Mejia v. Delgado
| Decision Date | 21 August 2017 |
| Docket Number | Index No.: 157361/2014 |
| Citation | 2017 NY Slip Op 31765 (U) |
| Parties | LETYS MEJIA, Plaintiff, v. SAMUEL DELGADO and KATIA J. DELGADO, Defendants. |
| Court | New York Supreme Court |
MEMORANDUM DECISION
This is an action for personal injury. Defendants, Samuel Delgado ("Samuel") and Katia J. Delgado ("Katia") (collectively "Defendants") now move pursuant to CPLR 3212 to dismiss the complaint ("Complaint") of plaintiff, Letys Mejia ("Plaintiff").
Plaintiff's Complaint and Bill of Particulars allege that on May 25, 2014, Plaintiff was attending a barbecue at Defendants home when the deck attached to the rear of the home collapsed, causing Plaintiff to fall to the ground (Compl. ¶6; Bill of Particulars ¶5). Plaintiff further alleges that, among other things, Defendants were negligent as they failed to monitor and maintain the subject deck (Bill of Particulars, ¶6.d).
In support of their motion to dismiss, Defendants argue that they did not have notice of the alleged defective condition of the subject deck, since no complaints were ever made about the deck and Defendants did not notice any defective condition associated with the deck. Moreover,Defendants did not create the condition that Plaintiff alleges to have caused her injury, as they did not construct the subject deck, and that it was already in place when they purchased the home on August 30, 2009. Further, the June 22, 2009 Certificate of Compliance issued by the Building Department of the Town of Chester ("Certificate of Compliance") indicates that the previous owners built the deck, and that it conformed to previously approved plans (Casas Aff., Ex. K, Certificate of Compliance). Additionally, Defendants submitted the June 20, 2009 Home Inspection Report ("Report"), which demonstrates that there was no "obviously visible defect" associated with the subject deck (id., Ex. J, Home Inspection Report). Additionally, Defendants did not perform construction on the subject deck.
In opposition, Plaintiff argues that Defendants failed to maintain their property in a reasonably safe condition by failing to perform maintenance on the subject deck. Specifically, Defendants failed to perform the maintenance indicated by the Report, which states that "[t]he deck should be cleaned and sealed or stained to improve durability" (Report, p.8). Moreover, Defendants submit photographs of the subject deck after it collapsed, which depict the "visible signs of the deterioration of the subject deck"(Wilt Opp. Aff. ¶24).
Next, Plaintiff contends that Defendants had a duty to inspect the subject deck, because of the age and the visible signs of deterioration.
Further, Defendants had constructive notice of the defective condition of the subject deck. In support of its argument, Plaintiff submitted the affidavit of Rudolph Rinaldi, A.I.A ("Rinaldi"), an architect registered in the State of New York (Wilt Opp. Aff. Ex. 1, Affirmation of Rinaldi, p.1). Rinaldi affirmed that the subject deck "showed visible signs of the deteriorationof its mechanical connectors and the drying out and warping of structural wood members and boards" (Rinaldi Aff., p.4).
Additionally, Plaintiff asserts that Defendants are liable under the theory of res ipsa loquitor, since deck collapses do not typically occur in the absence of negligence, the subject deck was in the control of Defendants, and Plaintiff did not contribute to the collapse of the deck.
In reply, Defendants first argue that Rinaldi's affirmation and the Report fail to raise an issue of fact. Specifically, Rinaldi's affirmation as to the cause of the collapse of the deck is speculative, as he never inspected the subject deck. Further, Rinaldi's affirmation fails to connect the failure to perform the maintenance as indicated in the Report to the structural issues of the deck. Moreover, the Report did not mention structural issues concerning the subject deck. Further, Defendants did not cause the alleged defective condition, since the subject deck was built twenty-five years before the Report was created.
Finally, Defendants argue that res ipsa is inapplicable. Initially, the Court should not consider Plaintiff's res ipsa argument since it was not plead. Further, Defendants did not have notice of the alleged defects in the subject deck. Moreover, Defendants did not have exclusive control of the deck since it was built by the prior homeowners.
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D 'Anthony Enterprises, Inc. v. Sokolowsky, 101 A.D.3d 606, 607, 957 N.Y.S.2d 88, 91 [1st Dept 2012],quoting Alvarez v, Prospect Hosp., 68 N.Y.2d 320, 324 [1986] and Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]).
The burden then shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR 3212[b]; Sokolowsky, 101 A.D.3d 606). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Steward M Muller Constr. Co., 46 N.Y.2d 276, 281-82 [1978]; Carroll v. Radoniqi, 105 A.D.3d 493 [1st Dept 2013]). The Court views the evidence in the light most favorable to the non-moving party, and gives the non-moving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978]).
An owner of a premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that the owner either created or had actual or constructive notice of the condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [2007]; Applegate v. Long Is. Power Auth., 53 A.D.3d 515, 516, 862 N.Y.S.2d 86 [2d Dept 2008]; Powell v. Pasqualino, 40 A.D.3d 725, 836 N.Y.S.2d 218 [2d Dept 2008]). To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendant] to discover and remedy it" (Gordon, 67 N.Y.2d at 837).
"A landowner must act as a [] reasonable person in maintaining the property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Hayes v. Riverbend Hous. Co., Inc., 40 A.D.3d 500, 501, 836 N.Y.S.2d 589 [2007], lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 784, 876 N.E.2d 513 [2007]). Further, "constructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection" (Curiale v. Sharrotts Woods, Inc., 9 A.D.3d 473, 475, 781 N.Y.S.2d 47 [2d Dept 2004]; see Scoppettone v. ADJ Holding Corp., 41 A.D.3d 693, 694, 839 N.Y.S.2d 116 [2d Dept 2007]; Lal v. Ching Po Ng, 33 A.D.3d 668, 823 N.Y.S.2d 429 [2d Dept 2006]).
Here, Defendants demonstrated their prima facie entitlement to judgment as a matter of law by showing that they did not create or have actual or constructive notice of the condition.
First, Defendants submitted the testimony of Katia and Samuel, indicating that they never received any complaints and did not observe any defective condition associated with the subject deck. Defendants testified that the subject deck was already in place when they purchased the home in August 2009 (Casas Aff., Ex. F, Deposition Trans. of Katia, 5:9-21; id., Ex. G, Deposition Trans. of Samuel, 4:10-11; 5:3-14, 7:20-24). Defendants further testified that the only repairs made to the deck was to replace the steps, which Samuel performed (Ex. F, 11:4-25; 12:2-20; 22:25; 23:2-4; Ex., G, 23-25; 6:2; 7:2-15; 11:7-9; 23:2-9). On the date of the incident, Defendants hosted a barbecue at their home wherein 38 or 39 guests were present throughout the house and yard (Ex. F, 9:14-25; 10:2-12). Defendants further testified that from the time they purchased their home up to the date of Plaintiff's accident, they had hosted approximately six or seven similar-sized parties (id., Ex. F, 7:7-9; 12:21-25; 13:2-13; 22:3-10; Ex. G, 9:8-18).Defendants testified that they neither received notices regarding the subject deck, nor complaints regarding the deck (Ex. F, 13:14-17; Ex. G, 13:10-14). Further, Defendants testified that there were no apparent depressions, or un-level parts of the deck (Ex. F, 13:18-25; 14:2; Ex. G, 9:22-25; 10:2-3). Moreover, the deck did not make any noticeable noises (Ex. F, 13:18-21; Ex. G, 9:22-25; 10:2-3).
Next, the Report suggested that a visual inspection of the subject deck at the time they purchased the home revealed no visible defective condition associated with the deck. The section of the Report entitled "The Scope of the Inspection" indicates that the "purpose of this inspection is to identify and disclose visually observable major deficiencies of the inspected systems and items at the time of inspection only" (Report at 5). In relevant part, the Report indicated that the only "repair"2 needed to be preformed on the subject deck is: "[t]he deck should be cleaned and sealed or stained to improve durability" (id. at 8).
Defendants also submit the Certificate of Compliance which indicated that in June 2009 the rear deck "conforms substantially" with the approved plans filed with the Chester Building Department and legal provisions.
In opposition, Plaintiff...
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