Motion-Secondary: Hannah Buckstine v. Jordan Schor, Jordan'S Of New Paltz Llc, Lcore Enterprise Corp., Keith Carpentier, Wayne Bradford, Robert Germinara (Deceased)

On May 31, 2016 a Motion-Secondary was filed involving a dispute between Hannah Buckstine, and Jordan Schor, Jordan'S Of New Paltz Llc, Keith Carpentier, Lcore Enterprise Corp., Robert Germinara, Wayne Bradford, for Torts - Other Negligence (Premises Liability) in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 08/19/2019 04:20 PM INDEX NO. 57710/2016
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
------------------------------------------------X
HANNAH BUCKSTINE,
Index No.: 57710/2016

Plaintiff,

-against-

JORDAN SCHOR, JORDAN'S OF NEW PALTZ LLC,
LCORE ENTREPRISE CORP., KEITH CARPENTIER,
WAYNE BRADFORD, AND
ROBERT GERMINARA (Deceased),

Defendants.
__________________.. ¬----------------------X
LCORE ENTREPRISE CORP.

Third-Party Plaintiff,

-against-

WAYNE BRADFORD,

Third-Party Defendant.
------------------X

PLAINTIFF'S OPPPOSITION TO DEFENDANT LCORE'S MOTION FOR
SUMMARY JUDGMENT

LAW OFFICE OF TODD J. KROUNER, P.C.

93 North Greeley Avenue

Chappaqua, New York 10514

(914) 238-5800

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TABLE OF AUTHORITIES.................................................................................i

INTRODUCTION.............................................................................................1

PROCEDURAL HISTORY.................................................................................1

RESTATEMENT OF THE FACTS A: Ms. Buckstine Has Not Made A Complete Recovery...2

B: LCore Maintained Control of the Premises...............3

C: LCore Had Notice Of The Dangerous Condition.........3

ARGUMENT...................................................................................................3

POINT I: DEFENDANT LCORE CANNOT SATISFY THE RIGOROUS
STANDARD OF REVIEW FOR A MOTION FOR SUMMARY
JUDGMENT..................................................................................3

POINT II: LCORE HAD A DUTY TO MAINTAIN AND INSPECT THE PREMISES......5

POINT III: LCORE HAD ACTUAL NOTICE OF THE DANGEROUS CONDITION ON
ITS PROPERTY.............................................................................7

CONCLUSION................................................................................................9

.
1

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TABLE OF AUTHORITIES

Alnashmi v. Certified Analytical Groun. Inc., 89 A.D.3d 10 (2d Dept. 2011)........................6

Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986)........................................................4

Barone v. Risi, 128 A.D.3d 874 (2d Dept. 2015).........................................................9

Daniels v. Judelson, 216 A.D.2d 623 (2d Dept. 1995)...................................................3

Downing v. Schreiber, 176 A.D.2d 781 (2d Dept. 1991)................................................3

Gronski v. County of Monroe, 18 N.Y.3d 374 (2011)................................................5, 6

Harris v. Seager, 93 A.D.3d 1308 (2012)..................................................................8

Hovey v. State, 261 A.D. 759 (3d Dept. 1941)............................................................9

Kellman v. 45 Tiemaññ Assoc., 87 N.Y.2d 871 (1995)..................................................8

Kvte v. Mid-Hudson Wendico, 121 A.D.3d 452 (2d Dept. 2015).......................................4

Nikolaidis v. La Terna Rest., 40 A.D.3d 827 (2d Dept. 2007)..........................................5

Pamoalone v. FBE Van Dam. LLC, 123 A.D.2d 988 (2014)............................................4

(4th
Parslow v. Leake, 117 A.D.3d 55 Dept. 2014).......................................................8

Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530 (2006)....................................................6

Rodriguez v. Moya, 43 Misc. 3d 1208 (Sup. Ct. Queens Co. 2014)................................4, 6

Sheridan v. Very, Ltd., 2008 N.Y.Misc. LEXIS 9341 (N.Y. Sup. Ct. Dec. 2, 2008)................9

Steed v. MVA Enters., LLC, 136 A.D.3d (2d Dept. 2016)..............................................7

Ugarriza v. Semieder, 46 N.Y.2d 471(1979)............................................................3, 4

Villarreal v. CJAM Associates. LLC, 125 A.D.3d 644 (2d Dept. 2015)...............................6

Zuckerman v. City of New York, 39 N.Y.2d 557 (1980)................................................4

..
11

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INTRODUCTION

("Plaintiff"
Plaintiff, Hannah Buckstine or "Ms. Buckstine"), submits this memorandum

("Defendant"
of law in opposition to defendant's, LCore Enterprise Corp. or "LCore"), motion

for summary judgment dismissing Plaintiff's complaint. Plaintiff incorporates by reference her

opposition to the accompanying motions for summary judgment of defendants Jordan Schor

("Mr. Schor"), Jordan's of New Paltz LLC ("Jordan's") (collectively, the "Schor Defendants"),

and Wayne Bradford ("Mr. Bradford").

PROCEDURAL HISTORY

Plaintiff commenced this action against defendants Mr. Schor, Jordan's and LCore, by

filing a Summons and Complaint on May 31, 2016. On August 1, 2016, an Amended Verified

Complaint was filed against the same defendants, and on December 20, 2016, a Second

Amended Verified Complaint was filed against these same defendants.

On October 13, 2017, Plaintiff filed a motion for leave to amend the Second Amended

Verified Complaint and to add three additional defendants, Defendant Carpentier, Wayne

Bradford ("Bradford"), and Robert Germinara (deceased). The motion for leave to amend the

complaint included proposed summons and the Third Amended Verified Complaint. The

Germinara estate was never served.

On December 14, 2017, this Court issued an Order granting Plaintiff s motion to amend

the Second Amended Verified Complaint. Plaintiff filed her Third Amended Verified

Complaint on December 20, 2017.

RESTATEMENT OF THE FACTS

LCore owned the premises located at 52 Main Street (the "Premises"). See July 19, 2019

Affirmation of Kimberly Hunt Lee ("Lee Aff."), Exhibit D, Deposition of Ben Lai, 57:23-25.

As of the time of the accident, LCore had consented to the assignment of itslease to defendant

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Wayne Bradford. See Lee Aff., ¶ 39, Exhibit P, pp. 25-27. Though, not clear, Mr. Bradford

appears to have been the sublessor to defendant Jordan's at the time of the accident. Id. at ¶ 40.

A. Ms. Buckstine Has Not Made A Complete Recovery

Ms. Buckstine seeks to recover damages for the traumatic brain injury ("TBI") that she

sustained on October 25, 2014, shortly after midnight, when she felldown a flight of stairs

leading to the basement in Jordan's. As a result of the fall,Ms. Buckstine sustained serious

personal injuries, including a fractured skull, which required, inter alia, craniectomy and in

excess of $500,000 in medical expenses. Due to intracranial pressure, she required the removal

of her skull flap (hemicraniectomy), which was implanted into her abdomen. Subsequently, Ms.

Buckstine was placed in an induced coma. Although Defendant alleges that Ms. Buckstine "has

recovery,"
made a complete Plaintiff's evidence is to the contrary. See Lee Aff., ¶ 3. Ms.

Buckstine's injuries include, without limitation, right, partial right frontal lobectomy,

ventriculostomy, multiple fractures including right transverse temporal bone fracture sparing

ossicles, left occipital fracture extending into condyle, post-traumatic amnesia, cognitive deficits,

and multiple contusions, neurological impairment; and neuropsychological impairment. See the

Defendants'
August 19, 2019 Affirmation of Todd J. Krouner in Opposition to the Schor Motion

for Summary Judgment ("Krouner Aff. in Opposition to Schor"), Exhibits H, I and N.

Ms. Buckstine continues to experience the effects of the accident. Due to her severe brain

injury, Ms. Buckstine suffers injury to her pituitary gland resulting in irregular menstrual cycle.

Ms. Buckstine's ongoing psychological and cognitive issues pose constant threats to her physical

wellbeing. She continues to experience symptoms of fatigue, dizziness, shortness of breath,

nausea, fainting spells, memory loss, disorientation, headaches, anxiety and inability to

concentrate, including difficulty remembering driving instructions, difficulty with multitasking

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and anosmia. See Krouner Aff. in Opposition to 20 - 21. In Ms. Buckstine
Schor, ¶¶ addition,

recently was involved in two motor vehicle accidents due to the consequences of her TBI. Id. at

¶ 22, Exhibit G, ¶ 6.

B. LCore Maintained Control Of The Premises

As the owner of LCore, Ben Lai inspected the Premises regularly. He testified that he

was there three five or six times in 2013 and 2014. Lee Aff., Exhibit D, Deposition of Ben Lai

22: 2- 23:16 -20:3- 25:16 -21.
9; 6;

Routinely, Mr. Lai took care of maintenance and repairs to the Premises. This included a

basement flood in 2009. Isi at 62:2 -63:10. Heating oil contracts were signed by LCore. Id. at

66:6-10. LCore took care of a broken pipe in 2007 and fire system issues in 2010. Id. at 68:16-

22. Other issues dealing with the New Paltz Building Department were routinely addressed by

LCore. I_stat 66:13.

C. LCore Had Notice Of the Dangerous Condition

Ben Lai admitted that when Jordon Schor hung a curtain in a feeble attempt to partition

the storage area of the Premises, he created a hazard due to darkness. Ben Lai observed: "It was

normal."
dark, darker than, you know, Id. at 55:18 -21; See also, Affidavit of Rudy Uhlitzsch, ¶

6, a copy of which is annexed to the Krouner Aff. in Opposition to Schor, as Exhibit F.

ARGUMENT

I. DEFENDANT LCORE CANNOT SATISFY THE RIGOROUS STANDARD
OF REVIEW FOR A MOTION FOR SUMMARY JUDGMENT

"Summary judgment has been termed s drastic measure . .. since itdeprives a party of his

effects."
day in court and will normally have res judicata Ugarriza v. Semieder, 46 N.Y.2d 471,

474 (1979). "It is axiomatic that issue finding, rather than issue determination, is the standard

judgment."
for reviewing a motion for summary Daniels v. Judelson, 216 A.D.2d 623, 624 (2d

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Dept. 1995), citing Downing v. Schreiber, 176 A.D.2d 781 (2d Dept. 1991). "If the court

entertains any doubt as to the existence of a triable issue of fact,the motion for summary

judgment should be denied. Id. "The party making the motion for summary judgment must

make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient

evidence to demonstrate the absence of any material issue of fact and he must do so by tendering

form."
evidentiary proof in admissible Id., citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320

(1986); Zuckerman v. City of New York, 39 N.Y.2d 557 (1980). "Failure to make a prima facie

motion."
showing requires a denial of the Id. Here, where there exist multiple issues of fact,

LCore cannot satisfy its burden of proof. Accordingly, LCore's motion for summary judgment

should be denied.

Additionally, "Negligence cases by their very nature do not usually lend themselves to

summary judgment, since often, even if all parties are in agreement as to the underlying facts, the

determination."
very question of negligence is itselfa question for jury Ugarriza, 46 N.Y.2d at

474. Again, the parties in the present action are not in agreement as to the underlying facts.

Since summary judgment is disfavored in negligence actions and LCore has failed to

demonstrate that summary judgment is warranted.

Furthermore, "in a premises liability case, a defendant property owner, or a party in

possession or control of real property, who moves for summary judgment has the initial burden

of making a prima facie showing that itneither created the alleged defective condition nor had

existence."
actual or constructive notice of its Kyte v. Mid-Hudson Wendico, 121 A.D.3d 452

(2d Dept. 2015), citing "amsâlone v. FBE Van Dam, LLC, 123 A.D.2d 988 (2014). See also

Rodriguez v. Moya, 43 Misc. 3d 1208 (Sup. Ct. Queens Co. 2014) (defendant landlord's

testimony that he came into the premises "on several occasions to collect the rent and make

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inspections"
gave rise to a question of fact as to his course of conduct in the absence of a

conduct"
contract). A "course of in which an out-of-possession landlord engages may also

provide evidence of a duty with respect to a dangerous condition on the premises. Seee Gronski

v. County of Monroe, 18 N.Y.3d 374, 380-82 (2011) (reversing Appellate Division's dismissal

and holding summary judgment improper where defendant county claimed "out-of-possession

landlord"
status.

In the present case, Ben Lai, as the owner of LCore, testified that he saw the curtain that

Mr. Schor installed in the Premises. See Lee Aff., Exhibit D, Deposition of Ben Lai, 55:18 -21.

Additionally, Ben Lai testified that behind the curtain, "It was dark, darker than, you know,

normal."
Id. at 55:18-21. Thus, LCore had actual notice of the existence of a dangerous

condition. LCore cannot meet itsburden. In addition, a question of fact exists whether LCore

had constructive notice of the remaining hazards. See the August 19, 2019, Affirmation of Todd

J. Krouner in Opposition to LCore's Motion for Summary Judgment, ¶ 14. Therefore, LCore's

motion for summary judgment should be denied.

IL LCORE HAD A DUTY TO MAINTAIN AND INSPECT ITS OWN
PREMISES

LCore, as the owner of the Premises, had a duty to enter, inspect, maintain and/or repair

the dangerous conditions in and around the premises. LCore alleges that as an out-of-possession

premises."
landlord, itretained no "control over its See Lee Aff., ¶ 57. LCore cites Nikolaidis v.

La Terna Rest., 40 A.D.3d 827 (2d Dept. 2007), for the proposition that an out-of-possession

landlord is not liable "for injuries that occur on the property unless the owner has retained

repairs."
control over the premises or is contractually obligated to perform maintenance and S_ee

Lee Aff., ¶ 56.

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In this case, in fact, LCore retained control of the Premises. "Control refers to the ability

of an out-of-possession landlord to remedy dangerous conditions, and itpertains to conditions on

premises."
any portion of the leased Alnashmi v. Certified Analytical Group, Inc., 89 A.D.3d

10, 17 (2d Dept. 2011). "An out-of-possession landlord has a duty imposed by statute or

."
assumed by cei1tiâet or a course of conduct . .. Id. at 18, citing Rivera v. Nelson Realty, LLC,

7 N.Y.3d 530, 534 (2006) (emphasis added).

"control,"
A landlord may also maintain and therefore, a duty, ifthe duty is evinced by a

conduct."
landlord's "course of Villarreal v. CJAM Associates, LLC, 125 A.D.3d 644, 645 (2d

Dept. 2015); see also Rodriguez v. Moya, 43 Misc. 3d 1208 (Sup. Ct. Queens Co. 2014)

(defendant landlord's testimony that he came into the premises "on several occasions to collect

inspections"
the rent and make gave rise to a question of fact as to his course of conduct in the

conduct"
absence of a contract). A "course of in which an out-of-possession landlord engages

may also provide evidence of a duty with respect to a dangerous condition on the premises. See

Gronski v. County of Monroe, 18 N.Y.3d 374, 380-82 (reversing Appellate Division's dismissal

and holding summary judgment improper where defendant county claimed "out-of-possession

landlord"
status). LCore maintained a right to enter to inspect and to make repairs. S_ee July19,

2019 Affirmation of Frank R. Malpigli ("Malpigli Aff."), Exhibit FF, Lease, p.3 (Right to

Inspect). In fact, LCore, through Ben Lai, maintained significant control over the premises

through its course of conduct. Between 2013 and October 2014, Ben Lai inspected the premises

five or six times. See Lee Aff., Exhibit D, Deposition of Ben Lai, 22:2-9. "I go there to inspect

my retail space, to make sure that itis clean. And itis well-run. And just to make sure that my

there."
four walls, the building is still Id. at 23:16-20. "I go there to just make sure, you know,

go."
safety is in place. You know, I go there whenever I get a chance or I need to Id. at 23:3-6.

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"I just go there and say: Hey, you've got too much stuff put in there . . .
. Make sure the place is

dumpster."
clean. Like not like a Id. at 25:16-21.

When the basement of the Premises flooded in 2009, LCore contacted and paid for a

plumber to repair the damages. Id. at 62:2-63:10. When there were problems or issues with oil

and/or heating the Premises, LCore took the calls because the Kosco Oil contracts were signed

by LCore. Id. at 66:6-10. Furthermore, based upon building department records from the New

Paltz Department of Buildings, whenever repairs (plumbing, heating, parking, alarm system,

garbage removal) were required, LCore was contacted, and itarranged for the issues to be

resolved. Ii at 66:13. LCore also handled a burst pipe issue in 2007, and was the point of

contact for fire extinguishing system issues in 2010. I4 at 68:16-22. LCore was contacted by

the Building Department of the Village of New Paltz on March 9, 2011, with respect to the

absence of a grill over the exhaust fan and a broken protective cover over a fluorescent light in

the women's restroom, and was also notified on that date of the absence of an inspection report

for the hood/fire suppression system, which was required to be checked every six months. These

facts show an ongoing and uncontroverted retained interest on the part of LCore in controlling

the premises.

III. LCORE HAD ACTUAL NOTICE OF A DANGEROUS CONDITION ON ITS
PROPERTY

As LCore notes, "In order for a landowner to be liable in tort to a plaintiff who is injured

as a result of an allegedly defective condition on property, itmust be established that a defective

condition existed and that the landowner affirmatively created the condition or had actual or

existence."
constructive notice of its Lee Aff., ¶ 78, citing Steed v. MVA Enters., LLC, 136

A.D.3d (2d Dept. 2016). Ben Lai, representing LCore, testified that when he inspected the

Premises in October 2014, he observed a curtain separating the storage area from the seating area

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of Jordan's and the hallway behind the bathrooms. See Lee Aff., Exhibit D, Deposition of Ben

Lai, 55:18-25. "Jordan put the curtain up for aesthetics reasonably soon after he opened the

space."
restaurant and used this to block off the storage space from the public See Lee Aff., at ¶

47, citing Exhibit T, Deposition of Jordan Schor, p. 144. Thus, Ben Lai had actual knowledge of

a dangerous condition since Jordan's opened. Ben Lai further testified that behind the curtain,

normal."
"Itwas dark, darker than, you know, Lee Aff., Exhibit D, 55:18-21. Therefore, prior to

the Plaintiff's fall,LCore had actual notice of an installed curtain and an abnormally darkened

storage area. "In order to establish the notice element in such a negligence claim, plaintiff is

required to demonstrate only that the defendant had notice of the condition that the plaintiff

alleges was dangerous; the plaintiff is 'not required to demonstrate that [the] defendant [ ]knew

dangerous.'"
that th[e] condition [ ] [was] Parslow v. Leake, 117 A.D.3d 55, 63 (4th Dept.

2014), quoting Harris v. Seager, 93 A.D.3d 1308, 1309 (4th Dept. 2012).

In addition, given the substantial passage of time, a question of fact exists whether

LCore, through Ben Lai, had constructive knowledge of the other hazards contributing to the

trap-like conditions in the storage area of the Premises (besides the unusual darkness).

LCore argues that since Plaintiff has not alleged a structural or statutory defect on the

Premises that LCore has no liability in this action. See Lee Aff. ¶¶ 61, 63. However, "the

alleged compliance with applicable statutes and regulations is not dispositive of the question

law."
whether [defendant] satisfied duties under the common Parslow, at 62, citing Kellman v.

45 Tiemann Assoc., 87 N.Y.2d 871, 872 (1995). "Despite the property's apparent compliance

with the local statutes and regulations, a jury could nevertheless determine that the absence of a

condition."
screen or fall protection device in the window constituted a dangerous Parslow, at

62. Likewise, here, a jury could determine that that the abnormally dark hallway (which was

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perceived during daylight hours by Ben Lai) constituted a dangerous condition in the Premises.

Accord, Hovey v. State, 261 A.D. 759, 762 (3d Dept. 1941) ("failure to light or illuminate said

stairway created a dangerous condition"); Barone v. Risi, 128 A.D.3d 874, 875 (2d Dept. 2015)

(denying summary judgment to defendants because "a condition that is ordinarily apparent to a

person making reasonable use of his or her senses may be rendered a trap for the unwary where

the condition is obscured for example, by other objects or by inadequate illumination"); Sheridan

v. Very, Ltd., 2008 N.Y. Misc. LEXIS 9341 (Sup.Ct. New York, Dec. 2, 2008) ("poor lighting

coupled with other 'factors, such as inadequate warning of drop, . .. inadequate demarcation

condition'
between raised and lowered areas, or some other distraction or similar dangerous may

support a finding of liability by the landlord") (internal citations omitted).

defendants'
In contrast to the affidavit of building inspector expert, Gary E. Beck, Jr.,

plaintiff's expert, Rudy Uhlitzsch opines that "the conditions inside the Premises, such as the

absence of visible markings, absence of locked basement door, absence of adequate light, and the

fall."
curtain created a trap and a dangerous situation which caused Ms. Buckstine to S_e_eAugust

13, 2019 Affidavit of Rudy Uhlitzsch, ¶ 6, annexed to the Krouner Aff. in Opposition to Schor,

as Exhibit F.

LCore, through Ben Lai, had actual notice of the darkness hazard. LCore, through Ben

Lai, had at least constructive notice of the other dangers, identified by Mr. Uhlitzsch.

Consequently, LCore's motion for summary judgment must be denied.

CONCLUSIOl¶

For the reasons set forth above, Defendant LCore's motion for summary judgment should

be denied.

Dated: Chappaqua, New York
August 19, 2019

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Respectfully submitted
LAW OFFICE OF TODD J. KROUNER, P.C.

By:
Todd J. o er
Attorneys Plaintiff
93 North Greeley Avenue

Chappaqua, New York 10514

(914) 238-5800
To:

Kimberly Hunt Lee, Esq.
McCabe & Mack LLP
Attorneys for Defendant LCore Enterprise Corp.
63 Washington Street
P.O. Box 509

Poughkeepsie, New York 12602

(845) 486-6800

Frank Malpigli, Esq.
Miranda Sambursky Slone Sklarin Verveniotis LLP
Attorneys for Defendants Jordan Schor, and
Jordan's Of New Paltz LLC
240 Mineola Boulevard

Mineola, New York 11501

(516) 741-7676

Stephen D. Donohue, Esq.

Attorney for Defendant Wayne Bradford
365 Route 304, Suite 203

Bardonia, NY 10954

(845) 623-2345

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Case Info

Judge

Lawrence Ecker Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 19, 2019

Case Filing Date

May 31, 2016

County

Parties

DONOHUE, STEPHEN D Attorney for the Defendants
EPSTEIN, RICHARD BRIAN Attorney for the Defendants
Hannah Buckstine Plaintiff
Jordan Schor Defendant
Jordan's of New Paltz LLC Defendant
Keith Carpentier Defendant
KROUNER, TODD JAY Attorney for the Plaintiff
LCore Enterprise Corp. Defendant
LEE, KIMBERLY HUNT Attorney for the Defendants
MALPIGLI, FRANK ROBERT Attorney for the Defendants
Robert Germinara (Deceased) Defendant
ROMANO, SUSAN A Attorney for the Defendants
Wayne Bradford Defendant
FRANK RINALDI Attorney
SARAH TREPEL Attorneys for Defendants
HEE LEE Attorney

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