| DiLapi v Saw Mill Riv., LLC |
| 2014 NY Slip Op 08315 [122 AD3d 896] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| Anthony DiLapi, Appellant-Respondent, v SawMill River, LLC, Respondent-Appellant, and Westchester Manor Corp. et al.,Respondents. |
Proner & Proner, New York, N.Y. (Tobi R. Salottolo of counsel), forappellant-respondent.
Lori D. Fishman, Tarrytown, N.Y. (Daniel D. Flynn of counsel), forrespondent-appellant and respondent San Roc Catering Corp.
McCabe, Collins, McGeough & Flower, LLP, Carle Place, N.Y.(Patrick M. Murphy of counsel), for respondent Westchester Manor Corp.
In an action to recover damages for personal injuries, (1) the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Westchester County(Giacomo, J.), entered December 21, 2012, as granted that branch of the motion of thedefendants Saw Mill River, LLC, and San Roc Catering Corp. which was for summaryjudgment dismissing the complaint insofar as asserted against the defendant San RocCatering Corp., and the separate motion of the defendant Westchester Manor Corp. forsummary judgment dismissing the complaint insofar as asserted against it, and thedefendant Saw Mill River, LLC, cross-appeals, as limited by its brief, from so much ofthe same order as denied that branch of its motion which was for summary judgmentdismissing the complaint insofar as asserted against it, and (2) the plaintiff appeals, aslimited by his brief, from so much of an order of the same court entered July 9, 2013, as,upon renewal, granted that branch of the motion of the defendants Saw Mill River, LLC,and San Roc Catering Corp. which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Saw Mill River, LLC, and denied his crossmotion for leave to renew his opposition to that branch of the motion of those defendantswhich was for summary judgment dismissing the complaint insofar as asserted againstthe defendant San Roc Catering Corp., and the separate motion of the defendantWestchester Manor Corp. for summary judgment dismissing the complaint insofar asasserted against it, and the defendant Saw Mill River, LLC, cross-appeals from so muchof the order entered July 9, 2013, as granted that branch of its motion which was tovacate its default in answering or appearing in the action only on the condition thatnonparty Lori Fishman, the attorney for Saw Mill River, LLC, pay a sanction in the sumof $2,500 to the Lawyer's Fund for Client Protection of New York.
Ordered that the appeal by the defendant Saw Mill River, LLC, from so much of theorder entered December 21, 2012, as denied that branch of its motion which was forsummary judgment dismissing the complaint insofar as asserted against it is dismissed, asthat portion of the order was superseded by the order entered July 9, 2013, made uponrenewal; and it is further,
[*2] Ordered thatthe order entered December 21, 2012, is reversed insofar as reviewed, on the law, and themotion of the defendants Saw Mill River, LLC, and San Roc Catering Corp. forsummary judgment dismissing the complaint insofar as asserted against the defendantSan Roc Catering Corp., and the separate motion of the defendant Westchester ManorCorp. for summary judgment dismissing the complaint insofar as asserted against it aredenied; and it is further,
Ordered that the appeal by the plaintiff from so much of the order entered July 9,2013, as denied his cross motion for leave to renew his opposition to the motion of thedefendants Saw Mill River, LLC, and San Roc Catering Corp. for summary judgmentdismissing the complaint insofar as asserted against the defendant San Roc CateringCorp., and the separate motion of the defendant Westchester Manor Corp. for summaryjudgment dismissing the complaint insofar as asserted against it is dismissed as academicin light of our determination on the appeal from the order entered December 21, 2012;and it is further,
Ordered that the order entered July 9, 2013, is reversed insofar as reviewed on theappeal and insofar as cross-appealed from, on the law, upon renewal, that branch of themotion of the defendants Saw Mill River, LLC, and San Roc Catering Corp. which wasfor summary judgment dismissing the complaint insofar as asserted against the defendantSaw Mill River, LLC, is denied, and so much of the order entered July 9, 2013, asconditioned the granting of that branch of the motion of those defendants which was tovacate Saw Mill River, LLC's default in answering or appearing in the action on thepayment of a sanction in the sum of $2,500 to the Lawyer's Fund for Client Protection ofNew York is vacated; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendantsappearing separately and filing separate briefs.
On March 29, 2009, the plaintiff was installing a telephone in the basement of acatering hall owned by the defendant Saw Mill River, LLC (hereinafter Saw Mill), whenhe allegedly was exposed to carbon monoxide. He commenced this action against SawMill, as well as San Roc Catering Corp. (hereinafter San Roc), and Westchester ManorCorp. (hereinafter Westchester Manor), the current and former tenants, respectively, ofSaw Mill. The plaintiff claimed, based on a conversation with Enrico Mareschi, ashareholder of Westchester Manor, that the cause of the carbon monoxide leak was abackup in the boiler and blockage of an exhaust pipe. Saw Mill and San Roc movedtogether for summary judgment dismissing the complaint insofar as asserted againstthem. As part of their papers, they submitted the deposition testimony of AnthonyDeLillis, the owner of Saw Mill and a shareholder in San Roc, who, when asked if, priorto the plaintiff's accident, anyone had ever apprised him of the presence of carbonmonoxide in or around the basement area, answered "yes." Westchester Manor separatelymoved for summary judgment dismissing the complaint insofar as asserted against it. Theplaintiff opposed the motions, arguing that, based on DeLillis's admission during hisdeposition, the defendants had failed to eliminate all triable issues of fact as to actualnotice of the alleged dangerous condition. The plaintiff further argued that, in any event,based on the doctrine of res ipsa loquitur, a triable issue of fact existed as to whether thedefendants were negligent. In reply, Saw Mill and San Roc did not deny DeLillis'sadmission, but argued that it was too vague to raise an issue of fact as to notice. After themotions were fully submitted, counsel for Saw Mill and San Roc sent a letter to the courtalerting it to the fact that DeLillis's answer had been erroneously transcribed, and that hehad, in fact, answered "no" to the above question, as supported by a letter from the courtreporter who had reviewed the audio file. In addition, Saw Mill and San Roc submitted asurreply affirmation to the court, arguing that the corrected deposition testimonyestablished, as a matter of law, that notice was lacking.
In an order entered December 21, 2012, the Supreme Court denied that branch of themotion of Saw Mill and San Roc which was for summary judgment dismissing thecomplaint insofar as asserted against Saw Mill because a default judgment had beenentered against it, and that judgment was never vacated. However, the Supreme Courtgranted that branch of the motion of Saw Mill and San Roc which was for summaryjudgment dismissing the complaint insofar as asserted against San Roc, holding that SanRoc established, prima facie, based on the corrected deposition testimony of DeLillis,that it lacked actual notice of the alleged dangerous condition, and the plaintiff failed toraise a triable issue of fact. The Supreme Court also granted Westchester Manor's motionfor summary judgment dismissing the complaint insofar as asserted againstit.
[*3] Saw Mill and San Roc moved to vacateSaw Mill's default and, thereupon, for leave to renew that branch of their motion whichwas for summary judgment dismissing the complaint insofar as asserted against SawMill. In support of the motion, Saw Mill provided a stipulation between the partieswithdrawing the plaintiff's motion for a default judgment against Saw Mill, which hadbeen filed with the Supreme Court prior to its issuance of an order awarding the plaintiffa default judgment against Saw Mill. The plaintiff did not oppose that branch of themotion which was for leave to renew, but did oppose that branch of the motion whichwas for summary judgment dismissing the complaint insofar as asserted against SawMill. In addition, the plaintiff cross-moved for leave to renew his opposition to thatbranch of the motion of Saw Mill and San Roc which was for summary judgmentdismissing the complaint insofar as asserted against San Roc, and the separate motion ofWestchester Manor for summary judgment dismissing the complaint insofar as assertedagainst it. In support, the plaintiff provided an affidavit from an expert addressing, inpart, the issue of constructive notice which, the plaintiff argued, was not submitted aspart of his prior opposition because of DeLillis's admitting to having actual notice.
In an order entered July 9, 2013, the Supreme Court granted that branch of themotion of Saw Mill and San Roc which was to vacate the default judgment enteredagainst Saw Mill and, upon renewal, granted that branch of their motion which was forsummary judgment dismissing the complaint insofar as asserted against Saw Mill.However, the Supreme Court sanctioned Saw Mill's attorney $2,500 for the failure tonotify the court of the withdrawal of the plaintiff's motion for a default judgment. TheSupreme Court denied the plaintiff's motion for leave to renew his opposition to thatbranch of the motion of Saw Mill and San Roc which was for summary judgmentdismissing the complaint insofar as asserted against San Roc, and the separate motion ofWestchester Manor for summary judgment dismissing the complaint insofar as assertedagainst it.
The Supreme Court erred in granting the motion of Westchester Manor for summaryjudgment dismissing the complaint insofar as asserted against it and that branch of themotion of Saw Mill and San Roc which was for summary judgment dismissing thecomplaint insofar as asserted against San Roc. In light of DeLillis's deposition testimony,albeit erroneously transcribed, they failed to meet their prima facie burden ofestablishing, prima facie, that they lacked actual notice of the alleged dangerouscondition (see Moshe K. v NuKol Tuv, Inc., 98 AD3d 652 [2012]). While a corrected copy of his depositiontestimony was submitted as part of a letter to the Supreme Court and in a surreplyaffirmation, the plaintiff never had an opportunity to respond to this corrected evidence(see Miterko v Peaslee, 80AD3d 736, 737 [2011]; cf.Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778 [2010]),and a defendant cannot meet its prima facie burden by submitting evidence for the firsttime in reply or, in this case, surreply (see Tingling v C.I.N.H.R., Inc., 74 AD3d 954, 956 [2010]).In any event, Westchester Manor and San Roc failed to, establish, prima facie, that theylacked constructive notice of the alleged dangerous condition (see Moshe K. v NuKol Tuv, Inc., 98 AD3d at 652; see generally Dwyer v West Bradford Corp.,188 AD2d 813 [1992]).
The Supreme Court also erred in granting, upon renewal, that branch of the motionof Saw Mill and San Roc which was for summary judgment dismissing the complaintinsofar as asserted against Saw Mill, as Saw Mill also failed to meet its burden ofestablishing prima facie that it lacked constructive notice of the alleged dangerouscondition (see Moshe K. v Nu Kol Tuv, Inc., 98 AD3d at 652; see generallyDwyer v West Bradford Corp., 188 AD2d at 813).
The Supreme Court should not have imposed a sanction against the attorney for SawMill, since the court's finding that counsel never notified it of the withdrawal of theplaintiff's motion for a default judgment against Saw Mill prior to the issuance of anorder granting that relief is belied by the record (cf. 22 NYCRR 130-1.1 [c][2]).
In light of the foregoing, the appeal by the plaintiff from so much of the orderentered July 9, 2012, as denied his cross motion for leave to renew his opposition to themotion of Saw Mill and San Roc for summary judgment dismissing the complaint insofaras asserted against San Roc, and the separate motion of Westchester Manor for summaryjudgment dismissing the complaint insofar as asserted against it, has been renderedacademic. Skelos, J.P., Dickerson, Chambers and Sgroi, JJ., concur.