Morgan v. Windham Realty LLC, 2008 NY Slip Op 31631(U) (N.Y. Sup. Ct. 5/21/2008)
| Decision Date | 21 May 2008 |
| Docket Number | 9680-06,Sequence No. 001, 002 & 003. |
| Parties | PATSY MORGAN and WESTER MORGAN, Plaintiffs. v. WINDHAM REALTY LLC, COLORS OF COLD SPRING HARBOR SALON & MAKEUP STUDIO, THE FRANCIS COMPANY, L.P. and TALBOTS, INC., Defendants. THE FRANCIS COMPANY, L.P. and TALBOTS, INC. Third-Party Plaintiffs. v. CORPORATE SERVICE NETWORK, INC. Third-Party Defendant. THE FRANCIS COMPANY, L.P. and TALBOTS, INC. Second Third-Party Plaintiffs. v. BLACKTOP UNLIMITED, INC. Second Third-Party Defendants. |
| Court | New York Supreme Court |
Motion (seq. No. 1) by the attorneys for the defendants Windham Realty LLC and Colors of Cold Spring Harbor, Inc., incorrectly sued herein as Colors of Cold Spring Harbor Salon & Makeup Studio, for an order pursuant to CPLR 3212 dismissing the complaint against them is granted. Cross motion (seq. No. 2) for an order pursuant to CPLR § 3212 granting the defendants/third-party plaintiffs the Francis Company, L.P. and Talbots, Inc. summary judgment and dismissing plaintiffs' complaint and all cross-claims and/or counterclaims against them is granted. Cross motion (seq. No. 3) for an order pursuant to CPLR 3212 granting the defendant Blacktop Unlimited, Inc., summary judgment and dismissing plaintiffs complaint and any and all cross claims and/or counterclaims against them and for an order denying the motion of summary judgment by the defendants Windham Realty LLC and Colors of Cold Spring Harbor Salon & Makeup Studio is determined as hereinafter set forth.
The within action arises out of an accident that occurred on August 30, 2003 when the plaintiff alleges she slipped and fell in a parking lot between Talbot's and Colors in Cold Spring Harbor, N.Y.
Francis Company, L.P. and Talbots, Inc. (hereinafter Talbots), defendants/third-party plaintiffs commenced a third-party action against the third-party defendant Corporate Service Network, Inc. No answer was served by Corporate Service Network, Inc. Talbots then commenced a second third-party summons and complaint against Blacktop Unlimited Inc., the second third-party defendants. Defendant Colors is located at 28 Main Street in Cold Spring Harbor. Colors leases the property which is a two-story building from defendant Windham. The lease began in 2002. Windham owned the building since 2001.
Plaintiff testified it was a sunny day when the accident occurred (Morgan Deposition, p. 10). She stated her accident occurred in a driveway between Talbots and Colors. Plaintiff arrived in New York from Athens, Georgia on the day of her accident. She and her daughter drove to the Color Hair Salon and parked in the parking lot directly behind that location. Plaintiff's granddaughter was also with her at that time. All three people entered the salon through the rear entrance. Plaintiff and her granddaughter then exited the front entrance five minutes later, to walk around town . They then returned to the salon and met plaintiffs daughter. The three of them then went up from Color's side entrance up the hill, she described as a "slope" and entered Talbots through its rear entrance . Plaintiff was wearing shoes, she described as . She exited the rear entrance of Talbot's and was walking across the driveway on the way back to her daughter's car when her accident happened (Morgan Deposition, p. 74). Plaintiff stated the accident occurred in the driveway, which was made of a "rich black, I guess asphalt." Plaintiff had no difficulty walking in the driveway from the side entrance of Colors to Talbots (Morgan Deposition, p. 74) and did not notice any debris on the ground in that area . Plaintiff's daughter and granddaughter were already at the car when plaintiff had her accident . Plaintiff stated she was watching her granddaughter (Morgan Deposition p. 22) and looking at the car while she was walking across the driveway. She claimed her both feet "slid" and that she went down on her tailbone . While she was on the ground, plaintiff did not notice anything about the area that may have caused her to fall (Morgan Deposition, p. 50).
Where plaintiff is unable to identify the condition which caused her to suffer her injuries, she may not recover based upon speculation. (See, Visconti v. 110 Huntington Assocs., 272 A.D.2d 420.
On a motion for summary judgment, the Court's function is to decide whether there is a material factual issue to be tried, not to resolve it. Sillman v. Twentieth Century Fox Films Corp., 3 N.Y.2d 395, 404. A prima facie showing of a right to judgment is required before summary judgment can be granted to a movant. Alvarez v. Prospect Hospital, 66 N.Y.2d 320; Winegrad v. New York University Medical Center, 64 N.Y.2d 851; Fox v. Wyeth Laboratories, Inc., 129 A.D.2d 611; Royal v. Brooklyn Union Gas Co., 122 A.D.2d 133. The Windham, Colors and Talbot's defendants have made an adequate prima facie show of entitlement to summary judgment.
Once a movant has shown a prima facie right to summary judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing party must be presented by evidentiary proof in admissible form. Friends of Animals, Inc. v. Associated Fur Mfgrs., Inc., 46 N.Y.2d 1065. Conclusory statements are insufficient. Sofsky v. Rosenberg, 163 A.D.2d 240, aff'd 76 N.Y.2d 927; Zuckerman v. City of New York, 49 NY2d 557; see, Indig v. Finkelstein, 23 N.Y.2d 728; Werner v. Nelkin, 206 A.D.2d 422; Fink, Weinberger, Fredman, Berman & Lowell, P.C. v. Petrides, 80 A.D.2d 781, app dism. 53 N.Y.2d 1028; Jim-Mar Corp. v. Aquatic Construction, Ltd., 195 A.D.2d 868, lv app den. 82 N.Y.2d 660.
In opposition to the within motion for summary judgment the attorneys for the plaintiffs refer to deposition testimony of Ms. Schenck, the owner and vice-president of Colors. She testified that her employees have performed cleaning or shoveling work when snow covered the parking lot behind Colors . She testified that prior to August, 2003, paving had been done. She described the paving as being black, like a seal coat. She does not know who did the paving. She never witnessed the work being performed. "It covered the driveway, Talbot's and our two spaces" (Schenck Deposition, p. 20, line 13-14). "We came to work one day and it was all coated" (Schenck Deposition, p. 21, lines 15-16). She does not know when or what time of year the black seal was applied. According to Windham since it owned the building no contractors were hired to level, pave or seal the property. Ms. Schenck also testified that when it rained cars would have a difficult time. Sometimes she would hear their wheels spin. Allegedly somebody fell in Talbot's parking lot subsequent to the repaving. Again, she does not remember the date. Ms. Schenck asserts she notified Talbot's and the landlord both orally and in writing of the alleged slippery condition. She has no record of when the alleged notice was communicated. Defendants Talbot and Windham deny ever receiving any notice. Assuming, arguendo, Ms. Schenck notified Talbot's and Windham that car wheels spun when it rained, there is no evidence that a pedestrian slipped on the pavement while walking either in the rain or on a sunny day. While plaintiff has asserted that an "extremely slippery asphalt sealant" was the sole cause of the alleged incident, plaintiff failed to present any...
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