Preview
FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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LAZAROSANCHEZ, :
: Index No.: 24105/2013e
Plaintiff, :
:
-against- :
: AFFIRMATION IN OPPOSITION
DEFENDANTS'
EXTRA SPACE STORAGE, INC., GABRIEL : TO HUNG AND
CASTANO, JERILYNN HORTON, CHI HUNG AND : YING'S SUMMARY JUDGMENT
CHAN Y1NG : MOTION
:
Defendants. :
:
____----------------------------------------
_______..-------------- -XX
:
EXTRA SPACE MANAGEMENT, INC., :
: Third Party Index No.: 43205/2015e
Third Party :
Plaintiff, :
:
-against- :
JR BUILDING SERVICE, INC. :
:
Third Party Defendant. :
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Scott H. Goldstein, Esq., an attorney duly admitted to practice law before the Court of the
State of New York, hereby affirms the following statements to be true under the penalties of perjury:
1. I am an attorney at the law firm of BONNER KIERNAN TREBACH &
CROCIATA, LLP, attorneys for defendant/third-party plaintiff EXTRA SPACE MANAGEMENT,
INC. (hereinafter referred to as "EXTRA SPACE") in the above entitled action. As such, I am fully
familiar with the facts and circumstances as set forth herein, the source of my knowledge being the
file maintained by my office in the course of handling this matter.
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2. We respectfully submit this affirmation in opposition to defendants CHI HUNG
("HUNG") and CHI CHAN YING ("YlNG") (hereinafter collectively referred to as "Homeowner
Defendants"
Defendants") motion for summary judgment.
3. Defendant Extra Space respectfully submits that the Homeowner Defendants failed to
satisfy their prima facie burden warranting summary judgment. A review of the record reveals that
issues of material fact still exist regarding their potential liability, assuming arguendo plaintiff
establishes: (1) that he tripped on bamboo; and (2) a dangerous condition existed on EXTRA
SPACE's property causing plaintiff to fall and suffer injury.
4. More specifically, questions of fact still remain with respect to the origin of the
alleged condition that plaintiff claims caused him to fall, as well as the extent of which the
Homeowner Defendants had notice about their role in causing the alleged condition which
purportedly caused plaintiff's accident.
5 Moreover, defendant HUNG's deposition testimony and the Affidavit of Extra
Space's expert, Daniel Scott Cullen (attached hereto as Exhibit A) reveal inconsistent statements
from the Homeowner Defendants with respect to the presence of and/or regrowth of bamboo on their
property, which presents disputed material issues to be resolved at trial,and therefore should not be
determined by this Court as a matter of law.
COUNTER-STATEMENT OF RELEVANT FACTS
6. This action involves a trip and fall accident which occurred on December 14,
2012. Plaintiff, LAZARO SANCHEZ alleges that he sustained personal injuries while performing
work, labor and/or services at 270 West Merrick Road, Valley Stream, New York (hereinafter
referred to as the "EXTRA SPACE property").
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7. Homeowner Defendants have been the co-owners of the residential property located
at 21 Smith Street, Valley Stream, New York for more than 30 years (Exhibit 6 to Homeowner
Defendants'
motion, page 10, lines 16-25).
8. The backyard of this property abuts the rear portion of the EXTRA SPACE property
Defendants'
(Exhibit 6 to Homeowner motion, page 17, lines 5-18).
9. Defendant HUNG knows what bamboo is and as such, is and was able to recognize
Defendants'
it(Exhibit 6 to Homeowner motion, page 29, lines 18-20).
10. Defendant HUNG admits that he noticed bamboo growing on his property prior to
the date of the incident, but could not pinpoint exactly how long before the incident itwas. (Exhibit
Defendants'
G to Homeowner motion, page 93, lines 2-25; page 94, lines 2-6).
11. Defendant HUNG also observed bamboo growing on the property next door to him,
Defendants'
and saw that his neighbors had issues with bamboo as well (Exhibit G to Homeowner
motion, page 108, lines 5-9).
12. Defendant HUNG was acutely aware that the bamboo was growing quickly and
spreading so he personally cut the bamboo on his own property. Indeed he testified that he cut the
Defendants'
bamboo because it "grew up too quick and expanded". (Exhibit 6 to Homeowner
motion, page 97, lines 12-23, page 106, lines 5-8).
13. Defendant HUNG claims that after he cut the bamboo, itnever grew back (Exhibit
Defendants'
G to Homeowner motion, page 107, lines 21-24).
14. However, on the contrary, Extra Space's expert arborist, Daniel Scott Cullen,
observed bamboo growing on the property located at 21 Smith Street near and around the
fencing separating 21 Smith Street, 15 Smith Street, and the Extra Space Storage property during
his inspection on January 19, 2018 (see Mr. Cullen's sworn affidavit attached hereto as Exhibit A).
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15. Furthermore, because bamboo was found on these abutting properties, Mr. Cullen
was unable to determine where the bamboo originated, or from which of the properties that abut
the Extra Space property the bamboo could have originated (Exhibit A).
16. Mr. Cullen opines that, based upon his inspection of the area and a reasonable
degree of professional certainty, he cannot rule out that some of the bamboo on Extra Space's
property originated from the property at 21 Smith Street.
17. As such, there are material questions of fact in dispute regarding whether the
Defendants'
purported bamboo on Extra Space's property originated from Homeowner property
at 21 Smith Street.
LEGAL ARGUMENT
18. A party must establish itsentitlement to summary judgment in order for the burden
to shift to the non-movant to demonstrate by admissible evidence the existence of a triable issue
of material fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). To succeed on a motion
for summary judgment, the moving party must show that he is entitled to summary judgment as a
matter of law, and must put forth sufficient evidence, in admissible form, to eliminate all material
issues of fact. Winegrad v. New York Univ. Medical Ctr., 64 N.Y.2d 851 (1980).
19. The non-moving party is entitled to every favorable inference, and need only show
that a triable issue of fact exists to defeat a motion for summary judgment. International Rescue
(Ist
Committee v. Reliance Ins. Co., 646 N.Y.S.2d 112 Dept. 1996). Summary judgment is a
drastic remedy, and should not be granted where there are conflicting inferences that may be
drawn from the evidence of where there are issues of credibility to determine. Andre v. Pomeroy,
35 N.Y.2d 361 (1974); Scott v. Long Island Power Authority, 741 N.Y.S.2d 708 (2d Dept. 2002).
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20. Based on the limitations imposed by the Legislature of the State of New York,
Courts interpreting CPLR §3212 have repeatedly held that the drastic remedy of summary
judgment will not be granted where there is any doubt as to the existence of a triable issue of fact.
Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664 (1999); Grossman v. Amalgamated House
(13t
Corp., 750 N.Y.S.2d 1 Dept. 2002). The role of the court on a motion for summary judgment
is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. Knepka v.
(4th (1st
Talman, 718 N.Y.S.2d 541 Dept. 2000); see also, Yaziciyan v. Blancato, 267 A.D.2d 152
Dept. 1999).
21. Finally, to constitute constructive notice, a defect is to be visible and apparent and
it must exist for a sufficient length of time prior to the accident to permit defendant to discover
and remedy it. Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986);
Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 (1994); Alexander v. New York City Tr., 824
N.Y.S.2d 262 (1st Dept. 2006).
22. In the event that plaintiff can establish that he actually tripped on a bamboo stump
and can identify the general vicinity of where he fell, and if he did trip on a bamboo stump, said
stump was large enough to be deemed a dangerous condition, a significant question of material
Defendants'
fact remains regarding whether the bamboo originated from Homeowner property,
which abuts a portion of the area where plaintiff fell on the Extra Space property.
23. That speaks directly to the heart of liability whether the bamboo stumps plaintiff
Defendants'
alleges caused him to fall originated from the Homeowner property.
Defendants'
24. In that regard, and contrary to Homeowner incorrect representations in
their motion, there is admissible evidence by way of defendant HUNG's own testimony that
Defendants'
bamboo was present on the Homeowner property, which creates an issue of fact as to
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whether the subject bamboo that plaintiff claims caused his fall originated or came from
Defendants'
Homeowner property.
25. Notably, HUNG admitted that he observed bamboo growing on his own property,
expanded"
as well as on his neighbor's property, and that the bamboo "grew quickly and (Exhibit
Defendants'
G to Homeowner motion, page 106, lines 5-8).
Defendants'
26. As such, Homeowner have failed to establish that, as a matter of law,
they were free from any negligence.
"expanding"
27. HUNG's admission that he observed the bamboo growing and on his
property and on his neighbor's property creates a question of fact as to the Homeowner
Defendants'
constructive notice of the presence of the bamboo itself.
28. In addition, an issue of fact is created regarding their constructive notice that
Homeowner Defendants were or could be creating a possible dangerous condition on the Extra
Space premises by his concession that the bamboo in the area was spreading amongst the various
premises including Extra Space's premises (assuming arguendo that plaintiff can establish that
he tripped on a bamboo stump).
29. To the extent that there are material questions of fact surrounding whether HUNG
had constructive notice of the presence and spreading nature of the alleged bamboo also creates a
Defendants'
triable question of fact as to Homeowner negligence that cannot and should not be
determined as a matter of law.
30. Furthermore, HUNG's testimony that the bamboo he cut himself never grew back
is directly inconsistent with the findings of our expert arborist, Daniel Scott Cullen (Exhibit A).
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31. Mr. Cullen observed bamboo growing on the property located at 21 Smith Street
near and around the fencing separating 21 Smith Street, 15 Smith Street, and the Extra Space
Storage property.
32. Furthermore, Mr. Cullen has opined based on his observation of bamboo on the
Defendants'
Homeowner property that he obviously could not rule out that the some of the
bamboo found on Extra Space's property originated from their property.
33. As such, assuming arguendo that plaintiff can establish that he fell on bamboo, can
establish which abutting property he fellnear, and can establish that the alleged bamboo created a
dangerous condition on the Extra Space premises (all of which we respectfully vigorously
dispute), this contradictory testimony creates an issue of fact as to the origin of any bamboo found
on Extra Space's property and establishes questions of Hung's credibility which are also best left
to be decided at trial,and cannot be determined as a matter of law by way of summary judgment.
24. Since triable issues of fact remain with respect to Homeowner Defendants, their
motion for summary judgment must be denied.
WHEREFORE it is respectfully requested that HUNG and YING's motion for summary
judgment be denied in its entirety, and that this Court fashion such other and further relief as may be
deemed just and proper under the circumstances.
DATED: New York, New York
April 2, 2018
V
Scott H. Goldstein
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FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------------------------------------------------XX LAZAROSANCHEZ, : : Index No.: 24105/2013e Plaintiff, : : -against- : : AFFIRMATION IN OPPOSITION DEFENDANTS' EXTRA SPACE STORAGE, INC., GABRIEL : TO HUNG AND CASTANO, JERILYNN HORTON, CHI HUNG AND : YING'S SUMMARY JUDGMENT CHAN Y1NG : MOTION : Defendants. : : ____---------------------------------------- _______..-------------- -XX : EXTRA SPACE MANAGEMENT, INC., : : Third Party Index No.: 43205/2015e Third Party : Plaintiff, : : -against- : JR BUILDING SERVICE, INC. : : Third Party Defendant. : -------------------------------------------------------------------XX Scott H. Goldstein, Esq., an attorney duly admitted to practice law before the Court of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: 1. I am an attorney at the law firm of BONNER KIERNAN TREBACH & CROCIATA, LLP, attorneys for defendant/third-party plaintiff EXTRA SPACE MANAGEMENT, INC. (hereinafter referred to as "EXTRA SPACE") in the above entitled action. As such, I am fully familiar with the facts and circumstances as set forth herein, the source of my knowledge being the file maintained by my office in the course of handling this matter. 1 1 of 7 FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018 2. We respectfully submit this affirmation in opposition to defendants CHI HUNG ("HUNG") and CHI CHAN YING ("YlNG") (hereinafter collectively referred to as "Homeowner Defendants" Defendants") motion for summary judgment. 3. Defendant Extra Space respectfully submits that the Homeowner Defendants failed to satisfy their prima facie burden warranting summary judgment. A review of the record reveals that issues of material fact still exist regarding their potential liability, assuming arguendo plaintiff establishes: (1) that he tripped on bamboo; and (2) a dangerous condition existed on EXTRA SPACE's property causing plaintiff to fall and suffer injury. 4. More specifically, questions of fact still remain with respect to the origin of the alleged condition that plaintiff claims caused him to fall, as well as the extent of which the Homeowner Defendants had notice about their role in causing the alleged condition which purportedly caused plaintiff's accident. 5 Moreover, defendant HUNG's deposition testimony and the Affidavit of Extra Space's expert, Daniel Scott Cullen (attached hereto as Exhibit A) reveal inconsistent statements from the Homeowner Defendants with respect to the presence of and/or regrowth of bamboo on their property, which presents disputed material issues to be resolved at trial,and therefore should not be determined by this Court as a matter of law. COUNTER-STATEMENT OF RELEVANT FACTS 6. This action involves a trip and fall accident which occurred on December 14, 2012. Plaintiff, LAZARO SANCHEZ alleges that he sustained personal injuries while performing work, labor and/or services at 270 West Merrick Road, Valley Stream, New York (hereinafter referred to as the "EXTRA SPACE property"). 2 2 of 7 FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018 7. Homeowner Defendants have been the co-owners of the residential property located at 21 Smith Street, Valley Stream, New York for more than 30 years (Exhibit 6 to Homeowner Defendants' motion, page 10, lines 16-25). 8. The backyard of this property abuts the rear portion of the EXTRA SPACE property Defendants' (Exhibit 6 to Homeowner motion, page 17, lines 5-18). 9. Defendant HUNG knows what bamboo is and as such, is and was able to recognize Defendants' it(Exhibit 6 to Homeowner motion, page 29, lines 18-20). 10. Defendant HUNG admits that he noticed bamboo growing on his property prior to the date of the incident, but could not pinpoint exactly how long before the incident itwas. (Exhibit Defendants' G to Homeowner motion, page 93, lines 2-25; page 94, lines 2-6). 11. Defendant HUNG also observed bamboo growing on the property next door to him, Defendants' and saw that his neighbors had issues with bamboo as well (Exhibit G to Homeowner motion, page 108, lines 5-9). 12. Defendant HUNG was acutely aware that the bamboo was growing quickly and spreading so he personally cut the bamboo on his own property. Indeed he testified that he cut the Defendants' bamboo because it "grew up too quick and expanded". (Exhibit 6 to Homeowner motion, page 97, lines 12-23, page 106, lines 5-8). 13. Defendant HUNG claims that after he cut the bamboo, itnever grew back (Exhibit Defendants' G to Homeowner motion, page 107, lines 21-24). 14. However, on the contrary, Extra Space's expert arborist, Daniel Scott Cullen, observed bamboo growing on the property located at 21 Smith Street near and around the fencing separating 21 Smith Street, 15 Smith Street, and the Extra Space Storage property during his inspection on January 19, 2018 (see Mr. Cullen's sworn affidavit attached hereto as Exhibit A). 3 3 of 7 FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018 15. Furthermore, because bamboo was found on these abutting properties, Mr. Cullen was unable to determine where the bamboo originated, or from which of the properties that abut the Extra Space property the bamboo could have originated (Exhibit A). 16. Mr. Cullen opines that, based upon his inspection of the area and a reasonable degree of professional certainty, he cannot rule out that some of the bamboo on Extra Space's property originated from the property at 21 Smith Street. 17. As such, there are material questions of fact in dispute regarding whether the Defendants' purported bamboo on Extra Space's property originated from Homeowner property at 21 Smith Street. LEGAL ARGUMENT 18. A party must establish itsentitlement to summary judgment in order for the burden to shift to the non-movant to demonstrate by admissible evidence the existence of a triable issue of material fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). To succeed on a motion for summary judgment, the moving party must show that he is entitled to summary judgment as a matter of law, and must put forth sufficient evidence, in admissible form, to eliminate all material issues of fact. Winegrad v. New York Univ. Medical Ctr., 64 N.Y.2d 851 (1980). 19. The non-moving party is entitled to every favorable inference, and need only show that a triable issue of fact exists to defeat a motion for summary judgment. International Rescue (Ist Committee v. Reliance Ins. Co., 646 N.Y.S.2d 112 Dept. 1996). Summary judgment is a drastic remedy, and should not be granted where there are conflicting inferences that may be drawn from the evidence of where there are issues of credibility to determine. Andre v. Pomeroy, 35 N.Y.2d 361 (1974); Scott v. Long Island Power Authority, 741 N.Y.S.2d 708 (2d Dept. 2002). 4 4 of 7 FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018 20. Based on the limitations imposed by the Legislature of the State of New York, Courts interpreting CPLR §3212 have repeatedly held that the drastic remedy of summary judgment will not be granted where there is any doubt as to the existence of a triable issue of fact. Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664 (1999); Grossman v. Amalgamated House (13t Corp., 750 N.Y.S.2d 1 Dept. 2002). The role of the court on a motion for summary judgment is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. Knepka v. (4th (1st Talman, 718 N.Y.S.2d 541 Dept. 2000); see also, Yaziciyan v. Blancato, 267 A.D.2d 152 Dept. 1999). 21. Finally, to constitute constructive notice, a defect is to be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy it. Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986); Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 (1994); Alexander v. New York City Tr., 824 N.Y.S.2d 262 (1st Dept. 2006). 22. In the event that plaintiff can establish that he actually tripped on a bamboo stump and can identify the general vicinity of where he fell, and if he did trip on a bamboo stump, said stump was large enough to be deemed a dangerous condition, a significant question of material Defendants' fact remains regarding whether the bamboo originated from Homeowner property, which abuts a portion of the area where plaintiff fell on the Extra Space property. 23. That speaks directly to the heart of liability whether the bamboo stumps plaintiff Defendants' alleges caused him to fall originated from the Homeowner property. Defendants' 24. In that regard, and contrary to Homeowner incorrect representations in their motion, there is admissible evidence by way of defendant HUNG's own testimony that Defendants' bamboo was present on the Homeowner property, which creates an issue of fact as to 5 5 of 7 FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018 whether the subject bamboo that plaintiff claims caused his fall originated or came from Defendants' Homeowner property. 25. Notably, HUNG admitted that he observed bamboo growing on his own property, expanded" as well as on his neighbor's property, and that the bamboo "grew quickly and (Exhibit Defendants' G to Homeowner motion, page 106, lines 5-8). Defendants' 26. As such, Homeowner have failed to establish that, as a matter of law, they were free from any negligence. "expanding" 27. HUNG's admission that he observed the bamboo growing and on his property and on his neighbor's property creates a question of fact as to the Homeowner Defendants' constructive notice of the presence of the bamboo itself. 28. In addition, an issue of fact is created regarding their constructive notice that Homeowner Defendants were or could be creating a possible dangerous condition on the Extra Space premises by his concession that the bamboo in the area was spreading amongst the various premises including Extra Space's premises (assuming arguendo that plaintiff can establish that he tripped on a bamboo stump). 29. To the extent that there are material questions of fact surrounding whether HUNG had constructive notice of the presence and spreading nature of the alleged bamboo also creates a Defendants' triable question of fact as to Homeowner negligence that cannot and should not be determined as a matter of law. 30. Furthermore, HUNG's testimony that the bamboo he cut himself never grew back is directly inconsistent with the findings of our expert arborist, Daniel Scott Cullen (Exhibit A). 6 6 of 7 FILED: BRONX COUNTY CLERK 04/02/2018 04:28 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 04/02/2018 31. Mr. Cullen observed bamboo growing on the property located at 21 Smith Street near and around the fencing separating 21 Smith Street, 15 Smith Street, and the Extra Space Storage property. 32. Furthermore, Mr. Cullen has opined based on his observation of bamboo on the Defendants' Homeowner property that he obviously could not rule out that the some of the bamboo found on Extra Space's property originated from their property. 33. As such, assuming arguendo that plaintiff can establish that he fell on bamboo, can establish which abutting property he fellnear, and can establish that the alleged bamboo created a dangerous condition on the Extra Space premises (all of which we respectfully vigorously dispute), this contradictory testimony creates an issue of fact as to the origin of any bamboo found on Extra Space's property and establishes questions of Hung's credibility which are also best left to be decided at trial,and cannot be determined as a matter of law by way of summary judgment. 24. Since triable issues of fact remain with respect to Homeowner Defendants, their motion for summary judgment must be denied. WHEREFORE it is respectfully requested that HUNG and YING's motion for summary judgment be denied in its entirety, and that this Court fashion such other and further relief as may be deemed just and proper under the circumstances. DATED: New York, New York April 2, 2018 V Scott H. Goldstein 7 7 of 7