Morgan v Holly St. Holding Corp.
2022 NY Slip Op 34844(U)
February 24, 2022
Supreme Court, Kings County Docket Number: Index No. 515094/2018 Judge: Peter P. Sweeney
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS COUNTY CLERK 03/07/2022 INDEX NO. 515094/2018 NYSCEF t .- . .. DOC. NO. 316 RECEIVED NYSCEF: 03/09/2022
At an IAS Tenn) Part 73 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, N~,v York, on the 24 th day of February, 2022.
PRESENT:
HON. PETER P. S\VEENEY,
Justice.
~ " - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - • - - - - -X Jrn lNNJJ-; !'vf ORGAt\,
PlaJntif!~
- again~t - Index. No. 515094/2018
HOI.L Y STREET HOLDING COKP., NOLA GE;-,.'ERAL Cm,TR,4,CflNG~ INC,, Ntw y ORK PAV I NG INC, )..l"AT[ON.4.. L GRlO GROUP PLC, NATlO:-,iAL GRTD PLC, STASl BROTHERS ASPHALT CORP.,
Defend ants,
- - - - - - y - - - - - - - - - - - - - - - - - - - - ~ ~ - - • - - - - -X Hou,Y STREET HOLD!>JG CORP.,
Third. Party P laj n ti ff} - against -
NOLA GENERAL Cot...,7RACTING, INC:., NEW YORK PAV Jr,..;G, INC., NATION,\L GRJD GROUP' PLC, XA. T[ONAL GK.fO, NATlO;-,,lAL GRID, PLC. ST,4.S!
Bl{OTHERS ASPHALT CORP., JOI IN Drn-; 1-10 .. '
• f"j ,: ;
(fictious persons). ABC CORP. 1-1 a(fktilious l f-- -~ -~
--.J
entities), r~-\ -:_-I
Third•Party Defendants,
- - - - - - - - - - ~ y - - - - - - - - - - - - - --X - - - - - - - y - -
Hou, y STREET HOLDING CORP., Second Third•Party Plaintif( - agam~t -
HALLEN CONTRACTING CORPORATION,
Second ThirJ~Party Defendant, - - - - - - - - ~ - - - - - - ~ - ~ - - - - - - - - ~ - - - - - - - - - -X
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- - - - - - - - - - ~ ~ - - - - - - - - - - - - - - - - - - - - - - ~ - -X J-IOL.1.Y STREET HOLDJNG CORP.,
Third Third-Farly Plaintift~ - against --
LB.-1AZ[A CONSTRUCTIO?,;, INC.~
Third Third-Party Defendant, - - - - - - - - - - - - - - - - - - - - ~ ~ - - - - - - - - - - ~ - - - -X HOLLY STR~UT HOLDING CORP.,
f' ourth Third- Party Plaint 1ff~ - against -
LUIS A~D So:,: CONTR.-'\CTOR AND POWER CONCRETl: Co.,1Nc.
fourth Third- Party Defendants.
_________ ~ _ - ~ ______ - - - - - w - - - - - - - - - - ~ -X HOLLY STREET HOLDI7\'G CORP.,
Fi!lh ThirdMParty Plaintiff, - against-
POWER CONCRETR. Co., INC.
Fifth Third-Party Defend ant.
• • • • • • • • • - • • ~ r - - - - - - - - - - - - ~ • • • • • • • • • •X
The rollowing e~filcd papers read herein: :'.'-JYSCF.F Doc Nos.
Notice or
Motion/Order to Show Cause/ Petitiorn'Cross I'vfotion and Affidavits (Affirmations) - - - ~ - - - - 102-112: 140-164: 208~239:
25 3-255: 27()-284
Opposing Affidavits (Affirmations}._ _ __ 115-118, 119-122: 308-310:
285-295
Reply Affidavits (Affirmations). _ _ _ __ 123
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Upon the foregoing papers in this personal injury action, defendant/third-party c1efondani Stasi Brothers A.spl1alt Corp. (Stasi Brothers) moves (1n motion sequence numb~r [mot. seq. no.] 4) for an on.l~r, pursuant to CPLR 3212, granting summary judgment dismissing the action and any cross claims against it. Plaintiff Johnnie Morgan (Mr. Morgan) mm'CS (in mot. seq. no. 5) for an order, pursuant to CPLR 3212~ granting him partia~ ~mmmary ju<lgment on the issue of liability as against dcfcn<lant1tninl-party plaintiff/second~ third) fourth and fifth third-party plainttff Holly Street Holding Corp. (Holly Street). HolJy Street cross-moves (in mot. seq. no. 7) for an order, pursuant to CPLR 3212, granling it summary judgment and dismissing the action against it. Second third- party defondant Ha.Hen Contrnuing Corporation. (Hal1en) moves (in ml"Jt. seq. no. S) for an order, pursuanl to CPLR 3211 and 3404, dismissing Mr. Morgan's amended rnmplaint. Mr. Morgan cross-moves (in mot. seq. no. 10) for an order, pur.-,;uanl CPLR 3025 (b) and 203 (f), granting him leave to amend his complaint to add Hallen as a direct defendant and deeming Mr. Mmgan)s amended cmnplaint timel)' ftkd an<l served nunc pro tune.
Background
At 8:00 p.m. on January 2~ 2018, Mr. Morgan was wa]king on the sjdnvalk adjacent to Liden Boulevard in Rrooklyn, N e\V York, when he approached a restaurant located at 2526 Linden Boulevard (the Prcmi~e~). Hclly Street is the Qwne.r of the Premises. As Mr . Morgan turned into the parking lot of the Premises, he allegt:dly tripped and foll on an uneven lift betvveen tht: sidewalk and parking lot (the Incident), As a consequence of the Incident} Mr. Morgan alleges he suffered various injuries .
....)
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Mr. Morgan thereafter comrnenceJ the instant Javvsuit ,vith tht filing of the summons and verified complajnt ort July 24, 20 I 8 against HolJy Street, asserting a negligence cause of action. Ho11y Street appeared with a verified ans\ver asse1ting genera] <len [als to the substantiv~ allegations and raising numerous affirmative defenses. On September 25, 2019, Holly Street commenced its first third-party action. Shortly thereafter, on October 7, 2019, Holly Street filed an amended third-party complaint, asserting claims for negligence, failing lo procure insurance, contribution, an<l indemnification against third-party defendants Nola General Contrading, Inc. (Nola), Nev,,.· York Pavjng, Inc. (NY Paving), National Grid [sic], National Grid Group, PLC, National Grid~ PLC (co11ectivcly. National Grid), m1d Stasi Brothers. Holly Street alleges that prior to \lye 1ncident~ \hesc thir<l-party <lefendanls excavated, repaired, resurfaced, rampe<l, patched, or otherwise a]tered the area \vherc the lm:ident aIIegedly occurred. On October lO~ 2019) Mr. Mmgan amend~ hi~ r.;.0mplaint~ adding Nola) NY \>aving 1 Natkma.l Grid Group, PLC, National Grid: PLC, and Stasi Brothers as first-party defendants and asserting negligence causes of action against each.
NY Paving appeared in the action \Vith service of an answer to the amended third-
pMty complaint on October 21: 2019, and an an.swcr to the amended complaint on October 22) 2019. On November 8~ 2019, Stasi 13rothcrs served an answer to the amended third- party complairtt, raising various affirmative <letenscs and asserting cross daims against Holly Streets, Nola~ NY Paving~ National Grid Group~ PLC, National Grid, PLC, sounding in negligence and jndcmnifica1ion. Stasi Brothers then served an answer responding to J'V1r.
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Morgan~s amended complaint: asserting general denials, affirmmiv~ <lefonse.s, and cross claims against Holly Streets, Nola} NY Paving~ National Grid Group PLC, N attona1 Grid PLC, sounding in negligence, contribution, and indemni ficalion.
On January 2, 2020, Nationa] Grid served an ans\ver to the amended thir<l-party complaint and pleaded cross claims and counterclaims against Mr. Morgan~ Holly Street, Nola, NY Paving, and Stasi Brothers sounding in negligence, breach of contract, contribution, and indemnification. The following day) on January 3, 2020, National Grid served [ts answer to the amended complaint, likewise pkadjng cross claims and counterclaims against Nlr. Morgan. Holly Street~ Nola) NY Paving, and Stasi Brothers sounding in neg] igcnce~ breach of conlract) {:Ontribution, and indemnification. 1 On May 26~ 2020, ~ola served its answer to tbc amended third-party complaint and pleaded cross cJaims sounding in negligence an<l contribution against NY Paving. National Grid Group: PLC, National Grid, PLC, and Stasi Brothers. On May 27) 2020, Nola filed its ansv,'er to the amended complaint also pleading cross claims sounding in negligence and contribution against NY Paving, NationaJ Grid Group, PI .C, National Grid, PLC, and Stasi Brothers.
Thereafter, on April 23, 2021, Holly Street commenced a second third-party action ,vith the filing of a summons and second third-pa11y complaint against Hallen. Holly Street a]kged Ballen excavated) repaired, resurfaced, rnmpcd, patched, or otherwise altered the area where the Incident alleged]y occmreJ and asserted causes of action for negligt:nce,
1 National Grid notes in its answers that its proper name is T11e BroaklyH Union Gas Company
d/b/a National Grid NY.
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failing to procure insurance) contribution, and indemnification against H aHen. On May 20~ 2021, Holly Street commenced a third third-party adion against third third-party defendant Lcmazia Construction, Inc. (Lcmaz.ia) asserting the. same allcg,ati<m~ and ca\.t:•,es Gf ac\ian as it did in it prior third-party actions.
On June 2, 2021, Hallen served an ansv,rer to HoHy Street's second third-party rnmplaint :md asserted counterclaims against Holly Street for indemnification nn<l negligence. On the same day, Stasi Brothers filed certain papers seeking to assert cross daims againsl Hallen antl Lem"dzia for negligence and indemni-fication. Additionally, on June 2, 2021, Holly Street also commenced its fourth third-party a~ticm against fourth thfrdM pmty defendant Luis and Son Contractor~ asserting causes of action for negligence, failing to procure irtsurance, contribution, and indemnification. The follow1ng day, Holly Street filed an amended fomth third-party summons and complaint naming Power Concrete Co., 1nc. as an additional fourth third-party defendant. Stasi Brothers again filed certain papers seeking to assert cross claims against fourth third-party defendant Power Concrete Co.) Inc., for neg Iigence and indemnification, On July 1, 2021 ~ Hol1y Street commenced a fiflh third-paity action, naming Pawer Concrete Co.: Inc. as a ti fth third-party defendant and pleading causes of adion for negligence, failing to procure insurance, contribution: and indemnification. Follovving this: on July 16, 2021, Mr. Morgan filed a third ami;ndcd complaint, naming Hall en and Power Cor1crete Co._, Inc. as first-party defendants and assertjng negligence causes of action
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against each. 2 Nola, National Grid, and Stasi Ilrothers thereafter served ansv,,•ers to the third amended complaint on July 28~ 2021, August 3, 2O2 l~ and August 12, 2021, respectively.
Stasi Brothers nmv moves~ in mot. seq, no. 4~ for summary 3u<lgment dismissing the action and any cross clajms against it. Mr. Morgan moves, in mot. seq. no. 5, for partial summary judgment on the issue of liability with respect to Holly Street) and~ in mot. seq. no. 10~ for leave to amend his com plaint to add I lallen as a direct defendant and <leem the amended complaint fiJed on July I 6, 2021, as timely filt:d and served n.unc pro tune. Holly Street moves, in mot. seq. no. 7, for summary judgment dismissing the action against it. Hallen moves, in mot. seq. no. 8, f'br dismissal of l'v1r. Morgan's amended complaint.
Motign_to Dismiss and Motion to Amend The Parties' Positions
Hallen seeks dismissal of Mr. Morgan's third amended complaint on the basis that the statute of !imitations nm prior to the commencement of the action against it. Hallerl
argues that i\ ew York law requires personal injury actions be brought within three years of
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the alleged OC(;urrence of the injury, 1t asserts that the third amended complaint alleges lht: Incident took pla~e on January 2, 2018, thus Mr. Morgan was ob] igatcd to commence his action aga[nst it on or before January 2~ 2O2 l _ Hallcn proffers the thirJ amended com plaint and its accompanying atlidav.it of service, \Vhich demonstrates that the summons and third
~ The record is devoid of any second urn.ended complaint. Mr. Morgan fikd the initial summon~ and complaint on July 24, 2018~ a supplemental summons and amended complaint on October 10, 2019: and a supplemental summons and amended complaint on July 16, 2021.
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amended complaint were not filed until July 16~ 202 I and service of process was not et1cctuated until July 26, 2021. Hallcn contends that the filing and service of the third amended complaint is well beyond the expiration of the lhree-ycar statute of limitations. Accordingly) Halkn maintains Mr. Morgan's act[on against it must be dismissed pursuant to the running of the statute of Hmitations. In addition~ I l al Ien contends that should the court find the action was timely filed, it respectfully seeks an ex tens ion of t[mc to serve responsive pleadings to the third amended complaint.
Mr. Morgan rejects Hall~n:s contentions that the action against it was commenced after the statute of ]imitations expired, and cross-moves for lea\'C to amend the complaint to add HaHcn as a first-party defendant. Mr. Morgan initially argues that his third ame11ded complaint was timely served as the statute oflimitations was tolled for a period of 228 days due to a series of Executive Orders issued by the former Governor of Ne"' York in response to the COVID-19 pandemic. He asserts thal pursuant to these Executive Orders, the applicable statute of limitations did not expire until August 18, 2021) thereby rendering his action against Hall en timely.
Mr. Morgan also presents that despite the tolling statute of limitations and timeliness of the third amended complaint, the relation back doctdnc equally protects the action against dismissal on the basis Df statute of Umitations. He highlights both procedural and case law supporting his contention that HaHen haJ timely notice- of the occurrence of the Incident giving rise to the aJlcgations asserted in the third amended complaint due to the fad that HoHy Strcefs third-party action against I-fallen was timely commenced. Therefore,
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those claims presented by Mr. Morgan against Hallcn are deemed inkrposed at the time of Holly Street's third-party action against Hallen. FinaUy, Mr. Morgan asserts HaHen will nDt be prejudiced by being named fl first-party defendant in the acrjon. Importantly, Hallen has not raisl"::d any potential 11rejudice an<l even seeks an ex.tension of th1~e to ser-...'e responsive pleadJngs, Accordingly, Mr. Morgan maintains that he is entJtled lo amend his complaint and tl1at the previously served third amended compl aj nt shouJd be deemed lJmcly served m.mc pro tune. J)iscussion
CPLR 3025 provides that "a party may amend his pleading once without leave of court within twen't.y day ~ aner its service~or at any thnc before the period for responding to it expires>nr \Vithin t,venty days after ~rvice of a pleading resporn:Hng to ,t:• CPLR 1009 augments tbis rule al1owir1.g furtht:r amended complaints \\·· here a defendant commences a third-party action. ln such instances, a pJaintiff may ·~amend his com pl aiot ,vithout leave of court" within twenty days of service of the thir<l-party complaint (CPLR l 009). However. absent these circumstances or stipulation by all parties, a plaintiff must st::ek leave from the court to amend his complaint (see CPLR 3025 (b]). ~-Le3ve to amend a pk.a.ding ~s to he freely g,i--Jen ;,.;,'here ... there is no showing or preju<l1cc or surprise to the nonmoving party, and no showing, that the l1rDDOSed amendment is ·palpably insufficient as ~1 matter of Javv' or ~totally devoid of merit' ( Consolidated Payroll Servs. , Inc. v Berk, 18 AD3d 415, 415 [2d Dept 2005]. quoting Ogivie v ?vkDonaf 's Corp., 294 AD2d 550, 551 [2d Dept 2002] j internal citations omittt:d]).
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"~ A claim asserted in an amended plead tng is- deemed to have been interposed at the time the claims in the original pleading were interposed) unJess the original pkading lloes not gi vt: notice of the transactions, occurrences, or series. of transactions or Ol:currenccs)" (One West Bank /',/.A. v l'vfuller, 189 AD3d 853. 855 f2<l Dept 2020], quoting CPLR 203 l_fJ). \\/here an amended complaint is. served subsequent to the expiration of that statute of Jimitations, such action shall be deemed timt:ly where the ddendn.nt has sufficient notice (see generally Sally v Keyspan Hnergy Corp.) 106 AD3d 894, 896-897 l2d Dept 2013]). "A plaintiffs direct daim against a lttird-party de.fendanl} \vhk-h h ass~rted \t1 an amended complaint~ relates back to the service of the third-party complaint ... for the purposes. of the Statute of Limitations, when the third-party wmplaint and the amended complaint arc based upon the same trnnsactjons or occurrences" (Schuler v Grand Metro Bldg. Corp.~ 118 AD2d 63 3, 63 5 [2d Dept 1986]; see also Duffy v Horton Mem. Hosp., 66 I\"Y2d 4 73, 477-4 78 [ 1985] ~ Deputron v A & J Tours, Inc., 93 AD3 d 629, 629~630 [2d Dept 2012 J).
Actions St:t:king to recover damages for personal injuries must be commenced within t.hret:-years of the alleged occurrence causing tJ1e injury (CPLR 214 [5] ). As a consequence of the COVID-19 global panJem ic the former Governor of New York issucd severa] Executive Orders tolling the statute of limitations from March 20, 2020 to November 3, 2020 (see Brash v Richards, 195 AD3d 582, 583-585 [2d Dept 2021"1; see also Executive Order [A. Cuomo] Nos. 202.14 l9 NYCRR 8.202.14]~ 202.28 [9 NYCRR 8.202.281, 202.38 [9 NYCRR 8.202.38].. 202.48 [9 NYCRR 8.202.48], 202.55 [9 NYCRR 8.202.551, 202.55.1 (9 NYCRR 8.202.55.11. 202.60 [9 NYCRR 8.202.60t 202.67 l9
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NY CRR 8.202 .6 7], 202. 72 [9 NYCRR 8 .202. 72]). ::A toll docs not c-xtcnd the statute of limitations indcfi nitely hut merely suspends the running of the applicable statute of limitations for a finite and ... the period of the toll is excluded from the cakulalion of th~ time in which the p]aintiff can commence an action" (Bermudez Chavez v Occidental Chem. Cmp.• 35 NY3d 492, 505 n 8 [2020], rearg denied sub nom. Chavez v Occidental Chem. Corp., 3 6 NY3 d 962 [2021 ]).
Here, J\1r. Morgan was required to seek leave from the court prior to serving his third amended pleading naming Hallen as an additional first-parly defendant. Holly Street commenced a timely third-party action against Hallcn on ApriJ 23, 2021, with service of process completed on April 26, 2021, requiring Mr. Morgon to amend his complaint on or before May 13. 2021, to amend his complaint without leave of the court. Hm:vcvcr, Mr. Morgan did not commence his action until July l 6) 2021) and service of process on l 1allen was not completed until July 26. 2021.
However~ despik this delay seeking the instant re1ief, Mr. Morgan has demonstrated cntitJcmcnt for leave to amend his complaint to name Halkn as a first-party defendant. His proposed amended pleading is not, on its face) palpably insufficient as a matter of lav,,. or totaHy devoid of merit. Further. as Holly Streef s third-party action was timely commenced against Hallen: the relation back doctrine insulates Mr. Morgan's third-amended compfaint from being time-barred, as Hall en had notice of potential claims against it \,'ith the service of the third-party complaint by Holly Street Finally, Haikn presents no bas[s nor asserts any prejudice it may experience from being nmn~d a first-party defendant in the instant
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action. Accordingly, Mr. Morgan's motion to amend the complaint (mot. seq. no. 10) is granted, The Third AmendeJ Verified Complaint 1n the proposed form annexed to the moving papers (NYSCEF Doc No. 282) shall be dt:emed served upon the parties upon service of a copy of this order \Vith a notice of entry. Hall en's motion (mot. seq. no. 8) is granted to the extent its time to ans\vcr the Thi rd Amended Verified Complaint is extended to 21 days from such service of the order with notice of entry.
l\1otions for Summary Judgment The Parties' Positions Stasi Brothers' Motion
Stasi Brothers argues that it is entitled to summary judgment dismissing the action against it, asserting that the proffered evj dence establishes that~ as a matter of law, it cannot be found liable for Mr. Morgan's alleged injuries. Supporting this contention, Stasi Ilrothers principally relies on the affidavit of Ms. Diane Posillico (M~. Posillico ). Ms. Posmico attests that in her ~apacity as Human Resources Manager for Stasi I3rothi::rs, she is responsible for maintaining office fiks and generating proposals and invoices. She avers that she perfontie<l both an electronic and paper search for projects the Stasi Brothers may have perfonned at the Premises. revealing two proposals prepared for Ho11y Street, .dated July 2011 and March 2014. The July 2011 work proposal provided that the work to be perfonned \Vas to "overJay cement with 2" NYS DOI asphalt. Power roll with 7 ton roller (approx. 3500 sq. f)" (NY St Cts Elec Filing [NYSCEfo] Doc No. 112. Ms. Posillico aff at 6). The March 2014 work proposal provided that the \vork to be perfonncd was to "sm-v
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cut, remove old asphalt) install base as needed, install T: NY"S hot mix asphalt) compact inside lot 70' x 2~[,] Patch area inside lot jn front of buildingL] Mill S[dc road 76' x 3 'LJ S\vccp road clean[,] pave \vith t~ NYS typt; Asphalt[~] compact with 5-7 ton vihratory rollerl,J liquid ale edges" (id. at 8). She attests that her search revealed no further documents concerning Stasi Brothers and the Premises. Based upon the absence of any additional documents. specifically the absence of work orders~ Jnvo [ccs, and payment records, Ms. Posillico concluded that Stasi I3rothers did not perform any work at the Premises. Ms. Posillico also ave1Ted that she intcrvie\ved the work foreman ,vho confirmed that no work was performed at the subject location.
Stas.i Bratl1ers rnaintains that M~. P(1$illk(\'s affidavit and the p.rnfforcd prnpoSc.als demonstrate that it never performed any maintenance work, repair \vork, or any other services at the Premises which would result in it creating the alleged defect. A.-.:cordingly, Stasj Brothers insists that it demonstrated its entitlement to summary judgement dismissing the act1on against it.
In opposition~ Mr. Morgan argues that the evidence presented is insufficient to demonstrate Stasi Broth~r_.,' entitlement to accelerated judgment and contends that the motion is premature as substantial discovery remain5 outstanding in the action. Mr. Morgan asserts that Ms. Posillico' s affidavit js jnsufficient to demonstrate Srn.si Brothers' prima facie case as it is concJusory, self-serving~ and relies on hearsay evidence. Mr. Morgan specifically contends that he must be afforded the opportunity to depose and learn the identity of the \vork foreman referenced by Ms. Posillico. Additionally, Mr. Morgan
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reasons that as Ms. Posillico ~ s search revealed nvo \.vork proposals concerning over] aying cement and removing old asphalt at the Premises~ the existence of such \Vork proposals suggests that Stasi Brothers may have performed work at the Premises \Vhkh created the defect causing hi~ iti.judes. Mr. Morgan accmdin.gly argu.~s that since he has not had fue opportunity to depose Stasj Brothers or perform other substant[vc discovery concerning Stasi Brothers~ alieged involvement in sidewalk repairs at the Pn:mises, the motion must be denied pending further discovery.
Holly Street Hkevvise opposes Stasi Brothers: motion, asserting substantially s.imiJar arguments as Mr. Morgan. Holly Stred also proffered th~ affidavit of its President, Frank Lapetina. Mr. Lapetina attests that Holly Street accepted the March 2014 \Vork proposal, which \.Vas for work to be completed for driveway work. 1le avers that Stasi 13rothcrs completed the work and accepted cEtsh payment for it. Holly Street accordingly maintains that Mr. Lapetina' s affidavit creates questions of fact as to whether Stasi Brothers' work created the allege defect, preventing entry of summary judgment in favor of Stasi Brothers.
In repJy, Stas.i Brothers rejects the arguments presented by Mr. Morgan and 1-IoHy Street. It contends that its proffered evidence is sufficient to estabI 1sh its prima facie case and that precedent supports its position that the lack of records is admissible evidence demonstrating that an alleged fact or event did not occur. Stasi Brothers also advances that the affidavit of Mr. Lapetina is inadmissible and shou]d not be given any evidentiary ,veight as. it is ccm.clusmy and fa\\'.:> to teforenc.e or e,;.h,hh any support111g documentary e>videnc.e establishing his dairns that Stasi Brothers performed \-VOrk at the Premises. finally~ Stasi
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Brothers maintain that the action is ripe f'br summary judgement as to its liability and that Mr. Morgan failed to offer any t:vident[ary basis supporting his assertions that further discovery is required or that it would lead to relevant evidence defeating Stasi Brothers' defense. Accordingly, Stasi Brothers urges the court to grant summary judgment in its fa\'Or. Mr. l\1organ and Holly Street's Motions Mr. Morgan argues that he is en1.itled to summary judgment on the ·[ssuc of liabt1i ty as against 1Io11y Street. Supporting his position, l'vlr. Morgan submits his deposition testimony, a persona] affidavit, images of the accident location~ an<l the affidavit of his engineering expert, Anthony Pici, P .E. Mr. Morgan contends that his deposition and affidavit establish thal the Tncident occurred at the Premises and was caused by an uneven section of asphalt ben:veen the sidewalk and drivev,,.ay. Dudng his deposition) Mr. Morgan specifically testified that he ''was v.:alking to come into the parking lot to make that tum lo go in and I tripped and fell" (Mr. Morgan tr at 46, line~ 23-25). He averred in his affidavit that ,:I Jooked at the ~bump' on the sidewalk where I tripped after I had fallen dov,,:n to the ground. The bump \Vas over an inch high" (Mr. Morgan aff at •· 8). I-fo maintains that c.ertai.n Gc.ic.iglc Map images depk.ting, th.e subjed lncatk.m demonstrate \.hat the defective condition existed since September 2013. He asserts that as the defective condition vvas apparent and visible in these imo.gcs, that it t!."::.tablishes the defect has existed since September 2013, thereby providing Holly Street with constructive notice of the defect, obligating it to remedy it.
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Mt. Morgan also submits Mr. Pici's expert affidavit \Vhich concludes that the proximate cause of his injuries v,:as the one-inch bump in the sidev,,.alk bet\veen the drivevvay. Mr. Pici further avc:rred that the side\valk v.-as improperly maintained and unsafe for use~ and that the lift constituted a significant vertical height dt fference at the subject lo~ation. He opined .. with a reasonable degree of engirn:tring certainty that the defective sidev,•alk area and the 'bump• as identified by Mr. Morgan ... constituted a dangerous tripping hazard ... [was] visible to the mvners of the property for a number of years ... and no action was taken by the o"vner to have the condition addressed,, (NYSCEfi' Doc No. 161, l\1r. Pici,s aff at 9 -10, ~~ 46 - 47). finally, Mr. ~lorgan notes that Holly Street admitted to ownership of the Premises, \Vhich subjects it to a non-delegable duty lo maintain its property and sidewalk in a reasonably safe condition. He insists that the proffered evidence demonstrates that HoHy Street breached this duty by allov1dng the significant vertical height differential to exist, despite it being apparent Jnd there being sufficient time lo remedy it. Accordingly, Mr. Morgan claims he has demorn;trated his prim a facic case, entitling him to summary judgment on the issue of Iiabi Iity as against HoJly Street.
Holly Street rejects Mr. Morgan, s position, asserting lhat it, not Mr. Morgan, is entit]ed to summary judgment. HoUy Street argues that Mr. Morgan foiled to demonstrate his pritna facic case establishing that the alleged defect was the proximate cause of his injuries or that the alleged defect even constituted a dangerous rnndition. It <1rgues that the proffered photographic evidence fails to disp]ay an actionable defect an<l lhat Mr. Morgan's
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testimonies and his expert evidence fi:1il lo demonstrate that the alleged defect was the proximate cause of his injurie~.
Holl v Street contends that while there is no bright 1ine rule for whether an uneven sidewalk constitutes a dangnous condition, that precedent clearly establishes that the alleged defect) the orn:-inch lift that existed at the Premises, constitutes a trivial defect, and therefore is not actionable. Holly Street principally relies on its cng.inccrjng t:xpert Ttrrence J. Fearon, P.E. Mr. Fearon providt:d that "the concrete sidewalk flags in the reported area of Plaintiff's accident were properly mainlained ... [and Mr. Fearon] did not detect any ... tripping hazards due to excessive heigh differentials bet\veen adjacent sidewalk flags ... 1Mr. Fearcm] did not detect any substantial defects ,vith the side,valk flags" (NYSCEI-1 Doc No. 238, Mr. Fearon's Expert Report at 16-17).
Holly Street maintains that Mr. Fearon 's expert report con cl usivdy establishes that there ,vas no actionable defect at the Premises causing Mr. Morgan's injurtcs. It also asserts that Mr. Morgan~s expert affidavit must be rejected as lvlr. Pici did not perform a site inspection~ take any measurements~ and his afiidavit is based upon pure speculation, exclusively relying on Mr. Morgan's s,..vorn statements that a height differential of one inch existed. Further~ Holly Street contends that there is no admissible evidence establishing that Mr. Morgan confronted a height differential which constituted a dangerous condition. It urges the court to reject his self-serving afiidavit which. for the first time~ introduced the assertion that the Incident was caused by an uplift in the sidewalk greater than one lnch. Holly Street also raises the issue of prematurity ~oncerning Mr. Morgan· s motion, asserting
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that none of the defendant's depositions have occurred and accordingly, his motion is premature.
In opposition and reply, Mr. Morgan principally reasserts his positions presented in his moving papers and argues that Holly Street's cross-motion fails to raise a triable issue of fact defeating his prim a facie case. I-le also urges the court to reject Holly Strccf s expert materials, asserting that they are unsupported by the record and are conclusory in nature. Additionally, Mr. Morgan contests HoIJy Street's arguments that his affidavit is improper. In this regard, he contends that he was never directly asked about any h~ight difforential during his deposition. Mr. Morgan also submits a supplemental expert affidavit from Mr. Pici wherein he rebuffs Mr. Fearon' s observations, opining that Mr. Fearon' s conclusions cannot be reJied upon <lut: to his inspection occurring 42 months after the Incident and that bis findings are inconsistent with good construction practice. Finally~ ?vtr. Morgan argut:s that Iloily Street'~ a~serlions that his motion for summary judgment is premature must be- disregarded as it fails to identify any material issues of fact a witness may tcsti fy to or any evidence within the exclusive control of another party that is not presently availabk. Accordingly, Mr. Morgan maintains that his motion for summary judgment on the issue of liability should be granted and Holly Street's motion denied.
Holly Street submits further reply asserting thal Mr. Morgan improperly presented new evidence in his reply and that Mr. Pici's opinions fail to defeat its prima focie showing or demon.strale Mr. Morgan~s entitlement to summary judgment. Accordingly, Holly
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Street maintains that Mr. Morgan's motion must be denied and that an order granting it summary judgment be entered. Discussion
On a motion for summary judgment the courf s function j s issue finding, not issue determination (see Trto Asbestos Removal Carp. v Gabriel & Sciacca Certified Pub. Accountants, LLP, 164 AD3d 864, 865 [2d Dept 20181 [int'!rnal citations omitted]). "Summary judgment is a drastic remedy not to he used if there is any doubt that a triable issue or fact exists'' (Cunningham ·v Gen. Elec . Credit Corp., 96 AD2d 502, 502 [2d Dept J 9831). "'NcgJjge:nC'-~ ca.s!;;S by rhefrvery nature do not usually lend themselves to summary j u<lgment~ since often~ even if all parties are in agreement as to the underlying facts, the very question of negl igern:e is itself a question for jury determination'•• (Davis v Com mack Hotel, LLC\ 174 A03d 501, 502 [2d Dept 20 l 9J quoting Ugarriza v Schmieder: 46 NY2d 471, 474 [1979]). ~~A party moving for summary judgment must demonstrate that ·the
cause of action or defense shall be established sufficiently to ,varrant the court as a matter
of law in directing judgment"' in the moving party s favor" (Jacobsen i-· Aew York City
1
!fealth & Hosps. Corp., 22 NY3d 824) 833 [2014], quoting CPLR 3212 [b]). i~fTlhe proponent of a summary judgment motion must make a prima focie showing of entitlement to judgment as a matter of lmv) tendering sufficient evidence to demonstrate the absence of any material issues of fact" (A !vaYez v Prospect Hosp., 68 NY2d 320, 324 [ 1986] [internal citations omitted]). Once the movant sets forth a ptima foci c case, the burden of going forv.·ard shifts to the opponent of the motion to produce evidentiary proof in
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admissible fom1 suffi cicnt to establish the existence of a matt rial iss.ue u f fi.lct (see Zuckerman v Cily oflv'ew York~ 49 NY2d 5 57, 5 57 [ I 9 80]). lt is v..-tll established that \vhere there is competing expert evidence submitted by adversaries) summary judgment is not appropriate and the credibility of the experts must be resolved by the trier of fact (.see generally O 1Brien v Port Auth. of N. Y. & j\/.J, 29 NY3 d 2 7 [2017]; S(N also Cummings v Brooklyn Hosp. Ctr., 147 AD3d 902, 904 1_2<l Dept 2017]~ Fefnberg v Feit, 23 AD3d 517) 519 [2d Dept 2005}; but cf Zimmer v Chemung County Performln.g Arts~ 65 NY2d 5 l 3 [1985]).
AdditionaUy, i~cPLR 3212 (f) permits a party opposing summary judgment to 0bt.a.1n for\.her discovery when it appears tha1. facts supporting the posidon of the opposing party exist but cannot be stated" (Juseinoski v A1ew York Hosp. /vied. Ctr. of Queens, 29 AD3d 636) 637 [2d Dept 2006] [lntcrnal citations omitted]). "This is espedaJly so \.Vhe-re \h~ ~Jp-p-0siug. party has not had a rea~onahk opportunity for disclosure prior to the making of the motion:' (Singh v Avfs Rent A Car iSys., Inc.: 119 AD3 d 768, 770 [2d Dept 2014] [internal quotation marks and citations omitted J). ::A party who contends that a summary judgment n1"0ti0n if. premature h required to demonstrate that d.iscnvcry might \ead tD relevant evidence or the facts c-ssentia] to justify opposition lo the motion were exclusively \v[thin the know]edgc and control of the movant" (Santiago v City of.New York~ l 91 A03d 715 [2d Dept 202 l] tintern.al quotati0n mm'k.s and citations, omitteu )). ~~The mere hope Di- spccuJation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficit:nt basis for denying" a motion for
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summary judgment on the basis that it is premature (Lazarre v Gragston~ 164 AD3 d 574: 575 [2d Dept 2018]).
"Section 7-210 of the Administrative Code of the City of New York imposes a nondelcgable duty on a property o\vner, exclusive oi' one-, t\vo-, and three.family O\Vner- occupied homes, to maintain and repair the sidewalk abutting its property, and specificaUy imposes liability upon those property O\Vncrs for injuries resulting from a violation of the code provision" (,Micha/ska v Coney ls. Site 1824 House.s, Inc., 155 AD3d 1024) 1025 [2d Dept 2017] [internal cJtations omitted]). The provision docs not impose strict liabj lity, rather fo1bi1Hy will only be imputed ,vhere the injured party has demonstrated the material ekments of negligence: ( l) the existence of a duty on the defendant's part as to the plaintjff~ (2) a breach of th1s duty, and (3) a rcsultlng injury to the plaintiff (see Nisimova v City of }'vbv York, 145 AD3d 1023 ~ 1023-1024 f2d Dept 2016] [internal citations omilkd_D. "Prior to the adoption of section 7-210, property mvners in Nc,v York City had a statutory duty . . . Co 'install, construct~ rt:pave~ reconstruct and rt>:pair the sidewalk tla 61S in front of or abutting such property'' (Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 519 [2008], quolingAdministrativc Code of City of N.Y. § 19-152 [al). ••Fai1urc to comply with [this directiv~1resulted in fines or an obligation to reimburse the City for its expenses incurred 1n perfoHning the ncces..'l-.cJI)' work, bur not tort Jfab.ility'' (id [.internal citations omitted]; see also Vrabel v City ofN'ew York, 308 AD2d 443,444 [2d Dept 2003] ["Administrative Code of City of N.Y. § I 9-152 does nol ~xpressly impose liubility for injur[es resulting from a breach of the duty to maintain the public sidewalk"]).
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Nevertheless Section I 9-152 of the Administrative Code of the City of New York has aided the court in determining whether an alleged dangerous e-ondition is a non- actionable trivial defect (see generally Harakidas v City of l'l./ew York, 86 AD3d 624, 626 [2d Dept 20111). ..Property (w,,ners . . . may not be held liab]e f'or trivial defects, not constituting a trap or nuisance, over 1rvhich a pedestrian might merely stumble, stub his or her toes, or trip': ( .Milewski v Washington lldut., inc.~ 88 ADJ d 853. 85 5 f2d Dept 2011] [internal citations omittedJ). i~[I]n determining the issue of triviality one must examine all tbc facts presented, including the width, depth, e]evation) irreguJarhy, and appearance of the defect along \vith the time, place, and circumstances of the injury': (Sanna v Wal-j\{art Stores, Inc., 271 AD2J 59 5~ 595 [2d Dept 20001, citing Trincere v County of Sifffolk~ 90 NY2<l 976~ 978 (1997]). The Administrative Code of the City of New York § 19-152 defines ::a substantial defocC as a trip hazard~ Vl>·here the ~-vertical grade differential bet \Veen adjacent sidevvalk flags is greater than or equal to one half inch or where a sidewalk flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth~~ (Administrative Co<le § 19~152 [a), [a} {4]). ..Genera11y, whether a dangerolls or defectjve condition exists d~p~nds on the particular facts of each case, and is properly a question of fact for the jury un kss the defect is trivial as a matter of lav/• (Das v Sun Wah Rest., 99 AD3d 752~ 754 [2d Dept 20121 [internal quotatjon marks and citation omitted]).
Liabi]ity for a dangerous condition on a puhl ic sidewalk may also be impukd on parties other than the adjacenl property owner. "[A] contractor may be liable for an
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affim1ative act of negligence that results in the creation of a dangerous condition upon a public street or sidewaJk" (Zarin v City ofNew York~ 137 AD3d l 116~ l 1 l 7 l2d Dept 2016] [internal citations omitted]). \Vhere there are allegations that a contractor performed work on a public side\va!k which created a dangerous condition and cause injury: to be cnt[tled to summary judgment dismissing the action. the contractor must demonstrate that "it did not perform any ,;,.vork on the portion of the roadway wher~ the accident ocrnrred or that it did not create the allegedly defective condition that <;aused the plaintiffs injuries" (Downing v J Anthony Enterprises, Inc .• 189 AD3d 1541, 1542 [2d Dept 20201 finternal citations omilled J).
Here, none of the moving defendants are entitled to summary judgment. Stasi Brothers' motion (mot. seq. n(). 4) is premature and further discovery must occur to af'for<l the non-moving parties .sufficient opportunity to uncover relevant material information. The core position of Stasi Brothers: motion is that it did not O\Ve a duty to Mr. Morgan as it did not perform any \vork at the Premises. As demonstrated by the opposition, no significant discovery has occurred regarding Stasi Brothers: particularly whether it ptrformed any work at the Premises. Critically, no depositions of any defendants, including Stasi Brothers, have taken place. Stasi Brothers• agent, Ms. Posi Ilico) attests that her search of Stasi Rrothers' records revealed t \VO \Vork proposals for projects relating to paving at the Premises. Mr. Lapetina, Ho11y Strccf s President, averred that Stasi Brothers perforn1ed work at the subject location. Finally) Ms. Posiliico also provided that she had a conversation with an unidentified work foreman to dctcrm ine if any work was complete at
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the Premises. None of these irn:liddmds have be-en deposed; nor has then"' been s;gnificmJt paper discovery concerning Holly Street and Stasi Brothers' records. Therefore, summary judgment is premature. This determination is not based on mere hope or speculation presented by Mr. Morgan or IIolly Street~ but rather pursuant to, and supported by, the proffered evidence presented by all the parties. Indeed~ such evidence revealed proposed projects Elt the Premis~s, acccptanc~ and com pletiun of wurk performed at the Premises, and the revelation of an unidentified individual who allegedly has knowledge of whether work was performed by Stasi Brothers at the Premises. Therefore, further discovery must occur concerning these {:riticai and material facts prior to dete;nnining Stasi Brothers' entitlement to accelerated judgment. Accordingly, mot. seq. no. 4 is denied with leave to renew at the close of discovery.
Turning to Mr. Morgan and Holly Slreet's motions for summary judgment (mot.
sc-q. nos. 5 and 7, re...•,pecfrveJy), c-.ach movant pmfftsed expert tm1terjaJs in support of their position. Additionally, there are no questions. of fact as to whether a duty was owed to Mr. Morgan by Holly Street, as the <luty is predicated upon uncontested facts (Holly Street owned the Premises) and Nev,.1 York Cily Adminlstrative Code. Thus, unlike Stasi Brothers~ motion, the circumstances and evidence proffered by both parties demonstrate iliat these motions are not premature-. How~ver, though not premawre, questions of fact preclude the granting of either movanfs summary judgment motion. The trier of fact must detem1ine ,vhether Holly Street breached Hs duty or if a dangerous condition existed at the time of the Incident.
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Contrary to both parties' contentions, neither experts' submission is con cl usory or unsupported by the record. Mr. Pici opines, based upon his review of photographic evidence and the swom statements of Mr. Morgan, that a vertical height differentia] existed at the Premises which represented a dangerous condition that was the proximate cause to Mr. Morgan:s injuries. Mr. Fcaron~s expert opinion similarly relied upon both photographic evidence and Mr. Morgan's sworn statements, in addition to his stte inspection, allowing him to concJude that the lm:ation \Vas properly maintained and that no condition existed lhut represented a danger to Mr. Morgan or dJ ~ pro>..Jmat.e cause of Mr. Morgan's injuries. According]y, as both parties ~ubmit competing expert evidence) the trier of fact must make the determinations as to the expc:rts' credibilily and \Vhether a dangerous condition existed causing Mr. Morgan:s injuries. Therefore, mot. seq. nos. 5 and 7 are denied.
To the extent not specifically addressed herein, the parties) remaining contentions have been considered and found to be either meritlcss and/or moot.
Conclusion
Accordingly, it is hereby ORDERED that mot. seq. no. 4 is denied W[th leave to renew upon the dose of discovery; an<l it is further ORDERED that mot. seq. no. 5 is denied; and it is further ORDERED that mot. seq. no. 7 is denied; and it is further
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ORDERED that mot seq. no. 8 is granted to the extent that Hallen's time to answer Mr. Morgan's third amended complaint is extended to 21 days from service or this order ,vith notice of entry, the remainder of mot. seq. no. 8 is denied in all other respects; and it is i'urther
ORDERED that mot. seq. no. 10 is gra_~~e~_ to the extent that Mr. Morgan~s complaint is hereby amended and the Third Amended Verified Complaint in the proposed form annexed to the moving papers shall be deemed served upon the parties Llpon service of a copy of this order with a notice of entry thereof1 the rcmaindt:r of mot. seq. no. l Q is denied in all other respects.
Th is constitutes the decision and order of the court.
ENTER,
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]. S. C.
i_.,
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