Jennings-Lowe v. Town of Islip

• Decision Date: 10 January 2020
• Docket Number: Index 622227/18
• Citation: Jennings-Lowe v. Town of Islip, 2020 NY Slip Op 34746(U), Index 622227/18 (N.Y. Sup. Ct. Jan 10, 2020)
• Parties: LINDA JENNINGS-LOWE, Plaintiff, v. TOWN OF ISLIP, RIVER ROAD PARKING, LLC, and SAYVILLE FERRY SERVICE, INC., Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 34746(U)

LINDA JENNINGS-LOWE, Plaintiff, v. TOWN OF ISLIP, RIVER ROAD PARKING, LLC, and SAYVILLE FERRY SERVICE, INC., Defendants.

Index No. 622227/18

Supreme Court, Suffolk County

January 10, 2020

Unpublished Opinion

ORIG. RETURN DATE: 5/30/19.

ADJOURNED DATE: 7/11/19.

PLTF'S/PET'S ATTY: DAVIS & FERBER, LLP.

DEFT'S/RESP'S ATTY: ZAKLUKIEWICZ, PUZO &amp MORRISSEY, LLP Attorney for Defendant Town of Islip.

SMITH MAZURE Attorney for Defendant River Road Parking, LLC

KAUFMAN DOLOWICH & VOLUCK LLP Attorney for Defendant Sayville Ferry Service, Inc.

PRESENT: Hon. Vincent J. Martorana, Judge.

VINCENT J. MARTORANA, J.S.C.

Upon the following papers read on these motions for summary judgment Notice of Motion and supporting papers by defendant Sawille dated April 30. 2019 (002): by defendant River Road dated June 7, 2019 (0031: by defendant Islip dated August 7. 2019 (004); Notice of Cross-Motion and supporting papers Affirmation/affidavit in opposition and supporting papers by plaintiff dated May 14, 2019(0021: by defendant Islip dated May 16. 2019(002): by plaintiff dated July 2. 2019(003): by defendant Sawille dated August 29, 2019(004); by plaintiff dated August 29.2019(004): Affirmation/affidavit in reply and supporting papers by defendant Sawille dated May 29.2019(002): by defendant River Road dated July 8. 2019 (003)by defendant Islip dated September 4. 2019 (004); _; Other; (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that the motion by Sayville Ferry Service, Inc. (002) seeking summary judgment dismissing the claims against it is granted. The summary judgment motion by River Road Parking, LLC (003) and the summary judgment motion by the Town of Islip (004) are both denied with leave to renew upon the substantial completion of discovery.

The within matter was commenced seeking to recover damages for injuries sustained by Plaintiff when she allegedly tripped and fell due to the negligence of defendants. Plaintiff claims in her bill of particulars that, on May 4, 2018 at approximately 9:20 p.m., "The incident occurred on the curbing abutting the walkway leading to the public parking area across from the terminal of the Sayville Ferry located on River Road between Terry Street and Brown River Road, Town of Islip, County of Suffolk, State of New York." Issue has been joined, each defendant interposed cross-claims for indemnification and/or contribution as against their co-defendants and each defendant now seeks summary judgment.

Defendant Sayville Ferry Service, Inc. ("Sayville Ferry") seeks summary judgment (motion seq. 002) on the basis that Sayville Ferry is on the opposite side of the street from the curb where the incident took place and that it therefore owed no duty to Plaintiff. Sayville Ferry's President, Kenneth F. Stein III attested in his affidavit that Sayville Ferry never owned, leased, operated, controlled or repaired the public walkway/crosswalk located in River Road or the curb located on the west side of River Road, across the street from the ferry. Mr. Stein further averred that Sayville Ferry did not own, install or maintain lighting in the subject area; nor did it enter into a contract with the Town of Islip to operate a parking lot; nor did it paint the crosswalk.

Plaintiff opposes Sayville Ferry's motion on the basis that it is premature and that Plaintiff is entitled to discovery, pursuant to CPLR§3212(f). Plaintiff asserts that crucial facts exist concerning any relationship that Sayville Ferry or Sayville Ferry's President may have with the parking lot across the street. The Lease Agreement for the property containing the parking lot indicates that 1999 Stein Trust and Island Trust ("Landlords") leased the parking lot premises to River Road Parking, LLC for the purpose of operating a parking lot. Plaintiff suggests that Sayville Ferry's President may also have been the individual who signed the Lease Agreement for the parking lot land on behalf of the Landlords. Plaintiff cites several news articles which seem to highlight Mr. Stein's involvement in zoning issues regarding the parking situation near the Ferry. Plaintiff argues that Mr. Stein, either individually, through a company or through a trust, has involvement in the parking lot and that the more people can park, the more money the Ferry can make. Further discovery is needed, Plaintiff urges, so that these relationships can be sorted out. Plaintiff also argues that Sayville Ferry made special use of the crosswalk and is therefore obligated to maintain the part that it uses so that it is in a reasonably safe condition.

A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of NY. & N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). The opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Stonehill Capital Mgmt., LLC v. Bank of the West., 28 N.Y.3d 439, 448, 68 NE3d 683, 688 [2016](quoting Alvarez v Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).

When a party seeks to avoid summary judgment on the basis that facts essential to opposition may exist but cannot yet be stated due to the need for additional discovery, pursuant to CPLR§3212(f), the opposing party must demonstrate that further discovery may lead to relevant evidence (Abraham Nat. Foods Corp. v. Mount Vernon Fire Ins. Co., 84 A.D.3d 1281, 924 N.Y.S.2d 171 [2d Dept 2011]; Price v. Cty. of Suffolk, 303 A.D.2d 571, 572, 756 N.Y.S.2d 758, 759 [2d Dept 2003]; Greenberg v. McLaughlin, 242 A.D.2d 603, 604, 662 N.Y.S.2d 100, 101 [2d Dept 1997]). The mere speculation that evidence may be uncovered during discovery is insufficient basis to deny summary judgment (Marshall v. Colvin Motor Parts of Long Island, Inc., 140 A.D.2d 673, 528 N.Y.S.2d 1007 [2d Dept. 1988]; Pollock v. City of New York, 145 A.D.2d 550, 536 N.Y.S.2d 103 [2d Dept. 1988]).

To state a claim for negligence, a party must state sufficient facts to establish that the adverse party owed a duty to the claimant, that he or she breached that duty and that such breach proximately caused damages (Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148, 937 N.Y.S.2d 63 [2d Dept. 2011], affd but criticized, 20 N.Y.3d 342, 985 N.E.2d 128 [2013]; Pulka v. Edelman, 40N.Y.2d 781, 782-83, 358 N.E.2d 1019 [1976]; Muallem v. City of New York, 82 A.D.2d 420, 423-25, 441 N.Y.S.2d 834 [2d Dept.1981], affd, 56 N.Y.2d 866, 438 N.E.2d 1142 [ 1982]. The threshold issue in any negligence case is whether or not defendant owed a duty to Plaintiff. In the absence of duty, there can be no breach and no liability (Pulka v. Edelman, 40 N.Y.2d 781, 782-83, 358 N.E.2d 1019 [1976]; Muallem v. City of New York, 82 A.D.2d 420, 423-25, 441 N.Y.S.2d 834 [2d Dept. 1981 ], affd, 56 N.Y.2d 866, 438 N.E.2d 1142 [1982]; Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148, 159-60, 937 N.Y.S.2d 63, 71-72 [2d Dept. 2011], affd but criticized on other grounds, 20 N.Y.3d 342, 985 N.E.2d 128 [2013]).

The imposition of "[Liability for a dangerous or defective condition on property is generally predicated upon ownership occupancy, control or special use of the property... Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Minott v. City of New York, 230 A.D.2d 719, 645 N.Y.S.2d 879 [2d Dept. 1996] quoting Turrisi v Ponderosa, Inc., 179 A.D.2d 956; see also Noia v. Maselli, 45 A.D.3d 746,...