Susan Vitiello v. Aldrich Mgmt. Co.
| Decision Date | 28 June 2011 |
| Docket Number | Motion Seq. No.: 04,Motion Seq. No.: 03,Motion Seq. No.: 02,Index No.: 15212/09 |
| Parties | SUSAN VITIELLO, Plaintiff, v. ALDRICH MANAGEMENT CO., LLC , TOWN OF HEMPSTEAD, CVS PHARMACY, INC. and CVS ALBANY, LLC, Defendants. |
| Court | New York Supreme Court |
Acting Supreme Court Justice
Motion Date: 01/18/11
Motion Date: 03/02/11
Motion Date: 03/10/11
The following papers have been read on these motions:
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¦ ¦Papers ¦
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¦Notice of Motion (Seq. No. 02). Affirmation and Exhibits ¦ ¦
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¦Notice of Motion (Seq. No. 03). Affirmation. Affidavit and ¦ ¦
¦Exhibits ¦ ¦
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¦Notice of Motion (Seq. No. 04). Affirmation and Affidavit ¦ ¦
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¦Affirmation in Opposition and Exhibits ¦ ¦
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¦Reply Affirmation (Seq. No. 02) ¦ ¦
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¦Reply Affirmation (Seq. No. 03) and Exhibit ¦ ¦
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¦Reply Affirmation (Seq. No. 04) ¦7 ¦
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Upon the foregoing papers, it is ordered that the motions are decided as follows: Defendants CVS Pharmacy, Inc. and CVS Albany, LLC (collectively "CVS") move (Seq. No. 02), pursuant to CPLR § 3212, for an order granting it summary judgment and dismissing plaintiff's Verified Complaint and any and all cross-claims. Defendant Aldrich Management Co., LLC ("Aldrich") moves (Seq. No. 03), pursuant to CPLR § 3212, for an order granting it summary judgment and dismissing plaintiff's Verified Complaint and any and allcross-claims. Defendant Town of Hempstead ("Town") moves (Seq. No. 04), pursuant to CPLR § 3212, for an order granting it summary judgment and dismissing plaintiff's Verified Complaint. Plaintiff opposes the motions.
Plaintiff commenced the underlying negligence action against the three defendants when she slipped and fell on a black ice condition in defendants CVS's parking lot. The three defendants cross-claimed against each other for indemnification and/or contribution in the event that they are found liable to the plaintiff.
On January 11, 2009, at approximately 2:00 p.m., plaintiff, after exiting defendants CVS's store located at 646 Wantagh Ave., Levittown, New York, sustained injuries when she slipped and fell on an alleged black ice condition in the adjacent parking lot. The temperature at the time was below freezing. Defendant Aldrich is the landlord and owner of the improved real property where defendants CVS are tenants and certain parking areas that are adjacent to the store. The parking area also consists of public parking. Defendant Town owned the particular public parking area where plaintiff fell. Defendant Town performed snow and ice removal operations in said parking area one day before plaintiff's accident. Further, it had snowed about one week prior to the date of the subject incident.
Paragraph 27 of the lease agreement between defendants Aldrich and CVS provides in relevant part:
"...The Landlord agrees . . . to maintain in good condition . . . the parking areas within the area owned by the Landlord . . . Landlord further agrees to . . . maintain adequate lighting . . . for said parking areas, and to clean same . . . If the Town of Hempstead shall fail to maintain the parking area . . . Landlord will exercise all available remedies, including but not limited to, exercising its reversionary rights . . . The Landlord covenants that there is not now„„any legal impediment to the use of the premises by the Tenant for its business . . . or to the use of or access to the parking areas . . . owned by the Town of Hempstead . . . "
Plaintiff filed the underlying Summons and Verified Complaint on or about July 30, 2009, alleging that the three defendants were negligent in that they breached their duty by failing to maintain the parking area and exacerbating and/or creating the hazardous condition in saidparking area. Plaintiff avers that such conduct was the proximate cause of her accident and resulting injuries.
Defendants CVS, argue that, as tenants, they did not own, possess or control the area where plaintiff's accident occurred. Their lease agreement provides that the responsibility for the cleaning and maintenance of the parking lot is that of the landlord, defendant Aldrich. In addition to the lease agreement and copies of the pleadings, defendants CVS attach transcripts of the Examinations Before Trial ("EBT") of plaintiff, Manuel Duran (the CVS manager on duty at store on the date of the accident), Milton Altschuler (defendant Aldrich managerial employee) and Joseph DelMestro (defendant Town foreman responsible for maintaining roads in the southern area of Levittown).
Defendant Aldrich argues that it had never undertaken the responsibility of performing snow and ice removal on the defendant Town owned property, that it was not aware of any complaints regarding the alleged dangerous and defective condition and that it never received any complaints regarding such a condition. As such, defendant Aldrich submits that, as a non-owner, it has no duty to plaintiff and it did not have actual or constructive notice of any dangerous and/or hazardous condition. In support, defendant Aldrich attached basically the same documents as defendants CVS, while including a survey and/or site plan of the subject parking area and adjacent buildings.
Defendant Town contends that prior written notice of any defective and/or dangerous condition, including snow and ice conditions, is required by local and/or State law. As defendant Town produced evidence that it received no such notice, plaintiff was required to presentevidence that defendant Town affirmatively caused the condition by its actions. Defendant Town argues that, since plaintiff failed to produce said evidence, the Verified Complaint against defendant Town should be dismissed. In support of its motion, defendant Town submits an affidavit from its Records Access Officer of the Highway Department, Sheila Dauscher, Deputy Superintendent of Public Works.
The standards for summary judgment are well settled. A Court may grant summary judgment where there is no genuine issue of a material fact and the moving party is therefore entitled to summary judgment as a matter of law. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial. See Barr v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989); Miller v. Journal-News, 211 A.D.2d 626, 620 N.Y.S.2d 500 (2d Dept. 1995).
The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issue of fact. See Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463 (1993). If this initial burden has not been met, the motion must be denied without regard to the sufficiency of the opposing papers. See Alvarez v. Prospect Hospital, supra.
Once the initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form, sufficient to create material issues of fact requiring a trial. Mere conclusions and unsubstantiated allegations or assertions areinsufficient. See Zuckerman v. City of New York, 49 N.Y.2d 557,427 N.Y.S.2d 595 (1980).
To impose liability upon a defendant in a slip and fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it. A defendant has constructive notice of a defect when the defect is visible and apparent and has existed for a sufficient length of time before the accident that it could have been discovered and corrected. See Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 (1986); Larsen v. Congregation B'Nai Jeshurun of Staten Island, 29 A.D.3d 643, 815 N.Y.S.2d 187 (2d Dept. 2006).
As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control or special use of the property. The determinative question is one of possession or control. Here, the evidentiary submissions by defendants CVS and Aldrich demonstrated that they did not have an exclusive right to possession of the parking lot and that they had no right or obligation to maintain the subject area. See Welwood v. Association for Children With Down Syndrome, Inc., 248 A.D.2d 707, 670 N.Y.S.2d 556 (2d Dept. 1998); Franks v. G & H Real Estate Holding Corp., 16 A.D.3d 619, 793 N.Y.S.2d 61 (2d Dept. 2005). As to defendants CVS, without possession, or a right to maintain or control the...
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