John P. Mery et al., Appellants,v.Frank Eginger, Defendant, Society of Friends Church,, Respondent.BriefN.Y.June 5, 2018LAW OFFICE OF JEFFREY SAMEL & PARTNERS 150 BROADWAY, SUITE 1600 NEW YORK, NEW YORK 10038 TEL NO.: (212) 587-9690 FAX NO.: (212) 587-9673 www.jeflreysamel.com April 17,2018 Court of Appeals, State of New York 20 Eagle Street Albany, NY 12207-1095 Attn: John P. Asiello, Chief Clerk & Counsel to the Court Re: John P. Mery v. Frank Eginger Docket No.: APL-2017-00235 Dear Mr. Asiello: Defendant-Respondent, 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 the Church) submits this letter brief in response to Plaintiff-Appellant's brief. Opening Statement Plaintiff-Appellant seeks to hold the Defendant-Church responsible for the acts of its independent contractor. Arguing that the landscaper was engaged in an inherently dangerous activity, they contend that the Church knew, or should have known of the potential danger. When viewed in the light most favorable to Appellant, this record does not support the claim that 1) the act of mowing the lawn was an inherently dangerous activity or 2) that the Church was aware that there was a "heightened risk of danger to the public." The testimony of the Defendant Church, as well as the non-party Eginger, has been mischaracterized throughout. A simple reading of the actual text reveals that "there is no there, there.n i Gertrude Stein Inherently Dangerous Activity At the outset, it should be noted that Appellant does not claim that the act of mowing a lawn with a commercial lawn mower is, per se, an inherently dangerous activity (page 11 of Appellant's letter brief). The laundry list of inherently dangerous activities, per se, includes blasting, excavation, demolition and working with hazardous chemicals, see Prosser and Keaton, Torts chapter 71. 5th Ed. No court in New York, or as best can be determined, in all the United States, has found lawn mowing to be an inherently dangerous activity. One lower court in New York has specifically held that it is not, see Wood v. Auburn, 12 Misc3d 683, as well as several foreign jurisdictions, see Gore v. Ohio Department of Transportation, 119 Misc2d 817. Campbell v. Kovish, 273 Mich App 227, Stayton v. Funkhouse, 148 Ind.App 75. Undeterred, Appellant argues three extrinsic circumstances "in totality" (R 402- 403 ) combine to transform this routine activity into an inherently dangerous one, requiring a heightened standard of care. As annunciated by Appellant they are: The configuration of the machine; Its elevation relative to the thoroughfare and; The debris on the lawn. 1. 2. 3. The machine in question, an X-Mark Lazar mower which, according to its manufacturer, is the best-selling commercial mower on the market, used by more professional landscapers than any other machine. No case has been found that holds it to be a dangerous instrumentality, or that it was negligently designed or constructed. It comes equipped with a "chute" which when in the "down" position, should presumably prevent objects from becoming airborne. Eginger claims that chute was in the down position at the time of the occurrence (R-211), however, a witness who observed Eginger mowing, claims it was not (R 512). There is no claim that the machine violated any safety statutes, rules or regulations. Appellant's expert amply demonstrates the power of the machine to hurl "projectiles" at a high rate of speed, as do many other activities, such as golf (125 mph launch speed) or table saws (rotation of 3,000 rpm). The Courts had not found these facts alone sufficient to declare such pursuits inherently dangerous activities per se, or to hold Defendants to a higher standard care for the protection of the public; see Hornstein v. State of New York, 46 Misc2d 486, Plaintiff struck in eye by golf ball, could not establish heightened risk of danger, also see Banks v. Makita, 226 AD2d 659, Plaintiff injured when using table saw with removal guard, no heightened duty to warn. With regard to the elevation, we have found no case which holds that property owner whose land is on an elevation, should take extra precautions before mowing his lawn. 2 Finally, Respondent will concede arguendo, that there may have been some piece of debris on the lawn which caused Plaintiffs injury.2 There is no evidence of how this debris came to be on the lawn, or how long it had resided there. There is an absolute dearth of evidence to support the claim that church members knew, or should have known of this debris. It is undisputed that the Church had no actual knowledge of the particular defect in question. Liability therefore must be based upon constructive notice. A general awareness of a potentially dangerous condition is insufficient to impose liability on a landowner, Gordon v. Museum of Natural History, 67 NY2d 836, Piacquadio v. Racine, 84 NY2d 967. Notice "in the air" will not do. In Piacquadio supra, this Court dismissed Plaintiffs claim, despite testimony that spills in the catering hall were a common occurrence, and the failure of Defendant to maintain the "slip-resistance treads" on the steps. Reversing the Appellate Court, this Court held that general awareness of potential problems was insufficient to sustain a cause of action that arises from a particular defect. The core of Appellant’s argument is that the lawn was "habitually strewn with debris" (page 6 of Appellant's letter brief), and thus they tip-toe up to the notion that this might have been a recurring condition. In support of this claim, they cite p.152-153 of the Record on Appeal. This is the testimony of a Church official, Mr. Doniet. The full text of his testimony on this subject, paraphrased by Appellant beyond recognition, reads as follows: Is it fair to say that this location is somewhat busy, well-trafficked area, with a school nearby, stores nearby, lots of homes nearby? Q: A: Yes. Would it be unusual for there to be debris of any kind of the lawn that kids, or their people would leave behind? Q: Unusual? I don't know what you mean by that. But if you go look at Our lawn, like right now, you might find some debris. A: From this rather innocuous observation, Appellant infers that the lawn was "habitually strewn with debris", a festering breeding ground for potential projectiles. In fact, there is nothing in the record to support this allegation, beyond wishful thinking. The fact that a lawn may at any given time, find some debris on it, is not evidence that it is "habitually strewn with debris." This is hyperbole on steroids. As inferential proof that the Church was aware of this alleged "ongoing condition," Appellant next cites page 152 of the Record on Appeal. Again, the statement is taken completely out of context. Again, the full text reads as follows: 2 Defendant claims that another lawn mower two houses down could have caused the projectile to be launched and does not concede that it came from the subject mower. For purposes of this appeal, however, we acknowledge that plaintiff may have proved, by reasonable inference, that the object came from the subject mower. 3 Q: Any particular time when he was supposed to do this work? A: No. Q: Any particular time when he was not supposed to do this work? A: Only during worship services and any other events when we allowed other organizations to use our building or property for — you know, wewould coordinate so he wouldn't be mowing while there was a wedding going on. From this common sense dictum restricting lawn mowing during wedding services (Mr. Eginger personally used ear muffs to protect himself from the noise (R165)), Appellant concludes: "This of course confirms the Church's recognition of the potential dangers that mowing posed” (p. 6 of Appellants letter brief). It confirms nothing more than couples’ aversion to taking wedding vows with a lawnmower blaring in the distance. The response makes no reference to projectiles being flung from the machine. To infer same, is disingenuous at best. The witness also prepared an affidavit in which he avers that there is a Building and Grounds Committee, and that no complaints had been brought to the attention of the Committee regarding the lawn being habitually littered with debris (R21-23). With regard to his own knowledge of the potential dangers afoot, witness testified that he had nary a clue. The following is the full and complete extent of the witness' testimony on the subject: Q: Mowing period. Whether it’s with a push-behind or a riding mower, would you consider that there are inherent risks in mowing, using a lawn mower? No, I use my lawnmower without any precautions, special precautions. I mean there are safeguards, like a shield that closes the chute, and with these safeguards I think it's a safe thing to use. I use my own earmuffs. A: Thus the only testimony from Defendant to support Plaintiffs claim that the lawn was "habitually strewn with debris," is Mr. Doniet's statement that you might possibly find some debris on the lawn at any given time and the prohibition against mowing during weddings. From these two remnants shoaled from the record, Appellant argues that the Defendant should be held 4 to a heightened standard of care because of its awareness of an "ongoing problem." Based on this record, there is insufficient proof of any ongoing problem to be aware of. When one actually reads the portions of the record cited by the Appellant, it becomes clear that they do little to establish the bold claims made, or warrant imposition of a higher standard of care than would normally be expected of a property owner who entrust its lawn care to a seasoned professional. Mr. Eginger does little more to advance Plaintiffs claim of a lawn "habitually strewn with debris." He admits that occasionally "leaves, paper and light things" come out of the chute, but never saw pebbles or sticks come out. (R209) He admits on occasion to finding cans or bottles on the lawn, but there is no indication that they were not successfully removed before mowing or that this had become a habitual problem. (R194-195) Upon further questioning to determine the full nature and extent of the debris, the witness answered as follows: Q: I call it a list you had mentioned a couple of things, I asked you if- did you ever finds cans, yes, bottles, yes, sticks, yes. Those few things, was that exclusive of, from time to time you could find any number of things on the lawn? Well nothing big — I never found any — you know just garbage.A: Whatever, broken pens, pieces of metal. Obviously I'm interested in this case. Q Not really. Not really.A: The witness also testified that a golf ball was once expelled from the chute and struck the hub cap of the car, parked on his sister-in-law's driveway. (R278-279) There is no testimony from Mr. Eginger to support the claim that he believed the lawn was "habitually strewn with debris" or that he shared this concern with anyone at the church. There is no requirement that a homeowner keep its lawn in pristine condition. The pictures in evidence show a verdant lawn. (R356-372) Finally, Appellant manufactures a Church "policy” regarding inspections, which in fact, exists nowhere in the record: Violation of this supposed policy, Appellant argues, is evidence of negligence on the part of Defendant. The argument is found on page 6 of Appellant's letter brief: "Plainly on this record, there is evidence to support the proposition that the church and Mr. Eginger violated their policy that mowing must be stopped when people were on or near the 5 lawn, and also failed to properly inspect the lawn before mowing. In this regard Defendant's failure to follow its own accepted practice has been sufficient to warrant a finding of summary judgment in favor of Plaintiff ” The only witness to testify on behalf of the Church was Mr. Doniet. The entirety of his testimony is contained on pages 142-181 in the Record on Appeal. The only "policy" testified to was prohibition against mowing the lawn during weddings, bah mitzvahs or other such religious occasions. There was no testimony regarding procedures for inspecting the lawn before mowing. Mr. Eginger has been mowing the lawn for 21 years without incident, so the Church's indifference to the methods and manner employed by him in the performance of his craft was readily understandable. Mr. Eginger did testify as to the procedure he employed, but there is no testimony that he ever discussed this procedure with Church officials or sought out their approval. Indeed the testimony was that he usually mowed when "no one was around," (R191) making it unlikely that anyone in the Church would know how he went about his business. His procedure was to remove any debris he saw before mowing (R220) and to stop if, once mowing, he saw some foreign object on the lawn (R220). He would perform a "walk-around" only for new customers (R219), but there is no testimony that this was to check for debris rather than to simply familiarize himself with the new landscape. He would remove any debris he saw on the lawn, which he did almost every time he mowed (R194). On the day in question, he did not recall seeing any debris (R-299) In any event, with regard to any specific "policy" the Church may have had concerning inspections, he stated quite succinctly as follows: Q: Now as part of your responsibility at Friends, did that include inspecting or looking over the lawn before you mowed the lawn? A: No. This denial, coupled with the absolute paucity of any testimony from Mr. Doniet on the subject, eviscerates any possibility based on this record, that the church had a "policy" in effect of inspecting the lawn prior to mowing. It is a fair inference based on Eginger's testimony, that Friends had no knowledge of, nor exercised any supervision over, Mr. Eginger's method and manner of work, nor did Mr. Eginger share his techniques of mowing with anyone from the Church. Never did the twains meet. 6 Appellants urges this Court to adopt a new heightened standard of care which would require "spotters" to walk in front of the mower, checking for debris as they go along, converting what was once a one man operation into a two man operation (R411). Appellant's assertion that "this is often done by commercial mowers" is found nowhere in the record. Clearly, this is not the standard of care generally applicable to this ubiquitous task. When the actual text from the Record on Appeal is read, verbatim with any sensible inferences that may be drawn therefrom, there is no support for Appellant's claim that the lawn was "habitually strewn with debris" or that the Church was aware of the situation or had any "policy" in effect with regard to inspecting the lawn before mowing. These allegations are sewn from whole cloth. The Church should not be held responsible for the acts of its independent contractor landscaper. There is no support for the claim that an exception should be made under the facts of this case, to the general "no liability rule." Appellant has failed to establish on this record, any extenuating circumstances. Both the lower court and the Appellate Division were correct in their rulings on this issue. The Church Defendant should not be liable for the alleged acts of its independent contractor. The Applicable Law Respondent agrees that Appellant has set forth the applicable law in this area. The general rule that a property owner is not liable for the negligent acts of its independent contractors is mired in a myriad of exclusions, so much so, that the oft quoted phrase is "it is now observed that the general rule is primarily important as a preamble to a catalogue of exceptions" Brothers v. New York State Electric, 11 NY3d 251. We assume the comment was made tongue in cheek. The exceptions are not without limitations. In fact the rule, as applied to property owners and independent contractors, is just a common sense sub-set of the general rule that property owners must maintain their property in reasonably safe condition, see Juarez v. Wavecrest, 88 NY2d 682, also Multiple Dwelling Law Section 78. Liability may be imposed vicariously because of the acts of its employees Lundberg v. State of New York, 25 NY2d 407, because of the acts of independent contractors, Kleeman v. Rheingold, 81 NY2d 270, or because the acts of third party tortfeasors, over which the owner can exercise some control. Crosslands v. New York City Transit Authority, 110 AD2d 148. Notice is the common thread running through all these cases. Essentially, the courts have held that a property owner cannot turn a blind eye to hazardous activities taking place under its own nose. The cases cited are self-revealing. Plaintiff cites a series of cases in which the courts rightly imposed liability based upon the actual knowledge of the ongoing conditions created by its independent contractors. Contrarily, in those cases in which notice could not be established, liability was denied, see 7 Early v. Clinton Hotels, 73 AD3d 559, Hamilton v. Rite Aid Pharmacy, 234 AD2d 778, Robinson v. Jewish Hospital, 275 AD2d 362. We start with a decision from our sister state of Ohio, which is of course not controlling, but may be informing, as this Court often looks to decisions from other jurisdictions when charting its own course. The case is directly on point. In Gore v. Ohio Department of Transportation, 119 Ohio Misc2d 138, Plaintiff was driving on a highway, when struck by an object thrown by commercial mower, which was mowing the grassy median of the highway. The operator of the mower was an independent contractor. The Plaintiff sought to hold the State liable, arguing that the activity in question was inherently dangerous. The Court disagreed, and found that the activity was not an inherently dangerous one for which the State should be held strictly liable. It reasoned 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. ODOT has no duty to inspect all interstate medians throughout the state prior to mowing grass, nor is it practicable for the state to carry such a burden. In sum, ODOT is not liable for the injuries sustained by plaintiff. Accordingly, plaintiffs motion is DENIED, defendant's motion is GRANTED, and the case is DISMISSED." As in the case sub-justice, the State did on occasion remove debris from the area primarily for aesthetic reason. Nonetheless, the State had no obligation to remove debris as a prelude to mowing, as this was expected to be the obligation of the landscaper. The fact that the State had on occasion, observed debris on the highway, and was aware of its potential existence, was of no moment. The independent contractor was charged with the duty of removing debris as part and parcel of its mowing operation. Clearly the danger posed in Gore, supra, mowing on the meridian of an interstate highway, is greater than danger posed of mowing a suburban lawn, removed from the highway. Nonetheless, the Ohio court found no grounds to deem this an inherently dangerous activity or to abrogate the rule of non-liability for the acts of independent contractors. The only New York decision to rule directly on injury from a lawnmower projectile is Wood v. Auburn Lodge, 12 Misc3d 683. It is a lower court case and is therefore not binding on this Court. It is again, however, instructive. In Wood, Plaintiffs vehicle was allegedly struck by a rock flung by Defendant's lawnmower. Defendant was mowing his property across the street. The Defendant in this case was the actual "mower," so the issue of independent contractors’ liability is not addressed. Nonetheless the court made a survey of foreign jurisdiction, finding none of them holding mowing to be an inherently dangerous activity. The lower court followed suit. Applying general principles of negligence to the case, the court found in favor of the Defendant, finding no 8 evidence that the Defendant knew or should have known of rocks in the area which could cause damage to passing vehicles. Appellant leans heavily on the case of Wright v. Tudor City, 276 NY 303, a vintage case from the Court of Appeals that is still cited with approval. In Wright, workers were cleaning mats with soap and water on the sidewalk of 42nd Street, and had been doing so for several months. A pedestrian slipped in front of the hotel, and sued for damages. Wright stands for the proposition that any task can be so poorly performed, so as to become inherently dangerous. Although cleaning mats with soap and water is not particularly hazardous, it becomes so when done in the middle of the Great White Way. The hotel had hired an independent contractor to perform the task. This had been going on in the manner described right outside the hotels doors for over 6 months. The Court had little trouble finding that management knew or should have known of the activity, and held the hotel liable for the acts of its independent contractor. In stark contrast, Mr. Eginger generally mowed during the week, or other times when no one was around. There is no testimony that anyone from the Church had ever actually observed him mowing, or that Defendant had ever observed debris on the lawn, other than Mr. Doniet's stray comment that it is possible that there might be some debris on the lawn at any given time. The case is clearly distinguishable on its facts. In a similar vain, Schwartz v. Merola Brothers, 209 NY 145, involves injury to an infant due to bags of terrazzo pebbles negligently stacked on the sidewalk in front of the Bank. The bags eventually tipped over, causing injury to the Plaintiff. The bags had been stacked in a precarious manner for over a week. The Court held that both the Bank-Owner and the Contractor were responsible for the accident. In Great Northern v. Milo, 123 AD3d 483, it was undisputed that a neighbor had warned Defendants of the dangers of saw dust spontaneously combusting if improperly stored in plastic bags. Despite the direct warning, the owner took no action, and the Court found it was given sufficient notice of the potential danger to hold it liable. In Baek v. Red Cap, 129 AD3d 752, the owner could be held liable, when a squeegee being used by an independent contractor fell off a scaffold, striking a pedestrian. The Court found an issue was raised as to whether the owner should have posted a warning sign on the sidewalk scaffold to alert pedestrian of the work being performed above. No court has ever held that posting a warning is necessary when mowing a lawn. Blessed v. Central Trust, 230 NY 351 involves the death of a worker installing doors on an elevator while the elevator was in service. The owner had specifically directed that the elevator remain in service while the work was in progress, thereby creating an inherently dangerous condition. Under these circumstances, the owner was responsible for the negligent acts of independent contractor's employee, who was primarily responsible for the occurrence. 9 Appellant adapts this holding and argues somewhat feebly, that the Church should not have allowed mowing to continue "when people were on or near the lawn" (p. 6 Appellant's letter brief ). No court has ever held that mowing should stop when vehicular traffic is passing in the adjoining street. It is readily apparent that all these cases involve ongoing dangerous conditions of which the owner was aware, and therefore, tacitly approved. The courts rightly imposed liability due to the owner’s failure to address the situation. Where there is no evidence that the owner was aware of the situation, or should have been aware of the situation, the courts have not hesitated to non-suit plaintiffs, Rosenberg, Equitable Life 79 Y2d 663, life insurance company not responsible for risks of medical test performed by independent physician, Davies v. Contel of New York, 187 AD2d 899, Defendant not responsible for acts of independent contractor in laying underground cable, despite complaints being made directly to Defendant regarding manner of work, work not found to be inherently dangerous, MacDonald v. Heuer, 253 AD2d 795, homeowner not responsible for slip and fall accident when freon leaked out when discarding freezer, as homeowner had hired independent contractor to remove freon, Robinson v. Jewish Hospital, 275 AD2d 362, practice of anesthesia was not so inherently dangerous that hospital would be liable for untoward result In the instant case, Appellant is unable to proceed past square one, as there is no testimony on this record that there was on ongoing dangerous condition, i.e., that the lawn was habitually strewn with debris. Having not established an "ongoing dangerous condition" the issue of notice is never reached and all the cases cited above are irrelevant. Non-Delemble Duty Appellant's second prong of its argument to avoid the "independent contractor bar" rests on the notion of a "non-delegable duty." His recitation of the law is sound. The facts of the case, however, do not justify such a result. The term "non-delegable duty” has been used in a variety of settings, and is an over-arching term covering a variety of legal doctrines. In essence it states, that while a particular task at hand can be delegated, responsibility for its proper performance cannot be. The duty is thought to be so crucial, that obligation for its proper performance cannot be avoided. As this Court has noted, there is no cut and dried determination of what makes a duty non-delegable. Each case must be viewed sui generis, Kleeman, supra, based upon the language of the statute Mas v. Two Bridges, 75 NY 680. The duty can arise from the performance of an activity that is inherently dangerous, see Wright supra, and thus Appellant's first argument is based on a sub-species of the general non-delegable duty rule. It may also arise from the dictates of a statute that requires a stringent standard of care. Labor Law 240 demands that workers be provided with a safe place to work, and violations of the Industrial Code will give rise to owners and general contractors’ 10 liability, regardless of fault, Ross v. Curtis-Palmer, 81 NY 2d 494. With regard to property owners, see Multiple Dwelling Law 78, Juarez supra. The legislation in questions is not a statute, but an ordinance, which generally carries less weight, and will not result in liability unless the regulations specifically states so. Bisontt v. Rockaway One, 47 AD3d 862. Prior to the enactment of Administrative Code 7-210, a property owner incurred no civil liability for failure to clear the abutting sidewalk of snow, notwithstanding a local code ordinance which imposed for fines by Department of Sanitation for failure to do so, Bisontt supra, This Court ruled that although a fine could attach, no third-party liability could follow, because the language of the regulation itself did not provide for same. This lead to the anomalous situation where an owner could be found liable for negligent snow removal, but no lability would attach if they did nothing at all, in direct defiance of the regulation. In the instant case, the penalty proscribed for noncompliance is possible community service (R405). It is thus clear that the local town board considered possible remedies, and declined to include among them, fines or civil liability. Had they wished to impose civil liability, they could have done so. Following the rule annunciated in Bisontt supra, Rochester v. Campbell, 123 NY 405, Colson v. Joseph E. Wood, 39 AD2d 571, it would appear therefore, that no liability should attach. Appellant acknowledges this reality in footnote #2 of his brief. The Court need not, however, reach that question, as the Appellant's argument is flawed ab initio, for two reasons; 1) the ordinance does not rise to the level of importance to warrant the status of a non-delegate duty and 2) the ordinance was not violated. We began with the second point first. Defendant Did Not Violate the Ordinance It is axiomatic that for liability to attach, there must be a violation of the statute or ordinance in question. The mere presence of the ordinance is necessary, but not in itself, sufficient to impose liability. It is the violation of the duty imposed by the ordinance that gives rise to the cause of action. The method of performing that duty is secondary, Schulman v. Con Edison, 33 AD2d 755. In the instant case, there is no proof that the ordinance was violated. There is no allegation that the grass was over 6" in height, or otherwise not being trimmed at least once every 3 weeks during "growing season.” In fact, the lawn was being mowed more frequently than required by law. Had the accident occurred because an overgrown lawn had impeded a driver's view of the roadway, a viable claim would be, at least theoretically possible. The instant occurrence has only a tangential relation to the ordinance in question. There is simply no proximate cause, Elliot v. New York, 95 NY2D 730. 11 This same situation has arisen in other context. Under Labor Law 240, scaffolds must be erected, and thereafter dismantled, to provide "proper protection." The duty is non¬ delegable. The statute however only comes into play when someone is working at a height that requires such protection Ross, supra. A worker who is in the process of erecting or dismantling a scaffold is not covered by the statute per se, simply because he is injured in the process of erecting or disassembling. This work itself is not covered by the statute unless it can be shown that the injury was caused by a height related occurrence, the sine qua none of the regulation. Kennedy v. McNay, 86 AD2d 597. Similarly, Administrative Code 7-210 requires a property owner to maintain the abutting sidewalk. This too is a non-delegate duty. Should the owner hire an independent contractor, who is in turn injured in the process of making necessary repairs, the owner cannot be held liable simply because the repairs were being made attendant to his non-delegable duty to fix the sidewalk. The act of fixing the sidewalk is not covered by the regulation, unless the worker was injured due to a defect in the sidewalk itself. This is precisely the argument being advanced here by Appellant; since the ordinance requires the lawn to be mowed, the owner is liable for any injury incurring during the act of mowing. Under Appellant's theory of the case, Mr. Eginger could make a claim against any homeowner he works for, as long as his injury was caused in furtherance of a non-delegable duty to keep the lawn under 6". While it is true that the Plaintiff was a third-party to the mowing operation, that does not imbue him with special privileges. He cannot hold the owner liable for the act of mowing itself. His claim comes to fruition only if the ordinance was violated, i.e., if the grass was too high. The ordinance in this case was never violated, nor is there any proximate cause between the alleged violation and the cause of the accident. Finally, not every ordinance, rule or regulation rises to the level of importance to be anointed a non-delegate duty. Many are not. There is no clear cut criteria for separating the wheat from the shaft. Plaintiff, as the proponent of the rule, has the burden of demonstrating that the duty imposed was meant to be a non-delegable duty Marigliano v. New York, 196 AD2d 33. As no legislative history is attached, there is nothing in this record to suggest the Fathers of Poughkeepsie meant it to be. It simply states the grass may grow no higher than 6" and must be cut at least every three weeks during growing season. It has the modest but salutary purpose of maintaining the aesthetic integrity of the neighborhood, and perhaps the salient feature of keeping property values high. There is no indication of any health or safety concerns. Appellant urges this Court to add this code section to the list of statutes, and in the instant case, local ordinances, which deserve recognition as non-delegable duties, and impose on homeowners an obligation that is not readily apparent from the plain text of the legislation. To do so would open the flood-gates to a myriad of ordinances. By way of quick example; Nassau 12 County Local Ordinance 6.01, inter alia, accumulation of vegetable matter in garbage, Ulster County local rule NYCRR 800.6 code of work place violence prevention. Violations of any of these rules would make the owner or municipality responsible for acts of independent contractors. The general rule of "no liability" would be winnowed down to a rarely seen exception. Plaintiff Has Not Established its Entitlement to Further Discovery Pursuant To CPLR 3212(f) Plaintiff claims that it was recently advised of new information that might lead to inculpatory evidence against Defendant. The new evidence comes in the form of an affidavit from Plaintiffs Counsel based upon a conversation he had with the mother of a previously disclosed witness. She suggests that the debris may have been secondary to construction work done previously on the Church's property. Information contained in an attorney's affirmation, who has no personal knowledge of the facts alleged, is inadmissible in opposition to a motion for summary judgment, Spearmon v. Times Square Stores, 96 AD2d 552, Zuckerman v. City, 49 NY2d 557. It has no probative value. Recognizing that the information arrived at the 11th hour, counsel still had one hour in which to act. There is no indication that Counsel sought an adjournment of the motion, or that such request was denied, so that Counsel could further investigate the claim and obtain the necessary affidavit in admissible form. Nor did Plaintiff subsequently obtain such an affidavit, and move to renew, based upon newly discovered evidence that they had diligently obtained pursuant to CPLR 2221, see Elder v. Elder, 21 AD3d 1055, Kaufman v. Kunis, 14 AD3d 542. The mere allegation, found second-hand in an attorney’s affirmation, is insufficient to warrant further discovery or to stave off submission of the underlying summary judgment motion. Conclusion For the foregoing reasons, the decisions below granting summary judgment to Respondent should be affirmed. Respectfully submitted, PARTNERSJEFFREY SA1 By: Robert cHSpevackRGS/mf 13 Pollack Pollack Isaac & DeCicco, LLP 225 Broadway, Suite 307 New York, New York 10007 Attn: Brian J. Isaac, Esq. cc: 14 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.13(c) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by § 500.1(h) is 5,660. Dated: April 18,2018 Respectfully submitted, JEFFRF & PARTNERS By: RoBerrCj. Spevack 15