Mitchell v. 7 Waterfront Prop., LLC
| Decision Date | 01 August 2017 |
| Docket Number | No. 12187/13.,12187/13. |
| Citation | 61 N.Y.S.3d 191 (Table) |
| Parties | Vaughan MITCHELL, Sr., as Administrator of all and singular the personal property, goods, chattels and credits of the Estate of Vaughan Mitchell Jr., deceased, and Vaughan Mitchell, Sr., Individually, Plaintiffs, v. 7 WATERFRONT PROPERTY, LLC, R.G.T. Realty, LLC and R.G.T. Realty Corp., Defendants. |
| Court | New York Supreme Court |
Schmelkin Associates, P.C., Law Offices of Ted Kessler, P.C., New York, 7 Waterfront Property, LLC, Brooklyn, Attorneys for Plaintiff.
Christina Stylianou, Connors & Connors, P.C., Staten Island, Attorneys for Defendants.
Recitation in accordance with CPLR 2219(a) of the papers considered on the joint motion of the defendants R.G.T. Realty, LLC and R.G.T. Realty Corp., (hereinafter the Realty defendants) filed on April 27, 2017, under motion sequence number three for an order pursuant to CPLR 2221 granting leave to reargue and to renew their prior motion for summary judgment dismissing the complaint.
On July 3, 2013, plaintiff Vaughan Mitchell, Sr., as administrator of the estate of Vaughan Mitchell, Jr. and individually commenced the instant action for damages for personal injuries, wrongful death and for derivative claims by filing a summons and verified complaint with the Kings County Clerk's Office. By verified answer with cross claim the Realty defendants joined issue. Defendant 7 Waterfront Property LLC did not answer the complaint or appear in the action. On June 26, 2017, the plaintiffs filed a note of issue.
The complaint and bill of particulars allege the following salient facts. On June 5, 2012, Vaughan Mitchell, Jr., an infant (hereinafter the decedent), accessed a beach on the Realty defendants property located at the north east corner of Jersey Street and Bank Street in the County of Richmond (hereinafter the premises) through a hole in the fence (the subject fence). The decedent went swimming and ultimately drowned. The complaint alleges, among other things, that the Realty defendants owned, operated, and maintained the premises and the subject fence. It further alleges that the Realty defendants negligently made repairs to the subject fence.
The Realty defendants seek leave to reargue and to renew a prior motion for summary judgment seeking dismissal of the action. By order dated March 3, 2017, the Court denied the prior motion for failing to make a prima facie showing of entitlement to dismissal.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts ( Giuffrida v. Citibank, 100 N.Y.2d 72 [2003] ).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 N.Y.2d 1062[1993] ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320 at 324, [1986] ).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist ( Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065 [1979] ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions ( Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 [1991] ).
( People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1st Dept 2008] ; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2nd Dept 1990] ).
CPLR 2221(d) provides: A motion for leave to reargue:
The Realty defendants did not annex a complete set of the prior motion papers to the instant motion. Exhibit C, which is purported to be the prior notice of motion, contains only the notice of motion and an affirmation in support. The affirmation in support refers to five annexed exhibits labeled A through E, none of which are attached. "The Court does not retain the papers following the disposition of an application and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions" ( Lower Main St. v. Thomas Re & Partners, 2005 WL 6760926, NYLJ, April 5, 2005, at 19, col 3, [Sup.Ct., Nassau County 2005], citing Sheedy v. Pataki, 236 A.D.2d 92, 97 [3rd Dept 1997] ). By not including the complete set of the prior motion papers the movant did not comply with the requirements of CPLR 2214(c) (see Wells Fargo Home Mortg., Inc. v. Mercer, 35 AD3d 728 [2nd Dept 2006]citing Alizio v. Perpignano, 225 A.D.2d 723, 724–725 [2nd Dept 1996] ).
The complete set of motion papers are necessary for consideration of both branches of the motion. Without it, the movants cannot demonstrate all the evidence and arguments that were previously offered and cannot show what evidence and arguments are newly proffered. Although the motion may be denied for this procedural defect alone, the interest of judicial economy is better served by addressing the merits.
The Realty defendants contend that the subject fence was not located on their property and accordingly was not their responsibility to maintain. In support of same, the Realty defendants have submitted, among other things, the affidavit of Robin Savin (hereinafter Savin), their Chief Executive Officer. They aver that Savin's affidavit was originally submitted in the prior motion papers as part of their reply to plaintiffs' opposition papers. They contend that the affidavit was disregarded because it was contained in the reply papers.2 They further contend that the disregard of Savin's affidavit provides adequate support for granting leave to reargue because, had it not been overlooked, the motion would have been granted.
Savin's affidavit contains seven paragraphs and states the following facts, among others. Savin is the Chief Executive Officer of the Realty defendants. On June 5, 2012, the date of the accident, the Realty defendants owned a property located at 15 Bank Street, Staten Island, New York. Upon information and belief, exhibit E of the original motion includes photographs depicting the location where the decedent gained entrance to access the site of the incident.3 Savin has stated that the subject fence had been "evidently since been replaced." Savin has further stated that based upon landmarks in the photographs such as the telephone pole, large rock by the water and "natural landscape"; and after reviewing a survey, Savin has concluded that the subject fence was not located on the Realty defendant's property. Savin's affidavit is drafted in a vague manner and invited the Court to speculate as to several items. It is unclear whether Savin had personally visited the site of the incident and knows the fence to have been moved or simply believes that to be. Also, is it the landmarks in the pictures that she is comparing to conclude that the fence was not on the Realty defendants' property or at the actual site? Furthermore, Savin does not affirmatively state that the Realty defendants did not relocate the fence nor have any contract or obligation to maintain the fence.
Savin did not annex a copy of the survey relied upon, nor offer any foundational facts supporting the ability to read or interpret a land survey. Although Savin did reach a conclusion that the subject fence was not on the premises owned by the Realty defendants Savin did not adequately support, by an evidentiary showing, how that conclusion was reached. Therefore, the conclusion lacks an evidentiary foundation.
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