[*1]
Incantalupo v Villa Roma Resort
2014 NY Slip Op 51224(U) [44 Misc 3d 1221(A)]
Decided on August 14, 2014
Supreme Court, Nassau County
Marber, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 14, 2014
Supreme Court, Nassau County


Joseph Incantalupo and FRANCINE INCANTALUPO, Plaintiffs,

against

Villa Roma Resort and CONFERENCE CENTER INC., Defendants.




001048/12



Law Offices of Mitchell & Incantalupo



Attorneys for the Plaintiffs



98-20 Metropolitan Avenue



Forest Hills, New York 11375



Ph: (718) 997-1000



Fax: (718) 575-1600



Tarshis & Hammerman, LLP



Attorneys for the Defendant



118-35 Queens Boulevard



Forest Hills, New York 11375



Ph: 718-793-5000


Randy Sue Marber, J.

Papers Submitted:Notice of Motion.................................................x



Memorandum of Law..........................................x



Affirmation in Opposition...................................x



Reply Affirmation................................................x



Upon the foregoing papers, the motion by the Defendant, VILLA ROMA and CONFERENCE CENTER INC.(hereinafter "Villa Roma"), seeking an order granting it summary judgment pursuant to CPLR § 3212 and dismissing the Plaintiff's complaint, is determined as hereinafter provided.



This is an action to recover damages for personal injuries allegedly sustained by the Plaintiff, JOSEPH INCANTALUPO, on February 18, 2009, when he slipped and fell on snow and ice at the Villa Roma Resort and Conference Center Ski Chalet location in Callicoon, NY. The Plaintiff commenced this action by filing a Summons and Verified Complaint in the Office of the Nassau County Clerk on January 26, 2012. Issue was joined by the Defendant, Villa Roma, on April 4, 2012.



The Plaintiff alleged that the accident occurred as a result of the Defendant, Villa Roma's negligence in, inter alia, carelessly allowing the walkway to the parking lot to accumulate ice, snow covered ice and snow, failing to properly inspect and maintain the walkway and failing to warn the Plaintiff of the dangerous condition. (See Verified Complaint annexed to the Notice of Motion as Exhibit "B" at ¶ 9 (b)(c)(d)) The Verified Bill of Particulars, states that the hazardous condition was snow covered ice within the parking lot and that the Defendant was negligent in causing, allowing and permitting the walkway leading to the parking lot and within the parking lot area to become and remain in a hazardous and unsafe condition with snow covered ice. (See Verified Bill of Particulars annexed to the Notice of Motion as Exhibit "A" at ¶ 5)



At his Examination Before Trial ("EBT") on February 7, 2013, the Plaintiff testified that he walked from the chalet on a path towards the parking lot prior to his accident. (See EBT transcript annexed to the Notice of Motion as Exhibit "D", p. 72, l. 4-23) He testified that at some point he left the path to walk on the hill towards his car. (Id. at p. 78, l. 5-25, p. 79, l. 20-15) The Plaintiff testified that he estimated the hill to be about forty feet from where he left the walkway to the bottom of the hill. (Id. at p. 80, l. 14-18) He testified that the hill was covered in snow and that there was no marked path other than other footprints. (Id. at p. 80, l. 19-23) The Plaintiff further testified that if he continued walking on the path instead of walking over the hill it would lead to the parking lot, but walking over the hill was a shorter path. (Id. at p. 80, l. 24-25, p. 81, l. 2-14) The Plaintiff testified that he walked almost all the way down the hill and was at the bottom of the hill when he fell. (Id. at p. 83, l. 2-10)



The Plaintiff's Affidavit, submitted in opposition to the motion, states that he and his family arrived at the Villa Roma Resort two or three days prior to his accident. (See Plaintiff's Affidavit sworn to on July 7, 2014, annexed to the Affirmation in Opposition as Exhibit "1 ") It stated that on each of the days prior to the accident they used the snow covered path to walk from the ski chalet and driveway to the parking lot. (Id.) It further stated that on each of these days the snow was trampled down by people who were also using the pathway. (Id.)



The Affidavit of the Plaintiff's son, James Incantalupo, submitted in opposition to the motion, states that he saw his father fall on snow covered ice which had accumulated at the area of the parking lot and hill. (See Affidavit of James Incantalupo sworn to on July 7, 2014, annexed to the Affirmation in Opposition as Exhibit "2") He states that the ice was formed by the use of the pathway by the people who had gone down to their cars during that day. (Id.) He further states that there were no signs indicating that one should not walk down the hill path to the parking lot nor did anyone from Villa Roma indicate that he should not go down that path. (Id.)



At the EBT of the Defendant, Villa Roma, on February 7, 2013, Jeffrey Coccodrilli testified that he has been employed by the Defendant, Villa Roma, for thirteen years and his current position is Golf Course Superintendent and Ski Chalet Manager. (See EBT transcript annexed to the Notice of Motion as Exhibit "E" at p. 7, l. 16-25) He testified that while working at Villa Roma, he became aware that patrons could walk down the hill from the driveway to the parking lot and that there are no signs posted in the area warning patrons not to use that route. (Id. at p. 11, l. 7-15) Mr. Coccodrilli testified that snow removal in the parking lot is done as needed based on the observations of himself and other employees. (Id. at p. 11, l. 16-25, p. 12, l. 2-8) He testified that the hotel maintenance department plows, sands and salts the parking lot. (Id. at p. 12, l. 12-16)



The Affidavit of Mr. Coccodrilli, submitted in support of the motion, states that the Defendant, Villa Roma, does not shovel snow from the grass-covered hill/field because it is a grass-covered hill and not a roadway. (See Affidavit of Jeffrey J. Coccodrilli, sworn to on May 19, 2014, annexed to the Notice of Motion)



In support of its motion, the Defendant, Villa Roma, relies on the pleadings, the EBT transcripts of the Plaintiff and Mr. Coccodrilli and the Affidavit of Mr. Coccodrilli. It argues that it had no duty to clear snow or ice from the grassy hill area at its ski resort. The Defendant, Villa Roma, further contends there was nothing blocking the Plaintiff from continuing to walk on the road to the parking lot and that the Plaintiff chose to take a short-cut over the grassy, snow-covered hill instead of the road. The Defendant, Villa Roma, argues that based on the foregoing facts, it had no duty to clear snow or ice from the snow-covered hill, which was not an intended walkway. Therefore it argues, it cannot be held liable for negligence and should be granted summary judgment.



In opposition to the motion, the Plaintiff relies on the EBT transcripts of the Plaintiff and Mr. Coccodrilli, the Affidavits of the Plaintiff and James Incantalupo, as well as the photographs marked as exhibits at the Plaintiff's EBT. The Plaintiff argues that common use of the path by patrons of the facility, the location of the path in relation to the ski chalet and the fact that Mr. Coccodrilli was aware that patrons used such path to the parking lot demonstrates that the Defendant, Villa Roma, was aware of the hazardous condition created by the use of the down hill path to the parking lot. The Plaintiff contends that based on the Affidavits, the condition existed for several days prior to the accident. The Plaintiff asserts that there is a question of fact whether the Defendant, Villa Roma, should have noticed and remedied the condition or place warning signs prior to the accident.



The Plaintiff further argues that Mr. Coccodrilli is not a witness with knowledge of the facts because the parking lot was under the supervision of the hotel maintenance department, in which Mr. Coccodrilli is not a member, and no affidavit was provided by a member of the maintenance department.



In reply in further support of the motion, the Defendant, Villa Roma, contends that the Plaintiff's argument that it should have shoveled the grassy hill because patrons walked on the hill, thereby creating a path, does not set forth a valid cause of action. The Defendant, Villa Roma, contends that the Plaintiff's suggestion that it had a duty to clear snow from a grassy hill in the Catskill Mountains "flies in the face of logic", especially where there was a cleared roadway available for patrons to use. (See Reply Affirmation at ¶ 5)



The Defendant, Villa Roma, contends that the photographs, annexed to the Plaintiff's Affirmation in Opposition to show that patrons had allegedly created a path to the parking lot, [*2]actually contradict the Plaintiff's argument. The Defendant, Villa Roma, argues that the photographs depict footprints in various locations on the hill and three people walking on the hill in different locations. The Defendant, Villa Roma, contends that the photographs show there wasn't a path.



The Defendant, Villa Roma, argues that the Plaintiff's Affidavit submitted in opposition to the motion contradicts his EBT testimony. Specifically, the Plaintiff testified at his EBT that he didn't see anything prior to his fall and that he didn't see what caused his fall. However, his Affidavit states that "prior use of the path by other patrons as well as the fact the day was getting colder as we approached the evening hours was the direct cause of the dangerous condition which resulted in my accident and injuries." (See Affidavit of Plaintiff annexed to the Affirmation in Opposition as Exhibit "1") The Defendant, Villa Roma, argues that the Affidavit of James Incantalupo should be disregarded because there was no testimony that he actually witnessed the accident and he is not qualified to give his opinion as to what caused the allegedly icy condition.



Finally, the Defendant, Villa Roma, contends that Mr. Coccodrilli's testimony and Affidavit are sufficient evidence to grant summary judgment. The Defendant, Villa Roma, asserts that the Plaintiff previously moved this Court for the deposition of a person from the hotel maintenance department. The Honorable Margaret C. Reilly, J.S.C. held that the Plaintiff had "failed to demonstrate that the deposition of additional witnesses would result in the disclosure of relevant evidence, or would lead to discovery of information bearing on their claims." (See Decision and Order dated November 25, 2013 annexed to the Reply Affirmation as Exhibit "A") The Defendant, Villa Roma, argues that even without the Court's prior Order, the Plaintiff does not claim that it failed to clear snow from the parking lot and the Defendant, Villa Roma, admits that it did not clear snow and ice from the hill. Therefore, the Defendant, Villa Roma, argues that Mr. Coccodrilli's testimony is sufficient to support its motion.



On a motion for summary judgment, the Court's function is to decide whether there is a material factual issue to be tried, not to resolve it. (Sillman v. Twentieth Century Fox Films Corp., 3 NY2d 395, 404 [1957]) A prima facie showing of a right to judgment is required before summary judgment can be granted to a movant. (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Fox v. Wyeth Laboratories, Inc., 129 AD2d 611 [2d Dept. 1987]; Royal v. Brooklyn Union Gas Co., 122 AD2d 133 [2d Dept. 1986])



A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie case that it neither created the hazardous or defective condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. (Sloane v. Costco Wholesale Corp., 49 AD3d 522 [2d Dept. 2008])



"The location of the accident is significant because, in general, a property owner has no duty to clear snow and ice from unpaved areas not intended to be used as a public walkway, as long as nearby sidewalks provide an adequate means of access to the property." (Dalli v. McGreen, 36 Misc 3d 1234(A) [NY Sup. Ct. 2012]) Furthermore, "a landowner does not have a duty to remove snow and ice from a yard area off and away from the public walkway." (Garcia v. New York City Hous. Auth., 234 AD2d 102 [1st Dept. 1996]) (See also Yan Quan Wu v. City of New York, 42 AD3d 451 [2nd Dept. 2007]) (Defendant established their prima facie entitlement to summary judgment by showing they had no duty to clear the grassy area adjacent to the sidewalk and undertook no snow removal efforts in the area where the plaintiff fell.) Here, the Defendant has [*3]made a sufficient prima facie showing of entitlement to summary judgment.



Once a movant has shown a prima facie right to summary judgment, the burden shifts to the plaintiff to "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which would require a trial of the action. (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). On a summary judgment motion, the evidence must be viewed in a light most favorable to the nonmoving party. (Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007])



In the instant matter, the Court finds that summary judgment is appropriate as the Plaintiff has failed to establish that an issue of fact exists. "A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it. (Cruz v. Rampersad, 110 AD3d 669 [2nd Dept. 2013]; Viera v. Rymdzionek, 112 AD3d 915 [2nd Dept. 2013]; Devlin v. Selimaj, 116 AD3d 730 [2nd Dept. 2014]; Morreale v. Esposito, 109 AD3d 800 [2nd Dept. 2013]) "However, the defendants' general awareness of this recurring condition was insufficient to establish their constructive notice of the specific icy condition on their driveway that allegedly caused the plaintiff to fall." (Cruz, 110 AD3d at 670)



Here, even if the Defendant had a duty to remove snow and ice from the grassy hill where the accident took place, the Plaintiff failed to raise an issue of fact as to whether the Defendant, Villa Roma, had actual or constructive notice of a hazardous condition. Despite Mr. Coccodrilli's testimony that he was aware that patrons could at times walk down the hill from the driveway to the parking lot, the Plaintiff provided no competent evidence to establish that the Defendant, Villa Roma, had constructive notice of the specific icy condition at the area of the Plaintiff's accident or that it had sufficient time to discover and remedy it.



Accordingly, it is hereby



ORDERED, that the Motion by the Defendant, Villa Roma, seeking an order awarding it summary judgment pursuant to CPLR § 3212 and dismissing the Plaintiff's complaint, is GRANTED.



This constitutes the decision and order of the Court.



Dated:Mineola, New York



August 14, 2014

_______________________________

Hon. Randy Sue Marber, J.S.C.

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