John P. Mery et al., Appellants,v.Frank Eginger, Defendant, Society of Friends Church,, Respondent.BriefN.Y.June 5, 2018New York Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT JOHN 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. >> >> To Be Argued By: Brian J. Isaac Time Requested: 15 Minutes REPLY 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 Dutchess County Clerk’s Index No. 7594/12 Docket No. 2015-04104 Of Counsel: Brian J. Isaac TABLE OF CONTENTS Page PRELIMINARY STATEMENT 1 CONCLUSION 15 CERTIFICATE OF COMPLIANCE 16 i SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION-SECOND DEPARTMENT Docket No. 2015-04104 X JOHN P. MERY and JENNIFER MERY, Plaintiffs-Appellants, APPELLANTS' REPLY 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 (collectively, "plaintiff[s]") submit this brief in reply to that submitted by defendant-respondent Society of Friends Church a/k/a The Poughkeepsie Monthly Meeting of the Religious Society of Friends, a/k/a Friends Meeting (the defendant or "Church") in connection with plaintiff's appeal (2-3)1 from the order and decision of the Supreme Court, Dutchess County (Sproat, J.) dated March 10, 2015 which granted the Church's motion for summary judgment dismissing plaintiffs' complaint (4-7). We assume full familiarity with the briefs already before this Court, and proceed directly to our response to the Church's contentions in its brief. 1 Unless otherwise specified, numbers in parentheses refer to particular pages of the Record on Appeal. 1 [a] The issues on this appeal include: Whether the Church owed plaintiff a non-delegable duty of1. Eginger"), ancare when defendant Frank A. Eginger ("Mr. independent contractor, negligently operated a lawnmower so that it discharged heavy gage wire while plaintiff was driving on the road next to the church, causing him total blindness in one eye, the loss of an eye and prosthetic replacement (45); 2. Whether certain local regulations impose an additional non¬ delegable duty of care on the defendant; 3. Whether the Church had constructive notice of the debris on its lawn, which would cause a hazard if the lawn was mowed while third parties were present; 4. Various issues about burdens of proof on summary judgment motions, and possible prematurity of summary judgment in light of outstanding discovery required by newly discovered evidence bearing on liability. [b] As was pointed out in our main brief, much of the evidence favorable to plaintiff comes from defendant itself. There is 2012 whilelittle dispute that plaintiff was injured on May 4, traveling west on Hooker Avenue, a two way road, to get to work He drove a 2002 Ford pickup truck with the windows(68-70). down; at the corner of Whittier Street, he heard a lawnmower 2 running on the Church's property, then felt a sharp pain in his left eye (70, 76-78). Two pieces of heavy gauge wire imbedded themselves in his left eyeball, causing him to lose all vision in that eye (45, 79). He then saw someone riding on a mower on the Church's lawn (83-84). Mr. Eginger's deposition testimony favorable towas plaintiff's position, as was that of Frederick W. Doneit Sr., a Church trustee (150), and his affidavit and that of Armen Fisher (22-26). Mr. Eginger stated that he picked up debris while mowing because he knew mowers could shoot projectiles that could cause severe injuries including injuries to the eye (220, 243). He inspected the grass before mowing to reduce the probability of such an occurrence; he did not do this before mowing on the day of the accident (219, 244). He found soda cans and other litter on the lawn previously (219). Still, debris would spew out of the chute (2009). Debris accumulated on the lawn of the Church previously (218-19). Mr. Doneit likewise affirmed, "If you go look at our lawn, like right now, you might find some debris" (153). He was not aware of prior incidents where projectiles had injured people (163), but the Church normally ensured that no mowing took place while people were on the lawn or utilizing the property (152). Mr. Doneit knew the lawn was in a busy area (152); children would walk across the lawn when he was present (163-64) 3 Plaintiff submitted expert testimony from Robert H. Balogh- Robinson, a physicist, confirming that the slope of the property added to the height of the path of the projectile, enhancing the chance that same would strike plaintiff in the eye; Eginger's uncovered discharge chute faced Hooker Avenue at the time plaintiff was struck in the eye (238, 477-90, 513-14). Donald Fryer saw the incident; his affidavit affirmed that the mower was striking rocks and debris and the chute was open, so the debris could be shot into the air (511-14). Peter Eliot, a metallurgist, submitted an affidavit (515-28) stating that the pieces of wire had originally been a single piece of wire that was cut by the rotating blades of the mower. Gabriel G. Alexander, an engineer and owner of Apex Engineering, submitted an expert affidavit attesting that the mower had an idle speed of 1500 revolutions per minute and an operating speed of 3750 revolutions per minute, and a blade tip speed of 18,500 feet per minute (530-32). The Church, in the affidavits of Messrs. Doneit and Fisher, acknowledged the danger of mowing an uninspected lawn. The Building and Ground Committee was established to eliminate the problem of debris on the lawn (22-26). No complaints were lodged about this condition (26); however, Mr. Doneit knew that the lawn had debris (153). The Church told Mr. Eginger not to mow 4 the lawn when he knew there were people on or around the property; he would stop his mower if people were nearby (241). Clearly, the Church was intimately familiar with the hazard, and Mr. Eginger admitted he knew that if the lawn was negligently inspected, objects would be spewed out of the powerful mower and could hurt someone. There was no testimony about when the lawn was last inspected prior to the accident. [b] On this factual record, construed in a light most favorable to plaintiff as the party opposing summary judgment, it is respectfully submitted that the grant of summary judgment was inappropriate. The Church did not rule out all issues of liability. Its assertion that it did not owe plaintiff a duty of care (Brief at 9) because Eginger was an independent contractor is based on a 2006 City Court case, Wood v. Auborn Lodge, 12 Misc.3d 683 [City Ct. 2006], which did not even deal with the "inherently dangerous" exception to the independent contractor rule (Rosenberg v. Equitable Life, 79 NY 663 [1992]), but rather whether the mower itself was defective. As noted in Rosenberg, the exception applies when "the work involves a risk of harm inherent in the nature of the work itself, and the employer recognizes that risk in advance of the contract" (supra at 669). 5 As a general rule, of course, an employer is not liable for the negligent acts of an independent contractor or the latters servants resulting in injury to third persons (Brief at 11). "whether danger is inherent in the work contracted forHowever, and should be reasonably anticipated is a question dependent upon the facts of the case" (Wright v. Tudor City, 276 NY 303 [1938]), and is normally to be determined by a jury, though it may be decided as a matter of law in appropriate circumstances (Schwartz v. Merola Bros., 290 NY 145 [1943]; Lusik v. 27 Prospect Park West Tenants Corp., 19 AD3d 557 [2d Dept. 2005]; Klein v. Beta 1 LLC, 10 AD3d 509-10 [1st Dept. 2004]). The Church argues that the inherent risk exception does not apply, because Eginger performed mowing for 20 years without and the Church did notincident and provided his own mower, "exercise any control or supervision over the manner in which Eginger performed the work he was retained to accomplish" (Brief at 12). But in the very next paragraph, the Church admits it had a policy to "inspect the lawn" prior to mowing and that Eginger would "remove any debris or garbage he noticed while in the (220, 298-99). That Eginger denied he sawprocess of mowing" debris, and claimed he struck no rocks on the day of plaintiff's accident (253, 198) simply creates questions of fact as to his liability. There is no question that he knew of the danger (220, 6 243); plaintiff's expert pointed out that the mower actually cut heavy gage wire in half, showing the power of the machine. As we pointed out previously (Main brief, pp. 36-37), failure to see what is there to be seen can constitute negligence, so that failure to discover a condition that should have been discovered is no less a breach of due care than a failure to respond to actual notice (Blake v. Albany, 48 NY2d 875 y 877-8 [1979]). Here, Mr. Eginger's testimony that he did not see the given what occurred,debris does not mean it was not present, contrary to the Church's assumption. An affidavit by Loren Salmonese, a neighborhood resident, stating that the only mower in use on Hooker Avenue belonged to Mr. Eginger, refutes any notion that some other mower caused plaintiff's injuries. Mr. Salmonese's mother, Elizabeth, informed plaintiff's counsel that the Church was left messy and dirty after a septic installation (533); building permits and other municipal documents show a backflow installation at the Church (538-41). The policy of inspecting the lawn for debris demonstrates awareness of the danger posed by such condition (Burgundy Basin Inn v. Watkins Glen Grand Prix Corp., 51 AD2d 140 [4th Dept. 1976) and invokes the doctrine of heightened duty arising out of conditions reasonably to be expected from the undertaking (Kelsey v. PA, 52 AD2d 801 [1st Dept. 1976]). The Church and Mr. Eginger 7 clearly violated their policy in failing to stop mowing when people were on or near the lawn, and in failing to properly inspect the lawn before mowing. The failure to follow an accepted practice instituted by a defendant has been held sufficient to summary judgment in plaintiff's favor inwarrant some circumstances (Gregory v. NYCTA, 112 AD2d 1084 [2d Dept. 1985]). [c] The Church insists that there is sufficient evidence that Mr. Eginger "exercised reasonable care" (Brief at 14); this is untrue if the record is construed in a light most favorable to the plaintiff as is required, and the use of the phrase "sufficient evidence" is intentionally ambiguous. Sufficient for what? Evidence sufficient to present a defense is not evidence sufficient to prevail on a motion for summary judgment and dismiss the action. [d] Also unconvincing is the effort to show that the "inherently dangerous" exception to the independent contractor law does not apply. We conceded that mowing has in some cases been held not inherently dangerous (Brief at 22-23), but pointed out that the issue is fact-specific. Defendant attempts without success to distinguish the cases we cited on this point. Wright v. Tudor City, supra, is not to be distinguished based on Mr. Eginger's estimate that he had been to the property 8 1-2 weeks before the accident and his statement that he did not find broken pens or pieces of metal (Brief at 15-16). We are not, of course, alleging and intentional tort. Regardless of what he said, there is overwhelming circumstantial evidence2 and direct evidence that debris would accumulate on the lawn, that the Church knew the danger that objects would be projected from the chute of the mower and took precautions to prevent same, and that Mr. Eginger was negligent in failing to stop mowing activities when third parties were nearby, and/or in failing to properly inspect the lawn before mowing. Asserting that the occurrence was not "common" or that Mr. Eginger never had it happen before (Brief at 16) only sets forth an issue of fact, which precludes the grant of summary judgment. Defendant's mere denial of notice cannot distinguish this case from the ones cited in our main brief. It would only establish defendant's constructive notice based on failing to notice what was clearly visible and should be seen had a proper inspection been undertaken (Adlam v. Konvalinka, 291 NY 40 [1943]; Junkerman v. Tilyou Realty, 213 NY 404 [1915]; Kirby v. Montgomery, 197 NY 27 [1909]). And, again, the evidence of notice is very strong. 2 Circumstantial evidence, of course, may be even stronger than direct evidence when based on undisputed facts that human observers would be less likely to mistake or distort (People v. Geraci, 85 NY2d 359, 369 [1995]; Caraballo v. Paris Maintenance, 2 AD3d 275-6 [1st Dept. 2003]). 9 [e] Saying that Mr. Eginger performed an inspection (Brief at 17) in no way detracts from the propriety of plaintiff's claim that the inspection was improper because it failed to detect the presence of wires which could be projected from the mower and strike a passerby in the eye. [f] In dealing with the inherent danger doctrine, the Church claims that using a ride-on mower "cannot be considered an inherently dangerous activity" as the devices "are used by millions across the country, adults and minors alike, and the task does not require any particular skill or training" (Brief at 19). But "Posing the wrong question usually results in an which is less than enlightening" (Bustamanteanswer v. Westinghouse Elevator, 195 AD2d 318-9 [1st Dept. 1993]; see also Lusenskas v. Axelrod, 183 AD2d 244, 247 [1st Dept. 1992], app. dism. 81 NY2d 300 [1993]). The risk in this case lay in allowing an independent contractor (who thought he was an employee) to mow a lawn often covered with debris, in a well traveled area, with a device so powerful that its vent could project pieces of heavy gauge wire onto the street which struck a driver in the in a manner contrary to the policies of the party hiringeye, the independent contractor. 10 There are cases holding that mowing is not necessarily an inherently dangerous activity, but there are also cases to the contrary. We pointed this out in our main brief (Brief at 24), and added that under the facts in this case, the exception clearly applies, and a question of fact, at the very least, is presented on that issue. Repeated references to Mr. Eginger's claim that he took precautions do not eliminate the evidence of notice. [g] And defendant inculpates itself when it asserts, "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 (Brief at 20). Mr. Egingeror was throwing foreign objects" testified to his knowledge of this peril. There was, contrary to defendant, evidence that the yard was "hazardous" (Brief at 21). Citation to Motter v. Snell, 250 Iowa 1247 [Sup. Ct. 1959] supports plaintiff's position. Defendant did in fact have "reason to foresee a danger to (Brief at 22), based on Mr. Eginger's testimony thatthe public" andhe would not mow when there was an event at the church, would stop or veer to the side if anyone came year the yard (223-41), Mr. Doneit's statements that the restriction for that he knew of debris on the lawnevents was Church policy, and that the Church had a committee to keep the(152-53), 11 grounds free of debris and garbage, as well as the expert's calculations about how fast the blades of the mower moved and the slope of the property all establish the impropriety of granting summary judgment (478). And it is not disputed that the Church had sewer work done on the property, which would logically give rise to increased and heavier debris (550-51). Here, then, the evidence establishes "not merely that the risk should have been perceived, but that it in fact was (Burgundy Basin Inn v. Watkins Grand Prix Corp.,perceived" supra at 344). Defendant has conflated actual with constructive notice, in violation of accepted case law (Sanchez v. State, 99 NY2d 247 [2002]). [h] Defendant actually concedes that a question of fact exists on this record, for it asserts that Doneit's admission that it was not usual for debris to appear on the lawn was "amply clarified by Doneit in his affidavit in which he sets forth that the Building and Grounds Committee...would assure the grounds were kept clear of debris and garbage and that there were no prior complaints..." (Brief at 23-24). A clarification, however, must be assessed by the jury, not by a court. One who moves for summary judgment must eliminate all factual questions from the record, and the record is to be construed in a light most favorable to the non-movant 12 (Hutchinson v. Sheridan Hill House, 26 NY3d 66 [2015]; Powers v. 31 E. 31 LLC, 24 NY3d 84 [2014]; Vega v. Restani Constr., 18 NY3d 499 [2012]; Ortiz v. Varsity Holding, 18 NY3d 335 [2011]; Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Sillman v. 20th Century Fox, 3 NY2d 395 [1957]). In avoiding contrary evidence and asserting that exculpatory evidence must be credited by the reviewing court (Brief at 24-27), the Church essentially concedes that the trial court's order is improperly decided. It is also improper to assert that there is no evidence as to how long the object was on the lawn, such that defendant should have seen it. Obviously the wire was there, or it could not have hit plaintiff in the eye. Defendant was responsible for seeing and its failure to do so uponwhat was there to be seen, inspection is not a defense, but a basis for liability. See, Weigand v. United Traction, 221 NY 39 [1917]; Park v. Caesar Chemists, 245 AD2d 425-7 [2d Dept. 1997]; Danielson v. Janeco, 20 AD3d 446 [2d Dept. 2005]; Wilson v. Rancanelli, 295 AD2d 423 [2d In such a situation, constructive notice isDept. 2002]). irrelevant (Weller v. College of Senecas, 217 AD2d 280, 285 [4th Dept. 1995], citing Watson v. NYC, 184 AD2d 690 [2d Dept. 1992]). This is why where a "program of inspection" is not in place, "constructive notice of the defect is imputed" to a responsible defendant (Hayes v. Riverbend, 40 AD3d 500-1 [1st Dept. 2007]). 13 [i] Nor will it do to say that the Poughkeepsie ordinance relating to lawn mowing does not impose a non-delegable duty (Brief at 28-30). It is a factor in determining whether such duty exists. That mowing is "mundane" does not mean it can never be risky under the circumstances. That the ordinance was not specifically pled does not matter, for the court could permit amendment of the pleadings at any time, even after trial (Murray NYC, 43 NY2d 400, 405 [1977]; Dittmar Explosives v.v. Ottavanio, Inc., 20 NY2d 498, 502 [1967]). [j] Finally, the record refutes the assertion that defendant "met its initial burden buy tendering sufficient evidence demonstrating the absence of any issues of fact" (Brief at 30). Negligence has not been ruled out as a matter of law on this record, and therefore the evidence tendered is obviously insufficient. In fact, defendant's proof actually establishes questions of fact that preclude the granting of summary judgment for the Church. See, Frey v. Richmond Hill Library, 132 AD3d 803 [2d Dept. 2005]; Lennon v. Cornwall CSD, 132 AD3d 820 [2d Dept. 2015]; NeJame v. Honda, 131 AD3d 951 [2d Dept. 2015]. And defendant has not controverted or even addressed our contention that it submitted no evidence as to when the lawn was "last inspected"-a requirement necessary to secure summary judgment in 14 of this ilk. [See, Main Brief at 33-5] Accordingly,a case defendant's submissions did not establish its entitlement to judgment as a matter of law. Procedurally, the newly discovered evidence concerning the construction and excavation work at the church was, contrary to defendant (Brief at 33-35), sufficient to forestall summary judgment pursuant to CPLR §3212[f], despite the filing of the note of issue, and did warrant further discovery. On the whole, then, defendant's brief actually supports plaintiff's position on this appeal. CONCLUSION For the foregoing reasons, it is respectfully submitted that the trial court's order should be reversed and plaintiffs' complaint reinstated, and that 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 2 cBy: 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 15 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: Courier NewName of typeface: Point size: 12 DoubleLine spacing: 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 3,331. Dated: New York, New York January 8, 2016 7U Brian J. Isaac, Esq. Appellate Counsel for Plaintiffs-AppeHants 16