John P. Mery et al., Appellants,v.Frank Eginger, Defendant, Society of Friends Church,, Respondent.

Brief

N.Y.June 5, 2018

To Be Argued By: Brian J. Isaac Time Requested: 15 Minutes JSeto §orfe Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT Docket No. 2015-04104JOHN P. MERY and JENNIFER MERY, Plaintiffs-Appellants, against FRANK EGINGER, Defendant, and SOCIETY OF FRIENDS CHURCH, A/K/A THE POUGHKEEPSIE MONTHLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS, A/K/A FRIENDS MEETING, Defendants-Respondents. BRIEF FOR PLAINTIFFS-APPELLANTS RUTBERG BRESLOW PERSONAL INJURY LAW Attorneys for Plaintiffs-Appellants By: POLLACK, POLLACK, ISAAC & DE CICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Of Counsel: Brian J. Isaac Dutchess County Clerk's Index No. 7594/12 STATEMENT PURSUANT TO CPLR 5531 Jÿeto J9orfe Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT JOHN P. MERY and JENNIFER MERY, Docket No. 2015-04104Plaintiffs-Appellants, against FRANK EGINGER, Defendant, and SOCIETY OF FRIENDS CHURCH, A/K/A THE POUGHKEEPSIE MONTHLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS, A/K/A FRIENDS MEETING, Defendants-Respondents. 1. The index number of the case in the Court below is 7594/12. 2. The full names of the original parties are set forth above. There has been no change to the caption. 3. The action was commenced in the Supreme Court, Dutchess County. 4. This action was commenced on or about December 24, 2012, by the filing of an Amended Summons with Notice and Complaint. Issue was joined by service of a Verified Answer on or about February 18, 2013. 5. The nature and object of the action: personal injuries allegedly sustained while driving with the window open and being hit in the eye with a wire from a lawn mower. 6. The appeal is from the Decision, Order and Judgment of the Honorable Christine A. Sproat, dated March 10, 2015. 7. This appeal is being perfected with the use of a fully reproduced Record on Appeal. TABLE OF CONTENTS Page PRELIMINARY STATEMENT 1 QUESTIONS PRESENTED 2 STATEMENT OF THE CASE 3 Plaintiff's Deposition 3 Frank Eginger's Deposition 4 Deposition of Frederick W. Doneit Sr. 7 Affidavits of Doneit and Armen Fisher 8 PROCEDURAL HISTORY 8 The Church's Motion for Summary Judgment 9 Plaintiff's Affirmation in Opposition 10 The Church's Reply Affirmation 13 Decision, Order, and Judgment 13 16ARGUMENT POINT I THE CHURCH FAILED TO ESTABLISH ITS PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT AS IT FAILED TO SHOW THAT LAWN MOWING IN THE INSTANT CASE WAS NOT INHERENTLY DANGEROUS . 16 The inherently dangerous activity exception applies to the case at bar A. 17 The record establishes that the Church should have known that debris from its lawn may injure nearby passersby B. 24 The risk of lawn debris striking a nearby passerby and vehicles could be reasonably perceived, presenting issues of fact respecting the Church's duty to the plaintiff C. 26 i The Church had a nondelegable duty to mow its lawn in accordance with Poughkeepsie's ordinances, and its hiring of an independent contractor does not absolve it of its duty to plaintiff D. 30 POINT II THE CHURCH DID NOT ESTABLISH ITS ENTITLEMENT TO SUMMARY JUDGMENT SINCE IT TENDERED INSUFFICIENT EVIDENCE SHOWING IT LACKED NOTICE OF THE HEAVY GAUGE WIRE DEBRIS 33 By failing to address whether it created the hazardous condition or when it last inspected the area, the Church failed to meet its prima facie burden and its motion for summary judgment should have been denied A. 33 In any event, triable issues of fact exist regarding the Church's notice of the debris on the lawn which would bar a grant of summary judgment in its favor B. 36 POINT III PLAINTIFF RAISED THE PROBABILITY THAT NEWLY DISCOVERED FACTS WARRANTED DENIAL OF SUMMARY JUDGMENT ON THE GROUNDS IT WAS PREMATURE 40 46CONCLUSION 47CERTIFICATE OF COMPLIANCE ii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION-SECOND DEPARTMENT Index No. 7594/12X JOHN P. MERY and JENNIFER MERY, Plaintiffs-Appellants, APPELLANTS' BRIEF -against- FRANK EGINGER and SOCIETY OF FRIENDS CHURCH a/k/a THE POUGHKEEPSIE MONTHLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS a/k/a FRIENDS MEETING, Defendants-Respondents. X PRELIMINARY STATEMENT Plaintiffs-appellants John P. Mery and Jennifer Mery ("plaintiff" and "Mrs. Mery", "plaintiffs" collectively) submit this brief in connection with the appeal [2-3]1 taken from the order and decision of the Supreme Court (Sproat, J.) dated March 2015 which granted defendant Society of Friends Church's10, motion for summary judgment dismissing("the Church") plaintiffs' complaint [4-7]. It is respectfully submitted that the order appealed from should be reversed and plaintiffs' complaint reinstated. 1 Unless otherwise specified, numbers in parentheses refer to particular pages of the Record on Appeal. 1 QUESTIONS PRESENTED [1] Did the trial court err in summarily concluding that lawn-mowing was not an inherently dangerous activity without considering the specific circumstances in the record? Yes. The trial court could not rule that lawn mowing can never be inherently dangerous, especially when presented with facts indicating that the lawn was not well maintained, contained debris, and was elevated such that any debris launched by a high powered riding mower could hit and severely injure passersby. t2] Did the trial court err in ruling that the Church did not have a nondelegable duty to plaintiff stemming from the statutory duty imposed upon it for maintenance of its lawn? Yes. The text of the statute specifically places the duty of lawn maintenance on the owner, and liability will be imputed to the Church for injuries sustained by a plaintiff as a result of an independent contractor's negligent mowing of its lawn. [3] Did the trial court err when it granted the Church's motion for summary judgment when the Church did not make any showing that it lacked actual or constructive notice of the debris on the lawn? Yes. The record establishes that the Church had notice of debris on the lawn for a long enough period of time such that it had constructive notice of the alleged defect. 2 [4] Did the trial court err when it did not deny the Church's motion pursuant to CPLR §3212[f]? Yes. Plaintiff presented evidence that discovery could lead to evidence that the Church had actual notice of the debris on its lawn resulting from its excavation and construction activities. STATEMENT OF THE CASE This action arises out of injuries plaintiff sustained when his left eye was impaled by heavy gauge wire while he was driving along the road adjacent to the Church's lawn while it was being mowed, resulting in a total loss of vision and necessitating prosthetic eye replacement. [45] Plaintiff's Deposition Plaintiff worked for the Metro-North Commuter railroad as a mechanic at the time of his accident. [63] On May 4, 2012, plaintiff was traveling west on Hooker Avenue, a two-way road, in order to get to work. [68, 70] Plaintiff was scheduled to begin at 4:00 p.m. that day. [68] Traffic was moderate. [70] Plaintiff was driving a 2002 Ford Pickup truck with the windows down. [70] Plaintiff suddenly felt a sharp pain in his left eye. [76] Plaintiff heard the noise of a lawnmower from the Church located [76-8] Heon the corner of Hooker Avenue and Whittier Street. pulled two pieces of heavy gauge wire out of his left eyeball. 3 [79] Plaintiff perceived a person operating a riding mower on the Church's lawn. [83-4] After stopping his vehicle, plaintiff felt weak and faint, so he sat against a wall by at a nearby Rite Aid pharmacy. [84] A man asked plaintiff what had happened, to which plaintiff responded, "That mower projected something out and it hit me." [86] An ambulance escorted plaintiff to St. Francis Hospital. [90] Frank Eginger's Deposition During the course of the proceedings, defendant Frank Eginger ("Eginger") was non-partied as a witness pursuant to a bankruptcy discharge order on February 1, 2013. His deposition was conducted on October 16, 2013. [186] "a lot ofEginger described himself as a man who does different things." [190] Regarding the Church, Eginger performed [191]cleaning and mowing jobs over the course of 21 years. Eginger mistakenly assumed that he was always on the Church's insurance based on a conversation he had with Dick Hathaway 21 years prior to his deposition. [311] Accordingly, Eginger thought he was an employee of the Church. [295] Eginger regularly cleaned the Church on Friday nights or Saturdays. [191] He also mowed the Church's lawn and was paid by the job. [192] He would tend to the lawn in other ways, including removing leaves and branches, trimming hedges; he 4 would also pick up garbage. [194] Eginger was aware that garbage would accumulate on the Church's lawn from the activities of children and other people who traversed it. [218-9] Eginger identified his mower and the Church during his deposition. [188-9] Eginger's mower was a "zero turn" mower he purchased from Adams Power Equipment in 2011. [195, 203] Instead of a steering wheel, there are levels the operator can use to change the direction of the mower. [309] The mower was triple- bladed, and the blades were set in a triangular pattern. [196] The blades on Eginger's mower were six inches above the ground. [201] Eginger's mower contained warnings about projectiles that could be launched from the mower's chute. [209] Eginger was aware of this warning and cognizant of the danger; he specifically noted that his mower had launched leaves, paper, and "light things" in the past, as well as a golf ball. [209, 278-9] In order to operate the mower, Eginger needed to ride it. [210] He was acutely aware of the fact that projectiles launched from a mower could be dangerous. [243] The projectile danger could be abated if Eginger conducted a walk-through and picked up debris prior to mowing. [244] The mower's configuration was also material. For example, [208, 211] Theusing a grass catcher could mitigate the danger. [287] Eginger described it bymower's chute hinged up or down. 5 analogizing it to a door. [287] The chute stayed up by the force of its own weight. [288] It did not lock. [289] On days where the Church was occupied, Eginger would not [223-4] He would also keep watch for people as he mowed.mow. [241] If people were walking down the sidewalk, he would either veer off to the side or completely stop until the people passed him. [241] Eginger utilized the "zero turn" mower on the day of plaintiff's incident. [210] On May 4th, Eginger drove and parked his truck in the Church's driveway, which faced Hooker Avenue. [222-3] The Church's front faces Whittier Street while its long side faces Hooker Avenue. [189] Eginger testified that the discharge chute was facing Hooker Avenue. [238] The grass [245, 281]Eginger was mowing was higher than the sidewalk. Eginger testified that other places which he mowed are not similarly elevated. [281] While he was mowing, Eginger was waved down by a bystander. [261] The bystander told Eginger that plaintiff was struck by [261]something that had been expelled by Eginger's mower. Plaintiff asked Eginger to move his truck for him. [261] At the [262] Subsequently,time, plaintiff's truck faced westward. Eginger noticed the presence of a walk-behind mower, operated by [263-4, 275]a teenager, two houses away from the Church. 6 After the incident, Eginger met Armen Fisher, a Church employee. [276] They discussed Eginger's riding the mower. [276] Fisher then tested whether the mower had the ability to expel objects by running over a soda can. [276] The mower shredded the soda can and it was blasted into the ground. [276] Eginger further confirmed his mower's propensity to launch objects when he recalled it propelling a golf ball into a car. [278-9] Deposition of Frederick W. Doneit Sr. Frederick W. Doneit Sr. ("Doneit") serves the Church as its trustee. [150] Doneit has an MBA from NYU. [149] The trustee is an operations position responsible for legal matters. [151] Contrary to Eginger's position, Doneit considered Eginger to be a contractor. [151] Doneit testified that no income statements were issued to Eginger. [154] Doneit acknowledged that if one were to "look at [the Church's] lawn right now, [one] might find some debris." [153] The Church would provide Eginger consumables for his job, such as soap; in addition Eginger would bring his [160-1] Eginger wasown equipment to the work site as needed. not allowed to mow the Church's property when people were present for services or other organizations were utilizing its property. [152] Doneit testified that Dick Hathaway, the Church's [157]treasurer, was at the scene shortly after the accident. 7 Hathaway described Eginger as being very rattled and panicked after the incident. [162] Affidavits of Doneit and Armen Fisher In a sworn affidavit, Doneit avers that the Church has a "Building and Grounds Committee" which "takes responsibility for assuring the [Church's] grounds are kept clear of debris and garbage." [21] Doneit swore that "issues, complaints and/or concerns" have not been lodged relative to debris on the lawn. [22] The affidavit lacks any indication as to when the committee last inspected the lawn [22]. Armen Fisher, a member of the Building and Grounds Committee [24], repeated the same [25-6]. PROCEDURAL HISTORY Plaintiff commenced his action by filing a summons and complaint against defendants on January 7, 2013. [27] Plaintiff alleged several causes of action: [1] negligence against Eginger, [2] vicarious liability against the Church based on Eginger's negligence in performing an inherently dangerous activity, and [3] a derivative cause of action of loss of [30-31] Plaintiffspousal services on behalf of Mrs. Mery. sustained the following injuries in the accident: post-traumatic left frontal intraparenchymal hemorrhage, traumatic subarachnoid hemorrhage, cornea laceration, ruptured left globe, superior orbital rim fracture, eyebrow laceration, subdural hematoma, left eye enucleation, loss of vision in the left eye, and other 8 injuries warranting a prosthetic eye and future prosthetic eyes. [45] The Church answered on or around February 18, 2013. [34] Plaintiff served a verified bill of particulars on or around April 24, 2013. [43] In amplifying his pleadings, plaintiff highlighted the Church's negligent acts, including failure to inspect the lawn for debris prior to and during mowing, notice of the defect, and negligent hiring. [44] On October 16, 2013, Plaintiff, the Church (via Doneit), and Frank Eginger were deposed. [54, 142, 182] Plaintiff filed a note of issue and certificate of readiness dated June 30, 2014. [51-2] The Church's Motion for Summary Judgment On October 23, 2014, the Church filed its motion for summary judgment. [9] It argued it was entitled to summary judgment on the grounds that plaintiff failed to establish his prima facie case of negligence. [19] The Church argued that mowing is not an inherently dangerous activity and that it was therefore not liable for Eginger's negligence since he was an independent contractor. [19] The Church annexed the following as exhibits to its motion: the three aforesaid deposition an affidavit of Frederick W. Doneit in support oftranscripts, the motion, an affidavit of Armen Fisher, a member of the Church's Building and Grounds Committee, photographs of the 9 scene and mower, and a memorandum of law. [21, 24, 54, 142, 182, 336, 373] The Church's memorandum of law set forth grounds on which it sought summary judgment. [381-2] The Church argued that it lacked actual or constructive notice of a dangerous condition without offering or citing to an affidavit or other admissible evidence showing when it last inspected the lawn. [382] To the extent the Church's submissions addressed the condition of the lawn, the Church, via Doneit and Fisher, argued that it never received complaints regarding debris, [21-26] and that it owed no duty to the plaintiff because lawn mowing is not an [382-83] In this regard theinherently dangerous activity. Church cited to a City Court decision, Wood v. Auburn Lodge, 12 Misc.3d 683 [City Ct. 2006]. [385] Plaintiff's Affirmation in Opposition Plaintiff submitted his opposition on January 23, 2015. [394] Plaintiff's counsel argued that the Church owed a nondelegable duty to plaintiff in two ways: (1) Eginger's mowing was inherently dangerous and (2) the lawn work was done pursuant to a regulatory duty set forth in the Poughkeepsie Code of [399, 404] Plaintiff also argued that the Church wasOrdinances. [399] In furtherliable for the condition of its property. support of this argument, plaintiff posited that information 10 requiring additional discovery warranted denial of the Church's motion under CPLR §3212[f]. [399, 411-2] Respecting the Church's duty to plaintiff, plaintiff's counsel argued that lawn-mowing may be inherently dangerous under certain circumstances. [400] Specifically, case law, such as Wright v. Tudor City Twelfth Unit, 276 NY 303 [1938] established that the determination of whether an activity is inherently dangerous, and therefore nondelegable, was case specific. [401] In support, plaintiff annexed statistics indicating that 80,000 Americans suffer mower-related injuries every year. [403] Plaintiff also argued that Poughkeepsie ordinances imposed a nondelegable statutory duty on landowners to maintain their lawns. [404] Plaintiff also argued that the Church was liable to him because it possessed notice of a dangerous condition on its property. [406] Additionally, plaintiff argued that several issues of fact barred the grant of summary judgment. [409] Finally plaintiff posited that new evidence came to light warranting additional discovery and a denial of the Church's motion under CPLR §3212[f]. [411] The information related to excavation at the Church's lawn for utility installation. Mrs. Salmonese, the mother of the affiant Lauren Salmonese, informed plaintiff's attorneys that the Church's lawn was left in disarray after a utility installation was completed. [411] 11 Plaintiff asserted that these facts were relevant to the Church's direct liability to him and warranted further discovery. [412] The new evidence also made possible the addition of a new defendant, chiefly the Church's septic contractor. [534] In support of his opposition, plaintiff annexed the following evidence: Robert H. Balogh-Robinson's expert affidavit regarding the physics of the accident, excerpts from Poughkeepsie's Section 9-1 Ordinance [477], an affidavit by Donald Fryer attesting to the fact that Eginger's mower was striking rocks and other debris and that his chute was open [511-514], Peter Elliot's expert affidavit on the metallurgical effect of a mower blade hitting the heavy gauge wire, which incorporated by reference his preliminary report [515-28], an affidavit by Lauren Salmonese, a resident in the neighborhood who averred that the only mower in use on Hooker Avenue belonged to Eginger [529], and Gabriel G. Alexander's expert affidavit attesting to the speed of Eginger's mower's blade. [530] Regarding the CPLR §3212[f] prong of his motion, plaintiff annexed a letter from his attorney to the Church's attorney dated January 21, 2015. [533] In that letter, Mr. Rutberg summarized his conversation with Lauren Salmonese's mother, Elizabeth Salmonese, where she informed him that the Church was left in a dirty and messy state after the septic installation. 12 [533] Plaintiff also attached building permits and other municipal documents regarding backflow installation at the Church. [538-41] The Church's Reply Affirmation In its February 13, 2015 reply affirmation, the Church reiterated its original arguments regarding the issue of inherent dangerousness. [544] The Church also disputed the contention that it had a regulatory duty to mow its lawn. [545] In this regard, the Church merely concluded that plaintiff's argument was "illogical" without specifying the void in logic. [546] The Church conceded that in March of 2012, it was required to raise its gas meter a few inches to install a backflow mechanism on its water line inside the building. [548] In this regard, the Church annexed an affidavit by Doneit. [550] Doneit affirmed that the work was contained within the building's [551] Doneit stated that no work or excavation"Tapestry Room." [551] The affidavit lacks statementswas done in March of 2012. regarding the disposal of the material used to perform the work. [551] Decision, Order, and Judgment In a decision and order dated March 10, 2015, Justice Catherine A. Sproat granted the Church's motion for summary judgment. [4] Justice Sproat compared lawn mowing to blasting 13 and other construction activities, and concluded that lawn mowing was not inherently dangerous as a matter of law. [6] Justice Sproat also concluded that Poughkeepsie's ordinances on lawn maintenance did not impose a nondelegable duty on the Church which would provide plaintiff with a cognizable tort claim against it. [6] Justice Sproat did not address the new facts raised in plaintiffs' opposition or the fact that the Church had notice of a dangerous defect on its land. [6] We respectfully submit that the trial court erred when it granted the Church's motion for summary judgment dismissing plaintiffs' complaint in its entirety. The trial court incorrectly concluded that mowing can never be an inherently dangerous activity under New York law. The circumstances disclosed by this record, specifically the type of mower used, its configuration, the debris on the Church's lawn, and the elevation relative to the adjacent thoroughfare, reflects the presence of triable issues of fact on whether the lawn care that lead to plaintiff's injuries was an inherently dangerous activity. See, Rosenberg v. Equitable Life Assurance Soc., 79 NY2d 663, 669 [1992], citing Restatement [Second] of Torts §427; Wright v. Tudor City Twelfth Unit, Inc., 276 NY 303 [1937]; Baek v. Red Cap Servs ■ , Ltd., 129 AD3d 752 [2d Dept. June 10, 2015]. Moreover, the record contains facts which indicate that this danger was readily apparent to the Church. 14 See, Schwartz v. Merola Bros. Constr. Corp., 290 NY 145, 152 [1945]. Additionally, given the plain text of the Poughkeepsie Ordinance on cutting lawns, the Church is vicariously liable for the torts of its independent contractors arising from lawn care activities. See, Mas v. Two Bridges Assocs., 75 NY2d 680 [1990]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; see also, State v. J.D. Posillico, Inc., 277 AD2d 753 [3d Dept. 2000]. The grant of summary judgment should be reversed. The Church failed to meet its prima facie burden of establishing entitlement to summary judgment as a matter of law in the first instance, because it failed to offer an affidavit or other proof showing when the lawn was last inspected. Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47 [2d Dept. 2011]; see also, Seiden v. Sonstein, 127 AD3d 1158, 1160 [2d Dept. 2015]; Aguilera v. Pistilli Constr. 7 Dev. Corp,, 63 AD3d 763, 764-5 [2d Dept. 2009]. Moreover, there are issues of fact regarding the Church's notice of the condition. Chianese v. Meier, 98 NY2d 270 [2002]; see, Bolloli v. Waldbaum, Inc., 71 AD3d 618 [2d Dept. 2010]; see also, Green v. Quincy Amusements, Inc,, 108 AD3d 591 [2d Dept. 2013]. Finally, the trial court erred when it did not deny the Church's motion without prejudice and order further discovery respecting the Church's septic tank installation which was 15 undisclosed to plaintiff and within the exclusive knowledge of the Church. See, Castagna v. Almaghrabi, 113 AD3d 804 [2d Dept. 2014]; Conciatori v. Port Auth., 46 AD3d 501, 503 [2d Dept. 2007]; Levy v. BOE, 232 AD2d 377 [2d Dept. 1996]. Such facts would justify denial of the Church's motion and could even set forth a basis for bringing a new defendant into the case. ARGUMENT POINT I THE CHURCH FAILED TO ESTABLISH ITS PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT AS IT FAILED TO SHOW THAT LAWN MOWING IN THE INSTANT CASE WAS NOT INHERENTLY DANGEROUS A party moving for summary judgment must establish its entitlement to such relief in the first instance (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]), tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. NYUMC, 64 NY2d 851, 853 [1985]; Zuckerman v. NYC, 49 NY2d 557 [1980]; Sillman v. Twentieth Century Fox, 3 NY2d 395, 404 [1957]). The evidence must be viewed in a light most favorable to the non-moving party (Pearson v. Dix McBride, [2d Dept. 2009]). The court's function is issue63 AD3d 895 finding, not issue determination (Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept. 2005]). Summary judgment is a drastic remedy and should not be granted where there is any question as to the existence of triable issues (Millerton Agway v. Briarcliff Farms, 17 NY2d 57 16 [1966]). A defendant cannot obtain summary judgment by pointing to gaps in plaintiff's proof. Torres v. Industrial Container, 305 AD2d 136 [1st Dept. 2003]. Where the moving party has met its initial burden, the opposing party is required to lay bare its proof to establish issues of fact requiring a trial (Nel Taxi v. Eppinger, 203 AD2d 438 [2d Dept. 1994]; DiSabato v. Soffes, 9 AD2d 297, 301 [1st Dept. 1959]). An affirmation by an attorney lacking personal knowledge is generally insufficient (Morissaint v. Raemar Corp., 271 AD2d 586 [2d Dept. 2000]; Johnson v. Phillips, 261 AD2d 269 [1st Dept. 1999]; see also Greenberg v. Manlon Realty, 43 AD2d 968 [2d Dept. 1974]). The inherently dangerous activity exception applies to the case at bar A. The inherently dangerous exception to vicarious liability can be described as follows, One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger. Rosenberg v. Equitable Life Assurance Soc., 79 NY2d 663, 669 [1992], citing Restatement [Second] of Torts §427; McDonald v. Shell Oil Co., 20 NY2d 160, 166 [1967]; Rohlfs v. Weil, 271 NY 444, 448 [1936]. 17 Stated otherwise, the exception applies when "the work involves a risk of harm inherent in the nature of the work itself" and the employer recognizes or should recognize "that risk in advance of contract." Rosenberg, supra at 669, citing Restatement [Second] of Torts §427. "Whether danger is inherent in the work contracted for and should be reasonably anticipated is a question dependent on the facts of each case." Wright v. Tudor City Twelfth Unit, Inc., 276 NY 303 [1938]. "While '[w]hether the work is inherently dangerous is normally a question of fact to be determined by the jury,' it can, in certain circumstances, be decided as a question of law." Klein v. Beta I, LLC, 10 AD3d 509, 510 [1st Dept. 2004], citing Rosenberg v. Equitable Life, supra, at 670, 668-669; see also, Schwartz v. Merola Bros. Constr. Corp., 290 NY 145, 152 [1943] (trial judge instructed jury before it found subject terrazzo work inherently dangerous); Luksik v. 27 Prospect Park W. Tenants Corp., 19 AD3d 557 [2d Dept. 2005]. By way of example, the inherently dangerous exception to the responsibility of a principal for the acts of its independent contractor does not apply to a truck driver's operation of his vehicle at an excessive speed. Rosenberg, supra, citing Prosser & Keeton, Torts §71 at 514-5. But excavation work performed adjacent to a thoroughfare or road presents inherent dangers that subject the one contracting for 18 that work to liability for the negligent acts of an independent contractor. Rosenberg, supra, citing Prosser & Keeton, Torts §71 at 514-5. Defining the contours of the exception is difficult due to the unique factors presented in such cases. This is why it may be reversible error to conclude that a certain activity can never be inherently dangerous. For example, washing rubber mats with soap and water on the sidewalk has been deemed inherently dangerous. Wright, supra at 308. Other examples of nondelegable and inherently dangerous activities include hazardous chemical waste disposal (State of New York v. Schnectady Chems., 103 AD2d 33, 38 [3d Dept. 1984]), work on scaffolding outside a building without appropriate warning signs on sidewalk below (Rohlfs v. Weil, supra), terrazzo construction inside a building that lead to the piling of terrazzo pebbles on the sidewalk (Schwartz v. Merola Bros. Constr. Corp., supra, and the installation of fireproof doors on an elevator while the elevator was being used by building tenants (Besner v. Central Trust Co. 230 NY 357 [1921]). In Gamer v. Ross, 49 AD3d 598 [2d Dept. 2008], the infant plaintiff was injured when he tripped over wires and debris that were located on a public sidewalk adjacent to a construction site. Defendants moved for summary judgment, asserting that the wires and construction debris were not inherently dangerous. The 19 trial court denied defendants' motion. This Court affirmed, noting that defendants failed to meet their prima facie burden in establishing that the condition was not inherently dangerous: A landowner may be held liable for injuries sustained by a third party due to the defective condition of a sidewalk adjoining its property where it retains an independent contractor to perform work for its benefit, the contractor creates a special danger upon the sidewalk in the course of its work that is inherent in the work and anticipated by the landowner, and the landowner has notice of the condition. Gamer, supra at 600. In Great N. Ins. Co. v. Milo Real Estate Corp., 123 AD3d 482 [1st Dept. 2014], defendant tried to disclaim liability on liable for its independentthe basis that it was not contractor's improper storage of sawdust, which eventually led to a fire. The First Department first ruled that the improper storage of sawdust, which may spontaneously combust, was an inherently dangerous activity that barred summary judgment for issues of fact existed regardingdefendant. Moreover, defendant's notice of the hazardous condition when an employee had told the independent contractor to dispose of the sawdust properly on other occasions. Great N Ins. Co., supra. More recently, in Baek v. Red Cap Servs., Ltd., 129 AD3d 752 [2d Dept. 2015], plaintiff was injured by a falling squeegee. Defendant contracted with an independent contractor to wash windows. Defendant moved for summary judgment, proffering 20 proof that it hired the independent contractor and was not liable for that contractor's acts. This Court held that plaintiff properly rebutted that defense by showing that window washing in the absence of signs or barriers was inherently dangerous. Baek, supra. Although some extrapolation may be required respecting previously undecided issues, an attorney should not actively misstate the holding of a case. Wood v. Auburn Lodge, 12 Misc.3d 683 [City Ct. 2006] is not only nonbinding as a City Court decision, it is patently inapplicable to the facts at bar. Wood did not deal with the "inherently dangerous" exception to vicarious liability. The pertinent issue in that case was whether plaintiff had met his burden during trial to establish that the mower was negligent. The procedural posture of that case, its central issue, and the holding itself are all very different from the case at bar. Wood, supra at 685. The Church could not escape liability by arguing it had no on these facts. Eginger's manner and methodduty to plaintiff, of mowing in conjunction with the debris the Church knowingly let accumulate on its lawn, transformed the mere probability such as a heavy gauge wire,that his mower would strike debris, into an inherent danger. By way of example, washing rubber mats with soap by itself may not be inherently dangerous. Washing rubber mats on the sidewalk is inherently dangerous. See, 21 Wright, Vicarious liability- independentforsupra. an contractor's act of sanding may not attach in every case, but a non-delegable duty will apply where sawdust is stored in a faulty manner. See, Great N Ins. Co., supra. Mowing work that carries the risk of injuring bystanders with debris may justify a court's finding that the work is inherently dangerous. See, Wright, supra; Gamer, supra; Great N Ins. Co., supra. Eginger testified that he would pick up debris [220] Eginger was awarewhile he was mowing the Church's lawn. that mowers might shoot projectiles that could cause severe [243] Heinjuries, including injuries to an individual's eye. was also aware that inspecting the grass before mowing it would [244] Egingerreduce the probability of such an occurrence. conceded that he did not inspect Church's lawn before mowing it. [219] His testimony shows that there were times when Eginger would find soda cans and other litter on the Church's lawn. [219] Doneit himself cavalierly stated, "[I]f you go and look at our lawn, like right now, you might find some debris." [153] True "cutting grass is not automatically [an] inherently dangerous activity. What can make it dangerous is the equipment used." Gore v. Ohio DOT, 2003 Ohio App. Lexis 1567 at 27 [Ohio Ct. of App. 10th Dist. 2003]. A riding mower, such as the one utilized by Eginger, carries its own hazards. The mower's blade circulated at a speed reaching 220 miles per hour, launching any 22 debris at the same speed. [478] Eginger's mower contained explicit warnings about the danger of projectiles, especially where there was no grass catcher affixed to the mower, as was the case the day plaintiff was injured. [208, 211] And the danger of the activities was enhanced by the elevation of the Church's lawn in relation to Hooker Avenue. See Baek, supra. Mr. Balogh-Robinson confirmed that the "height or slope of the property [was] added to the height of the path of the projectile", increasing the chances of a projectile striking plaintiff in his head, specifically the eye. [478] Moreover, Eginger's uncovered discharge chute was facing Hooker Avenue at the time plaintiff's eye was hit. [238, 513-4] Significantly, Doneit's affidavit annexed to the Church's reply papers provides a further basis for concluding, or at least raising issues of fact regarding, the inherently dangerous nature of Eginger's mowing. Doneit admits that the Church had [550-1]excavation work performed to install a backwater flow. This excavation work increased the chances that less innocuous such as a heavy gauge wire, would beand sturdier debris, present in the lawn. In conjunction with the propensity of a riding mower to propel objects at terminal velocities, the elevation of the Church relative to the street, and its proximity to a thoroughfare, Edinger's mowing of the Church's 23 lawn could constitute an inherently dangerous activity. See, Wright, supra; Gamer, supra. We are not claiming that lawn mowing is always inherently dangerous (Campbell v. Kobish, 273 Mich. App. 227 [Mich. 2006)); rather, Eginger's activities here could be classified as an inherently dangerous activity based on the facts disclosed by this record, pursuant to case law from other jurisdictions. See, Stayton v. Funkhouser, 148 Ind. App. 75, 81 [Ind. 1970]; Stronger v. Riggs, 21 SW3d 18 [Miss. 2000] (Child entrusted with lawn mower drove it on a street); Embry v. Henderson, 511 SW2d 218 [KY 1974]; Motter v. Snell, 250 IA 1247 [IA 1959]. Here, it was not proper, we believe, based on the record, for the court to grant summary judgment on that issue. The record establishes that the Church should have known that debris from its lawn may injure nearby passersby B. The danger that a person traveling on the road abutting the Church would be struck by debris was readily apparent to it given Doneit's admissions in his deposition testimony as well as the Church's coordination of Eginger's mowing. It is true that the "inherently dangerous exception cannot be applied unless a risk inherent in the nature of the work is apparent or contemplated by the employer." Rosenberg v. Equitable Life Assurance Soc., supra at 670. 24 In Schwartz v. Merola Bros., supra, the owner of the building contracted with an independent contractor to do construction work, including terrazzo work on the building's floors. That independent contractor subcontracted the flooring to another contractor. The subcontractor had negligently piled terrazzo pebbles outside on the sidewalk for a week prior to the accident. As a result, plaintiff was injured when one of those bags tipped over and fell on him. In addition to finding that the activity performed by the subcontractor was inherently dangerous, the jury also concluded that all defendants were properly held liable, including the owner of the building. The Court of Appeals ultimately affirmed this aspect of the order. Schwartz, supra at 159-60. Although Doneit testified that he was not aware of projectiles injuring passersby [163], he testified that the Church would ensure that Eginger was not mowing while people were on, or even utilizing the property. [152] He was also aware of the debris on the Church's lawn. [153] Eginger specifically used his riding mower for the Church, which Eginger testified constantly spat out debris. [209] Eginger had used that mower [195,since he purchased it in 2011 to mow the Church's lawn. 203, 210] These factual discrepancies raises issues of fact indicating that the Church was aware of the projectile danger that mowing its lawn would present, or given Eginger's testimony 25 on his use of the mower which clearly launched grass and other items months prior to the accident, should have been aware that the mower could shoot out debris striking people nearby. See Schwartz, supra at 158 (fact that terrazzo pebbles left outside of building for a week established building owner's liability). The risk of lawn debris striking a nearby passerby and vehicles could be reasonably perceived, presenting issues of fact respecting the Church's duty to the plaintiff C. It is settled law that, "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension" (Palsgraf v. LIRR, 248 NY 339, 344 [1928]). "[T]he orbit of the duty" is "at times a question for the court, and at times, if varying inferences are possible, a question for the (Sewar v. Gagliardi Bros. Service,jury" 51 NY2d 752, 758 [1980], citing, Palsgraf, supra at 343, 345). This Court has stated that, for a duty to be created to a plaintiff, "it is enough that the defendant be aware of the risk of danger" (Henderson v. Waldbaums, 149 AD2d 461, 462 [2d Dept. 1989], citing, Johnson v. NY, 37 NY2d 378 [1975]). True, "foreseeability is not determinative", and cannot suffice "without relation" (Strauss v. Belle Realty Co., 98 AD2d 424, duty to428 [2d Dept. 1983] (holding Con-Edison had no plaintiff, a noncustomer, after city-wide blackout causes him to fall in the basement). 26 In Adlam v. Konvalinka, 291 NY 40, 43 [1943], the Court of Appeals stated, "Defendants were presumed to know any danger which a reasonable inspection would have disclosed." Indeed, "Whatever source of danger the master would discover by reasonable inspection he is to know, and constructive notice, through the lapse of time, has the same effect as discovery by actual inspection" (Kirby v. Montgomery Bros., 197 NY 27, 31 [1909]). A defendant is liable for injuries resulting from failure to make an inspection, which would have revealed the danger (Junkermann v. Tilyou Realty, 213 NY 404, 409 [1915]). In Herbert v. Rodriguez, 191 AD2d 887 [3d Dept. 1991], plaintiff fell due to the presence of ice on a sidewalk abutting the landowner-defendant's premises. Defendant moved for summary judgment, which was denied. Since the downspout on defendant's the Thirdproperty contributed to the accumulation of ice, Department held that denial of defendant's motion was proper. This Court cited the holding in Herbert, supra with approval. See, Griffin v. 19-20 Indus. City Assoc., LLC, 37 AD3d 412, 413 [2d Dept. 2007]. A landowner's duty can extend to those driving nearby. In Cebron v. Tuncoglu, 109 AD3d 631 [2d Dept. 2013], the plaintiff lost control of her vehicle due to the icy condition of road caused by the flow of water that was diverted by the landowner defendants. The landowner defendants moved for summary judgment. 27 The trial court granted their motion. This Court reversed, finding that plaintiff raised triable issues of fact as to whether defendants "property contributed to the ice condition on the subject roadway" that caused the accident. Cebron, supra at 632. See also, Watson v. Hillside Hous. Corp., 232 AD2d 252 [1st Dept. 1996] ("Whether such throwing of debris at children was a foreseeable consequence of the allegedly unsafe condition in which defendants kept their properties is a question subject to varying inferences and should be left to the fact finder to resolve."). Constructive notice has been described as "both a legal inference and a duty of inquiry"; it is a "legal inference from established facts (Bierzynski v. NY Central RR, 31 AD2d 294, 297 [4th Dept. 1969], affd., 29 NY2d 804 [1971]). It means a person "should be held to have knowledge of a certain fact because he knows other facts from which it is concluded that he actually knew, or ought to have known, the fact in question" (42 NY Jur., Notice & Notices, 3, quoting, Birdsall v. Russell, 29 NY 220, 2148 [1864]); thus, inquiry based on reasonable diligence would have produced actual notice (Majer v. Schmidt, 169 AD2d 501, 503 [1st Dept. 1991]; Fidelity & Deposit v. Queens Co. Trust, 226 NY 225, 233 [1919]). In this regard, the Church has acknowledged the dangers of an uninspected lawn, in two separate affidavits. The Church's 28 Building and Ground Committee was established to assure that the [22, 26] Even though he andChurch's lawn was free from debris. Armen Fisher claimed that no issues or complaints were lodged regarding the debris on the lawn [26], Doneit testified that he was personally aware that the Church's lawn had debris [153]. The Church also ensured that Eginger was not mowing when it knew [223-4] And Eginger himself, awarepeople were on the property. of his mower's propensity to launch items at high velocities [241][243], would stop his mower if people were nearby. Plaintiff annexed an expert affidavit establishing that the lawn's height increased the risk of debris striking a passerby at eye level. [478] Eginger also testified that inspection of the lawn would abate this danger [244], making it both foreseeable and proximate that negligence in inspection of the elevated lawn could result in items launching at and striking nearby drivers at eye-level, such as plaintiff. See, Cebron, supra; Adiam, supra; Griffin, supra; see also, Watson, supra. As such, this record raises issues of fact proving that indicate Eginger's mowing activity was inherently dangerous, a circumstance that was contemplated or readily apparent to the Church [152, 153]. Accordingly, it was reversible error to grant the Church's summary judgment motion. 29 D. The Church had a nondelegable duty to mow its lawn in accordance with Poughkeepsie's ordinances, and its hiring of an independent contractor does not absolve it of its duty to plaintiff Poughkeepsie Ordinance §§9-6 and 9-7 impose a nondelegable duty upon the Church to cut its grass. The trial court's error is reflected in the fact that no reasoning follows its bare assertion that the ordinances impose no duty on the Church. [6] City of Poughkeepsie Code of Ordinances ("Poughkeepsie Code") §9-6 provides: (a) Height and location restricted. It shall be unlawful for any owner, lessee or occupant or any agent, servant, representative or employee of any owner, lessee or occupant, having control of any occupied or unoccupied lot or land or any part thereof in the City to permit or maintain on any such lot or land any growth of weeds, grass or other rank vegetation to a greater height than 12 inches on the average or any accumulation of dead weeds, grass or brush; or to permit or maintain on or along the sidewalk, street or alley adjacent to such lot or land between the property line and the curb or between the property line and the traveled parts of such street or alley where there is no curb, any growth of weeds, grass or other vegetation to a greater height than four inches on the average. Poughkeepsie Code §9-7, titled "Duty to cut, remove, or kill weeds or other rank vegetation" provides: It shall be the duty of any owner, lessee or occupant of any lot or land to cut and remove or to kill by spraying or cause to be cut and removed or killed by spraying all such weeds, grass or other rank, poisonous or harmful vegetation as often as may be necessary to comply with the provisions of Section 9-6; provided, however, that cutting and removing or killing by spraying such weeds, grass and vegetation at least once in every three weeks between April 1 and November 1 shall be deemed to be a 30 compliance with the terms and provisions of said section. It has been stated that an employer is liable for the negligence of an independent contractor where the employer is "under a statutory duty to perform or control the work." Rosenberg v. Equitable Life Assurance Co., supra at 668. The determination of whether a statutory duty is nondelegable turns on the language of the code or statute itself. See, Mas v. Two Bridges Assocs., 75 NY2d 680 [1990]; Whitaker v. Norman, 75 NY2d 779 [1989]. In Mas v. Two Bridges Assocs., supra, the Court of Appeals held that under Multiple Dwelling Law §78 imposed on multiple dwelling owners, a nondelegable duty on an owner to maintain its premises in a reasonably safe condition. As such, even if an owner assigned responsibility for maintenance to another via he would still be held liable under the statute forcontract, any violation. Mas, supra at 687. Multiple Dwelling Law §78 "The owner shall be responsible for compliancestates in part, with the provisions of this section." By way of example. Labor Law §240[1], which states that all "contractors and owners shall furnish or erect" proper safety devices, also imposes a nondelegable duty. See e.g., Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]. See also, State v. J.D. Posillico, Inc., 277 AD2d 753 [3d Dept. 31 2000] ("plaintiff owed a nondelegable duty under Highway Law §30 to compensate U-do-It for the costs it incurred to effectuate the proper removal of the demolition debris"); Cook v. Con. Ed., 51 AD3d 447 [1st Dept. 2008] ("Owner was under a statutory nondelegable duty to maintain the sidewalk [under Administrative Code of City of NY §7-210] . The non-delegability of the statutory duty is clear, and notwithstanding its contracting Eginger to mow its lawn, it is liable to plaintiff as a result of injuries sustained while such work was being performed on its property. Poughkeepsie Code §9-7 specifically states that it is the duty of an owner to cut the grass. Therefore the duty of compliance with the Poughkeepsie Code is nondelegable and the Church cannot escape it by hiring an independent contractor. See, Mas, supra; see also, Ross, supra. As such, the Church is liable for Eginger's negligence in mowing. See, Rosenberg, supra.2 2 We are aware that older case law held that a statute, ordinance, or municipal charter which requires an abutting owner to maintain public sidewalks does not impose tort liability unless specific language to that effect is included. See, Rochester v. Campbell, 123 NY 405 [1890]; Colson v. Joseph E, Wood Realty, 39 AD2d 511 [3d Dept. 1972]. But here, we are dealing with activities on defendant's own property which, at the very least, present some evidence of negligence based on the statute. See, Elliott v. NYC, 95 NY2d 730 [2001]. 32 POINT II THE CHURCH DID NOT ESTABLISH ITS ENTITLEMENT TO SUMMARY JUDGMENT SINCE IT TENDERED INSUFFICIENT EVIDENCE SHOWING IT LACKED NOTICE OF THE HEAVY GAUGE WIRE DEBRIS By failing to address whether it created the hazardous condition or when it last inspected the area, the Church failed to meet its prima facie burden and its motion for summary judgment should have been denied A. The Church failed to address all the grounds raised in plaintiffs' complaint, amplified by his bill of particulars in its motion for summary judgment. Specifically, the Church did show when it last inspected its lawn for debris. [44] Its clear failure to address all allegations in the bill of particulars necessitates a denial of its summary judgment motion. See, Costen v. Cohen, 124 AD3d 8195 [2d Dept. 2012]; Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47 [2d Dept. 2011]; see also, Seiden v. Sonstein, 127 AD3d 1158, 1160 [2d Dept. 2015]. In order to obtain summary judgment, defendants must make a prima facie showing establishing the absence of notice as a chiefly by showing when the area was lastmatter of law, inspected. Derise v. Jaak 773, Inc., 127 AD3d 1011 [2d Dept. 2015]; Meyer v. Pathmark Stores, Inc., 290 AD2d 423, 423 [2d Dept. 2002]. Where a defendant fails to meet its prima facie burden, it is unnecessary to review the sufficiency of opposition papers. Derise, supra; see, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]. 33 Pointing to gaps in the plaintiff's proof is not enough under settled Second Department precedent. See, Campbell v. NYCTA, 109 AD3d 455 [2d Dept. 2013]; Sawicki v. Game Stop, 106 AD3d 979 [2d Dept. 2013]; Levine v. Amverserve, 92 AD3d 728 [2d Dept. 2012]; Jackson v. Jamaica First, 91 AD3d 602 [2d Dept. 2012]; Maio v. John Andrew, Inc., 85 AD3d 741-2 [2d Dept. 2011]; Pryzywaniy v. NYCTA, 69 AD3d 598 [2d Dept. 2010]; Arzola v. Boston Properties, 63 AD3d 655 [2d Dept. 2009]; Stroppel v. Walmart, 53 AD3d 651 [2d Dept. 2008]; Picart v. Brookhaven Country Day School, 37 AD3d 798 [2d Dept. 2007]; see also, Johnson v. Culinary Institute, 95 AD3d 1077 [2d Dept. 2012]; Tsenkhanovskaya v. Starrett City, 90 AD3d 909 [2d Dept. 2011]; Birnbaum v. NY Racing, 57 AD3d 598 [2d Dept. 2008]; Yioves v. TJ Maxx, 29 AD3d 572 [2d Dept. 2006]; Britto v. A&P, 21 AD3d 436 [2d Dept. 2005]; Joachim v. 1824 Church Ave., 12 AD3d 409-10 [2d Dept. 2004]; Fox v. Kamal, 271 AD2d 485 [2d Dept. 2000]; Goldman v. Waldbaum, 248 AD2d 436 [2d Dept. 1998] In Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47 [2d Dept. 2011], a landscaper mowing property owned by defendant was injured when the wheel of his lawnmower got caught in a hole, flipped and sliced his leg, severely injuring him. The defendant moved for summary judgment without addressing whether it caused the defect or when it last inspected the area. This Court held 34 that defendant did not meet its prima facie burden, therefore its motion should have been denied. This Court noted that when an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards. Reyes, supra at 52; see also, Aguilera v. Pistilli Constr. 7 Dev. Corp., 63 AD3d 763, 764-5 [2d Dept. 2009] ("Tex failed to establish, prima facie, that it lacked constructive notice of Since Tex failed to meet its prima faciethe alleged defect. burden with regard to those branches of its motion seeking to dismiss the plaintiff's common-law negligence and Labor Law §200 causes of action, the sufficiency of the opposition papers need not be addressed.) The trial court failed to address the fact that plaintiff's in part, by the Church's failure toinjuries were caused, [6-8] Instead of establishing its entitlementinspect its lawn. to judgment as a matter of law, defendant merely claimed that a procedureplaintiff could not establish a prima facie case which is definitionally improper. See, Giuffrida v. Metro North, (Plaintiff not obligated to279 AD2d 403-4 [1st Dept. 2001] identify substance that cause slip and fall in opposing summary defendant had initial burden to establish lack ofjudgment the Church's motionnotice as a matter of law). Accordingly, 35 should have been denied for failing to establish entitlement to summary judgment in the first instance. In any event, triable issues of fact exist regarding the Church's notice of the debris on the lawn which would bar a grant of summary judgment in its favor B. The record contains several material issues of fact regarding whether the Church possessed notice of the debris on its lawn, barring summary judgment. Although unnecessary given the Church's inability to meet its prima facie burden as stated above, the existence of these issues further bolsters the proposition that denial of the motion was required. Actual notice exists where a defendant is actually aware of a dangerous condition. Gordon v. American Museum of Natural History, 67 NY2d 836-837 [1986]; Negri v. Stop n Shop, Inc., 65 NY2d 625-626 [1985]; Lewis v. MTA, 64 NY2d 670 [1984], affmg. on op. at AD, 99 AD2d 246, 249 [1st Dept. 1984]). It also exists where a defendant fails to see what it should have seen. In this regard, a party is required to "see pursuant to the doctrine of lawwhat he should have seen" articulated by the Court of Appeals in Weigand v. United Traction Co., 221 NY 39 [1917]. See, Tucci v. Starrett City, Inc., 97 AD3d 811 [2d Dept. 2012]; Fiermonti v. Otis Elevator Co., 94 AD3d 691 [2d Dept. 2012]. In Blake v. City of Albany, 48 NY2d 875, 877 [1979], the Court of Appeals stated: "A negligent failure to discover a 36 condition that should have been discovered can be no less a breach of due care than a failure to respond to actual notice." See also, Villaurel v. City of New York, 59 AD3d 709 [2d Dept. 2009]; Yakkey v. Merrick Shopping Assoc., 258 AD2d 579 [2d Dept. 1999]. Defendant may not "close (its) eyes" to what takes place on its property to create a defense of lack of notice. Vasquez v. RVA Garage, 238 AD2d 407 [2d Dept. 1997]. What matters is not what defendant knew but what it should have known under the circumstances. Sanchez v. State of New York, 99 NY2d 247, 255- 256 [2002]. Consequently, even where a witness "denied actual knowledge of the alleged recurring condition", summary judgment must be denied where the record "contains facts from which the trier of fact could reasonably infer that the appellants had actual notice of such recurring condition." Freund v. Ross- Rodney Hous. Corp., 292 AD2d 341, 342 [2d Dept. 2002]; see, Padula v. Big V Supermarkets, Inc., 173 AD2d 1094, 1095 [3d Dept. 1991]. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to 67 NY2d 836,discover and remedy it." Gordon v. American Museum, 837 [1986]. 37 It has been firmly established by the Court of Appeals that evidence of a defendant's knowledge of a recurring dangerous condition establishes constructive notice of each specific reoccurrence. Chianese v. Meier, 98 NY2d 270 [2002] (holding that actual notice of a particular recurring condition was sufficient to establish constructive notice of the specific recurrence on the day of the accident); see also, Baez v. Jovin III, LLC, 41 AD3d 751 [2d Dept. 2007]; Kraus v. B. Gertz, 38 AD2d 857 [2d Dept. 1972] (holding that evidence that water fountain in department store would frequently drip onto floor may charge defendant with constructive notice); Colt v. Great At1. & Pac. Tea Co., 209 AD2d 294 [1st Dept. 1994] (finding that evidence that vegetable debris which was commonly on floor in supermarket may charge defendant with constructive notice of the dangerous condition). In Bolloli v. Waldbaum, Inc., 71 AD3d 618 [2d Dept. 2010], defendant Waldbaum moved for summary judgment, arguing it lacked constructive notice of the pothole. The motion was denied not only because defendant failed to establish entitlement to judgment as a matter of law in the first instance, but also because plaintiff was able to proffer evidence showing that issues of fact existed regarding whether defendant possessed constructive notice of the pothole. Chiefly, plaintiff testified that two months prior to the accident she had seen the pothole 38 which caused her fall. Plaintiff also offered photographs showing the pothole. As such, this Court affirmed the denial of defendant's motion. Bolloli, supra at 620. In Harkin v. City of New York, 69 AD3d 901 [2d Dept. 2010], plaintiff was traversing a pathway, which he testified was littered with empty cement bags, wooden pallets, empty bottles, and other construction related debris. He complained to his supervisor and a safety inspector about the clutter. As plaintiff was traversing the pathway, his foot got caught on a wooden pallet causing him to fall and sustain injuries. Defendant moved for summary judgment, arguing it had neither constructive nor actual notice of the defect. The trial court denied defendant's motion. This Court affirmed. Harkin, supra at 902; see also Green v. Quincy Amusements, Inc., 108 AD3d 591 [2d ("A triable issue of fact exists as to when theDept. 2013] subject cup holder and armrest piece was last inspected and whether the alleged defective condition of the armrest existed for a sufficient length of time prior to the incident to permit Quincy to remedy it.") Doneit was acutely aware of the fact that debris would accumulate on the Church's lawn. The following exchange establishes his knowledge on this issue: Q. Would it be unusual for there to be debris of any kind on that lawn that kids or other people would leave behind? 39 A. Unusual? I don't know what you mean by that. But if you go and look at our lawn, like right now, you might find some debris. [153] He also knew that the Church was a well-trafficked and busy area [152], and that kids in the neighborhood would [163-4] Eginger discussed, in further detail,traverse the lawn. the fact that garbage would accumulate on the lawn. [218-9] These facts would warrant a finding of constructive notice. See, Harkin, supra (fact that passageway littered with garbage provided issue of fact); Colt, supra (recurring vegetable debris was issue of fact); Baez, supra. Here, a simple visual inspection would have revealed the where there is a duty ofdebris. As we set forth previously, inspection, the failure to detect a condition that would have appeared upon inspection is not a defense but is actually inculpatory. See, Haleemeh v. MRMS Realty, 28 Misc.3d 443 [Sup. Ct. 2010]. Thus, defendant did not establish that it lacked either actual or constructive notice of the defect sufficiently to warrant the grant of summary judgment. POINT III PLAINTIFF RAISED THE PROBABILITY THAT NEWLY DISCOVERED FACTS WARRANTED DENIAL OF SUMMARY JUDGMENT ON THE GROUNDS IT WAS PREMATURE Procedurally, plaintiff established that summary judgment should have been denied as premature pursuant to CPLR §3212[f]. Plaintiff produced evidence of the existence of new facts which 40 shed light on the issue of liability. The court should have given plaintiff leave to conduct discovery with respect to those new facts, which were in defendant's exclusive knowledge and control. CPLR §3212[f] provides, in pertinent part, Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just. A party opposing summary judgment on this basis must "demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant." Singh v. Avis Rent a Car Sys., Inc., 119 AD3d 768, 770 1261 48th Street[2d Dept. 2014], citing, Boorstein v. Condominium, 96 AD3d 703 [2d Dept. 2012]; Dietrich v. Grandsire, 83 AD3d 994 [2d Dept. 2011]; Trombetta v. Cathone, 59 AD3d 526 [2d Dept. 2009]. "the mere hope or speculation that evidenceTrue, sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." Singh, supra at 770, citing, Lopez v. WS Distrib., Inc., 34 AD3d 759, 760 [2d Dept. 2006]. But where "the plaintiff has not had a reasonably opportunity to conduct discovery, and 41 has no personal knowledge of the relevant facts", a motion for summary judgment must be denied. Castagna v. Almaghrabi, 113 AD3d 804 [2d Dept. 2014]; see, Wesolowski v. St. Francis Hosp., 108 AD3d 525 [2d Dept. 2013]; c.f., Melcher v. City of New York, 38 AD3d 376 [1st Dept. 2007] (In opposition to post note of issue motion, plaintiff raised 3212[f] objection respecting certain documents not tendered during disclosure. Plaintiff had requested those documents and was aware of their existence before she filed the note of issue. Despite her awareness, plaintiff waived her right to disclosure of those documents by stating discovery was completed in his note of issue.) In Castagna v. Almaghrabi, 113 AD3d 804 [2d Dept. 2014], defendant-contractor moved for summary judgment against plaintiff who was injured after stepping on a board with a nail protruding from it. Plaintiff opposed the motion by arguing that more discovery was needed to ascertain which of defendant's entities performed the work that caused the injury. The trial court granted defendant's motion. This Court reversed, noting that plaintiff had no personal knowledge regarding who performed the work which allegedly caused his injuries. Castagna, supra at 805-6. In Levy v. BOE, 232 AD2d 377 [2d Dept. 1996], defendant failed to produce the bus driver for deposition despite multiple court orders requiring his attendance; defendants moved for summary judgment. This Court, noting that the driver was the 42 "only competent adult on the bus when the incident occurred", held that summary judgment could not be granted because plaintiff was prevented from conducting necessary disclosure. See also, Conciatori v. Port Auth., 46 AD3d 501, 503 [2d Dept. 2007]. Plaintiff had no knowledge of the alleged construction and excavation that took place at the Church. Although the Church's motion was made after the filing of the note of issue, no mention of construction was made by the Church's attorney prior to the happenstance discovery of such construction by plaintiffs' attorney while preparing Lauren Salmonese's [411] Doneitaffidavit to oppose the Church's motion. acknowledged that the Church installed a backflow mechanism on the water line inside the building. [550] Although the building permit and inspection records are obtainable by the public, the documents do not explain that the subject work would require potentially hazardous activity, namelyserioussome or excavation. [540-1] Discovery would speak directly to the issue of constructive notice. For example, in Cooper v. Smithtown Cent. School Dist., 83 AD2d 828 [2d Dept. 1981], plaintiff was injured when he stepped on a piece of glass while traversing stairs. Plaintiff produced evidence showing that glass debris had remained on the steps several months before the incident. The trial court 43 granted defendant's motion seeking dismissal of plaintiff's complaint on the ground that plaintiff had failed to establish a prima facie case. This Court reversed the trial court's order, noting that the presence of the glass on the stairs for several months was sufficient for the purposes of establishing constructive notice. Cooper, supra at 829. Discovery would also align the facts of this case with those in Klee v. Cablevision Sys. Corp., 77 AD3d 794 [2d Dept. "[t]he cable on the plaintiff's lawn remained2010]. There, unburied and stretched across the length of her lawn for somewhere between four and six months after installation and supra at 794. Thisprior to the plaintiff's accident." Klee, Court held that defendant failed to establish its prima facie entitlement to summary judgment since it was unable to show the cable was not inherently dangerous. As such, this Court reversed the trial court's grant of defendant's summary judgment motion. Klee, supra at 795. The new facts are also relevant on the issue of vicarious liability for an independent contractor's negligence, since when a landowner "hires an independent contractor to excavate an area next to a thoroughfare,...the work obviously presents inherent Rosenberg v.dangers to those who must use the thoroughfare." 79 NY2d 663, 669 [1992]; seeEquitable Life Assurance Soc., supra. An excavation is "any man-made cut,Gamer v. Ross, 44 cavity, trench, or depression in an earth surface, formed by earth removal." See, 29 CFR §1926.650[b]. Elizabeth Salmonese expressed to concern to plaintiff's attorneys regarding litter on the Church's lawn following its backflow installation which may have required excavation. [533- 4] Doneit's affidavit is silent about the materials used for the work as well as how such materials were disposed of. [550-1] Moreover, Doneit's assertion that the construction was contained within the tapestry portion of the church is unsubstantiated. [551] His affidavit is lacking in details regarding his personal knowledge of the backflow construction. Without the requisite foundation, such as averments indicating he was present at the site, his assertion that all work was contained within the tapestry is not sufficient to justify judgment as a matter of law. See, Bahlkow v. Greenberg, 185 AD2d 829 [2d Dept. 1992] ("Although the affirmation also claimed to be based on 'personal knowledge of the facts', it contained no indication that the attorney in fact had such personal knowledge.") Doneit's conclusion that the construction resulted in no debris is entirely speculative and cannot rule out the probability that further discovery will lead to facts which could defeat defendant's motion. The trial court, therefore, should have denied the Church's motion for summary judgment and ordered further discovery. See, CPLR §3212[f]. 45 CONCLUSION For the foregoing reasons, it is respectfully submitted that the trial court's order should be reversed, plaintiffs' complaint reinstated, and at this Court should issue any other, further or different relief that it deems just, proper or equitable. Respectfully submitted, RUTBERG BRESLOW PERSONAL INJURY LAW Attorneys for Plaintiffs-Appellants ~P>By: Brian J. Isaac, Esq. POLLACK POLLACK ISAAC & DECICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Brian J. Isaac, Esq. Of Counsel 46 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR §670.10.3(f) that the foregoing brief was prepared on a computer. Type: A monospaced typeface was used as follows: Name of typeface: Courier New Point size: 12 Line spacing: Double The total number of words in the brief, inclusiveWord Count: of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 10,274. Dated: New York, New York September 25, 2015 7ÿ 1— Brian J. Isaac, Esq. Appellate Counsel for Plaintiffs- Appellants 47