Scheffield v. Vestal Parkway Plaza, LLC

• Decision Date: 05 May 2016
• Docket Number: 521770.
• Citation: 31 N.Y.S.3d 628,2016 N.Y. Slip Op. 03575,139 A.D.3d 1161
• Parties: Eric SCHEFFIELD et al., Appellants–Respondents, v. VESTAL PARKWAY PLAZA, LLC, Respondent, and BRRS Associates et al., Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1161

31 N.Y.S.3d 628

2016 N.Y. Slip Op. 03575

Eric SCHEFFIELD et al., Appellants–Respondents,

v. VESTAL PARKWAY PLAZA, LLC, Respondent,andBRRS Associates et al., Respondents–Appellants.

521770.

Supreme Court, Appellate Division, Third Department, New York.

May 5, 2016.

Law Office of Alfred Paniccia Jr., Binghamton (Alfred Paniccia Jr. of counsel), for appellants-respondents.

Levene Gouldin & Thompson, LLP, Binghamton (Robert G. Bullis of counsel), for BRRS Associates and another, respondents-appellants.

Barclay Damon LLP, Syracuse (Alan R. Peterman of counsel), for Vestal Parkway Plaza, LLC, respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY and MULVEY, JJ.

GARRY, J.

Appeal from an order of the Supreme Court (Tait, J.), entered May 11, 2015 in Broome County, which, among other things, granted a motion by defendant Vestal Parkway Plaza, LLC for summary judgment dismissing the complaint against it.

In 2007, plaintiff Eric Scheffield was injured when he fell on property in the Town of Vestal, Broome County owned by defendant Vestal Parkway Plaza, LLC (hereinafter Vestal). Scheffield's fall occurred in a grassy area adjoining the parking lot of a shopping plaza. The property is fronted by the Vestal Parkway, a four-lane highway. It formerly fronted Ozalid Road, which ran parallel to Vestal Parkway, and consisted of two adjoining parcels owned separately by defendants Parkway Plaza, LLC (hereinafter Parkway) and BRRS Associates. The parcel owned by BRRS was subject to an easement granted in 1984 to the New York Telephone Company for a small parcel near Ozalid Road, together with an unspecified right of ingress and egress. A communications vault was built on the easement parcel. Ozalid Road was used for access to this vault until the Town abandoned the road in 1995 and transferred title to BRRS and Parkway. In 1996, BRRS conveyed its parcel to Parkway, which constructed the shopping plaza on the property, removed the paved surface of Ozalid Road, and replaced it with grass. In 2003, Parkway conveyed its interest in the property to Vestal.

According to plaintiffs, after the removal of Ozalid Road, workers for Verizon—New York Telephone Company's successor—accessed the communications vault by parking in the shopping plaza parking lot near the easement parcel, stepping over a low railing and walking down a grassy slope that borders the parking lot. Scheffield was in the course of his employment with Verizon and was approaching the vault when he slipped and fell on the slope. He and his spouse, derivatively, commenced this negligence action alleging that BRRS, Parkway and Vestal caused his injuries by failing to maintain the property in a reasonably safe condition and by creating a dangerous condition. Supreme Court granted a motion by BRRS and Parkway to dismiss the complaint for failure to state a cause of action. Upon appeal, this Court affirmed the dismissal of the claim for failure to maintain the property, but reversed as to the claim based upon the creation of an alleged dangerous condition (102 A.D.3d 992, 993–994, 958 N.Y.S.2d 232 [2013] ). In 2014, Vestal moved for summary judgment dismissing the complaint against it, and BRRS and Parkway also jointly did so; both motions asserted that plaintiffs could not establish that there was a dangerous condition or that defendants had notice of any such condition. The court denied the motion of BRRS and Parkway, but granted Vestal's motion. Plaintiffs appeal from the court's grant of summary judgment to Vestal, and BRRS and Parkway appeal from the denial of their motion for summary judgment dismissing the complaint.

Scheffield had performed work within the easement parcel between 10 and 20 times in the three years before his accident, and approximately twice in the week before his fall. He had never previously had difficulty accessing the easement parcel, nor did he know of other Verizon employees who had experienced any problems. On prior occasions, he had stepped over the railing that surrounded the parking lot in various locations and had used various routes across the grassy slope to reach the parcel. On the day of the accident, Scheffield had made one trip from his parked van across the slope to the vault and back again without difficulty. After returning to the van to obtain some equipment, he stepped over the railing in a different place, and then noticed that this part of the slope was steeper than the location he had previously used. He stopped moving. Heavy rain was falling and, as he stood briefly on the wet grass—which he described as very slippery—he fell down the slope.

As a general rule, “a landowner's liability for the condition of real property ceases when possession and control thereof is transferred” (Young v. Hanson, 179 A.D.2d 978, 978–979, 579 N.Y.S.2d 221 [1992] ; see Bittrolff v. Ho's Dev. Corp., 77 N.Y.2d 896, 898, 568 N.Y.S.2d 902, 571 N.E.2d 72 [1991] ; Romel v. Reale, 155 A.D.2d 747, 748, 547 N.Y.S.2d 691 [1989] ). As noted in our previous decision, there is an exception in certain limited circumstances when a former landowner “ affirmatively created the dangerous condition” (Marrero v. Marsico, 218 A.D.2d 226, 229, 639 N.Y.S.2d 183 [1996] ; see 102 A.D.3d at 993, 958 N.Y.S.2d 232 ).¹ However, further development of the record reveals that this narrow exception does not apply to either of the property's former owners. There is no evidence that BRRS took any affirmative actions that created a dangerous condition. The record includes an affidavit by Marc Newman, a member of Parkway, averring unequivocally that BRRS had no involvement in the development and construction of the shopping plaza, which did not begin until after the property was conveyed to Parkway. Plaintiffs submitted no contrary evidence, and their unsupported conjecture that BRRS might have been involved in the early stages of planning before the conveyance “is pure speculation [that] cannot be used to defeat summary judgment” (Piluso v. Bell Atl. Corp., 305 A.D.2d 68, 70, 759 N.Y.S.2d 58 [2003] ).

As for Parkway, Supreme Court found issues of fact as to whether the construction of the shopping plaza created a dangerous condition. However, the analysis described in Marrero is narrow. It applies only when a former owner who is also acting as a construction contractor is alleged to have affirmatively created a dangerous condition (see Marrero v. Marsico, 218 A.D.2d at 229, 639 N.Y.S.2d 183 ). In such cases, the former owner's liability is not based upon its ownership, possession or control of property, but, rather, upon the “modern rule” that holds building and construction contractors whose negligence results in the creation of a dangerous condition liable for foreseeable injuries to third parties, even after the property owner has accepted the work (Church v. Callanan Indus., 285 A.D.2d 16, 18–19, 729 N.Y.S.2d 545 [2001], affd. 99 N.Y.2d 104, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ; see Robertson v. Amherst Paving,

302 A.D.2d 913, 913, 755 N.Y.S.2d 350 [2003] ; Colonno v. Executive I Assoc., 228 A.D.2d 859, 860, 644 N.Y.S.2d 105 [1996] ).

Here, there is no evidence that Parkway engaged in any negligent construction activities. Parkway acknowledges that the shopping plaza construction project included removing the pavement on Ozalid Road, regrading the roadbed, and replanting that area, but plaintiffs do not claim that any of this work was negligently performed or directly caused Scheffield's accident. Instead, they assert that the road's removal required Scheffield to use the grassy slope to reach the vault, and that the slope was either inherently unsafe because it was too steep in its natural form—which would not give rise to liability for affirmative creation of a dangerous condition—or became unsafe because Parkway regraded it and increased its steepness. However, Parkway demonstrated that the steepness of the slope was not changed, by submitting the affidavit of a project manager who asserted that the grassy slope existed before the shopping plaza was constructed, that it was not affected by the removal of Ozalid Road, and that its steepness was not altered. Plaintiffs submitted no contradictory evidence. Plaintiffs contend upon appeal that topographic maps reveal the perimeter of the parking lot at the top of the slope to be slightly higher following the construction of the shopping plaza. However, plaintiffs do not argue that the maps reveal a change in the steepness of the slope, as opposed to its height, and there is no clear causal connection. Moreover, this alleged height differential was not mentioned in the affidavit of plaintiffs' surveyor, and counsel's assertion does not constitute “proof in admissible form which would provide the necessary foundation” for any claim based upon a change in the slope's height (Patterson v. Palmieri, 284 A.D.2d 852, 853, 727 N.Y.S.2d 197 [2001] ; accord Bergstrom v. McChesney, 92 A.D.3d 1125, 1126, 938 N.Y.S.2d 663 [2012] ). Plaintiffs thus failed to establish the existence of issues of fact as to whether Parkway affirmatively created a dangerous condition (compare Middleton v. Dovale, 4 A.D.3d 345, 346, 771 N.Y.S.2d 538 [2004] ).² For the reasons above, we find that summary judgment should have been granted in favor of BRRS and Parkway, the former property owners.

As for Vestal, plaintiffs assert that the grassy slope constituted a dangerous condition that posed a hazard to Verizon employees seeking to access the easement parcel. Supreme Court granted summary judgment dismissing...