and that the Town was obligated to maintain it. In support of its motion, Buckley's submits, among other things, the transcripts of plaintiffs General Municipal Law § 50-h and deposition testimony, the transcript of CEmtwell's deposition testimony, and copies of a lease agreement dated July 27, 2010, along with riders and amendments to this lease agreement, a lease agreement dated July 21, 1977, and the Town's response to Buckley's notice to admit.

Plaintiff opposes the motions by the Tovm, 378-382 Main Street LLC Kromhout, and Buckley's, and the cross motions by Kromhout and Devendra K. Inc. She contends, among other things, that defendants have failed to eliminate triable issues of fact as to who was responsible for maintaining the subject manhole cover and the subject parking lot. Plaintiff also argues that triable issues of fact exist as to whether the Tovm affirmatively created the alleged defect, and whether the alleged deifect resulted from the Town's special use of the parking lot. In support of her opposition, plaintiff submits, among other things, the transcripts of her General Municipal Law § 50-h and deposition testimony, the transcripts of Mistier's, Cantwell's, Singh's, and Kromhout's deposition testimony, her affidavit, and the affidavit of Harold Krongelb.

According to plaintiffs statutory hearing and deposition testimony, the accident occurred when her foot came into contact with a raised portion of the side of the subject manhole cover, which was surrounded by asphalt. Plaintiff testified that the subject manhole cover was partially tilted, and that it appeared to be missing two bolts. She allegedly first observed the subject manhole cover after her fall. At her statutory hearing, plaintiff testified that the raised portion of the subject manhole cover was approximately five inches above the asphalt surface. However, at her deposition, plaintiff testified that the raised portion of the subject manhole cover was approximately...

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