Miller v. Giaquinto Bros., LLC

• Decision Date: 11 March 2019
• Docket Number: Index 617492/2016
• Citation: 2019 NY Slip Op 34358 (U)
• Parties: LORI MILLER, Plaintiff, v. GIAQUINTO BROTHERS, LLC; Defendant..
• Court: New York Supreme Court

2019 NY Slip Op 34358(U)

LORI MILLER, Plaintiff, v. GIAQUINTO BROTHERS, LLC; Defendant..

Index No. 617492/2016

Supreme Court, Suffolk County

March 11, 2019

Unpublished Opinion

SUBMIT DATE 2-28-19

DELL & DEAN, PLLC Attorney for Plaintiff

HOFFMAN ROTH & MATLIN, LLP Attorney for Defendant

HON JOSEPH A. SANTORELLI J.S.C.

Upon the following papers numbered 1 to 57 read on this motion for summary judgment; Amended Notice of Motion/Order to Show Cause and supporting papers 1-17.; Notice of Cross Motion and supporting papers __ Answering Affidavits and supporting papers 18 - 42 Replying Affidavits and supporting papers 43 - 57 Other __, (and after hearing counsel in support and opposed to the motion) it is, Defendant, Giaquinto Brothers, LLC, moves for an order pursuant to CPLR 3212 granting summary judgment and dismissing the plaintiffs claims. The plaintiff opposes this application.

The plaintiff commenced this action to recover damages for personal injuries allegedly sustained on January 7, 2014, when she purportedly slipped and fell on black ice in the parking lot of the premises located at 303 Marcus Boulevard, Deer Park, New York. The premises was occupied at the time by Salesmaster Associates, the plaintiffs employer, and owned by Giaquinto Brothers, LLC, the defendant. The plaintiff claims that it had snowed 24 to 48 hours prior to the accident and she had walked for approximately 1.5 minutes before she slipped. She indicated that she did not see any ice before she fell but only saw it once she was on the ground since it was the same color as the blacktop. The defendant argues that under the lease the tenant was responsible for maintenance of the parking lot, including snow and ice removal. Defendant claims that it is an out-of-possession landlord/owner.

CPLR §3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment (Olan v. Farrell Lines, Inc., 105 AD 2d 653, 481 N.Y.S.2d 370 (1st Dept, 1984; aff'd 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985); Spearman v. Times Square Stores Corp., 96 AD 2d 552, 465 N.Y.S.2d 230 (2^nd Dept, 1983); Weinstein-Korn-Miller, New York Civil Practice Sec. 3212.09)).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Salman v. Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form .. . and must "show facts sufficient to require a trial of any issue of fact" (CPLR3212 [b]; Gilbert Frank Corp. v. Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988]; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v. Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v. Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983]).

On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v. Keltie's Bum Steer, supra, citing Glick & Dolleck v. Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 487N.Y.S.2d 105 [2d Dept 1985], aff'd, 66N.Y.2d 701, 496N.Y.S.2d425, 487 N.E.2d 282).

In Scott v Bergstol, 11 A.D.3d 525, 525-526 [2d Dept 2004], the Court held that

Generally, an out-of-possession owner or lessor is not liable for injuries that occur on its premises unless it has retained control over the premises or is contractually obligated to repair unsafe conditions (see Vijayan v Bally's Total Fitness, 289 A.D.2d 224, 733 N.Y.S.2d 703 [2001]; Berado v City of Mount Vernon, 262 A.D.2d 513, 694 N.Y.S.2d 403 [1999]). Here, Bergstol established her entitlement to judgment as a matter of law by demonstrating that she was an out-of-possession landlord with no duty to remove snow and ice from the premises (see Jackson v United States Tennis Assn,, 294 A.D.2d 470, 742 N.Y.S.2d 374 [2002]; Shrenkel v New York State Dormitory Auth., 266 A.D.2d 369, 698 N.Y.S.2d 299 [1999]; Carvano v Morgan, 270 A.D.2d 222, 703 N.Y.S.2d 534 [2000]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The plaintiffs contention that the roof of the building was improperly designed, constructed, and maintained was purely speculative. Accordingly, the Supreme Court properly granted Bergstol's motion for summary judgment dismissing the complaint insofar as asserted against her.

In Yadegar v Inti. Food Mkt, 37 A.D.3d 595, 596-597 [2d Dept 2007], the Court held that

Stein satisfied his burden on his motion for summary judgment dismissing the complaint insofar as asserted against him by demonstrating that he was an out-of-possession landlord who was not obligated to maintain or repair the parking lot (see Salgado v Ring, 21 A.D.3d 362, 363, 798 N.Y.S.2d 920 [2005]; Knipfing v V & J, Inc., 8 A.D.3d 628, 629, 779 N.Y.S.2d 244 [2004]; Ahmad v City of New York, 298 A.D.2d 473, 474, 748 N.Y.S.2d 777 [2002])... In opposition, the plaintiffs failed to raise a triable issue of fact. "Reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession owner or lessor for injuries caused by a dangerous condition, but only when 'a specific statutory violation exists and there is a significant structural or design defect"' (Lowe-Barrett v City of New York, 28 A.D.3d 721, 722, 815 N.Y.S.2d 630 [2006], quoting Stark v Port Auth. of NY. & N.J., 224 A.D.2d 681, 682, 639 N.Y.S.2d 57 [1996]). Here, however, although Stein retained a right to re-enter the premises, the plaintiffs did not allege the violation of a statutory provision and presented no evidence demonstrating that the raised and broken asphalt in the parking lot constituted a significant structural or design defect (see Schwegler v City of Niagara Falls, 21 A.D.3d 1268, 801 N.Y.S.2d 873 [2005]; Salgado v Ring, supra 21 A.D.3d at 363 [2005]; Seney v Kee Assoc, 15 A.D.3d 383, 384-385, 790N.Y.S.2d 170 [2005]; Sangiorgio v Ace Towing & Recovery, 13 A.D.3d 433, 787 N.Y.S.2d 51 [2004]). Accordingly, Stein's cross motion should have been granted.

Similarly, in Lindquist v C & C Landscape Contrs., Inc., 38 A.D.3d 616, 617 [2d Dept 2007], the defendant argued that under the provisions of the lease it was an out-of-possession landlord not responsible for repairs or maintenance, and the Court held that

The provisions of the lease were sufficient to establish GSL's prima facie

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