Henry T. Lau, Appellant,v.Margaret E. Pescatore Parking, Inc. et al., Respondents.BriefN.Y.November 16, 2017New York County Clerk’s Index No. 103807/10 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT HENRY T. LAU, Plaintiff-Appellant, against MARGARET E PESCATORE PARKING, INC., and TAI MING DEVELOPMENT CORP., Defendants-Respondents. >> >> To Be Argued By: Norman Landres BRIEF FOR DEFENDANT-RESPONDENT TAI MING DEVELOPMENT CORP. DEBRA J. MILLMAN, P.C. Attorneys for Defendant-Respondent Tai Ming Development Corp. 420 Lexington Avenue, Suite 1425 New York, New York 10170 212-406-4700 dmillman@millmanlaw.com Printed on Recycled Paper i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 POINT I ............................................................................................................... 2 POINT II ............................................................................................................. 3 POINT III ............................................................................................................ 4 CONCLUSION .......................................................................................................... 5 PRINTING SPECIFICATIONS STATEMENT ....................................................... 6 ii TABLE OF AUTHORITIES Page(s) Cases Castore v. Tutto Bene Rest. Inc., 77 A.D.3d 599 ....................................................................................................... 4 Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 760 N.Y.S.2d 387 ........................................................................ 5 1 Lau v. Tai Ming - Brief for Defendant- Respondent Tai Ming Development Corp. Preliminary Statement Defendant TAI MING DEVELOPMENT CORP. (hereinafter, “Tai Ming”) was the owner of an open, outdoor parking lot located at 98-100 Bayard Street in Manhattan. The lot had been leased to and wholly operated by co-defendant MARGARET E. PESCATORE PARKING, INC (hereinafter, “Pescatore”) for the twenty years preceding March 20, 2010. On March 10, 2010 plaintiff claims to have tripped over a cord extending between the pole of a street sign and a barrel place in the street. Plaintiff then commenced this action to recover money damages for his injuries. After issue was joined and discovery was completed, each defendant moved for and was granted summary judgment dismissing plaintiff’s complaint against them. Plaintiff does not dispute the law cited by the court in its decision in defendants’ favor. Rather it disputes the trial court’s factual findings The primary issues in this action with respect to defendant Tai Ming are: 1) Were the causative factor, the street sign, the particular barrel and the cord tied between them, actually on plaintiff’s property or the adjoining sidewalk at the time of plaintiff’s accident; if so 2) Did Tai Ming create the condition complained of or did it have actual or constructive notice of that condition. 2 Justice George J. Silver, in his decision of December 23, 2014, [10-14] found that plaintiff failed to produce evidentiary proof in admissible form to support plaintiff's position on both issues. The decision of the court below was correct. POINT I The only evidence as to the location of the objects allegedly causing the accident in question is to be found in photographs provided by plaintiff of the street sign and barrel at the scene. There are no photos of the cord. All of the photos of the street sign [126, 238, 365, 375 and 438] clearly show that the pole to which the sign was attached was embedded in the cement sidewalk to the left of Tai Ming’s property line and in front of the building located at 102 Bayard Street, a premises not owned by Tai Ming. The photos of the particular barrel to which the cord was allegedly attached [238 and 265] show the barrel standing in the roadway, not on the sidewalk. Plaintiff and each of the non-party witnesses who were at the scene of the accident gave deposition testimony that the sign and the barrel were in approximately the same position as shown in the photographs when the accident occurred. There is no evidence whatsoever that the street sign, the specific barrel and the cord tied between them was on plaintiff’s property or the adjoining sidewalk when the accident occurred, plaintiff’s conclusory claim to the contrary 3 notwithstanding. The court below was correct in granting summary judgment on that basis alone. POINT II It is well-established, as the court below notes, that in order for a plaintiff to succeed against a landowner for injury caused by an unsafe condition on the landowner’s property plaintiff must prove that the owner either created the condition or had actual or constructive notice of its existence.[3] Plaintiff does not contend that or offer any evidence that Tai Ming created the condition and Tai Ming’s representative testified that Tai Ming played no part in the operation of the parking lot leased to Pescatore. [289 (p. 58)] With regard to actual notice, neither plaintiff nor any of the non-party witnesses produced for deposition by plaintiff ever saw the condition complained of until the time when the accident occurred. Plaintiff offers no evidence indicating the length of time the condition existed prior to the accident. With regard to constructive notice, plaintiff’s main contention is that the deposition testimony of Mai Ting’s representative, Norman Lau Kee, was “incredible” (p.50) Mr. Kee testified that he never noticed barrels at the parking lot on the occasions when he parked there until after suit was commenced. It is submitted that this is a false issue. Even if we assume, for the sake of argument, that Mr. Lau should have seen barrels at the lot, there is no indication that any 4 barrel he should have seen when he should have seen it was in the same or similar position as it was on the accident date or that the barrel he should have seen was at that time tied by cord to a street sign, thus creating an unsafe condition. To make these assumptions and reach the conclusion plaintiff seeks requires sheer speculation. As noted by Justice Silver in his decision (citing Castore v. Tutto Bene Rest. Inc., 77 A.D.3d 599), “Speculation is not a substitute for the evidentiary proof in admissible form that is required to establish the existence of a triable question of material fact.” [13] POINT III The standards for granting summary in an action such as the one before the court are well established and are correctly stated in the first paragraph of the Analysis portion of the decision in the court below. [12-13]. Plaintiff neither disputes any portion of the law referred to in that paragraph, nor the law stated in the balance of the Analysis. Plaintiff merely submits a general recital of the law of premises liability without any particular attempt to connect that law to the circumstances presented in the present action. As stated in Justice Silver’s decision, once a movant has met its prima facie burden on a motion for summary judgment, “the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” (citing Giuffrida v. Citibank Corp., 100 N.Y.2d 72,81, 760 N.Y.S.2d 387). [12] It is submitted that plaintiff has wholly failed to meet that burden. CONCLUSION The decision and order of the court below was correct as to defendant Tai Ming. The order should be affirmed. Dated: August 4, 2016 New York, New York Respectfully submitted, am: MIULMAN, ATTORNEYWT LAW, P.C. Attorney for Defendant-Respondent TAI MING DEVELOPMENT CORP. 420 Lexington Avenue, Suite 1425 New York, NY 10170 (212) 406-4700 DEBRA J. MILLMAN NORMAN LANDRES 5 6 PRINTING SPECIFICATIONS STATEMENT Pursuant to 22 NYCRR § 600.10(d)(1)(v) The foregoing brief was prepared on a computer. A proportional typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 982.