Henry T. Lau, Appellant,v.Margaret E. Pescatore Parking, Inc. et al., Respondents.BriefN.Y.November 16, 2017 1 KENNETH J. GORMAN, ESQ., P.C. August 10, 2017 State of New York Court of Appeals 20 Eagle Street Albany, New York 12207-4095 Attn: John P. Aniello Chief Clerk and Legal Counsel to the Court Re: Re: Lau v Pescatore Parking APL-2017-00137 Dear Mr. Aniello, This letter is respectfully submitted in accordance with the directive set forth in this Court’s letter dated July 17, 2017, directing written comments and arguments in letter form in support of the plaintiff-appellant’s (the “plaintiff”) position on the merits. 225 Broadway, Ste 307 New York, NY 10007 Phone: 212 267-0033 kennethjgorman@gmail.com 2 Introduction In its decision and order, the First Department determined that defendants were properly granted summary judgment because they “submitted evidence showing that they did not own, control, or have notice of the barrel or the cord” (Lau v. Margaret E. Pescatore Parking, Inc., 145 AD3d 567 [1 st Dept. 2016], leave to appeal granted, 29 NY3d 914 [2017]). However, the Court erroneously found that in “opposition, plaintiff…proffered no evidence linking defendants to either the barrel or the decision to tie it to the street sign” (id). This is because Justice Silver found that plaintiff raised “an issue of fact as to whether...Pescatore own[ed] the barrels involved in [p]laintiff’s accident” (13, emphasis added) 1 . Defendant Margaret E. Pescatore Parking, Inc. (“Pescatore”), used three traffic barrels in connection with the operation of its parking lot, which was open until 8:00 p.m. on March 10, 2010. Plaintiff’s accident occurred at 8:30 p.m. Joseph Tsang, who witnessed plaintiff’s accident, testified that the barrel was attached to the no standing sign with an orange cord. Four days after the incident, one of Pescatore’s barrels was affixed to the fence in front of its lot with an orange cord. Anthony Maruffi, who testified on behalf of Pescatore, admitted that this orange cord was the same kind of cord which Pescatore used to attach a parking sign to one of its barrels. 1 Numbers in parenthesis refer to the record on appeal. 3 We respectfully submit that summary judgment against Pescatore was unwarranted in light of (1) the short time span between the parking lot’s closure and plaintiff’s accident, (2) the trial court’s finding that there were questions of fact as to whether Pescatore owned the barrel and (3) Pescatore’s practice of using cords similar to the one Joseph Tsang described, and depicted in the photo at page 381 of the record 2 in relation to using the barrel. Indeed, the evidence established a strong circumstantial link between the hazardous condition that was created by tying the cord to the street sign and traffic barrel and Pescatore’s operation of its parking lot. Five days after the incident, John Maruffi, Pescatore’s manager, admitted on video, to plaintiff’s attorney, that Pescatore owned and controlled all circular traffic barrels that were on the premises, including the one that was involved in plaintiff’s accident. Thus, it stands to reason that just as Pescatore admittedly tied the orange barrel to the fence behind the attendant’s shack as depicted in the pictures at pages 305, 371 and 379-381 of the record and tied it’s “park” sign to the rectangular barrel with the same material, as conceded by Anthony Maruffi at his deposition (184), there is a question of fact as to whether Pescatore tied the barrel at issue to the no standing sign. Pescatore was the only entity which would have gone through the trouble of tying the barrel to the street sign. It owned the orange 2 Which was also attached at Exhibit “F” to plaintiff’s leave application to this Court. 4 barrel, which was integral to the parking lot’s operation. As only ½ hour elapsed from the time Pescatore closed until the incident, it can be logically inferred that Pescatore affixed the barrel to the street sign when it closed the lot. As “[t]he circumstantial evidence provides a nonspeculative basis for plaintiff’s version of the accident” (DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1 st Dept. 2014], citing, Healy v. ARP Cable, Inc., 299 AD2d 152, 154–155 [1 st Dept. 2002]), we respectfully submit that this Court should reverse the Appellate Division’s decision and order, which misapplied the facts and the law, and reinstate plaintiff’s complaint. Factual Background On March 10, 2010, the plaintiff was walking down Bayard Street in New York, when he allegedly tripped and fell on a cord that was tied from a no standing sign to a parking barrel in front of the parking lot operated by Pescatore (31, 155, 354). Herman Ho and Joseph Tsang witnessed plaintiff’s accident (387, 389). Mr. Ho and Mr. Tsang stated that they routinely passed the parking lot and had seen the subject barrel being frequently moved around. They thought that the barrel was used to prevent cars from blocking the parking lot’s entrance (Id). On March 14, 2010, and again on March 15, 2010, Allen Yi, one of plaintiff’s attorneys, went to the accident site and took photographs of the scene and video recorded the area (357-385). The plaintiff also obtained certified Google 5 Maps street view images of the area where plaintiff fell taken in April 2009, 11 months before the incident (391-397). The photographs that Mr. Yi took on the night of March 14, 2010 and on March 15, 2010, showed three orange and white striped parking barrels (371-385). Two barrels, one rectangular and one round, were placed in the street, on each side of the parking lot. The rectangular barrel had a sign with the word “PARK” attached to it (Id). Directly under the word park was an arrow directing cars into the lot (Id). The round barrel on the other side of the lot was adjacent the same no standing sign which it had been tied to on the night of plaintiff’s accident (113, 377). The other round barrel was tied to a fence with a cord or wire (305). The photographs also showed that the circular barrel had the letters “LOT” written on it in big bubble letters three times, raising issues of fact as to whether Pescatore owned and controlled these barrels. In addition, when Mr. Yi went to Pescatore’s parking lot on March 15, 2010, he spoke with John Maruffi, Pescatore’s manager (357-358). Mr. Yi told him that plaintiff tripped over a cord that was affixed to the traffic barrel and no standing sign. Mr. Yi asked John Maruffi if Pescatore owned the two circular traffic barrels. John Maruffi candidly responded in the affirmative. Mr. Yi video recorded the conversation he had with John Maruffi (358, 364). 6 Certified Street View Images supplied by Google Maps of the area in question taken in April 2009, 11 months prior to the incident, depicted one of the traffic barrels that was controlled by the lot in the exact same location that the traffic barrel was placed at the time of the plaintiff’s accident (397). Specifically, the traffic barrel was in the street, directly across from the no standing sign that the subject traffic barrel was affixed to on March 10, 2010. The only difference was that the barrel depicted in the Google Map street view images was the rectangular barrel, that Anthony Maruffi admitted Pescatore owned at his deposition, as opposed to the circular traffic barrel, which John Maruffi admitted Pescatore owned to plaintiff’s attorney, that was affixed to the sign on the night of the accident. The street view images also established that Pescatore had a practice of placing a traffic barrel in the exact location where plaintiff’s accident occurred at least 11 months prior to the incident. They showed that one of the round traffic barrels that John Maruffi admitted Pescatore owned, was in the same location 11 months prior to the accident, adjacent to the no standing sign. The plaintiff obtained affidavits and deposed non-party witnesses, Henry Ho and Joseph Tsang; both worked with the plaintiff and witnessed the accident (387, 389, 156-176, 398-414). Tsang and Ho observed the traffic barrel that was tied to the no standing sign (387, 389). The cord (or wire) was hanging less than a foot 7 off the ground (Id). Mr. Ho described the cord as “pretty thin”, approximately 3/8” thick (401). It was affixed to the midsection of the barrel and the street sign and was approximately 3” off the ground (402, 409). Mr. Ho passed the area in question about 2 to 3 times per week during lunchtime, between 1:00 p.m. to 2:00 p.m. (402). He identified photographs of the orange and white traffic barrels utilized by Pescatore (403). The barrels were not always in the same place when he passed the parking lot (403). He saw a person move the barrels around and it appeared that they were being used in connection with operating the parking lot (403). Mr. Tsang testified that the top of the traffic barrel was attached to the street sign (157). Tsang routinely walked by the parking lot once or twice a week at approximately 1:00 p.m. (158). He had seen the round traffic barrel in the vicinity of the parking lot when he walked by the area (158-159). The barrel would not always be in the same area; it was moved around (158-159). Mr. Tsang thought that the barrels were used to prevent cars from blocking the entrance to the parking lot (160). Pescatore did not produce John Maruffi for a deposition. Instead, it produced his son, Anthony Maruffi, who was a parking lot attendant in March 2010 (179). Anthony had no personal knowledge of the events surrounding plaintiff’s accident and could not recall if he was working on the day of the 8 incident (180). Anthony identified the rectangular orange and white traffic barrel (which was also referred to as a square traffic barrel) depicted in the photographs presented to him. He claimed that Pescatore only used this rectangular traffic barrel in connection with operating the parking lot (183). There was a sign affixed to the rectangular barrel in the photos. The sign was attached to the barrel with a cord (184). The sign contained the word “park” and had an arrow (184). Anthony stated that this sign was always affixed to the rectangular traffic barrel and that it was never removed (184). However, the certified street view Google Map images that were taken of the site in April 2009, 11 months before plaintiff’s accident, showed the rectangular traffic barrel without that sign (397). The barrel is in the street, adjacent to the sidewalk and directly in front of the no standing sign that the circular barrel was affixed to on the night in question (Id). Anthony was shown another picture which contained one of the two circular traffic barrels which his father, John Maruffi, admitted Pescatore owned (188). That traffic barrel was affixed to the fence with a cord. The fence was part of Pescatore’s parking lot (188). Anthony claimed that he did not know how or why the circular traffic barrel ended up on defendants’ property tied to its fence (189). 9 When Pescatore moved for summary judgment (16-24), it argued, inter alia, that the parking lot was not responsible for the barrel or cord over which plaintiff allegedly tripped over (19). In its decision and order dated December 23, 2014, the Supreme Court, New York County (Silver, J.), found that in opposition to Pescatore’s motion for summary judgment, the plaintiff raised “an issue of fact as to whether...Pescatore own[ed] the barrels involved in [p]laintiff’s accident” (13). In affirming the trial court’s order which granted Pescatore’s motion for summary judgment, the First Department found that “[d]efendants submitted evidence showing that they did not own, control, or have notice of the barrel or the cord” (Appellate Division’s decision and order at 1-2, Lau v. Margaret E. Pescatore Parking, Inc., 145 AD3d 567 [1 st Dept. 2016], leave to appeal granted, 29 NY3d 914 [2017]). However, the Court made a finding that was directly contradicted by the trial court, stating that “plaintiff failed to raise a triable issue of fact, as he proffered no evidence linking defendants to either the barrel or the decision to tie it to the street sign” (Id., emphasis added). Discussion There is no dispute, and the trial court found, that there are questions of fact as to whether Pescatore owned and the barrel (13). Thus, the only issue was whether there was sufficient circumstantial evidence linking Pescatore to the 10 decision to tie the barrel to the street sign. We submit that when looking at the evidence in a light most favorable to the plaintiff, there was. The First Department’s finding to the contrary, which directly contradicted the trial court’s finding that Pescatore owned the traffic barrel at issue, constituted an erroneous application of the facts and the law. “It has long been recognized that, in circumstantial cases, the possibility that an accident may have been caused by factors other than defendant’s negligence does not mandate a conclusion that plaintiff has failed to make out a prima facie case” (Brito v. Manhattan & Bronx Surface Transit Operating Auth., 188 AD2d 253 [1 st Dept. 1992]). As the Prosser-Keaton hornbook cogently notes: “[t]he plaintiff need not negate entirely the possibility that the defendant’s conduct was not a cause, and it is enough to introduce evidence from which reasonable persons may conclude that it was more probable that the event was caused by the defendant than that it was not...If, as a matter of ordinary experience, a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists” (Prosser & Keaton on Torts, 5th ed., §39). 11 “A party may rely on circumstantial evidence to establish any aspect of its claim or defense. Often the party has no choice but to rely on such evidence, because direct evidence may simply be unavailable” (16 N.Y. Prac., New York Law of Torts § 20:15, citing, Archie v. Todd Shipyards Corp., 65 AD2d 699 [1 st Dept. 1978]; Finkel v. State, 37 Misc.2d 757 [Ct. Cl. 1962]). Circumstantial evidence is sufficient to support the intended inference if it renders such inference more probable than not (see, Ingersoll v. Liberty Bank of Buffalo, 278 NY 1 [1938]; Restatement [2d] of Torts, §433[b], comment b; see generally, Mertsaris v. 73 rd Corp., 105 AD2d 67 [2d Dept. 1984]). “Where, as here, a case is based on circumstantial evidence, [i]t is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” (Crawford v. Marcello, 247 AD2d 907, 907 [4 th Dept. 1998], quoting, Schneider v. Kings Highway Hosp. Ctr., 67 NY2d 743, 744 [1986]). Here, Pescatore’s manager, John Maruffi admitted that Pescatore owned the traffic barrel five days after plaintiff’s accident and the trial found that plaintiff “raise[d] an issue of fact as to whether...Pescatore owns the barrels involved in [p]laintiff’s accident” (13). John Maruffi’s videotaped admission and the testimony of non-party witnesses Henry Ho and Joseph Tsang established that Pescatore controlled those barrels in connection with operating the parking lot. 12 The photos Mr. Yi took on the night of March 14, 2010, and the day of March 15, 2010, in conjunction with the certified Google Map street view images established that Pescatore routinely placed one of the three traffic barrels it owned in the exact same spot that the barrel was in on the night of the incident. Joseph Tsang, who witnessed the incident, testified that the accident occurred at 8:30 p.m. (160) and that the cord (which he referred to as “rope”) was “orange-colored” (165). A photo Mr. Yi took on March 14, 2010, showed that the cord attached to the barrel (that John Maruffi admitted Pescatore owned the following day), was orange colored (381). Norman Lau Kee, Tai Ming’s vice president, who parked his vehicle in the parking lot at least 2 times per week (289) testified that Pescatore usually closed at 8:00 p.m. during the week and would stay open later on Fridays and Saturdays (282). At his deposition, Anthony Maruffi identified a photograph Mr. Yi took of the rectangular barrel, which had the parking sign tied to it (271). Anthony admitted that Pescatore owned that barrel and he identified the cord which attached the sign to the rectangular barrel (271). Anthony then identified the photo Mr. Yi took of the round barrel that was affixed to Pescatore’s fence with the orange cord (271). Anthony testified that the orange cord which affixed the barrel to the fence looked similar to the cord which attached the parking sign to the rectangular barrel (271). According to the certified 13 street image view taken 11 months prior to the accident, the parking sign was attached by a cord to the round barrel (301). Thus, it stands to reason that Pescatore was the only entity which would have gone through the trouble of tying the barrel to the street sign. It owned that barrel, which was integral to the operation of the parking lot. The photographs taken on March 14, 2010 and March 15, 2010, and the certified street view image established that an orange cord (as depicted in the photograph) was used to affix barrels to the fence and used to attach the parking signs interchangeably. As Mr. Kee testified that the parking lot was open until 8:00 p.m. during the week (the accident occurred on a Wednesday) and because Mr. Tsang testified that the incident happened at 8:30 p.m. we respectfully submit that under these circumstances, it is reasonable to infer that Pescatore created the dangerous trap like condition (see, Palumbo v. Innovation Communication Concepts, 251 AD2d 246 [1 st Dept. 1998] [Where defendant’s contract called for installation of long wires, and it could be inferred that its employees laid down the wire over which plaintiff tripped or had notice of same, a jury question existed on affirmative creation]; Bassat v. Alpha Iron Works, Inc., 75 AD3d 1062, 1063 [4 th Dept. 2010] [finding that the “evidence is sufficient to raise an issue of fact whether an employee of the 14 Alpha defendants left the cord or cable on the stairway and thereby created a dangerous condition that caused plaintiff’s injuries”]). Indeed, when looking at the evidence in the light most favorable to the plaintiff in conjunction with the trial court’s finding there were factual issues regarding Pescatore’s ownership of the barrel that was tied to the no standing sign, dismissal was simply not warranted. Only a ½ hour elapsed from the time the parking lot closed (8:00 p.m.) until the plaintiff’s accident (8:30). Thus, the evidence establishes a strong circumstantial link between the hazardous condition that was created by tying the cord to the no standing sign and traffic barrel and Pescatore’s operation of the parking lot. As “[t]he circumstantial evidence provides a nonspeculative basis for plaintiff’s version of the accident” (DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1 st Dept. 2014], citing, Healy v. ARP Cable, Inc., 299 AD2d 152, 154–155 [1 st Dept. 2002]), we respectfully submit that this Court should reverse the Appellate Division’s decision and order and reinstate plaintiff’s complaint. Very truly yours, /s/ Kenneth J. Gorman Kenneth J. Gorman CC: Law Office of James J. Toomey 15 Attorneys for Defendant-Respondent Margaret E. Pescatore Parking, Inc. 485 Lexington Avenue, 7th Fl New York, NY 10017 (917) 778-6600 Debra J. Millman Attorney for Tai Ming Development Corp., 420 Lexington Ave. Suite 2834 New York NY 10017 (212) 406-4700 16 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR §500.13(c) that the foregoing letter brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the letter brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by §500.1(h) is 3,127. Dated: August 10, 2017 Respectfully submitted, /s/ Kenneth J. Gorman Kenneth J. Gorman, Esq., P.C. Attorney for Plaintiff-Appellant 225 Broadway, Suite 307 New York, New York 10007 212-267-0033 kennethjgorman@gmail.com