John P. Mery et al., Appellants,v.Frank Eginger, Defendant, Society of Friends Church,, Respondent.BriefN.Y.June 5, 2018"1 To be Argued by: CLAUDIA P.LOVAS (Time Requested: 15 Minutes) i £mu fork Supreme (Eourt Appellate dttriaum— 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, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT CLAUDIA P. LOVAS, ESQ. Attorney for Defendant-Respondent 1225 Franklin Avenue, Suite 325 Garden City, New York 11530 (516) 897-1919 Dutchess County Clerk’s Index No. 7594/12 TABLE OF CONTENTS Page TABLE OF AUTHORITIES iii PRELIMINARY STATEMENT 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED 2 STATEMENT OF FACTS 3 RELEVANT DEPOSITION TESTIMONY 4 ARGUMENT 9 POINT I SOCIETY OF FRIENDS DID NOT OWE A DUTY TO THE PLAINTIFF-APPELLANT 9 POINT II SOCIETY OF FRIENDS HAD NO REASON TO FORESEE A DANGER TO THE PUBLIC 22 POINT III POUKEEPSIE’S ORDINANCE TO MOW LAWNS DOES NOT IMPOSE A NONDELEGABLE DUTY ON SOCIETY OF FRIENDS 28 POINT IV SOCIETY OF FRIENDS MET ITS INITIAL BURDEN BY TENDERING SUFFICIENT EVIDENCE DEMONSTRATING THE ABSENCE OF ANY ISSUES OF FACT 30 i POINTY SOCIETY OF FRIENDS’ DISPOSITIVE MOTION WAS NOT PREMATURE AS ANY ALLEGED NEW FACTS DID NOT RAISE A TRIABLE ISSUE OF FACT OR HAVE A BEARING ON LIABILITY. 33 CONCLUSION 36 CERTIFICATE OF COMPLIANCE 37 ii TABLE OF AUTHORITIES State Cases Anderson v. Central Valley Realty Company, 300 A.D.2d 422, 751 N.Y.S.2d 586 (2d Dept., 2002) 26 Beak v. Red Cap Servs., Ltd., 129 Ad3d 752 (2d Dept. 2015) 18 Blye v. Manhattan & Bronx Surface Transit Operating Authority, 124 A.D.2d 106 (1st Dept. 1987) 10 Campbell v. Kovish, 273 Mich. App. 227, 731 N.W.2d 112 (Mich., 2006) 19 Cwalinski v. Ohio Dept. ofTransp., 2003 WL 22389157, 2003-0hio-5561 28 DiGiorgio v. Hempstead Realty Assocs., 202 A.D.2d 332, 609 N.Y.S.2d 12 (1st Dept, 1994) 27 Early v. Clinton Hotels Corporation, 73 A.D.3d 559, 904 N.Y.S.2d 367 (1st Dept, 2010) 24 Ebry v. Henderson, 511 SW2d 218 (KY 1974). 20 Feliberty v. Damon, 72 N.Y.S2d 112, 527 N.E.2d 261, 531 N.Y.S.2d 778 (1988) 28 Gamer v. Ross, 49 AD3d 598 (2d Dept. 2008). 17 Gaydenv. City of Rochester, 148 A.D.2d 975, 539 N.Y.S.2d211 (4th Dept, 1989) 22 Gellman v. Seawane Golf & Country Club, Inc., 24 A.D.3d 415, 805 N.Y.S.2d 411 (2d Dept, 2005) 22 Goodwin v. Comcast Corp., 42 A.D.3d 322, 840 N.Y.S2d 781 (1st Dept, 2007) 23 iii Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986) 25, 26 Gore v. Ohio Department of Transportation, 119 Ohio Misc.2d 817 (2002), 774 N.E.2d 817 (2002) 13, 14, 19, 28 Great N. Ins. Co. v. Milo Real Estate Corp., 123 AD3d 483 (1st Dept., 2014) 18 Hamilton v. Rite Aid Pharmacies, Inc., 234 A.D.2d 778, 650 N.Y.S.2d 887 (3d Dept., 1996) 24 Kimbar v. Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197, 135 N.E.2d 708(1958) 9 KojicvNew York, 76 AD2d 828, 428 NYS2d 305 (2d Dept 1980) 30 Martinez v. Santoro, 273 A.D.2d 448, 710 N.Y.S.2d 374 (2d Dept. 2000) 22 McDuffie v. Fleet Fin. Group, 269 A.D.2d 575, 703 N.Y.S.2d 510 (2d Dept., 2000) 26 Motter v. Snell 250 IA 1247, 95 N.W.2d 735 (IA 1959), 21 Nikitin v. Lexandra, 24A.D3d 522, 806 N.Y.S.2d 239 (2d Dept., 2005) 30 Palsgrafv. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99, (1928) 9 Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 (1994) 26 Pulka v. Edelman, 40 N.Y.2d 781 (1976). 9 Rabadi v. Atlantic & Pacific Tea Company, 268 A.D.2d 418, 702 N.Y.S.2d 316 (2d Dept., 2000) 25 iv Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47 (2d Dept. 2011).....31, 32 Rodriquez v. E & P Associates, 20 Misc.3d 1129(A), 2008 WL 3010041 (N.Y.Sup.) 25 Singh v. Avis Rent a Car Syst. Inc., 119 A.D.3d 768, 989 N.Y.S.2d 302 (2d Dept., 2014) 33 Soboleva v. Gojcaj, 238 A.D.2d 170, 655 N.Y.S.2d 950 (1st Dept, 1997) 27 Stayton v. Funkhouse, 148 Ind. App. 75 (Ind. 1970). 19, 20 Vaniglia v Northgate Homes, 106 AD2d 384, 482 NYS2d 299 (2d Dept 1984) 30 Woodv. Auburn Lodge, 12 Misc.3d 683, 818 N.Y.S2d 429, 2006 N.Y. Slip Op. 26159 (2006) 10, 11 Wright v. Tudor City Twelfth Unit, Inc., 276 NY 303 (1938) 14, 15 Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980) 35 Statutes and Regulations Am Jur, Independent Contractors (1st Ed. §27). Am Jur, Independent Contractors (1st Ed. §39). 11 11 CPLR 3212(f) 33 Prosser, Torts (4th ed.), § 53, p. 325 10 Pollock, Torts (13th Ed.), p. 468 10 Restatement (Second) of Torts §427 12, 13 PRELIMINARY STATEMENT This brief is submitted by the Defendants-Respondents Society of Friends Church a/k/a The Poughkeepsie Monthly Meeting of the Religious Society of Friends, a/k/a Friends Meeting (hereinafter referred to as “Society of Friends”), in response to the appeal of Plaintiffs-Appellants John P. Mery and Jennifer Mery, from an order of the Supreme Court of the State of New York, Dutchess County, (Christine A. Sproat, JSC), dated March 10, 2015 and entered on March 12, 2015 [2-8]1, granting the motion of Society of Friends. The lower court properly granted the motion for summary judgment of the defendant-respondent as Society of Friends (1) did not owe a duty to the plaintiffs-appellants, (2) cannot be held vicariously liable for the alleged negligent act of an independent contractor as the inherently dangerous activity exception does not apply to this case (3) did not have a non¬ delegable duty (4) did not have actual or constructive notice and (5) no triable issues of fact exist. As such, the decision of the lower court should be affirmed. 1 Numbers in brackets refer to pages in the Record on Appeal. 1 COUNTER-STATEMENT OF QUESTIONS PRESENTED Did the lower court correctly grant Society of Friends’ motion for summary judgment summarily ruling that lawn-mowing was not an inherently dangerous activity? The lower court considered all the circumstances and correctly ruled that lawn-mowing was not an inherently dangerous activity. Did the lower court correctly conclude that Society of Friends did not have a nondelegable duty to the plaintiffs-appellants relating to the local City of Poughkeepsie ordinance dealing regarding lawn maintenance? The lower court correctly ruled that Society of Friends did not have a nondelegable duty to the plaintiffs-appellants with regard to the local ordinance dealing with a property owner’s lawn maintenance. Did the lower court correctly conclude that Society of Friends presented sufficient evidence to show that it did not have actual or constructive notice of any alleged defective condition? The lower court correctly ruled that Society of Friends did not have actual or constructive notice of any alleged defective condition. Did the lower court properly grant Society of Friends’ motion for summary judgment? 2 The lower court properly granted Society of Friends’ motion as it met its prima facie burden for entitlement to summary judgment and the plaintiffs-appellants failed to raise any triable issues of fact. STATEMENT OF FACTS Plaintiffs-appellants’ allege that on May 4, 2012, non-party Eginger was contracted by defendant-respondent Society of Friends to mow the property owned by Society of Friends known as 249 Hooker Avenue, Poughkeepsie, NY. [27] It is further alleged that Eginger negligently operated said mower causing the plaintiff-appellant John Mery to suffer injuries and mental anguish. [30] The complaint alleges that lawn mowing is an “inherently dangerous activity” and as such defendant-appellant Society of Friends is liable for the negligence of its contractor, Eginger. [30- 31] Plaintiffs-appellant’s’ Verified Bill of Particulars specifies that the accident occurred as a result of “defendants negligently operating] a mower causing a metal projectile to leave the mower and enter the plaintiffs eye”. [44] Defendants-respondents’ negligence includes failure to inspect the area to be mowed for debris prior to mowing, failure to cease mowing after 3 encountering debris and failure to take precautions “even though the area to be mowed was higher than the adjacent sidewalk and roadway”. [44] RELEVANT DEPOSITION TESTIMONY The plaintiff-appellant testified that his accident occurred on May 4, 2012 on his way to work from his home at approximately 3:30pm. [67-68] Mery was traveling west on Hooker Avenue [67-68], while operating his 2002 Ford Pickup with the driver’s side window open. [18] During his deposition, Mery identified the area of where he was traveling when the incident occurred using photographs marked for identification at his deposition which were made part of the record. [336-372] Mery testified that prior to his accident, he was traveling west on Hooker Avenue, just east of Whittier Boulevard, [76] and identified the area as depicted in Photo #34 of the photos. [368] Prior to his incident, he noticed a riding mower when he was traveling west on Hooker as he passed Whittier Boulevard. [126] While operating his vehicle in this direction he felt a sharp pain in his left eye. [76] Mery never saw the object before he was struck by it in his left eye. [77] Mery could only state that he heard the nose of a mower hitting something and immediately after felt the pain. [77-78] This mower, 4 according to Mery, was being operated on the Society of Friends property. [77-78] Mery characterized the object that struck his eye as a wire which the plaintiff testified he came into possession of after he pulled it out of his eye. [78-79] After he was struck, Mery pulled his car over, placed it in park and pulled the wire out of his eye. [82] Mery was unsure if the object was one wire or more than one piece however testified to only “one pull”. [82] After the plaintiff pulled the wire out of his eye, he exited his vehicle and started walking in an easterly direction [84], sat down at the Rite Aid located across and west of the Society of Friends Meetinghouse. [85] Three men came over to Mery’s aid and asked what had occurred. [86] Other than hearing a noise and feeling the subsequent pain to his left eye, Mery does not have any first-hand knowledge if the wire that struck him came from the mower being used to cut the lawn at the Society of Friends property. [122-123] Moreover, the plaintiff did not see the wire project from the mower being used on the Society of Friends property. [123] On October 16, 2013, the defendant-respondent Society of Friends appeared via its witness Frederick W. Doneit, Sr. [142] 5 Doneit identified the Friends Meetinghouse on Hooker Avenue depicted in the photos marked as #22-#38. [356-372] According to Doneit, Eginger worked at the Society of Friends Meetinghouse since at least 1997. [147] Eginger’s work in addition to other, consisted of lawn maintenance, leaf removal and plowing. [148] Eginger is not an employee of the Society of Friends, but rather is an independent contractor. [151] This was confirmed by Society of Friends’ assistant treasurer, Armen Fisher by way of affidavit. [24-26] Eginger was not provided with any benefits nor was he issued any type of salary. [24-26] Eginger used his own tools and materials and was not supervised by anyone at the Society of Friends. [24-26] Frank Eginger provided his testimony as a non-party on October 16, 2013. [182] Eginger recognized the photos marked #22-38 as the Friends Meetinghouse located on Hooker Avenue and Whittier Boulevard in Poughkeepsie and the area that he was mowing on the date of Mery’s accident. [188-189,356-358] Eginger has been working for the Society of Friends for approximately 21 years performing cleaning duties and mowing. [191] Eginger was paid per job by check on a monthly basis. [191] Society of Friends would not withhold taxes but would pay Eginger the full amount. 6 [192-193] Additionally, Eginger testified that at the time of the accident, he was self-employed. [296] Eginger’s mowing services were never supervised by anyone at Society of Friends and the landscaping equipment was owned by him. [135-136] According to Eginger, the mowing season generally ran from April through November. [193-94] The mower as identified in the photos was purchased by Eginger a year prior to the accident and was identified as a new ExMark zero turn Laser Z Cut 60 mower. [195-196, 203] Eginger would only operate the mower with the discharge chute down unless he had his grass catcher on [210-211]. The discharge chute was on and in a down position on the date of Mery’s accident. [211] Eginger sold the mower and corresponding documents to his brother sometime after the incident. [202] Eginger read the user manual of the mower which included warnings about projectiles while mowing. [207-208] According to Eginger and his experience, only light things projected out of the mower such as leaves and paper. Eginger never noticed heavier items propelled from the mower such as sticks or pebbles. [209] When asked about items found on the lawn, Eginger testified to “nothing big” [219]; and when asked specifically about broken pens or pieces of metal Mr. Eginger replied “not really”. [219] 7 Prior to the date of the accident, Eginger had never experienced anyone being struck by an object thrown by his mower. [210] Prior to the date of accident, Eginger had never operated this mower with the discharge chute up or off. [210-211] Moreover, on the date of accident, the mower was operating correctly, was being operated with the discharge chute in place and in the down position. [211] Eginger customarily watched out for people while he was mowing. [241] Eginger testified that he may have mowed the Society of Friends lawn in 2012 prior to the date of the accident however was unsure if he had mowed it the week prior or longer than that since at that time in the season, the lawn did not need to be cut weekly. [213-214] Regarding Eginger’s mowing practice on the Society of Friends’ property, he testified that he would collect any debris on the property prior to mowing and directly stated that if he noticed something while riding on the mower he would stop the mower and pick it up. [220, 298] Specifically, when asked about the date in question, Eginger testified that he did not recall seeing any debris on the Society of Friends’ lawn which faces Hooker Avenue before he started to mow. [299] Other than the date of this accident, 8 Eginger had never experienced something projecting from his mower and striking someone while he mowed the Society of Friends lawn. [128] On the date of the accident and while Eginger was mowing the Hooker Street side of the Society of Friends property, he did not hit any debris, rock and/or pebbles. [253-254] The first time Eginger saw Mery was when Mery was walking passed the firehouse, [259], and Mery asked Eginger to park his vehicle. [259] Eginger complied and then sat with Mery on a planter outside of the Rite Aid pharmacy until an ambulance arrived. [260-261] This was the first time Eginger had become aware an incident had occurred. [262] ARGUMENT POINT I SOCIETY OF FRIENDS DID NOT OWE A DUTY TO THE PLAINTIFF-APPELLANT It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff. Pulka v. Edelman, 40 N.Y.2d 781 (1976) citing Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99, 101 (1928). In the absence of duty, there is no breach and without a breach there is no liability. Kimbar v. Estis, 1 N.Y.2d 399, 405, 153 N.Y.S.2d 197, 201, 135 N.E.2d 708, 710 (1958). 9 This requirement is expressed in the often-quoted remark: “Negligence in the air, so to speak, will not do”. Pollock, Torts (13th Ed.), p. 468. The question of duty, however, is best expressed as “whether the plaintiffs interests are entitled to legal protection against the defendant's conduct”. Prosser, Torts (4th ed.), § 53, p. 325. The responsibility for delineating a duty in a given set of circumstances is for the Courts to decide as a matter of law. Blye v. Manhattan & Bronx Surface Transit Operating Authority, 124 A.D.2d 106 (1st Dept. 1987). Society of Friends as owners of the property adjacent to the street where the plaintiff-appellant was driving did not owe the plaintiff-appellant a duty of care. In Wood v. Auburn Lodge, 12 Misc.3d 683, 818 N.Y.S2d 429, 2006 N.Y. Slip Op. 26159 (2006), the City Court held that a property owner could not be held liable for damage sustained to a motorist while he was operating his vehicle out from a business located directly across the street from the defendant’s property. Id. Although the Wood case is a City Court case and not binding or mandatory, it may be viewed as persuasive authority given the lack of precedent in this jurisdiction directly on point. The Wood case, as per the City Court, delineates the scope of duty of a property owner vis-a- 10 vis a motorist that sustained property damage as a result of a pebble or rock allegedly propelled by a lawn mower being operated on the defendant’s property. Id. This case does not involve the inherently dangerous doctrine rather it deals with the direct duty (or lack thereof) of the property owner owed to the allegedly damaged motorist. Wood, supra. The Court in Wood was forced to look to other jurisdictions to see how other courts dealt with similar issues including the issue of vicarious liability of a property owner when an independent contractor is retained to mow the lawn as will be explained further below. The plaintiffs-appellants allege that mowing on a ride on mower is an inherently dangerous activity and therefore the defendant-respondent Society of Friends is vicariously liable for any alleged negligence of its contractor. It is a fundamental principle that an employer is not liable for the acts of an independent contractor, or the latter’s servants, resulting in personal injury to third persons. Am Jur, Independent Contractors (1st Ed. §27). An exception to this rule is the doctrine that an employer may be liable for the injuries resulting in connection with the work that is inherently dangerous. Am Jur, Independent Contractors (1st Ed. §39). The rule applies only where the harm results from the negligence of the contractor in failing to take 11 precautions against the danger involved in the work itself. Restatement (Second) of Torts §427. In the present case, it is uncontroverted that the Society of Friends retained non-party Eginger to mow the grass on the property. Eginger performed this task for over 20 years without incident. [21-26] Eginger provided his own mower to complete the task. [24-26] Society of Friends as property owners did not exercise any control or supervision over the manner in which Eginger performed the work he was retained to accomplish. [24- 26] Additionally, it is pivotal to this case to assess whether Eginger failed to take precautions against dangers of mowing the Society of Friends lawn when the incident occurred. Non-party Eginger testified that it was his practice before he mowed the Society of Friends lawn to inspect the lawn prior to moving and would stop and remove any debris or garbage he noticed while in the process of mowing. [220, 298-299] Specifically, Mr. Eginger was asked: Q. Do you recall if before you started mowing the lawn on the date of the accident -now we are talking about the lawn that faces Hooker Avenue. Do you recall ever seeing any debris on the lawn- A. No. [298] 12 On the date of the accident while Eginger was mowing the Hooker Street side of the Society of Friends property, he specifically testified that he did not hit any debris, rock and/or pebbles. [253] As stated above, the inherently dangerous doctrine exception only applies where injury results from the negligence of the contractor in failing to take precautions against the danger involved in the work itself. Restatement (Second) of Torts § 427. Based on the testimony of the independent contractor, it appears he took all the reasonable and necessary precaution prior to and while he was mowing the Society of Friends’ property. Unfortunately, there are no New York cases that specify what degree of care a person mowing a lawn must exercise. Yet if we look outside this jurisdiction there is guidance as Vexplained below. In Gore v. Ohio Department of Transportation, 119 Ohio Misc.2d 817 (2002), 774 N.E.2d 817 (2002), the plaintiff was traveling in the rear of a limousine on 1-270 in Ohio when a piece of rubber shattered the rear driver’s side window and struck the plaintiff in her head. Id. The rubber was kicked up by a mower being used to cut the grass in the median which was being performed by an independent contractor retained by defendant, Ohio Department of Transportation (“ODOT”). Id. In determining whether 13 ODOT was negligent, the question before the Court was whether mowing the grass on a median was an inherently or intrinsically dangerous activity. Id. at 819. The Court concluded that mowing grass in a median was not an inherently dangerous activity and that as a matter of law, did not create a peculiar risk of harm to others. Id. at 819. Further, regarding the degree of care of the contractor, the Ohio Court suggests that inspecting a mower’s path is what ordinary care requires and went on to set forth as follows: “Removing debris from the mower’s path is a routine precaution, which any careful contractor could be expected to take in the exercise of ordinary care.” Id. at 819. In the case at bar, there is sufficient evidence that non-party Eginger exercised reasonable care while mowing the Society of Friends’ lawn. He testified that it was his practice to inspect the lawn prior to mowing, would stop and remove any debris or garbage he noticed while in the process of mowing, [220, 298-299] and on the date of accident did not recall seeing any debris on the lawn on the Hooker Avenue side of the property. [298] Plaintiffs-Appellants cite several cases where the court has held a property owner vicariously liable for the negligent acts of its independent contractor such as Wright v. Tudor City Twelfth Unit, Inc., 276 NY 303 (1938). The Wright case stems from an appeal after jury verdict not a 14 dispositive motion, which involved a plaintiff slipping on rubber mats lying on a sidewalk which were being cleaned with soap and water by the premise owner’s independent contractor. In Wright, there was evidence that the cleaning of mats was done on the sidewalk on warm days and that the work had been done in this manner for about six months. Id. at 305. This case is clearly distinguishable from the case at bar for two important reasons. First, the mats were placed on a busy sidewalk where there was pedestrian traffic using soap and water. The independent contractors therefore created this allegedly dangerous condition. In our case there is no testimony that either Society of Friends or Eginger created the allegedly dangerous condition. Second, in Wright, the work was being performed for six month on the sidewalk on warm days. As such the defendant property owner must have or reasonably should have known of the place where the work was being performed and that the manner in which the work was being carried out was being done in a way from which danger to the public was reasonably foreseeable. Wright at 308. Eginger testified that it was probable that he had been to the Society of Friends property one to two weeks before the accident. [214] He was sure of it because he was “doing cleanups, because [he] used the mower, too, 15 to pick up leaves.” [214] When asked about the debris he would find he testified to “nothing big” and responded “not really” when asked if he had in the past found items such as “broken pens, pieces of metal”. [219] Society of Friends did not know or have reason to know that the alleged wire that caused plaintiff-appellant’s injury was on the property and would be propelled by Eginger’s mower. Eginger’s mowing services were never supervised by anyone at Society of Friends and the landscaping equipment was owned by Eginger. [316-317] In the present case, there is no testimony or evidence to indicate or support a conclusion that the occurrence complained of was common or that it had ever occurred in the past. In fact, the testimony of Eginger would show that prior to this incident, he had never experienced items propelled from the mower such as sticks or pebbles [209]; anyone being struck by any object thrown by a mower [210]; and other than on the date of this accident, Eginger had never experienced anything projecting from his mower and striking someone while he mowed the Society of Friends lawn. [309] In addition, evidence would show that the Society of Friends retained the services of Eginger and that Eginger had performed the lawn maintenance on the property for over 20 years. [21-26] In all that time, there 16 had never been a prior incident involving object(s) being propelled from the mower and/or any injury arising from the performance of Eginger’s mowing duties. [21-26] Gamer v. Ross, 49 AD3d 598 (2d Dept. 2008), cited by plaintiffs- appellants is similarly distinguishable to our case. In Gamer, the plaintiff fell over wires and debris located on a public sidewalk by an independent contractor. Gamer, supra. The Court established that defendant landowner was liable to a third party injured by the special danger created by the contractor, anticipated by the landowner and in which the landowner had notice. Gamer at 600. (emphasis added). Neither Society of Friends nor its contractor created the allegedly dangerous condition. Rather, Eginger performed an inspection of the property prior to mowing and mowed the lawn as he had for over 20 years without incident until that day. Society of Friends had no reason to anticipate Eginger’s mowing of the property would create a “special danger” to a motorist on the adjoining street especially in light of the fact that in over 20 years of service, there had never been a prior incident involving object(s) being propelled from the mower and/or any injury arising from the performance of Eginger’s mowing duties. [21-26] 17 Plaintiffs-Appellants cite to Great N. Ins. Co. v. Milo Real Estate Corp., 123 AD3d 483 (1st Dept., 2014), in further support of their position. However, in Great N. Ins. Co., it was undisputed that the day before the property caught fire, a concerned neighbor noticed that a closed plastic garbage bag containing sawdust had been left on the curb and told defendant's employee that it might spontaneously combust. Id. Thereafter, the employee told defendant’s independent contractor not to leave bags of sawdust in the building or on the curb. Great N. Ins. Co., supra. Based on the facts of that case, defendant property owner and or the contractor must have or reasonably should have known how the work was being performed and that the manner in which the work was being carried out was being done in a way from which danger to the public was reasonably foreseeable. Beak v. Red Cap Servs., Ltd., 129 Ad3d 752 (2d Dept. 2015), deals with another distinguishable set of facts in that the defendant’s summary judgment was precluded when issues of fact were raised as to whether the building owner’s contractual managing agent owed a duty to the plaintiff and if the building’s property management services agreement with the building owner was sufficiently comprehensive and exclusive so as to support a duty running to the plaintiff. Beak, supra. 18 Plaintiffs-Appellants argue that Society of Friends’ negligence attaches vicariously due to the “inherently dangerous” nature of the activity performed by Eginger. Defendant-Respondent Society of Friends respectfully submits that it cannot be held vicariously liable under the present set of facts. First, the act of mowing grass on a ride on mower cannot be considered an “inherently dangerous activity”. Ride-on mowers are used by millions across the country adults and minors alike and the task does not require any particular skill or training. Although none in New York, there are a litany of cases in various jurisdictions which have held that as a matter of law, mowing grass on a ride-on mower is not inherently dangerous when operated on a lawn or even on a median of an interstate highway which clearly would see more traffic than a side street in the middle of town as in our case. Gore v. Ohio Department of Transportation, 119 Ohio Misc.2d 817 (2002), 774 N.E.2d 817, (2002); Campbell v. Kovish, 273 Mich. App. 227, 731 N.W.2d 112 (Mich., 2006); Stayton v. Funkhouse, 148 Ind. App. 75 (Ind. 1970) (Appellate Court of Indiana ruled that rotary mower used in yard was not inherently dangerous when object thrown by mower struck plaintiff in the eye). 19 Any object has the propensity to be inherently dangerous. In this case however, Eginger took the proper precautions when using the ride-on mower. He testified that it was his practice to inspect the lawn prior to mowing, would stop and remove any debris or garbage he noticed while in the process of mowing, [220, 298-299] and on the date of accident did not recall seeing any debris on the lawn on the Hooker Avenue side of the property. [298]. The discharge chute was on and in the down position. [210-211] It is customary and reasonable to assume that individuals who undertake the task of mowing a lawn do not go to astonishing lengths prior to mowing other than an inspection of the property, looking ahead of where they are mowing and stopping if an individual is within some distance of the mower. Eginger took reasonable precautions and as such the Society of Friends Church had no reason to foresee a danger to the public. No legal duty is imposed upon an owner or operator of a mower in the absence of evidence of probative value that the mower had been or was throwing foreign objects. Stayton v. Funkhouser, 148 Ind. App. 75 (Ind. 1970) and the inference of negligence can be rebutted by evidence that the operator of the lawnmower made an ordinary inspection of the yard prior to mowing. Ebry v. Henderson., 511 SW2d 218 (KY 1974). 20 Eginger’s practice was to inspect the lawn prior to mowing and on the date of accident he did not notice any debris on the lawn on the Hooker Avenue side of the property. [298-299]. There is no evidence in the record in admissible form to show that the yard was in such disarray and hazardous to draw a conclusion that the area was not an ordinary lawn wherein a reasonably prudent person would not venture with a mower. Motter v. Snell 250 LA 1247, 95 N.W.2d 735 (IA 1959) (Larson, J. dissenting). In Motter, there was an even division of opinion among the members of the court taking part as to affirmance or reversal of the case decided by the lower court. Judgment was affirmed by operation of law. Mat 742. As Justice Larson said in his well-reasoned dissent in Motter: “If, as I comprehend the majority opinion, the defendant has the duty to minutely inspect and remove all foreign objects from the area she intends to mow before it may be undertaken when anyone is nearby, then we are establishing a duty which is impossible to perform. We then are announcing the rule that when anyone is injured in the vicinity of a rotary mower being operated on one’s premises, the question as to whether or not one properly performed his duty to inspect and remove all small obstacles from the area is purely a jury question. This, to me, is a new and fantastic venture into the field of tort law, and obviously makes a real estate owner an insurer of all those nearby when he uses a rotary mower to mow his lawn.” Motter supra at 743. (emphasis added). 21 POINT II SOCIETY OF FRIENDS HAD NO REASON TO FORESEE A DANGER TO THE PUBLIC A property owner generally owes a duty “to exercise reasonable care in the maintenance of its property to prevent foreseeable injury that might occur”. Gayden v. City of Rochester, 148 A.D.2d 975, 539 N.Y.S.2d 211 (4th Dept., 1989); see Gellman v. Seawane Golf & Country Club, Inc., 24 A.D.3d 415, 418, 805 N.Y.S.2d 411 (2d Dept., 2005). There is, however, “no legal duty to protect against an occurrence which is extraordinary in nature and would not suggest itself to a reasonably careful and prudent person as one which should be guarded against”. Martinez v. Santoro, 273 A.D.2d 448, 448, 710 N.Y.S.2d 374 (2d Dept. 2000). In the present case, there is no testimony or evidence to indicate or support a conclusion that the occurrence complained of was common or that it had ever occurred in the past. In fact, the testimony of Eginger would show that prior to this incident, he had never experienced items propelled from the mower such as sticks or pebbles, [209]; anyone being struck by any object thrown by a mower, [210]; and other than on the date of this accident, Eginger had never experienced anything projecting from his mower and striking someone while he mowed the Society of Friends lawn. [309] 22 To state that the Society of Friends coordinat[ed] or ensured Eginger was not mowing while people were on or utilizing the property is a mischaracterization of the testimony proffered by the Society of Friends’ witness, Fred, Doneit. Rather, Doneit testified that mowing should not be conducted during services, or during organized events such as weddings. [153] This is not an unreasonable request given the disruptive noise of a mower during a worship service or planned event. Irrespective, mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the employer. Goodwin v. Comcast Corp., 42 A.D.3d 322, 840 N.Y.S2d 781 (1st Dept., 2007). Moreover, to clarify, Doneit was asked a very broad question at his deposition as to whether it was “unusual for there to be debris of any kind on the lawn that kids or other people would leave behind”. [153] In response, Doneit testified “you might find some debris”. [153] The question of debris on the lawn was amply clarified by Doneit in his affidavit in which he sets forth that the Building and Grounds Committee of the Society of Friends would assure the grounds were kept clear of debris and garbage and that 23 there were no prior complaints, issues or concerns relative to debris, garbage or rubbish on the lawn where the accident occurred. [23] Eginger testified that prior to the date of accident items such as leaves, paper, and light things would come out of the shoot but he never noticed pebbles or sticks discharged while he mowed. [209] Importantly, Eginger testified that he had never had any experience involving someone being struck by an object thrown from the mower prior to the date in question. [210] If Eginger himself had no reason to know or foresee an object would project out of his mower and strike a motorist on the adjacent roadway, isn’t it likewise unreasonable to determine that Society of Friends had reason to foresee the same? In the absence of evidence to show a defendant created the dangerous condition, the plaintiff must prove that the defendant had actual or constructive notice of it. Early v. Clinton Hotels Corporation, 73 A.D.3d 559, 904 N.Y.S.2d 367 (1st Dept., 2010); Hamilton v. Rite Aid Pharmacies, Inc., 234 A.D.2d 778, 650 N.Y.S.2d 887 (3d Dept., 1996). Nothing in the record indicates that anyone from Society of Friends had actual notice of the object that allegedly was propelled from the Eginger mower and struck the plaintiff. Eginger testified that he did not see any 24 debris on the lawn facing Hooker Avenue prior or during his mow on the date of the plaintiffs accident. Since Eginger, the party on the property at the time of incident testified to not seeing the object, it can be reasonably inferred that Society of Friends did not have actual knowledge of it. There were never any prior issues relative to Eginger’s mowing and or debris on the Society of Friends property. Based on the respective testimony and affidavit of the parties, it is clear that the plaintiffs-appellants failed to establish that the defendant had actual notice of the alleged dangerous condition. Where there is no indication in the record that the defendant created the alleged dangerous condition or had actual notice of it, the plaintiff must proceed on the theory of constructive notice. Rabadi v. Atlantic & Pacific Tea Company, 268 A.D.2d 418, 702 N.Y.S.2d 316 (2d Dept., 2000). A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Rodriquez v. E & P Associates, 20 Misc.3d 1129(A), 2008 WL 3010041 (N.Y.Sup.). The notice requirement must be more than general notice of any defective condition. Gordon v. 25 American Museum of Natural History, 67 N.Y.2d 836 (1986); Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist is insufficient to constitute notice of a particular condition alleged to have caused an accident. Id. Instead, liability can only be predicated on defendant’s failure to remedy a dangerous condition after actual or constructive notice of the condition. Id. The absence of evidence demonstrating how long a condition existed prior to plaintiffs accident constitutes a failure to establish the existence of constructive notice as a matter of law. Anderson v. Central Valley Realty Company, 300 A.D.2d 422, 751 N.Y.S.2d 586 (2d Dept, 2002); McDuffie v. Fleet Fin. Group, 269 A.D.2d 575, 703 N.Y.S.2d 510 (2d Dept, 2000). As for constructive notice, there must be a showing that a visible and apparent defect existed “for a sufficient length of time prior to the accident to permit defendant to discover and remedy it”. Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). There is no testimony as to how long the object that allegedly caused the plaintiffs injury existed on the Society of Friends property, if at all. Eginger did not notice it on the date of accident. [118] There is no 26 testimony as to prior complaints and or issues relative to debris on or remaining on the Society of Friends property. [21-26] Even in viewing the facts in the light most favorable to the plaintiffs- appellants to wit: that the object came from the Society of Friends’ lawn and was propelled by Eginger’s mower, there is no evidence in the record as to how long that object was on the lawn and no evidence that Friends Society knew or should have known of the alleged metal object. Mr. Eginger, the one person on the property on that day and in the alleged vicinity, testified that he did not see any debris on the lawn. [298-299] As previously stated, the plaintiff-appellant himself could not attest to where the object originated. When there are, no disputed issues of fact as to constructive notice the entire complaint should be dismissed on summary judgment (see, Soboleva v. Gojcaj, 238 A.D.2d 170, 655 N.Y.S.2d 950 (1st Dept, 1997); DiGiorgio v. Hempstead Realty Assocs., 202 A.D.2d 332, 609 N.Y.S.2d 12 (1st Dept, 1994). 27 POINT III POUKEEPSIE’S ORDINANCE TO MOW LAWNS DOES NOT IMPOSE A NONDELEGABLE DUTY ON SOCIETY OF FRIENDS There are no clearly defined criteria for identifying duties that are nondelegable. Feliberty v. Damon, 72 N.Y.S2d 112, 527 N.E.2d 261, 531 N.Y.S.2d 778 (1988). Indeed when a particular duty is properly categorized as “nondelegable” necessarily entails a sui generis inquiry, since the conclusion ultimately rests on policy considerations. Feliberty supra at 119. The most often cited formulation is that a duty will be deemed nondelegable when the responsibility is so important to the community that the employer should not be permitted to transfer it to another. Id. at 119. The cutting of grass is a delegable duty that can be assigned to an independent contractor and no liability should arise from such delegation, including the obligation to look for movable objects before mowing an area. Gore v. Ohio Dept, of Transportation, 119 Ohio Misc.2d 817 (2002), 774 N.E.2d 817, 2002; see also Cwalinski v. Ohio Dept, of Transp. 2003 WL 22389157, 2003-0hio-5561. The Poughkeepsie Code directs owners to cut and keep grass below a certain height on their property. However based on the formula as cited 28 above, cutting grass cannot be held to be so important to a community so as to disallow Society of Friends to transfer the mundane task to another along with the task of keeping a lookout for objects that can be run over by the mower. In this country, businesses and homeowners alike commonly delegate landscaping duties to landscaping contractors. We respectfully submit that the code requiring a landowner to maintain grass less than 12 inches does not require such a broad holding as to say that the task is nondelegable. To do so would also constitute placing a vast economic burden on business and landowners to the extent that would make it unattainable for most. Additionally, plaintiffs-appellants failed to allege a violation of this ordinance in its pleadings. Not until plaintiffs-appellants’ opposition to the defendant-respondent’s motion did plaintiffs-appellants conjure up this argument in an attempt to evade proper dismissal of this action. The plaintiffs-appellants were specifically requested to “[s]et forth the Chapter, Article, Section and Paragraph of each and every statute, rule or ordinance, if any, which is claimed was/were violated by the answering defendant.” [47] Plaintiffs-appellant’s response was “Safety rule: Defendants caused risk of unnecessary harm to the public; Safety rule: Defendants failed to 29 operate the mower safely, causing injury to plaintiff.” [47] Raising the alleged violation of this ordinance for the first time in opposition to the dispositive motion is improper and should not be considered. Nikitin v. Lexandra, 24A.D3d 522, 806 N.Y.S.2d 239 (2d Dept., 2005) (Plaintiffs allegation that dog owners were negligent because they violated local ordinance was improperly raised for first time in opposition to owner’s motion for summary judgment. Nikitin, supra. POINT IV SOCIETY OF FRIENDS MET ITS INITIAL BURDEN BY TENDERING SUFFICIENT EVIDENCE DEMONTRATING THE ABSENCE OF ANY ISSUES OF FACT For the reasons enumerated above, the activity was neither inherently dangerous nor was the work nondelegable. Alternatively, when a danger is not normally inherent in the work, the hirer may be responsible for a dangerous condition negligently created by an independent contractor if the hirer has actual or constructive notice of the condition. Vaniglia v Northgate Homes, 106 AD2d 384, 482 NYS2d 299 (2d Dept 1984); Kojic v New York, 76 AD2d 828, 428 NYS2d 305 (2d Dept 1980). Despite plaintiff-appellants’ assertions, Society of Friends made clear showing by submitting evidence in admissible form that the lawn was 30 inspected by Eginger on the day of the incident and that he, the one person on the property on that day and in the alleged vicinity, did not see any debris on the lawn. [298-299] The occurrence complained of was not common and it actually had never occurred in the past. In fact, the testimony of Eginger would show that prior to this incident, he had never experienced items propelled from the mower such as sticks or pebbles, [209]; anyone being struck by any object thrown by a mower, [210]; and other than on the date of this accident, Eginger had never experienced anything projecting from his mower and striking someone while he mowed the Society of Friends lawn. [309] In addition, evidence would show that the Society of Friends retained the services of Eginger who had performed the lawn maintenance on the property for over 20 years and prior to the date in question, had never experienced incident or injury arising from the performance of Eginger’s mowing duties. [21-26] Plaintiff-appellants cite to Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47 (2d Dept. 2011), a hybrid case where arguably the plaintiffs accident and injury could have been caused by a defect in the premises as well as a defect in the equipment under a Labor Law analysis where property 31 owners may be held liable under the common law for failing to provide a safe place to work. Reyes supra. For liability to be imposed, there must be a showing that the property owner either created the dangerous or defective condition or had actual or constructive knowledge of it. Reyes, supra. Our case does not involve or require a New York Labor Law analysis. Importantly, plaintiffs-appellants did not allege in its amplified pleadings that Society of Friends created the alleged condition nor that it had actual knowledge of the condition. [43-48] Rather, the alleged negligence rests solely on the alleged failure to inspect the property. [44] As previously stated, through admissible evidence, the defendants established that Eginger, prior to starting his duties did not observe any debris on the lawn. Moreover, based on Eginger’s 20 years of prior service, Society of Friends had no reason to believe he did not or would not perform a proper inspection of the lawn before he began the landscaping task. Simply because a lawn is well trafficked and busy does not warrant a finding of constructive notice of a metal wire on the church lawn. Eginger’s testimony was not that garbage would accumulate on the lawn, but rather that he would not find “[anything] big”. [219] What can’t be overlooked is that Eginger did not see any debris on the property on the date of accident 32 and there had never been a prior incident that would cause Society of Friends to believe this type of accident was foreseeable. POINT V SOCIETY OF FRIENDS’ DISPOSITIVE MOTION WAS NOT PREMATURE AS ANY ALLEGED NEW FACTS DID NOT RAISE A TRIABLE ISSUE OF FACT OR HAVE A BEARING ON LIABILTY The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Singh v. Avis Rent a Car Syst. Inc., 119 A.D.3d 768, 989 N.Y.S.2d 302 (2d Dept., 2014). Plaintiffs- appellants rely on CPLR 3212(f) which provides in relevant part that a court may deny a motion for summary judgment “[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated” CPLR 3212(f). Plaintiffs-appellants filed a Note of Issue certifying all discovery was complete. [51-53] They also had ample opportunity to conduct all discovery and make any requests and or demands for discovery and or inspection prior to filing the Note of Issue. After receipt of the motion for summary judgment, the allegation was raised for the first time that construction and excavation took place at the church. [411-412] Such averments amount to 33 nothing more than unavailing conjecture and surmise. The plaintiffs- appellants speculate as to the work performed at the church and what the work actually entailed by describing it as “serious or potentially hazardous activity” entailing excavation. This argument is based on nothing submitted in evidentiary form. To the contrary, the building permit which is of public record plainly describes the work performed at the church as raising a meter and installing a backflow. [539-541] The permit does not state that any excavation took place. Further, the only inspections required were that of an electrician and rough plumbing. [540] Moreover, to further disprove these claims, the affidavit of Doneit defines the extent of the work coinciding with the building permit description and adds that the entire project was contained not only within the building, but within the north closet of what is considered the building’s Tapestry Room”. [550-551] Allegedly, Mrs. Salmonese, mother of the infant who provided an affidavit, informed the plaintiffs-appellants’ counsel that Society of Friends had the lawn excavated leaving the work area in “disarray, deeply rutted, not finish-graded or raked”. [411-412] This information was not attested to and Mrs. Salmonese did not provide an affidavit or statement setting forth these facts despite a clear opportunity to do so. As such, this information is not 34 evidence in acceptable form for purposes of a dispositive motion and should not be considered. The party opposing a dispositive motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980). Lastly, the photos marked for identification at the parties’ depositions which fairly and accurately depict the site, [190], reveal a property which is a far cry from being in disarray, deeply rutted, not finish-grade or raked. [356-372] The alleged new facts are plaintiffs-appellants’ veiled attempt to evade proper dismissal of this action. They do not raise any triable issues of fact nor do they have any effect on liability. 35 CONCLUSION Wherefore, Respondents respectfully requests this Court grant an order affirming the lower court's decision dated March 10, 2015, and for such other and further relief as this Court deems just, proper and equitable. Dated: November 30, 2015 Garden City, New York Respectfully submitted, CLAUDIA P. LOVAS Byl V-Cfaudia P. Lovas, Esq. 1225 Franklin Avenue, Suite 324 Garden City, New York 11530 (516)-897-1919 Of Counsel: Claudia P. Lovas, Esq. 36 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR Section 670.10.3(f) that the foregoing Brief was prepared on a computer using Microsoft-Word. 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 this 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 7,491. Dated: Garden City, New York November 30, 2015 Claudia P. Lovas, Esq. 1225 Franklin Avenue, Suite 324 Garden City, New York 11530 (516)-897-1919 Attorney for Defendant-Respondent Society of Friends Church a/kJa The Poughkeepsie Monthly Meeting of the Religious Society of Friends a/kJa Friends Meeting By: 37