Pippo v. City of New York

• Citation: 2007 NY Slip Op 06409,842 N.Y.S.2d 367,43 A.D.3d 303
• Decision Date: 09 August 2007
• Docket Number: 500.
• Parties: LOUIS PIPPO, Respondent, v. CITY OF NEW YORK, Defendant, HUNTS POINT TERMINAL PRODUCE COOPERATIVE ASSOCIATION, INC., Appellant-Respondent, and KLEINMAN & HOCHSBERG, INC., et al., Respondents-Appellants. HUNTS POINT TERMINAL PRODUCE COOPERATIVE ASSOCIATION, INC., Third-Party Plaintiff-Appellant-Respondent, v. KLEINMAN & HOCHSBERG, INC., Third-Party Defendant-Respondent-Appellant.
• Court: New York Supreme Court Appellate Division

43 A.D.3d 303

842 N.Y.S.2d 367

2007 NY Slip Op 06409

LOUIS PIPPO, Respondent, v. CITY OF NEW YORK, Defendant, HUNTS POINT TERMINAL PRODUCE COOPERATIVE ASSOCIATION, INC., Appellant-Respondent, and KLEINMAN & HOCHSBERG, INC., et al., Respondents-Appellants.

HUNTS POINT TERMINAL PRODUCE COOPERATIVE ASSOCIATION, INC., Third-Party Plaintiff-Appellant-Respondent, v. KLEINMAN & HOCHSBERG, INC., Third-Party Defendant-Respondent-Appellant.

500.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided August 9, 2007.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered November 29, 2005, which, to the extent appealed from as limited by the briefs, denied the motion by defendants Kleinman & Hochsberg and Eskay Trucking (K & H) and the cross motion by defendant Hunts Point Terminal Produce for summary judgment dismissing the complaint and cross claims against them, unanimously reversed, on the law and the facts, without costs, K & H's motion, and Hunts Point's cross motion for summary judgment dismissing all claims and cross claims against them granted, and the complaint and third-party complaint dismissed. The Clerk is directed to enter judgment accordingly.

The IAS court improperly exercised its discretion in rejecting the arguments of the corporate defendants that good cause existed for seeking summary judgment more than 120 days after the filing of the note of issue, inasmuch as, inter alia, plaintiff filed the note of issue after allowing his case to languish for years, and before any deposition or physical examination of him was conducted (see e.g. Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108 [2006]). Under the circumstances, including the corporate defendants' prompt but unsuccessful motions to vacate the note of issue, the subsequent discovery orders and ultimately their quest for summary judgment approximately five months after K & H's deposition, and even though appreciable discovery relating to plaintiff's medical condition remained, good cause existed to entertain the summary judgment motions (see e.g. Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000]).

Turning to the merits of defendants' motions, it is settled that the duty of a landowner to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended (Thompson v Menands Holding, LLC, 32 AD3d 622, 623-624 [2006]; Martin v Wagner, 30 AD3d 733, 734 [2006]). In this matter, it is undisputed that plaintiff's fall occurred during a heavy, ongoing snowstorm. As a result, the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact concerning defendants' negligence (Wheeler v Grande'Vie Senior Living Community, 31 AD3d 992 [2006]; see also Powell v MLG Hillside Assoc., 290 AD2d 345, 345 [2002] [where this Court held that "evidence of a storm in progress presents a...