Motion by defendant/third party plaintiff, LI Project LLC, pursuant to CPLR 3212, for an Order granting summary judgment dismissing the complaint of the plaintiffs, Denise Fagan and Tim Fagan, or alternatively for an Order pursuant to CPLR 3215 granting a default judgment against third party defendants K&B Developers, Inc., Long Island Realty & Development, Ltd. and K&B Home Development, Inc., and, for an Order, preserving a 911 tape relating to the subject accident is determined as follows:

This action arises from an accident on December 16, 2004 at approximately 9:00 p.m. Plaintiff, Denise Fagan, allegedly sustained personal injuries when she fell upon property owned by the defendant real estate developer, LI Project LLC [*2]("LI Project"). At the time of this accident, defendant, LI Project was the owner of the land where plaintiff fell. The property is located at 84 Park Avenue in Freeport, New York (the "subject property"). The subject property backs up to plaintiffs' property - 402 Pine Street, Freeport, New York.

In June 2005, plaintiffs commenced this action claiming that defendant, LI Project, was negligent in, inter alia, allowing a defective condition (a ten-foot hole in the ground) to exist upon its property, in failing to take reasonable steps or any steps to insure the safety of the plaintiff and other members of the public who are lawfully at that place, in failing to provide adequate lighting and in failing to provide the plaintiff with a safe means of walking upon the property.

At deposition, Denise Fagan, described defendants' property as a "vacant lot" that was separated from her property by a chain link fence approximately four feet high. The fence runs the entire length of the property such that the only way to go directly from her property to the defendants' property is to walk to the end of the fence and then through the hedges on defendants' property along Pine Street. Denise testified that she was aware that during the months preceding her accident, the structures on defendants' property, i.e., a house and a garage, were in the process of being torn down. She testified that the house on defendants' property was demolished three weeks prior to her accident and that the garage followed in August 2004. She stated that she watched, heard and saw the demolition of the structures. Construction materials and debris from the demolition was being put into a dumpster on the defendant's property.

Denise Fagan testified that on December 16, 2004, she arrived home from work at approximately 3:05 in the afternoon. She cleaned her house and made dinner for herself and her daughter. She stated that during dinner, she consumed three 12 ounce beers. She also stated that on that day, she was on high blood pressure medication and Prozac. Denise testified that the accident occurred when she went chasing after her dog who bolted out the door and around the fence as she was taking out the trash after dinner. The dog ran to the end of the fence and then through the hedges on defendants' property on Pine Street. Denise testified that she fell into the subject hole after she ran through the hedges and onto the defendants' property to retrieve her dog.

Plaintiff's daughter, Kristin, found her mother in the hole shortly after her fall and immediately called 911. When the police arrived, they lifted the plaintiff from the hole and helped her to walk over to the police car where she waited for a few minutes until an ambulance arrived and transported her to South Nassau Communities Hospital. As a result of this incident, the Village of Freeport issued a ticket to the plaintiff for trespassing upon defendant's property. [*3]

Defendant, LI Project LLC is a real estate development business and owned the subject property where plaintiff's accident occurred. Defendant's principal, Sloan Cooper, testified that when he purchased the property, a single family home existed upon it and that he bought the property with the intention to build three new homes on the lot. He stated that the agreement to purchase the property required the original owners, K&B Developers, Inc., to tear down the house and clear the land. The new homes were to be built by defendant/third party defendant, Long Island Realty and Development. The only time Cooper was actually at the property was when he walked it a week or so before the closing in November 2004. Defendant, LI Project did not itself engage in any construction/demolition upon the land. Defendant, K&B Developers, Inc. was in the process of demolishing the old house on the lot at the time plaintiff's accident occurred. Defendants, K&B Developers, Inc. and Long Island Realty & Development, Ltd., have not answered or otherwise appeared in this action.

In moving for summary judgment dismissal of plaintiff's complaint, defendant, LI Project contends: (1) that as an out of possession owner of a parcel of vacant land, LI Project owes no duty of care to the protect the plaintiff from conditions of the property; (2) a land owner, in any event, whether in or out of possession, has no duty to warn and/or protect against open and obvious conditions that are readily avoidable through the reasonable use of one's senses; (3) even if LI Project owed a duty of care to the plaintiff, it did not breach that duty, as the plaintiff's presence on the property was not reasonably foreseeable and plaintiff was a trespasser who had no reason, lawful or otherwise, to come onto the vacant land/construction site; and (4) even if LI Project owed a duty of care to the plaintiff, any breach of that duty was not the proximate cause of plaintiff's injuries. Rather, the sole proximate cause of her injuries were her own assumption of the risk and her own reckless conduct, in entering, at night, what was known to her to be a construction site and shortly after having consumed three 12 ounce beers within a time span of an hour and while on medication.

In opposition, plaintiffs submit that the defendant violated Section 86-65 of the Code of the Village of Freeport as well as good and accepted building practice. Further, plaintiffs submit that the New York State Property Maintenance Code places the responsibility on the owner of the property to maintain the exterior of the premises. Specifically §302.1 of the New York State Property Maintenance Code requires that the exterior property be maintained in a safe manner. Plaintiffs also argue that defendant is not an out of possession property owner; that there is only one standard of care and no distinction between a property owner's duty to invitees and trespassers; that the accident was not unforeseeable; the issue of whether a [*4]dangerous condition is "readily observable" only goes to the question of comparative fault; and, plaintiff's conduct was not the sole proximate cause.

Summary judgment is the procedural equivalent of a trial (Capelin Assoc. Inc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). It is a drastic remedy that will only be granted when the proponent establishes that there are no triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact, or demonstrate an acceptable excuse for its failure to do so (Alvarez v. Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient (Zuckerman v. City of New York, supra).

In order to prove negligence, plaintiff must demonstrate (1) the existence of a legal duty owed to the plaintiff; (2) a breach of that duty; and (3) injury to plaintiff proximately resulting from the breach (see Boltax v. Joy Day Camp, 67 NY2d 617 [1986]). Where there is no duty, there can be no breach, and therefore no liability in negligence (Pulka v. Edelman, 40 NY2d 781 [1976]). In this case, defendant LI Project, has failed to satisfy its prima facie burden of entitlement to judgment as a matter of law as to each of these elements.

It is well settled that an out-of-possession property owner is not liable for injuries that occur on the property unless the owner has retained control over the premises or is contractually obligated to perform maintenance and repairs (Carvano v. Morgan, 270 AD2d 222, 223 [2nd Dept. 2000]); see also Nikolaidis v. La Terna Restaurant, 40 AD3d 827 [2nd Dept. 2007]). In this case, defendant, LI Project, has not presented any evidence that it leased or contractually parted with control of the property to another. In the absence of any evidence that defendant relinquished control of the premises to some entity other than itself, it cannot be determined as a matter of law that it is entitled to claim the status of an out-of-possession owner (Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566-567 [1987]).

Defendant also argues that even if it was in possession of the premises where plaintiff fell, it owed no duty of care to the plaintiff because there is no duty to protect or warn of conditions that are open and obvious, not inherently dangerous, and that are readily observable through the reasonable use of one's senses. This argument is also unavailing. The open and obvious character of a dangerous condition does not negate a landowner's duty to maintain the premises in a reasonably safe condition; rather it merely raises an issue of fact concerning comparative negligence (Juoniene v. HRH Const. Corp., 6 AD3d 199 [1st Dept. [*5]2004]; Hanrahan v. Whiting Turner Const., Inc., 33 AD3d 338 [1st Dept. 2006]))

LI Project also maintains that the circumstances in this case are such that the subject property is a private, vacant lot and the plaintiff is a trespasser whose presence on the property the defendant owner had no reasonable basis to foresee. Defendant submits that the duty of reasonable care was not breached in this case and liability does not ensue if the trespasser is injured while on the property.

It is well settled that the liability of an owner or possessor of land is measured by "the single standard of reasonable care under the circumstances" (Basso v Miller, 40 NY2d 233 [1976]; Scurti v New York, 40 NY2d 433 [1976]). That is to say that the owner of the property has a duty to use reasonable care under the circumstances regardless of whether the potential plaintiff is an invitee, licensee or trespasser upon the property (Kush v City of Buffalo, 59 NY2d 26 [1983]; Basso v Miller, supra). A landowner is required to "take reasonable measures to prevent injury to those whose presence on the property can reasonably be foreseen" (Scurti v. New York, supra at 441-42).

It is undisputed in this case that plaintiff, Denise Fagan, was a trespasser onto defendant's property. However, plaintiff's status as a trespasser does not absolve the landowner of its duty to exercise reasonable care under the circumstances (Soice v. Farone, 307 AD2d 658 [3rd Dept. 2003]; see also Basso v. Miller, supra; Scurti v. City of New York, supra). Here, defendant, LI Project has not only failed to demonstrate that it did not owe a duty to the plaintiff trespasser, but it has also failed to show that it exercised reasonable care to prevent plaitniff's injury. The record is clear that the property was unposted, that there was no construction fence in place, and the hole in which plaintiff fell was not covered.

Defendant argues that plaintiff's presence on its property was unforeseeable. It is true that although not determinative of the duty owed, a party's status as an "invitee," "licensee" or "trespasser" is relevant to foreseeability (Quinlan v Cecchini, 41 NY2d 686 [1977]; Basso v Miller, supra; Scurti v New York, supra). The fact that the plaintiff entered without permission may demonstrate that the plaintiff's presence was not foreseeable at the time and place of the injury (Basso v. Miller, supra at 241). In this case, however, defendant has failed to show that as a matter of law plaintiff's accident was entirely unforeseeable. Defendant, LI Project submits that given the apparent danger of not being able to see construction debris as well as machinery and equipment and other conditions that typically exist at a construction site, such as the hole in question, and which are likely to cause injury if, due to darkness, they cannot be readily observed and avoided, it is unreasonable to expect a land owner to foresee that people will trespass upon a construction site and particularly that they will do so on a dark night. However, whether defendant [*6]should have anticipated the general risk in leaving a ten foot deep and five foot wide pit open on its property in the first place which had no construction fence and was without any postings, warnings or other safeguards, in a residential neighborhood is an issue involving judgmental variables best left to the finders of fact (Deridiarian v. Felix Contracting Corp., 51 NY2d 308 [1980]; Havas v. Victory Paper Stock Co., Inc., 49 NY2d 371 [1980]).

Finally, defendant argues that even if LI Project owed a duty of care to the plaintiff, and breached that duty, any such breach of that duty was not a proximate cause of the plaintiff's injuries. Defendant submits that the sole proximate cause of plaintiff's injuries were her own assumption of the risk and her own reckless conduct, in disregarding the risk associated with entering a construction site, in the dark, after having consumed three alcoholic beverages and while on medication.

Pursuant to CPLR 1411, the culpable conduct of a plaintiff, including assumption of risk, merely reduces the plaintiff's recovery in the proportion to which his or her conduct bears to the defendant's culpable conduct. Thus, the issue of plaintiff's comparative fault is also a jury question in this case (Rios v. Johnson VBC, 17 AD3d 654 [2nd Dept. 2005]; Pareja v. Brown, 18 AD3d 636 [2nd Dept. 2005]).

Defendant's failure to make a prima facie showing of entitlement to judgment as a matter of law by showing that it met its duty as a property owner to maintain the property in a reasonably safe manner (Hogan v. Baker, 29 AD3d 740 [2nd Dept. 2006]; Giarrantani v. We're Assoc., Inc., 29 AD3d 946 [2nd Dept. 2006]) requires this Court to deny it's motion, without regard to the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra at 853).

However, even if defendant had satisfied its prima facie burden, plaintiff's opposition establishes the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

The crux of plaintiffs' opposition is that summary judgment must be denied on account of the absence of a construction fence surrounding defendant's property and LI Project's failure to protect the plaintiff from falling into the hole. Plaintiffs submit while there was a chain link fence separating plaintiff's property from defendant's lot, there was no construction fencing erected on the property as required by the Code of Village of Freeport §86-65 and the New York State Property Maintenance and Building Codes. Plaintiff submits that defendant, LI Project violated Section 86-65 of the Code of Village of Freeport, as well as good and accepted building practice by not erecting and maintaining a fence around the entire property upon which the plaintiff trespassed. Defendant argues that this provision of the Village of Freeport Code, requires a temporary fence only in those [*7]building operations that do not require a "sidewalk shed" as prescribed by Section 86-65(b) and then only "in front of the structure" and only "during such building operation" (Code of Village of Freeport §86-65[c]). Defendant submits that pursuant to subsection b of this provision, sidewalk sheds are required in Freeport whenever any structure that is within 10 feet of the street line and that is more than 25 feet in height is to be demolished but again, only while the work is being done and only until the structure has been reduced to 20 feet in height.

Notably, there has been no evidence submitted by either party in this motion as to, inter alia, whether this was a "building operation", whether a sidewalk shed was required pursuant to section 86-65(b) of the Code of Village of Freeport, or the height of the structures involved. Thus, there is no way for this Court to determine whether the Village of Freeport Code is applicable to the case at hand. Nevertheless, even if the Village Code did not apply in this case, there remains a triable issue of fact as to whether reasonable precautions were taken(Christie v. Ranieri & Sons, Inc., 194 AD2d 453 [1st Dept. 1993]).

Accordingly, defendant LI Project's motion for summary judgment dismissal of plaintiffs' complaint is herewith denied.

LI Project alternatively seeks an Order, pursuant to CPLR 3215, directing that a default judgment be issued against third party defendants, K&B Developers, Inc., Long Island Realty & Development, Ltd., and K&B Home Development. Inc.Pursuant to CPLR 3215, a plaintiff must enter a default judgment within one year of the defendant's failure to appear or plead (CPLR 3215[a]). However, a third-party plaintiff may not enter a default judgment against a third-party defendant until the third-party plaintiff's own liability to the primary plaintiff has first been established (Multari v. Glalin Arms Corp., 28 AD2d 122 [2nd Dept 1967]; Slovik v. Wang, 110 AD2d 630 [2nd Dept 1985]).

The one-year period for entry of a third-party default judgment begins to run when the third-party plaintiff is found liable to the primary plaintiff. Consequently, when a third-party defendant defaults, a third-party plaintiff must await the determination of liability in the main action and until a cause of action for indemnity has accrued (Multari v. Glalin Arms Corp., supra at 124).

Accordingly, defendant, LI Project's motion directing that a default judgment be issued against the third party defendants is herewith held in abeyance.

Finally, defendant, LI Project's motion seeking to preserve the 911 tape of this incident is also denied. On the date of plaintiff's accident, officers of the Freeport Police Department ("Freeport P.D.") responded to the 911 call placed by plaintiff's daughter. Defendant, LI Project seeks an Order directing, non-party, Freeport P.D. to preserve the 911 recording made in relation to this incident. On [*8]March 16, 2006, this Court signed a Subpoena Decus Tecum Order directing the Freeport P.D. to produce all records pertinent to the incident that gave rise to the action. The Freeport P.D. forwarded the same directly to the subpoenaed record room of this Court. Defendant, LI Project acknowledges that while "the original 911 recording is presently in the possession of the Freeport Police Department. . . a copy is being held by the Subpoenaed Record Department of this Court" (Motion, ¶42 [Emphasis in Original])

First and foremost, in order for this Court to require a non-party to produce documents or things for inspection, the Court must first have jurisdiction over the non-party (see Blake v. LP 591 Ocean Realty, 237 AD2d 554 [2nd Dept 1997]). In order for jurisdiction to be obtained, the moving party must comply with the mandate of CPLR 3120(b) that requires that the non-party "be served with the notice of motion in the same manner as a summons." Without such service, as in this case, this Court lacks jurisdiction over the Freeport P.D. and cannot entertain the motion for the relief requested (Weiss v. Meiselman, 155 AD2d 533 [2nd Dept 1989]; Ruiz v. City of New York, 125 AD2d 661 [2nd Dept 1986]). Moreover, where there exists a copy of the 911 tape relating to the subject accident in the subpoenaed records department in this Court, defendant's motion to preserve the original tape is denied as moot.

This constitutes the Order of the Court.

Dated:, 2007ENTER:

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J.S.C.