The Court considered the following papers associated with Motion Seq. Nos. 008, 009, and 010, submitted on September 12, 2024: Papers: NYSCEF Doc. Nos.: Motion Seq. No. 008 Notice of Motion and Affirmation in Support By Defendant Mountainview Designs, LLC, with supporting papers and exhibits, filed June 28, 2024 208-228 Affirmation in Opposition By Plaintiff, with supporting papers and exhibits, filed August 12, 2024 279-282 Affirmation in Reply By Defendant Mountainview Designs, LLC, filed August 27, 2024 296 Motion Seq. No. 009 Notice of Motion and Affirmation in Support By Defendant Brooklyn Union Gas Company d/b/a National Grid NY, with supporting papers and exhibits, filed June 28, 2024 229-253 Affirmation in Opposition By Plaintiff, with supporting papers and exhibits, filed August 14, 2024 289-292 Reply Affirmation By Defendant Brooklyn Union Gas Company d/b/a National Grid NY, filed September 10, 2024 298 Motion Seq. No. 010 Notice of Motion and Memorandum of Law in Support By Defendant Perciballi Industries, Inc., with supporting papers and exhibits, filed June 29, 2024 255-275 Affirmation in Opposition By Plaintiff, with supporting papers and exhibits, filed August 12, 2024 284-287 Memorandum of Law in Reply By Defendant Perciballi Industries, Inc., filed September 3, 2024 297 DECISION & ORDER Upon the foregoing papers, the motion by defendant Mountainview Designs, LLC (hereinafter “Mountainview”) for judgment as a matter of law dismissing Plaintiff’s Complaint and all cross-claims against Mountainview is DENIED, the motion by defendant Brooklyn Union Gas Company d/b/a National Grid NY (hereinafter “BUG”) for judgment as a matter of law dismissing all claims and cross-claims against BUG is GRANTED, and the motion by defendant Perciballi Industries, Inc. (hereinafter “Perciballi”) for judgment as a matter of law dismissing Plaintiff’s Complaint in its entirety is GRANTED as to the claims asserted against Perciballi.1 Facts This personal injury action arises from an accident that occurred on February 18, 2020, in front of 19 Roosevelt Street, Staten Island, New York (hereinafter “Subject Premises”). Between approximately May 2019 and September 2020, the Subject Premises underwent construction, wherein the existing house was demolished, and four new houses were built in its place. Mountainview owned the property and oversaw the construction project. Perciballi demolished the existing house, excavated the foundation, and backfilled the land. BUG disconnected the existing gas line prior to the demolition, then later returned to install new gas lines to the four new houses. At approximately 8:30 pm on February 18, 2020, Plaintiff Adam DiBartolomeo (hereinafter “Plaintiff’) was working as a New York City Department of Sanitation worker, collecting garbage along Roosevelt Street. Plaintiff walked from the adjacent property to the front of the Subject Premises to climb onto the garbage truck. As Plaintiff placed his left foot on the truck, his right foot slipped and his legs split apart, causing him to suffer various injuries. Plaintiff’s testimony as to where he slipped and what he slipped on changed over the course of his three depositions, taken on June 22, 2022, August 19, 2022, and September 25, 2023, respectively. Plaintiff testified at his first deposition that on the date of the incident, he had difficulty differentiating between the sidewalk and the roadway in front of the Subject Premises. Plaintiff stated he was walking on a combination of the two when he slipped on debris consisting of broken gravel, broken asphalt, and what appeared to be broken curb. Plaintiff identified the location where he fell in two photographs, which appears to be in the roadway against the curbline abutting the Subject Premises. Plaintiff subsequently changed his testimony at his third deposition, indicating he was walking on the sidewalk toward the roadway when he slipped on debris consisting of dusty rocks and broken sidewalk. Plaintiff’s testimony as to whether he observed the debris prior to slipping also differs. Plaintiff initially testified in his first and third depositions that he did not see the debris before slipping. However, Plaintiff later stated during his third deposition that he did observe the debris, but “didn’t see the hazard as it actually was” (NYSCEF Doc. No. 220, plaintiff’s EBT transcript — 9-25-23, at 54, lines 15-16). John Najmy, defendant Mountainview’s sole member, testified at two separate depositions, on September 30, 2022, and November 15, 2023, respectively. Mr. Najmy stated he managed both the construction at the Subject Premises and the property itself. Mr. Najmy testified that at the time of Plaintiff’s accident, there was in effect no sidewalk abutting the Subject Premises. Mr. Najmy stated the sidewalk area was dug up to run utilities to the new construction, and that construction trailer and trucks used the sidewalk, and the area where Plaintiff indicated he slipped, as a driveway to and from the construction site and the abutting roadway. Mountainview did not perform any maintenance or cleaning work on the abutting sidewalk or roadway while construction was ongoing. At his first deposition, Mr. Najmy testified that BUG dug a trench from the abutting roadway, over the abutting sidewalk, and onto the Subject Premises. The photographs provided as evidence depict a trench, which appears to be a short distance away from the area where Plaintiff indicated he fell, on top of which is an unmarked barrier. Mr. Najmy testified he knew the trench was dug by BUG because in his experience, BUG places such barriers on their job sites. However, Mr. Najmy did not observe when the trench was dug or who dug it. Mr. Najmy admitted during his second deposition that the condition depicted in the photographs existed after BUG disconnected the gas service and after Perciballi completed its demolition. Mr. Najmy also admitted BUG did not do any work between when the Perciballi completed the demolition and when Mr. Najmy submitted applications for new gas services to be connected on March 3, 2020. BUG excavated the roadway in front of the Subject Premises on or about March 12, 2019, to disconnect the existing gas line. BUG’s consultant, Walter Stone, testified BUG excavated an area approximately six feet away from the curb line. BUG’s paving contractor restored the excavation to its original condition on April 1, 2019. BUG did not return to the Subject Premises to connect new gas lines until after March 13, 2020, when a street opening permit was issued to BUG. Perciballi completed demolishing, excavating, and backfilling the Subject Premises on May 30, 2019. On that date, the Department of Buildings signed off on Perciballi’s work after inspecting the Subject Premises to ensure that the site was graded safely and that there was no damage to anything outside the construction fence that surrounded the Subject Premises and ran along the abutting sidewalk. After completing the work, but prior to requesting the Department of Buildings sign off, Perciballi’s owner, Michael Perciballi, inspected the abutting sidewalk and roadway and did not observe any tripping hazards, potholes, erosion, or debris. Mr. Najmy confirmed that when Perciballi completed its work, the abutting sidewalk was left in an acceptable condition. Perciballi do any work at the Subject Premises after May 30, 2019. Summary Judgment Standard To obtain the drastic remedy of summary judgment, the moving party must make “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986], citing Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Stillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The court must accord the non-moving party the benefit of every favorable inference that may be drawn from the pleadings and submissions (Jacobsen v. New York City Health and Hospitals Corp., 22 NY3d 824, 833 [2014], quoting William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475 [2013]; Nicklas v. Tedlen Realty Corp., 305 AD2d 385, 386 [2d Dept 2003], citing Myers v. Fir Cab Corp., 64 NY2d 806 [1985]). If the moving party fails to meet its initial burden, the court must deny the motion “regardless of the sufficiency of the opposing papers” (Alvarez, 68 NY2d at 324, citing Winegrad, 64 NY2d at 853; see Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012]). However, if the moving party does meet its burden, the burden shifts to the non-moving party “to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (id., citing Zuckerman, 49 NY2d at 562; Vega, 18 NY3d at 503). Thus, summary judgment is appropriate only when no material and triable issues of fact remain (Paulin v. Needham, 28 AD3d 531, 531 [2d Dept 2006], quoting Stretch v. Tedesco, 263 AD2d 538, 538 [1999]). Mountainview’s Motion for Summary Judgment Mountainview argues it is entitled to summary judgment dismissing the Complaint and all cross-claims against it because the alleged defect upon which Plaintiff fell is on the public roadway, which Mountainview asserts it is not responsible to maintain, and, alternatively, because the alleged defect was open and obvious and not inherently dangerous as a matter of law. Section 7-210 of the Administrative Code of the City of New York shifts tort liability for injuries resulting from defective sidewalks from the City to abutting property owners (see Vucetovic v. Epsom Downs, Inc., 10 NY3d 517 [2008]; Zak v. City of New York, 192 AD3d 734, 735 [2d Dept 2021]). The statute imposes onto the property owner a nondelegable duty to maintain the sidewalk in a reasonably safe condition (Xiang Fu He v. Troon Management, Inc., 34 NY3d 167, 169, 171 (2019). “In order for a property owner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective or dangerous condition upon the property, it must be established that the property owner ‘affirmatively created the condition or had actual or constructive notice of its existence’” (Savitz v. Lido Knitting, Inc., 199 AD3d 733, 734 [2d Dept 2021], quoting Vantroba v. Zodiaco, 193 AD3d 1014, 1015 [2021] [additional citations omitted]). “[A] property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged dangerous or defective condition nor had actual or constructive notice of its existence (id., citing Wittman v. Nespola, 190 AD3d 1012, 1013 [2021], Williams v. Island Trees Union Free Sch. Dist., 177 AD3d 936, 937 [2019]). While the City of New York ordinarily is responsible to maintain and repair its public roadways (Rodriguez v. City of New York, 188 AD3d 505, 505 [1st Dept 2020], citing Administrative Code of City of New York §7-201 [a], [c]), a property owner may be held liable for injuries occurring in the abutting roadway when it actually created the dangerous condition…[or] made a special use of the public roadway” (Gerena v. Town of Brookhaven, 280 AD2d 450, 451 [2d Dept 2001], citing Yass v. Deepdale Gardens, 187 AD2d 506 [1992] and Kaufman v. Silver, 90 NY2d 204 [1997]). Viewing the facts in the light most favorable to Plaintiff, Mountainview failed to meet its initial burden to demonstrate its entitlement to summary judgment. There remains a question of material fact as to whether Plaintiff fell in the roadway or on the sidewalk abutting the Subject Premises. Mountainview admitted it had notice of the dangerous or defective condition and that did not maintain or clean the abutting sidewalk or roadway, and failed to eliminate all triable issues of fact as to whether it affirmatively created the dangerous or defective condition on either the sidewalk or the roadway. Moreover, while a property owner need not warn or project against open and obvious conditions that are not inherently dangerous as a matter of law (Fishelson v. Kramer Props., LLC, 133 AD3d 706, 707 [2d Dept 2015], quoting Surujnaraine v. Valley Stream Cent. High School Dist., 88 AD3d 866, 866 [2011] [additional citations and internal quotation marks omitted]), “proof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff’s comparative negligence” (Cupo v. Karfunkel, 1 AD3d 48, 52 [2d Dept 2003]). “[W]hether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for a jury” (Lazic v. Trump Vil. Section 3, Inc., 134 AD3d 776, 776 [2d Dept 2015]). Indeed, “a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured…for example, by other objects or by inadequate illumination” (Barone v. Risi, 128 AD3d 874, 875 [2d Dept 2015], citing Mazarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008] [additional citations omitted]; Russo v. Home Goods, Inc., 119 AD3d 924, 925 [2014] [citations omitted]). Here, Mountainview failed to demonstrate that the alleged condition was open and obvious and not inherently dangerous, based on Plaintiff’s testimony that it was dark at the time of his accident and that he did not fully appreciate the nature of the hazard. Accordingly, Mountainview’s motion for summary judgment is denied. BUG and Perciballi’s Motions for Summary Judgment Both BUG and Perciballi made a prima facie showing of their entitlement to judgment as a matter of law. “Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 138 [2002], citing Darby v. Compagnie Natl. Air France, 96 NY2d 343, 347 [2001] [additional citations omitted]). “[L]iability for a dangerous [or defective] condition on real property must be predicated upon ownership, occupancy, control, or special use of that property” (Chernoguz v. Mirrer Yeshiva Cent. Inst., 121 AD3d 737, 738 [2d Dept 2014], quoting Gover v. Mastic Beach Prop. Owners Assn., 57 AD3d 729, 730 [2008] [additional citations omitted]). Generally, “a contractual obligation will not give rise to tort liability in favor of a third party” (Repetto v. Alblan Realty Corp., 97 AD3d 735, 736 [2d Dept 2012], citing Espinal, 98 NY2d at 138 [additional citations omitted]). However, “when a contractor, in the performance of its contractual obligations, has created or exacerbated a dangerous condition, tort liability may follow” (id., citing Espinal at 142-143). With respect to BUG, the evidence demonstrates BUG did not own, occupy, control, or make special use of the Subject Premises, the abutting sidewalk, or the abutting roadway. Nor did BUG create or exacerbate the dangerous condition Plaintiff alleges caused his accident. BUG established that it excavated the roadway on March 12, 2019, and that its contractor restored the excavated area to its original condition by April 1, 2019, approximately two months before Perciballi completed its demolition work. In opposition, Plaintiff failed to raise a triable issue of fact. Plaintiff’s expert’s report, which is unsworn, is not competent proof of the assertions made therein and is insufficient to establish BUG’s liability as a matter of law (see Halcyon Constr. Corp. v. Strong Steel Corp., 199 AD3d 898, 899 [2d Dept 2021], citing Peters v. Colwell, 61 AD3d 729, 731 [2009], 1212 Ocean Ave. Hous. Dev. Corp. v. Brunatti, 50 AD3d 1110, 1112 [2008]). Further, Mountainview’s testimony that BUG dug a trench from the roadway to the Subject Premises is conclusory and is not based on Mr. Najmy’s observation or memory of the area or BUG’s work. Mr. Najmy admitted that BUG completed its excavation prior to Perciballi beginning its work and did return to do work at the Subject Premises until after Plaintiff’s accident. Both Mr. Najmy and Mr. Perciballi testified that the area was in an acceptable condition when Perciballi completed its work approximately two months after BUG restored the roadway and months prior to Plaintiff’s accident. Even if BUG did dig the trench, the trench identified in the photographs does not encompass the area Plaintiff identified as the location of his accident. Thus, BUG’s motion for summary judgment dismissing all claims and cross-claims against it is granted. With respect to Perciballi, the evidence demonstrates Perciballi did not own, occupy, control, or make special use of the Subject Premises, the abutting sidewalk, or the abutting roadway. Nor did Perciballi create or exacerbate the dangerous condition Plaintiff alleges caused his accident. Indeed, the evidence demonstrates the sidewalk and roadway were in good repair when Perciballi completed its work, months prior to Plaintiff’s accident. In opposition, Plaintiff failed to raise a triable issue of fact. Thus, Perciballi’s motion for summary judgment dismissing Plaintiff’s Complaint in its entirety is granted as to those claims asserted against Perciballi. Accordingly, it is ORDERED that Mountainview motion for judgment as a matter of law dismissing Plaintiff’s Complaint and all cross-claims asserted against Mountainview (Motion Seq. No. 008) is denied, and it is further ORDERED that BUG’s motion for judgment as a matter of law dismissing all claims and cross-claims against BUG (Motion Seq. No. 009) is granted, and it is further ORDERED that Perciballi’s motion for judgment as a matter of law dismissing the Complaint in its entirety (Motion Seq. No. 010) is granted as to those claims asserted against Perciballi, and it is further ORDERED that those causes of action and allegations contained in Plaintiff’s Complaint in reference to Perciballi and BUG are dismissed, and it is further ORDERED that those cross-claims and allegations contained in Perciballi’s Answer in reference to BUG are dismissed, and it is further ORDERED that the Clerk shall mark its records accordingly. Dated: November 14, 2024
