Abrams v. BerelsonAbrams v. Berelson
(April 10, 2012)
Jay Abrams et al., Respondents, v Suzanne Berelson, Appellant. [942 NYS2d 132]
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated August 23, 2010, as granted the plaintiffs’ motion, denominated as one pursuant to
Ordered that the order dated August 23, 2010, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the plaintiffs’ motion pursuant to
The defendant hired the plaintiff Jay Abrams (hereinafter the injured plaintiff) and his coworker, Michael Torres, through their employer, to clean the carpets of a house that she owned and that, until her mother’s death two months earlier, had been occupied exclusively by her mother. According to the plaintiffs, the defendant instructed the injured plaintiff and Torres that any remaining property in the house could be kept by them,
The injured plaintiff and his wife, suing derivatively, commenced the instant action against the defendant. The defendant then moved for summary judgment dismissing the complaint and, in support of her motion, submitted an affidavit in which she averred that she was not aware that there was a rifle in the house. At the time that the defendant’s summary judgment motion was made, the plaintiffs were unable to locate Torres and, thus, could not obtain an affidavit from him regarding the circumstances surrounding the accident and his discovery of the gun. In an order dated August 30, 2000, the Supreme Court granted the motion, concluding that the defendant had met her prima facie burden and that the plaintiffs failed to raise a triable issue of fact as to actual or constructive notice. This Court affirmed the order (see Abrams v Berelson, 283 AD2d 597 [2001]).
More than nine years later, the plaintiffs moved, pursuant to
The Supreme Court improvidently exercised its discretion in granting the plaintiffs’ motion. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (
In any event, even if the plaintiffs had demonstrated the requisite reasonable justification, denial of the motion would have been warranted because the allegedly new facts offered would not have changed the prior determination (see
A defendant has constructive notice of a dangerous condition when the condition “is visible and apparent, and has existed for
The plaintiff failed to raise a triable issue of fact in that regard. Torres’ affidavit merely established that there was a box in the closet labeled “Daisy air rifle B.B. gun,” which contained a .22 caliber rifle, and that one could not look into the closet without noticing the box. Even if Torres’s affidavit, along with the defendant’s deposition testimony that, when she was a child, her father owned a gun which she knew about, was sufficient to establish a triable issue of fact as to the defendant’s constructive notice that the box contained a rifle, there was no evidence that the defendant knew or had any reason to know that the rifle in the box was loaded (see Yusko v Remizon, 280 App Div at 639; cf. Gill v Falkowski, 69 AD2d 934, 935 [1979]). Further, under the circumstances of this case, involving the injured plaintiff and Torres, adults who were no less able to assess and appreciate the danger of a weapon than the defendant, and the need to treat a weapon with the utmost of care, we decline to impose upon the defendant a duty to personally inspect the contents of the box to assess whether any weapon contained therein was loaded so that she could so warn the injured plaintiff and his co-worker (see Yusko v Remizon, 280 App Div at 639).
The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the plaintiffs’ motion pursuant to
Dickerson, J.,
Following her mother’s death, the defendant hired All Boro Carpet Cleaning (hereinafter All Boro) to clean the carpets in the house in order to prepare the house to be rented. The plaintiff Jay Abrams (hereinafter the injured plaintiff) and his coworker Michael Torres worked for All Boro. On November 3, 1997, the injured plaintiff and Torres went to the defendant’s house to perform cleaning work. According to the plaintiffs, the defendant instructed the injured plaintiff and Torres to move the personal property within the house to the kitchen so the carpets could be cleaned. She further instructed the injured plaintiff that, if he came across any items that he wanted, he should bring them to her attention, and she would let him know whether he could keep them.
The injured plaintiff and Torres began cleaning out the house, working in separate rooms. According to the plaintiffs, Torres came across a rifle in a closet, and when he picked up the rifle, it discharged. The bullet struck the injured plaintiff in the jaw, severely injuring him.
Torres was initially arrested, but he was released and the charges were dropped when the injured plaintiff confirmed that the shooting was accidental. However, after his release, Torres could not be located.
The injured plaintiff and his wife, suing derivatively, commenced this action against the defendant as homeowner. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that there was no evidence that she had actual or constructive notice of the presence of the rifle in the house, or that it was loaded. In an order dated August 30, 2000, the Supreme Court granted the defendant’s motion. The Supreme Court found that the plaintiffs could not establish a prima facie case as to notice, largely because Torres could not be produced to testify concerning where the rifle was discovered and whether it was visible and apparent. Additionally, the plaintiffs could offer no evidence as to how long the rifle had been present in the house prior to the shooting. This Court affirmed the order granting the defendant summary judg-ment dismissing the complaint, concluding that “[t]he defendant established that she did not have actual or constructive notice of the presence of the rifle in the closet. In response, the plaintiffs only speculated that the defendant had notice of the rifle” (Abrams v Berelson, 283 AD2d 597, 598 [2001]).
In 2010, by order to show cause, the plaintiffs moved pursuant to
The Supreme Court properly treated the plaintiffs’ motion as one for leave to renew pursuant to
“Pursuant to
Torres’s availability and testimony constituted new facts not offered on the prior motion within the meaning of
Contrary to the plaintiffs’ contentions, under the circumstances of this case, I conclude that the other evidence on which their motion was premised, specifically the discovery that the rifle had not been destroyed and was available, and the testimony of several other witnesses, did not constitute “new facts” within the meaning of
With regard to whether the plaintiffs demonstrated a reasonable justification for their failure to present Torres’s testimony in opposition to the defendant’s motion in 2000, “[w]hat constitutes a ‘reasonable justification’ is within the Supreme Court’s discretion” (Dervisevic v Dervisevic, 89 AD3d 785, 787 [2011]; see Rowe v NYCPD, 85 AD3d 1001, 1003 [2011]). Here, it is undisputed that Torres deliberately went into hiding for years following the shooting, and that the plaintiffs could not locate him. The plaintiffs proffer evidence concerning some of the unsuccessful efforts undertaken to locate Torres, including the personal efforts of the injured plaintiff’s wife, the efforts of the plaintiffs’ prior attorney, and the affidavit of a mutual friend who attempted to locate Torres for the plaintiffs. The plaintiffs also rely on Torres’s affidavit, in which he acknowledges going into hiding and describes some of the steps he took to conceal his whereabouts. Cumulatively, this evidence was sufficient to demonstrate that the plaintiffs exercised due diligence in attempting to locate Torres, but to no avail. The defendant’s protestations that the plaintiffs failed to adequately demonstrate that Torres’s availability could not be secured through the exercise of due diligence are without merit and belied by the record. Under the circumstances of this case, and based on the applicable standard, the plaintiffs were not required to produce an even more detailed account of their efforts over the years to
Thus, the remaining question is whether the proffered evidence “would change the prior determination” (
“A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact” (Napolitano v Suffolk County Dept. of Pub. Works, 65 AD3d 676, 677 [2009]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). “The failure to make such a prima facia showing requires the denial of the motion regardless of the sufficiency of the opposing papers” (Napolitano v Suffolk County Dept. of Pub. Works, 65 AD3d at 677; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the movant succeeds in making a prima facie showing, the burden then shifts to the nonmoving party to come forward with sufficient evidence to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324; Yax v Development Team, Inc., 67 AD3d 1003, 1004 [2009]). In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2009]).
Thus, to establish that the newly-discovered evidence “would change the prior determination” (
“ ‘A property owner has a duty to maintain [its] property in a reasonably safe condition’ ” (Surujnaraine v Valley Stream Cent. High School Dist., 88 AD3d 866, 866 [2011], quoting Katz v Westchester County Healthcare Corp., 82 AD3d 712, 713 [2011]). “ ‘However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous’ ” (Surujnaraine v Valley Stream Cent. High School Dist., 88 AD3d at 866, quoting Katz v Westchester County Healthcare Corp., 82 AD3d at 713; see Neiderbach v 7-Eleven, Inc., 56 AD3d 632, 633 [2008]; Giambruno v Wilbur F. Breslin Dev. Corp., 56 AD3d 520, 521 [2008]; Cupo v Karfunkel, 1 AD3d 48, 51 [2003]).
“ ‘[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury’ ” (Surujnaraine v Valley Stream Cent. High School Dist., 88 AD3d at 867, quoting Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).
The majority, relying on an Appellate Division, Third Department, case decided in 1952 (see Yusko v Remizon, 280 App Div 637 [1952]), and an Appellate Division, Fourth Department, case decided in 1951 (see Napiearlski v Pickering, 278 App Div 456 [1951]), concludes that, under the circumstances presented here, the mere presence of a gun in the defendant’s house did not constitute negligence. I do not necessarily disagree with the statement that “[t]he mere presence of a gun in one’s house is not negligence” (Yusko v Remizon, 280 App Div at 639), as a general, and limited, proposition. I depart from my colleagues in the majority, however, in concluding that, here, because of the manner in which the loaded rifle was stored, and based on the instructions offered to the injured plaintiff and Torres by the defendant, under the “ ‘peculiar facts and circumstances of [this] case’ ” (Surujnaraine v Valley Stream Cent. High School Dist., 88 AD3d at 867, quoting Trincere v County of Suffolk, 90 NY2d at 977), the loaded rifle constituted a hazardous condition.
Torres’s affidavit states that he and the injured plaintiff were working in separate rooms at the defendant’s house. The defendant had informed the injured plaintiff that she had “gone through the house and removed everything she wanted.” She had informed Torres and the injured plaintiff that they “could
Viewing the evidence in the light most favorable to the nonmoving plaintiffs (see Pearson v Dix McBride, LLC, 63 AD3d at 895), I conclude, based on the peculiar facts and circumstances of this case (see Trincere v County of Suffolk, 90 NY2d at 977; Surujnaraine v Valley Stream Cent. High School Dist., 88 AD3d at 867), that the loaded rifle, out in the open and in plain sight, misleadingly left in a BB gun box, could constitute a dangerous condition sufficient to support liability against the defendant homeowner. This is particularly so in light of the defendant’s invitation to the injured plaintiff and Torres to sort through all items in the house, and select among those items any they would like to keep. Indeed, in light of the fact that the rifle was misleadingly stored in or on a BB gun box, this condition could be deemed a “trap for the unwary,” inasmuch as the true nature of the condition was obscured by the manner in which it presented itself (Clark v AMF Bowling Ctrs., Inc., 83 AD3d 761, 761 [2011]; see Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008]). Contrary to the defendant’s contention, this case does essentially appear to “involve a rifle left out in the open, loaded and cocked.”
Turning to whether the defendant created or had actual or constructive notice of the hazardous condition, the plaintiffs did not allege, and there was no evidence to support the theory, that the defendant created the hazardous condition. The defendant also denied having actual notice thereof, and the
“ ‘A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected’ ” (Leary v Leisure Glen Home Owners Assn., Inc., 82 AD3d 1169, 1170 [2011], quoting Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629, 629 [2009]; see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). “ ‘There must be some proof that the potential danger reasonably could have been neutralized and that its existence was or should have been discovered by the [landowner]’ ” (Abrams v Berelson, 283 AD2d at 598, quoting Preston v State of New York, 59 NY2d 997, 999 [1983]).
Again, Torres stated in his affidavit that the defendant had informed the injured plaintiff that she had “gone through the house and removed everything she wanted.” Torres further stated in his affidavit that it would be impossible for anyone who looked into the closet to fail to see the rifle. He speculated that whoever had removed clothing from the closet “had clearly left the box and the gun intentionally.” In addition to these new facts, in her deposition testimony which was before the Supreme Court on her original motion, the defendant testified that, following her mother’s death, she had sorted through several closets in the house and packed her mother’s possessions. Further, the defendant stated in her affidavit in support of her motion for summary judgment that, “[w]hen [the injured] Plaintiff was in the house cleaning the carpets, I was still in the process of cleaning out the house and ‘going through’ the items contained therein.”
This evidence is undeniably relevant to whether the loaded rifle was “visible and apparent” (see Gordon v American Museum of Natural History, 67 NY2d at 837; Leary v Leisure Glen Home Owners Assn., Inc., 82 AD3d at 1170; Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d at 629). Again, Torres stated that “[i]n the box and in pla[i]n sight, was a rifle.” Furthermore, I conclude that, viewing the evidence in the light most favorable to the nonmoving plaintiffs (see Pearson v Dix McBride, LLC, 63 AD3d at 895), Torres’s affidavit concerning the manner in which he found the rifle and the condition in
I do not agree with the majority that, under the particular and unique circumstances of this case, the plaintiffs were required to prove that the defendant had actual or constructive notice of the fact that the rifle was loaded. I am not convinced that this is a per se requirement regardless of the surrounding circumstances. I note that the cases on which the majority relies for this proposition were decided by the Appellate Division, Third Department (see Yusko v Remizon, 280 App Div 637 [1952]), and the Appellate Division, Fourth Department (see Napiearlski v Pickering, 278 App Div 456 [1951]). While this Court should accept the decisions of the other Judicial Departments of the Appellate Division as persuasive, we are free to reach a different result (see Mountain View Coach Lines v Storms, 102 AD2d 663, 665 [1984]; see e.g. Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 546 [2010]). I would further note that, in our prior decision and order in this matter, we referred only to whether or not the defendant had “actual or constructive notice of the presence of the rifle in the closet” (Abrams v Berelson, 283 AD2d at 598).
Here, in my opinion, in light of the facts that the rifle was misleadingly stored in a BB gun box, and the defendant expressly stated that the injured plaintiff and Torres could take whatever they wished from the house, if they notified her they were doing so, if the defendant indeed had constructive notice of the presence of the rifle, under these circumstances, she had, as well, a duty, at the least, to determine whether the rifle was loaded. In this regard, as the majority observes, the injured plaintiff and Torres were adults who should have been “no less able to assess and appreciate the danger of a weapon than the defendant, and the need to treat a weapon with the utmost of care.” However, I disagree with the majority in that, under the circumstances of this case, I conclude that the defendant, as the owner of the home, who affirmatively invited the injured plaintiff and Torres into her home, asked them to sort through numerous items, and even offered to allow them to keep items,
Finally, in my estimation, it is not necessary to resort to the parties’ conflicting policy arguments to determine this appeal. As the plaintiffs observe, there is a strong public policy in favor of resolving cases on their merits (see e.g. Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2010]). However, as the defendant observes, there is also a strong public policy in favor of finality. “Considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation” (Matter of Reilly v Reid, 45 NY2d 24, 28 [1978]). However, this matter is properly resolved on the grounds set forth above, without resort to these public policy concerns. Additionally, I would note that it is highly unlikely that this case could set an undesirable precedent encouraging litigants to reopen seemingly long-decided cases at their whim. The facts surrounding this case, and Torres’s lengthy and deliberate unavailability, are highly unusual, and granting the plaintiffs’ motion for leave to renew under these circumstances would hardly open the floodgates to voluminous applications of a similar nature.
Thus, in my opinion, the new facts in the form of Torres’s affidavit, in addition to the evidence already before the Supreme Court on the defendant’s summary judgment motion, viewed in the light most favorable to the plaintiffs (see Pearson v Dix McBride, LLC, 63 AD3d at 895), was sufficient to raise a triable issue of fact as to whether the defendant had constructive notice of the alleged dangerous condition consisting of the loaded rifle stored in a box labeled “Daisy air rifle b.b. gun” in the closet of the defendant’s house. Therefore, I am of the opinion that Torres’s affidavit “would change the prior determination” on the defendant’s motion (
[Prior Case History: 28 Misc 3d 1227(A), 2010 NY Slip Op 51515(U).]