[*1]
Cortez v Northeast Realty Holdings, LLC
2009 NY Slip Op 52841(U) [35 Misc 3d 1239(A)]
Decided on June 18, 2009
Owen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 18, 2009
Supreme Court, Orange County


Maria Cortez, as Administratrix of the Estate of Jorge M. Rojas, a/k/a Jorge Martin Rojas Trinidad, Plaintiff,

against

Northeast Realty Holdings, LLC, National Realty & Development Corp., and Precision Lawncare, Defendants.




7319/07.



Appearances: Silver, Forrester, Schisano, Lesser & Dreyer, P.c., Attorneys for Plaintiff, 3250 Route 9W, New Windsor, New York 12553.

Milber, Makris, Plousadis & Seiden, LLP, Attorneys for Defendant Northeast Realty, 3 Barker Avenue, 6th Floor, White Plains, New York 10601.

Kaufman, Borgeest & Ryan, LLP, Attorneys for Defendant National Realty, 200 Summit Lake Drive, Valhalla, New York 10595.

Feldman, Kleidman & Coffey, LLP, Attorneys for Defendant Precision Lawncare, 995 Main Street, P.O. Box A, Fishkill, New York 12524-0395.

Joseph G. Owen, J.



The following papers have been read, in this personal injury and wrongful death action, on (A) the motion of defendant Precision Lawncare & Landscaping, Inc. for an order pursuant to CPLR 3212 granting summary judgment in its favor; (B) the CPLR 3212 cross motion of defendant Northeast Realty Holdings, LLC; (C) the CPLR 3212 cross [*2]motion of defendant National Realty & Development Corp.; (D) plaintiff's CPLR 3212 cross motion for summary judgment against defendant Precision Lawncare & Landscaping, Inc.; (E) plaintiff's CPLR 3212 cross motion for summary judgment against defendant Northeast Realty Holdings, LLC; (F) plaintiff's CPLR 3212 cross motion for summary judgment against defendant National Realty and Development Corp.; (G) the separate cross motion of defendant Northeast Realty Holdings, LLC, pursuant to CPLR 3101, for an order of preclusion against plaintiff; and (H) plaintiff's separate motion for an order pursuant to CPLR 3025(b) granting leave to serve an amended complaint:

Notice of Motion (Precision Lawncare)-Affirmation of Marsha S. Weiss, Esq., dated September 24, 2008-Exhibits

Notice of Cross Motion (Northeast Realty)-Affirmation of Gregory Saracino, Esq., dated October 29, 2008-Exhibits

Notice of Cross Motion (National Realty)-Affirmation in Support of Matthew Spergel, Esq., dated October 29, 2008-Exhibits

Notice of Cross Motion (Plaintiff v Precision Lawncare)-Affirmation of Sarah R. Dreyer, Esq., dated December 18, 2009-Exhibits

Notice of Cross Motion (Plaintiff v Northeast Realty)-Affirmation of Sarah R. Dreyer, Esq., dated January 15, 2009-Exhibits

Notice of Cross Motion (Plaintiff v National Realty)-Affirmation of Sarah R. Dreyer, Esq., dated January 16, 2009-Exhibits

Affirmation in Opposition of Marsha S. Weiss, Esq.,dated January 19, 2009- Exhibit

Reply Affirmation of Gregory Saracino, Esq., dated January 27, 2009-Exhibits

Reply Affirmation of Sarah R. Dreyer, Esq., dated February 10, 2009-Exhibits

Reply Affirmation of Sarah R. Dreyer, Esq., dated March 3, 2009-Exhibits

Reply Affirmation of Matthew Spergel, Esq., dated March 6, 2009

Reply Affirmation of Sarah R Dreyer, Esq., dated March 11, 2009-Exhibits

* * *

Notice of Motion (Northeast Realty/Preclusion)-Affirmation of Gregory Saracino, Esq., dated January 27, 2009

Affirmation in Opposition of Sarah R. Dreyer, Esq., dated March 3, 2009- Exhibits

Reply Affirmation of Gregory Saracino, Esq., dated March 6, 2009

* * *

Notice of Motion (Plaintiff/Leave to Amend)-Affirmation of Sarah Ro Dreyer, Esq., dated February 3, 2009-Exhibits-Memorandum of Law

Upon the foregoing papers, it is hereby ORDERED that the summary judgment motions and cross motions of defendants Northeast Realty Holdings, LLC and Precision [*3]Lawncare & Landscaping, Inc., as well as plaintiff's summary judgment cross motions, are all denied; and it is further

ORDERED, that the summary judgment cross motion of defendant National Realty & Development Corp. is granted, and the complaint as well as all cross claims are dismissed and severed as to that defendant; and it is further

ORDERED, that the CPLR 3101 preclusion motion of defendant Northeast Realty Holdings, LLC is denied; and it is further

ORDERED, that plaintiffs CPLR 3025(b) motion to amend is granted, and the verified amended complaint (copy annexed to motion papers as Exhibit "D") is deemed served; and it is further

ORDERED, that the remaining defendants shall have twenty-five (25) days from the date hereof to file and serve their answers to the verified amended complaint.

Defendant National Realty & Development Corp. shall submit a judgment, on notice, to the Orange County Clerk, as Clerk of the Court, with bill of costs.

On June 25, 2006, during the course of his employment with Precision Lawncare & Landscaping, Inc. ("Precision Lawncare"), decedent Jorge M. Rojas was operating a "Scag Turf Tiger" riding lawn mower around the sloped perimeter of a retention pond situated on property owned by defendant Northeast Realty Holdings, LLC ("Northeast Realty") and located within the Northeast Business Park in Newburgh, New York. As he was apparently entering into his third pass, the mower slid down the slope into the pond, flipping over and trapping decedent underwater, thereby causing his death.

The business park in which the incident occurred was comprised of multiple parcels, some developed and some undeveloped. Defendant National Realty & Development Company ("National Realty") contractually served as the management company for several developed parcels. Although the subject parcel was undeveloped, National Realty formerly owned it and, after losing the property to PNC Bank in foreclosure proceedings some time ago, continued a contract with decedent's employer, Precision Lawncare, to perform grounds keeping tasks.

As against all defendants, plaintiff alleges that the grade of the slope upon which decedent was mowing was dangerously steep, in violation of pertinent municipal and state regulations as well as accepted engineering principles, and that this defective condition was a substantial factor in causing decedent's accident and death. In support of [*4]this argument, plaintiff submits the affidavit of licensed professional engineer Vincent A. Ettari, P.E., who conducted two site inspections and concluded, among other things, that the subject slope had grades as high as 64.3% which were highly non-compliant with Chapter 83 of the Newburgh Town Code, Rule 23 of the New York State Industrial Code, the New York State Property Maintenance Code, and generally accepted engineering standards. It is the opinion of plaintiff's engineer that "the subject slope cannot be safely mowed by any type of mowing machine" and that, in conjunction with the absence of a fence surrounding the retention pond, this excessive slope constituted a highly dangerous condition which proximately caused decedent's death (Affidavit of Vincent A. Ettari, P.E., sworn to January 5, 2009 ["Ettari Aff't"], p. 26, ¶50).

In addition to these contentions, as against defendant Precision Lawncare plaintiff alleges a lack of proper training and the absence of sufficient safety equipment. The complaint claims that, "[a]s a result of the defendants' negligence, recklessness and carelessness", Jorge M. Rojas was caused to sustain serious personal injuries resulting in his death. Plaintiff's amended complaint, which is being authorized herein, pleads a cause of action sounding in Workers' Compensation Law Article 2, Section 11, predicated upon Precision Lawncare's acknowledged failure to procure Workers' Compensation Insurance.

All defendants argue that decedent's own negligence was the sole proximate cause of his death because he had allegedly been specifically instructed not to use the riding lawnmower on steep slopes, and also because the condition was allegedly open and obvious. The Court, however, finds the evidence in this regard to be somewhat conflicting. For example, during examinations before trial Precision Lawncare's employee Antonio Cortes testified that, while he had trained decedent not to go on "steep hills" with the riding mower (Transcript of May 29, 2008 Examination Before Trial of Antonio Cortes ["Cortes Depo"], p. 11, line 22), it was acceptable to do the "top of the hill just to get... more production" as far as "you feel comfortable to- - go with the mower (Cortes Depo, p. 16, lines 18-19). Cortes was then questioned as to the details of this procedure:

Q How far down the hill would you be comfortable with?

A I'd say, you know, the site of where the accident happened, at least one, one line, one more line.

(Cortes Depo, p. 16, lines 22-25). It also appears from the record that a protective "roll bar" had been removed from the mower used by decedent, arguably exacerbating the danger. Under all the circumstances presented by the motion record, including Precision's purportedly systemic practice of mowing at least the top of the hill with a riding mower, the Court finds that triable issues of fact exist as to the level of decedent's training, the obviousness of the risk presented in the particular area where the incident occurred, and [*5]defendants' contention that decedent's own alleged negligence was the sole proximate cause of his accident and death.[FN1]



Defendant Northeast Realty, who purchased the subject parcel from PNC Bank in or about 2005, also argues that (1) decedent was an unknown and unauthorized trespasser upon its property; and (2) in any event, the laws, rules and regulations allegedly violated by the steep slope's existence were not enacted to guard against the harm alleged in this action. As to the first allegation, minimally triable questions of fact exist as to the breadth of Northeast Realty's knowledge, or imputed knowledge, regarding the contractual maintenance arrangement between Precision Lawncare and National Realty covering the subject parcel.[FN2] Given Northeast Realty's legal obligation to maintain its property in a reasonably safe condition, together with the 15-year period of time over which Precision Lawncare had been openly performing grounds keeping services thereon, defendant's claim that it was wholly unaware of the characterized "unauthorized landscaping" taking place is, at best, subject to factual scrutiny.

With respect to Northeast Realty's second argument, plaintiff's expert Vincent A. Ettari discusses, in some detail, the purposes behind Newburgh Town Code 83, the New York State Industrial Code and the other authorities upon which he relies. Upon review of the pertinent provisions, the Court agrees that at least some of them appear facially designed to protect against the type of harm at issue in this case. For example, Town Code §83-6[Y], which incorporates various portions of the New York Guidelines for Urban Erosion and Sediment Control, specifically advises that any slopes to be mowed "should be no steeper than 3: 1 although 4:1 is preferred because of safety factors related to mowing steep slopes" (Ettari Aff't, p. 9, ¶21).

For its part, defendant National Realty claims that it had no ownership or control responsibilities regarding the subject unimproved parcel, and accordingly owed no duty to decedent under Labor Law or common law negligence principles. In response to this [*6]claim, plaintiff argues that National Realty was either a de facto owner of the property, or the de facto agent of owner Northeast Realty (cf. Ogden v City of Hudson Industrial Development Agency. 277 AD2d 794, 795; Brummer v New Opportunities Community Housing Development Corp., 18 Misc 3d 1127[A], aff'd 19 AD3d 1080), and "as such, liability is predicated on negligent ownership, Labor Law Section 200 and general theories of negligence" (Affirmation in Opposition of Sarah R. Dreyer, Esq., dated January 16, 2009, p. 17, ¶38). A key component to such a theory, however, is evidence of the purported de facto owner/agent's rights to insist that proper safety practices be followed and to control the work" (Ogden v City of Hudson Industrial Development Agency, supra; Brummer v New Opportunities Community Housing Development Corp., supra, 18 Misc 3d 1127[A] at p. 2-3).

During his examination before trial, National Realty's managing director of property operations Noel Mannion testified that there was "not much" to its agreement with Precision Lawncare (Transcript of April 8, 2008 Examination Before Trial of Noel Mannion ["Mannion Depo"], p. 30, line 4). Although the contract was "pretty loosely structured" (Mannion Depo, p. 28, line 14), Mannion never had any discussions with Precision Lawncare's owner regarding the method or manner of mowing the area around the retention pond (Mannion Depo, p. 32, lines 15-21), or as to whether such mowing should be done with a riding or walk-behind mower (Mannion Depo, p. 32, lines 22-25). The scant provisions of the agreement were continued "to maintain a better appearance for the entrance of the park"[FN3] (Mannion Depo, p. 35, lines 11-12) and were, on the basis of the evidence presented in this motion record, wholly financial in nature. There is simply no showing that the "loosely structured" arrangement gave National Realty a right to control the work or insist on proper safety standards. Aside from the somewhat unusual continuation of a contract pertaining to property no longer owned by it, there are [*7]no substantive indicia of National Realty's allegedly de facto "ownership" of the particular parcel in issue. It would appear from the record that the parcel's prior owner, PNC Bank, at least constructively acquiesced in the agreement with Precision Lawncare which, evidently, inured to the bank's benefit. Given these circumstances, liability as against National Realty may not lie under either Labor Law or common law negligence principles (cf. Capolino v Judlau Contracting, Inc., 46 AD3d 733, 735).


By separate motion, defendant Northeast Realty seeks to preclude plaintiff's expert engineer from testifying at trial because (1) his July 8, 2006 and March 12, 2007 inspections of the subject property were performed without permission; (2) the expert disclosure is untimely; and (3) the expert's affidavit is purely speculative. None of these objections warrant the extreme remedy of preclusion.

With respect to its first contention defendant simply claims that plaintiff "must" be precluded because the engineering expert was "illegally trespassing" when he performed his pre-action inspections. Whether or not the engineer was trespassing for purposes of potential criminal or civil liability as against him, Northeast Realty proffers no authority to establish how any rights it may have in this regard extend to precluding the expert's testimony in these proceedings. While a suppression order may issue "[i]f any disclosure under [CPLR article 31] has been improperly or irregularly obtained so that a substantial right of a party is prejudiced" (CPLR 3103 [c]), defendant has not shown that it was in any way prejudiced by the inspections (see, e.g., Levy v Grandone, 8 AD3d 630, 631, leave to appeal denied 5 NY3d 746, reargument denied 5 NY3d 850).

Moreover, it appears from plaintiff's written response dated March 3, 2008 that defendant was timely informed of the existence of the engineer's report, but that plaintiff objected to its disclosure as being material prepared in anticipation of litigation. Defendant did not move to compel disclosure thereof (see, CPLR 3122 [a] & 3124), nor has it shown any prejudice resulting from plaintiff's allegedly late notice (see, 1515 Summer St. Corp. v Parikh, 13 AD3d 305, 306). Finally, the Court does not find the expert's affidavit to be speculative or conclusory.

As to plaintiff's application for leave to serve an amended complaint, defendant Precision concedes that plaintiff "is entitled to proceed against defendant in a plenary action pursuant to Section 11 of the Workers' Compensation Law" (Affirmation in Opposition of Marsha S. Weiss, Esq., dated January 19, 2009, p. 1, ¶2).[FN4] " 'Leave to amend or [*8]supplement pleadings should be freely granted unless the amendment is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from the delay in seeking the amendment' " (Bennett v Long Island Jewish Medical Center, 51 AD3d 959, 960-961). In light of defendant's admission, the Court can hardly hold that plaintiffs proposed amendment is "palpably improper or insufficient as a matter of law." Moreover, defendant fails to establish that any prejudice or surprise would directly result by granting the relief requested.

ENTER

HON. JOSEPH G. OWEN

SUPREME COURT JUSTICE

Footnotes


Footnote 1:While decedent's comparative negligence may not be pertinent (see, Workers' Compensation Law §11; see, Bulrke v Torres, 120 AD2d 282), this does not relieve plaintiff from establishing a negligence cause of action against defendants (see, Morgan v Robacker, 2 AD2d 637; Tonioli v Hilbert, 1 Misc 3d 912 [A]; see, also Gonzalez v Apartment Communities Corp., 2006 WL 2905724 [Superior Ct. Of Delaware 2006]).

Footnote 2:There is no evidence of any direct contractual relationship or communications between Northeast Realty and National Realty regarding upkeep of the property.

Footnote 3:Neither National Realty's tangential interest in maintaining the appearance of the park, nor its ownership interest in separate parcels, constitute evidence of a contractual right to control Precision Landscaping's work and insist on proper safety standards. Plaintiff argues, in essence, that to prevent National Realty from "escaping liability", it must be deemed to be a de facto owner of the subject property due to these ancillary interests, and that once so deemed, it would have rights by law to control the work as "owner" of the premises. This is circular logic. The right to insist on proper safety practices appears to be an element of, not a conclusion resulting from, the de facto owner principles cited. While the Court may empathize with plaintiff's belief that there must be "some remedy" against the management company, this understanding does not relieve plaintiff from establishing the necessary prima facie showing of entitlement to such a remedy.

Footnote 4:Defendant Precision does advise that "plaintiff and defendant differ significantly with respect to the implications of that election" (Affirmation in Opposition of Marsha S. Weiss, Esq., dated January 19, 2009, p. 1, ¶2) Any difference in this regard, however, is not a ground for denying the proposed amendment.