Seaman v. N.Y. Racing Auth.
| Decision Date | 23 November 2020 |
| Docket Number | Index 20181524 |
| Citation | 2020 NY Slip Op 34927 (U) |
| Parties | CARRIE SEAMAN, Plaintiff, v. NEW YORK RACING AUTHORITY, INC., STONE INDUSTRIES, LLC and TOWNSQUARE MEDIA, Defendants. RJI No. 45-1-2018-1635 |
| Court | New York Supreme Court |
Unpublished Opinion
Matthew A. Toporowski, .Esq. The Wagoner Firm, PLLG Attorney for Plaintiff Albany, NewYork
Michael J~ Murphy, Esq. Barclay Damon LLP Attorney for Defendant NYRA1 Inc. Albany, New York
AndrewJ. Wells, Esq. SegalMcCambridge Singer & Maloney Attorney for Defendant Townsquare Media, Inc, NewYork, New York
Derek Hayden, Esq. Law Offices of M. Randolph Belkin Attorney for Defendant Stone Industries Latham, New York
Plaintiff Carrie Seaman (hereinafter individually referred to as "plaintiff") commenced this personal injury action on May 15, 2018 by filing a summons and complaint in the Saratoga County Clerk's Office.[1] Thereafter, defendant New York Racing Authority, Inc. (hereinafter "NYRA") served an answer to the complaint, which interposed ten affirmative defenses, two cross claims against defendant Stone Industries, LLC (hereinafter "Stone"), and two cross claims against defendant Townsquare Media, Inc. (hereinafter "Townsquare"). On or about June 14, 2018, Stone answered the complaint and asserted eight affirmative defenses and interposed a cross claim against NYRA and Townsquare. Subsequently, on or about August 10, 2018, Townsquare served an answer to the complaint and interposed various affirmative defenses and cross claims.
At approximately 7:00 p.m. on September 30, 2017, while attending the Saratoga Harvest Festival at the Saratoga Race Course located in the City of Saratoga, County of Saratoga, plaintiff allegedly tripped and fell over a metal tent stake and collided with a portable toilet situated on a cement slab. NYRA is the lessee and operator of the Saratoga Race Course. On or about January 4, 2017, Townsquare entered into a license agreement with NYRA to hold, among other events, the Saratoga Harvest Festival at the Saratoga Race Course on September 30, 2017. Townsquare entered into a rental contract and lease agreement with Stone for portable toilets for said event. Plaintiff brought this action against defendants seeking damages for her injuries. Plaintiff contends that "defendants knew or should have known that the tent tie-down was a dangerous condition and should have taken reasonable precautions to prevent injuries to individuals they expected to use the portable] [toilets] next to the tent tie-downs at Harvest Fest 2017."
Following joinder of issue and discovery, by notice of motion dated August 13, 2020, NYRA moved for summary judgment pursuant to CPLR 3212 on its cross claims against Townsquare (see NYSCEF Document Nos. 3 through 23). By notice of motion dated August 14, 2020, plaintiff moved for partial summary judgment on the issue of liability against defendants (see NYSCEF Document Nos. 25 through 46). By notice of motion dated August 12, 2020, Stone moved for summary judgment: dismissing plaintiffs complaint and for an order granting contractual indemnification against Townsquare (see NYSCEF Document Nos. 47 through 68). NYRA opposed plaintiff s motion by Affidavit dated September 10, 2020 and supporting exhibits A through F (see NYSCEF Document Nos. 69 through 77). Stone opposed plaintiff s motion for summary judgment by affirmation dated September 10, 2020 (see NYSCEF Document No. 78), Townsquare opposed NYRA's motion for summary judgment by affirmation dated September 11, 2020 and annexed exhibits A through K (see NYSCEF Document Nos. 79 through 90). Townsquare opposed plaintiffs motion by affirmation dated September 11, 2020 and supporting exhibits A through K (see NYSCEF Document Nos. 91 through 102). On September 30, 2020, NYRA submitted a reply affidavit (see NYSCEF Document No. 104)., On September 30, 2020, plaintiff submitted two separate reply affirmations with supporting exhibits (see NYSCEF Document Nos. 105 through 139). On October 14, 2020, Townsquare submitted an affirmation in opposition to Stone's motion for summary judgment with supporting exhibits A through K (see NYSCEF Document Nos. 147 through 158), On October 22, 2020, Stone submitted a reply affirmation (see NYSCEF Document Nos. 159-160). On October 27, 2020, the Court afforded the parties an opportunity to virtually argue their respective motions and to address any of the issues contained within said papers.
The proponent of a summary judgment motion is obligated to make a prima facie showing of entitlement to judgment as a matter of law by tendering admissible evidence demonstrating the absence of a material question of fact (see Alvarez v Prospect Hosp.. 68 N.Y.2d 320, 324 [1986]; Pullman v Silverman. 28, NY3d 1060, 1062 [2016]; Andrew R. Mancini Associates, Inc. v. Mary Imogene Bassett Hosp.. 80 A.D.3d 933, 935 [3d Dept 2011]; Smith v Allen. 124 A.D.3d 1128 [3d Dept 2015]; Freitag v Village of Potsdam. 155 A.D.3d 1227, 1229 [3d Dept 2017]). If the moving party meets its initial burden, the burden then shifts to the nonmoving party to produce evidence sufficient to demonstrate a material issue of fact to avoid summary judgment (see Zuckerman v City of New York. 49 N.Y.2d 557, 562 [1980]; Stonehill Capital Met.. LLC v Bank of the W.. 28 NY3d 439, 448 [20161: U.W. Marx. Inc. v Koko Contr. Inc.. 97 A.D.3d 893, 894 [3d Dept 2012]; Hicks v Berkshire Farm Ctr. & Servs. for Youth. 123 A.D.3d 1319 [3d Dept 2014]). It is well settled that a court reviewing a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party (see Vega v Restani Constr. Corp.. 18 N.Y.3d 499, 503 [2012]; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP. 26 N.Y.3d 40, 49 [2015]; Winne v Town of Duanesburg. 86 A.D.3d 779, 780 [3d Dept 2011]; Marra v Hughes. 123 A.D.3d 1307 [3d Dept 2014]). A court '"may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned'" (Rock-Wright v O'Connor, 172 A.D.3d 1507, 1509 [3d Dept 2019]. quoting Glick & Dolleck v Tri-Pac Export Corp.. 22 N.Y.2d 439, 441 [1968]).
First, with regard to plaintiff's motion seeking partial summary judgment on the issue of liability against defendants, "[i]n order to prevail in any action premised upon negligence, it must be established that defendants] owed plaintiff a duty, that defendants], by act or omission, breached such duty, that such breach was the proximate cause of plaintiff s injuries, and that plaintiff sustained damages" (Salvador v New York Botanical Garden, 71 A.D.3d 422, 423 [1st Dept 2010]; see Katz v United Synagogue of Conservative Judaism. 135 A.D.3d 458, 459 [1st Dept 2016]). Generally, "[a] property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition" (Chang v Marmon Enterprises. Inc.. 172 A.D.3d 678, 678 [2d Dept 2019]). In order to establish a prima facie case of negligence involving defective or dangerous conditions on property, "[i]t is well settled that a plaintiff in a trip and fall case must demonstrate that the defendant either created the dangerous condition which caused the accident, or that the defendant had actual or constructive notice of the condition and failed to remedy it in a reasonable time" (Q'Hanlon v Bodouva. 251 A.D.2d 474, 474 [2d Dept 1998]; see Haseley v Abels, 84 A.D.3d 480, 482 [1st Dept 2011]). "Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the . circumstances of each case, and is generally a question of fact for the jury" (Davis v Sutton, 136 A.D.3d 731, 733 [2d Dept 2016]: see Wiedenbeck v Lawrence, 170 A.D.3d 1669, 1669 [4th Dept 2019]). Furthermore, "[t]he issue of proximate cause is ordinarily a question of fact for a jury to resolve" (Reed v New York State Elec. & Gas Corp., 183 A.D.3d 1207, 1211 [3d Dept 2020][internal quotation marks and citation omitted]; see O'Keefe v Wohl, 184 A.D.3d 1046, 1047 [3d Dept 2020]).
In support of its motion for summary judgment, plaintiff proffered, inter alia, the pleadings, deposition testimony and numerous exhibits (see NYSCEF Doc. .26 through 45), Plaintiff maintains that NYRA and Townsquare owed plaintiff a duty of care, that NYRA and Townsquare had actual and/or constructive notice, of the dangerous condition and that they had failed to remedy said condition despite having sufficient time to do so. Plaintiff relies, in part, on the case of Deluca v Cachet Mat. LLC. (2019 NY Slip Op 32541 [U] [Sup Ct, New York County 2019]) in support of her claim that she is entitled to summary judgment on the issue of liability. However, unlike the case of Deluca v Cachet Met. LLC. (2019 NY Slip Op.32541[U] [Sup Ct, New York County 2019]) there were no known witnesses to the subject accident and defendants have not been precluded from offering evidence herein. It is well settled, that negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" . Consequently, a "plaintiff in a negligence action 'will generally be entitled to summary judgment only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiffs conduct either was not really involved ... or was...
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