| Cortez v Northeast Realty Holdings, LLC |
| 2010 NY Slip Op 08057 [78 AD3d 754] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Maria Cortez, as Administratix of the Estate of Jorge M. Rojas,Also Known as Jorge Martin Rojas, Respondent-Appellant, v Northeast RealtyHoldings, LLC, Appellant-Respondent, and Precision Lawncare & Landscaping, Inc.,Respondent-Appellant, et al., Respondent. |
—[*1] Silver, Forrester, Schisano & Lesser P.C., New Windsor, N.Y. (Sarah R. Dreyer and Darryl J.Dreyer of counsel), for plaintiff-respondent-appellant. Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), fordefendant-respondent-appellant. Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell, Dennis J. Dozis, andDouglas J. Donsky of counsel), for respondent.
In an action, inter alia, to recover damages for wrongful death, the defendant NortheastRealty Holdings, LLC, appeals, as limited by its brief, from so much of an order of the SupremeCourt, Orange County (Owen, J.), dated June 18, 2009, as denied its cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it and deniedits separate cross motion to preclude the use of the plaintiff's engineering expert's affidavit on themotion for summary judgment and at trial and to preclude the expert's testimony at trial, thedefendant Precision Lawncare & Landscaping, Inc., cross-appeals, as limited by its brief, from somuch of the same order as denied its motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against it, and the plaintiff cross-appeals, as limited by herbrief, from so much of the same order as denied her separate cross motions for summaryjudgment on the issue of liability against the defendant Northeast Realty Holdings, LLC, and thedefendant National Realty & Development Corp., and the defendant Precision Lawncare &Landscaping, Inc., and granted that branch of the cross motion of National Realty &Development Corp. which was for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the appeal by the defendant Northeast Realty Holdings, LLC, from so much ofthe order as denied that branch of its cross motion which was to preclude the use of the plaintiff'sengineering expert's affidavit at trial and the expert's testimony at trial is dismissed; and it isfurther,
Ordered that the order is affirmed insofar as reviewed on the appeal by the defendantNortheast Realty Holdings, LLC; and it is further,[*2]
Ordered that the order is affirmed insofar ascross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant National Realty & DevelopmentCorp., payable by the plaintiff and the defendants Northeast Realty Holdings, LLC, and PrecisionLawncare & Landscaping, Inc.
The plaintiff's decedent drowned when a riding lawnmower he was operating as an employeeof the defendant Precision Lawncare & Landscaping, Inc. (hereinafter Precision), on propertyowned by the defendant Northeast Realty Holdings, LLC (hereinafter Northeast), fell into aretention pond at the base of a hill and tipped over, trapping him underneath. The defendantNational Realty & Development Corp. (hereinafter National), which managed portions of thebusiness park where the subject property was located, contracted with Precision for thelandscaping services. The plaintiff brought this action against Northeast, National, and Precisionto recover damages for negligence, violations of the Labor Law, and wrongful death.
The Supreme Court properly denied Northeast's cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and the plaintiff'scross motion for summary judgment on the issue of liability against Northeast. "A landowner hasa duty to exercise reasonable care in maintaining [its] property in a safe condition under all of thecircumstances, including the likelihood of injury to others, the seriousness of the potentialinjuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presenceon the property" (Groom v Village ofSea Cliff, 50 AD3d 1094, 1094 [2008] [internal quotation marks omitted]; see Bassov Miller, 40 NY2d 233, 241 [1976]; Doyle v State of New York, 271 AD2d 394, 395[2000]). "[P]roof that a dangerous condition is open and obvious does not preclude a finding ofliability against a landowner for the failure to maintain the property in a safe condition but isrelevant to the issue of the plaintiff's comparative negligence" (Cupo v Karfunkel, 1 AD3d 48, 52[2003]; see Luksch v Blum-RohlFishing Corp., 3 AD3d 475, 477 [2004]).
Northeast established, as a matter of law, that the plaintiff's decedent appreciated the riskpresented by the use of the riding mower on the hill surrounding the retention pond and wouldreadily have observed the danger through the reasonable use of his senses (see Doyle v Stateof New York, 271 AD2d at 395). However, there remain triable issues of fact as to whetherNortheast maintained the subject property and, in particular, the hill around the pond, in areasonably safe condition, specifically with respect to, inter alia, the grading of the hill. Therealso remain triable issues of fact as to whether the conduct of the plaintiff's decedent in operatingthe mower on the slope of the hill was the sole proximate cause of the accident.
The appeal from so much of the order as denied that branch of the cross motion of thedefendant Northeast Realty Holdings, LLC, which was to preclude the use of the plaintiff'sengineering expert's affidavit at trial and the expert's testimony at trial must be dismissed becauseit concerns an evidentiary ruling which, even when made in advance of trial on motion papers, isnot appealable as of right or by permission (see Cotgreave v Public Adm'r of Imperial County[Cal.], 91 AD2d 600, 601 [1982]; CPLR 5701; Barnes v Paulin, 52 AD3d 754 [2008]; Citlak v Nassau County Med. Ctr., 37AD3d 640 [2007]; Chateau Rive Corp. v Enclave Dev. Assoc., 283 AD2d 537[2001]).
The Supreme Court properly denied that branch of Northeast's cross motion which was topreclude the use of the plaintiff's engineering expert's affidavit on the motion for summaryjudgment, since the plaintiff identified the expert in her pretrial disclosure and served theaffidavit after filing a note of issue attesting to the completion of discovery (cf. Dawson vCafiero, 292 AD2d 488, 489 [2002]; Ortega v New York City Tr. Auth., 262 AD2d470, 470 [1999]).
The Supreme Court properly denied Precision's motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it, as well as the plaintiff's motion forsummary judgment on the issue of liability against Precision. There are triable issues of fact as towhether Precision adequately instructed the plaintiff's decedent on the safe use of the ridingmower in the area of the hill leading down to the retention pond, and as to whether a protectiveroll bar had earlier been removed from the riding mower.
Finally, the Supreme Court properly granted that branch of National's cross motion [*3]which was for summary judgment dismissing the complaint insofaras asserted against it. National demonstrated, prima facie, that it did not own, occupy, control, orhave special use of the subject property (see Morrison v Gerlitzky, 282 AD2d 725[2001]; Golds v Del Aguila, 259 AD2d 942 [1999]; Millman v Citibank, 216AD2d 278, 278 [1995]), so as to be liable in common-law negligence. National alsodemonstrated, prima facie, that it was not an "owner" for purposes of the Labor Law because itdid not have an interest in the property (see Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009];Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 618 [2008]; Ryba v Almeida, 27 AD3d 718,719 [2006]; Billman v CLF Mgt.,19 AD3d 346, 347 [2005]; Copertino v Ward, 100 AD2d 565, 566 [1984];Ogden v City of Hudson Indus. Dev. Agency, 277 AD2d 794, 795 [2000]; seealso Labor Law § 200). In opposition, the plaintiff failed to raise a triable issue of fact.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Dillon, J.P., Florio, Angiolillo and Dickerson, JJ., concur.