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FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
____________---------__---------------x
VICTOR CALDERON, Index #152018/20
Plaintiff, AFFIRNATION IN
SUPPORT
-against-
HOLIDAY VILLAS AT OAKWOOD HOMEOWNERS
ASSOCIATION, INC., CHRISTINA FALGIANO
and J.K.S., INC. d/b/a J&K LANDSCAPING,
Defendants.
--_________---------------------______Ç
ANTHONY J. ABRUSCATI, an attorney duly admitted to practice
law before the Courts of the State of New York, hereby affirms to
the truth of the following under the penalties of perjury:
1. I am an associate of the law firm of NICOLINI, PARADISE,
FERRETTI & SABELLA, attorneys for defendant CHRISTINA FALGIANO,
and, as such, am fully familiar with all the of facts and
circumstances heretofore had herein based upon a file maintained in
this office.
2. This affirmation is submitted in support of defendant's
motion for summary judgment pursuant to CPLR §3212, for an Order
granting summary judgment to CHRISTINA FALGIANO, and dismissing
plaintiff's complaint all cross-claims against her, based upon
plaintiff's failure to make out a prima facie case of negligence as
and against this defendant, and that the movant did not owe a duty
to plaintiff.
PROCEDURAL HI STORY
3. This personal injury lawsuit was instituted via Summons and
Complaint dated October 15, 2021. Issue was joined by the filing
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of an Answer on behalf of defendant CHRISTINA FALGIANO (hereinafter
referred to as "FALGIANO") on January 6, 2021 and defendant HOLIDAY
VILLAS AT OAKWOOD HOMEOWNERS ASSOCIATION, INC. (hereinafter
referred to as "HOLIDAY VILLAS") on January 26, 2021. Copies of
these pleadings are attached hereto collectively as Exhibit "A".
4. Defendant HOLIDAY filed a Third-Party Summons & Complaint
against J.K.S., INC. d/b/a J&K LANDSCAPING (hereinafter referred to
"J&K"
as on or about March 31, 2021. J&K filed an Answer to the
Third-Party Summons & Complaint on April 12, 2021. Copies of the
third-party pleadings are attached hereto collectively as Exhibit
5. On June 22, 2021, plaintiff filed a motion for leave to
file an Amended Summons & Complaint to add J&K as a direct
defendant. The motion was unopposed and the Court granted the
motion via Court Order dated July 27, 2021. A copy of the motion
(less exhibits) and the Court Order are attached hereto
collectively as Exhibit "C". A copy of the Amended Complaint and
the Answers thereto are attached hereto collectively as Exhibit
"D".
6. Plaintiff served a Verified Bill of Particulars and
Supplemental Bill of Particulars on February 23, 2021 and July 16,
2021, respectively. Copies of the Bills of Particulars are
attached hereto collectively as Exhibit "E".
7. Plaintiff, VICTOR CALDERON (hereinafter referred to as
"CALDERON") appeared for a deposition on May 6, 2022. A copy of
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the deposition transcript with marked exhibits is attached hereto
as Exhibit "F".
8. Defendant J&K, by Keith Schaffer, appeared for a deposition
on May 26, 2022. A copy of the deposition transcript with exhibits
is attached hereto as Exhibit "G".
9. Defendant FALGIANO appeared for a deposition on May 26,
2022. A copy of the deposition transcript is attached hereto as
Exhibit "H".
10. Defendant HOLIDAY VILLAS appeared for a deposition via
their witness, Sheryl Iavarone on May 19, 2022. A copy of the
deposition transcript with exhibits is attached hereto as Exhibit
11. A copy of the Homeowners Rules and Regulations for the
HOLIDAY VILLAS is attached hereto as Exhibit "J".
12. A copy of the contract for lawn maintenance between J&K
and HOLIDAY VILLAS is attached hereto as Exhibit "K".
FACTUAL BACKGROUND
DEPOSITION TESTIMONY OF PLAINTIFF, VICTOR CALDERON
13. The subject incident occurred on May 25, 2020, sometime in
the afternoon at a property located on Garth Lane in Staten Island,
New York 16- (as set forth below the is located
(F, 17) property
within the Holiday Villas Condominium Complex, and the address was
21 Garth Lane, Staten Island NY). Plaintiff arrived at the location
when he was driven by his friend and landlord, Miriam Mannarino,
who is also the mother of defendant CHRISTINA FALGIANO. (F, 20-21).
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Because months Covid-
the incident occurred during the early of the
19 pandemic, the parties were meeting outside for social distancing
purposes. (F, 21-22). The accident occurred in front of Ms.
Falgiano's home, on the grass adjacent to the walkway leading to
the front door. (F, 26). At the time, plaintiff was standing on
the walkway, playing with chalk (Ms. Falgiano's children were
present) and he saw one of the girls head towards him, (due to
social distancing) he went to step aside, stepping back off of the
walkway and his foot got caught in a gap where the grass met the
sidewalk (F, 27, 35). He clarified and indicated that the grass
was not level with the sidewalk and that there was a gap betweeh
the grass and sidewalk (F, 28). He previously visited the
location, but never observed the area on other occasions (F, 29).
In the five times he previously visited the area, he did not
observe the height differential between the grass and the walkway
(F, 31).
14. More specifically, when facing the home, the accident
occurred on the left side of the walkway. Plaintiff recognized the
"A"
photograph marked as defendant's Exhibit as depicting the area
where his accident occurred(F, 50-51).
DEPOSITION TESTIMONY OF DEFENDANT HOLIDAY VILLAS
15. Sheryl Iavarone testified on behalf of defendant, HOLIDAY
VILLAS, she is the property manager for the Holiday Villas(I, 11).
HOLIDAY VILLAS are cluster homes that are two stories and semi
attached in a private community (I, 14-15). It is her understanding
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that the front lawns and walkways are considered common areas,
including front lawn in front of 21 Garth Court, Staten Island NY
(I, 13). HOLIDAY VILLAS was responsible for maintaining the common
areas, including maintaining the lawn and areas outside in front of
21 Garth Court, Staten Island NY on May 25, 2020 (I, 13). The
common area does include the lawn (I. 16).
16. HOLIDAY VILLAS did have a contract with landscapers (I,
16-17). Ms. Iavarone, on behalf of the HOLIDAY VILLAS would have
the authority to direct, supervise and control the work being
performed in the common areas involving the lawn, walkways and she
would be involved in handling complaints and would act as the
intermediary between the Board and the residents (I, 17-18). Ms.
Iavarone, is unaware of any complaints being made about the walkway
and grass area at issue, prior May 25, 2020 (I, 22). Ms. Iavarone
was shown a photograph marked as plaintiff's Exhibit "4". After May
25, 2020, Ms. Iavarone received a phone call from defendant,
CHRISTINA FALGIANO, indicating that there was an issue with the
height difference between the grass and the walkway in front of 21
Garth Court (I, 31). The sum and substance of the conversation was
that someone fell as a result of the height differential.(I, 26).
17. If Ms. Iavarone had been informed of the condition (i.e.
the height difference between the walkway and the grass) she
testified that she would have called the vendor to have a vendor
look at it (I, 33-34). As a result of the subject incident and the
call from Ms. Falgiano, Ms. Iavarone, on behalf of the HOLIDAY
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VILLAS'
VILLAS, reached out to the HOLIDAY contracted landscaper,
J&K LAndscaping (I, 35). J&K has been performing landscaping for
the HOLIDAY VILLAS for more than 20 years (I, 35). There was a
contract in place, signed be representatives on behalf of and
between HOLIDAY VILLAS and J&K LANDSCAPING for the landscaping of
the HOLIDAY VILLAS (I, 36). All invoices for landscaping work
performed by J&K were directed to Ms. Iavarone on behalf of the
HOLIDAY VILLAS (I, 37).
18. Ms. Iavarone is familiar with the Homeowners Rules and
Regulations (I, 39). She was shown a document that was shown a
defendants' "A"
document that was marked as Exhibit at her
deposition that was an Amended Response to Notice for Discovery &
Inspection that includes "the Holiday Villas at Oakwood, HOA Rules
Regulations."
and Ms. Iavarone indicated that she, along with the
Board, was involved in drafting the rules (I, 41). See Exhibit J
annexed hereto.
19. Page 177 of the document indicates that there are common
charges, (i.e. a fee paid by the residents for monthly maintenance
that includes landscaping of the common grounds) and this area
includes the areas in front of 21 Garth Court that are landscaped
by J&K LANDSCAPING and confirmed by Ms. Iavarone. (I, 42-43). Ms.
Iavarone identified the contract between J&K and the HOLIDAY VILLAS
"B"
as the document marked as Exhibit at her deposition (I, 47-48;
see Exhibit "K"). She acknowledged that she signed the document as
an agent on behalf of the HOLIDAY VILLAS and the other signature
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was by someone from J&K (I, 48-49).
DEPOSITION TESTIMONY OF DEFENDANT J&K LANDSCAPING
20. Keith Schaffer is one of the owners of J&K LANDSCAPING (G,
19). J&K handles lawn maintenance and landscaping (G, 10). J&K had
a written agreement to perform landscaping and lawn maintenance at
the HOLIDAY VILLAS in May of 2020 and the contract was between J&K
and signed by the HOLIDAY VILLAS by Sheryl Iavarone(G, 11-12).
21. As part of their work, J&K maintains the grass, including
cutting grass, edging grass and cleaning up as well as spot seeding
at the HOLLIDAY VILLAS (G, 12-13). J&K did receive a call from
Sheryl at the HOLIDAY VILLAS to regrade the lawn adjacent to the
walkway in front of 21 Garth Court at some point after May 25, 2020
(G, 13). Mr. Schaffer has no recollection of the edge work adjacent
to the walkway in front of 21 Garth Court prior to May 25, 2020,
and he is unfamiliar with the grade of that area and indicated that
there was no concrete work ever performed in that location to his
recollection and that any grade of the land was as a result of the
way the builder built the location (G, 22).
22. He recognized that the contract between J&K and HOLIDAY
VILLAS for lawn maintenance contained a signature for Sheryl
Iavarone on behalf of the HOLIDAY VILLAS(G, 26). The document on
behalf of J&K was signed by Mr. Schaffer's brother, co-owner (G,
26-27). The witness was shown the photograph marked as plaintiff's
"3"
Exhibit in which he acknowledged it was the walkway in front
1.5'-2'
of 21 Garth Court and noticed a height differential from
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"3"
the sidewalk to the grass area (G, 31; see plaintiff's Exhibit
annexed hereto). Sometime after May 25, 2020, the witness was
contacted by Sheryl to regrade the area which he recognizes as
being in front of 21 Garth Court (G, 33).
DEPOSITION TESTIMONY OF DEFENDANT CHRISTINA FALGIANO
23. CHRISTINA FALGIANO used to own and live at 21 Garth Court,
Staten Island, New York (H, 11). She described it as a townhouse
attached on both sides with a walkway leading to the front and
grass on either side of the walkway (H, 12). It is her
understanding that she did not have any responsibility for
maintaining the area outside of the property and that the
Homeowners Association hired landscapers to maintain the lawn and
grass outside of the property (H, 14).
24. Ms. Falgiano knows plaintiff, CALDERON as her mother's
tenant (H, 14). On May 25, 2020, her mother and Mr. Calderon
visited the townhome (H, 15). The visit was simply to do an outside
visit during Covid, as the parties would remain socially distanced
(H, 16). The accident occurred when CALDERON was standing on the
walkway and as a child ran up the walkway, he stepped back to step
away from where the child was proceeding and fell to the ground (H,
16). She notice after the fall that there was a height differential
between the and the grass adjacent to the 16-
walkway walkway (H,
17). Ms. Falgiano was shown various photographs at her deposition
and ultimately recognized that one of the photographs showed dirt
that was placed in the area adjacent to the walkway after the
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incident occurred and after she made the complaint regarding the
accident (H, 20-22). Ms. Falgiano reconfirmed that she did not
have any involvement in maintaining the lawn in front of the
property, that was handled by the HOLIDAY VILLAS (H, 25-26). The
dirt that was placed adjacent to the walkway was placed there by
the landscapers (H, 29). After the incident, Ms. Falgiano reported
the accident to Sheryl Iavarone (H, 30). Ms. Falgiano did pay
Homeowners Association dues as of the time of the incident and part
of those dues did cover the maintenance of the grass in front of
the unit that was handled by the HOLIDAY VILLAS and J&K (H, 34).
LEGAL STANDARD
25. The proponent of a summary judgment motion must make a
prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material issues of
fact from the case". Winegrad v. New York Univ. Med. Ctr., 64 NY2d
851, 852, 476 NE2d 642 (1985).
26. "It is fundamental that 'summary judgment should only be
granted where there are no material and triable issues of fact
(Stretch v. Tedesco, 263 AD2d 538, 693 N.Y.S.2d 203; see Andre v.
Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853) and that
'issue finding, as opposed to issue determination, is the key to
judgment'
summary (Stretch v. Tedesco , supra at 539, 693 N.Y.S.2d
203; see Judice v. DeAnaelo, 272 A.D.2d 583, 709 N.Y.S.2d 427).
Paulin v. Needham,28 AD3d 531, (2d Dept. 2006).
27. Conclusory, subservient and speculative allegations are
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insufficient to sustain an action or defeat a motion for summary
judgment. Goodman v. 78 West 47th Street Corp., 253 A.D.2d 384
(1st Dept. 1998); Zuckerman v. City of New York, 404 N.E.2d 718
(1980).
LE GAL S TANDARD
28. The proponent of a summary judgment motion must make a
prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material issues of
fact from the case". Winegrad v. New York Univ. Med. Ctr., 64 NY2d
851, 852, 476 NE2d 642 (1985).
29. "It is fundamental that 'summary judgment should only be
granted where there are no material and triable issues of fact
(Stretch v. Tedesco, 263 AD2d 538, 693 N.Y.S.2d 203; see Andre v.
Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853) and that
'issue finding, as opposed to issue determination, is the key to
judgment'
summary (Stretch v. Tedesco, sspra at 539, 693 N.Y.S.2d
203; see Judice v. DeAngelo, 272 A.D.2d 583, 709 N.Y.S.2d 427).
Paulin v. Needham,28 AD3d 531, (2d Dept. 2006).
30. Conclusory, subservient and speculative allegations are
insufficient to sustain an action or defeat a motion for summary
judgment. Goodman v. 78 West 47th Street Corp., 253 A.D.2d 384
(1st Dept. 1998); Zuckerman v. City of New York, 404 N.E.2d 718
(1980).
LE GAL ARGUMENT
POINT I
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HOLIDAY VILLAS WAS RESPONSIBLE FOR MAINTAINING THE LAWN AT ISSUE
AND DEFENDANT FALGIANO OWED NO DUTY TO PLAINTIFF
31. An "essential element of any negligence case...[is the
existence of a] duty. Without a duty running directly to the
injured person there can be no liability in damages, however
careless the conduct or foreseeable the harm (see, Pulka v.
Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019,
rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640; see
also Prosser and Keeton, Torts § 53, at 357 [5th ed.]; 3 Harper,
James and Gray, Torts § 18.1, at 650 [2d ed.] ). Lauer v. City of
New York, 733 N.E.2d 184, 187 (NY 2000).
32. Here, it is uncontroverted that the area where plaintiff
fell is a part of a common area (i.e. the grass and walkway in
front of the property).
33. Defendant CHRISTINA FALGIANO was not responsible for
maintaining the location where plaintiff's accident occurred and,
as such, did not owe a duty to plaintiff.
34. In the Homeowners Ruled and Regulations, the landscaping
section notes "the grass is maintained by our lawn maintenance
contractor. However, you are required to water the area a regular
season."
intervals in the summer (I, 13, 16).
35. Sheryl Iavarone conceded that the lawn and area in front
of 21 Garth Court are common areas. (I, 13, 16). Ms. Falgiano did
pay Homeowners Association dues as of the time of the incident and
part of those dues did cover the maintenance of the grass in front
of the unit that was handled by the HOLIDAY VILLAS and J&K (H, 34)
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36. The contract between J&K Lanscapers and THE HOLIDAY VILLAS
indicates that lawn maintenances is being paid for by the HOLIDAY
VILLAS and performed by J &K Landscaping. (I, 16-18). Sheryl
Iavarone executed the contract on behalf of the Holiday Villas.
(I, 16-17) and in her role, admitted that she would have the
authority to direct, supervise and control the work being performed
in the common areas involving the law and walkways and that she
would act as the intermediary between the Board and the residents
regarding any complaints(I, 17-18).
37. Ms. Iavarone admitted that is she knew of the alleged
condition at the time of the incident (i.e. the height difference
between the walkway and the grass) that she would have called the
vendor (i.e. J & K Landscapiong) to look at it (I, 33-34).
38. Ultimately, Ms. Iavarone, on behalf of the HOLIDAY VILLAS,
did contact J&K Landscaping (I, 35) to address the alleged
condition at issue. . J&K has been performing landscaping for the
HOLIDAY VILLAS for more than 20 years (I, 35). There was a
contract in place, signed be representatives on behalf of and
between HOLIDAY VILLAS and J&K LANDSCAPING for the landscaping of
the HOLIDAY VILLAS (I, 36). All invoices for landscaping work
performed by J&K were directed to Ms. Iavarone on behalf of the
HOLIDAY VILLAS (I, 37, 47-49, and See Exhibit K).
39. Ms. Iavarone is familiar with the Homeowners Rules and
Regulations (I, 39). She was shown a document that was shown a
defendants' "A"
document that was marked as Exhibit at her
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deposition that was an Amended Response to Notice for Discovery &
Inspection dated that includes "the Holiday Villas at Oakwood, HOA
Regulations."
Rules and Ms. Iavarone indicated that she, along
with the Board, was involved in drafting the rules (I, 41). See
"K"
Exhibit annexed hereto.
40. Confirming Ms. Iavarones testimony, movant Ms. Falgiano
testified (and it is uncontroverted) that she was not responsible
for maintaining the lawn and walkway, and that she did not have any
involvement in maintaining the area, which was always handled by
the HOLIDAY VILLAS through their contractor. 25-
landscaping (H,
26).
41. Subsequent to the incident, Ms. Falgiano reported
plaintiff's accident to Ms. Iavarone, (H, 30), who then contacted
J&K to handle re-grading the grass in the area where plaintiff
fell. Ms. Falgiano confirmed that the dirt that was placed adjacent
to the walkway was placed there by the landscapers hired by the
HOLIDAY VILLAS. (H, 29).
42. Thus, it is clear that as a resident at the HOLIDAY
VILLAS, there were certain areas which the complex was responsible
(i.e. the common areas such as the walkway and grass in front of 19
Garth Court) to maintain, and they did so via the use of
landscapers. Residents, such as Ms. Falgiano are not responsible
for maintaining these areas.
POINT II
DEFENDANT FALGIANO NEITHER CREATED THE ALLEGED CONDITION NOR DID
SHE HAVE NOTICE OF ITS EXISTENCE
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43. Even if the Court finds that some duty allegedly existed
as to Ms. Falgiano, the record shows that she had nothing to do
with the lawn maintenance and thus, she did not cause any alleged
defective condition to exist, and moreover, all of the testimony is
clear, from plaintiff on down, that no one was aware of the alleged
condition.
44. Ms. Iavarone, who handles resident complaints, is unaware
of any complaints being made about the walkway and grass area at
issue, prior May 25, 2020 (I, 22).
45. The only assertion plaintiff alleges regarding the
defendants having notice of the alleged condition is contained in
the plaintiff's Verified Bill of Particulars, which is conclusory
and unsubstantiated.
46. Conclusory allegations, regarding notice of a condition,
are not sufficient to withstand a motion for summary judgment.
Alvord and Swift v. Stewart M. Muller Constr. Co., 46 NY2d 276, 385
NE2d 1238 (1978); Fried v. Bower & Gardner, 46 NY2d 765, 386 NE2d
258 (1978); Platzman v. American Totalisator Co., 45 NY2d 910, 383
NE2d 876 (1978); Mallad
Preview
FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ____________---------__---------------x VICTOR CALDERON, Index #152018/20 Plaintiff, AFFIRNATION IN SUPPORT -against- HOLIDAY VILLAS AT OAKWOOD HOMEOWNERS ASSOCIATION, INC., CHRISTINA FALGIANO and J.K.S., INC. d/b/a J&K LANDSCAPING, Defendants. --_________---------------------______Ç ANTHONY J. ABRUSCATI, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms to the truth of the following under the penalties of perjury: 1. I am an associate of the law firm of NICOLINI, PARADISE, FERRETTI & SABELLA, attorneys for defendant CHRISTINA FALGIANO, and, as such, am fully familiar with all the of facts and circumstances heretofore had herein based upon a file maintained in this office. 2. This affirmation is submitted in support of defendant's motion for summary judgment pursuant to CPLR §3212, for an Order granting summary judgment to CHRISTINA FALGIANO, and dismissing plaintiff's complaint all cross-claims against her, based upon plaintiff's failure to make out a prima facie case of negligence as and against this defendant, and that the movant did not owe a duty to plaintiff. PROCEDURAL HI STORY 3. This personal injury lawsuit was instituted via Summons and Complaint dated October 15, 2021. Issue was joined by the filing 1 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 of an Answer on behalf of defendant CHRISTINA FALGIANO (hereinafter referred to as "FALGIANO") on January 6, 2021 and defendant HOLIDAY VILLAS AT OAKWOOD HOMEOWNERS ASSOCIATION, INC. (hereinafter referred to as "HOLIDAY VILLAS") on January 26, 2021. Copies of these pleadings are attached hereto collectively as Exhibit "A". 4. Defendant HOLIDAY filed a Third-Party Summons & Complaint against J.K.S., INC. d/b/a J&K LANDSCAPING (hereinafter referred to "J&K" as on or about March 31, 2021. J&K filed an Answer to the Third-Party Summons & Complaint on April 12, 2021. Copies of the third-party pleadings are attached hereto collectively as Exhibit 5. On June 22, 2021, plaintiff filed a motion for leave to file an Amended Summons & Complaint to add J&K as a direct defendant. The motion was unopposed and the Court granted the motion via Court Order dated July 27, 2021. A copy of the motion (less exhibits) and the Court Order are attached hereto collectively as Exhibit "C". A copy of the Amended Complaint and the Answers thereto are attached hereto collectively as Exhibit "D". 6. Plaintiff served a Verified Bill of Particulars and Supplemental Bill of Particulars on February 23, 2021 and July 16, 2021, respectively. Copies of the Bills of Particulars are attached hereto collectively as Exhibit "E". 7. Plaintiff, VICTOR CALDERON (hereinafter referred to as "CALDERON") appeared for a deposition on May 6, 2022. A copy of 2 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 the deposition transcript with marked exhibits is attached hereto as Exhibit "F". 8. Defendant J&K, by Keith Schaffer, appeared for a deposition on May 26, 2022. A copy of the deposition transcript with exhibits is attached hereto as Exhibit "G". 9. Defendant FALGIANO appeared for a deposition on May 26, 2022. A copy of the deposition transcript is attached hereto as Exhibit "H". 10. Defendant HOLIDAY VILLAS appeared for a deposition via their witness, Sheryl Iavarone on May 19, 2022. A copy of the deposition transcript with exhibits is attached hereto as Exhibit 11. A copy of the Homeowners Rules and Regulations for the HOLIDAY VILLAS is attached hereto as Exhibit "J". 12. A copy of the contract for lawn maintenance between J&K and HOLIDAY VILLAS is attached hereto as Exhibit "K". FACTUAL BACKGROUND DEPOSITION TESTIMONY OF PLAINTIFF, VICTOR CALDERON 13. The subject incident occurred on May 25, 2020, sometime in the afternoon at a property located on Garth Lane in Staten Island, New York 16- (as set forth below the is located (F, 17) property within the Holiday Villas Condominium Complex, and the address was 21 Garth Lane, Staten Island NY). Plaintiff arrived at the location when he was driven by his friend and landlord, Miriam Mannarino, who is also the mother of defendant CHRISTINA FALGIANO. (F, 20-21). 3 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 Because months Covid- the incident occurred during the early of the 19 pandemic, the parties were meeting outside for social distancing purposes. (F, 21-22). The accident occurred in front of Ms. Falgiano's home, on the grass adjacent to the walkway leading to the front door. (F, 26). At the time, plaintiff was standing on the walkway, playing with chalk (Ms. Falgiano's children were present) and he saw one of the girls head towards him, (due to social distancing) he went to step aside, stepping back off of the walkway and his foot got caught in a gap where the grass met the sidewalk (F, 27, 35). He clarified and indicated that the grass was not level with the sidewalk and that there was a gap betweeh the grass and sidewalk (F, 28). He previously visited the location, but never observed the area on other occasions (F, 29). In the five times he previously visited the area, he did not observe the height differential between the grass and the walkway (F, 31). 14. More specifically, when facing the home, the accident occurred on the left side of the walkway. Plaintiff recognized the "A" photograph marked as defendant's Exhibit as depicting the area where his accident occurred(F, 50-51). DEPOSITION TESTIMONY OF DEFENDANT HOLIDAY VILLAS 15. Sheryl Iavarone testified on behalf of defendant, HOLIDAY VILLAS, she is the property manager for the Holiday Villas(I, 11). HOLIDAY VILLAS are cluster homes that are two stories and semi attached in a private community (I, 14-15). It is her understanding 4 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 that the front lawns and walkways are considered common areas, including front lawn in front of 21 Garth Court, Staten Island NY (I, 13). HOLIDAY VILLAS was responsible for maintaining the common areas, including maintaining the lawn and areas outside in front of 21 Garth Court, Staten Island NY on May 25, 2020 (I, 13). The common area does include the lawn (I. 16). 16. HOLIDAY VILLAS did have a contract with landscapers (I, 16-17). Ms. Iavarone, on behalf of the HOLIDAY VILLAS would have the authority to direct, supervise and control the work being performed in the common areas involving the lawn, walkways and she would be involved in handling complaints and would act as the intermediary between the Board and the residents (I, 17-18). Ms. Iavarone, is unaware of any complaints being made about the walkway and grass area at issue, prior May 25, 2020 (I, 22). Ms. Iavarone was shown a photograph marked as plaintiff's Exhibit "4". After May 25, 2020, Ms. Iavarone received a phone call from defendant, CHRISTINA FALGIANO, indicating that there was an issue with the height difference between the grass and the walkway in front of 21 Garth Court (I, 31). The sum and substance of the conversation was that someone fell as a result of the height differential.(I, 26). 17. If Ms. Iavarone had been informed of the condition (i.e. the height difference between the walkway and the grass) she testified that she would have called the vendor to have a vendor look at it (I, 33-34). As a result of the subject incident and the call from Ms. Falgiano, Ms. Iavarone, on behalf of the HOLIDAY 5 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 VILLAS' VILLAS, reached out to the HOLIDAY contracted landscaper, J&K LAndscaping (I, 35). J&K has been performing landscaping for the HOLIDAY VILLAS for more than 20 years (I, 35). There was a contract in place, signed be representatives on behalf of and between HOLIDAY VILLAS and J&K LANDSCAPING for the landscaping of the HOLIDAY VILLAS (I, 36). All invoices for landscaping work performed by J&K were directed to Ms. Iavarone on behalf of the HOLIDAY VILLAS (I, 37). 18. Ms. Iavarone is familiar with the Homeowners Rules and Regulations (I, 39). She was shown a document that was shown a defendants' "A" document that was marked as Exhibit at her deposition that was an Amended Response to Notice for Discovery & Inspection that includes "the Holiday Villas at Oakwood, HOA Rules Regulations." and Ms. Iavarone indicated that she, along with the Board, was involved in drafting the rules (I, 41). See Exhibit J annexed hereto. 19. Page 177 of the document indicates that there are common charges, (i.e. a fee paid by the residents for monthly maintenance that includes landscaping of the common grounds) and this area includes the areas in front of 21 Garth Court that are landscaped by J&K LANDSCAPING and confirmed by Ms. Iavarone. (I, 42-43). Ms. Iavarone identified the contract between J&K and the HOLIDAY VILLAS "B" as the document marked as Exhibit at her deposition (I, 47-48; see Exhibit "K"). She acknowledged that she signed the document as an agent on behalf of the HOLIDAY VILLAS and the other signature 6 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 was by someone from J&K (I, 48-49). DEPOSITION TESTIMONY OF DEFENDANT J&K LANDSCAPING 20. Keith Schaffer is one of the owners of J&K LANDSCAPING (G, 19). J&K handles lawn maintenance and landscaping (G, 10). J&K had a written agreement to perform landscaping and lawn maintenance at the HOLIDAY VILLAS in May of 2020 and the contract was between J&K and signed by the HOLIDAY VILLAS by Sheryl Iavarone(G, 11-12). 21. As part of their work, J&K maintains the grass, including cutting grass, edging grass and cleaning up as well as spot seeding at the HOLLIDAY VILLAS (G, 12-13). J&K did receive a call from Sheryl at the HOLIDAY VILLAS to regrade the lawn adjacent to the walkway in front of 21 Garth Court at some point after May 25, 2020 (G, 13). Mr. Schaffer has no recollection of the edge work adjacent to the walkway in front of 21 Garth Court prior to May 25, 2020, and he is unfamiliar with the grade of that area and indicated that there was no concrete work ever performed in that location to his recollection and that any grade of the land was as a result of the way the builder built the location (G, 22). 22. He recognized that the contract between J&K and HOLIDAY VILLAS for lawn maintenance contained a signature for Sheryl Iavarone on behalf of the HOLIDAY VILLAS(G, 26). The document on behalf of J&K was signed by Mr. Schaffer's brother, co-owner (G, 26-27). The witness was shown the photograph marked as plaintiff's "3" Exhibit in which he acknowledged it was the walkway in front 1.5'-2' of 21 Garth Court and noticed a height differential from 7 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 "3" the sidewalk to the grass area (G, 31; see plaintiff's Exhibit annexed hereto). Sometime after May 25, 2020, the witness was contacted by Sheryl to regrade the area which he recognizes as being in front of 21 Garth Court (G, 33). DEPOSITION TESTIMONY OF DEFENDANT CHRISTINA FALGIANO 23. CHRISTINA FALGIANO used to own and live at 21 Garth Court, Staten Island, New York (H, 11). She described it as a townhouse attached on both sides with a walkway leading to the front and grass on either side of the walkway (H, 12). It is her understanding that she did not have any responsibility for maintaining the area outside of the property and that the Homeowners Association hired landscapers to maintain the lawn and grass outside of the property (H, 14). 24. Ms. Falgiano knows plaintiff, CALDERON as her mother's tenant (H, 14). On May 25, 2020, her mother and Mr. Calderon visited the townhome (H, 15). The visit was simply to do an outside visit during Covid, as the parties would remain socially distanced (H, 16). The accident occurred when CALDERON was standing on the walkway and as a child ran up the walkway, he stepped back to step away from where the child was proceeding and fell to the ground (H, 16). She notice after the fall that there was a height differential between the and the grass adjacent to the 16- walkway walkway (H, 17). Ms. Falgiano was shown various photographs at her deposition and ultimately recognized that one of the photographs showed dirt that was placed in the area adjacent to the walkway after the 8 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 incident occurred and after she made the complaint regarding the accident (H, 20-22). Ms. Falgiano reconfirmed that she did not have any involvement in maintaining the lawn in front of the property, that was handled by the HOLIDAY VILLAS (H, 25-26). The dirt that was placed adjacent to the walkway was placed there by the landscapers (H, 29). After the incident, Ms. Falgiano reported the accident to Sheryl Iavarone (H, 30). Ms. Falgiano did pay Homeowners Association dues as of the time of the incident and part of those dues did cover the maintenance of the grass in front of the unit that was handled by the HOLIDAY VILLAS and J&K (H, 34). LEGAL STANDARD 25. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 852, 476 NE2d 642 (1985). 26. "It is fundamental that 'summary judgment should only be granted where there are no material and triable issues of fact (Stretch v. Tedesco, 263 AD2d 538, 693 N.Y.S.2d 203; see Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853) and that 'issue finding, as opposed to issue determination, is the key to judgment' summary (Stretch v. Tedesco , supra at 539, 693 N.Y.S.2d 203; see Judice v. DeAnaelo, 272 A.D.2d 583, 709 N.Y.S.2d 427). Paulin v. Needham,28 AD3d 531, (2d Dept. 2006). 27. Conclusory, subservient and speculative allegations are 9 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 insufficient to sustain an action or defeat a motion for summary judgment. Goodman v. 78 West 47th Street Corp., 253 A.D.2d 384 (1st Dept. 1998); Zuckerman v. City of New York, 404 N.E.2d 718 (1980). LE GAL S TANDARD 28. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 852, 476 NE2d 642 (1985). 29. "It is fundamental that 'summary judgment should only be granted where there are no material and triable issues of fact (Stretch v. Tedesco, 263 AD2d 538, 693 N.Y.S.2d 203; see Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853) and that 'issue finding, as opposed to issue determination, is the key to judgment' summary (Stretch v. Tedesco, sspra at 539, 693 N.Y.S.2d 203; see Judice v. DeAngelo, 272 A.D.2d 583, 709 N.Y.S.2d 427). Paulin v. Needham,28 AD3d 531, (2d Dept. 2006). 30. Conclusory, subservient and speculative allegations are insufficient to sustain an action or defeat a motion for summary judgment. Goodman v. 78 West 47th Street Corp., 253 A.D.2d 384 (1st Dept. 1998); Zuckerman v. City of New York, 404 N.E.2d 718 (1980). LE GAL ARGUMENT POINT I 10 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 HOLIDAY VILLAS WAS RESPONSIBLE FOR MAINTAINING THE LAWN AT ISSUE AND DEFENDANT FALGIANO OWED NO DUTY TO PLAINTIFF 31. An "essential element of any negligence case...[is the existence of a] duty. Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm (see, Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640; see also Prosser and Keeton, Torts § 53, at 357 [5th ed.]; 3 Harper, James and Gray, Torts § 18.1, at 650 [2d ed.] ). Lauer v. City of New York, 733 N.E.2d 184, 187 (NY 2000). 32. Here, it is uncontroverted that the area where plaintiff fell is a part of a common area (i.e. the grass and walkway in front of the property). 33. Defendant CHRISTINA FALGIANO was not responsible for maintaining the location where plaintiff's accident occurred and, as such, did not owe a duty to plaintiff. 34. In the Homeowners Ruled and Regulations, the landscaping section notes "the grass is maintained by our lawn maintenance contractor. However, you are required to water the area a regular season." intervals in the summer (I, 13, 16). 35. Sheryl Iavarone conceded that the lawn and area in front of 21 Garth Court are common areas. (I, 13, 16). Ms. Falgiano did pay Homeowners Association dues as of the time of the incident and part of those dues did cover the maintenance of the grass in front of the unit that was handled by the HOLIDAY VILLAS and J&K (H, 34) 11 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 36. The contract between J&K Lanscapers and THE HOLIDAY VILLAS indicates that lawn maintenances is being paid for by the HOLIDAY VILLAS and performed by J &K Landscaping. (I, 16-18). Sheryl Iavarone executed the contract on behalf of the Holiday Villas. (I, 16-17) and in her role, admitted that she would have the authority to direct, supervise and control the work being performed in the common areas involving the law and walkways and that she would act as the intermediary between the Board and the residents regarding any complaints(I, 17-18). 37. Ms. Iavarone admitted that is she knew of the alleged condition at the time of the incident (i.e. the height difference between the walkway and the grass) that she would have called the vendor (i.e. J & K Landscapiong) to look at it (I, 33-34). 38. Ultimately, Ms. Iavarone, on behalf of the HOLIDAY VILLAS, did contact J&K Landscaping (I, 35) to address the alleged condition at issue. . J&K has been performing landscaping for the HOLIDAY VILLAS for more than 20 years (I, 35). There was a contract in place, signed be representatives on behalf of and between HOLIDAY VILLAS and J&K LANDSCAPING for the landscaping of the HOLIDAY VILLAS (I, 36). All invoices for landscaping work performed by J&K were directed to Ms. Iavarone on behalf of the HOLIDAY VILLAS (I, 37, 47-49, and See Exhibit K). 39. Ms. Iavarone is familiar with the Homeowners Rules and Regulations (I, 39). She was shown a document that was shown a defendants' "A" document that was marked as Exhibit at her 12 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 deposition that was an Amended Response to Notice for Discovery & Inspection dated that includes "the Holiday Villas at Oakwood, HOA Regulations." Rules and Ms. Iavarone indicated that she, along with the Board, was involved in drafting the rules (I, 41). See "K" Exhibit annexed hereto. 40. Confirming Ms. Iavarones testimony, movant Ms. Falgiano testified (and it is uncontroverted) that she was not responsible for maintaining the lawn and walkway, and that she did not have any involvement in maintaining the area, which was always handled by the HOLIDAY VILLAS through their contractor. 25- landscaping (H, 26). 41. Subsequent to the incident, Ms. Falgiano reported plaintiff's accident to Ms. Iavarone, (H, 30), who then contacted J&K to handle re-grading the grass in the area where plaintiff fell. Ms. Falgiano confirmed that the dirt that was placed adjacent to the walkway was placed there by the landscapers hired by the HOLIDAY VILLAS. (H, 29). 42. Thus, it is clear that as a resident at the HOLIDAY VILLAS, there were certain areas which the complex was responsible (i.e. the common areas such as the walkway and grass in front of 19 Garth Court) to maintain, and they did so via the use of landscapers. Residents, such as Ms. Falgiano are not responsible for maintaining these areas. POINT II DEFENDANT FALGIANO NEITHER CREATED THE ALLEGED CONDITION NOR DID SHE HAVE NOTICE OF ITS EXISTENCE 13 of 16 FILED: RICHMOND COUNTY CLERK 08/03/2022 09:26 AM INDEX NO. 152018/2020 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/03/2022 43. Even if the Court finds that some duty allegedly existed as to Ms. Falgiano, the record shows that she had nothing to do with the lawn maintenance and thus, she did not cause any alleged defective condition to exist, and moreover, all of the testimony is clear, from plaintiff on down, that no one was aware of the alleged condition. 44. Ms. Iavarone, who handles resident complaints, is unaware of any complaints being made about the walkway and grass area at issue, prior May 25, 2020 (I, 22). 45. The only assertion plaintiff alleges regarding the defendants having notice of the alleged condition is contained in the plaintiff's Verified Bill of Particulars, which is conclusory and unsubstantiated. 46. Conclusory allegations, regarding notice of a condition, are not sufficient to withstand a motion for summary judgment. Alvord and Swift v. Stewart M. Muller Constr. Co., 46 NY2d 276, 385 NE2d 1238 (1978); Fried v. Bower & Gardner, 46 NY2d 765, 386 NE2d 258 (1978); Platzman v. American Totalisator Co., 45 NY2d 910, 383 NE2d 876 (1978); Mallad