The following papers numbered 1 to 16 were read on this motion by the defendant FRESH MEADOW COUNTRY CLUB, INC., for an order pursuant to CPLR 3212(b) granting summary judgment in favor of said defendant and dismissing the plaintiffs' complaint and all cross-claims:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 8

Affirmation in Opposition-Affidavits-Exhibits........9 - 13

Reply affirmation...................................14 - 16 _____________________________________________________________

This is an action for damages for personal injuries sustained by the plaintiff, Nicole Adler, on July 20, 2008, when she was struck by an automobile on the premises of the Fresh Meadow Country Club, Inc. ("FMCC"/"the Club"). At the time of the accident, the plaintiff was standing at the rear of her vehicle, in a valet drop-off area, unloading items from her trunk when co-defendant Daniel A. Lewis's vehicle pulled up behind the plaintiffs' vehicle, stopped, and then rolled forward making contact with the plaintiff. [*2]

The plaintiff commenced an action by the filing of a summons and verified complaint on August 21, 2008. The plaintiff brought a cause of action for negligence against both Mr. Lewis and FMCC. Issue was joined by service of defendant FMCC's verified answer on October 22, 2008. The Adlers settled their claim against Mr. Lewis pursuant to a stipulation dated May 9, 2011.

In her verified bill of particulars dated September 2, 2010, supplemental verified bill of particulars dated October 9, 2009, and second and third supplemental verified bills of particulars dated September 2, 2010 and December 14, 2010, the plaintiff contends that defendant FMCC was negligent, inter alia, in failing to prohibit and/or restrict defendant Lewis from operating a motor vehicle on its premises when it knew or should have known that Lewis was likely to cause injury to others; in failing to control the conduct of Lewis when it had the opportunity to control said person and when it was reasonably aware of the need for such control; in failing to restrict and or limit defendant Lewis's use of a motor vehicle on its premises when it had the ability to do so; and in allowing defendant Lewis to operate his vehicle when it knew or should have known that doing so was a risk to the general public and more particularly plaintiff/pedestrian. The plaintiff claims that the defendant had actual and constructive knowledge of Lewis's poor driving record in that it was aware that defendant Lewis, while previously operating a vehicle on its premises had struck other objects prior to the accident herein.

Plaintiff, Nicole Adler, alleged that as a result of the accident she sustained an acute lateral meniscal tear of the right knee and tear of the posterior horn of the medial meniscus for which she was required to undergo a lateral meniscectomy of the right knee on November 28, 2008 and arthroscopic surgery on June 30, 2010. In addition, the plaintiff claims she sustained a disc herniation at L4-L5, disc bulging and disc protrusion at L5-S1 and L4-L5 and partial tear of the plantar fascia.

Examinations before trial of the plaintiff, Nicole Adler and defendant Lewis were taken on January 8, 2010. The deposition of Leslie Young-Zeoli, a comptroller employed by FMCC was taken on April 8, 2010, and the deposition of non-party witness Jeffery Saporta was taken on May 19, 2010. The depositions of Jose Nunez, Jose Florez and Robin Castillo, valets employed by FMCC, were taken on October 12, 2010, and the deposition of Allan Kaplan, past president of FMCC was taken on February 4, 2011.

In her deposition, Nicole Adler, age 44, states that on July 20, 2008, she, her husband, and her two children were guests of her brother, Russell Poses, who was a member of the Club. When they arrived at approximately 1:30 p.m. they drove up a ½ mile long driveway to the clubhouse. The valet drop-off is located directly in front of the clubhouse entrance under a large awning. Plaintiff testified that after her husband pulled up in front of the clubhouse, the valet opened her door so she could get out and she went to the back of the car to unload the trunk. Defendant Lewis's vehicle then pulled up behind her. Less than a minute after she began [*3]unloading the trunk Ms. Adler was struck in the back of her right knee by the front bumper of Mr. Lewis's car. The impact caused her to fall to the ground. She testified that Lewis came over and said he was sorry and that he thought his car was in park. She stated that there were several witnesses to the accident including the valets, members of the club, the passenger in Lewis's car and her two children who were seated inside her vehicle. The police arrived within five minutes and she told them that she was unloading her trunk when she was struck by Lewis's vehicle. She left the scene in an ambulance and was treated in the emergency room for pain to her right ankle which she twisted when she fell. The plaintiff also testified that subsequently she was told by her brother, Russell Poses, that the valets were aware that the person who hit her had a poor driving record, that they ran when he drove up and that he had previously struck another car on the premises of the Club. In addition, Poses told her that Lewis had been told not to use the valet parking but to park his own car. She did not know who gave this information to her brother.

Leslie Young-Zeoli, the comptroller at FMCC, testified that her responsibilities include maintaining the financial management of the Club and overseeing the payroll. She testified that members and guests can either park their own cars or utilize the services of the valets. The valet attendants are employees of the Club. She testified that the incident in question was recorded by a surveillance camera system. She stated that when she watched the video she "saw an SUV pull up and stop. I saw only the back end of the car, the truck, and I believe a male and female got out, open the trunk. As they are getting out, a car stops behind them, six feet behind, maybe more, comes to a full stop. As they are opening the trunk, that car moves slowly into them." She testified that the valet in charge on that day was Jose Nunez. Ms. Zeoli testified that Mr. Lewis was a member of the Club but that he ceased his membership in 2009. She stated that to her knowledge the Club has never suspended a member's privileges although the bylaws permit suspension for not being current on bills. She was not sure if it permitted suspension for inappropriate behavior. When asked if Mr. Lewis has ever had any other accidents on the premises of the Club, she responded that to her knowledge he did not and she also stated that he never struck any of the valet attendants with his vehicle. She also testified that she had never heard of anyone ever being struck by a vehicle on the grounds of the club. She stated that the first time she learned of the accident was when she received a call from the Club's insurance agent.

Co-defendant, Daniel A. Lewis, testified that on the day of the accident he had gone to the Club to have lunch with his daughter, Elizabeth Gershon, who was a passenger in his vehicle at the time of the accident. When asked if he had ever struck a vehicle on the grounds of the Club prior to the accident in question, he stated that a year or two prior to this accident he had backed up his vehicle and struck another vehicle. He stated that the prior accident took place in front of the clubhouse and that he paid the owner of the other vehicle $300.00 to repair the damage. Mr. Lewis testified that he had never struck another person at the club nor had he ever struck any objects there. He testified that no one from the Club had ever instructed him prior to the July 8th accident not to drive his vehicle up to the valet area, no one from the club had ever made complaints to him about the manner in which he operated his vehicle, and no one from the Club ever told him that he was required to park his own vehicle on the grounds. He also stated that none of the valets had ever told him that they did not want him pulling up to the valet area prior [*4]to this accident. Further, Lewis testified that his driving privileges at the club had never been suspended and he had never been the subject of disciplinary action at the Club.

With respect to the incident in question, he stated that he observed the plaintiff exit her vehicle on the passenger side and he "saw her walk around to the back of her car and I had stopped mine, and I just took my eye off what I was doing and she was right in front of me, and I had not put it into park." Defendant stated that his car made contact with her a few seconds after he stopped his vehicle. When he realized his vehicle was moving he put his foot on the brake but it was too late. He said his car was rolling at less than 5 miles per hour when it struck Ms. Adler.

Jeffrey Saporta, a member of the Club stated that he was a witness to the accident. He stated that at the time of the accident he was standing by a bench waiting for the valets to retrieve his car from the parking lot. He stated that he observed, "a woman, a young woman and man, had an SUV, and they were unloading something from the back of the SUV. He stated it was stopped under the awning in front of the clubhouse. Saporta stated that while they were unloading the trunk, another car pulled up behind it. He stated that, "it slowed down, it came to a momentary stop and then it lurched forward. It made contact with the woman pinning her against the SUV." He stated that he went over to Lewis and "I noticed that he was-—he looked confused and I told him to put the car in park and stop the vehicle." He stated that after the accident one of the valets stated to him, "this is not the first incident that the driver of the car had on the premises." He also questioned another valet and confirmed that Lewis had been involved in prior incidents. However, he did not have any personal knowledge of these prior incidents regarding when they took place or any other details as to the names of any people involved. Saporta testified that he observed the plaintiff screaming and he believed that she had fallen to the ground. He stated that he was present when the police arrived and he told the police, "that someone was, a young woman was getting materials out of the back of her car when this car approached her and stopped, and then lurched forward and hit her." He did not fill out any reports in connection with this incident.

Jose Nunez, the manager of valet parking at FMCC, was deposed on the premises of the club on October 12, 2010. He testified that both members and guests have the option of either parking their own vehicles or using the valet service. He stated that the valets had the option of directing that cars wait in a side by side manner in the valet area or one behind the other. He stated that he was working on the day of the accident but that he was working in the upper parking lot and not in the valet parking area. He stated that Jose Florez, Rafael Hernandez and Efran Peralta were also working as valets on that date. He stated that Jose Florio radioed him over a walkie-talkie that there had been an accident and that he should come up to the valet area. When he arrived on the scene he observed the two cars, one behind the other and the plaintiff, who was crying, was seated in the rear of her vehicle. He saw Mr. Lewis with his daughter seated in his vehicle. He stated that prior to the accident, to his knowledge, Mr. Lewis had utilized the valet service over 100 times and he had never seen him park his own car in either the upper or lower parking lot. Florez told Nunez that he had been helping the plaintiff take things out of the trunk when he felt something and then looked and saw Lewis's car. When asked how he would [*5]characterize Lewis's driving ability he stated that it was "good." He also stated that he had never heard that Mr. Lewis had hit other vehicles on the grounds prior to this accident. Further, he testified that no other valet had ever told him Lewis was a bad driver. In addition, Nunez testified that he was never told by any other valet attendant that they were scared of the way that Mr. Lewis operated a vehicle. He stated that he remained at the scene for 30-60 minutes until the police arrived and the vehicles were moved. He stated that he retrieved the video and showed it to the general manager, Brett Morris, on the day of the accident. He did not personally observe the accident and did not speak to either the plaintiff or the defendant at the scene.

The deposition of Jose M. Florez, another valet attendant at the Club was also taken at the Club on October 12, 2011. He stated that on the date of the accident, he was working parking cars in the front of the Club. He states that he never directs the vehicles where to pull up and that the patrons either pull up behind each other or create two or three lines side by side. On the day of the accident he stated, "I was helping the woman taking things out of her trunk when a car that was coming from behind was getting closer and closer and it stopped, but then it started up again." Florez testified that he was behind the vehicle with Ms. Adler when the Lewis's vehicle struck her from behind. He stated, "[I] turned around and looked when I sensed that he was getting closer, but then he hit her and I, myself, took the woman from there and I stepped to the side and I sat her on the ground because her husband didn't." He stated that prior to the accident, he did not know who Mr. Lewis was and he did not speak to Mr. Lewis at the scene. He stated that he had never heard after the accident that other valet attendants considered Mr. Lewis to be a bad driver.

Robin Castillo, was also a valet attendant on the day of the accident. He testified that he was standing under the green awning waiting for vehicles to pull up and observed that accident unfold. In describing the accident he stated, "[I] saw the SUV that arrived. It parked underneath the awning. They opened the back part, like the trunk, I believe they were going to the pool, so they were taking out things for the pool. The other vehicle arrived, stopped, but then continued." He stated that Lewis's vehicle stopped about 20 feet away. It traveled about 5 feet and then stopped again. Then he saw that it hit the other car and the he observed the plaintiff in between both vehicles. He said the vehicle was moving very slowly went it struck her. He stated that he didn't remember if he tried to stop the Lewis vehicle or to warn the lady. When asked why he didn't shout to her he stated that, "[I] didn't think he was going to hit her." Castillo testified that he knew Mr. Lewis as a member and had seen him operate his vehicle many times before and considered him a normal driver for his age in that he drives slowly. He stated that he did not consider Lewis to be a dangerous driver prior to the accident and never heard anyone complain about Lewis's ability or inability to drive. He never heard that Lewis was a bad driver from anyone and he was not aware that Lewis had a prior accident at the Club.

In his affidavit dated June 20, 2011, Milagros Perez, plaintiffs' counsel states that summary judgment dismissing the plaintiffs' complaint against FMCC is warranted as there is no evidence in the record that FMCC was negligent in any way or that their action or inaction was a proximate cause of Ms. Adler's accident. Counsel claims that Mr. Lewis's negligence in failing to [*6]put his car in park and allowing it to roll into Ms. Adler was an independent act which FMCC could not have anticipated. In addition, counsel argues that there is no evidence in the record that the Club had notice either actual or constructive that Mr. Lewis was a "poor driver" who was prone to operating his vehicle in a dangerous manner.

Counsel contends that in order to impose liability on a landowner, actual or constructive knowledge of a dangerous condition must be shown. Here, there is no claim of a dangerous condition on the premises per se or that any acts on the part of FMCC employees were negligent. Rather, the plaintiff, in her bill of particulars claims that FMCC was negligent based on their knowledge that Lewis, while operating his vehicle, had struck other objects on its premises prior to the accident and that despite this knowledge they failed to protect the plaintiffs and other persons at the Club by prohibiting or restricting Lewis from operating a motor vehicle on their property.

In order to impose liability on FMCC, plaintiff would have the burden of showing that the defendant was on notice that Lewis was a poor driving risk, that they should have restricted his driving privileges because of that risk, and that their failure to restrict his driving privileges was a proximate cause of the accident. Counsel for FMCC contends that the record is clear, based upon the deposition testimony of the parties and non-party witnesses, that FMCC did not have notice prior to the incident that Lewis posed a driving risk and moreover, that the accident in question was caused solely by Lewis's independent unforseeable act. Counsel contends that Lewis's act in permitting his vehicle to roll into the plaintiff in the valet area was the sole proximate cause of the accident as there is no evidence in the record that he was motioned forward or directed by any of the valet attendants prior to the accident. Further, counsel argues that the plaintiffs' contention that the Club should have revoked or restricted the driving privileges of the defendant based upon a history of poor driving is unsupported by the record. Counsel argues that the only prior accident that Lewis was involved in that is reflected in the record is the one prior accident that Lewis himself admitted to in which he backed his vehicle into another vehicle near the valet area. There was no testimony that that accident was ever reported to the Club or that any employee from the Club was aware of that prior accident. Further, counsel contends that there was no evidence of notice of Lewis's prior accident as none of the witnesses who testified provided any testimony to substantiate the claim that FMCC was aware of Lewis' so called poor driving ability or that he was a hazard to other members or guests because of his poor driving ability. None of the valets or members who were deposed were aware of any prior accidents. In conclusion, FMCC argues that plaintiffs have failed to establish a prima facie claim against FMCC as there is no proof in the record other than the hearsay statements of Nicole Adler's brother and of Mr. Saporta that the valets believed that Lewis had a prior accident and was known to be a poor driver.

In opposition, Michael J. Wells, Esq., counsel for the plaintiffs, argues that FMCC, as a landowner, has the obligation to act in a reasonable manner to prevent harm to those on its property. Counsel argues that FMCC had actual knowledge that Mr. Lewis was a poor driver who had operated his vehicle in a negligent fashion prior to the accident. Counsel claims that FMCC [*7]had notice based upon the deposition testimony of non-party witness Jeffrey Saporta who stated that one of the valet's at the scene told him, "this is not the first incident that the driver of the car had on its premises." Saporta also testified that he did not know which valet made that statement and could not describe the individual other than to state he was male. Saporta stated that he also questioned another valet after the accident and confirmed that Lewis had other incidents. He did not personally know how many prior incidents Lewis was involved in and he did not know which valet imparted that information to him. Counsel also notes that Mr. Lewis, himself, admitted he had struck another vehicle on one occasion a year or two prior to the accident. Thus, counsel claims that these evidentiary facts support a finding that employees of FMCC were aware that Lewis was a poor driver and therefore raises a question of fact as to actual notice on the part of the Club. Further, counsel claims that based upon the testimony of former FMCC's President Allen Kaplan, that the Club's bylaws permitted them to suspend the privileges of their members for inappropriate conduct. In view of the bylaws, counsel contends that the Club was negligent in failing to restrict Lewis's driving at the Club and that there is a question of fact as to whether the failure to remedy the danger to the persons on their premises by restricting Lewis's driving was a proximate cause of the accident.

In support of their opposition, FMCC submits a copy of the deposition testimony of Jeffrey Saporta, as summarized above, and a copy of the deposition testimony of Allen Kaplan, which was taken on February 4, 2011. In this regard the copy of the transcript of Kaplan's deposition testimony submitted to the Court contains only the odd numbered pages of his deposition and as such has no probative value. Counsel also submits a copy of the Club's bylaws from 2007 which states in part at page 5 section 2, that a member's privileges may be suspended for inappropriate conduct. Said section states in part that "any member or member of his or her family guilty of any conduct unbecoming a gentleman, or lady, as the case may be, or any member who shall violate the BY-Laws rules or regulations...may be disciplined, suspended or expelled by a two-thirds vote of the Board of Governors present at any meeting of the Board...The Board of Governors shall be the sole judge of what constitutes misconduct or conduct unbecoming a gentleman or lady, and what constitutes a violation of the By-Laws, rules and regulations of the Club..."

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure of the moving party to make such a prima facie showing requires denial of the motion regardless of the insufficiency of the opposing papers (see Sheppard-Mobley v King, 10 AD3d 70[2d Dept. 2004]). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v New York,49 NY2d 557[1980]).

"A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" (Jean v [*8]Wright, 82 AD3d 1163[2d Dept. 2011] quoting Jaume v Ry Mgmt. Co., 2 AD3d 590 [2d Dept. 2003]).

This duty arises when there is an ability and opportunity to control such conduct, and the defendant is reasonably aware of the necessity for such control (see Jaume v. Ry Mgmt. Co., supra; D'Amico v Christie, 71 NY2d 76; Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946 [2d Dept. 2008]; Cutrone v Monarch Holding Corp., 299 AD2d 388 [2d Dept. 2002]). "A property owner cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience "that there is a likelihood of conduct on the part of third persons....which is likely to endanger the safety of the visitor'" (Jean v Wright, supra., quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [1980]). Although there is no allegation in this case that Lewis's acts were intentional, the basis of plaintiff's complaint is that because Lewis was a poor driver he was a known danger to the safety of individuals on the premises.

Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition, and the defendant's reply thereto, this court finds that FMCC established, prima facie, that FMCC did not have actual or constructive notice of Mr. Lewis's allegedly poor driving record or of his prior accident on the premises. The deposition testimony submitted by FMCC which consisted of Ms. Adler's testimony as well as the testimony of four employees of the Club and an independent eyewitness was sufficient to demonstrate that the management and employees of the Club had no reason to believe that Mr. Lewis was a driving risk. Therefore, the Club demonstrated, prima facia, that the conduct of Mr. Lewis was not foreseeable.

There is no dispute that Ms. Adler was struck by Mr. Lewis's vehicle. Lewis apologized to Ms. Adler at the scene and admitted his negligence when he explained that he had taken his foot off of the brake when he arrived in the valet area because he thought the car was in park when it actually was still in drive. Although he tried to stop the car by pressing on the brake when his daughter warned him that the car was rolling, he stated that he stepped on the brake too late. Mr. Lewis also conceded that he had a minor accident at the Club a year or two prior to this incident when he backed into another vehicle causing about $300 worth of damage. He paid for the damage himself and that incident was not reported to the Club. All of the witnesses employed by the Club including Ms. Zeoli and valets, Jose Nunez, Jose Florez, and Robin Castillo testified that they were not aware of Lewis's prior accident nor did they have knowledge of any other accidents that he was involved in. The only testimony regarding prior accidents was from Mr. Saporta who testified that an unidentified valet told him Lewis had a reputation as a bad driver. However, Saporta was not personally aware of any prior incidents involving Lewis and could not provide the details of any prior accidents.

Therefore, this Court finds that FMCC demonstrated that they had no notice that Lewis had a poor driving record or that they were aware of any prior incidents that would tend to show that it was foreseeable that he was likely to cause injury to another individual on the premises of the Club. Thus FMCC showed that there was no basis in the record for them to have had a reason [*9]to restrict Lewis's driving privileges. Thus the Club demonstrated, prima facie, that it was not liable for the injury sustained by Ms. Adler as it could not protect members and guests of the Club from an alleged danger of which it had no notice.

In opposition, the plaintiffs failed to raise a question of fact as to whether FMCC had notice of and should have been aware that Lewis was a poor driver and that his prior record formed the basis to have restricted his driving privileges under the Club's bylaws. The deposition testimony of Saporta to the effect that an unknown valet told him that Lewis was a poor driver without providing the basis for that conclusion is not legally sufficient to establish the forseeability of the act or that the failure to suspend or restrict Lewis's driving privileges was a proximate cause of the accident. Further Ms. Adler's testimony that her brother told her that Lewis had a poor record is insufficient to raise a question of fact as that statement is hearsay and as Poses did not submit a factual affidavit to support his statement that the valets were aware of Lewis's poor driving ability. None of the deposition testimony submitted raises a question of fact as to whether it was forseeable based upon any prior conduct by Lewis that his driving posed a danger to the individuals on the premises of the Club or that the Club had a basis to restrict his privileges.

Further, there was no evidence to contradict Lewis's testimony regarding the one prior accident he testified to as being minor in nature and causing only $300 in property damage and no testimony that there were any prior complaints made to FMCC regarding Lewis's driving ability. There was no direct proof that the Club was aware of this prior accident, and even if it were, the facts of the prior accident do not substantiate the plaintiffs' claim that the defendant was a "poor driver" and do not substantiate the hearsay testimony that the valets would run when he drove up or that he was required to park his own vehicle. In fact, the hearsay testimony of Saporta and Adler was belied by the testimony of the three valets and the Comptroller all of whom testified that they had no knowledge upon which to conclude that Lewis was a poor driver. Thus the plaintiffs' argument that FMCC had notice of the poor driving record based upon the hearsay statements of Saporta and Poses is unavailing, absent evidence that the defendant was a dangerous driver.

Accordingly, the deposition testimony submitted by the plaintiffs does not raise a question of fact as to the forseeability of the act or that the failure to suspend or restrict Lewis's driving privileges was a proximate cause of the accident. Here, liability may not be imposed on FMCC as they merely furnished the condition for the occurrence of the event and there was no question of fact raised that FMCC's actions or lack of action was a proximate cause of the accident (see Peralta v Manzo, 74 AD3d 1307 [2d Dept. 2010]; Shatz z v Kutshers Country Club, 247 AD2d 375 [2d Dept. 1998]). It is clear that the sole proximate cause of the accident was Lewis's independent conduct in failing to properly put his car in park.

Accordingly, for all of the above-stated reasons it is

ORDERED, that the motion by defendant FRESH MEADOW COUNTRY CLUB, INC., [*10]for summary judgment dismissing the complaint and all cross-claims against it is granted, and it is further

ORDERED and the Clerk of Court is authorized to enter judgment accordingly.

Dated: August 31, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.