Preview
FILED: NEW YORK COUNTY CLERK 04/18/2016 11:17 AM INDEX NO. 157971/2015
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 04/18/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ELBA SOCORRO MELLA,
AFFIRMATION IN OPPOSITION
Plaintiff,
Index No.: 157971/2015
-against-
COOGAN’S,
ROYAL CHARTER PROPERTIES, INC., and
THE CITY OF NEW YORK,
Defendants.
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Daniel Melucci, an attorney duly admitted to practice law in the Courts of the State of New
York, hereby affirms the following under penalties of perjury:
1. I am a member of Melucci Firm, P.C., the attorney of record for the plaintiff herein, and
as such am fully familiar with the facts and circumstances set forth.
2. This affirmation is submitted in opposition to the motion of defendant 600 West 169th
Rest. Inc. a/k/a COOGAN’S which seeks an order granting summary judgment and dismissing the
complaint.
3. This is an action for compensation due to personal injuries sustained by the plaintiff when
she was caused to trip and fall due to a raised cobblestone located in a tree well in front of the
defendant’s premises.
4. It is respectfully submitted that the instant motion should be denied on various grounds.
THE MOTION IS PREMATURE
5. First, the instant motion is premature. At this point, there has been no discovery provided
by the defendants despite the fact that plaintiff served various demands (Exhibit “A”) on December 2,
2015. No preliminary conference has been held and no depositions have been conducted. This motion
1 of 7
was the first opportunity plaintiff has had to see the items defendant chose to attach.
6. Where only limited discovery has taken place, a motion for summary judgment can be
deemed premature when “facts essential to justify opposition may exist but cannot then be
stated”. See, Weinstein v. WB.Stellar IP Owner, LLC, 125 A.D.3d 526, 527 (1st Dept. 2015) (citing
CPLR3212(f)). See, also, Bustillo v. Tuckahoe Development, LLC, 300 A.D.2d 272 (2nd Dept. 2002).
7. In the Weinstein case, supra, the First Department noted that a defendant’s motion
for summary judgment was premature in part because the defendant had not yet had the opportunity to
depose a codefendant. Likewise, the Court should find in this instance that the motion
for summary judgment as against the plaintiff is premature because we have not yet had the opportunity
to depose Mr. Hunt or any other defense witness.
8. It is well established that where facts essential to justify opposition to a motion for
summary judgment are exclusively within the knowledge and control of the movant, summary judgment
should be denied. This is especially so where the opposing party has not had an opportunity for
disclosure prior to the making of the motion, Nelson v. Bestway Coach Express, 36 AD3d 488, 828
NYS2d 340 (1st Dept. 2007); Adrianis v. Fox , 30 A.D.3d 550, 817 N.Y.S.2d 374 (2d Dept. 2006).
9. Here, plaintiff has had no opportunity to obtain any of the discovery materials requested
or to depose the defendant. Plaintiff needs discovery to determine, for example, what, if any,
maintenance or control defendant undertook with respect to the subject tree well, how and where the
outdoor seating was placed as it rerouted pedestrian traffic causing people to go into the tree well area,
whether there were any prior complaints, accidents, violations, construction, etc. Plaintiff is entitled to
see defendant’s records and documents with respect to its application for license and permit to operate a
sidewalk café, including any pedestrian flow studies, variances or amendments. In short, there is a great
deal of relevant information which is exclusively within the knowledge and control of the defendant.
2 of 7
10. Defendant should not be permitted to benefit from ignoring discovery demands, refusing
to appear for depositions and withholding relevant materials, while “cherry picking” the items it wishes
to use to support a summary judgment motion.
DEFENDANT HAS NOT MADE A PRIMA FACIE SHOWING
OF ENTITLEMENT TO SUMMARY JUDGMENT
11. In a motion for summary judgment, the moving party must first demonstrate the absence
of genuine issues of material fact on every relevant issue raised by the pleadings, including any
affirmative defenses, Aimatop Restaurant, Inc. v. Liberty Mutual Fire Insurance Co., 74 A.D. 2d 516,
425 N.Y.S. 2d 8 (1980). Since summary judgment deprives the litigant of his day in Court and is
considered to be a drastic remedy, it should be employed only when there is no doubt as to the absence
of triable issues, Von Noy v. Corinth Central School District, 111 A.D. 2d 592, 489 N.Y.S. 2d 658
(1985). Therefore, the affidavits of the movant should be scrutinized carefully in the light most
favorable to the party opposing the motion, Robinson v. Strong Memorial Hospital, 98 A.D. 2d 976, 470
N.Y.S. 2d 239 (1983).
12. A movant for summary judgment has the burden to set forth evidentiary facts sufficient to
entitle that party to judgment as a matter of law. Failure to make such a showing requires denial of the
motion, Winegrad v.New York University Medical Center, 64 N.Y. 2d 851 (1985). Additionally, the
Court must search to find any viable causes of action, Ayala v. V & O Press Co., 126 A.D. 2d 229, 516
N.Y.S. 2d 704 (1987).
13. The law in New York is well settled that in determining the propriety of granting a
motion for summary judgment, the role of the court is issue finding rather than issue determination,
Super v. Abdelazim, 108 A.D. 2d 1040, 485 N.Y.S. 2d 612 (1985). Moreover, the drastic remedy of
summary relief should not be granted where there is any doubt as to the existence of a triable issue or
3 of 7
where such an issue is even arguable, Gale v. Kessler, 93 A.D. 2d 744.461 N.Y.S. 2d 295 (1983).
14. Here, the defendant has the initial burden of making a prima facie showing that it neither
caused nor created the alleged hazardous condition, Arzola v Boston Props. Ltd. Partnership, 63 AD3d
655, 656 [2009]; see Jackson v Jamaica First Parking, LLC, 91 AD3d 602 [2d Dept 2012]; and
Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2010].
15. Defendant argues that pursuant to the Administrative Code of the City of New York 7-
210, the CITY OF NEW YORK is responsible for tree wells. While this is true on its face, defendant
fails to establish, as a matter of law, that it did not make a special use or otherwise undertake to maintain
the tree well in which case, defendant would be negligent if it failed to do so in a reasonably safe
manner.
16. In order to make a prima facie showing of entitlement to summary judgment, defendant
must have established that it neither negligently repaired the tree well nor caused the dangerous
condition, either affirmatively, or by some special use of the tree well, Fernandez v. 707, 85 AD3d 539
(1st Dept. 2011).
17. Where the defendant contributed to the creation or exacerbation of the dangerous
condition, summary judgment should be denied, Morales v. Pozo, 90 AD3d 625, 933 NYS2d 902 (2nd
Dept. 2011).
18. Here, the defendant only submits the conclusory affidavit of David Hunt (the Court is
respectfully referred to the Affirmation in Support of Chad E. Sjoquist (hereafter referred to “Sjoquist
Affirmation”) dated March 8, 2016 at Exhibit “G”).
19. Mr. Hunt only claims that he is a principal of the defendant. He does not indicate what
4 of 7
his duties and responsibilities are or how he would have knowledge information to this matter.
20. Nonetheless, Mr. Hunt states that “the tree wells in front of Coogan’s have remained
unchanged for several years. Neither Coogan’s nor its employees have ever damaged any portion of the
tree wells, including the stones in the tree wells.”
21. Plaintiff has not had the opportunity to depose Mr. Hunt or to see any of the documents
or records upon which he may have based this conclusion.
22. In any event, this statement in insufficient to establish, prima facie, that the defendant is
entitled to summary judgment as the defendant has not established that it neither negligently repaired the
tree well nor caused the dangerous condition, either affirmatively, or by some special use of the tree
well, Fernandez, supra.
23. Rather, Mr. Hunt only sets forth that the tree wells have not been changed and Coogan’s
did not damage them. This is insufficient.
THERE ARE ISSUES OF FACT
24. Even had the defendant made a prima facie showing of entitlement to summary
judgment, there are issues of fact which would require denial of the motion.
25. Defendant admittedly situated outdoor seating on the sidewalk area near the subject tree
well. As can be seen from the surveillance video provided by defendant (Sjoquist Affirmation, Exhibit
“F”), due to this outdoor seating, the sidewalk area for pedestrian travel was restricted resulting in the
plaintiff being rerouted into the tree well area.
26. It should be noted that plaintiff disagrees with defendant’s assessment of the video.
5 of 7
Pedestrians can clearly be seen to veer into the narrow area next to the outdoor seating, and then move
back onto the main sidewalk area after passing the outdoor seating. The plaintiff was clearly not
running. Rather she was walking briskly as New York pedestrians often do. Whether the rate of travel
was excessive is a question for the trier of fact.
27. A reasonable trier of fact could determine that, while the plaintiff was walking briskly
through that area, she was routed into the tree well as she attempted to pass slower moving pedestrians.
She could not move to her right due to the outdoor seating, and the two pedestrians in front of her took
up the limited room available as a result of the outdoor seating.
28. Defendant erroneously contends that since it obtained a sidewalk café permit (Sjoquist
Affirmation, Exhibit “I”), as a matter of law the outdoor seating area was not negligently situated.
However, this has not been established.
29. The New York City Department of Consumer Affairs issues sidewalk café licenses. On
July 28, 2013 the New York City Council enacted a Local Law to amend the administrative code of the
city of New York pertaining to sidewalk cafes (annexed hereto as Exhibit “B”), New York City
Administrative Code sections 20-223 to 20-227.1.
30. Under the Rules of the City of New York, Title 6: Department of Consumer Affairs
(Exhibit “C”) 2-46, the City of New York established sidewalk clearance standards with respect to
sidewalk cafes. Sidewalks must be at least 12 feet wide. Section 2-46(b) states that “sidewalk
clearances must always be sufficient to ensure a pedestrian path free of obstructions . . . a minimum
sidewalk width must remain after installation of said improvement.” Defendant has failed to establish
that the clearance was sufficient as required.
6 of 7
31. Moreover, section 2-46 (c) specifies clearance distances. The distance to street trees is 8
feet. Defendant has not established that, at the time of the accident, there was a sufficient clearance
either of 12 feet to the end of the sidewalk, or 8 feet to the tree well.
32. Section 2-46(d) sets forth that the sidewalk café operator may remove a tree guard in
which case, among other things, it is responsible to maintain the pavers and bollards. It is unknown
whether defendant has ever made this application and/or removed tree guards.
33. Section 2-47 states that the City of New York may require a pedestrian flow analysis. At
this point, it is unknown whether any such analysis was ordered and, if so, what the results may have
been.
34. Accordingly, there are triable issues of fact as to this defendant.
WHEREFORE, your affiant requests an order denying the instant motion in its entirety,
and for such other relief as may be just under the circumstances.
Dated: Garden City, New York
April 18, 2016
Daniel Melucci
7 of 7
Preview
FILED: NEW YORK COUNTY CLERK 04/18/2016 11:17 AM INDEX NO. 157971/2015 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 04/18/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X ELBA SOCORRO MELLA, AFFIRMATION IN OPPOSITION Plaintiff, Index No.: 157971/2015 -against- COOGAN’S, ROYAL CHARTER PROPERTIES, INC., and THE CITY OF NEW YORK, Defendants. ------------------------------------------------------------------X Daniel Melucci, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under penalties of perjury: 1. I am a member of Melucci Firm, P.C., the attorney of record for the plaintiff herein, and as such am fully familiar with the facts and circumstances set forth. 2. This affirmation is submitted in opposition to the motion of defendant 600 West 169th Rest. Inc. a/k/a COOGAN’S which seeks an order granting summary judgment and dismissing the complaint. 3. This is an action for compensation due to personal injuries sustained by the plaintiff when she was caused to trip and fall due to a raised cobblestone located in a tree well in front of the defendant’s premises. 4. It is respectfully submitted that the instant motion should be denied on various grounds. THE MOTION IS PREMATURE 5. First, the instant motion is premature. At this point, there has been no discovery provided by the defendants despite the fact that plaintiff served various demands (Exhibit “A”) on December 2, 2015. No preliminary conference has been held and no depositions have been conducted. This motion 1 of 7 was the first opportunity plaintiff has had to see the items defendant chose to attach. 6. Where only limited discovery has taken place, a motion for summary judgment can be deemed premature when “facts essential to justify opposition may exist but cannot then be stated”. See, Weinstein v. WB.Stellar IP Owner, LLC, 125 A.D.3d 526, 527 (1st Dept. 2015) (citing CPLR3212(f)). See, also, Bustillo v. Tuckahoe Development, LLC, 300 A.D.2d 272 (2nd Dept. 2002). 7. In the Weinstein case, supra, the First Department noted that a defendant’s motion for summary judgment was premature in part because the defendant had not yet had the opportunity to depose a codefendant. Likewise, the Court should find in this instance that the motion for summary judgment as against the plaintiff is premature because we have not yet had the opportunity to depose Mr. Hunt or any other defense witness. 8. It is well established that where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment should be denied. This is especially so where the opposing party has not had an opportunity for disclosure prior to the making of the motion, Nelson v. Bestway Coach Express, 36 AD3d 488, 828 NYS2d 340 (1st Dept. 2007); Adrianis v. Fox , 30 A.D.3d 550, 817 N.Y.S.2d 374 (2d Dept. 2006). 9. Here, plaintiff has had no opportunity to obtain any of the discovery materials requested or to depose the defendant. Plaintiff needs discovery to determine, for example, what, if any, maintenance or control defendant undertook with respect to the subject tree well, how and where the outdoor seating was placed as it rerouted pedestrian traffic causing people to go into the tree well area, whether there were any prior complaints, accidents, violations, construction, etc. Plaintiff is entitled to see defendant’s records and documents with respect to its application for license and permit to operate a sidewalk café, including any pedestrian flow studies, variances or amendments. In short, there is a great deal of relevant information which is exclusively within the knowledge and control of the defendant. 2 of 7 10. Defendant should not be permitted to benefit from ignoring discovery demands, refusing to appear for depositions and withholding relevant materials, while “cherry picking” the items it wishes to use to support a summary judgment motion. DEFENDANT HAS NOT MADE A PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT 11. In a motion for summary judgment, the moving party must first demonstrate the absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses, Aimatop Restaurant, Inc. v. Liberty Mutual Fire Insurance Co., 74 A.D. 2d 516, 425 N.Y.S. 2d 8 (1980). Since summary judgment deprives the litigant of his day in Court and is considered to be a drastic remedy, it should be employed only when there is no doubt as to the absence of triable issues, Von Noy v. Corinth Central School District, 111 A.D. 2d 592, 489 N.Y.S. 2d 658 (1985). Therefore, the affidavits of the movant should be scrutinized carefully in the light most favorable to the party opposing the motion, Robinson v. Strong Memorial Hospital, 98 A.D. 2d 976, 470 N.Y.S. 2d 239 (1983). 12. A movant for summary judgment has the burden to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law. Failure to make such a showing requires denial of the motion, Winegrad v.New York University Medical Center, 64 N.Y. 2d 851 (1985). Additionally, the Court must search to find any viable causes of action, Ayala v. V & O Press Co., 126 A.D. 2d 229, 516 N.Y.S. 2d 704 (1987). 13. The law in New York is well settled that in determining the propriety of granting a motion for summary judgment, the role of the court is issue finding rather than issue determination, Super v. Abdelazim, 108 A.D. 2d 1040, 485 N.Y.S. 2d 612 (1985). Moreover, the drastic remedy of summary relief should not be granted where there is any doubt as to the existence of a triable issue or 3 of 7 where such an issue is even arguable, Gale v. Kessler, 93 A.D. 2d 744.461 N.Y.S. 2d 295 (1983). 14. Here, the defendant has the initial burden of making a prima facie showing that it neither caused nor created the alleged hazardous condition, Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655, 656 [2009]; see Jackson v Jamaica First Parking, LLC, 91 AD3d 602 [2d Dept 2012]; and Pryzywalny v New York City Tr. Auth., 69 AD3d 598 [2010]. 15. Defendant argues that pursuant to the Administrative Code of the City of New York 7- 210, the CITY OF NEW YORK is responsible for tree wells. While this is true on its face, defendant fails to establish, as a matter of law, that it did not make a special use or otherwise undertake to maintain the tree well in which case, defendant would be negligent if it failed to do so in a reasonably safe manner. 16. In order to make a prima facie showing of entitlement to summary judgment, defendant must have established that it neither negligently repaired the tree well nor caused the dangerous condition, either affirmatively, or by some special use of the tree well, Fernandez v. 707, 85 AD3d 539 (1st Dept. 2011). 17. Where the defendant contributed to the creation or exacerbation of the dangerous condition, summary judgment should be denied, Morales v. Pozo, 90 AD3d 625, 933 NYS2d 902 (2nd Dept. 2011). 18. Here, the defendant only submits the conclusory affidavit of David Hunt (the Court is respectfully referred to the Affirmation in Support of Chad E. Sjoquist (hereafter referred to “Sjoquist Affirmation”) dated March 8, 2016 at Exhibit “G”). 19. Mr. Hunt only claims that he is a principal of the defendant. He does not indicate what 4 of 7 his duties and responsibilities are or how he would have knowledge information to this matter. 20. Nonetheless, Mr. Hunt states that “the tree wells in front of Coogan’s have remained unchanged for several years. Neither Coogan’s nor its employees have ever damaged any portion of the tree wells, including the stones in the tree wells.” 21. Plaintiff has not had the opportunity to depose Mr. Hunt or to see any of the documents or records upon which he may have based this conclusion. 22. In any event, this statement in insufficient to establish, prima facie, that the defendant is entitled to summary judgment as the defendant has not established that it neither negligently repaired the tree well nor caused the dangerous condition, either affirmatively, or by some special use of the tree well, Fernandez, supra. 23. Rather, Mr. Hunt only sets forth that the tree wells have not been changed and Coogan’s did not damage them. This is insufficient. THERE ARE ISSUES OF FACT 24. Even had the defendant made a prima facie showing of entitlement to summary judgment, there are issues of fact which would require denial of the motion. 25. Defendant admittedly situated outdoor seating on the sidewalk area near the subject tree well. As can be seen from the surveillance video provided by defendant (Sjoquist Affirmation, Exhibit “F”), due to this outdoor seating, the sidewalk area for pedestrian travel was restricted resulting in the plaintiff being rerouted into the tree well area. 26. It should be noted that plaintiff disagrees with defendant’s assessment of the video. 5 of 7 Pedestrians can clearly be seen to veer into the narrow area next to the outdoor seating, and then move back onto the main sidewalk area after passing the outdoor seating. The plaintiff was clearly not running. Rather she was walking briskly as New York pedestrians often do. Whether the rate of travel was excessive is a question for the trier of fact. 27. A reasonable trier of fact could determine that, while the plaintiff was walking briskly through that area, she was routed into the tree well as she attempted to pass slower moving pedestrians. She could not move to her right due to the outdoor seating, and the two pedestrians in front of her took up the limited room available as a result of the outdoor seating. 28. Defendant erroneously contends that since it obtained a sidewalk café permit (Sjoquist Affirmation, Exhibit “I”), as a matter of law the outdoor seating area was not negligently situated. However, this has not been established. 29. The New York City Department of Consumer Affairs issues sidewalk café licenses. On July 28, 2013 the New York City Council enacted a Local Law to amend the administrative code of the city of New York pertaining to sidewalk cafes (annexed hereto as Exhibit “B”), New York City Administrative Code sections 20-223 to 20-227.1. 30. Under the Rules of the City of New York, Title 6: Department of Consumer Affairs (Exhibit “C”) 2-46, the City of New York established sidewalk clearance standards with respect to sidewalk cafes. Sidewalks must be at least 12 feet wide. Section 2-46(b) states that “sidewalk clearances must always be sufficient to ensure a pedestrian path free of obstructions . . . a minimum sidewalk width must remain after installation of said improvement.” Defendant has failed to establish that the clearance was sufficient as required. 6 of 7 31. Moreover, section 2-46 (c) specifies clearance distances. The distance to street trees is 8 feet. Defendant has not established that, at the time of the accident, there was a sufficient clearance either of 12 feet to the end of the sidewalk, or 8 feet to the tree well. 32. Section 2-46(d) sets forth that the sidewalk café operator may remove a tree guard in which case, among other things, it is responsible to maintain the pavers and bollards. It is unknown whether defendant has ever made this application and/or removed tree guards. 33. Section 2-47 states that the City of New York may require a pedestrian flow analysis. At this point, it is unknown whether any such analysis was ordered and, if so, what the results may have been. 34. Accordingly, there are triable issues of fact as to this defendant. WHEREFORE, your affiant requests an order denying the instant motion in its entirety, and for such other relief as may be just under the circumstances. Dated: Garden City, New York April 18, 2016 Daniel Melucci 7 of 7