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Perruzza v L & M Creations of N.Y. 2012 NY Slip Op 31064(U) April 10, 2012 Supreme Court, Suffolk County Docket Number: 07-13410 Judge: John J.J. Jones Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SHORT fORM ORDIOR

INDEX No. CALNo.

07-13410 II-005520T

SUPREME COURT - STATE OF NEW YORK I.A.S. PART 10 - SUFFOLK COUNTY

PRESENT:
Hon. JOHN J.J. JONES, JR. Justice of the Supreme Court MOTION DATE MOTION DATE ADJ. DATE # 002 Mot. Seq. # 003 8-22-1 1(#002) 8-29-1 1(#003) 11-02-11 - MD - MG; CASEDISP

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GERARD PERRUZZA, Plaintiff, ~against ~ L & M CREA nONS OF NEW YORK, MARC SIMONETTI and LEONARD OLIVA, Defendants. EDELMAN, KRASIN & JAY, PLLC Attorney for Plaintiff One Old Country Road Carle Place, New York 11514

MAZZARA & SMALL, P.C. Attorney for Defendantffhird-Party 800 Veterans Memorial Highway Hauppauge, New York 11788

Plaintiffs

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L & M CREATIONS OF NEW YORK, MARC SIMONETTI and LEONARD OLIVA, GOLDBERG & SEGALLA LLP Attorney for Third-Party Defendants 200 Old Country Road, Suite 210 Mineola, New York 11501

Third-Party Plaintiffs, - against OPUS 8 INC., KATHERINE DELAURENZO and BRENDA PERRUZZA, Third-Party Defendants.

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Upon the following papers numbered I to.......l.L read on this motion for summary judgment; Notice of Motion! Order to Show Cause and supporting papers 1 - 23: 24 - 40 ; Notice of Cross Motion and supporting papers _; AnsweringAffidavits and supporting papers 41 - 45: 46 - 51 ; Replying Affidavits and supporting papers 52 - 53; 54 . 58 ; Other _; (and aRe, hcal iug COtlIt3e1ill :'ltll'Pl"IIt Il:ltd 0PPo3cd to {he lIH'tlioll) il is,

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ORDERED that motion (#002) by third-party defendants and (#003) by defendants/third-party plaintiffs are consolidated for the purposes of this determination; and it is ORDERED that the motion (#003) by defendants L&M Creations of New York, Marc Simonetti and Leonard Oliva for summary judgment dismissing plaintiff's complaint is granted; and it is further ORDERED that the motion (#002) by third-party defend<mts Opus 8 Inc., Katherine Delaurenzo and Brenda Perruzza for sunullary judgment dismissing the third-party complaint against them is denied, as academic. This is an action to recover damages for personal injuries allegedly sustained by plaintiff Gerard Perrua..3 when he fell down an exterior staircase on November 10,2006 at about 12:30 a.m. The subject premises, located at 123 Main Street, Cold Spring Harbor, New York, was owned by defendant L&M Creations of New York. Del-endants Marc Simonetti and Leonard Oliva are officers ofL&M Creations (hereinafter collectively referred to as the "L&M defendants"). By his bill of particulars, plamtiffalleges that the L&M defendants were negligent in failing to properly maintain the staircase and in failing to provide proper lighting. As a third-party claim, the L&M defendants seeks indemnification from their tenant, third-party dcfendants Opus 8, Inc., Katherine Delaurenzo and Brcnda PerrU7J.3(hereinafter collectively referred to as the "Opus 8 defendants") pursuant to the lease agreement. The L&M defendants now move for summary judgment dismissing the complaint on the grounds that they owed no duty to illuminate the property during all hours of darkness, and that the unlit condition of the stairway at or about midnight docs not constitute an actionable hazard or defect. The L&M defendants also argue that the complaint against defendants Simonetti and Oliva should be dismissed, as there is no basis for personal liability. In support of their motion, the L&M defendants submit, among other things, copies of the pleadings, a copy of the lease agreement between L&M Creations and Opus 8, Inc., photographs of the subject premises, and transcripts of the deposition testimony of plaint iff, Simonetti, Oliva, and Sanford Brenner. The Opus 8 detcndants move for summary judgment dismissing the complaint and the tmrd-party complaint on the grounds that the unlit condition of the staircase is open and obvious, and that Opus 8 is not responsible for maintaining the subject staircase. In support of their motion, the Opus 8 defendants submit, among other things, copies of the pleadings; transcripts of the deposition testimony of Oliva, Brenner and Brenda Perru;.-.za;photographs orthe subject premises; and a copy of the lease agreement. Plaintiff opposes the motion by the L&M defendants, arguing that inoperable exterior lights exacerbated a trap-like condition on the staircase where plaintiff fell. In opposition, plaintiff submits reports prepared by Daniel I-faines, an engineer. Plaintiff docs not oppose the motion by the Opus 8 defendants. The L&M defendants partially oppose the motion for summary judgment by the Opus 8 defendants, arguing that they did not submit a complete copy of the pleadings, and that they arc obligated to indemnify them under the terms of the lease agreement. In opposition to the Opus S defendants' motion, the L&M defendants submit a copy or the pleadings and excerpts of the deposition testimony of plainti n: Brenda Perruzza, and Katherine DeLaurenzo. At his examination before trial, plaintiff, a contractor, testified that on the day of the accident he was constructing a decorative stone wall in a store leased by Opus 8, Inc. I Ie testified that Brenda

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Perruzza, a part owner of Opus 8, is his daughter, and that he was doing the work as a favor to her. He testified that he completed the work at around 11 :30 p.m, and that Brenda and her boyfriend were at the store cleaning up. He testified that at about 12:30 a.m, he went out to the side of the building to hide the key for the store so that the carpenter could get into the store the next morning to do work. Plaintiff testified that the interior lights in the store were illuminated, but that the stairway at the side of the building was "pitch black" and that he did not know there was a stairway there. He testitied that his right foot hit the "edge, or the top of a piece of concrete, or something, and [he] stumbled" and fell. At his examination before trial, Leonard Oliva, a shareholder of L&M Creations, testified that L&M Creations owned the subject property at the time of the accident. He described the property as a 6000~square-foot, commercially zoned building which has a brick and concrete walkway with a wooden handrail that leads to the lower level on the east side of the building. He testified that the property is in a historical area of Cold Spring Harbor, and that renovations to the property are not permitted without approval from the Historical Society in Huntington Village. He testified that there has been no repairs or renovations to the subject stairway, except for staining of the wooden deck and painting of the railing. Oliva stated that there is "recessed lighting in the soffit of the porch" in the front of the building, and that there are three light fixtures along the subject stairway. He testified that the lights arc set on a timer and turn on at about 5:30 p.m and turn offat 10:30 p.m. He further testified that when he was informed that plaintiff fell because the lights were not turned on, he called his contractor, Sanford Brenner, to check the lighting. At his examination before trial, Marc Simonetti, a shareholder of L&M Creations testified that there are two light fixtures by the subject stairway, and that the timer was set to shut ofTthe lights at about 10:00 p.m or II :00 p.m. He stated that all the stores in the subject building are closed by 8:00 p.m., and that street lighting illuminates the area after the building's exterior lights are shut off. He testified that there is a brick walkway that leads to a concrete landing and the subject stairway. I Ie further testified that the there was no height differential or hazardous condition on the brickwork and the concrete landing where plaintiff allegedly tripped and fell. At his examination before trial, Sanford Brenner testified that at the time of the accident he was a handyman employed by Oliva to perform various work on the su~ject premises. lIe testified that there are two halogen light fixtures in the backyard of the property, a light fixture by the stairs, a light fixture outside the first floor entrance, and a double light fixture at the top of ~he stairway. He testified that the lights were set on a timer and would turn on at about 4:30 p.m. and turn off at about 10:30 or 11:00 p.m. He slated that he was responsible for setting the timers and changing the light bulbs. He testified that on the day of the accident, he was doing renovations to the lower level store as it was vacant, and that the lighting by the stairway was working properly. Brenner further stated that when Oliva informed him about the accident, he checked the lights and determined that the lights and timer were working properly. !-Ietestified that there were no prior complaints regarding the lighting or the subject stairway. At her examination before trial, Brenda Pcrruzza, testified that Opus 8 leased a ground-level store at the subject property. She testified that when she walked on the subject stairway, she would be careful because there was a "little gap," and because there was a railing on only one side. She testified that the height differential where the bricks end and the cement begins is about half an inch, but stated that she never made a complaint about the stairs to the landlord. She testified that there was a sensor for the exterior lights that illuminated the subject stairway which would turn on when it was dark, but that the

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sensor stopped working for two weeks, including the day of the accident. She further testified that at the time of the accident, she heard her father yelling and that it was "pitch black" outside when she went to the area where the accident occurred. On a motion for summary judgment the movant bears the initial burden and must tender evidence sufficient to eliminate all material issues of fact (Winegrad v New York Univ. Med. Or., 64 NY2d 851, 487 NYS2d 316 r1985)). Once the movant meets this burden, the burden then shifts to the opposing party to demonstrate that there are material issues of fact; mere conclusions and unsubstantiated allegations arc insufticicnt to raise any triable issues of fact (see Zuckerman v City o/New York, 49 NY2d 557, 427 NYS2d 595 [1980J; Perez v Grace Episcopal Cllurcll, 6AD3d 596, 774 NYS2d 785 [2004]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to detemline matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O'Neill v Fi.

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