Opinion
Index No. 605719/14 Motion Seq. Nos. 003 004
01-25-2018
JAMES SCHULER, Plaintiff(s), v. TOWN OF OYSTER BAY, Defendant(s).
Unpublished Opinion
Motion Submitted: 11/9/17.
PRESENT: Honorable James P. McCormack, Justice.
Honorable James P. McCormack, Justice.
The following papers read on this motion:
Notice of Motion/Supporting Exhibits......................................X
Notice of Cross Motion/Opposition.........................................X
Reply Affirmation...................................................X
Defendant, Town of Oyster Bay (Town), moves this court for an order, pursuant to CPLR S3212 , granting it summary judgment and dismissing the complaint against it. Plaintiff, James Schuler (Schuler), opposes the motion and cross moves for leave to amend his bill of particulars pursuant to CPLR S3025(b). The Town opposes the cross motion.
Plaintiff commenced this action, sounding in negligence, by service of a summons and complaint, dated October 28, 2014. Issue was joined by service of an answer dated April 30, 2015. The case certified ready for trial on March 21, 2017 and a note of issue was filed on April 27, 2017.
On August 3, 2013, Schuler was employed by Progressive Waste Solutions as a heavy equipment operator. He worked at a facility owned by the Town, but operated by Progressive. Progressive and the Town had a contract where Progressive was able to use the premises, and was largely responsible for maintaining the premises. On the premises, Progressive would load up trucks with solid waste and transport it to another location. Once a truck was filled with solid waste; it would go to the tarping station to have a tarp draped over the top to prevent any of the waste from falling out. The tarping station was covered on the top but was open on all sides and contained two bays. There were steps that led up to catwalks that were used to drape the tarp over the trucks. Often two employees would put the tarp on, but one could do it alone. Shuler. did not usually put tarps on the truck, and would only do so when Progressive was shorthanded. One such shorthanded day was August 3, 2013, and Shuler had climbed onto a catwalk to help put a tarp over a truck. After he was done, he was walking down one of the metal staircases when he heard a loud noise. He turned his head to see where the noise was coming from and what it was. Afterward, he reached for the handrail to continue to walk down the steps. However, the handrail was bent, so that when he reached for it, it was not there. This caused him to lose his balance and fall. As a result, he was allegedly seriously injured.
Both prior to the date of the accident and after, Schuler testified he worked for Winter Bros,, which sold Progressive and then purchased it back.
THE TOWN'S MOTION FOR SUMMARY JUDGMENT
It is well settled that in a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]; Friends of Animals, Inc. v. Associates Fur Mfrs., 46 N.Y.2d 1065 [1979]; Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980]; Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]).
The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegard v. New York University Medical Center, 64 N.Y.2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980], supra).
Within the context of a summary judgment motion that seeks dismissal of a personal injury action the court must give the plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence (see Anderson v. Bee Line, 1 N.Y.2d 169 [1956]). The primary purpose of a summary judgment motion is issue finding not issue determination, Garcia v. J.C. Duggan, Inc., 180 A.D.2d 579 (1st Dept 1992), and it should only be granted when there are no triable issues of fact (see also Andre v. Pomeroy, 35 N.Y.2d 361 [1974]).
"A landowner i~ under a duty to maintain its property in a reasonably safe condition under the existing circumstance,, including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk" (Giulini v. Union free School Dist. # 1, 70 A.D.3d 632 [2nd Dept. 2010]; Basso v Miller, 40 N.Y.2d 233, 241 [1976]).
"To impose liability upon a defendant landowner for a plaintiffs injuries, there must be evidence showing the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time" (Morrison v. Apolistic Faith Mission of - Portland, 111 A.D.3d 684 [2d Dept 2013]; see Winder v. Executive Cleaning Servs., LLC, 91 A.D.3d 865 [2dDept 2012]; Gonzalez v. Natick N.Y. Freeport Realty Corp., 91 A.D.3d 597 [2d Dept 2012]).
One cannot be held liable for a dangerous or defective condition on property unless ownership, occupancy, control or special use of the property has been established. (Ruggiero v. City School District of NewRochelle, 1~9 A.D.3d 894 [2nd Dept 2013]; Soto v. City of New York, 244 A.D.2d 544 [2nd Dept. 1997], James v. Stark, 183 A.D.2d 873 [2nd Dept. 1982)).
Herein, it is undisputed that on the date of the accident Progressive and the Town were parties to a contract that allowed Progressive to use the premises. The Town argues that the contract required Progressive to "maintain and repair" the facilities, including the tarping station. Further, the Town asserts it did not maintain the facilities and that the "tarp rack was!solely in the purview of Progressive". However, this statement is not entirely accurate. The contract gave the Town the authority to inspect the facilities "at any time." Further, the contract required Progressive to make "the entire Transfer Facility available" to the Town for its own purposes 15 weekends each year. Based upon these provisions of the contract, the court finds the Town has failed to establish entitlement to summary judgment as a matter of law regarding the issue of control of the property. (Yehiav. Marphll Realty Corp., 130 A.D.3d 615 [2d Dept. 2015]).
The Town also argues it neither created the defective condition, nor had actual or constructive notice of the defective condition. As it is clear that the Town was never provided with actual notice, the question is whether the Town had construciive notice. It is the Town's burden to establish lack of constructive notice. (Moreno v. County of Nassau, 127 A.D.3d 707 [2d Dept. 2015]; Hecht v. Saccoccio, 120 A.D.3d 474 [2d Dept. 2014]). Where an out-of-possession landowner reserves the right to enter premises for the purposes of inspections, then an issue of fact will exist as to whether that right provides the owner with constructive notice of defects upon the property. (Pellegrino v. Walker Theater, Inc. 127 A.D.2d 574 [2d Dept; 1987]). Herein, the contract gave the Town the right to enter the property for purposes of inspections, and the Town further reserved the right to enter the property to use it for its own purposes. Further, the Town's witness, Christopher Geary, testified at his deposition to having no idea how long the defective condition existed. The court therefore finds the Town has failed to establish entitlement to summary judgment on the issue of notice. As such, its motion will be denied regardless of the sufficiency of the opposition papers. (Winegard v. New York University Medical Center, supra)
SCHULER'S MOTION TO AMEND THE BILL OF PARTICULARS
" 'Leave to amend pleadings should be freely given provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit' "(Bloom v. Lugli, 102 A.D.3d 715 [2nd Dept. 2013]; quoting Greco v. Christoffersen, 70 A.D.3d 769, 770 [2nd Dept. 2010], quoting Gitlin v. Chirinkin, 60 A.D.3d 901,901-902 [2nd Dept. 2009]; see CPLR 3025[b];). "A determination whether to grant such leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed" (Gitlin, 60 A.D.3d at 902; see Greco, 70 A.D.3d at 770). "The granting of such leave is committed to the sound discretion of the trial court and must be determined on a case by case basis" (Biaggi & Biaggi v. 175 Medical Vision Properiies, LLC, 105 A.D.3d 790, 791 [2nd Dept. April 10, 2013; quoting Skinner v. Scobbo, 221 A.D.2d 334,335 [2nd Dept. 1995]).
Herein, while the addition of violations of Occupational Safety and Health Act regulations to a bill of particulars is, arguably, an allowable amendment at this stage in the proceedings, the Town properly points out that such regulations only apply to the employer/employee relationship. (Khan v. Bangia Motor and Body Shop, 27 A.D.3d 526 [2d Dept. 2006]; Delaney v. City of New York, 78 A.D.3d 540 [1st Dept. 2010]). As there is no allegation or evidence that Schuler was an employee of the Town, the amendment is patently devoid of merit.
Accordingly, it is hereby ORDERED, that the Town's motion for summary judgment is DENIED; and it is further ORDERED, that Schulerss motion for leave to amend the bill of particulars is DENIED.
This foregoing constitutes the Decision and Order of the Court.